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The Hon’ble Supreme Court considered the fundamental question that whether on and after 24th April, 1973, when basic structure doctrine was propounded, it is permissible for the Parliament under Article 31B to immunize legislation from fundamental rights by inserting them into the Ninth Schedule and, if so, what is its effect on the power of judicial review of the Court.
The Hon’ble Supreme Court held that;
- A law that abrogates or abridges rights guaranteed by Part III of the constitution may violate the basic structure doctrine or may not. If former is the consequence of law, whether by amendment of any Article of Part III or by an insertion in the Ninth Schedule, such law will have to be invalidated in exercise of judicial review power of the court. The validity of invalidity would be tested on the principles laid down in this judgment.
- The majority judgment in Kesavanand Bharati’s case read with Indira Gandhi’s Case, requires the validity of new constitutional amendment to be judged on its own merits. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account for determining whether or not it destroy basic structure. The impact test would determine the validity of the challenge.
- All amendment to the constitution made on or after 24th April, 1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the constitution as reflected in Article 21 read with Article 14, Article 19, and the principle underlying them. To put it differently even though the act is put in Ninth Schedule by the Constitutional Amendment , its provision would be open to attack on the ground that they destroy or damage the basic structure if fundamental right/s taken away or abrogated pertains or pertain to the basic structure.
- Justification for covering protection, not blanket protection, on the law included in ninth Schedule by Constitutional Amendments shall be matter of constitutional adjudication by examining the nature and extent of infraction of the fundamental right by s statute, sought to be constitutionally protected, and touchstone of the basic structure doctrine as reflected in Article 21 read with Article 14 and Article 19 by application of the “right test” and the “essence of the right” test taking the synoptic view of the Articles in Part III as held in Indira Gandhi’s Case. Applying the above test to the Ninth Schedule laws, if the infraction affects the basic structure then such a law/s will not get protection of the Ninth Schedule.
This was the answer of the Hon’ble Court to the question referred, whether the Parliament can immunize legislation from the fundamental rights by inserting them into the grand Ninth Schedule and if so, what is its effect on the power of judicial review of the court.
If the validity of any Ninth Schedule law has already been upheld by the Hon’ble Court, it would not be open to challenge such law again on the principles declared under the I.R. Coelho. However, if the law held to be violative of any rights in Part II is subsequently incorporated in the Ninth Schedule after 23 April, 1973, such a violation/infraction shall be open to challenge on the ground that it destroys or damages the basic structure as indicated in Article 21 read with Article 14 and Article 19 and the principles underlying thereunder.
 I.R. Coelho (dead) by LRs v. State of T.N. (2007) 2 SCC 1