CONTENTS

Acknowledgement i - ii
List of Cases Hi - vi

CHAPTER I : INTRODUCTION 1 - 39
1.1 Doctrine of Separation of Powers 4
1.2 Rule of Law 6
1.3 Judicial Review 8
1.3.1 Judicial Review of Legislative action 10
1.3.1 Judicial Review of Constitutional 11
Amendments
1.4 Provisions for amendment of the Constitution 13
1.4.1 Ordinary Legislative Power 15
1.4.1 Constituent Power 15
1.5 Reasons for construing Parliaments amending 16
power to be limited
1.6 The Social Revolution and the First 17
Amendment
1.7 Enactment of Ninth Schedule Conflict 20
between the Judiciary and the Legislature
1.8 Amending the Right to property Article 21
1.9 Judicial Response in Chronological Order 23
1.10 The Contentions in I.R Coelho’s Case 29
1.11 Respondents Submission 29
1.12 Reasoning 29
1.13 Recent Developments 31
1.14 Objective of Study 34
1.15 Research Hypothesis 36
1.16 Research Methodology 37
 1.17 Plan of Study 38

CHAPTER II PARLIAMENT’S POWER TO AMEND THE 40 - 106

CONSTITUTION
2.1 Emergence of Conflict between Fundamental 41
Rights and Directive Principles
2.2 The Beginning of the Constitutional 43
Amendments in 1951 to give effect to Directive
Principles
2.2.1 The First Constitutional Amendment 44
Act 1951
2.2.2 The Fourth Constitutional Amendment 53
Act 1955
2.2.3 The Seventeenth Constitutional 54
Amendment Act 1964
2.2.4 The Twenty Ninth Constitutional 55
Amendment Act, 1972
2.2.5 The Thirty Fourth Constitutional 55
Amendment Act, 1974
2.2.6 The Thirty Ninth Constitutional 56
Amendment Act, 1975
2.2.7 The Fortieth Constitutional 58
Amendment Act, 1976
2.2.8 The Forty-Seventh Constitutional 59
Amendment Act, 1984
2.2.9 The Sixty-Sixth Constitutional 59
Amendment Act, 1990

2.2.10 The Seventy-Seventh Constitutional 59

Amendment Act, 1994
2.2.11 The Seventy-Eight Constitutional 60
Amendment Act, 1994
2.3 Procedure for the Amendment of the 60
Constitution
2.3.1 Issue of Amendment of the Part III or 61
any other part of the Constitution
 2.3.2 Effects of inclusion of an Act in the 63
Ninth Schedule
2.3.3 Amendments to Protected Acts 65
2.3.4 Constitutional Amendments in the 65
Ninth Schedule: Classification of
Laws
2.4 Constitutional Amendments which were 67
challenged
2.4.1 The First Amendment, 1951 67
2.4.2 Seventeenth Amendment 1964 was 68
challenged
2.4.3 Twenty Fourth (1971), Twenty Fifth 70
(1971) and Twenty Ninth (1972)
Constitutional Amendments were
challenged
2.4.4 Thirty Ninth Amendment, 1975 71
2.4.5 Fortieth amendment Act, 1976 72
2.4.6 Thirty Fourth Constitution 73
Amendment Act 1974 and Sixty Sixth
Amendment Act, 1990
2.4.7 Seventy-Sixth Constitution 73
Amendment Act, 1994
2.5 Procedure Adopted 74
2.5.1 Legislative procedure for Laws passed 75
by State Legislature in Ninth Schedule
2.5.2 Distribution of Legislative Powers 75
2.5.3 The Three Lists 76
2.5.4 Central Control Over State Legislation 78
2.6 Justification for Inclusion 87
2.6.1 Objectives of the Ninth Schedule 88
2.7 Relationship between Directive Principles and 90
Fundamental Rights
2.8 Constitutional Amendments and Judicial 92
Review of Ninth Schedule
2.8.1 Pre Keshavanand Bharti Position 93
 2.8.2 Right to Property: Pre-1978 Position 94
2.8.3 Eminent Domain 97
2.8.4 Article 31 98
2.8.5 Law Enacted by a State 99
2.8.6 Interrelation of Article 31, 14 and 100
Article 19(l)(f)

CHAPTER III : POWER OF JUDICIAL REVIEW UNDER THE 107 - 178

CONSTITUTION OF INDIA
3.1 Constitutionalism 108
3.2 Concept of Judicial Review 110
3.2.1 Judicial Review of Laws inconsistent 111
with Fundamental Rights: Article 13
3.2.1.1 Meaning of Law and State 113
Under Article 13
3.2.1.2 Whether Judiciary 118
included in the “State”
under Article 12?
3.2.1.3 Doctrine of Ultra-Vires 121
3.2.1.4 Concept of “Law” under 122
Article 13
3.3 Unconstitutionality of a Statute 130
3.3.1 Doctrine of Eclipse 132
3.3.2 Doctrine of Severability 134
3.3.3 Can a person waive any of his 136
fundamental rights?
3.3.4 Judicial Review makes the 139
Constitution Legally binding
3.4 Right to Constitutional Remedies: Article 32 141
3.4.1 Enforcement of Fundamental Rights 141
3.4.2 Differences between the United States 145
and the Indian Constitution
3.4.3 Rights to Constitutional Remedies 147
 3.4.4 Enforcement of Judicial Review 148
through Article 32
3.4.5 Special Features of the Jurisdiction of 149
the Supreme Court under Article 32
3.4.6 Prerogative Writs 150
3.4.7 Difference between the jurisdiction of 151
the Supreme Court and the High
Courts to issue Writs
3.5 The Supreme Court as the guardian Of 152
Fundamental Rights
3.5.1 The Supreme Court as the guardian Of 154
Fundamental Rights
3.5.2 Article 226 and 227 155
3.5.3 Relationship Between Article 32 and 155
226
3.6 Public Interest Litigation 165
3.7 Judicial review makes Constitution Dynamic 176

CHAPTER IV ANALYSIS OF THE NINTH SCHEDULE 179-242

4.1 Aims and objectives of Constitutional 181
amendments made to the Ninth Schedule
4.1.1 First Amendment Act 1951: challenge 181
to Fundamental Right to Property
4.1.2 Fourth Amendment Act 1955: 183
Restrictions on Property Rights
4.1.3 Seventeenth Amendment Act 1964: 185
Acquisition of estates under 31A
4.1.4 Twenty-Fourth Amendment Act 1971: 185
Parliament can Amend Part III
4.1.5 Twenty fifth Amendment Act 1972: 188
Article 31C -No Law void on ground
of Part III
4.1.6 Twenty Ninth Amendment Act 1972: 190
Save the Kerala Land Reforms which
were declared unconstitutional
 4.1.7 Thirty Fourth Amendment Act 1974: 191
Revision of Ceiling Laws
4.1.8 Thirty Ninth Amendment Act 1975: 192
Restriction on Judicial scrutiny of the
Election of Prime Minister
4.1.9 Fortieth Amendment Act 1976: Laws 194
for Economic Zone and vest mineral
wealth with Union of India
4.1.10 Forty-Fourth Amendment Act 1979: 195
After Emergency
4.1.11 Fourty Seventh Amendment Act 1984: 199
State Land Reform Laws added in
Ninth Schedule
4.1.12 Sixty-Sixth Amendment Act 1990 200
4.1.13 Seventy-Sixth Amendent Act 1994: 201
Tamil Nadu 69 percent Reservation
4.1.14 Seventy-Eight Amendment Act 1995 204
4.2 Classification of various Acts included in the 205
Ninth Schedule
4.2.1 Acts related to Land Reforms 205
4.2.2 Acts related to Land Tenancy 215
4.2.3 Acts related to Land Acquisition 221
4.2.4 Acts related to Fixation of ceiling on 222
land
4.2.5 Industries, Mines, Factories Acts 230
4.2.6 Acts related to Currency 231
4.2.7 Acts related to SCs/STs 232
4.2.8 Miscellaneous Acts 233
4.2.9 Acts which were repealed from Ninth 233
Schedule
4.3 List of Amendments made in the Ninth 234
Schedule

4.4 Specific Acts which were challenged in the 234

Ninth Schedule
4.4.1 Shankari Prasad v. Union of India 235
 4.4.2 Sajjan Singh v. State of Rajasthan 235
4.4.3 I.C Golaknath v. State of Punjab 235
4.4.4 Kesavanand Bharti v. State Of Kerela 236
4.4.5 Indira Gandhi v. Union of India 236
4.4.6 Minerva Mills v. Union of India 237
4.4.7 Waman Rao V. Union of India 238
4.4.8 I.R Coelho V. State of Tamil Nadu 239

CHAPTER V : SCOPE OF JUDICIAL REVIEW TO THE NINTH 243 - 303

SCHEDULE
5.1 Constitution of the Court by the Parliament 245
5.2 Judicial Review and Due Process 246
5.2.1 Judicial Review in America 248
5.2.2 Judicial Review and the claims 249
involving the Property
5.2.3 Social and Economic rights relate to 250
democracy
5.2.3.1 Does democracy require 250
private property?
5.2.3.2 Is democracy compatible 251
with economic inequality?
5.2.4 Constitutional Theory and 252
Justification
5.2.5 Constitutional Legitimacy 254
5.3 State of Judiciary at the Time of Framing of 255
Indian Constitution
5.4 Extent of Judicial Review in the Context of 256
Amendments to the Ninth Schedule
5.5 Analysis of Article 13 258

5.6 Grounds of Challenge of Laws included in the 259

Ninth Schedule
5.6.1 Various major Challenges made to 261
Ninth Schedule
 5.6.2 Curtailing the Fundamental Right to 261
property in 1951
5.6.3 Again amendment of Fundamental 263
Right to property in 1964
5.6.4 Amendment of Article 13 and 368 in 269
1971
5.6.5 Amendment of Article 329 relating to 278
the election of Prime Minister Indira
Gandhi
5.6.6 Later Developments 281
5.6.7 Fundamental Rights: Test 291
Constitutionality
5.7 Relationship between Directive Principles and 292
Fundamental Rights: possibility of Conflict and
issue of Superiority

CHAPTER VI : ANALYSIS OF THE IMPORTANT CASES 304-390

DECIDED BY THE SUPREME COURT ON THE
AMENDMENT OF THE NINTH SCHEDULE
6.1 Fundamental Rights: Social Reform versus 308
“Due Process” at the Time of framing of the
Constitution
6.1.1 Due Process and Property 310
6.1.2 Scope of Amendment of Article 31 314
Arised
6.2 The Pre-Kesavananda Position before 1973 315
6.2.1 Amending power and basic features 315
6.3 Kesavananda Bharti case: Emergence of Basic 317
structure Doctrine
6.3.1 Waman Rao v. Union of India 341
6.3.2 Minerva Mills v. Union of India 357
6.3.3 I.R Coelho v. Union of India 362
CHAPTER VII : POSITION OF THE PARLIAMENT, THE 391 - 463
EXECUTIVE AND THE SUPREME COURT
7.1 Democratic Polity and the Constitution 394
 7.1.1 Constitutionalism 394
7.2 Beginning of Constitutional Amendments: The 396
First Amendment, 1951
7.2.1 Right of Parliament to Amend 396
7.2.2 Constitutional Amendment regarding 398
the Right to Property
7.2.3 Basic structure outside the Right to 399
Property
7.2.4 The power of Constitutional 402
Amendments
7.3 Provision for Constitutional Amendment under 406
Article 368
7.3.1 United States Constitution 408
7.3.2 Canada and Australia 409
7.3.3 Formal Constitutional Amendment in 411
India
7.4 Procedure for Amendment of the Constitution 415
Article 368
7.4.1 Analysis and Comment 416
7.4.2 Doctrine of Basic structure 419
7.4.3 Inclusion with Ninth Schedule 424
7.4.4 Inclusion with Ninth Schedule 424 425
7.5 Supremacy of the Constitution 429
7.5.1 Post-Kesavananda Bharti: Suppression 429
of Constitution
7.5.2 The Indira Gandhi’s Election 430
7.5.3 Forty - Second Amendment, 1973 431
7.5.4 Ray of Hope: General Elections, 1977 432
7.5.5 Judiciary: Guardian of Constitution 433
7.5.6 Judicial Activism 435
7.5.7 Is this Judicial Interference? 436
7.5.8 Prospective overruling and the Basic 439
structure
 7.5.9 Legitimacy of Judicial Activism 440
7.6 Recent Controversies 442

CHAPTER VIII CONCLUSION AND SUGGESTIONS 464 - 495

BIBLIOGRAPHY 496 510

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