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In Minerva Mills Ltd. v. Union of India, and Waman Rao v. Union of India, the Apex Court held that all the amendments to the Constitution which were made before Keshavananda Bharati's decision (24th April 1973) () and by which the 9th schedule to the constitution was amended are valid and constitutional, while amendments made on or after 24th April, 1973 by which the 9th Schedule was amended from time to time by the inclusion of various Acts and Regulations therein are open to challenge on the ground that they or any one of them are beyond the constitutional power of the Parliament since they damage the essential feature of the Constitution or its basic structure.

Admittedly on 10-8-1975 by virtue of the 39the Constitution Amendment the FERA is included in the Ninth Schedule of the Constitution and, therefore applying the ratio of the decisions of the Supreme Court referred above it has to be held that from 10-8-1975 the provisions of the FERA including S. 41 cannot be challenged on the ground that it takes away or abridges any of the rights conferred by the provisions of Part III of the Constitution. Further the petitioner in this case has not challenged the 39th Constitution Amendment on the ground that the said amendment damaged the essential feature of the Constitution or its basic structure. Only when the petitioner successfully challenges the Constitution Amendment, he can get the FERA out of the protective wing of Art. 31B of the Constitution and he can proceed with the challenge against the Constitutional validity of S. 41 of the FERA. Even during arguments, learned counsel for the petitioner has not shown how the 39th Constitution Amendment is beyond the Constitutional power of the Parliament and how it damaged the essential feature of the Constitution or its basic structure, and how the 30th Amendment is invalid. In these circumstances once when the FERA is brought under the protective umbrella of Art. 31B of the Constitution by inserting it in the Ninth Schedule by virtue of the Constitution 39th Amendment any provisions of the FERA including S. 41 is not open to challenge on the ground that it violates any of the fundamental rights guaranteed in part III of the Constitution.