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"148. The power to amend the Constitution is subject to the aforesaid axiom. It is, thus, no more plenary in the absolute sense of the term. Prior to Kesavananda Bharati the axiom was not there. Fictional validation based on the power of immunity exercised by Parliament under Article 368 is not compatible with the basic structure doctrine and, therefore, the laws that are included in the Ninth Schedule have to be examined individually for determining whether the constitutional

13 of 17 amendments by which they are put in the Ninth Schedule damage or destroy the basic structure of the Constitution. This Court being bound by all the provisions of the Constitution and also by the basic structure doctrine has necessarily to scrutinise the Ninth Schedule laws. It has to examine the terms of the statute, the nature of the rights involved, etc. to determine whether in effect and substance the statute violates the essential features of the Constitution. For so doing, it has to first find whether the Ninth Schedule law is violative of Part III. If on such examination, the answer is in the affirmative, the further examination to be undertaken is whether the violation found is destructive of the basic structure doctrine. If on such further examination the answer is again in affirmative, the result would be invalidation of the Ninth Schedule law. Therefore, first the violation of rights of Part III is required to be determined, then its impact examined and if it shows that in effect and substance, it destroys the basic structure of the Constitution, the consequence of invalidation has to follow. Every time such amendment is challenged, to hark back to Kesavananda Bharati upholding the validity of Article 31-B is a surest means of a drastic erosion of the fundamental rights conferred by Part III. (Emphasis supplied). Hence, in essence, the judgment of Supreme Court in I.R. Coelho's case (supra), though has brought the 'subject matter' of the Ninth Schedule within the purview of judicial review, however, has not included the 'test' of violation of fundamental rights, per se, as the criteria for pronouncing upon the invalidity of the subject matter. Therefore, the immunity enjoyed by Ninth Schedule subject matter; from being declared as void on the ground of violation of fundamental rights, in itself, still remains in place, although the possible mischief which could be played by this immunity has been sought to be reduced by devising an alternate test for exercising constitutional judicial supervision.