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2010 (9) TMI 1232 - SUPREME COURTDoctrine of basic structure - Whether the inclusion of the Janmam Act (Act 24 of 1969) in the Ninth Schedule amounted to direct negation and abrogation of judicial review - Validity of Thirty-fourth Amendment Act, 1974 - According to the learned Counsel, in the absence of any provisions for distribution of lands having vested in the State, the impugned Section 3 of the Act 24 of 1969 and its insertion in the Ninth Schedule to the Constitution as Item 80 was arbitrary, discriminatory and not only violated Article 14 but also the basic structure of the Constitution in terms of separation of powers and rule of law. According to the learned Counsel, the impugned legislation inter alia violated the rule of law which is a facet of the doctrine of equality and, therefore, it is not validated under Article 31B of the Constitution. HELD THAT:- We find no merit in the submissions advanced by Shri Viswanathan, learned senior counsel for the petitioner (s) that inclusion of the Janmam Act (Act 24 of 1969) in the Ninth Schedule (Item No. 80) amounted to direct negation and abrogation of judicial review as the impugned Constitution (Thirty- fourth Amendment) Act, 1974 confers naked power on the Parliament to obliterate the judicial decision in Balmadies case which became final, without changing the basis of the decision or the law and, therefore, the said impugned Constitutional Amendment Act destroys the basic feature of the Constitution, namely, judicial review. the amending power under Article 368 of the Constitution is a derivative power. The doctrine of basic structure provides a touchstone on which the validity of the Constitutional Amendment Act could be judged. While applying this doctrine, one need not go by the content of a "right" but by the test of justifiability under which one has to see the scope and the object of the Constitutional Amendment. In the present case, we are concerned with the validity of the Constitution (Thirty-fourth Amendment) Act, 1974. It is true that all lands including forests falling in the janmam estate vest in the State u/s 3 of the Act 24 of 1969. Under that Act, the State gave pattas for cultivable lands though such pattas were not given for forests which vested in the State. It is also true that after Act 20 of 1972 forests which earlier stood exempted from the provisions of the Ceiling Act, 1961 got included in the Ceiling Act (Act 20 of 1972). we are of the view that the requirement of public purpose and compensation are not legislative requirements of the competence of Legislature to make laws under Entry 18, List II or Entry 42, List III, but are conditions or restrictions under Article 31(2) of the Constitution as the said Article stood in 1969. Breach of such conditions would attract only Part III challenge. Therefore, when the Janmam Act (Act 24 of 1969) was put in the Ninth Schedule in 1974, the Act received immunity from Article 31(2) with retrospective effect. Lastly, in pith and substance, we are of the view that the Janmam Act (Act 24 of 1969) was in respect of "land" and "land tenure" under Entry 18, List II of the Constitution. For the afore-stated reasons, we find no merit in the contention of the learned Counsel for the petitioners that the Tamil Nadu Legislature had no legislative competence to enact the Janmam Act (Act 24 of 1969). In our view, the scope and ambit of the two Acts are completely different and they operate in different spheres. Secondly, the Ceiling Act (Act 20 of 1972) came into force from 1.3.1972. Prior to that date, forests stood exempted from the provisions of the 1961 Act. It is only on and after 1.3.1972 that forests stood included in the 1961 Act by virtue of the Ceiling Act (Act 20 of 1972). The important point to be noted that before ceiling could be determined and before compensation to be paid for excess lands which vested in the State under the Ceiling Act (Act 20 of 1972), the Janmam Act (Act 24 of 1969) came into force on 27.11.1974 under which the forests vested in the State. The main focus of the Ceiling Act (Act 20 of 1972) was to fix a ceiling of agricultural land holding and to distribute the excess lands to the landless and other agricultural population. The scope of the Ceiling Act (Act 20 of 1972) was made wide enough to cover the lands in the hilly areas. In short, before the excess lands could be determined for vesting in the State under the Ceiling Act (Act 20 of 1972), the Janmam Act (Act 24 of 1969) came into force which, as stated above, operated in a different sphere vis-a-vis the Ceiling Act (Act 20 of 1972). For the afore-stated reasons, we find no merit in the argument on behalf of the petitioners that both the Acts operated in the same field and, consequently, it was not open to the State Government to act according to the provisions of the Janmam Act (Act 24 of 1969). we see no merit in this batch of cases. Accordingly, the same are dismissed with no order as to costs. K.S. Panicker Radhakrishnan, J. Coelho Principle:- Coelho held that the object behind Article 31B is to validate certain legislations, which otherwise may be invalid and not to obliterate Part III in its entirety or to dispense with judicial review of those legislations. The Court held that Article 21 confers right to life, which is the heart of the Constitution and when Article 21 read with Articles 14, 15 and 19 is sought to be eliminated not only the "essence of right" test but also the "right test" has to be applied. Fundamental rights enshrined in Part III can be extinguished by Constitutional amendments and if it abrogates or abridges such rights, would not as such, abrogate or abridge the basic structure. The test is whether it has the effect of nullifying the over arching principles of equality, secularism, liberty and so on especially when such a law is placed in the 9th Schedule, which test in the present case has not been satisfied. I, therefore, fully concur with the view of the Lord Chief Justice that the writ petitions and the civil appeals deserve dismissal, and there shall be no order as to costs.
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