TMI Blog2010 (9) TMI 1232X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cultiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act 20 of 1972) [for short the Ceiling Act (Act 20 of 1972) ] was passed so as to extend the provisions of the principal Act. Proceedings were initiated under the Ceiling Act (Act 20 of 1972) in regard to non-plantation lands of the petitioner(s) (plantations being exempted from the purview of the Ceiling Act (Act 20 of 1972)). Under the Ceiling Act (Act 20 of 1972), a family was not entitled to hold lands in excess of the ceiling area, i.e., 15 standard acres [see Section 5 read with Section 7 of the Ceiling Act (Act 20 of 1972)]. Hence, under the Ceiling Act (Act 20 of 1972), the petitioner(s) was entitled to hold 15 standard acres per family. On 1.7.1972, the Ceiling Act (Act 20 of 1972) was notified and made applicable to Hill Areas. Thus, 1.7.1972 became the notified date under Section 3(31) of the Ceiling Act (Act 20 of 1972). By the Ceiling Act (Act 20 of 1972), it was inter alia provided that if by virtue of the Ceiling Act (Act 20 of 1972) the total extent of the land held by any person exceeded the ceiling area then in relation to such person the date of commencement of the Ceiling Act (Act 20 of 1972) will mean 1.3.1972. On 20.11.1972, the petitioner(s) herein submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Article 32 of the Constitution in which vide order dated 17.2.1989, a Division Bench of this Court referred the case to the Constitution Bench [see (1989) 3 SCC 282]. On 14.9.1999, a Constitution Bench of this Court referred the matters to a larger Bench of 9-Judges [see (1999) 7 SCC 580]. Finally, by a judgment of 9-Judge Constitution Bench dated 11.1.2007 in Civil Appeal Nos. 1344-45 of 1976 etc. etc. reported as I.R. Coelho v. State of Tamil Nadu (2007) 2 SCC 1, this Court answered the reference by holding Article 31B as introduced by the Constitution (First Amendment) Act, 1951 to be valid. Applying the tests laid down in I.R. Coelho's case, the 9-Judge Constitution Bench directed the Civil Appeal Nos. 1344-45 of 1976 with Writ Petition Nos. 242 of 1988 and 408 of 2003 to be placed for hearing before a 3-Judge Bench for decision in accordance with the principles laid down therein. Accordingly, these matters have now come before us. In these matters, we are required to apply the principles laid down in I.R. Coelho's case in the matter of challenge to the Janmam Act (Act 24 of 1969) on the ground that the said Act is beyond the constituent power of the Parliament s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ceiling Act (Act 20 of 1972) also stood inserted in the Ninth Schedule of the Constitution as Item No. 169 on 27.5.1976 by the Constitution (Fortieth Amendment) Act, 1976. Consequently, the provisions of the Ceiling Act (Act 20 of 1972), according to the learned Counsel, became applicable to 20,000 acres of forest lands which came to be included in the ceiling area by reason of the Ceiling Act (Act 20 of 1972) by which exemption of forest land from the ceiling area stood withdrawn. That, the Janmam Act (Act 24 of 1969) came into force from 27.11.1974 whereas the Ceiling Act (Act 20 of 1972) came into force from 1.3.1972, though it was notified on 1.7.1972. According to the learned Counsel, principle of equality is the basic feature of the Constitution; that the Amending Act 20 of 1972 which brought in the forests within the purview of the 1961 Act and the Janmam Act (Act 24 of 1969) operated in the same field and yet under the ceiling law the compensation provided for was at a higher rate as compared to the rate mentioned in the Janmam Act (Act 24 of 1969) being ₹ 50 per acre (maximum); that whereas forests in Janmam estate stood automatically vested in the State under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred to hereinabove, have been negatived. This aspect is important because in the present case in the garb of rule of law and separation of powers the challenge is laid against the Constitution (Thirty-fourth Amendment) Act, 1974, which, as stated above, is in essence the challenge in the context of right to property . The basic contention of the petitioner(s) in these cases is that the Constitution (Thirty-fourth Amendment) Act, 1974 by which the Janmam Act (Act 24 of 1969) has been inserted in the Ninth Schedule as Item No. 80 seeks to confer naked power on Parliament to obliterate the judicial decision of this Court in Balmadies case which became final without changing the basis of the decision or the law and, therefore, the said Constitution (Thirty-fourth Amendment) Act, 1974 destroys the basic feature of the Constitution, namely, judicial review and separation of powers as well as rule of law. To answer this point, one needs to consider the judgment of the Constitution Bench of this Court in Balmadies case. It is vehemently submitted on behalf of the petitioner(s) that in Balmadies case, this Court has held Section 3 of the Janmam Act (Act 24 of 1969) to be unconstitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of forests in the Janmam estate only on the ground that there was nothing in the Janmam Act (Act 24 of 1969) to show the purpose for which the forest lands stood acquired and, therefore, this Court gave a declaration that in the absence of anything in the Act to show the purpose for which forest lands stood acquired, protection under Article 31A was not available. (see para 18 of the judgment) From this it cannot be said that this Court in Balmadies case has held that Section 3 insofar as forests are concerned violated Articles 14, 19 and 31 of the Constitution. Be that as it may, the judgment of the Constitution Bench in Balmadies case was delivered on 19.4.1972. Even assuming for the sake of argument that the Janmam Act (Act 24 of 1969), so far as the forests are concerned, was held to be violative of Articles 14 and 19 of the Constitution in Balmadies case as contended on behalf of the petitioner(s), still it cannot be said that the Constitution (Thirty-fourth Amendment) Act, 1974 conferred naked power on the Parliament to obliterate the judicial decision in Balmadies case without changing the basis of the decision because it is pursuant to such declaration by the Constitution B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titutes violation of Article 14 of the Constitution. In this connection, the distinction between constitutional law and ordinary law in a rigid Constitution like ours is to be kept in mind. The said distinction proceeds on the assumption that ordinary law can be challenged on the touchstone of the Constitution. Therefore, when an ordinary law seeks to make a classification without any rational basis and without any nexus with the object sought to be achieved, such ordinary law could be challenged on the touchstone of Article 14 of the Constitution. However, when it comes to the validity of a constitutional amendment, one has to examine the validity of such amendment by asking the question as to whether such an amendment violates any over-arching principle in the Constitution. What is over-arching principle? Concepts like secularism, democracy, separation of powers, power of judicial review fall outside the scope of amendatory powers of the Parliament under Article 368. If any of these were to be deleted it would require changes to be made not only in Part III of the Constitution but also in Articles 245 and the three Lists of the Constitution resulting in the change of the very str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k of the Constitution which will not be protected by Article 31B. If every breach of Article 14, however, egregious, is held to be unprotected by Article 31B, there would be no purpose in protection by Article 31B. The question can be looked at from yet another angle. Can Parliament increase its amending power by amendment of Article 368 so as to confer on itself the unlimited power of amendment and destroy and damage the fundamentals of the Constitution? The answer is obvious. Article 368 does not vest such a power in Parliament. It cannot lift all limitations/ restrictions placed on the amending power or free the amending power from all limitations. This is the effect of the decision in Kesavananda Bharati (supra). The point to be noted, therefore, is that when constitutional law is challenged, one has to apply the effect test to find out the degree of abrogation. This is the degree test which has been referred to earlier. If one finds that the constitutional amendment seeks to abrogate core values/ over-arching principles like secularism, egalitarian equality, etc. and which would warrant re-writing of the Constitution then such constitutional law would certainly violate the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (Thirty-fourth Amendment) Act, 1974. It is true that all lands including forests falling in the janmam estate vest in the State under Section 3 of the Janmam Act (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). Therefore, on and after 1.3.1972, the holder was entitled to hold the lands subject to ceiling including forests under the Ceiling Act (Act 20 of 1972) whereas forests falling in Janmam estate vested in the State. It is the case of the petitioners that by reason of the forests vesting in the State under the Janmam Act (Act 24 of 1969) the rule of equality in law stood violated which violation amounted to abrogation of Article 14. One of the reasons for deletion of the right to property from Part III of the Constitution vide the Constitution (Forty-fourth Amendment) Act, 1978 was that the economic liberties of freedom of property came in direct conflict with egalitarian values including inter-gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... II and since in the present case the impugned enactment stood unprotected by Article 31A as held in Balmadies case, the Janmam Act (Act 24 of 1969) was liable to be struck down for want of legislative competence. In reply, Mr. T.R. Andhyarujina, learned senior counsel appearing on behalf of the State, submitted that in Balmadies case the legislative competence of the Tamil Nadu Legislature to enact the Janmam Act (Act 24 of 1969) was never doubted. It was further submitted that even assuming for the sake of argument that there was no public purpose in the acquisition of forest lands, the requirement of public purpose and compensation are conditions or requirements under Article 31(2) of the Constitution, as it stood in 1969 and that the requirement of public purpose and compensation was not a legislative requirement. Therefore, even assuming for the sake of argument that the Janmam Act (Act 24 of 1969) violated the requirement of public purpose and compensation, the said Act got validated when it stood incorporated in the Ninth Schedule in 1974. 12. To answer the contentions raised hereinabove, we are required to quote Entry 18, List II, Entry 42, List III and Entry 19, List II, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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). Whether the Janmam Act (Act 24 of 1969) could not be applied because of the Ceiling Act (Act 20 of 1972)? 14. One of the main contentions raised in this batch of cases is whether the Government is at liberty to apply the Janmam Act (Act 24 of 1969) after it stood notified on 27.11.1974, though proceedings were taken by the Government under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Act (Act 24 of 1969). Conclusion 15. For the afore-stated reasons, 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. 16. We are in these cases concerned with the validity of the Constitution (Thirty-fourth Amendment) Act, 1974 by which the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969, (in short 'the Janmam Act') was included in the 9th Schedule under Article 31B of the Constitution. These petitions earlier came up for consideration before a Bench of two Judges of this Court and the Bench felt that matter should be heard by a larger Bench since the case involved substantial questions of law pertaining to the interpretation of the Constitution. The order is reported in Manjushree Plantation Ltd. and Ors. v. State of Tamil Nadu and Ors . 1989 (3) SCC 282. Consequently, the matter came up before a Constitution Bench of five Judges on 14th September, 1999, and the Court felt that the impact of the judgment in Waman Rao and Ors. etc. v. Union of India and Ors. 1981 (2) SCC 362 be considered by a larger Bench so that apparent inconsistencies therei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nated not only the essence of right test but also the right test has to be applied, particularly when cases in Kesavananda Bharati (supra) and Indira Nehru Gandhi v. Raj Narain (1975) Supp SCC 1, have expanded the scope of the basic structure to cover even some of the fundamental rights. Further, it was also pointed out by the Court that there are certain parts or aspects of the Constitution including Article 15, Article 21 read with Articles 14 and 19 which constitute the core values which if allowed to be abrogated would change completely the nature of the Constitution. The exclusion of the fundamental rights would result in nullification of the basic structure doctrine, the object of which is to protect the basic features of the Constitution. Referring to the rights test and the essence of right test, the Court held that there is a difference between both the tests and both form part of application of the basic structure doctrine. The Court pointed out that the power to grant absolute immunity at will is not compatible with basic structure doctrine and after 24.4.1973 the laws included in the Ninth Schedule would not have absolute immunity and thus validity of such l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ceiling on Land) Act, 1961 (in short 'the Ceiling Act') rather than the Janmam Act, in which case, petitioner could have retained at least a portion of forest land exercising the right of option and would have got more amount of compensation for the lands vested in the State. Petitioner was, therefore, treated unequally violating the petitioner's fundamental right guaranteed under Article 14 of the Constitution. 18. Petitioner has also submitted that the rule of law, rule of equality and separation of powers have been held to be part of the basic structure of the Constitution and by the inclusion of the Janmam Act in the Ninth Schedule those rights have been abrogated violating the basic structure of the Constitution. 19. The Constitutional validity of the Act has already been upheld by this Court in Balmadies Plantations Ltd. and another etc. v. State of Tamil Nadu (1972) 2 SCC 133, except that the provisions of Section 3 (Vesting Section) in so far as it relates to the transfer of forest area, in Janmam Estate, was held to be not a measure of agrarian reforms and hence would not get the protection of Article 31A of the Constitution of India. In that connection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eamline land ownership are preliminaries in the projection of a Socialistic order which Part IV and Article 31A of the Constitution strive to achieve. Referring to Balmadies Plantations (supra), this Court in Gwalior Rayon (supra) case stated as follows: 33. It is not disputed that all the private forests with which we are now concerned are held in Janman right - Janman rights being an 'estate' are liable to be acquired by the State under Article 31A(1)(a) as a necessary step to the implementation of agrarian reform. Section 3 of the impugned Act vests the ownership and possession of all private forests in the State. Therefore they would attract the protection of Article 31A(1). It would not be, in such a case, necessary to further examine if the lands so vested in the Government are agricultural lands falling within Sub-clause (iii). 34. Indeed this does not mean that the State is absolved from showing that the acquisition is for the purpose of agrarian reform. In fact in Balmadies case (supra), referred to above, the acquisition of forests owned by janmies was set aside on the sole ground that the impugned law on the material on record did not indicate that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and to maintain ecological balance in tune with Article 48A and 51A(g) of the Constitution. For understanding the real scope of Article 14, 19 and 21 the impact of the above mentioned provisions has to be kept in mind. 24. The only question is, in such a situation, whether the vesting of private forest in the State, by virtue of Section 3 of the Act, in any way, violates any of the fundamental rights guaranteed to the petitioner under Part III of the Constitution and, if that be so, whether that provision abrogates or destroys the basic structure of the Constitution, which exercise has to be undertaken in the light of the principles laid down by the Constitution Bench in Coelho's case (supra). Application of the Coelhos's principle: First stage: We have to first examine whether the provisions of Janmam Act included in the Ninth Schedule by the Constitution (34th Amendment) Act, 1974 is violating any of the rights guaranteed under Part III of the Constitution, and if our answer is in the affirmative, our further enquiry would be whether the violation so found has abrogated or destroyed the basic structure of the Constitution. On such examination, if our answer is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of property, violating Article 300A of the Constitution. In my considered view, the plea raised alleging violation of Articles 14 and 300A cannot stand, since the petitioner is holding private forest in the Gudalur Taluk by way of janmam, which are rights of hereditary proprietorship and those rights are like the rights created by grant of jagir or inam relating to land. The object and purpose of Janmam Act is to do away with such hereditaryship. Janmam estate which takes in forests, mines and minerals, quarries, rivers and streams, tanks and irrigation work, fisheries and so on stood vested in the State free from all encumbrances. Janmies are also entitled to get ryotwari patta in respect of all lands, if they establish they have been cultivating lands for a continuous period of three agricultural years immediately before the 1st day of June, 1969. Provision for payment of compensation has also been provided under the Act. 26. Right not to be deprived of property, save by authority of law is no longer a fundamental right but only a constitutional right which has never been treated as part of the basic structure of the Constitution. Hence the contention that Section 3 violates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure doctrine is, in effect, a constitutional limitation against parliamentary autocracy. Let us, however, be clear that the principles of equality inherent in the rule of law does not averse to the imposition of special burdens, grant special benefits and privileges to secure to all citizens justice, social and economic and for implementing the directive principles of state policy for establishing an egalitarian society. 28. I, therefore, fully concur with the views expressed by the Lord Chief Justice that the overarching principles as explained above would fall outside the amendatory power under Article 368 and the petitioner in the case has not succeeded in establishing that any of those principles have been violated. 29. Principles laid down in Coelho's case (supra) were subsequently followed by a five Judges Bench in Ashok Kumar Thakur v. Union of India and Ors. (2008) 6 SCC 1 wherein Constitution (93rd Amendment) Act, 2005 and the enactment of the Central Educational Institutions (Reservation in Admission) Act, 2006 were impugned. Referring Article 19(1)(g) Court held that if any constitutional amendment is made which moderately abridges the principle under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X
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