Questions involving the right to property have led to more than ten constitutional amendments. Most of the laws listed in the ninth schedule that are immune from constitutional challenge deal with land reforms. Though the right to property is no longer a fundamental right, the vigour with which it is sought to be asserted is clear from the number of judgments delivered by courts.
The validity of the ninth schedule was challenged before a nine-judge bench of the Supreme Court four years ago and it held that the laws listed there had no absolute immunity. If the laws violate the fundamental rights of a citizen and impinge on the basic structure of the Constitution, they could be struck down (IR Coelho vs State of Tamil Nadu). Each statute should be tested on the touchstone of basic structure.
The first such test was conducted by the Supreme Court earlier this month in the case, Glandrocke Estate Ltd vs State of Tamil Nadu. The court upheld the inclusion of the land reform law in the protected category. This law, the Gudalur Janmam Estates Act, did away with hereditary ownership of forests, plantations, mines, quarries and other assets and vested it in the state free from all encumbrances. The Supreme Court held that the law did not violate the basic structure of the Constitution and thus passed the test for its inclusion in the protected list.
The judgment pointed out that the time had come to explain certain concepts like “egalitarian equality, over-arching principles and Article 21 (right to life and liberty)”. The judges coined another phrase akin to “basic structure”, the overused expression from the Kesavananda Bharti case of 1973. They repeat the expression “over-arching” principles explaining that they include “concepts like secularism, democracy, separation of powers, and the power of judicial review”. (Socialism, an icon in the Preamble, has altogether been dropped from the discussion.)
The argument against the Kesavananda Bharti case was that the theory of basic structure expounded by it was too vague. The new baggage containing “over-arching principles” does not improve the situation. It deals with the issue without spelling out whether the new concepts form part of the basic structure.
For instance, it has included inter-generational equity, precautionary principle and “polluter pays” rules, all developed by the Supreme Court in recent environmental cases.“When we talk about inter-generational equity and sustainable development, we are elevating an ordinary principle of equality to the level of over-arching principle,” the judgment asserted. These have been placed along with other “core values” of the Constitution like secularism and equality that cannot be restricted by any constitutional amendment or ordinary law.
While the court exalts those principles to a superior plane, the vagueness of these newly-coined expressions cannot be removed even by the examples it cites. It explains core values giving examples of environmental cases it has dealt with in recent years. In various judgments in T N Godavarman vs Union of India, the court has discussed acquisition of forests from the viewpoint of ecology. “Forests in India are an important part of environment. They constitute national asset...When it comes to preservation of forests as well as environment vis-a-vis development, one has to look at the constitutional amendment not from the point of view of formal equality enshrined in Article 14 but on a much wider platform of an egalitarian equality which includes the concept of inclusive growth,” the court said.
Though the Directive Principles of State Policy are normally not enforceable, and are only guiding lights in the Constitution, two of them have been quoted in this context. Article 48A and 51A enjoin the state and citizens to protect and improve the environment. The Forest Conservation Act, the Wild Life Protection Act and the Environment Protection Act are steps taken in that direction. Thus the court emphasises the ecological concerns of the present times, without defining their role in testing the validity of land acquisition and distribution laws.
In the present case, though the judgment was delivered by a two-judge bench, the basic structure theory was propounded by a 13-judge bench. The subsequent judgments have not explained what constitutes the basic structure of the Constitution, though the phrase has been used in important judgments like the recent one on reservation, Ashok Kumar vs Union of India (2008). It stated that for determining whether a particular feature of the Constitution is part of the basic structure, it has to be examined in each individual case, keeping in mind the scheme of the statute, its object and purpose and “integrity of the Constitution as a fundamental instrument for complete governance”.
It seems that with each attempt to explain basic structure, the phrase only gets hazier.
