Order

The Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969 (the Janmam Act), insofar as it vested forest lands in the Janmam estates in the State of Tamil Nadu, was struck down by this Court in Balmadies v. State of Tamil Nadu1, because this was not found to be a measure of agrarian reform protected by Article 31A of the Constitution. Section 2(c) of the West Bengal Land Holding Revenue Act, 1979 was struck down by the Calcutta High Court as being arbi­trary and, therefore, unconstitutional and the special leave petition filed against the judgment by the State of West Bengal was dismissed. By the Constitution (Thirty fourth Amendment) Act, the Janmam Act, in its entirety, was inserted in the Ninth Schedule. By the Constitution (Sixty sixth Amendment) Act, the West Bengal Land Holding Revenue Act, 1979, in its entirety, was inserted in the Ninth Schedule. These insertions are the subject matter of challenge in these appeals and writ petitions. The contention is that these Acts, inclusive of the portions thereof which had been struck down, could not have been validly inserted in the Ninth Schedule. It rests on two counts : (1) Judicial review is a basic feature of the Contitution; to insert in the Ninth Schedule an Act which, or part of which, has been down as unconstitutional in exercise of the power of judicial review is to destroy or damage the basic structure of the Constitution. (2) To insert into the Ninth Schedule after 24th April, 1973, an Act which, or part of which, has been struck down as being violative of the fundamertal rights conferred by Part-II of the Consititution is to destroy or damage its basic structure.

Article 31B provides :

31B. Validation of certain Acts and Regulations.-Without preju­dice to the generality of the provisions contained in article 31A, none of the Acts and Reagulationa specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.”

2. The judgment of a Constitution Bench of this Court in Waman Rao Rao & Ors. et. etc. v. Union of India & Ors.2, dealth with Article 31B. It referred to the judgment of this Court in the case of Kesavanda Bharti3, decided on 24th April, 1973, where it was held by the major­ity “that Parliament has no power to amend the Constitution so as to damage or destroy its basic or essential features or its basic struc­ture.” The order in Waman Rao’s case was that all amendments to the Constitution which were made before 24th April, 1973 and by which the Ninth Schedule was amended from time to time by inclusion of various Acts and Regulations therein, were valid and constitutional. Amend­ments to the Constitution made on or after 24th April, 1973 by which the Ninth Schedule was amended from time to time by the inclusion of various Acts and Regulations therein were “open to challenge on the ground that they, or any one or more of them are beyond the constitu­ent power of the Parliament since they damage the basic and essential features of the Constitution or its basic structure.” The order in Waman Rao “did not pronounce upon the validity of such subsequent constitutional amendments except to say that if any Act or Regulation included in the Ninth Schedule by a constitutional amendment made after April 24, 1973 is saved by Article 31A, or by Article 31C as it stood prior to its amendment by the forty second amendment, the chal­lenge to the validity of the relevant Constitutional Amendment by which that Act or Regulation is put in the Ninth Schedule on the ground that the amendment damages or destroys a basic