I.R. Coelho (Dead) by LRs v. State of Tamil Nadu and Others

The Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969 had been struck down by the Supreme Court in 1972 as not being a measure of agrarian reform, and was then inserted into the Ninth Schedule by the Constitution (Thirty-fourth Amendment) Act, 1974. A similar question arose about a provision of the West Bengal Land Holding Revenue Act, 1979. In 1999 a five-judge Bench referred to a larger Bench the question of the nature of the protection that Article 31B gives to laws added to the Ninth Schedule after 24 April 1973.

Speaking for a unanimous nine-judge Bench, Sabharwal C.J. held that the amending power under Article 368 is subject to the basic structure doctrine, and that Article 31B cannot be used to confer a blanket protection that Parliament could not confer by a direct amendment of Part III. A law inserted in the Ninth Schedule after 24 April 1973 is protected only if it does not damage or destroy the basic structure.

The test is the actual effect of the law on fundamental rights: the 'rights test' and the 'essence of the right' test, applied to the basic structure as reflected in Article 21 read with Articles 14 and 19 and the principles underlying them. A law whose infraction of those rights affects the basic structure loses the protection of the Ninth Schedule.

Where the Court has already upheld the validity of a Ninth Schedule law, it cannot be challenged again on these principles. But where a law held to violate Part III is inserted in the Ninth Schedule after 24 April 1973, the violation remains open to challenge on the ground that it destroys or damages the basic structure. Actions taken and transactions finalised under the impugned laws were not to be reopened.