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The learned Judge observed :

"In His Holiness Kesavananda Bharati Sirpadagalavaru v. State of Kerala (hereinafter referred to as 'Bharati's case'), a majority of seven Judges held that the power conferred under Article 368 of the Constitution was not absolute. They took the view that by an amendment, the basic structure of the Constitution cannot be damaged or destroyed. And, as to what are the basic structures of the Constitution, illustrations have been given by each of these Judges. They include supremacy of the Constitution, democratic republican form of Government, secular character of the Constitution, separation of powers among the legislature, executive and judiciary, the federal character of the Constitution, Rule of Law, equality of status and of opportunity; justice, social, economic and political; unity and integrity of the nation and the dignity of the individual secured by the various provisions of the Constitution. There was consensus among these Judges that democracy is a basic structure of the Constitution. I proceed on the assumption that the law as laid down by the majority in that case should govern the decision here, although I did not share the view of the majority."

It is, therefore, clear that it has been consistently held by the Supreme Court that the press is an important ingredient of the democracy and, therefore, freedom of press conferred by Article 19(1)(a) must be considered as a basic structure of the Constitution.

It is also settled by the decisions of the Supreme Court that a legislation is open to challenge and is liable to be struck down even if it is included in the Ninth Schedule, in case, it affects the basic structure of the Constitution. It is not necessary for the Courts to strike down the entire legislation and it is permissible to strike down any provisions thereof which violate Article 19 or Article 14 of the Constitution of India. A reference can be usefully made to the decision of the Supreme Court in the case of Maharao Saheb Shri Bhim Singhji v. Union of India , where the entire Urban Land (Ceiling and Regulation) Act, 1976 was challenged as suffering from vice of Articles 14 and 31. The Act received the assent of the President in February 1976 and was enacted in furtherance of the directive principles contained in Article 39(c) and (d) respectively. The Act was also put in the Ninth Schedule by the Constitution (Fortieth Amendment) Act, 1976 conferring the benefit of protective umbrella under Article 31B. The majority held that the entire Act is valid save and except Section 27(1) in so far as it imposes restriction on transfer of any urban or urbanisable land with a building or of a portion of such building, which is within the ceiling area. The Supreme Court struck down the provisions of Section 27(1) of the Act in spite of the Act enjoying the protective umbrella of both Articles 31B and 31C. It is, therefore, obvious that in case, enactment destroys or damages the basic structure of the Constitution, then in spite of its being included in the Ninth Schedule would not oust the jurisdiction of the Courts from striking down the enactment or any provisions thereof, if it violates fundamental rights under Articles 14 and 19 of the Constitution. The petitioners are, therefore, entitled to claim that the provisions of Sections 21 and 22 of the Act are violative of Article 19 in so far as they concern the newspaper undertakings.

Before examining the contention advanced by Shri Dhanuka, it is necessary to point out that the Supreme Court did not accept the claim in Minerva Mills' case that the directive principles would have supremacy over fundamental rights in Chapter III. The majority held that the fundamental rights occupy a unique place in the lives of civilized societies and have been variously described in judgments of the Supreme Court as "transcendental"; 'inalienable' and "primordial". It was observed that the fundamental rights constitute the ark of the Constitution and to destroy the guarantees given by Part III in order to achieve the goals of Part IV is plainly to subvert the Constitution by destroying its basic structure. The Indian Constitution is founded on the bed-rock of the balance between Parts III and IV and 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. The goals set out in Part IV have to be achieved without the abrogation of the means provided for by Part III. It is in this sense that Parts III and IV together constitute the core of our Constitution and combine to form its conscience. Anything that destroys the balance between the two parts and ipso facto destroy an essential element of the basic structure of our Constitution. In view of the dictum laid down by the Supreme Court, it is not possible to accept the submission of Shri Dhanuka that Articles 39(b) and 39(c) have primacy over Article 19 in Chapter III and, therefore, the Act enacted with the object of securing the requirement of Article 39(b) cannot be declared unconstitutional or violative of Article 19.

17. The submission on behalf of the State that Articles 39(b) and 39(c) are part of basic structure and, therefore, the legislation passed with the object of securing those principles can never damage or destroy the basic structure was seriously controverted by Shri Venugopal. The learned counsel urged that the observations of Chief Justice Chandrachud in Waman Rao's case that it is impossible to conceive that any law passed for such a purpose can violate Article 14 or Article 19 are obiter or in any event were made without full argument on the point. The learned counsel gave an illustration in support of this submission that a law passed for achieving the purpose of Article 39(c) could very well violate Article 19. It was urged that the State may nationalise the newspaper industry by claiming that it is necessary to secure the operation of the economic system to prevent concentration of wealth and would claim that the Nationalisation Act was enacted for achieving the object of Article 39(c). It was submitted that such a legislation though enacted with the object of securing directive principles under Article 39(c) would directly result into destroying the freedom of press and thereby the existence of the democracy. The learned counsel wondered whether the Chief Justice would have made the observation in the case of Minerva Mills if such contingency was brought to the notice of the learned Chief Justice. There is considerable merit in the submission of the learned counsel It is not difficult to conceive a legislation which the State would enact for achieving the directive principles set out in Articles 39(b) and 39(c) and still such legislation or any provision thereof would directly have the effect of destroying the fundamental rights guaranteed under Articles 14 and 19. In my judgment, it is not possible to accept the submission urged on behalf of the State that once it is established that the Legislation was enacted for securing the object set out in Article 39(c), then it is not open for the Court to enquire as to whether such legislation damages or destroys the basic structure of the Constitution. In my judgment, the area of enquiry on this aspect is not closed though it is possible that in large number of legislations, the basic structure would be fortified if the object of the legislation is truly and bona fide for giving effect to directive principles contained in Article 39(b) and (c) of the Constitution. In my judgment, even if the legislation is enacted with the object of achieving the directive principles under Article 39(c), it should not damage or destroy the basic structure of the Constitution and then and then only the harmony between fundamental rights and directive principles would be maintained. In my judgment, applying this principle, it will have to be held that the provisions of Sections 21 and 22 of the Act in so far as they apply to the newspaper industry affect the basic structure and, therefore, the challenge to those provisions as violative of Article 19 is available in spite of insertion of the enactment in Ninth Schedule.