INTRODUCTION
As the legal community celebrates 47 years of the decision in the Kesavanada Bharti versus State of Kerela (AIR 1973 SC 1461), it will be incomplete if we do not remember Professor Dietrich Conrad- the genius behind the basic structure doctrine.
Though there have been many discussions on the constitutionality of the importation of the doctrine of basic structure in the Indian Constitution. In this post I would like to make arguments in critique of the doctrine, basing myself entirely upon the argument of a great Indian Jurist Dr. Durga Das Basu. This is in an endeavor to pay homage to the dissenting voice which were raised by him at that time, in an attempt to assist the judiciary through his scholarly work on the decision making and thereby articulated a system of check on the decision-making process of the judiciary. Dr. Basu not only criticized the doctrine by clearly stating that:
“None of such limitations has been expressly given in article 368 of the Constitution”.[1]
He also chronicled in his commentary amongst many other scholarly works, the damage this doctrine did to the constitutional jurisprudence of this country. Thus, it is necessary that the arguments of both for and against the doctrine are published so that a discussion about the doctrine in a comprehensive manner can take place. This article is an attempt towards bringing out both the yin and yang of this doctrine.
COMPRISE IN CONSTITUENT ASSEMBLY
While deliberating upon draft article 305 (article 368 of the Constitution) the members of the Constituent Assembly had differing opinions ranging from the nature of the procedure of amendment (whether to be simple or complex), entrenchment of provisions (members like B.N. Rau advocated for making provisions of reservation for sikh, muslims and other minorities to be immune from constitutional amendments) or other aspects of the powers of the future Parliaments with regard to amendments etc. With regard to the nature of power with future Parliaments it was debated by B.N. Rau in the assembly that the Constituent assembly is an indirect body, yet, it can vote upon the constitution with simple majority. But the future Parliament’s which will be direct bodies, elected by adult franchise, can only amend the constitution with special majority. This according to Rau was the anomaly[2].
Yet in another instance H.V. Kamath while deploring Pandit Jawaharlal Nehru, among others, for not submitting his draft of the amendment provision, said that it is understood that the provision of amendment is not to be taken lightly. He was of the opinion that the constituent assemblies in any country is superior in status than the future Parliaments of that country. But he also added that this constituent assembly has been created by indirect elections from communal electorate and from a very restricted franchise; hence this assembly cannot deem to be superior in constitutional status from future Parliaments[3].
Responding to the critics for defending the amendment provision in present form (of course the provision as it was before 24th amendment act of 1971) Dr. Ambedkar made following concluding remarks[4]: –
“The Constitution is a fundamental document, and utter chaos would result if it could be amended by a simple majority”.
Yet the procedure prescribed under the Constitution states three kinds of amendment procedure:- One, where certain provisions like provisions with regard to alteration of boundaries ( under article 3 and 4) can be amended by simple majority; second, provisions other than those mentioned in proviso of clause (2) of article 368, can only be amended by special majority of total membership of the house and majority of not less than 2/3rd members present and voting; and third the provisions mentioned in proviso of sub clause (2) of article 368 cannot be amended unless not undergone through the procedure of special majority and also ratified by half of the State legislatures.
On this Dr. Ambedkar stated that[5]: –
“we cannot forget that while we have in a large number of cases invaded provincial autonomy we still intend and have as a matter of fact seen to it, that the federal structure of the Constitution remains fundamentally unaltered.”
He further argued that: –
“To amend the provisions laying down the distribution of powers and of revenue without permitting the provinces or the States to have any voice, in my judgment altogether nullifying the fundamentals of the Constitution.”
Therefore, apart from the provisions specified in proviso of sub clause (2) of article 368, no other provisions were intended to be entrenched not even the fundamental rights. The manner in which the members of the assembly reached a compromise was commented by Austin[6] in following words: –
“the provisions for amendment were quite evidently a compromise between the view that the Parliament should be empowered to amend any part of the Constitution and the more traditional concept of amendment in federations. Yet why was such compromise reached between such disparate viewpoints reached with apparently so little difficulty? Primarily, it seems, the members of the constituent assembly realized that their efforts were subject to errors and that therefore, except where it was necessary to safeguard certain institutions (such as judiciary and federal system), the Constitution should be easily amended. Moreover, the members, in general acknowledged the force behind the arguments for entrenchment and thought that as both views were reasonable, and because each were strongly supported, they should be accommodated.”
It appears that in the debate on limitations and no limitations on the power of the Parliaments, a compromise in the form of article 368, was reached among the members of the assembly. It was not at all comprehended that there would be any inherent or implied limitations on the powers of the future Parliaments, to amend or alter the Constitution[7].
JUDICIAL INTERPRETATION BEYOND LITERAL RULE
In the year 1951 the Honorable Supreme Court of India first encountered the issue of whether there are any limitations upon the powers of Parliament under article 368? In Shankari Prasad Singh versus Union of India (AIR 1951 SC 458) the issue was raised in the form of question- whether constitutional amendments are law within the meaning of article 13? The 1st amendment act, curtailed the then fundamental right of property under article 31. It is therefore understood that had the court would have ruled that constitutional amendments are law within the meaning of article 13, the 1st amendment act would have become unconstitutional. India got independent in the year 1947 and with the inspiration of the policies of socialism, was moving, slowly though, towards the path economic development through a centralized system of economic planning. The 1st amendment was inevitable or else the right to property as a fundamental right would have created a legal hurdle for the enactment of various land reform legislations.[8]
It is also interesting to note that the legislature constituted in 1951 almost consisted the same persons who constituted the constituent assembly for the drafting of the Indian Constitution. It was clear in their minds that socialism was going to be the system for economic development in India. Yet, after much deliberation they decided to retain the property rights in the chapter of the fundamental rights. [9]
The Court in Shankari Prasad (supra) finally ruled that the constitutional amendments are not law withing the meaning of article 13. This decision was also followed in the subsequent case of Sajjan Singh versus State of Rajasthan (AIR 1965 SC 845). However, in the same series of challenges to the constitutional amendments on the ground of the violation of the fundamental right of property, there came the judgment of the Honorable Supreme Court in the case of I.C. Golakhnath versus State of Punjab (AIR 1967 SC 1643) wherein it was for the first time ruled by the Honorable Apex Court that the constitutional amendments are law within the meaning of article 13 and that they cannot infringe upon any of the fundamental rights enshrined in Part- III of the Constitution. However, it needs to be noted that the doctrine of implied limitation was also pleaded in Golakhnath but did not found any support in the majority. But certainly, an interest for the doctrine was brewing among the minority[10] which formed the base for the theory of basic structure in Kesavananda.
24TH AMENDMENT ACT AND THE AFTER EFFECT
This ruling, indeed was a big jolt to the power of the government in the implementation of their socialist policies. To reverse the judgment, the government enacted the 24th Constitutional Amendment Act of 1971. Crucially this amendment inserted clause (4) in article 13 and clause (3) in article 368. Both the provisions declared in unequivocal terms that constitutional amendments are not law within the meaning of article 13. Therefore, through this amendment the government resumed the power to make alterations in the fundamental rights through constitutional amendments.
The title of article 368 before 24th amendment act was “Procedure for amendment of the Constitution”. Through 24th amendment act, the title was substituted for “Power of the Parliament to amend the Constitution and the Procedure thereof”. The substantial change in the heading of article 368 itself shows that the Parliament, after Golakhnath was endeavored to claim the authority in express terms to amend the constitution. Also, the amendment act inserted clause (1) which started with the non-obstant clause making the power under article 368 immune from anything contained in the rest of the Constitution; and declared that the Parliament in the exercise of its constituent powers may amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article. The substantial change which this amendment brought was of declaring the power of Parliament under article 368 to be a constituent power. This conferred upon the Parliament, the power of constituent assembly originally assembled to draft the Constitution. Let us imagine therefore the authority of such an assembly. Sitting to draft the Constitution, the assembly was authorized to include or not to include fundamental rights in the Constitution (or to include the provision of due process or procedure established by law); to make or not to make India a democratic country; to incorporate or not to incorporate the concept of separation of power or to immune which provisions from amendment or even not to immune any provision from amendment, was to be decided and incorporated in the Constitution by the assembly.
BASU’S CRITICISM
The declaration of the power of the constituent assembly over the Parliament meant that in the process of the amendment of the Constitution by way of addition, variation or repeal, the Parliament has the same unbridled authority (as the original constituent assembly) to touch upon any provision of the Constitution including the fundamental rights. But by the time the challenge to the 24th amendment came before the Honorable Supreme Court in Kesavananda, the school of thought as developed by Professor Conrad, which inspired the minority view in Goalkhnath[11], outweighed the fact of unlimited authority of the Parliament in the exercise of such constituent powers. Professor Conrad, in his visit to Banaras Hindu University, posed certain questions in context of article 368 like[12]: –
“Whether by valid exercise of article 368 Parliament can amend article 1 and divide the Union of India into Tamil Nadu and Hindustan proper?
Whether it could abolish the right to life and personal liberty?
Whether a ruling party observing a depreciation in majority amend article 368 to vest the entire power with the President acting on the advice of Prime Minister?
The impact was that in Kesavananda, the Court declared that the constituent power vested in the Parliament under article 368 is not the power of the original constituent assembly, which was convened to draft the Constitution. Therefore, the Court held that there are certain limitations in the form of basic structure which the Parliament cannot amend even in exercise of their constituent powers. There are two inherent limitations with this ruling, as pointed out by Dr. Basu[13]:-
“One, if there are basic features which cannot be amended under article 368 then by which procedure these basic features can be amended?
Second, what all parts or provisions of the Constitution constitutes basic features? The list given in Kesavanada is not exhaustive and can include many other parts or provisions. Therefore, it becomes the discretion of the Court to determine what does and what does not constitute the basic features of the Constitution.”
Although, the expression “in the exercise of constituent power” was inserted after the 24th amendment act. The said amendment was made by exercising special majority under article 368. As to the fact whether Parliament by way of constitutional amendment can declare for itself any such power? It is natural for this question to arise because the deliberations of the Constituent assembly show that the Constituent assembly considered itself to be supreme and did not regarded future parliaments as constituent assemblies in exercise of the power of amendment. Had it been the case, the phrase “in exercise of constituent powers” would have been found in the text of article 368 even before 24th amendment act[14].
The answer to this question therefore depends upon the answer to the question whether any express limitation on the amending power of the Parliament, except of entrenched provisions in proviso of clause (2), was there in force originally in the Constitution as enacted or before the enactment of 24th amendment act? Whether there was any such limitation by which Parliament was not authorized to make particular kinds of amendments? If no, then it certainly authorizes the Parliament to make such amendments and confer upon itself the constituent powers. In this regard Dr. Basu observes: –
“(a) Once it is established that the makers of the Constitution have made an express provision for the amendment of the Constitution, any limitation upon that power must be found from the text of the Constitution itself.
(b) Once it is held that the Constitution has provided for its own amendment without any reservations, the mere gravity of the subject of amendment cannot give rise to any ‘implied limitation’.”[15]
Also, this self-declaration of constituent assembly powers by the Parliament upon itself, has not been disturbed by the Honorable Supreme Court in Kesavananda. On the contrary the Honorable Court ruled that Parliament in the exercise of its constituent power can amend any provision of the Constitution except the basic structure.
JUDICIAL COMPROMISE OF 7:6
The two schools of thought were at interplay (implied limitation-for and against) in the course of the argument of this case with equal force, as were in the constituent assembly. The case witnessed effective advocacy in action of the legendary advocates like Nani Pakhiwala for the basic structure and H.M. Seervai against the basic structure. It was the impact of the arguments against the “basic structure” that the Golakhnath was overruled in Kesavananda. In fact the ratio of Kesavananda can be considered as the compromise of such conflicting but equally effective thoughts. The fate was decided by the ratio of 7:6 of the judges of Honorable Supreme Court, with majority in favor of basic structure.
This process itself raises questions on legitimacy of the doctrine. Because there was difference in deliberation between the Constituent Assembly and the Honorable Supreme Court, over the issue of limitation on amending power of the Parliament. First, the Constituent Assembly was the body constituted to draft the Constitution. It was authorized to decide the powers and limitations of its organs. The power to amend the Constitution was conferred by the Constituent Assembly on the Parliament under article 368. Therefore the scope and limitation of the exercise of such power has to be ascertained from 368 itself and from nowhere else; Second, like Legislature and Executive even Judiciary is a product of the Constitution drafted by the Constituent Assembly. Therefore, to hold the logic that legislature in exercise of powers under article 368 is not equal in status of Constituent Assembly, will also be applicable on Judiciary in discharge of their functions; Third, the exercise of the power of judicial review to give effect to judicial amendment of placing limitation upon the amending powers of Parliament under article 368, itself is the exercise in contradiction of the logic by which limitation was placed upon the Parliament by the Court. Here the Court indirectly, without any authority, conferred upon itself the powers of the Constituent Assembly and placed limitations upon the powers of the Parliament.
Another anomaly of the judgment lies in the fact that the Court did not considered fundamental rights as part of basic structure, but the power of judicial review which is an ancillary power derived from fundamental rights, has been held to be part of basic structure.
Therefore, on such an endeavor by the Honorable Supreme Court, it was remarked by Dr. Basu that in the guise of interpretation, the Court assumed upon itself the power of amending the Constitution when none of such powers are vested in it under article 368[16].
Dr. Basu therefore has made suggestion, which is unlikely though to take place, that another full bench of the Supreme Court be convened to overturn this view in Kesavananda on the following grounds[17]: –
“(i) that, article 368(1), as it stands amended in 1971, makes it clear that not only the procedure, but also the ‘power’ to amend the Constitution is conferred by article 368 itself and cannot be derived from somewhere else, such as article 245. Hence the limitations, if any, upon the amending power must be found in article 368 itself and not from any theory of implied limitation;
(ii) that, the word ‘repeal’ in article 368(1) also makes it clear that ‘amendment’ under article 368 includes a repeal of any of its provisions, including any supposed ‘basic’ or ‘essential provisions’;
(iii) that, the Constitution of India makes no distinction between ‘amendment’ and ‘total revision’, as do some other Constitutions, such as the Swiss. Hence there is no bar to change the whole Constitution, in exercise of the amending power, which is described as the ‘constituent powers’ and that, accordingly, it would not be necessary to convene a Constituent Assembly to revise the Constitution in toto.”[18]
The fact is that the exercise of the such judicial amendment was undertaken in anticipation of the abuse or misuse of amendment power by the Parliament. It is natural at the time of the enactment of any law, an apprehension about its gravity to arise. In England for instance, the British Parliament is omnipotent with no limitation on their authority. Therefore, when the Act of Union with Scotland, 1706- to give effect to the treaty for merging Scotland and England with Great Britain, was executed, the following issues were raised[19]: –
- The act constituted a legal limitation upon the British Parliament so that a future Parliament would be incompetent to abrogate or amend it.
- Any court in England or Scotland could strike down as invalid any future act of British Parliament on the ground of being inconsistent with the act of Union.
Both these issues were answered negatively by Dicey[20]. He argued that there are certain internal limitations upon the authority of the British Parliament, but those limitations are only moral. Not legally justiciable. Although he was of the view that the Parliament can live up to these apprehensions but committing any such act would be atrocious. But such atrocities can be checked only by the political authority of vote by the people and not by the Courts[21].
CONCLUSION
In India, however, the constitutional experience of the 42nd amendment act of 1976 teaches us that the greed of power can really move the governments, especially the ones with majorities in both the Parliament and State legislatures, to implement such draconian laws. Mr. Nani Palkhiwala called the 42nd amendment the “monstrous outrage of the Constitution”. Therefore, a constructivist approach to learning Constitutional law would further strengthen the authority of the basic structure.
But the question that remains or should I say the objection which one can make on the conduct of the Honorable Supreme Court, on the basis of the above study, squarely comes to this-
“Whether the practice by the judiciary to go against the written text of the Constitution, while interpreting the provisions, is permissible?”
When looked at from the school of a literal interpretation of the Constitution, this question will have answers in negative. But when viewed from a student’s perspective, observing the developments in constitutional laws and conventions, it appears that judicial review and purposive interpretation have become the hallmark of democracy where people can question the government of the day in their arbitrary exercise of powers.
This article has been written by Shishir Shrivastava, Practicing before the Hon’ble High Court Chhattisgarh and the Hon’ble Supreme Court of India.
References:
[1] Infra 16
[2] Austin Granville, The Indian Constitution Cornerstone of a Nation, Oxford India Paperback p. 325
[3] Ibid at p. 327
[4] Ibid at p. 327-328
[5] Ibid
[6] Ibid at pp. 328, 329
[7] Dr. Basu points out that the fact the arguments for entrenchment of certain provisions with regard to safeguard of minority interest, from the amendment process, as proposed by Sir B.N. Rau was rejected by the assembly. This itself is sufficient to repel the proposition that theory of implied limitation is in harmony with the objectives of the Constitution and that unlimited powers are destructive of the objectives of the Constitution [Dr. Basu cited this from Seervai Preface to Vol.II of the 2nd Edition of Constitutional Law of India, p.vi- approved by Jaganmohan Reddy, Liberty, Equality, Property and the Constitution (1982), p.29] cf: Dr. Basu Durga Das, Comparative Constitutional Law, 3rd Edition, LexisNexis p.112.
[8] A detailed list of these legislations could be seen in the 9th Schedule of the Constitution.
[9] The property rights under Indian Constitution has always been a bone of contention. It was even during the deliberations in the Constituent Assembly.
[10] Minority view consisted of Jusice Wanchoo K.N., Bachawat R.S., Ramaswami V., Bhargav Vashishta, and Mitter G.K. Even before Golakhnath the issue was considered earlier by Bachawat J. in Sajjan Singh versus State of Rajasthan, AIR 1965 SC SC 845, paras 57-61, 66. Dietrich Conrad visited India in the year 1965 and it is assumed that it was then the school of thought developed in India about the implied limitation on the constituent powers of the Parliament, which generated interest among the judge in Sajjan Sngh and minority view in Goalakhnath. .
[11] Supra note 7
[12] https://www.livelaw.in/columns/kesavananda-bhartai-case-remembering-prof-conrad-the-genius-behind-basic-structure-doctrine-155676
[13] Dr. Basu Durga Das, Comparative Constitutional Law, 3rd Edition, LexisNexis p.111
[14] Supra note 3. The deliberations of H.V. Kamath suggest that due to indirect manner and limitation of franchise for electing the members of the Constituent Assembly, the assembly did not enjoy the superior constitutional status with regard to India’s future Parliaments. But the adoption of special majority provision for the Parliaments in article 368 for passing of the amendments of the Constitution, itself indicates that the Constituent Assembly did not considered future Parliaments to be equal or superior in status of the Constituent Assembly.
[15] Dr. Basu points out that the fact the arguments for entrenchment of certain provisions with regard to safeguard of minority interest, from the amendment process, as proposed by Sir B.N. Rau was rejected by the assembly. This itself is sufficient to repel the proposition that theory of implied limitation is in harmony with the objectives of the Constitution and that unlimited powers are destructive of the objectives of the Constitution [Dr. Basu cited this from Seervai Preface to Vol.II of the 2nd Edition of Constitutional Law of India, p.vi- approved by Jaganmohan Reddy, Liberty, Equality, Property and the Constitution (1982), p.29] cf: Dr. Basu Durga Das, Comparative Constitutional Law, 3rd Edition, LexisNexis p.112.
[16] Dr. Basu Durga Das, Introduction to the Constitution of India, p. 166-167, 20th Edn Reprint, LexisNexis Butterworth Wadhwa Nagpur
[17] Ibid
[18] Ibid
[19] Dr. Basu Durga Das, Comparative Constitutional Law, 3rd Edition, LexisNexis p.101
[20] Ibid
[21] Rejecting such arguments of fear in Golakhnath, Wanchoo J. held that such arguments are more political rather than legal and therefore cannot be taken into consideration for interpretation of the Constitution.