Amendment of fundamental rights. The question whether fundamental rights can be amended under Article 368 came for consideration of the Supreme Court in Shankari Prasad v. Union of India[footnoteRef:2]. In that case the validity of the Constitution (1st Amendment) Act, 1951, which inserted inter alia, Articles 31-A and 31-B of the Constitution was challenged. The Amendment was challenged on the ground that it purported to take away or abridge the rights conferred by Part III which fell within the prohibition of Article 13 (2) and hence was void. It was argued that the State in Article 12 included Parliament and the world Law in article 13 (2), therefore, must include constitution amendment. The Supreme Court, however, rejected the above argument and held that the power to amend the Constitution including the fundamental rights is contained in Article 368, and that the word Law in Article 13 (8) includes only an ordinary law made in exercise of the Legislative powers and does not, include constitutional amendment which is made in exercise of constituent power. Therefore, a constitutional amendment will be valid even if it abridges or takes any of the fundamental rights. [2: AIR 1951 SC 455 pg 458]

In Sajjan Singh v. State of Rajasthan[footnoteRef:3], the validity of the Constitution (17th Amendment) Act, 1964 was challenged. The Supreme Court approved the majority judgement given in Shankari Prasads case and held that the words amendment of the Constitution means [3: 2. AIR 1965 SC 845]

amendment of all the provisions of the Constitution. Gajendragadkar, C.J. said that if the Constitution-makers intended to exclude the fundamental rights from the scope of the amending power they would have made a clear provisioning that behalf.In Golak Nath v. State of Punjab[footnoteRef:4]. the validity of the Constitution (17th Amendment) Act, 1964, which inserted certain State Acts in Ninth Schedule was again challenged. The Supreme Court by a majority of 6 to 5 prospectively overruled its earlier decision in Shankari Prasads and Sajjan Singh cases and held that Parliament had no power from the date of this decision to amend Part III of the Constitution so as to take away or abridge the fundamental rights Subba Rao. C.J. supported his judgment on the following reasoning: [4: 3. AIR 1971 SC 1643]

(1)The Chief Justice rejected the argument that power to amend the Constitution was a sovereign power and the said power was supreme to the legislative power and that it did not permit any implied limitations and that amendments made in exercise of that power involve political questions and that therefore they were outside of judicial review. (2)The power of Parliament to amend the Constitution is derived from Article 245, read with Entry 97 of List 1 of the Constitution and not from Art. 368. Article 368 lays down merely the procedure for amendment of the Constitution. Amendment is a legislative process. (3)An amendment is a law within the meaning of Article 13 (2) and therefore, if it, violates any of the fundamental rights it may be declared void. The word Law in Article 13 (2) includes every kind of law, statutory as well as constitutional law and hence a constitutional amendment which contravened Article 13 (2) will be declared void.

The Chief Justice said that the fundamental rights are assigned transcendental place under our Constitution and, therefore, they are kept beyond the reach of Parliament. The Chief Justice applied the doctrine of Prospective Overruling and held that this decision will have only prospective operation and, therefore, the 1st, 4th and 17th Amendment will continue to be valid. It means that all cases decided before the Golak Naths case shall remain valid. The minority, however, held that the world law in Article 13 (2) referred to only ordinary law and not a constitutional amendment and hence Shankari Prasads and Sajjan Singh cases were rightly decided. According to them, Article 368 deals with not only the procedure of amending the Constitution but also contains the power to amend the Constitution.

24th Amendment Act, 1971 In order to remove difficulties created by the decision of Supreme Court in Golak Naths case Parliament enacted the (24th Amendment) Act. The amendment has made the following amendments: (1) It has added a new clause (4) to article 13 which provides that nothing in this Article shall apply to any amendment of this Constitution made under Article 368. (2) It substituted a new marginal heading to Article 368 in place of the old heading Procedure for amendment of the Constitution. The new heading is Power of Parliament to amend the Constitution and Procedure there for. (3) It inserted a new sub-section (1) in Article 368 which provides that notwithstanding anything in this Constitution, Parliament may, in exercise of its constituent power amend by way of addition, variation, or repeal any provision of this Constitution in accordance with the procedure laid down in this Article (4) It substituted the words, It shall be presented to the President who shall give his assent to the Bill and thereupon for the words It shall be presented to the President for his assent and upon such assent being given to the Bill. Thus it makes it obligatory for the President to give his assent to the Bill amending the Constitution. (5) It has added a new clause (3) to Article 368 which provides that nothing in Article 13 shall apply to any amendment made under this Article. Thus the 24th Amendment not only restored the amending power of the Parliament but also extended its scope by adding the words to amend by way of the addition or variation or repeal any provision of this Constitution in accordance with the procedure laid down in this Article.

Theory of Basic Structure: A limitation on Amending Power The validity of the Constitution (24th Amendment) Act, 1971, was challenged in Keshvananda Bharati v. State of Kerala[footnoteRef:5], popularly known as the Fundamental Rights case the petitioners had challenged the validity of the Kerala Land Reforms Act 1963. But during the pendency of the petition the Kerala Act was amended in 1971 and was placed in the Ninth Scheduled by the 29th Amendment Act. The petitioner was permitted to challenge the validity of Twenty Fourth. Twenty Fifty and Twenty Ninth Amendment to the Constitution also. The question involved was as to what was the extent of the amending power conferred by Article 368 of the Constitution? On behalf of the Union of India it was claimed that amending power was unlimited and short of repeal of the Constitution any change could be effected. On the other hand, the petitioner constituted to hear the case. Out of the 13 judges (11 judges) delivered separate judgments. [5: 4. AIR 1973 SC 1461]

The Court by majority overruled the Golak Naths case which denied Parliament the power to amend fundamental rights of citizens. The majority held that Article 368 even before the 24th Amendment contained the power as well as the procedure of amendment. The 24th amendment merely made explicit what was implicit in the unlamented Article 368A. The 24th Amendment does not enlarge the amending power of the Parliament. The 24th Amendment is declaratory in nature. It only declares the true legal position as it was before that amendment hence it is valid. The Court held that under Art. 368 Parliament is not empowered to amend the basic structure or framework of the Constitution. It held that the first part of the twenty-fifth Amendment Act is valid, but held that the second part, namely, no such law, containing the declaration that it is for giving effect so such policy shall be called in question in any Court on the ground that it does not give effect to such policy: is invalid. As regards the scope of amending power contained in Article 368, six judges (Sikri, A.J. Shelat, Grover, Hegde, Reddy and Mukherjee, JJ) held that there are inherent or implied limitations on the amending power of Parliament and Article 368 does not confer power to amend the Constitution so as to damage or destroy the essential elements or basic features of the Constitution, Khanna, J., held that though there is implied limitation on the amending power but the power to amend does not include the power to abrogate the Constitution. The world amendment, he said postulated that the old Constitution must survive without loss of indemnity and it must be retained through in the amended form and, therefore, the power does not include the power to destroy or abrogate the basic structure or framework of the Constitution. The remaining six judges (A.N. Ray, Chandrachud, Mathew, Beg, Dwivedi and Palekar, JJ) held that there are no limitations, express or implied on the amending power. Thus the Court by majority of 7 to 6 held that the Parliament has wide powers of amending the Constitution and it extends to all the Articles, but the amending power is not unlimited and does not include the power to destroy or abrogate the basic feature or framework of the Constitution. There are implied limitations on the power of amendment under Article 368. Within these limits Parliament can amend every article of the Constitution. Whether there are implied limitations on the amending power or not would depend upon the interpretation of the word amendment.Delivering the leading majority judgment Siri, C.J., said : in the Constitution the world, amendment or amend has been used in-various places to mean different things. In some articles, the word amendment in the context, has a wide meaning and another context it has a narrow meaning. In view of the great variation of the phrases used al through the Constitution it follows that the word amendment must derive its colour from Article 368 and the rest of the provisions of the Constitution. Reading the Preamble, the fundamental importance of the freedom of the individual, its inalienability and the importance of the economic, social and political justice mentioned in the Preamble, the importance of directive principles, the non-inclusion in Article 368 of provisions like Articles 52, 53 and various other provisions, an irresistible conclusion emerges that it was not the intention to use the world amendment in the widest sense. It was the common understanding that the fundamental rights would remain in substance as they are and they would not be amended out of existence. It seems also to have been a common understanding that the fundamental rights would remain in substance as they are and they would not be amended out of existence. It seems also to have been a common understanding that the fundamental features of the Constitution, namely, secularism, democracy and the freedom of the individual would always subsist in the welfare State. In view of the above reasons, a necessary implication arises on the power of Parliament that the expression amendment of this Constitution has consequently a limited meaning in our Constitution and not the meaning suggested by the Attorney-General. The expression amendment of this Constitution in Article 368 means any addition or change in any of the provisions of the Constitution within the braod contours of the Preamble and the Constitution to carry out the objectives in the Preamble and the Directive Principle applied to fundamental rights, it would mean that while fundamental rights, cannot be abrogated reasonable abridgements of fundamental rights can be effected in the public interest. If this meaning is given, the Chief justice said it would enable parliament to adjust fundamental rights in order to secure what the Directive Principles direct to be accomplished, while maintaining the freedom and dignity of every citizen. On behalf of the Union and the States, it was urged that the conceptions of basic elements and fundamental features are illusive conceptions and therefore it would be very unsatisfactory test for the parliament to comprehend and follow. The Chief Justice said, that the concept of amendment within the contours of the Preamble and of Constitution cannot be said to be a vague and unsatisfactory idea which Parliamentarians and the public would not be able to understand. He said that the argument that because something cannot be cut and dried or nicely weighted or measured and therefore does not exist is fallacious. There are many concepts of law which are not capable of exact definition, but it does not mean that it does not exist. It was also argued that every provision of the Constitution. Is essential, otherwise it would not have been put in the Constitution. The Chief Justice further said, But this does not place every provisions of the Constitution in the same position. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same.

What is the basic structure? What then are the essentials of the basic structure of the Constitution? Although the Judges enumerated certain essentials of the basic structure of the Constitution, but they also made it clear that they were only illustrative and not exhaustive. They will be determined on the basis of the facts in each case. In M. Nagraj v. Union of India[footnoteRef:6], 5 Judge Bench of the Supreme Court has explained the basic feature theory again in details as follows. Basic structure are systematic principles underlying and connecting provisions of the Constitution. They give coherence and durability to Constitution. These principles are part of constitutional law even if not expressly stated. This doctrine has essentially developed from the German Constitution. It not based on literal words. These principles are part of constitutional law even if not expressly stated. Theory of basic structure is based on the concept of Constitution identity. The main object behind the theory is continuity and within that continuity of identity. [6: 5. AIR 2007 SC 71]

In Keshwananda Bharti, the Judges has enumerated certain essentials of basic structure as follows: According to Sikri, C.J., the basic structure of the Constitution consists of the following features : (1) Supremacy of the Constitution, (2) Republican and democratic forms of the Government, (3) secular character of the Constitution, (4) Separation of powers between the Legislature, the executive and the Judiciary, (5) Federal character of the Constitution. According to Shelat and Grover, JJ., the following are the illustrations of the basic structure of the Constitution, i.e. (1) Supremacy of the Constitution, (2) Republican and Democratic form of Government an sovereignty of the country (3) Secular and federal character of the Constitution, (4) Demarcation of power between the Legislature, the Executive and the Judiciary, (5) Dignity of the individual secured by various freedoms and basic rights in Part III and the mandate to build a welfare State contained by Part V, (6) Unity and integrity of the nation. According to Hegde and Mukherjee, JJ., the following are the examples of the basic structure: (1) Sovereignty of India, (2) The democratic character of our policy,(3) The Unity of the country, (4) Essential features of individual freedoms secured to the citizens, (5) Mandate to build a welfare State. However, they said that these limitations are only illustrative and not exhaustive. According to Mr. Jagmohan Reddy, J., (1) a sovereign democratic republic, and (2) parliament democracy certainly constitute the basic structure. Khanna, J., concurred with the majority decision but delivered a separate judgment. He said: The amendment of the Constitution necessarily contemplates that the Constitution has not to be abrogated, (Indeed, this much has been conceded by the Attorney-General). The word amendment postulates that the old Constitution survives without loss of its identity despite the change and continues even though it has been subject to alterations. As a result of the amendment, the old Constitution cannot be destroyed, and done away with, it is retained though in the amended form. The words amendment of the Constitution with all their wide sweep and amplitude cannot have the effect of destroying and abrogating the basic structure or framework of the Constitution. It would not be competent under the garb of amendment, for instance, to change the democratic government into dictatorship of hereditary monarchy nor it would be permissible to abolish the Lok Sabha and the Rajya Sabha. The secular character of the Stat according to which the State shall be discriminated against any citizen on the ground of religion only cannot likewise be done away with. Provision regarding the amendment of the Constitution does not furnish a pretence for subverting the structure of the Constitution nor can Article 368 be so construed as to embody the death wish of the Constitution or provide sanction for what may perhaps be called its lawful hara-kiri. Such subversion or destruction cannot be described to be amendment of Constitution as contemplated by Article 368.His Lordship further held that the power of amendment under Art. 368 does not include the power to abrogate the Constitution nor does it include the power to alter the basic structure of framework of the Constitution. Subject to the retention of the basic The power to amend is wide and unlimited. The power to amend means the power to add, alter or repeal any provisions of Constitution. There can be or is no distinction between essential and unessential feature of the Constitution to arise any impediment to amendment of essential features. Parliament in exercise of constituent power can amend any provision of the Constitution. Under Article 368, the power to amend can also be increased. He accepted that an amendment does not mean mere abrogation or wholesale repeal of Constitution. An amendment must have an organic mechanism providing the Constitution organization and system for State.According to Mr. Justice Beg. though the word amendment did not include the power to completely abrogating the Constitution at one stroke, it was, however, wide enough to erode the Constitution completely step by step so as to repalce it by another Constitution. According to Mr. Justice Dwivedi, the word amendment in Article 368 was broad enough to authorize the varying, repealing or abrogating each and every provision in the Constitution including Part III. In Indira Nehru Gandhi v. Raj Narayan[footnoteRef:7], the Supreme Court applied the theory of basic structure and struck down Cl. (4) of Article 329-A, which was inserted by the Constitution (39th Amendment) Act. 1975 on the ground that it was beyond the amending power of Parliament as it destroyed the basic feature of the Constitution. The amendment was made to validate with retrospective effect the election of the then Prime Ministers which was set aside by the Allahabad High Court, Khanna, J., struck down the clause on the ground that it violated the free and fair electiosn which was an essential postulate of democracy which in turn was a part of the basic structure of the Constitution; Chandrachud, J. struck down Cls. (4) and (5) as unconstitutional on the ground that they were outright negation of the right of equality conferred by Art. 14, a right which is a basic postulate of our Constitution. He held that these provisions were arbitrary and were calculated to damage or destroy the Rule of law. The Supreme Court has thus added the following features as basic features of the Constitution to the list of basic features laid down in the Keshavanada Bhartis case. [7: 6. AIR 1975 SC 2299]

1. Rule of law. 2. Judicial Review 3. Democracy, which implies free and fair Election It has been held that the Jurisdiction of the Supreme Court under Article 32, is the basic feature of the Constitution.In Minerva Mills Ltd v. Union of India[footnoteRef:8]. Supreme Court has held that the following are the basic features of the Constitution. [8: 7. AIR 1980 SC 1789]

1. limited power of Parliament to amend the Constitution.2. harmony and balance between fundamental rights and directive principles3. fundamental rights in certain cases; 4. power of judicial review in certain cases Independence of judiciary is part of the basic structure. The doctrine of basic structure has been vehemently criticized. It has been said that the Court has not precisely defined as to what are the essential features of the basic structure and if this doctrine is accepted every amendment power of the Parliament cannot be subjected to this vague and uncertain doctrine. It is, however, submitted that the criticism of the doctrine of basic structure cannot be justified on the ground that it lays down a vague and uncertain test. The basic structure of the Constitution is not a vague concept. The fact that a complete list of the essential elements constituting the basic structure cannot be enumerated is no ground for denying that these do not exist. There are many concepts of law which cannot still be defined precisely, but they do exists and play very important part in our law. Quoting Lord Reid in Ridge v. Baldvin[footnoteRef:9] in Keshavananda Bharatis case. Sikri, C.J. , said, in modern times opinions have sometimes been expressed that natural justice is so vague as to be practically meaningless. But I would regard these as tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist-The idea of negligence is equally insusceptible of exact definition, but what a reasonable man would regard as negligence in particular circumstances are equally capable of serving as tests in law, and natural justice as it has been interpreted in the courts is much more defined than that. [9: 8. 1964 AC 401]

If the historical background, the Preamble, the entire scheme of the Constitution and the relevant provisions there of including Art. 368 are kept in mind then there can be no difficulty, in determining what are basic elements of the basic structure of the Constitution. These words apply with greater force to the doctrine of the basic structure, because, the federal and democratic structure of the Constitution, the separation of powers, the secular character of our State are very much more definite than either negligence or natural justice[footnoteRef:10]. [10: 9. H.M.Seervai : Constitutional Law of India Vol 2 pg 1568 ]

42nd Amendment and Article 368. After the decisions of the Supreme Court in Keshavananda Bharati and Indira Nehru Gandhi cases the Constitution (42nd Amendment) 368 of the Constitution. Clause (4) provided that no constitutional amendment (including the provision of Part III) or purporting to have been made under Art. 368 whether before or after the commencement of the Constitution (42nd Amendment) Act, 1876 shall be called in any court on any ground. Clause (5) removed any doubts about the scope of the amending power. It declared that there shall be no limitation whatever on the provisions of the Constitution under this Article. Thus by inserting clause (5) it made it clear that even the basic feature of the Constitution could be amended. This amendment would, according to Mr. Swaran Singh, the Chairman, Congress Committee on Constitutional Amendments, put an end to any controversy as to which is supreme, parliament or the Supreme Court. Clause (4) asserted the supremacy of parliament. it was urged that Parliament represents the will of teh people and if people desire to amend the Constitution through Parliament there can be no limitation whatever on the exercise of this power. This amendment removed the limitation imposed on the amending power of parliament by the ruling of the Supreme Court in Keshavananda Bharatis case. It was said that the theory of basic structure as invented by the Supreme Court is vague and will create difficulties. The amendment was intended to rectify this situation. It was however, not pointed out clearly as to what were the difficulties faced by Parliament due to the basic structure theory.A question may be asked here, Can we say that an amendment made by parliament is an amendment made by the people? The 42nd Amendment was intended to achieve this object. It was argued that the amending body under Article 368 has the full constituent power. In other words, the Parliament acts in the same capacity as the Constituent Assembly when exercising the Power of amendment under Art. 368. It is submitted that this proposition is totally wrong. The reason are:-First, an amendment made by Parliament cannot be said to be an amendment made by the people. There is a distinction between the power of the people to amend a Constitution and the power of the legislature to amend it. It is true that Parliament represents the will of the people. But it is not equally true that whatever Parliament does is usually approved by the people. The Lok-Sabha election held in 1977 is a good example to show that the representatives of the people in Parliament do not always reflect the peoples will. Whatever was done during the emergency was done in the name of the people. But from the election result it was clear that they had rejected all what had been in their name by their representatives. Therefore it is not possible to derive support for an unfettered amending power from the theory that the representatives of the people always reflect the peoples will. The theory of basic structure propounded by the Supreme Court in Keshavananda Bharatis case is correct and will act as a safety-valve against arbitrary use of the amending power. In Australia out of 30 amendments proposed by the absolute majority of Australian Parliament only four were accepted and 26 were rejected by the people. This illustration makes it clear that parliament does not always represent the will of the people. Secondly, the assertion of parliamentary supremacy is based on wrong nations. The supremacy of Parliament is the main characteristics of the British Constitution, the Parliamentary supremacy means that Parliament has unlimited law-making power. It includes both the constituent power and ordinary law-making powers. Parliament can change the Constitution by passing an ordinary law. It means that there is no distinction in England between constitutional law and ordinary law. Secondly, no law passed by parliament can be declared unconstitutional by the courts. In India, parliament is not supreme but the Constitution is supreme Parliament is a creature of the Constitution and derives its powers from the provisions of the Constitution including the power to amend the Constitution under Art. 368 Laws passed by Parliament can be declared ultra vires the Constitution. There is distinction between the constituent power of Parliament and its ordinary law-making power. The amending power under Article 368, therefore, cannot be exercised in such a way so as to subvert or abrogate the Constitution.Thus the Constitution amendments made under Article 368 can still be challenged on the ground that they are destructive of the basic features of the Constitution.In Minerva Mills v. Union of India. the Supreme Court by 4 to 1 majority struck down clauses (4) and (5) of Article 368 inserted by the 42nd Amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the Constitution. Limited amending power is a basic structure of the Constitution. Since these clauses removed all limitations on the amending power and thereby conferred and unlimited amending power, it was destructive of the basic feature of the Constitution.The judgment of the Supreme Court thus makes it clear that the Constitution- not the Parliament - is supreme in India. This is in accordance with the intention of the framers who adopted a written Constitution for the country. Under the written Constitution there is a clear distinction between the ordinary legislative power and the constituent power (amending power) of Parliament. Parliament cannot have unlimited amending power so as to damage or destroy the Constitution to which if owes its existence and also derives its power. The Parliament elected for a fixed period of five years is meant for certain specific purposes and cannot be vested with unlimited amending power. The Court, however, held that the doctrine of basic structure is to be applied only in judging the validity of amendment to the Constitution and it does not apply for judging the validity of ordinary laws made by legislatures. The decision of the Court on the point is correct. It has put at rest the long drawn controversy between the Courts and the Executive. The Government should not take the decision of the Court as a challenge against it but in the spirit of the compromise and co-operation between the two organs of the Government. In Waman Rao v. Union of India[footnoteRef:11] the Supreme Court held that all amendment to the Constitution which were made before April 24, 1973 (i.e. the date of which the judgment of Kesavananda Bharati was delivered) including those by which the Ninth Schedule top the Constitution was amended from time to time were valid and constitutional. But amendments to the Constitution made on or after that date by which the Ninth Schedule was amendment were left open to challenge in the ground that they were beyond the constituent power of Parliament because they damaged the basic structure of the Constitution. [11: 10. AIR 1981 SC 271]

In S.P. Sampat Kumar v. Union of India[footnoteRef:12] the constitutional validity of Art. 323-A and the provisions of Administrative Tribunals Act, 1985 was challenged on the ground that the Act by excluding the jurisdiction of the High Courts under Arts. 226 and 227 in service matters had destroyed the power of judicial review which was a basic feature of the Constitution. The Supreme Court upheld the validity of Art. 323-A and the Act as the necessary changes suggested by the Court were incorporated in the Administrative Tribunal Act. It held that though the Act has excluded the judicial review over legislative action vested in the High Court under Arts. 226 and 227, but as it has not excluded judicial review under Arts. 32 and 136 the Act is valid. The Amendment does not affect the basic structure of the constitution as it has vested powers of judicial review in an alternate institutional mechanism, after taking it from the High Courts which is not less effective than the High Court. [12: 11. AIR 1987 SC 386]

In a Landmark judgment in L.Chandra Kumar v. Union Of India[footnoteRef:13], a seven-member Constitution Bench of the supreme court has unanimously while reconsidering the Sampath Kumars case has struck down clause (d) of Arts. 323-A and clause 3 (d) of Arts. 323-B which provided for the exclusion of the jurisdiction of the High Courts under Arts. 226 and 227 and the supreme Court under Art. 32 of the constitution as unconstitutional and invalid as they damage the power of judicial review which is the basic feature of the constitution. The court has held that power of judicial review which is the legislative action vested in the high courts under Art. 226 and the Supreme Court under Art. 32 of the Constitution is an integral and essential feature of ten Constitution and formed part of its basic structure. Ordinarily, therefore, the power of the High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted excluded. Following the Kesvananda Bahrtis case the Court declared unconstitutional clause 2 (d) of Art. 323A and clause 3 (d) of Art. 323-B of the Constitution, to teh extent that they excluded the jurisdiction of the High Courts under arts. 226 and 227 and the Supreme Court under Art. 32 of the Constitution. [13: 12. AIR 1997 SC 1125]

The Court said that while this jurisdiction cannot be ousted, other Courts and tribunals may perform a supplemental role in discharging the powers conferred by Arts. 226 and 227 and 32 of the Constitution, so long as teh jurisdiction of the High Courts under Arts. 226 and 227 and of the Supreme Court under Art. 32 is retained there is no reason the power to test the validity of legislations against teh provisions of the Constitution cannot be conferred upon Administrative Tribunals created under Arts. 323-A and 323-B of the Constitution. All decisions of these tribunals will, however, be subject to the scrutiny before a Division Bench of the High Court which has to jurisdiction over the tribunal concerned. The tribunals would, however, continue as the Courts of first instance in respect of areas of the law for which they had been constituted. It will not, therefore, be open to litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations except where teh legislation which created the particular Tribunal was challenged by overlooking the jurisdiction of the concerned Tribunal. Section 5(6) of the Central Administrative Tribunal Act is constitutional. The Court held that Section 28 of the Administrative Tribunal Act. 1985 and the exclusion of jurisdiction clauses in all other legislations enacted under Arts. 323-A and 323-B will to the same extent be unconstitutional. On the question of appointment of the Tribunals the Court suggested the Central Government should initiate action on the basis of the recommendations of expert bodies like the Law Commission of India and the Malimath Committee. They were of the view that a wholly independent agency could be set up for the administration of all tribunals. There should be a single model Ministry to oversee the working of the Tribunals. The creation of a single umbrella organization to supervise the working of the tribunals, the Court said, will remove many of the ills of the present system. If the need arises there can be a separate umbrella organization at the Central and State level. The Supreme Court got an opportunity in this case to settle beyond doubt the question whether judicial review is a basic feature of the Constitution. In short, no amendment passed by Parliament in future can bar the Courts from pronouncing judgments on its constitutional validity. Two recent landmark Judgments of the Supreme Court are worth-mentioning: One is M. Nagraj v. Union of India and the other is I.R. Coelho v. State of Tamil Nadu a nine bench judgment. In M. Nagraj v. Union of India, the petitioners challenged the Constitutional validity of the Constitution (77th Amendment) Act, introducing Art. 164 A nullifying numbers of decisions, the 81st Amendment Act, 2000 introducing Art. 16 (4-B), introducing promotion in reservation also which was stopped in Indra Sawhneys case, and 82nd Amendment Act, 2000 introducing proviso to Art. 355 which emphasis the importance of maintaining efficiency in administration and the 85th Amendment Act, 2001 adding words with consequential seniority in Art. 16 (4-A) nullifying decisions in Ajit Singhs case on the ground that they violate basic features of the Constitution. However, a five Judge Bench of the Supreme Court headed by CJI Sabharwal unanimously held that these amendments do no violate the basic feature of the Constitution. They are enabling provisions and only apply to SC and ST. They do not obliterate constitutional requirements, such as 50% ceiling limit in reservation, Creamy Layer Rule and post based roster sub-classification between O.B.C. on one hand and Second STs on teh other hand, as held in Indra Sawhneys case. They do not alter structure of equality codes; therefore, they are not beyond amending power of Parliament. In I.R. Coelho v. State of Tamil Nadu[footnoteRef:14] headed by the Chief Justice Y.K. Sabharwal (comprising Ashok Bhan, Arijit Pasayat, B.P. Singh, S.H. Kapadia, C.P. Thakkar, P.K. Balasubramanyan, Altman Kabil and D.K. Jain , JJ.) held that any law placed in the Ninth Schedule after April 24, 1974 when Keshwanand Bhartis judgment was delivered will be open to challenge. The Court said that even though an Act is put in challenge on the ground that they destroy or damage the basic feature, if the fundamental rights are taken away or abrogated pertaining to the basic feature of the Constitution[footnoteRef:15]. [14: 13. AIR 2007 SC 8617] [15: 14. Constitutional Law Of India Dr.J.N.Pandey]