2010 (9) TMI 1232 - SC - Indian Laws

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

Summary

Issues Involved:
1. Scope of immunity to laws inserted in the Ninth Schedule of the Constitution read with Article 31B.
2. Legislative competence of the Tamil Nadu State Legislature to enact the Janmam Act (Act 24 of 1969).
3. Applicability of the Janmam Act (Act 24 of 1969) in light of the Ceiling Act (Act 20 of 1972).

Detailed Analysis:

Scope of Immunity to Laws Inserted in the Ninth Schedule Read with Article 31B:
The petitioner argued that the inclusion of the Janmam Act in the Ninth Schedule by the Constitution (Thirty-fourth Amendment) Act, 1974, amounted to a negation of judicial review, violating the basic structure of the Constitution. The petitioner emphasized the principles of "separation of powers" and "rule of law" as basic features of the Constitution. The Supreme Court found no merit in these submissions, emphasizing that the challenge was essentially in the context of the "right to property," which ceased to be a fundamental right under Article 19(1)(f) after the Constitution (Forty-fourth Amendment) Act, 1978. The Court held that the Parliament's act of inserting the Janmam Act into the Ninth Schedule was a way of implementing the decision in Balmadies case, not obliterating it. The Court also explained that the doctrine of basic structure serves as a touchstone for judging the validity of constitutional amendments, and in this case, the inclusion of the Janmam Act did not violate the basic structure.

Legislative Competence of the Tamil Nadu State Legislature to Enact the Janmam Act (Act 24 of 1969):
The petitioner argued that the Tamil Nadu Legislature lacked the legislative competence to enact the Janmam Act, particularly regarding the transfer of forests without a public purpose. The Court dismissed this argument, stating that the legislative competence was not doubted in the Balmadies case and that the requirement of public purpose and compensation were conditions under Article 31(2) of the Constitution, not legislative requirements. The Court further noted that the Janmam Act was a measure of land reform and was aimed at abolishing feudal tenure, which falls under Entry 18, List II of the Constitution. Therefore, the Tamil Nadu Legislature had the competence to enact the Janmam Act.

Applicability of the Janmam Act (Act 24 of 1969) in Light of the Ceiling Act (Act 20 of 1972):
The petitioner contended that the Janmam Act could not be applied after the initiation of proceedings under the Ceiling Act. The Court found no merit in this argument, stating that the scope and objectives of the two Acts were different. The Janmam Act aimed at acquiring janmis' rights and introducing ryotwari settlement, whereas the Ceiling Act aimed at fixing landholding ceilings and distributing excess lands. The Court noted that before the ceiling could be determined under the Ceiling Act, the Janmam Act came into force, and therefore, the two Acts operated in different spheres.

Conclusion:
The Supreme Court dismissed the petitions, holding that the inclusion of the Janmam Act in the Ninth Schedule did not violate the basic structure of the Constitution. The Tamil Nadu Legislature had the legislative competence to enact the Janmam Act, and the Janmam Act could be applied despite the proceedings under the Ceiling Act. The Court emphasized that the overarching principles of equality and rule of law were not violated by the inclusion of the Janmam Act in the Ninth Schedule.