SUPREME COURTS VOLTE-FACE ON CONSTITUTIONAL AMENDMENT By BAL PATILI think it is a matter of serious concern for the constitutional destiny ofthe nation because I fear the Supreme Court’s order striking down 42ndAmendment relating to Section 4 and Section 55 is the most regressivestep injurious to the preambulary ideal of a Socialistic,Secular,Demoractic Republic of India.I believe the Supreme Court has needlessly revived the old controversy about theParliamentary amending power and the primacy of Fundamental Rights vis-a visDirective Principles of State Policy. To make the constitutional confusion worseconfounded the Supreme Court’s Order strikes down the 42nd Amendment on theground that the impugned provisions violate the basic features of the Constitution.I think the Union Government has rightly filed in the Supreme Court a petitionseeking review by a larger bench of not less than seven judges of the SupremeCourt’s Order striking down 42nd Amendment. The Order needs reconsiderationbecause as noted by the Union Law Minister it would have far reachingconsequences amounting to an amendment of the Constitution.There is a clamour in the press appealing to the Government that it should acceptthe Supreme Court Order. It is contended that the Supreme Court has reestablishedtwo fundamental constitutional principles, one, that Parliament cannot amend theconstitution so as to remove all limitation on its amending power, and two that theFundamental Rights under the Constitution are indeed fundamental and cannot besubsidiary to the Directive Principles.
PROCESS OF CONSTITUTIONAL AMENDMENTTo rebut these contentions it would be necessary to take a synoptic view of thetortuous course the process of constitutional amendment has run since 1951 whenthe first amendment was passed by the Parliament. It is pertinent to remember thatthe first Amendment to the Constitution was passed by the members of theConstituent Assembly sitting as the Provisional Parliament.The validity of the First Amendment Act, 1951 was challenged in the SupremeCourt in Sri Shankari Prasad Singh Deo versus Union Of India and State of Bihar(1952, S.C.R.), It was urged in that case that the Amendment Act in so far as itpurported to take away or abridge the rights conferred by Part III falls within theprohibition of Articles 13(2) and was therefore unconstitutional. Justice PatanjaliShastri speaking for the unanimous Court rejected this argument holding as follows:“No doubts, our Constitution-makers, following American model, haveincorporated certain fundamental rights in Part III and made them immune frominterference by laws made by the State. We find it, however, difficult in theabsence of a clear indication to the contrary, to suppose that they also intended tomake those rights immune from constitutional amendment.“On the order hand, the terms of Article 368 are perfectly general and empowerParliament to amend the Constitution, without any exception whatever.“We are of the opinion, that in the context of Article 13 ‘Law’ must be taken tomean rules and regulations made in exercise of ordinary legislative power with theresult and Article 13(2) does not affect amendments made under Article 368.”This matter once against came before the Supreme Court when the SeventeenthAmendment was challenged in Sajjan Singh versus State of Rajasthan in 1965before A 5- Member Bench presided over by Chief Justice Gajendragadkar. One ofthe arguments urged that the Amendment Act was void in view of the provisions ofArticle 13(2), in so far as the Act purported to abridge the Fundamental rightsguaranteed by Part III.Chief Justice Gajendragadkar delivering the majority judgment on behalf ofhimself, Wanchoo and Raghubar Dayal, JJ., concurred with the reasoning in theShankari Prasad and observed that the expression “amendment of the Constitution”plainly and unambiguously means amendment of all the provisions of theConstitution and therefore the amending power conferred by Article 368 extendedto all the provisions of the Constitution.In this case, however, Hidayatulla and Mudholkar, JJ. Though they concurred withthe final conclusion, doubted the majority view by separate judgments and observedthat it was possible that Article 368 merely laid down the procedure for amendingthe Constitution but did not confer the power to amend the Constitution. Both the
judges stated expressly that they should not be taken to have expressed a finalopinion on that question.GOLAKNATH CASEThat was the Indian constitutional position on the issue of amendment till 1967when a 11 Member Bench of the Supreme Court held in Golaknath versus State ofPunjab on February 27, 1967, by a slender majority of one that the ‘fiction’ that aconstitutional amendment was not ‘law’ within the meaning of this Article 13 couldnot be accepted, and that the fundamental rights “are given a transcendental positionand kept beyond the reach of the parliament.”This was the beginning of the constitutional watershed which crystallized later inthe Keshavananda Bharathi case decision. But it is interesting to note that JusticeChandrachud in his minority judgment in that Keshavanda case said significantly:“The seeds of the controversial decision in the Golaknath and Others versus Stateof Punjab and Another were sown by the doubt expressed by Hidayatulla andMudhokar ,JJ.,The following points emerged from the majority judgment in the Golaknath case: (i) The majority of the judges in the Golaknath case consisting of Justice Wanchoo, Hidayatulla, Bhargava, Mitter, and Bachawat and Ramaswami rejected the argument that Article 368 merely prescribes the procedure to be followed in amending the Constitution. (ii) They held that Article 368 also conferred the power to amend the Constitution. (iii) The majority of judges consisting of Chief Justice Subba Rao and his four colleagues as well as Hidayatulla, J. held that there was no distinction between constituent power and legislative power and that the word ‘ law’ used in Article 13(2) includes a law passed by Parliament to amend the constitution. (iv) Chief Justice Subba Rao and his four colleagues suggested that if a Constitution had to be radically altered the residuary powers could be relied upon to call for a Constituent Assembly. Hidayatulla,J. took a different view And held that for making radical changes so as to abridge fundamental rights Article 368 should be suitably amended and the Constituent Assembly should be called after passing a law under Entry 97 in the light of the amended provisions of Article 368. (v) It is important to mention that all the eleven judges who constituted the Bench were agreed that even Fundamental rights could be taken away but they suggested different methods for achieving that purpose.
The essence of the Golaknath decision was thus that the fundamental rightswere ‘ transcendental’ and therefore must not be allowed to be whittled by anymajority in Parliament. Nevertheless as noted by Justice Chandrachud in hismajority judgement in the Keshavananda case the “petitioners in the Golaknathcase won but a pyrrhic victory.’ because the laws they had come to obtain adeclaration as unconstitutional on the ground that they affected theirfundamental rights were upheld by the Court. Yet there was consolation in thefact that the decision put a bar on any future abrogation of the fundamentalrights by taking recourse to the Amercian judicial doctrine of “prospectiveoverruling” as evidenced in Link later versus Walker (1965).‘PROSPECTIVE OVERRULING’ TECHNIQUEThe technique of “prospective overruling” is an ingenious judicial device topreserve the past and protect the future. In the Golaknath case the majority viewfaced a judicial dilemma that even if it was necessary to overrule the earlierdecisions from Shankari Prasad to Sajjan Singh on the basis of which variouslaws embodying agrarian and other economic reforms had been enacted “itwould introduce chaos and unsettle the conditions in our country” as observedby Chief Justice Subba Rao.On the other hand the learned Chief Justice feared that if the court were to holdthat Parliament had the power to amend the constitution so as to take away orabridge the fundamental rights “a time might come when we would graduallyand imperceptibly pass under a totalitarian rule.” In addition, Chief JusticeSubba Rao believed that the judicial function of a constitutional court could notbe restricted to law finding along but extended to judicial law making to “suitthe expanding needs of society.In other words the majority view in Golknath sought to establish that theexisting provisions in the Constitution were elastic enough to accommodate thefuture social change without requiring formal constitutional amendment. Thusthe Supreme Court was to be the mentor of the socio-economic transformationenvisaged by the Constitution and not the Parliament elected by the people.But the constitutional snag was that the teachnique of “prospective overruling”was applied in a misconceived manner because it could have been invoked tothe extent it was necessary to save the past executive acts done in pursuance ofthe impugned amendments. The Golaknath decision had arrived at theconclusion that the Parliament did not have the power to amend the Constitutionso as to take away or abridge any of the fundamental rights and that theParliament in future would not have that power.How could then the Supreme Court allow the unconstitutional amendments tooperate in future in spite of the fact that in the opinion of the majority inGolaknath they violated the fundamental rights? Justice Wanchoo had observed
that the court could not save a law from the vice of unconstitutionality if in itsopinion it violated the fundamental rights. This was the glaring constitutionalflaw in the scheme of judicial law making as envisaged by the then ChiefJustice Subba Rao.With all their enthusiasm to rescue fundamental rights from the passingparliamentary majorities the majority Justices in the Golaknath case did not goso far as to ascribe immutability to any constitutional provision. They suggestedthat Parliament might convene a Constituent Assembly for making a “newConstitution” or “radically changing it.” Justice Hidayatulla suggested that“Parliament must amend Article 368 to convoke another Constituent Assembly,pass a law under item 97 of List I of the Seventh Schedule to call a ConstituentAssembly and then that Assembly may be able to abridge or take away thefundamental rights if desired.”This was apparently a far fetched constitutional rationalization and fallacioustoo. This judicial reasoning also has an important bearing on the relationshipbetween the Parliament and the constitution on the point as to which is thecreature of which. As Shri Seervai rightly pointed out that “ if a law made byParliament to amend Part III… is void in contravening Article 13(2), law passedby the same Parliament, convening a Constituent Assembly and authorizing it todo that very thing, must be equally void. For what Parliament cannot do itself, itcannot authorize another body to do.”The basic fallacy in the Golaknath stemmed from the fact of the majorityjudicial distrust in popular will as manifested in Parliamentary majority. ThePreamble of the Constitution shows that the final authority on whose behalf theConstitution was enacted are the “people of India.” According to Article 326 thepeople of India acting through their Constituent Assembly vested the power ofconstitutional amendment in the future Parliament to be elected on the basis ofadult franchise.Moreover one should not forget that the Constituent Assembly was electedthrough indirect election on the basis of much restricted franchise. Therefore asnoted by Granville Austin in his Indian constitution : Cornerstone of a Nation itcould hardly be said that the Parliament which was to be subsequently electedwould be less democratic than the Constituent Assembly.The judicial logic of the inviolability of Fundamental Rights in the Golaknathcase which was propped up by the patently untenable recourse to prospectiveoverruling and distrust of Parliamentary majority was based on two premises:one, that there is no difference between ordinary law and constitutional law interms of their subjection to judicial review as to their consistency with thefundamental rights, and two, that fundamental rights were transcendental,natural rights.
In holding thus that there was no difference between constituent law and statutelaw the Golaknath decision set at nought the distinction between the ‘controlled’or rigid and ‘ uncontrolled’ or flexible constitutions. The point of distinction liesin that in a ‘controlled’ constitution a different procedure is prescribed formaking ordinary laws, while in an ‘uncontrolled’ one the procedure foramending the constitution is the same as that for making ordinary laws.This was the basic bone of contention with regard to the amplitude of theamending power which was not given due importance in the Golaknathdecision. The importance of this consideration consists in the injunctioncontained in Article 13(2) that the State shall not make any ‘ law’ which takesaway or abridges the rights conferred by Part III. An amendment of theConstitution within the terms of Articles 368 not being law within the meaningof Article 13(2) vide Shankari Prasad and Sajjan Singh case, it cannot becomevoid on the ground that it takes away or abridge the fundamental rights.But the majority decision in the Golaknath case mainly relied on Article 13(2) todistinguish its notion of fundamentalness of rights to bring their amendmentwithin its judicial purview. In doing so the Golaknath decision inducted thenatural law concept into the Constitution which the Indian Supreme Court hadbeen so far reluctant to do.The Majority justices said that “ fundamental rights” was the modern name “ forwhat has been traditionally knowns as ‘natural rights’ “ or they were “ theinalienable rights of the people.” Thus the Supreme Court assumed itself by aslender majority of six to five in the Golaknath case the role as “ the sentinel ofthe said rights and the balancing wheel between the rights, subject to socialcontrol” owing a duty to prevent the assurance given by way of fundamentalrights from being converted into “ the playthings of a special majority.” (Italicsmine.)One wonders if the qualifying phrase “ subject to social control” was not aneuphenmism for judicial control in view of the dominant theme of judicial lawmaking and a categorical immunity of fundamental rights from parliamentaryprocess. To emphasise their Lordships held that “absolute arbitrary power indefiance of fundamental rights exists nowhere under our Constitution, not evenin the largest majority.”PROVISIONS ABOUT FUNDAMENTAL RIGHTSIt is important to note in this context that there is intrinsic evidence in Part III ofthe Constitution to show that the theory of natural rights was not recognized byour Constitution makers. This is clear from the language of Article 13(2) whichspeaks of rights, ‘conferred’ by Part III and enjoins the State not to make lawsinconsistent therewith. Article 32 of the Constitution says that the right to move
the Supreme Court for the enforcement of rights ‘ conferred’ by Part III isguaranteed.Further Article 19 of the Constitution restricts the grant of the seven freedoms tothe Indian citizen. Non-citizens were denied those rights because the confermentof some of the rights on the Indian citizen was not in recognition of the pre-existing natural rights. Articles 33 confers upon the Parliament the power todetermine to what extent the rights conferred by Part III should be restricted orabrogated in their application to the members of the Armed Forces. Article359(1) empowers the President to suspend the rights’conferred’ by Part IIIduring the proclamation of an emergency. Articles 25 and 26 show that the rightto freedom to religion is not a natural right but is subject to the paramountinterest of society.The natural rights theory, by and large, stands repudiated today as noted byJustice Chandrachud in his minority judgment in Keshavananda case. Besidesbeing not natural rights, the fundamental rights are also not given speciallyprotected position in the constitution like some entrenched provisions withrespect to which an amendment is required to be ratified by the legislatures ofnot less than half of the State, after it has been passed by Parliament by specialmajority.The provisions guaranteeing fundamental rights have not been mentioned asentrenched provisions. In Sajjan singh versus State of Rajasthan JusticeGajendragadkar took the view that since fundamental rights had not beenmentioned as entrenched provisions they could be amended by Parliament by aspecial majority. But in the same case Justice Hidayatulla took the view thatsince the fundamental rights had not been mentioned as entrenched provisionsthey could not be amended at all as it could not have been the intention of theConstitution makers to make fundamental rights more easily amendable thancomparatively less important provisions mentioned as entrenched provisions.In the same case Justice Mudholkar observed that “It would be indeed strangethat rights which are considered fundamental… should be more easily capableof being abridged or restricted than any of the matters referred to in the provisoof Article 368 some of which are perhaps less vital than fundamental rights.”The majority in Golaknath case accepted this view. They observed that “itwould attribute unreasonableness to the makers of the Constitution” if “whilearticles of less significance would require consent of the majority of the States,fundamental rights can be dropped without such consent.”In the Golaknath case, however, Justice Wanchoo dissenting wondered that “ ifthere was any intention to make any part of the constitution unamendable whyshould the makers of the Constitution have failed to indicate it expressly inArticle 368 ?” In this context it is important to note as pointed out by GranvilleAustin that “It is one of the many surprising aspects of constitution-making in
India that entrenching the fundamental rights was apparently never seriouslyconsidered.”This should really cause no surprise if one appreciates properly the motivationof socio-economic justice underlying the Directive Principles of State Policy injuxtaposition with the rest of the Constitution and in particular with thefundamental rights. Yet the apparent anomalous situation led Jawaharlal Nehruto emphasise that there was “an inherent contradiction between thefundamental rights and the Directive Principles of State Policy… It is up to theParliament to removes this contradiction and make the Fundamental Rightssubserve the Directive Principles of State Policy.” (Lok Sabha Debates, 14thMarch 1955) (Emphasis supplied.)It is curious to note that the Golaknath decision while it was overanxious toprotect the fundamental rights by ingenious judicial and natural right fictionsapparently held that the power of Parliament to amend the Constitution waslimited by the express command in Article 13(2) and that all the rights and onlythose rights which were enumerated in Part III of the Constitution were “fundamental rights”.This is rather strange because there are rights, which though outside Part III arenot less fundamental to the democratic process than the rights enumerated inPart III. These are the right to vote in Articles 326, or the right to Inter Statecommerce in Article 301 which are no less important and fundamental than theright to freedom of speech and expression or the right to property.The impression is irresistible therefore that the majority Justices in theGolaknath case were so enamoured by the natural theory genesis of theindividual rights incorporated as ‘fundamental’ in Part III that any violation ofthe same was synonymous to them with the destruction of democracy; that theywere too much concerned with individual rights as such as contradistinguishedfrom social rights. But at the same time right to vote which is the very crux ofthe democratic process remains unprotected.It is clear that the Golaknath decision took a very literal, rigid and static view ofthe word ‘fundamental’ in Part III and looked at the fundamental rights in aschool-masterly fashion unmindful that Part III was a component of thecomplex constitutional instruments in which a proper construction must holdbalance between all its parts. It singularly failed to find a constitutional nexusbetween the Fundamental Rights and the Directive Principles of State Policy.Had it done so the majority in Golaknath would have found that the rightswhich are no less fundamental and democratic such as the rights to adequatemeans of livelihood in Article 39(a), the right to work in Article 41, or the rightto education in Articles 41 and 45 which though legally unenforceable at presentare “nevertheless fundamental in the governance of the country”.
It is in this context that I find Prof. S.P.Sathe’s observation to the point in hisbook Fundamental Rights and Amendment of the India constitution. Prof. Sathesays : “The premise that certain rights are transcendental and therefore beyondthe reach of the power of Parliament to amend the constitution would have beenmore meaningful if the court had ascribed the character of transcendenatalnessto rights on the basis of their intrinsic merit and proximity to the enduringvalues such as liberty, justice and equality, rather than on the basis of theirtextual position in the Constitution.”JUSTICE CHANDRACHUD ON ‘DIRECTIVE PRINCIPLES’The fundamental rights and the directive principles together constitute in thewords of Granville Austin “the conscience of the Constitution.” As regards theirrelative importance Justice Chandrachud rightly observes in his minorityjudgment in Keshavananda case that the “one is justiciable and the other notmay show the intrinsic difficulties in making the latter enforceable through legalprocesses but that distinctions does not bear on their relative importance.”He goes on to say: “ An equal rights of men and women to an adequate meansof livelihood; the rights to obtain humane conditions of work ensuring a decentstandard of life and full enjoyment of leisure; and raising the level of health andnutrition are not matters for compliance with the Writ of the Court… the basicobject of conferring freedoms (in Part III) on individuals is the ultimateachievement of the deals set out in Part IV. The freedom of a few have then tobe abridged in order to ensure the freedom of all.”Justice Chandrachud arrives at this conclusion on the basis of his conviction that“the Directive Principles of State Policy are fundamental in the governance ofthe country” and that “what is fundament in the governance of the countrycannot surely be less significant than what is fundamental in the life of anindividual.” (Emphasis supplied.)Thus it is clear that the fundamental rights in Part III are not endowed with anyexclusive fundamentalness, nor do they enjoy any special primacy over thedirective principles. And talking of abuse of powers by the passing fancy of anyparliamentary majority alleged by the critics it may be pointed out as observedby Chief Justice Marshall in Providence Bank versus Alpheus Billings (1892)that a power may be capable of being abused but the constitution is not intendedto furnish a corrective for every abuse of power which may be committed by thegovernment.And even the Golaknath decision failed in making the future safe forfundamental rights as the subsequent constitutional history shows leading to the24th and 25th amendments. And it must be noted that the alleged parliamentaryabuse of power is not confined to the possible tampering with the fundamental
rights. There is widest scope for doing so under several other constitutionalprovisions.These are powers of war and peace, the powers of finance and the powers ofpreventive detention which are capable of serious abuse and yet the FoundingFathers did confer these powers on the Parliament. This was done because trustin the elected representatives is the cornerstone of a democracy.And this was precisely what the Golaknath decision gravely distrusted and wenton to place a judicial veto on any amendment of Part III by denying to asovereign people acting through its freely elected representatives in Parliamentto implement policies according to people’s democratic mandate. It ignoredflatly that no judiciary can hold up the will of the people as expressed throughthe democratic process of free elections.The crux of the matter is as posed by Shri Seervai in his Constitutional Law ofIndia: “ If in future, Parliaments are elected with large majorities to carry outspecific policies, are they obliged to give up those policies because of anunamendable Part III, or resort to violent revolution ?” Shri Seervai thereforeconcluded that the majority judgement in the Golaknath case is “clearly wrong”and “capable of the greatest mischief and should be overruled at the earliestpossible opportunity.’JAWAHARLAL NEHRU’S OBSERVATIONSIn this context Jawahalal Nehru’s observation will merit careful consideration.Nehru said : “No Supreme court and no judiciary can stand in judgement over the sovereign will of Parliament representing the will of the entire community. If we go wrong here and there, it can point it out, but in the ultimate analysis, where the future of the community is concerned, no judiciary can come in the way. And if it comes in the was, ultimately the whole Constitution is a creature of Parliament…. It is obvious that no court, no systems of judiciary can function in the nature of a third house, as a kind of third House of correction. So it is important that with this limitation the judiciary should function… ultimately the fact remains that the legislature must be supreme and must not be interfered with by the courts of law in such measures of social reform.” (Emphasis supplied.)It is in this context I take strong exception to the contention implicit in theSupreme Court Order that Parliament is an institution created by theConstitution and hence subordinate to it, and that the 42nd, Amendment soughtto make it so powerful that it could destroy the Constitution through amendmentif it thought fit, and that the Parliament could make a mockery of the
Constitution through the invalidated Section of the 42nd Amendment by itswhims and passing fancies.And was not making a “new Constitution” or “radically changing it” byconvening a Constituent Assembly as suggested by the majority in Golaknath aneuphemism for “destroying “ one and creating another constitution? And thiswas to boot an untenable procedure as pointed out by constitutional experts likeShri Seervai. What is wrong then in leaving the Parliament to follow itsmajority will once it is elected? Why doubt its constitutional validity ordemocratic bonafies?The whole point of the Golaknath decision was that it was an ingenious judicialdevice to make neither Parliament, nor Constitution supreme but renderingjudicial review sacrosanct, by setting itself as a super legislature. But a conceptof judicial review appears to rest on tenuous grounds as a brief considerationwill show.If pursued to logical conclusion the concept of judicial review would bring intoquestion not only the doctrine of separation of powers but also theparliamentary process which is the very foundation of any democracy. As JudgeLearned Hand observed in his book The Bill of Rights: “It was a plausible,indeed, to my mind an unanswerable argument that it (Judicial review) invadedthat ‘ Separation of Powers” which as many believed was the condition of allfree Governments.”In historical constitutional retrospect one can find the origin of autonomousjudicial review in the classis American case of Marbury vs. Madison (1803) thejudicial consequences of which were almost analogous to that of the Golaknathcase. In this case in the absence of any constitutional directives about judicialreview of legislation chief Justice Marsall relied on a priori reasoning when heobserved that it was “a proposition too plain to be contested that theConstitution controls any legislative act repugnant to it.”Alexander Hamilton’s Federalist paper Number 78 had anticipated this positionand it dismissed the argument as without weight that the courts would substitutetheir own will for the legislative intention in the process of judicial review.Marbury vs. Madison had far reaching constitutional consequences, And evenMr,Justice Holmes though he believed such judicial review necessary also heldthat the United States might survive without a Supreme Court to invalidate theActs of Congress. As regards its consequences, it was said in AustralianCommunist Party vs. Commonwealth: “If the great case of Marbury vs. Madisonhad pronounced a different view (judicial review) might perhaps not arise ineven in the case of the Commonwealth Parliaments; and there are those, eventoday, who disapprove of the doctrine of Marbury vs. Madison and who do notsee why the courts rather than the legislature itself should have the function of
finally deciding whether an act of a legislature in a Federal Systems is or is notwithin power.”CONSTITUENT ASSEMBLY DEBATESIn the Indian constitutional context is transpires from the constituent AsemblyDebates that though the courts were invested with basic powers of review it wasfelt not advisable to give the Supreme Court exclusive jurisdiction in the sphereof the fundament rights. The limitations on judicial review were as Sir AlladiAyyar put in his letter to Jawaharlal Nehri: “While there can be no two opinion on the need for maintenance of judicial independence, both for safeguarding of individual liberty and the proper working of the Constitution, it is also necessary to keep in view one important principle that the doctrine of independence is not to be raised to the level of a dogma so as to enable the judiciary to function as a kind of super legislature or super executive. The judiciary is there to interprete the Constitution or adjudicate upon the rights between the parties concerned. As has been pointed out recently in a leading decision of the Supreme Court (of the Unite States), the Judiciary as much as the Congress and the Executive, is depending for its proper functioning upon the co- operation of the other two.” (quoted in Granville Austin’s Indian Constitution: Cornerstone of a Nation).Nor is there any ground for the judiciary to be overscrupulous of its powers ofjudicial review thought it is very tempting to do so when there is anoveremphasis on fundamental rights with least regard to the correspondingobligations. In a very significant and profound study Judicial Review in theContemporary World, Mauro Cappellitti has argued that” the law also changes,and even the fundamental values are mutable. One could say, to paraphraseBenjamin Constant that the liberty of today is not of other times an the same canbe said of justice and all other values.”Concluding on judicial review Cappellitti says : “So it is that in spite of its universal appeal, judicial review remains an enigmatic institution. It operates principally in States with democratic philosophies; yet, it claims the rights to frustrate, in certain situations, the will of the majority. Its decision are often preeminently political, yet they are made by men not themselves responsible to the electorate. The theoretical power of the judge of constitutionality is awesome; yet in the end he has ‘neither sword nor purse’ and must depend on others to give his decisions meaning.”
Which amounts to a tacit recognition of the limitations of judicial review in aparliamentary democracy. And the fact is that the Indian Supreme Court didacquiesce in these limitations till the advent of the Golaknath case. Nothinghappended in this intervening period of about a decade and a half to warrant thefear that would lead to their flagrant abuse in the legislative sphere orundermine the constitutional freedoms.REGRESIVE TREND OF SUPREME COURTBut unfortunately the Golaknath case upset constitutional balance and judicialstability in a mischievous and dangerous manner. And instead of beingoverruled the Golaknath trend persisted in the major legal battle in the BankNationalisation case and the Privy Purses case culminating in theKeshavananda Bharathi case in 1973. The latest Supreme Court Order has put aJudicial seal of approval on this regressive trend in the Supreme Courtdecisions.It is instructive to look into these cases in order to appreciate the logical andconstitutional link between the judicial decisions and parliamentaryamendments. Under the Bank Nationalisation Act the compensation was fixedafter taking into consideration the ruling decision of the Supreme Courtrendered in the case of the State of Gujarat vs. Shantilal Mangaldas (3) SCR341, 1969.The genesis of the controversial issue of compensation in the case of ShantilalMangaldas can be found in the Bela Bannergee case (1954,SCR,558) when theSupreme Court held that the word, “compensation”as provided in Article 31,Clause 2 meant full market value of whatever property that is acquired. Thisdecision showed that the belief of the framers of the Constitution that the scopefor judicial review of compensation for acquisition of land would be verylimited was mistaken.Article 31 Cl.2 was then amended as the Fourth Amendment to the Constitutionto enable it to have the same force that was originally intended by theConstitution makers, that is to exclude judicial review from the question of theactual amount of compensation when the property was acquired by theGovernment.The scope of the fourth Amendment of the Constitution came up forinterpretation by the Supermen Court in the case of State of Gujarat vs.Shantilal Mangaldas. In this case the Supreme Court upheld the fourthamendment excluding judicial review on the question on the adequacy ofcompensation. Parliament, therefore, enacted the Bank Nationalisation Act
based on the interpretation of Article 31(2) given in the Shantilal MangaldasCase.Yet in the Bank Nationalisation case when the matter came before a Bench ofeleven judges, the Court decided that the Act was bad because the principles forcompensation were not relevant and therefore stuck it down. In arriving at thisdecision the Supreme court “distinguished” the case of Shantilal Mangaldaswhich meant that the propositions approved in that case were overruled .Next in the Privy Purses case (1971), the Government acted on the basis of theunanimous decision of the Supreme Court in Usman Ali’s case (1965,(3) SCR,201). In this case the decision was given by Chief Justice Subba Rao and Shahand Bachawat J.J. The Judges said :“On the coming into force of theConstitution of India the guarantee for the payment of periodical sums as privypurses is continued by Articles 291 of the Constitution, but it is essentially of apolitical character as preserved by Article 363 of the constitution and theobligation in this guarantee cannot be enforced in any municipal court.”It is pertinent to note that this judgement belonged to the pre-Golaknath era ofthe Supreme Court. It was clear from this decision that the Government’s powerto withdraw recognition and cease payment of privy purses was in essencepolitical and hence its validity could not be challenged in any court.But curiously when the Princes challenged the order withdrawing recognition,the court” distinguished” Usman Ali’s case and quashed the government order.Consistency may be a hobgoblin of little iminds, but at least in the judicialsystems based on the English jurisprudence and, particularly in the SupremeCourt it is “the normal principle that the judgements pronounced by this Courtwould be final, cannot be ignored” as Chief Justice Gajendragadkar observed inthe Bengal Immunity case.The point of grievance in the Golaknath, Bank Nationalisation, and PrivyPurses case is not that the court stuck down laws and orders of the Government,but that when the Government proceeded to legislate or to pass an executiveorder on the basis of existing decisions of the Court, the Court set aside the Actor the Government order by reversing its own previous decisions not onconsiderations of substantial and compelling character but in pursuance of aningeneously regressive judicial philosophy.24TH AND 25TH AMENDMENSThis departure from solid precedent in the Supreme Court created a graveuncertainty about the state of law. Moreover, these decisions had the effect ofthwarting vital pieces of legislation embodying policies of socio-economicreform. It was understandable therefore the Parliament was led to the enactment
of the 24th and 25th Amendments to the Constitution covering Article 368 andthe insertion of new Articles 31-C.These two Amendments sought to achieve the twin objective: (1) To make theamending power of Parliament wide enough to enable it to amend every articleand every part of the constitution and (2) To render the Directive Principles inClause (b) and Clause(c) of Article 39 superior to Fundamental Rightsconferred by Articles 14, 19 and 31. These amendments were challenged in theHis Holiness Keshavananda Bharathi versus State of Kerala case which washeard by a Thirteen Member Bench of the Supreme Court.The Keshavananda case was decided by a slender majority of 7 to 6. The sixdissenting Justices headed by Justice Ray clearly laid down “(i) that theGolaknath decision was wrongly decided and hence overruled, (ii) that there areno limits to Parliament’s power to amend the Constitution and therefore boththe 24th and 25th Amendments were fully valid as the procedure laid down underArticle 368 had been strictly followed, and (iii) that the judicial review excludedin Articles 31C of the question, whether or not particular enactment did seek togive effect to Article 39(b) and (c) was valid.The majority decision in a general sense had the effect of overruling theGolaknath case. In fact, both Chief Justice Sikri and Justice Grover were partiesto the summary signed by them which said:“Golaknath’s case is overruled” andthat the 24th Amendment is valid. This was not what Shri N.A. Palkhivala, thecounsel for the petitioners was seeking; he was in fact seeking the invalidationof the 24th Amendment.But the 24th Amendment stood its constitutional ground as held unanimously byall the 13 Judges; still most curiously the petitioners’ arguments were acceptedby some of the Judges responsible for the majority judgement in that despite thelanguage of the widest amplitude used in the amended Article 368 there stillremained certain “essential features” of the Constitution which could not bealtered or destroyed which presaged a constitutional period of endlessuncertainty and doubt.The majority decision was evidently a curious constitutional case of judicialdouble-think. If the 24th Amendment was to be held valid than the Golaknathcase had to be overruled, and yet an ingenious constitutional device was foundfor the backdoor entry of the Golaknath spirit of the inviolability ofFundamental rights by creating a new dimension of basic structure andframework which included fundamental rights among other things and wasbeyond the reach of the Parliament.BASIC STRUCTURE OF CONSTITUTION
About the nature of this constitutional basic structure there was no unanimityin the phraseology of the majority judgements. But with all the divergence onthe character of the basic structure seven Judges signed the summarysubscribing to the phraseology used by Justice Khanna and said : “ Article 368does not enable Parliament to alter the basic structure, or framework of theConstitution.” This was the mouse found after digging the constitutionalmountain.The judicial search for the basic features and structure of the Constitutionreminds one of the parable of blind men and elephant who formed their ideas ofthe animal by touching its different parts and mistook the part for the whole.The majority exercise in the Keshavanand case was thus losing sight of theconstitutional wood for its trees.It is pertinent to remember in this context that Justice Chandrachud in hisminority judgement in the Keshavananda case said in his conclusion that (1) thepower of amendment of the Constitution conferred by the then Article 368 waswide and unfettered, it reached every part of the Constitution, and (2) “There areno inherent limitions on the amending power in the sense that the AmendingBody lacks the power to make amendments so as to damage or destroy theessential features or the fundamental principles of the Constitution.”This was because as Justice Chandrachud observed in the course of hisjudgement dealing with the petitioners’ argument that the Parliament mayamend the provisions of Part III, but not so as to damage or destroy the core ofthose rights or the core of the essential principles of the Constitution: “I seeformidable difficulties in evolving an objective standard to determine whatwould constitute the core and what the peripherals layer of the essential of theConstitution. I consider the two to be inseparable.”(Emphasis mine)The doctrine of the basic structure of constitution was subsequently crystallizedin the Election case, that is, Indira Nehru Gandhi versus Raj Narain (1975)which was considered by a five member Constitution Bench of the SupremeCourt. This case was argued on the basis that the Judges were bound by themajority judgements in the Keshwananada case. The question was whether aconstitutional amendent, 39th Amendment validating a disputed election by alegislative judgement damaged or destroyed an essential feature of democracyas envisaged by our Constitution. In this case the majority of the Judges admitted the appeal of Smt. IndiraGandhi against the judgement of Justice Sinha and set aside the verdict of ofinvalidation of her election. This was done in terms of the Election Laws(Amendment) Act. However, the judicial consensus was (Ray C.J. and Begdissenting) that the newly inserted Article 329-A(4) to be in contravention ofthe Keshavananda decision on the amendin power of Parliament, and
invalidated it because it impaired certain basic and essential features of theConstitution.But Justice Chandrachud J.’s observation in this context is pertinent. On thequestion whether the Election Amendment violated the basic structure, the ratioof the majority Judgements in Keshavananda case was considered. In JusticeChandrachud opinion: “The ratio of the majority judgement is not that some named feature of the Constitution are a part of its basic structure but that the power of amendment cannot be exercised so as to damage or destroy the essential elements or the basic structure of the Constitution, whatever these expressions may comprehend… for determining whether a particular feature of the constitution is a part of its basic structure one has perforce to examine in each individual case the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of the country’s governance.”(Emphasis added.)This was a formidable judicial proposition coming from the highest court of theland. There could no longer be any stability or certainty of the fundamentaljiducial positions adopted by the Supreme Court. As a matter of fact the positionwas actually worse than at the time when the Golaknath decision upset theconstitutional balance. At least in that case the Supreme Court had laid downthat every Article was amendable except the fundamental rights.In this context the doctrine of the basic structure and essential leatures ofContitution clearly means it could be anything whatever the Judges decide it tomean as the wide divergence of opinion on basic features in the Keshavanandacase made it evident. It was this ambiguity about the basic structure and thejudicial assumption of the power to determine it which led the Parliament tomake explicitly the constituent amending power by an express clarification inClause 4 and 5 in amendment to Article 368 by the 42nd Amendment.NULLIFICATION OF CONSTITUTIONAL EVOLUTIONAs if this was not a step retrograde enough ( in striking down the Clauses 4 & 5)the Supreme Court has also held Section 4 of the 42nd Amendment void. Thus byone judicially subversive stroke the Supreme Court has once again nullified theconstitutional evolution in socio-economic justice up to the point of 25thAmendment. If this is “momentous” it is not so in restoring the illusory primacyof fundamental rights over the directive principles but in taking a completejudicial U turn in the constitutional law as reflected in the Supreme Courtdecisions.
The Indian constitution today is back to square one of the Golknath decision asa result of the latest Supreme Court decision. It is pregnant with greatconstitutional mischief and has needlessly opened the old constitutionalwounds. Even assuming that the unlimited constituent amending powers weresubversive and in fact subverted the Constitution during the Emergency was itnot the democratic process again which asserted itself through the elections bythe then Prime Minister, Smt. Gandhi- who allegedly had destroyed democracyleading to the induction of the Janta Government and repeal of the 39thAmendment and other features of the 42nd Amendment ? Did this happen byvirture of the judicial process and its power to review the Parliamantaryamending power or by virtue of the democratic proceses?It cannot be stressed too often that the Constitutional evolution of Amendmentsfrom 1967 to 1976 from the Golaknath case to the 42nd Amendment clearlybrings home that it was the ambiguous and regressive judicial stand adopted bythe Supreme Court judges upheld by a very slender majority of one that led toprogressive clarificatory amendments. It is significant to note that all theseSupreme court decisions and consequent amendments revolved around thefundamental rights to property and the other related rights and Parlimament’power to amend the same.But the Supreme Court decision striking down Section 4 of the 42ndAamendment having nexus with Articles 39 (b) and (c) is judicially pointlesslike closing the stable door after the horse has bolted because the property rightsitself has been taken out of the fundamental rights chapter by the 44 amendmenteffected during the Janata rule and converted from a “Fundamental” to a “legal’right by inserting new Chapter IV in Part XII of the new Constitutional Article300A.It is amazing indeed that the Chief Justice Chandrachud should have been aparty to this Supreme Court decision striking down the 42nd Amendment whichis clearly totally against the judicial convictions expressed in his minorityjudgement in the Keshavananda case. In that case Justice Chandrachud was notscared by the lurid picture painted by the petitioner’s counsel of theconsequences which will ensue if a wide untrammeled power is conceded to theParliament to amend the Constitution because in a democratic polity peoplehave the right to decide what they want and they can only express their willthrough their elected representative.In the same judgement Justice Chandrachud had also conceded the postulate ofour Constitution “which aims at bringing about a synthesis between‘Fundamental Rights’ and the ‘Directive Principles of State Policy’ be giving tothe former a pride of place and to the latter a place of permanence. Together,not individually, they form the core of the Constitution, said JusticeChandrachud.
Another glaring anomaly of this Supreme Court decision striking down the 42ndAmendment is that on 9th May 1980 when this opinion was delivered, anotherfive-member bench of the Supreme Court presided over by the Chief Justicealso delivered an opinion, on the same day, upholding the agricultural landceiling laws of Maharashtra, Andhra Pradesh, Haryana, Uttar Pradesh and WestBenagal. This Bench unanimously declared the constitutionality of theamended Artice 31-C as well as other concerned constitutional provisions. Thus it is clear that the one hand of the Supreme Court judiciary is completelyoblivious as to what its other hand is doing. The judicial relapse in theconstruction under which the Supreme Court Order has struck down 42ndAmendment has merely compounded the confusion and constitutionaluncertainty on the questions of the so-called basic structure of the Constitution,the Parliament’s power of amendment and as a corollary the extent of judicialreview. This shows that the ghost of Golaknath decision is still hauntinguneasily the judicial corridors of the Supreme Court.The theory of “essential features”and “basic structure”of the constitutioninvented by ingenious judicial construction bristles with endless constitutionalwrangle. Shri H.M.Seervai has sought at length to justify the doctrine of basicstructure and features in the second edition of his Constitutional Law ofIndia(1976). But in my opinion Shri Seervai’s closely argued critique of theconstituent power defending the doctrine of basic features and his extraordinarystand that fundamental rights are really pre-eminent over social rights clearlygoes counter to the constitutional stand taken by him in the first edition reprintin 1968 notwithstanding his defence that the Election case had given a newgiven a new dimension to the amending power.Shri Seervai had then observed quoting with approval Roosevelt’s famous‘packing the court’ speech and Jawaharlal Nehru’s constituent assembly speechin similar vein that “if governments elected with large popular support find thattheir polices cannot be carried out because Part 3 is permanent, and alternativeconfronting them is either a violent revolution or a reconstituted court, there islittle doubt that they will act as President Roosevelt acted.”Not only that but Shri Seervai went on to remind that in Nehru’s words “thewhole Constitution is a creature of Parliament” and observed that “It would be astrange irony if judgment which seek to preserve cherished human rights notonly fail to do so, but lead to the destruction of a cherished judicialsystem.”(30.46, p.1119).IS PARLIAMENT SUPREME ?Ironically it is precisely this constitutional and judicial stage which has beenreached today in India. The crux of the problem is whether the Socialist,Secular, Democratic Republic envisaged by the Constitution provides for the
Parliament as Supreme in matters of legislative policy or whether the Judgescan impose on Parliament their own policies, their own understanding of what isgood or bad for the people.I wonder therefore in Roosevelt’s words whether India today has not reached “the point as a Nation where we must take action to save the Constitution from the Court and the Court from itself. We want a Supreme Court which will do justice under the Constitution- not over it. In our Courts we want a government of laws and not of men……that means a Supreme Court that will enforce the Constitution as written, that will refuse to amend the Constitution by an arbitrary exercise of judicial power- amendment of judicial say- so.” (Emphasis added.)It is for this reason if not for anything else there is an imperative need for theUnion Government to review the Supreme Court decision in the entireconstitutional perspective. The entire constitutional framework needs a closeretrospective look so as to co-ordinate the constitutional provisions into aconsistent whole and direct them to subserve the Preambulary ideal of aSocialistic, Secular, Democratic Republic.In this context it must be recalled that before the judgements in the Electioncase were delivered the Union of India had taken steps to secure areconsideration of Keshavananda case. Accordingly the Court had indicatedthat the petition would be heard on November 10, 1975 by a bench of 13 Judgesfor considering (1) whether the power of amendment of the Constitution wasrestricted by the theory of basic structure and framework as propounded inKeshavananda case, and (2) whether the Bank Nationalisation case wascorrectly decided.On November 10, 1975 a large number of writ petitions were placed before a13-Member Bench when an objection was raised to the Union Government’sapplication for a reconsideration of Keshavananda’s case. The arguments wereheard for two days and on November 12, 1975 as soon as the Court assembled,Ray CJ. Informed the parties that the Bench had been dissolved and thespecified matter would be posted for hearing before the Constitution Benchwhich after considering the matter may, if it thought necessary, refer the matterto a larger bench.The matter was obviously not pursued further in view of the politicaluncertainty. Now that the Supreme Court has once again given a fresh lease ofconstitutional life to the theory of basic structure even by burying the“fundamental” significance of Directive Principles of State Policy the mattercannot be delayed and longer.
However, it has to be borne in mind that whatever the outcome of the judicialreview by a special bench as asked by the Union Government the constitutionalissues will not be finally settled unless and until the judiciary sagaciouslydecides to steer clear of the Parliamentary amending power as a “politicalquestion” and hence addressed exclusively to the people’ representative.In this context it becomes clear once again that the constitutional and judicialvolte-face of the Supreme Court on the issue of amendment power and itsfailure to come to a synthesis of Fundamental Rights with Directive Principlesare regressive and anomalous constitutional steps which need timely correctionto avoid a confrontration injurious to the interests of our democratic policy.Published by Government of Maharashtra, 1980COPYRIGHT________________________________________________________________