Document Fragment View

Matching Fragments

8. Coming to the applicability of the judgment of the 9-Judge Bench decision of this Court in I.R. Coelho (supra), time has come for us to explain certain concepts in that judgment like egalitarian equality, over-arching principles and reading of Article 21 with Article 14. In this connection, one needs to keep in mind what is called as the "degree test". Ultimately, in applying the above three concepts enumerated herein, one has to go by the degree of abrogation as well as the degree of elevation of an ordinary principle of equality to the level of over-arching principle (s). One must keep in mind that in this case the challenge is not to the ordinary law of the land. The challenge is to the constitutional amendment. In a rigid Constitution [See Article 368] power to amend the Constitution is a derivative power, which is an aspect of the constituent power. The challenge is to the exercise of derivative power by the Parliament in the matter of inclusion of the Janmam Act (Act 24 of 1969) as Item No. 80 in the Ninth Schedule of the Constitution vide the Constitution (Thirty-fourth Amendment) Act, 1974. Since the power to amend the Constitution is a derivative power, the exercise of such power to amend the Constitution is subject to two limitations, namely, the doctrine of basic structure and lack of legislative competence. The doctrine of basic structure is brought in as a window to keep the power of judicial review intact as abrogation of such a power would result in violation of basic structure. When we speak of discrimination or arbitrary classification, the same constitutes violation of Article 14 of the Constitution. In this connection, the distinction between constitutional law and ordinary law in a rigid Constitution like ours is to be kept in mind. The said distinction proceeds on the assumption that ordinary law can be challenged on the touchstone of the Constitution. Therefore, when an ordinary law seeks to make a classification without any rational basis and without any nexus with the object sought to be achieved, such ordinary law could be challenged on the touchstone of Article 14 of the Constitution. However, when it comes to the validity of a constitutional amendment, one has to examine the validity of such amendment by asking the question as to whether such an amendment violates any over-arching principle in the Constitution. What is over-arching principle? Concepts like secularism, democracy, separation of powers, power of judicial review fall outside the scope of amendatory powers of the Parliament under Article 368. If any of these were to be deleted it would require changes to be made not only in Part III of the Constitution but also in Articles 245 and the three Lists of the Constitution resulting in the change of the very structure or framework of the Constitution. When an impugned Act creates a classification without any rational basis and having no nexus with the objects sought to be achieved, the principle of equality before law is violated undoubtedly. Such an Act can be declared to be violative of Article 14. Such a violation does not require re-writing of the Constitution. This would be a case of violation of ordinary principle of equality before law. Similarly, "egalitarian equality" is a much wider concept. It is an over-arching principle. Take the case of acquisition of forests. Forests in India are an important part of environment. They constitute national asset. In various judgments of this Court delivered by the Forest Bench of this Court in the case of T.N. Godavarman v. Union of India [Writ Petition No. 202 of 1995], it has been held that "inter-generational equity" is part of Article 21 of the Constitution. What is inter-generational equity? The present generation is answerable to the next generation by giving to the next generation a good environment. We are answerable to the next generation and if deforestation takes place rampantly then inter-generational equity would stand violated. The doctrine of sustainable development also forms part of Article 21 of the Constitution. The "precautionary principle" and the "polluter pays principle" flow from the core value in Article 21. The important point to be noted is that in this case we are concerned with vesting of forests in the State. When we talk about inter-generational equity and sustainable development, we are elevating an ordinary principle of equality to the level of over- arching principle. Equality doctrine has various facets. It is in this sense that in I.R. Coelho's case this Court has read Article 21 with Article 14. The above example indicates that when it comes to preservation of forests as well as environment vis-`-

9. Applying the above tests to the present case, 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. As stated above, 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 under Section 3 of the Janmam Act (Act 24 of 1969). Under that Act, the State gave pattas for cultivable lands though such pattas were not given for forests which vested in the State. It is also true that after Act 20 of 1972 forests which earlier stood exempted from the provisions of the Ceiling Act, 1961 got included in the Ceiling Act (Act 20 of 1972). Therefore, on and after 1.3.1972, the holder was entitled to hold the lands subject to ceiling including forests under the Ceiling Act (Act 20 of 1972) whereas forests falling in Janmam estate vested in the State. It is the case of the petitioners that by reason of the forests vesting in the State under the Janmam Act (Act 24 of 1969) "the rule of equality in law" stood violated which violation amounted to abrogation of Article 14. One of the reasons for deletion of the "right to property" from Part III of the Constitution vide the Constitution (Forty-fourth Amendment) Act, 1978 was that the economic liberties of freedom of property came in direct conflict with egalitarian values including inter-generational equity. This aspect needs to be kept in mind as in this case the substantive challenge to the Constitution (Thirty- fourth Amendment) Act, 1974 is based on the right to property in the garb of over-arching principles like separation of powers, rule of law and abrogation of the power of judicial review. The doctrine of classification under Article 14 has several facets and none of those facets have been abrogated by the Constitution (Thirty-fourth Amendment) Act, 1974. Equality is a comparative concept. A person is treated unequally only if that person is treated worse than others, and those others (the comparison group) must be those who are "similarly situated" to the complainant. The "similarly situated test" is not attracted in this case for the simple reason that the two Acts, namely, the Janmam Act (Act 24 of 1969), which seeks to abolish a tenure, is distinct and separate from the Ceiling Act (Act 20 of 1972).