The contention urged on behalf of the respondents that
all the Judges, except Chief Justice Sikri, in Kesavananda
Bharati's case held that 29th Amendment was valid and
applied Jeejeebhoy's case, is not based on correct ratio of
Kesavananda Bharati's case. Six learned Judges (Ray, Phalekar, Mathew, Beg, Dwivedi and
Chandrachud, JJ) who
upheld the validity of 29th Amendment did not subscribe to
basic structure doctrine. The other six learned Judges (Chief
Justice Sikri, Shelat, Grover, Hegde, Mukherjee and Reddy JJ)
upheld the 29th Amendment subject to it passing the test of
basic structure doctrine. The 13th learned Judge (Khanna, J),
though subscribed to basic structure doctrine, upheld the 29th
Amendment agreeing with six learned Judges who did not
subscribe to the basic structure doctrine. Therefore, it would
not be correct to assume that all Judges or Judges in majority
on the issue of basic structure doctrine upheld the validity of
29th Amendment unconditionally or were alive to the
consequences of basic structure doctrine on 29th Amendment.
Six learned Judges otherwise forming the majority, held 29th amendment valid only if the legislation added to the Ninth Schedule did not violate the basic structure of the Constitution. The remaining six who are in minority in Kesavananda Bharati's case, insofar as it relates to laying down the doctrine of basic structure, held 29th Amendment unconditionally valid.
While laying the foundation of basic structure doctrine to test the amending power of the Constitution, Justice Khanna opined that the fundamental rights could be amended abrogated or abridged so long as the basic structure of the Constitution is not destroyed but at the same time, upheld the 29th Amendment as unconditionally valid. Thus, it cannot be inferred from the conclusion of the seven judges upholding unconditionally the validity of 29th Amendment that the majority opinion held fundamental rights chapter as not part of the basic structure doctrine. The six Judges which held 29th Amendment unconditionally valid did not subscribe to the doctrine of basic structure. The other six held 29th Amendment valid subject to it passing the test of basic structure doctrine.
Justice Khanna upheld the 29th Amendment in the following terms:
"We may now deal with the Constitution (Twenty ninth Amendment) Act. This Act, as mentioned earlier, inserted the Kerala Act 35 of 1969 and the Kerala Act 25 of 1971 as entries No. 65 and 66 in the Ninth Schedule to the Constitution. I have been able to find no infirmity in the Constitution (Twenty ninth Amendment) Act."
In his final conclusions, with respect to the Twenty-ninth Amendment, Khanna, J. held as follows:
"(xv) The Constitution (Twenty-ninth Amendment) Act does not suffer from any infirmity and as such is valid."
Thus, while upholding the Twenty-ninth amendment, there was no mention of the test that is to be applied to the legislations inserted in the Ninth Schedule. The implication that the Respondents seek to draw from the above is that this amounts to an unconditional upholding of the legislations in the Ninth Schedule.
They have also relied on observations by Ray CJ., as quoted below, in Indira Gandhi (supra). In that case, Ray CJ. observed:
"The Constitution 29th Amendment Act was considered by this Court in Kesavananda Bharati's case. The 29th Amendment Act inserted in the Ninth Schedule to the Constitution Entries 65 and 66 being the Kerala Land Reforms Act, 1969 and the Kerala Land Reforms Act, 1971. This Court unanimously upheld the validity of the 29th Amendment Act.
The view of seven Judges in Kesavananda Bharati's case is that Article 31-B is a constitutional device to place the specified statutes in the Schedule beyond any attack that these infringe Part III of the Constitution. The 29th Amendment is affirmed in Kesavananda Bharati's case (supra) by majority of seven against six Judges.
Second, the majority view in Kesavananda Bharati's case is that the 29th Amendment which put the two statutes in the Ninth Schedule and Article 31-B is not open to challenge on the ground of either damage to or destruction of basic features, basic structure or basic framework or on the ground of violation of fundamental rights."
The respondents have particularly relied on aforesaid highlighted portions.
On the issue of how 29th Amendment in Kesavananda Bharati case was decided, in Minerva Mills, Bhagwati, J. has said thus
"The validity of the Twenty-ninth Amendment Act was challenged in Kesavananda Bharati case but by a majority consisting of Khanna, J. and the six learned Judges led by Ray, J. (as he then was) it was held to be valid. Since all the earlier constitutional amendments were held valid on the basis of unlimited amending power of Parliament recognised in Sankari Prasad case and Sajian Singh's case and were accepted as valid in Golak Nath case and the Twenty Ninth Amendment Act was also held valid in Kesavananda Bharati case, though not on the application of the basic structure test, and these constitutional amendments have been recognised as valid over a number of years and moreover, the statutes intended to be protected by them are all falling within Article 31A with the possible exception of only four Acts referred to above, I do not think, we would be justified in re-opening the question of validity of these constitutional amendments and hence we hold them to be valid. But, all constitutional amendments made after the decision in Kesavananda Bharati case would have to be tested by reference to the basic structure doctrine, for Parliament would then have no excuse for saying that it did not know the limitation on its amending power."
To us, it seems that the position is correctly reflected in the aforesaid observations of Bhagwati, J. and with respect we feel that Ray CJ. is not correct in the conclusion that 29th Amendment was unanimously upheld. Since the majority which propounded the basic structure doctrine did not unconditionally uphold the validity of 29th Amendment and six learned judges forming majority left that to be decided by a smaller Bench and upheld its validity subject to it passing basic structure doctrine, the factum of validity of 29th mendment in Kesavananda Bharati case is not conclusive of matters under consideration before us.
In order to understand the view of Khanna J. in Kesavananda Bharati (supra), it is important to take into account his later clarification. In Indira Gandhi (supra), Khanna J. made it clear that he never opined that fundamental rights were outside the purview of basic structure and observed as follows:
"There was a controversy during the course of arguments on the point as to whether I have laid down in my judgment in Kesavananda Bharati's case that fundamental rights are not a part of the basic structure of the Constitution. As this controversy cropped up a number of times, it seems apposite that before I conclude I should deal with the contention advanced by learned Solicitor General that according to my judgment in that case no fundamental right is part of the basic structure of the Constitution.
I find it difficult to read anything in that judgment to justify such a conclusion. What has been laid down in that judgment is that no article of the Constitution is immune from the amendatory process because of the fact that it relates to a fundamental right and is contained in Part III of the Constitution—
—The above observations clearly militate against the contention that according to my judgment fundamental rights are not a part of the basic structure of the Constitution. I also dealt with the matter at length to show that the right to property was not a part of the basic structure of the Constitution. This would have been wholly unnecessary if none of the fundamental rights was a part of the basic structure of the Constitution".
Thus, after his aforesaid clarification, it is not possible to read the decision of Khanna J. in Kesavananda Bharati so as to exclude fundamental rights from the purview of the basic structure. The import of this observation is significant in the light of the amendment that he earlier upheld. It is true that if the fundamental rights were never a part of the basic structure, it would be consistent with an unconditional upholding of the Twenty-ninth Amendment, since its impact on the fundamental rights guarantee would be rendered irrelevant. However, having held that some of the fundamental rights are a part of the basic structure, any amendment having an impact on fundamental rights would necessarily have to be examined in that light. Thus, the fact that Khanna J. held that some of the fundamental rights were a part of the basic structure has a significant impact on his decision regarding the Twenty-ninth amendment and the validity of the Twenty-ninth amendment must necessarily be viewed in that light. His clarification demonstrates that he was not of the opinion that all the fundamental rights were not part of the basic structure and the inevitable conclusion is that the Twenty-ninth amendment even if treated as unconditionally valid is of no consequence on the point in issue in view of peculiar position as to majority abovenoted. Such an analysis is supported by Seervai, in his book Constitutional Law of India (4th edition, Volume III), as follows:
"Although in his judgment in the Election Case, Khanna J. clarified his judgment in Kesavananda's Case, that clarification raised a serious problem of its own. The problem was: in view of the clarification, was Khanna J. right in holding that Article 31-B and Sch. IX were unconconditionally valid? Could he do so after he had held that the basic structure of the Constitution could not be amended? As we have seen, that problem was solved in Minerva Mills Case by holding that Acts inserted in Sch. IX after 25 April, 1973 were not unconditionally valid, but would have to stand the test of fundamental rights. (Para 30.48, page 3138)
But while the clarification in the Election
Case simplifies one problem — the scope
of amending power — it raises complicated
problems of its own. Was Khanna J.
right in holding Art. 31-B (and Sch. 9)
unconditionally valid? An answer to
these questions requires an analysis of
the function of Art. 31-B and Sch.
9. Taking Art. 31-B and Sch. 9 first,
their effect is to confer validity on laws
already enacted which would be void for
violating one of more of the fundamental
rights conferred by Part III (fundamental
But if the power of amendment is limited by the doctrine of basic structure, a grave problem immediately arises—.The thing to note is that though such Acts do not become a part of the Constitution, by being included in Sch.9 [footnote: This is clear from the provision of Article 31-B that such laws are subject to the power of any competent legislature to repeal or amend them — that no State legislature has the power to repeal or amend the Constitution, nor has Parliament such a power outside Article 368, except where such power is conferred by a few articles.] they owe their validity to the exercise of the amending power. Can Acts, which destroy the secular character of the State, be given validity and be permitted to destroy a basic structure as a result of the exercise of the amending power? That, in the last analysis is the real problem; and it is submitted that if the doctrine of the basic structure is accepted, there can be only one answer. If Parliament, exercising constituent power cannot enact an amendment destroying the secular character of the State, neither can Parliament, exercising its constituent power, permit the Parliament or the State Legislatures to produce the same result by protecting laws, enacted in the exercise of legislative power, which produce the same result. To hold otherwise would be to abandon the doctrine of basic structure in respect of fundamental rights for every part of that basic structure can be destroyed by first enacting laws which produce that effect, and then protecting them by inclusion in Sch. 9. Such a result is consistent with the view that some fundamental rights are a part of the basic structure, as Khanna J. said in his clarification. (Para30.65, pages 3150- 3151)
In other words, the validity of the 25th and 29th Amendments raised the question of applying the law laid down as to the scope of the amending power when determining the validity of the 24th Amendment. If that law was correctly laid down, it did not become incorrect by being wrongly applied. Therefore the conflict between Khanna J.'s views on the amending power and on the unconditional validity of the 29th Amendment is resolved by saying that he laid down the scope of the amending power correctly but misapplied that law in holding Art. 31-B and Sch. 9 unconditionally valid—. Consistently with his view that some fundamental rights were part of the basic structure, he ought to have joined the 6 other judges in holding that the 29th Amendment was valid, but Acts included in Sch. 9 would have to be scrutinized by the Constitution bench to see whether they destroyed or damaged any part of the basic structure of the Constitution, and if they did, such laws would not be protected. (Para30.65, page 3151)"
The decision in Kesavananda Bharati (supra) regarding the Twenty-ninth amendment is restricted to that particular amendment and no principle flows therefrom.
We are unable to accept the contention urged on behalf of the respondents that in Waman Rao's case Justice Chandrachud and in Minerva Mills case, Justice Bhagwati have not considered the binding effect of majority judgments in Kesavananda Bharati's case. In these decisions, the development of law post-Kesavananda Bharati's case has been considered. The conclusion has rightly been reached, also having regard to the decision in Indira Gandhi's case that post-Kesavananda Bharati's case or after 24th April, 1973, the Ninth Schedule laws will not have the full protection. The doctrine of basic structure was involved in Kesavananda Bharati's case but its effect, impact and working was examined in Indira Gandhi's case, Waman Rao's case and Minerva Mills case. To say that these judgments have not considered the binding effect of the majority judgment in Kesavananda Bharati's case is not based on a correct reading of Kesavananda Bharati. On the issue of equality, we do not find any contradiction or inconsistency in the views expressed by Justice Chandrachud in Indira Gandhi's case, by Justice Krishna Iyer in Bhim Singh's case and Justice Bhagwati in Minerva Mills case. All these judgments show that violation in individual case has to be examined to find out whether violation of equality amounts to destruction of the basic structure of the Constitution.
Next, we examine the extent of immunity that is provided by Article 31B. The principle that constitutional amendments which violate the basic structure doctrine are liable to be struck down will also apply to amendments made to add laws in the Ninth Schedule is the view expressed by Chief Justice Sikri. Substantially, similar separate opinions were expressed by Shelat, Grover, Hegde, Mukherjea and Reddy, JJ. In the four different opinions six learned judges came to substantially the same conclusion. These judges read an implied limitation on the power of the Parliament to amend the Constitution. Justice Khanna also opined that there was implied limitation in the shape of the basic structure doctrine that limits the power of Parliament to amend the Constitution but the learned Judge upheld 29th Amendment and did not say, like remaining six Judges, that the Twenty-Ninth Amendment will have to be examined by a smaller Constitution Bench to find out whether the said amendment violated the basic structure theory or not. This gave rise to the argument that fundamental rights chapter is not part of basic structure. Justice Khanna, however, does not so say in Kesavananda Bharati's case. Therefore, Kesavananda Bharati's case cannot be said to have held that fundamental rights chapter is not part of basic structure. Justice Khanna, while considering Twenty-Ninth amendment, had obviously in view the laws that had been placed in the Ninth Schedule by the said amendment related to the agrarian reforms. Justice Khanna did not want to elevate the right to property under Article 19(1)(f) to the level and status of basic structure or basic frame-work of the Constitution, that explains the ratio of Kesavananda Bharati's case. Further, doubt, if any, as to the opinion of Justice Khanna stood resolved on the clarification given in Indira Gandhi's case, by the learned Judge that in Kesavananda Bharati's case, he never held that fundamental rights are not a part of the basic structure or framework of the Constitution.
The rights and freedoms created by the fundamental rights chapter can be taken away or destroyed by amendment of the relevant Article, but subject to limitation of the doctrine of basic structure. True, it may reduce the efficacy of Article 31B but that is inevitable in view of the progress the laws have made post-Kesavananda Bharati's case which has limited the power of the Parliament to amend the Constitution under Article 368 of the Constitution by making it subject to the doctrine of basic structure.
To decide the correctness of the rival submissions, the first aspect to be borne in mind is that each exercise of the amending power inserting laws into Ninth Schedule entails a complete removal of the fundamental rights chapter vis-`-vis the laws that are added in the Ninth Schedule. Secondly, insertion in Ninth Schedule is not controlled by any defined criteria or standards by which the exercise of power may be evaluated.