CHAPTER II

PARLIAMENT’S POWER TO AMEND THE CONSTITUTION

After discussing the power of Judicial Review in the previous

chapter it becomes clear that this power enables the Supreme Court
to protect the spirit of our Constitution. Constitution is our
Grundnorm, the supreme law of the land therefore it requires special
protection. In this chapter we shall discuss the exceptions which were
created by the Government to escape from Judicial Review by
bringing various Constitutional amendments and also supremacy of
the Parliament to amend the Constitution and to enact laws including
Directive Principles of State Policy. As it is well known that Indian
Constitution was framed after an in depth study of manifold
challenges and problems including that of poverty, illiteracy, long
years of deprivation, inequalities based on caste, creed, sex and
religion. The independence struggle and intellectual debates in the
Constituent Assembly show the value and importance of freedoms
and rights guaranteed by Part III and State’s welfare obligations in
Part-IV. The Constitution of various countries including that of
United States of America and Canada were examined and after
extensive deliberations and discussions the Constitution was framed.
The Fundamental Rights chapter was incorporated providing in detail
the positive and negative rights. It provided for the protection of
various rights and freedoms. For enforcement of these rights, unlike
Constitution of most of the other countries, the Supreme Court was
vested with original jurisdiction as contained in Article 32. Article
31-B was not part of the original Constitution. It was inserted in the
Constitution by the Constitution (First Amendment) Act, 1951. The
same amendment added after Eighth Schedule a new Ninth Schedule
containing thirteen Acts, all relating to land reforms laws,

40
immunizing these laws from challenge on the ground of
contravention of Article 13 of the Constitution. Article 13, interalia,
provides that the State shall not make any law which takes away or
abridges the rights conferred by Part III and any law made in
contravention thereof shall, to the extent of the contravention, be
void. This amendment was made to give effect to Directive Principles
contained in Article 39(b) and (c). Prof.Upendra Bakshi , has said
that the First Amendment of the U.S Constitution (which included the
Bill of Rights: the text says “ Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof,
or abridging the freedom of speech or of the press or the right of the
people peaceably to assemble, and to petition the Government for a
redress of grievances) gave heart to its Constitution whereas First
Amendment of the Indian Constitution(which included Article 31 A,
3IB and Ninth Schedule) took away the heart of its Constitution.

This amendment was made for the implementation of Part IV

of the Constitution which lays down certain Directive Principles of
State Policy for the State for establishing a welfare State. These are
complimentary and supplementary to the Fundamental Rights
contained in Part III of the Constitution because they aim for a
welfare State. The welfare State is for the people where all the rights
of its people are secure. The public good is the objective of a welfare
State.

2.1 Emergence of Conflict between Fundamental Rights and

Directive Principles

Before independence, the Congress Party had promised to

abolish Zamindari estates and large landholdings, and redistribute
land to the farmers or tillers. Prime Minister Pt. Jawahar Lai Nehru

Commented while answering a question on the Ninth Schedule during his visit in
March 2010 to the Department of laws, Panjab University.

41
called himself a Socialist and a Republican. Indeed, Socialism was
the preferred policy in several countries and was seen to be the best
way for the equitable distribution of wealth and to attain social
justice. After independence Prime Minister Pt. Jawahar Lai Nehru
wanted to implement a Socialistic pattern and therefore wanted to
bring agrarian reforms for reorganisation of land holdings. Aim was
to remove the Zamindari system. At that time right to property was
big hurdle in the implementation of land reforms. The important
portions added in the Constitution were the Preamble and the
chapters on Fundamental Rights and Directive Principles of State
Policy. The chapter on Fundamental Rights was perhaps the most
glorious chapter of the Constitution, which also provided for an
elaborate judicial system to protect these rights. Prime Minister Pt.
Jawahar Lai Nehru felt that these socio-economic programmes would
be slowed down by litigation regarding violation of Part III( i.e right
to property Articlel9(f) and 31) and wrote to the Chief Ministers of
various States telling them that the Constitution would have to be
amended if it came ‘in our way’ for Article 39(b),(c). One suggestion
was that land reform legislation should not be subject to judicial
scrutiny by any court whatsoever. While these amendments to the
Constitution were being considered, the Patna High Court struck
down the Bihar Land Reforms Act, 1950. The Petition had been filed
by the Maharaja of Darbhanga. Less than a fortnight later, the
Calcutta High Court struck down certain acquisition proceedings in
the Bela Banerjee v. State of West Bengal,2 case. Pt. Jawahar Lai
Nehru asked the then Law Minister, Dr. B.R Ambedkar, to prepare
necessary amendments to the Constitution. Dr. B.R Ambedkar
suggested that the question of compensation should not be reviewed
in any court if Presidential assent had been given for acquisition of
property. President Rajendra Prasad raised several doubts and Sardar

AIR 1952 Cal 554, also State of West Bengal v. Bela Banerjee AIR 1954 SC 170.

42
Vallabhai Patel, who was in Bombay, also wrote to Jawahar Lai
Nehru asking for some further time till the doubts raised by the
President were considered by the Law Ministry. The judgment of the
Patna High Court was in appeal before the Supreme Court. It is
believed that Pt. Jawahar Lai Nehru threatened to resign if President
Rajendra Prasad did not give Presidential assent to the amendment.
The President signed the Bill but expressed his unhappiness at the
urgency. At this stage, the former Advocate General of Madras V. K.
Thiruvenkatachari, in a letter to the Law Secretary, K.V.K. Sundaram
suggested that a new Schedule could be added to the Constitution.
All Acts pertaining to land reform laws could be certified by the
President and inserted in this new Schedule. These laws would be
deemed to be valid retrospectively and could not be challenged for
violating any provision of the Constitution. Granville Austin has
labelled the Ninth Schedule a ‘genie that would have a profound
impact on the Constitutional governance of the country.’ V.K.
Thiruvenkatachari’s suggestion was later translated into Articles
31 A, 3IB and the Ninth Schedule. Under Article 31 A, laws that
related to acquisition of estates, nationalisation of industries,
extinguishment of mineral leases or their premature termination
could not be challenged on the ground that they violated Article 14
(right to equality), Article 19.3

2.2 The Beginning of the Constitutional Amendments in 1951 to

give effect to Directive Principles

The amendment of the Constitution started with the first

amendment in 1951, which was against the Fundamental Rights given
in the Part III of the Constitution i.e. Article 14, 19, 31. There was a
clear confrontation between the Judiciary and the Parliament over the
issue of amendment of the Part III of the Constitution. The Directive

3 Arvind P. Datar, “Our Constitution and Self Inflicted Wounds”, Indian Journal of
Constitutional Law, p. 93 available at www.istor.org accessed on 5-1-2010.

43
Principles of the State Policy were overriding the Fundamental
Rights with this first amendment of the Constitution. At that time for
bringing Socialist reforms the need was felt to bring the land reform
laws for the landless people. It was in the objective of welfare State
as given in the Preamble and the Directive Principles.

2.2.1 The First Constitutional Amendment Act 1951

This amendment was made to remove difficulties created by

several decisions of the Supreme Court, viz., Romesh Thapper v.
State of Madras,4 Brij Bhushan v. State of Delhi,5 6and
7 Moti Lai v.
/

State of Uttar Pradesh. The First Amendment added two new

Articles 31-A and 31-B, to validate certain Land Reforms Laws
(Zamindari Abolition Law). The newly added Ninth Schedule made
Acts named therein beyond the challenge of court for infringement of
Fundamental Rights guaranteed in Article 14, 19 and 31. A new
Clause (4) was added to Article 15 which empowers the State to
make special provisions for advancement of the socially and
educationally backward classes of Citizens. It was necessitated due
to the decision of the Supreme Court in Champakam Dorairajan v.
7
State of Madras.

The Constitution (First Amendment) Act, 1951, was enacted

within a year of the commencement of Constitution. The First
Amendment made several modifications in a few Fundamental
Rights.8

It added the following three more heads to Article 19(2)

‘public order’, ‘friendly relations with foreign States’, and
‘incitement to an offence’. Thus, the Legislature became entitled to

4 AIR 1950 SC 124.

5 AIR 1950 SC 129.
6 AIR 1951 All 257.
7 AIR 1957 SC 257.
8 M.P. Jain, Indian Constitutional Law, 1653 (2009).

44
restrict the freedom of speech and expression in respect of these
three heads also in to the heads originally mentioned in Article
19(2).9

The phrase ‘a friendly relation with foreign States’ was needed

to curb issue against Pakistan which was then going on in a rather
virulent form. Addition of the expressions ‘public order’ and
‘incitement to an offence’ were deemed necessary as the court had
held that ‘security of State’ was a restricted concept as compared
with ‘public order’ and ‘public safety’ so that freedom of speech
could not be curtailed merely for maintaining ‘public order’ and
‘public safety’ unless the ‘security of State was also threatened. On
this basis, several laws were declared ultra vires as they restricted
the freedom of speech for maintaining ‘public order’ and not
‘security of State’.10

The Madras High Court had decided in Srinivas v. State of

Madras,*11 that even incitement of a single case of murder, or
cognisable offence involving violence, might have a tendency to
overthrow the State and thus affect its security. Hence, Article 19(2)
was amplified to enable the Legislature to make laws to restrict
freedom of speech in the interests of ‘public order’ or put a restraint
upon ‘incitement to violence’.

In one respect, Article 19(2) was improved by the First

amendment. Originally, Article 19(2) did not contain the word
‘reasonable’ before the word ‘restrictions’, and so the court could not
assess the reasonableness of the restrictions imposed on the right
guaranteed by Article 19(1 )(a). Article 19(2) thus differed from
Articles 19(3) to 19(6) in which the expression ‘reasonable
9 Substituted by the Constitution (First Amendment) Act, 1951, Section 3, for Clause
(2) (with retrospective effect).
10 Ramesh Thapar v. State of Madras, AIR 1950 SC 124: 1950 SCR 594; Brij Bhushan
v. Delhi, AIR 1950 SC 129: 1950 SCR 605.
11 AIR 1951 Mad 70.

45
restrictions’ had been used. The word ‘reasonable’ was now
introduced in Article 19(2) thus making restrictions on the freedom
of speech and expression justiciable.12 This was a major gain.

The Amending Act added Clause to Article 19(6) to make it

clear that the freedom of trade and commerce guaranteed by Article
19(1 )(g) was not to invalidate any scheme of nationalisation
undertaken by the State. The need for this amendment was felt
because of certain remarks made by the Judges of the Allahabad
High Court in Motilal v. State of Uttar Pradesh, which arose out of
1 'X
nationalisation of motor transport.

The first Amendment Act curtailed the Fundamental Right to

property guaranteed by Article 31 with a view to achieve quick
implementation of important measures of agrarian reform passed by
the State Legislature by immunising the same against attack in the
court. This amendment added two new Articles 31A and 3IB, and the
Ninth Schedule, so as to make laws acquiring Zamindaris
unchallengeable in the court.14

The Patna High Court had declared the Bihar legislation

unconstitutional under Article 14,15 while the High Court of
Allahabad and Nagpur had held similar laws valid. Before, however,
the Supreme Court could give its verdict on the validity or otherwise
of this type of legislation, the Central Government under Pt. Jawahar
Lai Nehru became restive at the delay being caused by litigation in
furthering the programme of agricultural land reform, and thought of
short circuiting the judicial process.

Pt. Jawahar Lai Nehru was an ardent supporter of agrarian

reform which is regarded as a process of social reform and social
12 Supra note 8 at 1653.
13 Supra note 6.
14 Supra note 8 at 1653.
Kameshwar v. State of Bihar, AIR 1951 Pat 91.

46
engineering. The Centre wanted to remove any possibility of such
laws being declared invalid by the court and hence the amendment
was made in the Constitution. 6

The Ninth Schedule was an interesting, innovation in the area

of Constitutional amendment. A new technique of by-passing Judicial
Review was initiated. Any Act incorporated in the Schedule became
fully protected against any challenge in a court of law under any
Fundamental Right. Even an Act declared invalid by a court becomes
17
valid retrospectively after being incorporated in the Schedule.

To begin with, only Acts abolishing Zamindari were included

in the Schedule. Thus, only thirteen State Acts named therein were
put beyond any challenge in the court for contravention of
Fundamental Rights. But Ninth Schedule has swelled and swelled in
course of time as all kinds of statutes have been included therein to
protect them from Judicial Review contains as many as 284 entries.18

Articles 84 and 87 were amended so as to do away with the

summoning of Parliament twice a year and the requirement of the
President addressing the two Houses at the commencement of each
session. Now, the provision is that not more than six months are to
elapse between the last day of one session and the first day of the
following session. The houses are now prorogued only once a year
and the President addresses the Houses of Parliament only at the
commencement of the first session each year.19

Corresponding amendments were also made in Article 174 and

176 for the State Legislature. A few other minor amendments were
made by the First Amendment in Articles 341, 342, 372.

16
Supra note 8 at 1654.
17
Ibid.
18
Ibid.
19
Ibid.

47
 The Constitutional validity of the First Amendment was
challenged in the Supreme Court. The court upheld the validity of the
amendment in the famous case of Shankari Prasad v. Union of India 20

The First Constitution Amendment Act, 1951 brought many

changes in the Constitution which includes Articles 15, 19, 31 A,
31B, 85, 87, 174, 176, 341, 342, 376 and the Ninth Schedule.

For Reservation21 nothing in this Article or in Clause (2) of

Article 29 shall prevent the State from making any special provision
for the advancement of any socially and educationally backward
classes of citizens or for the Schedule Castes and the Scheduled
Tribes.

For restrictions on Fundamental Rights22: Nothing in sub-

Clause (a) of Clause (1) shall affect the operation of any existing
law, or prevent the State from making any law, in so far as such law
imposes reasonable restrictions on the exercise of the right conferred
by the said sub-Clause in the interest of [the Sovereignty and
integrity of India,] 23 the security of the State, friendly relations with
foreign States, public order, decency or morality or in relation to
contempt of court, defamation or incitement to an offence.

For saving of laws providing for acquisition of estates, etc.24

(1) Notwithstanding anything contained in Article 13, no

law providing for:

Shankari Prasad Singh v. Union of India, AIR 1951 SC 458.

Article 15(4) added by the Constitution (First Amendment) Act, 1951.
Article 19(2) substituted by the Constitution (First Amendment) Act, 1951 for Clause
(2) (with retrospective effect).
Inserted by the Constitution (Sixteenth Amendment) Act, 1963.
Article 31A Inserted by the Constitution (First Amendment) Act, 1951 (with
retrospective effect).

48
 (a) The acquisition by the State of any estate or of
any rights therein or the extinguishment or
modification of any such rights; or

(b) The taking over of the management of any

property by the State for a limited period either in
the public interest or in order to secure the proper
management of the property, or

(c) The amalgamation of two or more corporations

either in the public interest or in order to secure
the proper management of any of the corporations;

or

(d) The extinguishment or modification of any rights

accruing by virtue of any agreement, lease or
licence for the purpose of searching for, or
winning, any mineral or mineral oil, or the
premature termination or cancellation of any such
agreement, lease or licence for the purpose of
searching for, or winning, any mineral or mineral
oil, or the premature term in nature or cancellation
of any such agreement, lease or licence.

Shall be deemed to be void on the ground that it is inconsistent

with, or takes away or abridges any of the rights conferred by
(Article 14 or 19)25 provided that where such law is a law made by
the Legislature of a State, the provisions of this Article shall not
apply thereto unless such law, having been reserved for the
consideration of the President, has received his asset.

Substituted by the Constitution (Forty-fourth Amendment) Act, 1978, Section 7 for

Articles 14, 19, or 31 (w.e.f. 20.06.1979).

49
 For Validation of certain Acts and Regulations:26 Without
prejudice to the generality of the provisions contained in Article
31 A, none of the Acts and Regulations specified in the Ninth
Schedule nor any of the provisions thereof shall be deemed to be
void, or ever to have become void, on the ground that such Act,
Regulation or provision is inconsistent with, or takes away or
abridges any of the rights conferred by, any provisions of this part,
and notwithstanding any judgment, decree or order of any court or
tribunal to the contrary, each of the said Acts and Regulations shall,
subject to the power of any competent Legislature to repeal or amend
it, continue in force.

For sessions of Parliament, prorogation and dissolution:27

(1) The President shall from time to time summon each

House of Parliament to meet at such time and place as he
thinks fit, but six months shall not intervene between its
last sitting in one session and the date appointed for its
first sitting in the next session.

(2) The President may from time to time:

(a) Prorogue the Houses or either House;

(b) Dissolve the House of the People.

For Scheduled Castes28

(1) The President [may with respect to any State (or Union
^ 1

Territory)], and where it is a State J [* * *], after

26 Article 3IB.
27 Article 85 Substituted by the Constitution (First Amendment) Act, 1951, Section 6
for Article 85 (w.e.f. 18.06.1951).
28 Article 341.
29 Substituted by the Constitution (First Amendment) Act, 1951, Section 10, for “may
after consultation with the Governor or Rajpramukh of a State”.
Inserted by the Constitution (Seventh Amendment) Act, 1956, Section 29 and
Schedule.

50
 consultation with the Governor 32[* * *], thereof by public
notification,33 specify the castes, races or tribes or parts of
or groups within castes, races or tribes which shall for the
purpose of this Constitution be deemed to be Scheduled
Castes in relation to that State 34[or Union Territory, as the

case may be].

For Scheduled Tribes35

/ T "7

(1) The President [may with respect to any State [or

Union Territory], and where it is a State 38[* * *], after
consultation with the Governor 39[* * *] thereof], by
public notification,40 specify the tribes or tribal
communities or parts of or groups within tribes or tribal
communities which shall for the purposes of this
Constitution be deemed to be Scheduled Tribes in
relation to that State 4,[or Union Territory, as the case
may be].

For Continuances in force of existing laws and their

adaptation42

(2) Nothing in Clause(2) shall be deemed:

Omitted by the Constitution (Seventh Amendment) Act, 1956, Section 29 and

Schedule.
Omitted by the Constitution (Seventh Amendment) Act, 1956 Section 29 and
Schedule.
See the Constitution ( Scheduled Castes) Order, 1950.
Substituted by the Constitution (Seventh Amendment) Act, 1956.
Article 342.
Substituted by the Constitution (First Amendment) Act, 1951, Section 4, for “ray,
after consultationwith the Governor or rajpramukh of a State”.
Inserted by the Constitution (Seventh Amendment) Act, 1956, Section 29 &
Schedule.
Omitted by the Constitution (Seventh Amendment) Act, 1956, Section 29 &
Schedule.
Omitted by the Constitution (Seventh Amendment) Act, 1956, Section 29 &
Schedule.
See the Constitution ( Scheduled Tribes) order, 1950 (C.O. 22) 1.
Inserted by the Constitution (Seventh Amendment) Act, 1956 & Section 29.
Article 372.

51
 (a) To empower the President to make any adaptation
or modification of any law after the expiration of
A ^
[three years] from the commencement of this
Constitution; or

For Provisions as to Judges of High Court44

(1) Notwithstanding anything in Clause (2) of Article 217,

the Judges of High Court in any province holding office
immediately before the commencement of this
Constitution shall, unless they have elected otherwise,
on such commencement the Judges of the High Court in
the corresponding State, and shall thereupon be entitled
to such salaries and allowances and to such rights in
respect of leave of absence and pension as are provided
for under Article 221 in respect of the Judges of such
High Court.45 [Any such Judge shall, notwithstanding
that he is not a citizen of India, be eligible for
appointment as Chief Justice of such High Court, or as
Chief Justice or other Judge of any other High Court],

Added Ninth Schedule46

A new Schedule (the Ninth Schedule) was inserted to protect

the agrarian reform laws. The list of 13 Acts included in this
Schedule by the First Amendment in 1951 has since grown to as
many as 284 Acts. Of these, three entries were omitted by later
amendments. The additions have been made by the Fourth,
Seventeenth, Twenty-Ninth, Fortieth, Forty-Seventh, Sixty-Sixth,
Seventy-Sixth and Seventy-Eighth amendments.

Substituted by the Constitution (First Amendment) Act, 1951 & Section 12 for “two
years.
44 Article 376.
45 Added by the Constitution (First Amendment) Act, 1951, Section 13.
46 Added by the Constitution (First Amendment) Act 1951, Section 14.

52
2.2.2 The Fourth Constitutional Amendment Act 1955

The Constitution (Fourth Amendment) Act, 1955, again

A *7

amended Article 31 in several respects. In the first place, Article

31(2) was modified. Secondly, a new Article 31(2) (A) was added.
The purpose of these amendments was to reinstate more precisely the
State’s power of compulsory acquisition and requisitioning of private
property and to distinguish it from deprivation of property by the
operation of regulatory or prohibitory laws. The amendments made it
clear that it is only for the former, and not the latter, that
compensation becomes payable for any ‘deprivation of property’
even by a purely regulatory law. The actual position, however, was
somewhat different from the one this Statement sought to make one.
What the Supreme Court had held was that compensation was
payable in case of ‘substantial dispossession’ or ‘serious impairment’
of the property right. However, the Centre was not satisfied even
with this and wanted to restrict payment of compensation only to a
situation when there was acquisition involving transfer of ownership,
or requisition involving transfer of the right to possession, to the
State. The right to private property, therefore, became very much
circumscribed by the Fourth Amendment and much came to depend
on the goodwill of the Legislature. Article 31(2), as it stood prior to
the Fourth amendment, did not in so many words provide that no
acquisition of property could be made save for a public purpose. By a
verbal amendment of Article 31(2), the Fourth Amendment now
brought out more specifically than before that no private property
was to be compulsorily acquired or requisition except for a “public
purpose”.48

The Constitution (First Amendment) Act, had added Article

31A to protect the Zamindari abolition laws from being challenged

47 Supra note 8 at 1655.

53
under Article 14, 19 and 31. Article 31A was now expanded in scope
with a view to extend the same immunity to other types of social
welfare and regulatory legislation affecting private property. The
Fourth Amendment also added a few more Acts to the Ninth Schedule
thus immunizing these Acts from attacks under Fundamental Rights.
These acts covered a wide canvass as they related to such matters as
land acquisition for rehabilitation of refugees, insurance, railway
companies, taking over of management of industrial understandings
under the provisions of the Industries (Development and Regulation)
Act the land development and planning. The Fourth Amendment also
redrafted Article 305. The main purpose of this exercise was to
protect laws creating State monopolies or nationalising any
undertaking from the operation of Article 301.49

2.2.3 The Seventeenth Constitutional Amendment Act 196450

This amendment again circumscribed property rights

guaranteed in Article 31. This was the third amendment in the series,
the earlier ones being the first and fourth. The Kerela Agrarian
Relations Act 1961, was struck down by the Supreme Court in its
application to Ryotwari lands, as well as by the Kerela High Court in
relation to lands other than ‘Estates’ in the Malabar area on the
ground that it transgressed Articles 14, 19 and 31, because the
protection of Article 31A was not available to the lands in question
as those were not ‘Estates’. Under Article 31A as it stood at the time,
protection of Article 31A was available only in respect of such
tenures as were ‘Estates’ on the 26th January 1950, when the
Constitution came into force.51

Id. at 1656.
Added by the Constitution (17th Amendment) Act, 1964.
Supra note 8 at 1662.

54
 The expression ‘EState’ bore different meanings in different
States, and sometimes in different parts of the same State. Moreover,
many of the land reform enactments related to lands which were not
included in an estate. It thus became necessary to expand the scope
of the word ‘EState’ so as to protect all these legislations.
Accordingly, the Seventeenth Amendment was undertaken. It
changed the definition of the word ‘EState’ by bringing within its
scope Ryotwari lands as well as other lands in respect of which
provisions are normally made in land reform enactments. Therefore,
Article 31A (2)(a) was redrafted so as to give it its existing form.
The Ninth Schedule was further expanded by including therein forty-
four State enactments with view to immunize them from any attack in
a court of law on the ground of breach of any Fundamental Right. It
further came to have 64 Acts inscribed therein which could not be
challenged under any Fundamental Right. These Acts covered a very
wide field, e.g. ceiling on agricultural holdings, abolition of certain
types of tenures, acquisition of land belonging to religious and
charitable endowments, fixation of rent of tenants from eviction, etc.

2.2.4 The Twenty Ninth Constitutional Amendment Act, 1972

By the Constitution (Twenty-Ninth Amendment) Act, 1972 two

Kerala Acts dealing with land reforms were included in the Ninth
Schedule of the Constitution. These acts thus received the protection
of Article 3 IB.32

2.2.5 The Thirty Fourth Constitutional Amendment Act, 1974

By the Constitution (Thirty-fourth Amendment) Act, 1974,

twenty State Acts concerning land ceiling and land tenure reforms
were added to the Ninth Schedule of the Constitution, so as to put

52 Id. at 1666.

55
them under the protection of Article 3IB. These laws thus have been
given immunity from challenge in the court on the ground of
r

violation of Fundamental Rights.

2.2.6 The Thirty Ninth Constitutional Amendment Act, 1975

The election to Lok Sabha of Prime Minister Indira Gandhi

was declared void by the Allahabad High Court in 1975 on the
petition of Raj Narain which led to the enactment of the Constitution
(Thirty-ninth Amendment) Act, 1975. The Amendment introduced
changes in the method of deciding election disputes relating to the
four high officials of the country, viz., President, Vice-President,
Prime Minister and the Speaker of Lok Sabha. The basic change
regarding the President and Vice President was that jurisdiction was
taken away from the Supreme Court to decide any doubts and
disputes arising in connection with their election. Under the new
Article 71(2), Parliament by law was to establish some ‘authority’ or
‘body’ for deciding such disputes and its decision was not to be
challengeable in any court.

Elections of the Prime Minister and the speaker to the

Parliament were also taken out of the election dispute settling
mechanism envisaged in Article 329. The election of any such person
was not be called in question, except before such ‘authority’ or
‘body’, and in such manner, as was to be provided for by or under
any law made by Parliament.

The effect of Clauses (1) and (2) of the new Article 329A thus
was that the election of the Prime Minister and the speaker to a
House of Parliament or Lok Sabha respectively would be governed

Id. at 1667.

56
by one law, while election of the other members of Parliament would
be governed by another law.54

The Thirty-ninth Amendment did not stop here. It went further

and sought to nullify the High Court decision voiding the election of
Prime Minister Indira Gandhi and declare it to be valid. The main
provision made for this purpose was Clause 4 in Article 329A which
consisted of four parts:55

1. No law made by Parliament before the commencement of

the Constitution (Thirty Ninth Amendment) Act, 1975,
insofar as it related to the election petitions was to
apply, or be deemed ever to have applied, to the election
of the Prime Minister or the Speaker to Parliament;

2. Such election was not to be deemed to be void or ever to

have become void, on any ground on which such election
could be declared to be void, or has been declared to be
void under any such law;

3. Notwithstanding any court order declaring such election

to be void, it was to continue to be valid in all respects;

4. Any such order any finding on which such order was

based was to be deemed always to have been void and of
no effect.

This part of Article 329A validating an election already held

void by the High Court was declared to be unconstitutional by the
Supreme Court in Indira Gandhi v. Raj Narain.56 The court criticised
the Thirty-Ninth Amendment as negation of Rule of Law, anti-
Democratic, lawless and one which denied equality before law.

Id. at 1670.
Ibid.
AIR 1975 SC 2299: 1975 Supp SCC 2.

57
 No one can imagine a greater misuse of the power to amend the
Constitution than what is represented by the Thirty Ninth
Amendment, when just to validate the election of one person, the
Constitution was drastically amended. The Supreme Court rendered a
yeoman service to the Constitution by vetoing such a distorted law.57

The case provides sterling testimony to the worth of the

doctrine that the fundamental features of the Constitution could not
be amended. There always lurks the danger that the ruling party with
the help of its majority in the two Houses of Parliament may
introduce distortions in the Constitution to suit its own political
agenda and to keep herself in power, Prime Minister Indira Gandhi
CQ

even imposed the emergency on the country in 1975. On merits,

however, the Supreme Court accepted the appeal of the Prime
Minister against the High Courts Judgement and held her election to
Lok Sabha to be valid.

The Thirty-Ninth Amendment also extended immunity to a

number of statutes from judicial purview on the ground of
infringement of Fundamental Rights by including them in the Ninth
Schedule.59

2.2.7 The Fortieth Constitutional Amendment Act, 1976

The Constitution (Fortieth Amendment) Act, 1976, extended

immunity to 64 Central and State statutes by including them in the
Ninth Schedule. These statutes pertained to land reform, urban
ceiling, and prevention of publication of objectionable matter.60

This amendment also substituted a new Article 297 for the old
one with a view to enlarge the scope of India’s Sovereign rights over

57
Supra note 8 at 1670.
58
Ibid.
59
Ibid.
60
Ibid.

58
sea wealth and include therein the concept of exclusive economic
zone. All resources in the exclusive economic zone have been vested
in the Union.

2.2.8 The Forty-Seventh Constitutional Amendment Act, 1984

The Constitution (Forty-Seventh Amendment) Act was passed

in 1984. This Amendment adds 14 State Acts dealing with land to the
Ninth Schedule.61

2.2.9 The Sixty-Sixth Constitutional Amendment Act, 1990

The Constitution (Sixty-sixth Amendment) Act, 1990 was

enacted to put a number of statutes passed by the State Legislatures,
mostly in relation to land reforms in the Ninth Schedule. The total
number of statutes now included in this Schedule stands at 257. All
these statutes stand immunised from being challenged on the ground
of infringement of any Fundamental Right.62

2.2.10 The Seventy-Seventh Constitutional Amendment Act,

1994

The Constitution (Seventy-Sixth Amendment) Act, 1994 added

the Tamil Nadu Backward Classes, Scheduled Castes, and Scheduled
Tribes (Reservation of Seats in Educational Institutions and or
appointments or posts in services under the State) Act, 1993, enacted
by the Tamil Nadu Legislature, to the Ninth Schedule so as to give
protection to the State Act under Article 3 IB. This followed the
decision of the Supreme Court in Indira Sawhney’s case fixing total
reservations under Article 16(4) to not more than 50%. The State
forwarded the Act to the Centre under Article 31C.

61
Ibid.
62
Ibid.

59
2.2.11.The Seventy-Eight Constitutional Amendment Act, 1994

The Constitution (Seventy-Eight Amendment) Act, 1995, adds

a few State Acts to the Ninth Schedule. Today the Schedule contains
284 statutes.

2.3 Procedure for the Amendment of the Constitution

The framers of our Constitution were so inspired by the need

for the Sovereignty of the Parliament elected by universal suffrage to
enable it to achieve a dynamic national progress. They therefore
prescribed an easier mode for changing those provisions of the
Constitution which did not primarily affect the federal system. This
was done in two ways-

Firstly, by providing ‘ordinary process’ of amendment by

simple majority to those provisions which were not deemed to be
amendment of the Constitution.

Secondly, by providing ‘constituent process’ of amendment by

special majority and in case of certain provisions further ratification
is required by half of the State Legislatures which are mentioned in
Article368.

An Amendment can be initiated only by the introduction of a

Bill for the purpose in either House of Parliament, and when the Bill
is passed in each house by a majority of the total membership of that
House and by a majority of not less than two- thirds of the members
of that House present and voting, it shall be presented to the
President for his assent and upon such assent being given to the Bill,
the Constitution shall stand amended in accordance with the terms of
the Bill.

60
 But ratification is also required if Bill seeks to amend any of
the following provisions:63

Article 54-55 manner of the election of the President.

Article 73-162 extent of the Executive power of the Union and

the States.

Article 241, Chapter IV of Part V, Chapter I of Part XI.

Any of the lists in the Seventh Schedule.

Representation of States in Parliament Fourth Schedule.

Provisions of Article 368 itself.

The law included in the Ninth Schedule if it is a Union law

then as mentioned in the amendment process should be passed by
both the houses of the Parliament by required majority and should
receive the assent of the President and if it is an ‘entrenched
provision’ then it requires ratification by half of the States. Further,
if the law is a State law then it is drafted by the State and passed by
the majority members in the State Legislature and then send to the
Union Cabinet for approval and then the President’s assent is
required which is very important for its final enactment and inclusion
in the Ninth Schedule.

2.3.1 Issue of Amendment of the Part III or any other part of the
Constitution

The issue of amendment of Part III of the Constitution began

with the First Amendment Act of 1951 (as already discussed) in
which violation of Fundamental Rights was involved. In Golak Nath
v. State of Punjab,64 the court overruled its earlier decisions in

D.D Basu, Introduction to the Constitution of India, 154-158 (2006).

AIR 1967 SC 1643.

61
Shankari Prasad v. State of Bihar, and Sajjan Singh v. State of
Rajasthan,66 by concluding that Fundamental Rights included in part
III of the Constitution are not subject to Article 368 and the power to
amend the Constitution is a legislative power conferred by Article
245 of the Constitution, so that a Constitution Amendment Act was
also a Taw’ within the purview of Article 13(2). After this decision
the Parliament sought to supersede it by amending Article 368 itself,
by the Constitutional Twenty Fourth Amendment Act 1971, as a
result of which an amendment of the Constitution passed in
accordance with Article 368, will not be Taw’ within the meaning of
Article 13 and the validity of a Constitution amendment act shall not
be open to question on the ground that it takes away or affects a
Fundamental Right [Article 368(3)]. Even after this specific
amendment of the Constitution, the controversy before the Supreme
Court did not cease because the validity of the Twenty Fourth
Amendment Act itself was challenged in a case of Kesavanand Bharti
S'

v. State of Kerela, (discussed in the next chapters in detail). In this

case the validity of the Twenty Fourth Amendment Act was upheld
and the case of Golak Nath v. State of Punjab, was overruled. The
question has thus been settled in favour of the view that a
Constitution Amendment Act, passed by the Parliament, is not ‘law’
within the meaning of Article 13. The majority in Kesavanand Bharti
case upheld validity of Clause (4) of Article 13 and a corresponding
provision in Article 368(3), which had been inserted by the
Constitution Twenty Fourth Amendment Act 1971 read as: “Nothing
in this Article (i.e Article 13), shall apply to any amendment made
under Article 368”. In the result Fundamental Rights in India can be
amended by an Act passed under Article 368, and the validity of a

65 ■

Supra note 20.

66
AIR 1965 SC 845.
67
AIR 1973 SC 1461.
68
Supra note 64.

^SSI
62
Constitution Amending Act cannot be questioned on the ground that
Act invades or encroaches upon any Fundamental Right. Though it
overruled Golak Nath’s case that Fundamental Rights cannot be
amended under Article 368, it has affirmed another preposition
asserted by majority in Golak Nath’s case, namely, that: there are
certain basic features of the Constitution of India, which cannot be
altered in exercise of the power to amend it, under Article 368. If,
therefore, a Constitution Amendment Act seeks to alter the basic
structure or framework of the Constitution, the court would be
entitled to annul it on the ground of ultra vires, because the word
‘amend’, in Article 368, means only changes other than altering the
very structure of the Constitution (important cases are discussed in
chapter V).69

2.3.2 Effects of inclusion of an Act in the Ninth Schedule

Ninth Schedule was added in the Constitution with the

objective of excluding certain laws (i.e. Land Reform laws) from the
purview of Judicial Review. When a law is put in this Schedule it
becomes immune from challenge on the ground of violation of
Fundamental Rights. Some of the effects are mentioned below.

1. In view of Article 3IB, the inclusion of an act in the

Ninth Schedule validates it with retrospective effect
from the date of its enactment, irrespective of its
inconsistency with any Fundamental Right and of any
declaration of unconstitutionality of any court on such
ground.70

Supra note 63 at 157-158.

Jagannath v. Authorized Officer, AIR 1972 SC 425 (435).

63
 2. In the result the Constitutionality of such protected Act
cannot be challenged except on the ground of want of
legislative competence.71

3. But as to the Acts included in the Ninth Schedule by

amendments made on or after 24.04.1973, the foregoing
proposition is to be read subject to the decision in
Keshvananda Bharti's case.

By the judgment delivered on that date (.i.e. 24.04.1973) in

that case, it was laid down that any amendment of the Constitution
which sought to destroy or damage the basic features or the basic
structure of the Constitution would be unconstitutional and void.
Hence, any amendment of the Constitution made after 24.04.1973
would be open to challenge on the ground that the Amendment Act
destroyed or damaged the basic features of the Constitution. If that
challenge succeeds, the inclusion of the offending Act in the Ninth
Schedule would be void and it would be open to the further challenge
of violation of Articles 14, 19 and 31, unless saved by Article 31A or
31C (as it stood prior to its amendment by Forty Second Amendment
Act). In short, Acts added to the Ninth Schedule on or after
24.04.1973 will not receive the protection of 31B. They will be valid
only if they do not damage or destroy the basic structure of the
Constitution.

It may be pointed out, in this context, that all the Acts

specified in Entries 67 onwards (by Thirty Fourth Amendment Act,
1974, the Thirty Ninth Amendment Act, 1975, the Fortieth
Amendment Act, 1976, the Sixty Sixth Amendment Act, 1990 and the
Seventy Sixth Amendment Act, 1994) are all editions subsequent to
29.04.1973.

71 Sansaka v. Union of India, AIR 1981 SC 22.

72 Supra note 67.
73 Woman Rao v. Union of India, AIR 1981 SC 271.

64
 4. But additions to the Ninth Schedule made prior to
24.04.1973 will not be hit by the doctrine of ‘basic
features’ and would, therefore, be completely protected
by Article 3IB.74

5. The inclusion of an Act would not retrospectively affect

any right which accrued prior to the inclusion of the Act
in the Ninth Schedule.75

6. The protective umbrella of Article 31A cannot be

extended to orders and notifications issued under the Act
• Ifx
included in the Ninth Schedule, prior to its inclusion.

2.3.3 Amendments to Protected Acts

The protection offered by the Ninth Schedule is confined to the

Acts and Regulations mentioned in that Schedule and the provisions
thereof. It cannot be extended to provisions which were not included
therein, irrespective of the fact whether the provision to which the
protection is sought to be extended deals with new substantive
matters or it deals with matters which are incidental or ancillary to
those already protected.77

2.3.4 Constitutional Amendments in the Ninth Schedule:

Classification of Laws

If we take a look at the Ninth Schedule, we find that several

laws relate to Land reforms and nationalisation but number of other
Acts have nothing to do with land reforms like election, mines and
minerals, industrial relations, requisition of property, monopolies,
coal or copper, general insurance, sick industries, The Essential
Commodities Act, FERA, MRTP, COFEPOSA, SAFEMA, Tamil

74 Kalimata Jhakurani v. Union of India, AYR. 1981 SC 1030.

75 Ajay v. Union of India, AIR 1984 SC 1130.
76 Prag Mills v. Union of India, AIR 1978 SC 1296.
77 G.S. Mills v. Kamble, AIR 1975 SC 1193.

65
Nadu (69%)Reservation for BCs, SCs, STs Act 1993, are included,
which clearly shows the deviation from the objective of Pt. Jawahar
Lai Nehru’s Socialistic approach. The worst misuse by the Executive
was during emergency period by Prime Minister Smt. Indira Gandhi,
she got Thirty Ninth Amendment 1975 Act, regarding her election
passed through special Amendment procedure(along with ratification
from I/2 of the States) in the Parliament to save her unconstitutional
election from Judicial Review in the Ninth Schedule. If we see the
amendment process in the Ninth Schedule, it is clear that an
amendment which is made in Ninth Schedule is put by the exercise of
‘constituent power’ of the Parliament. All the Constitutional
amendments put in it are passed by each house by a majority of the
total membership to that house and by not less than 2/3 of the
majority of that house present and voting and after the assent of the
President. The Acts which are passed by State the Legislatures are
also required to obtain the assent of the President after having been
passed by the Legislative Assembly and Governor reserves it for the
assent of the President. It receives immunity from Ninth Schedule
only after assent from President which is customary because in
original practice will of the leal Executive prevails and nominal
Executive has to give assent.

Following are the various Constitutional Amendments which

added/omitted various Acts/provisions in Ninth Schedule from item
No. 1 to 284.

Amendment Acts/Provisions Added

1st Amendment, 195 1 1 - 13

4lllAmendment, 1955 14 - 20

66
 17th Amendment, 1964 21 - 64

29thAmendment, 1972 65 - 66

34th Amendment, 1974 67 - 86

39thAmendment, 1975 87 - 124

40th Amendment, 1976 125 - 188

47th Amendment, 1984 189 - 202

66th Amendment, 1990 203 - 257

76thAmendment,1994 257A

78th Amendment, 1995 258 - 284

2.4 Constitutional Amendments which were challenged:

The Constitutional amendments made in the Ninth Schedule

were challenged in the court because some parts or whole of the
amendments were regarded as unconstitutional. They have led to a lot
of controversy in regard to Part 111 and Part IV of the Constitution.

2.4.1 The First Amendment 1951

The First Amendment 1951 as mentioned earlier in this chapter

was to remove difficulties created by several decisions of the
Supreme Court, in Romesh Thapper v. State of Madras,78 Brij
Bhushan v. State of Delhi,79 Moti lal v. State of Uttar Pradesh.80 This

Supra note 4.
Supra note 5.

67
amendment was challenged in the case of Shankari Prasad v. Union
of India,8' the first case on the amendability of the Constitution,
curtailing the right to property guaranteed by Article 31 was
challenged. The argument against the validity of the first amendment
was that Article 13 prohibits enactment of a law infringing or
abrogating the Fundamental Rights, that the word Taw’ in Article 13
would include any law, even a law amending the Constitution and,
therefore, the validity of such a law could be judged and scrutinised
with reference to the Fundamental Rights which it could not infringe.
The court upheld the validity of the First Amendment. The court
stated on this point that in the context of Article 13 law must be
taken to mean rules and regulations made in the exercise of
constituent power with the result that Article 13(2) does not affect
amendments made under Article 368. Therefore, the word Taw’ in
Article 13 must be taken to refer to rules and regulations made in the
exercise of the ordinary legislative power, and not to Constitutional
amendments made in the exercise of the constituent power under
Article368 with the result that Article 13(2) does not affect
amendments made under Article 368.

2.4.2 Seventeenth Amendment 1964 was challenged

Seventeenth Amendment 1964 was challenged in the case of

Sajjan singh v. State of Rajasthan. ~ For thirteen years after the
Shankari Prasad case, the question of amendability of Fundamental
Rights remained dormant. This amendment again adversely affected
the right to property. By this amendment, a number of statutes
affecting property rights were placed in the Ninth Schedule and were
thus immunized from court review. The court was to decide that
whether the abridgement of Fundamental Right was within the

Supra note 7.
Supra note 20.
AIR 1965 SC 845.

68
prohibition of Article 13(2); and whether Article 31A and 3IB, as
amended by Seventeenth Amendment sought to make changes to
Article 132, 136 and 226, or in any of the lists in the Seventh
Schedule of the Constitution, so that the conditions prescribed in the
proviso to Article 368 had to be satisfied? One of the arguments was
that the amendment in question reduced the area of Judicial Review
(as under the Ninth Schedule, many statutes had been immunized
from attack before a court); it thus affected Article 226 and,
therefore, could be made only by following the procedure prescribed
in Article 368 for amending the ‘entrenched provisions’, that is, the
concurrence of at least half of the States ought to have been secured
for the amendment to be validly effectuated. The Supreme Court
again rejected the argument by a majority of 3:2. The majority ruled
by applying the rule of ‘pith and substance’ and held that the
amendment was only to amend the Fundamental Rights so as to help
the State Legislatures in effectuating the policy of the agrarian
reform. If it affected Article 226 in an insignificant manner, that was
only incidental; it was an indirect effect of the Seventeenth
Amendment and it did not amount to an amendment of Article 226. It
does not change it in any way. The court drew distinction between an
ordinary law and Constitutional law made in exercise of ‘constituent
power’ and held that only former, and not latter, fell under Articlel3.

Again, Seventeenth Amendment was challenged in I.C.Golakh

Nath v. State of Punjab,Hi in more vigorous manner. This time 11
Judges with majority of 6 to 5 overruled the earlier cases of Shankari
Prasad and Sajjan Singh case and held the Fundamental Rights were
non-amendable through the Constitutional amending procedure set
out in Article 368, while the minority upheld the line of reasoning
adopted by the court in the two earlier cases. The Constitutional
amendment is ‘law’ within the meaning of Articlel3 of the

83 Supra note 64.

69
Constitution and therefore, if it takes away or abridges the rights
conferred by Part III it is void. It was declared that the Parliament
will have no power from the date of decision (27th Feb. 1967) to
amend any of the provision of Part III of the Constitution so as to
take away or abridge Fundamental Rights. The minority held that the
power of amendment is not subject to any express or implied
restrictions. If the Constitution- makers had wanted to make the
Fundamental Rights unamendable, they could have easily made an
express provision in the Constitution to that effect. These Judges
also refused to accept the doctrine of prospective overruling.

2.4.3 Twenty Fourth (1971), Twenty Fifth (1971) and Twenty

Ninth (1972) Constitutional Amendments were challenged

Twenty Fourth (1971), Twenty Fifth (1971) and Twenty

Ninth(1972) Constitutional Amendments were challenged in the case
of Kesavanand Bharti Sripadgalavaru v. State of Kerela84 batch of
six writ petitions challenging validity of Twenty-fourth, Twenty-
fifth, Twenty Sixth Amendment and Twenty-Ninth Amendments of
Constitution - the petitioner on March 21, 1970 filed petition under
Article 32 of the Constitution for enforcement of his Fundamental
Rights under Articles 25, 26, 14, 19(1 )(f) and 31 of the Constitution.
He prayed that the provisions of the Kerala Land Reforms Act, 1963
(Act 1 of 1964) as amended by the Kerala Land Reforms
(Amendment) Act 1969 (Act 35 of 1969) be declared
unconstitutional, ultra vires and void. He further prayed for an
appropriate writ or order to issue during the pendency of the petition.
During the pendency of the writ petition, the Kerala Land Reforms
(Amendment) Act 1971 (Kerala Act No. 25 of 1971) was passed
which received the assent of the President on August 7, 1971. The
petitioner filed an application for permission to urge additional

84
Supra note 67.

70
grounds and to impugn the Constitutional validity of the Kerala Land
Reforms (Amendment) Act 1971 (Kerala Act No. 25 of 1971).

The majority upheld validity of Twenty-Fourth Amendment

which inserted Clauses (3) and (4) in Article 13. All the Judges
opined that by virtue of Article 368 as amended by Twenty-Fourth
Amendment Parliament had power to amend any or all provisions of
Constitution including those relating to Fundamental Rights although
the same was not unlimited. The majority were of view that power of
amendment under Article 368 was subject to certain implied and
inherent limitations. In the exercise of amending power Parliament
cannot amend basic structure or framework of Constitution. The right
to property did not form part of basic structure and individual
freedom secured to citizens was basic feature of Constitution. The
grant of power always qualified by implications of context and
considerations arising out of general scheme of statute. The inherent
limitations under unamended Article 368 would still hold true even
after amendment of Article 368. The Sections 2 (a) and 2 (b) and first
part of Section 3 of Twenty-Fifth Amendment held valid - majority
invalidated second part of Article 31-C introduced by Twenty-Fifth
Amendment which excluded jurisdiction of court to inquire whether
law protected under that Article gave effect to policy of securing
Directive Principles mentioned therein. The validity of Twenty-Ninth
Amendment which inserted Kerala Land Reforms (Amendment) Act,
1969 and Kerala Land Reforms (Amendment) Act, 1971 was upheld.
It was heard by a Bench consisting of all the 13 Judges of the court
because Golak Nath case decision by a Bench of 11 Judges was under
review. Wide arguments were advanced before the court for over 60
days. Eleven opinions were delivered by the Judges on April 24,
1973.

71
2.4.4 Thirty Ninth Amendment 1975

Thirty Ninth Amendment 1975 was challenged in the case of

Indira Gandhi v. Union of India, in which the Supreme Court had
occasion to apply the Kesavanand Bharti’s ruling regarding the non-
amendability of the basic features of the Constitution. Here the
question involved was about the validity of Clause 4 of the
Constitution Thirty Ninth Amendment Act 1975. This amendment
was sort to withdraw the election of the Prime Minister and a few
other Union officials from the scope of the ordinary judicial process;
and more specifically, to void the High Court decision declaring
Indira Gandhi’s election to the Lok Sabha as void; and, to exclude
the Supreme Court’s jurisdiction to hear any appeal. Further in
Minerva Mills v. Union of India, the question regarding the
Constitutional validity of this amendment is discussed in which the
Sick Textile Undertakings Nationalization Act, 1974 was added in
the Ninth Schedule was challenged.

2.4.5 Fortieth amendment Act, 1976

Fortieth amendment Act, 1976 was challenged in the case of

Waman Rao v. Union of India,87 along with Section 4 of Conservation
of Foreign Exchange and Prevention of Smuggling Activities Act,
1974, Articles 13 (2), 14, 19, 31, 31 (2), 31-A (1), 31-B, 31-C, 83
(2), 352 and 368 of Constitution of India, Section 4 of Constitution
of India (First Amendment) Act, 1951, Section 3 of Constitution of
India (Fourth Amendment) Act, 1955, Section 2 of House of the
People (Extension of Duration) Act, 1976, Constitution of India
(42nd Amendment) Act, 1976 and Constitution of India (40th
Amendment) Act were challenged. The court held that the Act of
1951 introduced Article 31-A with retrospective effect and Section 3
or

Supra note 56.

86 AIR 1980 SC 1789.
87 AIR 1981 SC 271.

72
of Act of 1955 submitted new Clause for original Clause (1) with
retrospective effect which was valid as it did not damage basic
feature of Constitution of India and all amendments made before
24.04.1973 and by which Ninth Schedule to Constitution of India was
amended was valid. Amendment made on or after 24.04.1973 were
open to challenge as they effect basic feature of Constitution of India
and Act included in Ninth Schedule if saved by Articles 31-A or 31-
C to be challenged on ground that amendment damages essential
feature would become otiose. In Minerva Mills case this amendment
has also been discussed.

2.4.6 Thirty Fourth Constitution Amendment Act 1974 and Sixty

Sixth Amendment Act, 1990

Thirty Fourth Constitution Amendment Act 1974 and Sixty

Sixth Amendment Act, 1990 was challenged in the case of I.R.Coelho
v. State of Tamil Nadu,88 in which order of reference dated 14th
September 1999 was made by five Judges’ Bench seven years ago. In
this, matters were related to a very important task of determining the
nature and character of protection provided by Article 31-B of the
Constitution to the laws added in the Ninth Schedule by amendments
made after Twenty Fourth April 1973.

2.4.7 Seventy-Sixth Constitution Amendment Act 1994

Seventy-Sixth Constitution Amendment Act 1994 added 257A

in the Ninth Schedule which puts Tamil Nadu Back ward Classes,
Schedule Castes, Schedule Tribes (Reservation of seats in
Educational Institutions and of appointments or posts in the services
under the State) Act, 1993, in the Ninth Schedule. The matter
regarding its Constitutionality exceeding 50% limit of reservation to
69% is before the Supreme Court and still pending to be disposed

AIR 2007 SC 861-893.

73
finally. On 13 July 201089 Supreme Court ruled that Karnataka and
Tamil Nadu can exceed 50 % quota and has asked both the States to
collect data to revisit reservation issue provided they had
“quantifiable data” on BCs and OBCs population. The three member
Bench headed by Chief Justice S.H. Kapadia asked the two States to
collect data and submit it to their Commission for BCs to revisit
reservation issue. Tamil Nadu raised 68% in 1981 and 69% in 1990.
The 70%quota of Karnataka is under stay order which is now
extended to 1 more year and Tamil Nadu no stay ordered and allowed
to continue for 1 more year. After lyear again have to reply to the
court.

2.5 Procedure Adopted

There are laws included in the Ninth Schedule by various

Constitution Amendment Acts and these amendments were made
under Article 368. Since 1951, questions have been raised about the
scope of the Constitutional amending process contained in Article
368.90

The basic question raised has been whether the Fundamental

Rights were amendable so as to dilute on take away any Fundamental
Rights through a Constitutional amendment? Since 1951, a number of
amendments have been effectuated in the Fundamental Rights. The
cumulative effect of these amendments has been to curtail, to some
extent, the scope of some of these rights.91

The worst affected Fundamental Right has been the right to

property contained in Article 31 which has been amended several
times. The basic trend of these amendments has been to immunise, to
some extent, State interference with property rights from challenge

89
The Times of India, 13 July 2010.
90
Supra note 8 at 482.
91
Ibid.

74
under Articles 14, 19 and 31 as well as to seek to exclude the
question of compensation for acquisition or requisitioning of
property by the State from Judicial Review. The Constitutional
validity of these amendments has been challenged a number of times
09
before the Supreme Court.

2.5.1 Legislative procedure for Laws passed by State Legislature

in Ninth Schedule

Like in the Parliament, the Bill for amendment can be

introduced in the either House and as this falls under 'constituent
power’ of amendment under Article368, the Bill is passed by 2/3
majority of the members present and voting and receives the assent
of the President. State Legislature in Bihar, Maharashtra, Madhya
Pradesh, Karnataka and Uttar Pradesh is bi-cameral having two
Houses. In all other States, the State Legislature is unicameral having
only one House. The Bill can be introduced in either of the House
where there are two Houses and it is passed by majority of the 2/3
members present and voting and then Governor reserves the Bill for
the assent of the President. After the Bill is passed by the State
Legislature it is then considered by the Cabinet at the Centre and if it
thinks fit only then it is included in the Constitutional amendment of
the Ninth Schedule. The final consent of the President is very
essential for the State laws.

2.5.2 Distribution of Legislative Powers

The distribution of legislative powers between the Centre and

the regions is the most important characteristic of a federal
Constitution. The whole structure of the federal system continues to
revolve around this central point. Usually certain powers are allotted
exclusively to the Centre; certain powers are allotted exclusively to

92
Ibid.

75
the regions, and there may be a common or concurrent area for both
to operate simultaneously. A basic test applied to decide what
subjects should be allotted to the one or the other level of
Government is that functions of national importance should go to the
Centre, and those of local interest should go to the regions. This test
is very generally, a sort of ad hoc formula, and does not lead to any
uniform pattern of allocation of powers and functions between the
two tiers of Government in all federal Countries. 3

2.5.3 The Three Lists

The Indian Constitution contains a very elaborate scheme of

distribution of power and functions between the Centre and the State.
The framers of the Indian Constitution took note of the developments
in the area of federal State allocation of powers in other federations.
They surveyed the area of the functioning of the modern
Government. They noted the modern scientific and technological
developments as well as the contemporary political philosophies and
keeping all these factors in the mind, they appointed functions
between the Centre and the States in a way so as to suit the peculiar
circumstances and exigencies of the country.94

The obvious tendency of the Indian Constitution is towards

centralisation within a federal pattern and framework. The scheme of
the Constitution is to secure a Constitutionally strong Centre having
adequate powers both in extent and nature so that it can maintain and
protect the unity and integrity of the country.95

The Indian Constitution seeks to create three functional areas:

(i) An exclusive area for the Centre;

93
Ibid.
94
Ibid.
95
Ibid.

76
 (ii) An exclusive area for the States; and

(iii) A common or concurrent area in which both the Centre

and the States may operate simultaneously, subject to
the overall supremacy of the Centre.

The Scheme of Article 246 is as follows:

(i) Article 246(1) confers on Parliament an ‘exclusive

power’ to make laws with respect to any of the matters
in the Union List (List I in the Seventh Schedule). The
entries in this List are such as need a uniform law for the
whole country. The States are not entitled to make any
law in this area.96

(ii) Article 246(3) confers an exclusive power on the States

to make laws with respect to the matters enumerated in
the State List (List II in the Seventh Schedule). These
are matters which admit of local variations, and, from an
administrative point of view, are best handled at the
State level and, therefore; the Centre is debarred from
legislating with respect to these matters.97

(iii) A unique feature of the India scheme of division of

powers is the existence of a large concurrent field for
the Centre and the State. Article 246(2) confers a
concurrent power of legislation on both the Centre and
States with respect to the matters enumerated in the
Concurrent List (List III) in the Seventh Schedule.

96
Ibid.
97
Id. at 483.

77
2.5.4 Central Control Over State Legislation

There are a few provisions in the Constitution as stated below

which prescribed assent of the President i.e., the Central Executive
before a Bill passed by a State can become legally effective. This
legislative mechanism is part of the scheme of checks and balances
insofar as the Centre is able to keep under its control certain types of
State legislation.98

Article 31(A)(1) (Ninth Schedule) provides that a law

regarding acquisition of estates will not be invalid even if it is
inconsistent with Article 14 or 19. However, under the first proviso
to Article 31A(1) the exemptions granted to some categories of
acquisition law from Articles 14 and 19 cannot be available unless
the relevant State law has been reserved for the consideration of the
President and has received his assent. In this way, the Centre can
ensure that the States make only justifiable use of their power to
deviate from the Fundamental Rights.99

The proviso enables the Central Executive to keep some check

on State laws falling under Article 31A (1), so that there is some
uniformity among the State laws and that there is no undue
curtailment of the Fundamental Rights guaranteed by Articles 14 and
19. The Centre can also ensure that the State does not use its
legislative power for a purpose extraneous or collateral to the
purposes mentioned in Article 31(A)(1). This is a safeguard against
undue, excessive and indiscriminate abridgement of Fundamental
Rights by State legislation.100

(a) Article 31C (Ninth Schedule)gives overriding effect to

the Directive Principles over Fundamental Rights

98
Id. at 556.
99
Ibid.
100
Ibid.

78
 guaranteed by Article 14 or Article 19, but a State law
can claim this effect only if the President gives his
assent to it. This is also a safeguard against undue,
excessive and indiscriminate abridgement of
Fundamental Rights in the name of implementation of
Directive Principles. It may be appreciated that Article
31C confers very drastic power on State Legislatures and
so some safeguard is necessary against unwise or
inappropriate laws being enacted and claiming
exemption from Fundamental Rights guaranteed by
Article 14 or Article 19.101

(b) Under the second proviso to Article 200, a State

Governor has been ordained not to assent to, but to
reserve for the consideration of the President, any Bill
passed by a State Legislature which, in his opinion,
would, if it became law, so derogate from the powers of
the High Court as to endanger the position which that
court is by the Constitution designed to fill. For the
proper functioning of a Democratic System, governed by
Rule of Law, an Independent Judiciary is an integral and
indispensable part of the Constitutional system. This
provision is intended to preserve the integrity of the
High Courts which are designed to be strong instruments
of justice. It is a safeguard against a State passing any
law which may adversely affect the powers, jurisdiction
or status of the High Court. The Centre can intervene in
a fit case and preserve the High Courts Constitutional
109
status.

101
Id. at 557.
102
Ibid.

79
 (c) Under Article 288(2), a State law imposing, or
authorising imposition of a tax in respect of any water or
electricity stored, generated, consumed, distributed or
sold by any authority established by law made by
Parliament for regulating or developing any inter-State
river or river valley, has no effect unless it has reviewed
the assent of the President.103

(d) Article 301 declares that trade; commerce and

intercourse shall be free throughout India. However,
under Article 304(b), a State Legislature may impose
reasonable restriction in public interest on the freedom
of trade, commerce or intercourse with or within the
State, but no such Bill is to be moved in the State
Legislature without the previous sanction of the
President. This proviso is also a safeguard to ensure that
State laws do not unduly disrupt the economic unity of
the country. The Centre can ensure that States do not
make laws to unnecessarily curtail freedom of trade and

commerce.

In the absence of prior sanction of the President, the defect can

be cured under Article 255 by subsequent assent of the President to
the State law in question.104

(e) Then, there is Article 254(2) under which repugnancy

between a State law and a Central law with respect to a
matter in the Concurrent List may be cured by the
assent, of the President to the State legislation.105

103
Ibid.
104
Ibid.
105
Ibid.

80
 (f) When a proclamation of financial emergency is in
operation under Article 360(1), the President, i.e., the
control Executive can direct the States to reserve all
money Bills or Financial Bills for the President’s
consideration after they are passed by the State
Legislature.106

(g) Besides the above specific situations where State

legislation compulsorily needs Central assent for its
validity, there is Article 200 which makes a general
provision enabling the State Governor to reserve a Bill
passed by the State Legislature for presidential
1A7
consideration and assent.

The implications of this provision appear to be that the

Governor may also reserve a Bill, in situations other than those
mentioned above, but it is not clear in what situations and
circumstances the Governor may do so. No norms have been laid
down in the Constitution as to when the Governor can exercise this
power, or when the President can refuse to give his assent to a State
Bill. On its face, it appears to give a blank cheque to the Governor
and as already discussed, he would exercise this power in his
discretion.108

The Governor should exercise his discretionary power to

reserve a Bill for President’s assent not liberally but exceptionally,
i.e., only in rare and exceptional cases. The reason for taking this
view is that if the Governor interprets his power too liberally, it will
result in too many State Bills being reserved for the Centre’s assent

Ibid
Ibid.
Ibid.

81
and this will jeopardise the system of Parliamentary Democracy in
the State.109

Some of the situations when the Governor may be justified in

reserving a State Bill are:

(i) When the State Bill suffers from patent

unconstitutionality;

(ii) When the State Bill derogates from the scheme and
framework of the Constitution so as to endanger the
Sovereignty, unity and integrity of the country;

(iii) When the State Bill ex facie comes in conflict with a

central law;

(iv) When the legitimate interests of another State or its

people are being adversely affected.

Mere policy differences between the Governor and the State

Government do not justify reservation of State Bills by the Governor
for President’s assent. It may also be stated that unconstitutionality
can arise in several situations, e.g., the State Legislature may exceed
its legislative competence which may happen when the Bill in
question relates to a matter in List I and not to List II or List III;
when the Bill infringes a Fundamental Right or its infringes some
other Constitutional provision or limitation. 10

The Articles 200 and 201 provide the necessary mechanism for
making operational the various Constitutional provisions, noted
above, which require certain types of States Bills to be reserved for
the President’s consideration and assent.111

109
Id. at 558.
110
Ibid.
111
Ibid.

82
 There is the corresponding question that once the State Bill
referred to the President under Article 200, what are the
consideration which the Central Government applies to examine the
Bill. The formal power of the President are laid down in this
connection in Article 201, but what tests should the Central
Government, apply to access the State law is not laid down in Article
201. Prima facie, Article 201 confers an unrestricted power on the
Central Government to examine the reserved State laws. The Central
Executive is entitled to examine the State law from all angles, such
as, whether or not it is in conformity with the Constitution or the
110
central policies whether it is inconsistent with any central law etc.

A few illustrations to show the practical working of these

provisions may be noted here.

Punjab passed the temporary tax Bill levying a surcharge of 1

percent on sales tax and an increased passenger and freight tax. The
Centre refused its assent to the Bill as its effect was to buy 8 percent
tax on luxury goods as against the ceiling of 7 percent fixed by the
Chief Minister conference. Another objection was that the Bill levied
a tax of 3 percent on goods declared essential on which only a 2
percent sales tax was permissible under the Central Sales Tax Act,
1956. The Centre also sought an assurance from Punjab that it would
share the enhanced revenue from the passenger tax with the Union
Territory Himachal Pradesh. The Centre signified its assent to the
Bill when all these lacunae were removed.

In 1961, the Centre refused to assent to the Madhya Pradesh

Panchayati Raj Bill, 1960, because it provided for nominated village
Panchayats to be set up for a year, and the Centre took the view that

83
the system of nominations was a negation of the concept of
Panchayats.113 The most typical case in this area is in Re Kerala
Education Bill.114 The Kerala Legislative passed a Bill in 1957 to

provide for the better organisation and development of educational

institutions in the State. Its provisions raised a bitter public
controversy in the State. The Governor reserved the Bill under
Article 200 for consideration of the President who sought the
advisory opinion of the Supreme Court under Article 143. The
Supreme Court held that some of the provisions of the Bill offended
Article 30(1), pertaining to the right of minorities to establish and
administer educational institutions. The President returned the Bill to
the State for necessary amendments therein in the light of the
Supreme Court’s opinion. It is clear that the Centre sought the advice
of the Supreme Court so as to keep itself above the accusation of
partisan politics as the Central and State Governments belonged to
different political parties.115

Under Article 255, no Act of Parliament or of a State

Legislature is to be invalid by reason only that the recommendation
or previous sanction of the President required by the Constitution
was not given, if assent is given to it by the President subsequently.
• • I I S'

An interesting case in the area is Jawaharmal v. State of Rajasthan,

Rajasthan enacted a law levying a tax. The law needed presidential
assent but it was not secured. Later, Rajasthan enacted another law
declaring that the earlier law would not be deemed to be invalid by
reason of the fact that presidential assent had not been secured. This
law later secured presidential assent. The Supreme Court held that it

AIR 1958 SC 956: 1959 SCR 995.

Supra note 8 at 559.
AIR 1966 SC 764: (1966) 1 SCR 890.

84
could not cure the infirmity of the earlier law. That infirmity could
be cured only by presidential assent and not by any legislative fiat.
Even the presidential assent to the later law cannot cure the defect of
the earlier law."7

So, it becomes clear that even in the sphere allotted to the

States, the Centre exercises appreciable control over their legislation.
Every year a large number of State Bills come to the Centre for
assent under various provisions of the Constitution mentioned above.
According to the report of the Sarkaria Commission during the period
from 1977 to 1985, 1130 State Bills were reserved for the
consideration of the President. Most of them originate under Article
254(2) so as to validate an inconsistency between a State law and a
Central law in the concurrent list. The President assented to most of
these Bills; the assent was with held only in 31 cases. The norms on
which the Centre acts in exercising its powers are not clear.
However, on the whole, it appears that the Centre is circumspect in
exercising its controlling powers over the State legislation. It is only
in a very few cases that presidential assent is refused to State laws.
Some of the grounds on which such assent has been refused are: there
was already a central law in existence (in the concurrent list) the lies
between the exclusive jurisdiction of the Centre; the Centre is
contemplating action itself; exclusion of Union property from State
taxation; non-conformity with the policies of the Central Government
1 |O
unconstitutionality; lack of procedural safeguards, etc.

Sarkaria Commission stated that it is “intended to sub serve the

broad purpose of co-operative federalism in the realm of Union State
legislative relations” while commenting on Constitutional scheme of
reserving State laws for the President’s assent; it is “designed to

117
Supra note 8 at 559.
118
Ibid.

85
make our system strong, viable, effective and responsive to the
challenges of a changing social order”."9

The Constitutional provisions regarding Central over State

legislation existing in India do undoubtedly detract to some extent
from State autonomy.

However, the Central control over State legislation is justified

in some situations. There are consideration of uniformity of law and
uniformity of approach in certain basic matters.120

Centre’s assent in certain cases confers a immunity on the

State laws from being challenged under the Fundamental Rights. On
the whole, however, if past practice in any guide, the Centre is vary
of controlling State legislation unless it is demonstrably against
national interest, or is unconstitutional, or is against well established
national policies, and perhaps mere difference of approach is not the
determining factor. 21

In the USA and Australia, the Centre exercises no control over

the State legislation. In Canada, however, the Lt. Governor of a
province may reserve as Provincial Bill for the consideration of the
Governor-General, a provision analogues to Article 200 in India.
Also, the Centre in Canada has power to disallow a Provincial law
(after it has been assented to by the Lt. Governor and has thus came
into operation) within a year of its enactment. There is no power in
the Central Government in India to disallow a State Act after it has
come into operation as there is in Canada.122

119
Ibid.
120
Id. at 560.
121
Ibid.
122
Ibid.

86
2.6 Justification for Inclusion

When provisions of the Constitution of India were being

debated in the Constituted Assembly, some provinces then had
passed the laws abolishing Jagirdaris and Zamindaris systems,124 in
the agricultural properties. Some other States passed such law
immediately after the coming into force of the Constitution.
Obviously, the Fundamental Right to property was first asserted in
the Supreme Court by the landowners. State and Union Governments
passed more laws for the regulation of Right to property in the
general public interest. Therefore, the Government’s policy regarding
land reforms had been dragged into litigation as it was in direct
conflict with citizen’s Fundamental Right to property (confrontation
between Directive Principles of State Policy and the Fundamental
Rights). In this regard Pt. Jawahar Lai Nehru expressed his
apprehension and remarked:125

Within limits no Judge and no Supreme Court can make itself a

third chamber. No Supreme Court and no Judiciary can stand in
judgment over the Sovereign will of the Parliament representing the
will of the entire community and Nation. Legislature is supreme and
must not be interfered into by the court of law in such recourse of
social reforms. And if the Judiciary interfered, he pointed out; the
prescription was, to change the Constitution.

The right to property at that time had been guaranteed under

Article 19(l)(f) and 31 of the Constitution. Article 19( 1)(f) had
prohibited the State from making any law which might affect the

As Indian States were known at that time.

124 The main plank for the congress victory in the first general election was the
declaration that Zamindari would be abolished and that quota shall be fixed for
socially and educationally backward class of citizens. As soon as the Governments
were formed in States, law relating to Zamindari abolition and other agrarian reforms
mere passed by different States. But these laws were challenged before various High
Court on the ground of violation of Fundamental Right to property.
,2> CAD (Proceedings) Vol. IX, September 10, 1949.

87
citizens right to acquire, hold and dispose of property while Article
31 provided that no person shall be deprived of his property except
the authority of law. Both these Articles were included in the Part III
of the Constitution and Parliament’s power to enact laws in
derogation of Fundamental Rights was restricted under Article 13. It
restrains Legislatures to enact any law which take away or abridge
the rights conferred by Part III of the Constitution and Apex court
can declare any law made in contravention of this Clause, to that
extent void. Hence both the organs of the Government i.e. Parliament
and Judiciary have been given independent power with ample scope
to dominate each other with regard to the legislations and amendment
to the Constitution.

It all started when the Bihar High Court had struck down
Zamindari abolition law and held it void on the ground that the law
was against the Fundamental Rights. As a consequence the first
amendment was passed in 1951 by the interim Parliament. It inserted,
inter alia Article 31A and Article 3IB and Ninth Schedule with a
view to taking away all land reforms from the purview of Judicial
Review. It is interesting to note that Ninth Schedule has proved to be
a vital provision, and Parliament has from time to time included
various laws in it to immune from Judicial Review and now till date
there are 284 statutes in Ninth Schedule.

2.6.1 Objectives of the Ninth Schedule

The philosophy underlying our Constitution goes back to the

historic objective underlined by the makers of the Constitution,
which inspired the shaping of the Constitution through all its
subsequent stages. It observed:127

Resolution by the Constituent Assembly on January 22, 1947.

Resolution by the Constituent Assembly on January 22, 1947.

88
 The guarantee and security to all the people of India, justice,
social, economic and political; equality of status of opportunity,
before the law; freedom of thought, expression, belief, faith,
worship, vocation, association and action, subject to law and public
morality was the objectives for drafting the Constitution.

The preamble embodied these objectives. The sociality pattern

of society was visible in the entire document. The word ‘Socialist’
was, however, added to the preamble later on. The Governments
are directed to work for general welfare of the people in their larger
public interest but at the same time the Supreme Court and High
Court are made the guardians of the Fundamental Rights which are
guaranteed to the individuals. To avoid any conflict between
Directive Principles and Fundamental Rights former are made
unjustifiable and non-enforceable in the court. However, it did not
solve the problem and conflict started even before the Constitution
came into force on January 26, 1950. The policies of the
Governments regarding land reforms were dragged to the court. In
this regard Pt. Jawahar Lai Nehru’s speech was remarkable:129

This question of land reform is under Article 31(2) and this

Clause tries to take it away from the purview of the court and
somehow Article 14 is brought in. That kind of thing is not surely the
intention of the framers of the Constitution. Here again, I may say
i in
that the High Court has taken a contrary view. There is confusion
and doubt. Are we to wait for this confusion and doubt gradually to
resolve itself, while powerful agrarian movements grow up? If there
is agrarian trouble and insecurity of land tenure nobody knows what
is to happen. Therefore, these long arguments and these repeated
appeals in court are dangerous to the State, from the security point of
128 42nd Amendment Act in 1976.
129 His speech in the Lok Sabha on May 18, 1951.
30 Bihar High Court had taken view against land reforms but the Allahabad and Nagpur
High Court held a contrary view.

89
view, and from the food production point of view and from the
individual point of view, whether, it is that of the Zamindar or the
tenant or any intermediary.

Our Constitutional system works on the basis of institutions

Legislature, Executive and Judiciary which are clearly defined and
delimited by the Constitution. The Legislature represents the people,
controls the Executive and makes laws and no one can interfere with
its freedom and authority to do so.131 The courts have to adjudicate
disputes, interpret the Constitution, declare the law and pass the
necessary orders for doing complete justice.132

The Supreme Court is the final authority or interpreting and

pronounces on the validity of a law. Any law which is violative of
Constitutional provisions is invalidated. The power of Judicial
Review has always been given to court in general and the Supreme
Court in specific. It cannot be taken away in normal circumstances.133

Therefore, Ninth Schedule was created with a view to give

effect to social justice principles contained in the Part IV of the
Constitution. Granville Austin remarked that the specific issues
addressed in the first Amendment were the individual’s right to enjoy
his/her property versus the Government authority to take it under its
‘police power’ or for social revolutionary purposes.134

2.7 Relationship between Directive Principles and Fundamental

Rights

The root of controversy started with the conflict between these

two concepts. Fundamental Rights were given preference over the 0

Directive Principles by the Constitution itself. But the Parliament

131 The Tribune, (Editorial) Jalandhar, January 29, 2007.
Power under the Article 142.
133 Supra note 63 at 120.
] 34
Granville Austin, Working of a Democratic Constitution the Indian Experience, 70
(2000).

90
wanted to reverse it. Primary intention of the framers of the
Constitution in providing a comprehensive scheme of Fundamental
Rights in Part III and the Directive Principles in Part IV was to
balance the rights of the citizens on one side with the limitations on
the part of the State and further to lay down certain allowed
objectives to the State in general and to the Legislature in particular,
so that proper and necessary legislation may be made at the
appropriate time to implement the Directive Principles.135

In so far as the Fundamental Rights are concerned, numerous

amendments have been made. Some of the most notable changes have
been the abolition of the Fundamental Rights to property Article
19(l)(f) and Article 31 of the Constitution,136 and addition of Article
31-A, B and C in order to impose certain limitations on Fundamental
Rights and also to define the relationship between certain provisions
of Part III and IV of the Constitution.137

It may be mentioned that the Judiciary has also played a

pivotal role in implementing the Directive Principles. Some decisions
of the Supreme Court can be notice in this regard. In Mohammad
Hanif Qureshi v. State of Bihar, the Apex court upheld prevention
of the cow slaughter prohibition legislation in deference to principle
contained in Article 48. In re Kerala Education Bill, 1957139 had a

pointed to the fact that the State intruded to give effect to principle
of right to education contained in Article 45.140 The ideal of

distributive justice enshrined in Article 39(b) and (c) was given the

135 G. Bikshpathi Reddy, The Changing fact of Directive Principles of State Policy and
Fundamental Rights, SCJ Vol. 1 56 (1997).
136
By the Constitution Forty Fourth Amendment Act, 1978.
137 By the Constitution Twenty Fifth Amendment Act, 1971.
138 AIR 1958 SC 731.
139 Supra note 67.
140 Provision for free and compulsory education for children - the State shall endeavor to
provide, within a period of 10 years from the commencement of this Constitution, for
free and compulsory education for all children until the complete the age of 14 years.

91
highest priority by the Supreme Court when it upheld the validity of
Bihar Land Reforms Act, 1956 in State of Bihar v. Kameshwar
Singh.141 It is rightly observed by the Apex court in Minerva Mills

Ltd. v. Union of India, that significance of the perception that Part

III and IV together constitute the core of commitment to social
revolution and they together, are the conscience of the Constitution is
to be traced to a deep understanding of the scheme of the Indian
Constitution. Parts III and IV are like two wheels of a chariot, one no
less important than the other. Snap one and the other will lost its
efficacy. They are like a twin formula for achieving the social
revolution, an ideal, which the visionary founders of the Constitution
set before themselves. In other words, the Indian Constitution is
founded on the bed-rock of the balance between Parts III and IV. To
give absolute primacy to one over the other is to disturb the harmony
of the Constitution. This harmony and balance between Fundamental
Rights and Directive Principles is an essential feature of the basic
structure of the Constitution.

2.8 Constitutional Amendments and Judicial Review of Ninth

Schedule

Article 3IB of the Constitution of India ensured that any law

in the Ninth Schedule could not be changed in court and Government
can rationalise its programme of social engineering by reforming
land and agrarian laws. In other words, laws under Ninth Schedule
are beyond the purview of Judicial Review even though they violate
Fundamental Rights enshrined under Part III of Constitution. On the
one hand considerable power was given to Legislature under Article

AIR 1952 SC 352.

AIR 1980 SC 1789.

92
3IB and on the other hand the power of Judiciary was curtailed, this
was the starting point of tussle between Legislature and Judiciary.

2.8.1 Pre Keshavanand Bharti Position

The Constitutional validity of the First Amendment was upheld

in the Sankari Prasad v. Union of India. The Supreme Court while
upholding the validity of the Amendment observed that Article
13(2)44 does not affect amendments to the Constitution made under
Article 368 because such amendments are made in the exercise of the
constituent power of the Parliament. The court held that to make a
law which contravenes of the Constitution, the Constitutional validity
was a matter of Constitutional amendment and as such it falls within
the exclusive power of Parliament. In N.B. Jeejeebhoy v. Assistant
Collector, Thane,145 the Supreme Court held that Article 3IB
represents novel, innovative and drastic technique of amendment.
Legislative enactments are incorporated into the Constitution and
immunised against all attacks on the grounds of breach of any of the
Fundamental Rights.

Later, the Seventeenth Amendment Act, 1964 was challenged

in the Sajjan Singh v. State of Rajasthan.'46 Petitions were filed under
Article 32 of the Constitution. It was noted that Article 31A and 31B
were added to the Constitution realising that legislative measures
adopted by certain States for giving effect to the policy of agrarian
reforms have to face serious challenges in the court of law on the
ground that they contravene the Fundamental Rights guaranteed to
the citizen by Part III. The court’s view in these two cases was in
conformity and similar with that of the Legislature. The Supreme

Supra 15.
The State shall not make any law which takes away or abridges the rights conferred
by this part and any law made in Constitution.
AIR 1965 SC 1096.
Supra note 82.

93
Court viewed that there was no threat from the enhanced power of
the Legislature and that the radical agrarian reform were necessary to
curb down the menace of poverty and change the system of unequal
distribution of land holdings in the countryside. In addition the
insertions of various laws in the Ninth Schedule also supported the
faith of the court on the Statecraft of the leaders like Pt. Jawahar Lai
Nehru and Lai Bhadur Shastri. However, the co-ordination between
the Judiciary and the Legislature did not last long. With the coming
into power of Indira Gandhi Government; the power granted under
Article 3IB was widely expanded by the Legislature to achieve their
political ends. This provoked Judiciary to control the enhanced
legislative power of the Legislature.

In I.C. Golak Nath v. State of Punjab,147 a bench of eleven

Judges considered the correctness of the view that had been taken in
Shastari Prasad case,148 and Sajjan Singh case.149 The Supreme Court
by the majority of six to five overruled both previous decisions. It
was held that the Constitutional amendment was law within the
meaning of Article 13 and therefore if it takes away or abridges the
rights conferred by Part III therefore, it is void. In other words,
Parliament has no power to amend or take away the Fundamental
Rights enshrined under part III of the Constitution.

2.8.2 Right to Property: Pre-1978 Position

Before 1978, there existed mainly two Articles to protect

private property, viz., Articles 19(l)(f) and 31. Both these
Constitutional provision were repealed by this Constitutional

Supra note 67.

Supra note 82.
Supra note 20.
Amendment, and, thus, left private property defenceless against
legislative onslaught.150

It may not be out of place to mention that the natural law

jurists regarded protection to property along with life and liberty of a
person, as being of paramount necessity in a free society. It is for
this reason that the U.S. Constitution in the Vth Amendment ordains:
“No person can be deprived of his life, liberty or property without
due process of law”. In India, on the other hand, the policy makers
under the impact of the Socialist philosophy started devaluing the
institution of private property almost from the very day the
Constitution came into force.151

In independent India, no Fundamental Right has caused so

much trouble, and has given rise to so much litigation between the
Government and the Citizens, as the right to property. While the
Supreme Court has sought to expand the scope and ambit of many
Fundamental Rights including the right to property, this right has
been progressively curtailed through Constitutional amendments.152

There are some locus classics cases in Indian Constitutional

law which have arisen in the area of property rights. The reason for
such a development is that the Central and State Governments have
enacted massive legislation to regulate property rights.153 First, the
Government undertook to reconstruct the agrarian economy, by
trying to confer rights of property on the tiller, abolition of
Zamindaris, giving security of tenure to tenants, fixing a ceiling on
personal holding of agricultural land and redistributing the surplus
land among the landless.

150
Supra note 8 at 1253.
151
Ibid.
152
Ibid.
153
Id. at 1254.

95
 Secondly, in the area of urban property, measures have been
initiated to provide housing to the people, clearance of the slums and
town planning, control rents, acquire property and impose a ceiling
on urban land ownership, etc. Thirdly, the Government has
undertaken regulation of private enterprise and nationalisation of
some commercial undertakings. 54

These various legislative measures have been undertaken to

effectuate some of the Directive Principles of State Policy as well as
to usher in the accepted goal of establishing a Socialist pattern of
society in India.155 Important Constitutional battles have been bought

around this question and the Constitution has been amended several
times to get over some inconvenient judicial rulings.

Two trends, rather inconsistent, hold out in this area. On the

one hand, generally speaking, the court have leaned towards
protecting property rights and payment of adequate compensation for
property rights acquired by the State. On the other hand, the State
has progressively, by amending the Constitution, reduced the
occasions when compensation is payable for disturbance of property
rights and has sought to minimise intervention by the court in this
area. The action and interaction thus produced between the
Legislature and judicial processes from an extremely fascinating
chapter in India’s Constitutional development, so much so that the
enactment of the First and the Seventeenth Amendments curtailing
property rights even led to the raising of the critical question of the
amenability of the Constitution itself.156

154
Ibid.
155
Ibid.
156
Ibid.

96
2.8.3 Eminent Domain

It is regarded as an inherent right of the State, an essential

incident of its Sovereignty to take private property for public use
(The Land Acquisition Act, 1894). This power, known as Eminent
Domain, depends on the superior domain of the State over all
property within its boundaries it is supposed to be based upon an
implied reservation by the State that property acquired by its citizens
under its protection may be taken, or its use controlled, for public
benefit irrespective of the wishes of the owner incident of this power,
however, is that property shall not be taken for public use without
~ *157
first compensation.

The power of eminent domain just has been described by the

U.S. Supreme Court thus: “when public need requires acquisition of
property, the need is not to be denied because of an individual is
unwillingness to sell. When the need arises, individuals may be
required to relinquish ownership of property so long as they are
given just compensation which the Constitution requires. The power
of eminent domain can, therefore, be defined as the power of the
State to take property for public use, without the owner’s consent
upon making just compensation to him.158

The two essential ingredients of eminent domain are:

(1) Property is taken for public use;

(2) Compensation is paid for the property taken.

To start with the Constitution had Article 19(l)(f) and Article

31 to protect property right. In course of time, Article 31 came to be
modified drastically through several Constitutional amendments.
Ultimately, in 1978, by the Constitutional 44th Amendment, Article

1,7 Chiranjit Lai Chaudhary v. Union of India, AIR 1951 SC 41.

I5S Supra note 8 at 1255.

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19(l)(f) and 31 were abrogated since the 44th Amendment is not
retrospective159 and Articles 19(l)(f) and 31 have been deleted with
effect from June 20, 1979 all laws enacted earlier are still subject to
these Articles.

Articles 31 A, 3IB and 31C as well as Article 300A are the

existing Constitutional provisions concerning private property,
Article 300A has been added by the 44th Amendment.

2.8.4 Article 31

Article 31(1) laid down that no person could be deprived of his

property without the authority of law. This provision has been
repealed through the 44th Amendment but it appears as Article 300A.
Article 31(2) as it stood before its abrogation in 1978 ran as follows:

No property shall be compulsorily acquired or requisitioned

save for a public purpose and save by authority of a law which
provides for acquisition or requisitioning of the property for an
amount which may be fixed by such law or which may be determined
in accordance with such principles and given in such manner as may
be specified in such law and no such law shall be called in question
in any court on the ground that the amount so fixed or determined is
not adequate or that the whole or any part of such amount is to be
given otherwise than in cash.

The original Article 31(2) ran as follows:

No property . . . shall be taken possession of or acquired for

public purposes under any law authorising the taking of such
possession or such acquisition, unless the law provides for
compensation for the property taken possession of or acquired and
either fixes the amount of compensation, or specifies the principles

Monoel Francisco v. Collector of Daman, AIR 1984 Bom 461.

98
on which, and the manner in which the compensation is to be
determined and given.160

Four concepts were involved in Article 31(2):

(1) Property

(2) Compulsory acquisition and requisitioning by the State;

(3) Amount; and

(4) Public purpose.

2.8.5 Law Enacted by a State

In addition to the above mentioned conditions imposed by

Article 31(2), a law made by a State Legislature, and falling within
the purview of Article 31(2), was to fulfil yet another condition, viz.,
it was not to be effective until it had been reserved for the
President’s consideration and had received his asset. This was effect
of Article 31(3).

A State law falling within the purview of Article 31(2), but not
reserved for President’s assent under Article 31(3), had no legal
effect. The purpose underlying Article 31(3) was to bring under
central control the State legislation acquiring or requisitioning
property so as to ensure that no unjust expropriatory legislation was
enacted by a State. The Central Government could ensure that the
States follow some uniform norms for payment of compensation for
similar property. Such a precaution was necessary because the
question of adequacy of amount payable for land acquired bay
outside the judicial purview.161

Id. at 1264.
Id. at 1276.

99
2.8.6 Interrelation of Article 31, 14 and Article 19(l)(f)

Article 31(2) did not remove the bar of Article 14. A law could
be challenged on the basis of discrimination in the matter of payment
of compensation. Article 31(2) precluded challenge to the adequacy
of amount but not a challenge on the basis of discrimination, if any,
made between owners of land under like circumstances and
conditions. For example, a person whose land was acquired for
construction of a hospital or a school could not be paid less amount
than one whose land was acquired for any other lucrative project.162

Classification could not be made for the purpose of payment of

compensation on the basis of the public purpose for which the land
was acquired. As regards the owner, he lost his land and it was
immaterial for him whether his land was acquired for one or the other
public purpose. Article 14 confers an individual right and a
classification can be justified only if there is something to justify a
different treatment to this individual right. Similarly no classification
could be made for the for the purpose of payment of the amount on
1 ft'X

the basis of the land acquiring authority. Whether the land acquired
by the State is for an improvement trust, or a municipality, the same
principles to assess the amount for the land acquired should apply.
For the landowner, it hardly matters as to who acquires the land.
Similarly, it is equally immaterial whether the land is acquired under
the one or the other statute. Article 14 comes into play if there are
two acquisition statutes enabling the State to give one owner
different treatment from another equally situated owner. The question
concerning the inter-relationship between Articles 19(l)(f) and 31
created difficulties and there were several changes in the judicial
view in this area. Initially, the judicial view was that Article 19(l)(f)
would not apply to a law ‘depriving’ as distinguished from,

162 Id. at 1276.

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restricting a citizen of his property and that the validity of a law
depriving a person of his property could be adjudged only under
Article 31 and not under Article 19(l)(f). The rationale of the view
was that Article 19(l)(f) “postulates the existence of property which
can be enjoyed and over which rights can be exercised” because
otherwise the reasonable restrictions contemplated by Article 19(5)
could not be brought into play; Article 19(l)(f) dealt substantial and
substantive rights and not with illusory phantoms of title, when every
form of enjoyment which normally accompanied an interest in
property was taken away leaving only the husk of title, Article
19(l)(f) was not attracted.164 If an acquisition law was valid under
Article 31(2), the acquisition of property would be justified under the
law, and once the property was acquired there was no property theft
in respect of which Article 19(l)(f) could apply.

This view underwent a change in K.K. Kochunni v. State of

Madras case. The factual situation was that the petitioner was the
holder of the Kavalappara Sthanam having extensive properties
attached to it. These properties constituted an impartible estate in
which the members of the family had no interest. The Madras
Legislature enacted a law declaring that Sthanam property having
certain characteristics would be deemed to be Trawad property.166
The validity of the Act was challenged under Article 19(l)(f). The
Supreme Court held that the Act by treaties Sthanam property, by a
fiction of law, as Trawad property, deprived the Sthanees of their
properties without compensation. The law was thus expropriatory in
character and on its face stamped with unreasonableness. Also, no

Stale of Bombay v. Bhanji Munji, AIR 1955 SC 41: (1955) 1 SCR 521.
K.K. Kochunni v. State of Madras, AIR 1960 SC 1080: (1960) 3 SCR 887.
'Trawad’ is a Marumakkathayam family based on matriarchal system which prevails
on the West coast in the South India. The Trawad property is owned by all its
members but is managed by the oldest male member.

101
public interest was served by the law. Thus, it was held bad under
Article 19(l)(f) and was not saved by Article 19(5).167

The Supreme Court explained the reasons to apply Article

19(l)(f) to deprivation of property falling under Article 31(c) as
follows:

The Amendment of Article 31(2) by the Fourth Amendment of

the Constitution in 1955 had changed the position. Before the
amendment, Articles 31(1) and (2) were regarded as not mutually
exclusive in scope and content, but as dealing with the same subject
matter viz., acquisition or taking possession of property referred to in
Article 31(2).

The ruling in Kochunni case denoted a correct approach and

became the accepted norm. The Kochunni case view as a
consequence of watering down the efficacy of Article 31 by the
Fourth Amendment. Article 19(l)(f) and 31(1) both dealt with
property and, therefore, in the very nature of things, they should have
been treated as ‘supplementary’ and ‘co-ordinate’ to, and not
‘isolated’ from, each other.

A curious result of State of Bombay v. Bhanji Munji,168 ruling

was that while the freedom of the Legislature to affect enjoyment and
possession of property was regulated by Article 19(1 )(f), and that to
acquire and requisition property was controlled by Article 31(2), it
could freely deprive a person of his property under 31(2). The
Kochunni case ruling meant that the legislative power to deprive a
person of his property came to be controlled by Article 19(1) (f) and

Supra note 1 at 1277.

AIR 1955 SC 41.

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the reasonableness of the law could be adjudged under Article
19(5).169

‘Deprivation’ does affect the right to hold, acquired posses

property. The biggest advantage of Article 19(1) (f) was that
procedural norms of a law depriving a person of his property could
be adjudged for their reasonableness, and the law could be declared
void if it lacked proper procedural safeguards against the exercise of
administrative power.170

Kochunni case represents a judicial attempt to interpret

Fundamental Rights somewhat liberally, and restraints on these rights
narrowly. Article 31(1) gave practically an unlimited right to a
Legislature to deprive a person of his property, and so the court
sought to invoke Article 19(l)(f) to impose some limitations on that
power. In Gopalan case, the Supreme Court had refused to apply
Article 19 to the area of preventive detention falling under Articles
21 and 22.171

Bhanji Munji case followed this approach and excluded the

operation of Article 19(l)(f) from the area of Article 31(1). This
approach denoted a literalistic, and not a liberal approach to the
process of Constitutional interpretation. With the liberal approach
adopted in Kochunni case, the court also came to adopt a similar
approach to the relationship of Article 19 with Article 21 and 22, a
matter which has already been discussed earlier.

Kochunni case did not extend Article 19(l)(f) to the are of

acquisition and requisition covered by Article 31(2). Bhanji Munji
case was a case on acquisition of property; Kochunni case dealt with
deprivation and not with acquisition. Therefore, Kochunni case did

169
Supra note 8 at 1276.
170
Ibid.
171
Ibid.

103
not ipso facto overrule Bhanji Munji case. This petition was
reiterated in several judicial pronouncements.172

The Supreme Court sought to do away with this anomaly in the

elaborated Bank Nationalisation case. Overruling its previous
pronouncement, the court held that Article 19(l)(f) would apply to
acquisition of property falling under Article 31(2) and therefore, an
inquiry into the reasonableness of the procedural provisions of an
acquisition law was not excluded. Thus, “if a tribunal is authorised
by the Act to determine compensation of property compulsorily
acquired without having the owner, the Act would be liable to be
struck down under Article 19(l)(f). Thus, an acquisition law had to
pass the test of procedural reasonableness. The challenge to an
acquisition law under Article 19(l)(f) was limited to the question of
1 71
procedural unreasonableness.

This, no doubt, was a very justifiable, view to take. It was the

culmination of the trend initiated by the court in Kochunni case. But,
this view could not last very long. By the Twenty Fifth
Constitutional Amendment, a new Clause, Article 31(2) (A) was
added to say that nothing in Article 19(l)(f) “shall affect any law as
is referred to in Article 31(2)”. The idea was to ensure that a law
enacted to acquire any property by the Government would not be
tested with reference to Article 19(l)(f). A law of acquisition was
only to be adjudged under Article 31(2). But Article 19(l)(f) could
still be invoked in case of deprivation

We can see that various laws included in the Ninth Schedule

through various amendments, in which various Central and State laws
were inserted in the Ninth Schedule, it becomes clear that abolition
of Zamindari system was the main objective of Pt. Jawahar Lai Nehru

172
Id. at 1277.
173
Ibid.

104
i.e establishing a Socialistic pattern of society but after achieving the
said objective through Ninth Schedule (Article 3IB) the time of
deterioration of the said objective started with the inclusion of
various laws, which were not the land reforms in the Ninth Schedule,
just with the malafide motive of immunizing those laws from the
Judicial Review when they abridged the Fundamental Rights. The
Constitutional Amendments made from time to time in the Ninth
Schedule shows the change in the vision of the Parliamentarians from
the Land reforms to the politics of votes.

As 1 quote Upendra Baxi, when he was on visit to Department

of Laws, Panjab University, while answering a short question on the
Ninth Schedule he replied “the very First Amendment of the
American Constitution, but the First Amendment of the Indian
Constitution took away the heart of the Indian Constitution”. So,
with this he meant to point out the wrong use made by
Parliamentarians of the Ninth Schedule.

The Ninth Schedule when included was justified according to

situation of land holdings in the country. The Socialistic pattern was
an applauding effort of the Jawahar Lai Nehru vision of India, but
later the history shows the intension of the Parliamentarians who
have for the sake of votes have brought various amendments in the
Constitution. The laws which were included in the Ninth Schedule
were inserted through various controversial amendments, some of
them which were challenged in the court. The procedure was fine till
it was done within the spirit of the Constitution. But when the
Parliament and Executive tried to make our controlled Constitution
into uncontrolled Constitution, the debate regarding the judicial
supremacy over the Executive and the Legislature started which
continues till date. The glaring example is the Thirty Ninth
Constitutional Amendment 1975 in the time of Indira Gandhi.

105
Similarly like the Central laws, the States also passed certain laws in
the Ninth Schedule under Article 3IB, though President’s assent is
required for passing laws. The most controversial State has been the
Seventy Sixth Amendment Tamil Nadu ( Scheduled Castes and
Schedule Tribe’s Reservation Act 1969) providing 69 % reservation.
Whenever attempts are going to be made to break the balance of our
controlled Constitution into uncontrolled Constitution, troubles were
surely surface and the spirit of Constitution will suffer. Granville
Austin has regarded the inclusion of land reforms in the Ninth
Schedule as the exercise of police power by the Executive and
whenever such attempts are made to surpass the natural rights(right
to property also) the trouble in the Constitution will arise.

There was no problem with the Ninth Schedule when it was

used for implementing the Directive Principles of State Policy
keeping in mind the larger public interest. The Supreme Court upheld
the First Amendment as a progressive legislation. Immunity should
not be used to shield the invalid. The Directive Principles if
implemented in their true spirit it will further help in the realisation
of Fundamental Rights.

106