Supreme courts volte face on Constitutional Amendmendt

SUPREME COURTS

VOLTE-FACE

ON CONSTITUTIONAL AMENDMENT

By

BAL PATIL

I think it is a matter of serious concern for the constitutional destiny of
the nation because I fear the Supreme Court’s order striking down 42nd
Amendment relating to Section 4 and Section 55 is the most regressive
step 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 the
Parliamentary amending power and the primacy of Fundamental Rights vis-a vis
Directive Principles of State Policy. To make the constitutional confusion worse
confounded the Supreme Court’s Order strikes down the 42nd Amendment on the
ground that the impugned provisions violate the basic features of the Constitution.

I think the Union Government has rightly filed in the Supreme Court a petition
seeking review by a larger bench of not less than seven judges of the Supreme
Court’s Order striking down 42nd Amendment. The Order needs reconsideration
because as noted by the Union Law Minister it would have far reaching
consequences amounting to an amendment of the Constitution.

There is a clamour in the press appealing to the Government that it should accept
the Supreme Court Order. It is contended that the Supreme Court has reestablished
two fundamental constitutional principles, one, that Parliament cannot amend the
constitution so as to remove all limitation on its amending power, and two that the
Fundamental Rights under the Constitution are indeed fundamental and cannot be
subsidiary to the Directive Principles.

PROCESS OF CONSTITUTIONAL AMENDMENT

To rebut these contentions it would be necessary to take a synoptic view of the
tortuous course the process of constitutional amendment has run since 1951 when
the first amendment was passed by the Parliament. It is pertinent to remember that
the first Amendment to the Constitution was passed by the members of the
Constituent Assembly sitting as the Provisional Parliament.

The validity of the First Amendment Act, 1951 was challenged in the Supreme
Court 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 it
purported to take away or abridge the rights conferred by Part III falls within the
prohibition of Articles 13(2) and was therefore unconstitutional. Justice Patanjali
Shastri speaking for the unanimous Court rejected this argument holding as follows:

“No doubts, our Constitution-makers, following American model, have
incorporated certain fundamental rights in Part III and made them immune from
interference by laws made by the State. We find it, however, difficult in the
absence of a clear indication to the contrary, to suppose that they also intended to
make those rights immune from constitutional amendment.

“On the order hand, the terms of Article 368 are perfectly general and empower
Parliament to amend the Constitution, without any exception whatever.

“We are of the opinion, that in the context of Article 13 ‘Law’ must be taken to
mean rules and regulations made in exercise of ordinary legislative power with the
result and Article 13(2) does not affect amendments made under Article 368.”

This matter once against came before the Supreme Court when the Seventeenth
Amendment was challenged in Sajjan Singh versus State of Rajasthan in 1965
before A 5- Member Bench presided over by Chief Justice Gajendragadkar. One of
the arguments urged that the Amendment Act was void in view of the provisions of
Article 13(2), in so far as the Act purported to abridge the Fundamental rights
guaranteed by Part III.

Chief Justice Gajendragadkar delivering the majority judgment on behalf of
himself, Wanchoo and Raghubar Dayal, JJ., concurred with the reasoning in the
Shankari Prasad and observed that the expression “amendment of the Constitution”
plainly and unambiguously means amendment of all the provisions of the
Constitution and therefore the amending power conferred by Article 368 extended
to all the provisions of the Constitution.

In this case, however, Hidayatulla and Mudholkar, JJ. Though they concurred with
the final conclusion, doubted the majority view by separate judgments and observed
that it was possible that Article 368 merely laid down the procedure for amending
the 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 final
opinion on that question.

GOLAKNATH CASE

That was the Indian constitutional position on the issue of amendment till 1967
when a 11 Member Bench of the Supreme Court held in Golaknath versus State of
Punjab on February 27, 1967, by a slender majority of one that the ‘fiction’ that a
constitutional amendment was not ‘law’ within the meaning of this Article 13 could
not be accepted, and that the fundamental rights “are given a transcendental position
and kept beyond the reach of the parliament.”

This was the beginning of the constitutional watershed which crystallized later in
the Keshavananda Bharathi case decision. But it is interesting to note that Justice
Chandrachud in his minority judgment in that Keshavanda case said significantly:
“The seeds of the controversial decision in the Golaknath and Others versus State
of Punjab and Another were sown by the doubt expressed by Hidayatulla and
Mudhokar ,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 rights
were ‘ transcendental’ and therefore must not be allowed to be whittled by any
majority in Parliament. Nevertheless as noted by Justice Chandrachud in his
majority judgement in the Keshavananda case the “petitioners in the Golaknath
case won but a pyrrhic victory.’ because the laws they had come to obtain a
declaration as unconstitutional on the ground that they affected their
fundamental rights were upheld by the Court. Yet there was consolation in the
fact that the decision put a bar on any future abrogation of the fundamental
rights by taking recourse to the Amercian judicial doctrine of “prospective
overruling” as evidenced in Link later versus Walker (1965).

‘PROSPECTIVE OVERRULING’ TECHNIQUE

The technique of “prospective overruling” is an ingenious judicial device to
preserve the past and protect the future. In the Golaknath case the majority view
faced a judicial dilemma that even if it was necessary to overrule the earlier
decisions from Shankari Prasad to Sajjan Singh on the basis of which various
laws embodying agrarian and other economic reforms had been enacted “it
would introduce chaos and unsettle the conditions in our country” as observed
by Chief Justice Subba Rao.

On the other hand the learned Chief Justice feared that if the court were to hold
that Parliament had the power to amend the constitution so as to take away or
abridge the fundamental rights “a time might come when we would gradually
and imperceptibly pass under a totalitarian rule.” In addition, Chief Justice
Subba Rao believed that the judicial function of a constitutional court could not
be restricted to law finding along but extended to judicial law making to “suit
the expanding needs of society.

In other words the majority view in Golknath sought to establish that the
existing provisions in the Constitution were elastic enough to accommodate the
future social change without requiring formal constitutional amendment. Thus
the Supreme Court was to be the mentor of the socio-economic transformation
envisaged 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 to
the extent it was necessary to save the past executive acts done in pursuance of
the impugned amendments. The Golaknath decision had arrived at the
conclusion that the Parliament did not have the power to amend the Constitution
so as to take away or abridge any of the fundamental rights and that the
Parliament in future would not have that power.

How could then the Supreme Court allow the unconstitutional amendments to
operate in future in spite of the fact that in the opinion of the majority in
Golaknath they violated the fundamental rights? Justice Wanchoo had observed

that the court could not save a law from the vice of unconstitutionality if in its
opinion it violated the fundamental rights. This was the glaring constitutional
flaw in the scheme of judicial law making as envisaged by the then Chief
Justice Subba Rao.

With all their enthusiasm to rescue fundamental rights from the passing
parliamentary majorities the majority Justices in the Golaknath case did not go
so far as to ascribe immutability to any constitutional provision. They suggested
that Parliament might convene a Constituent Assembly for making a “new
Constitution” 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 Constituent
Assembly and then that Assembly may be able to abridge or take away the
fundamental rights if desired.”

This was apparently a far fetched constitutional rationalization and fallacious
too. This judicial reasoning also has an important bearing on the relationship
between the Parliament and the constitution on the point as to which is the
creature of which. As Shri Seervai rightly pointed out that “ if a law made by
Parliament to amend Part III… is void in contravening Article 13(2), law passed
by the same Parliament, convening a Constituent Assembly and authorizing it to
do that very thing, must be equally void. For what Parliament cannot do itself, it
cannot authorize another body to do.”

The basic fallacy in the Golaknath stemmed from the fact of the majority
judicial distrust in popular will as manifested in Parliamentary majority. The
Preamble of the Constitution shows that the final authority on whose behalf the
Constitution was enacted are the “people of India.” According to Article 326 the
people of India acting through their Constituent Assembly vested the power of
constitutional amendment in the future Parliament to be elected on the basis of
adult franchise.

Moreover one should not forget that the Constituent Assembly was elected
through indirect election on the basis of much restricted franchise. Therefore as
noted by Granville Austin in his Indian constitution : Cornerstone of a Nation it
could hardly be said that the Parliament which was to be subsequently elected
would be less democratic than the Constituent Assembly.

The judicial logic of the inviolability of Fundamental Rights in the Golaknath
case which was propped up by the patently untenable recourse to prospective
overruling and distrust of Parliamentary majority was based on two premises:
one, that there is no difference between ordinary law and constitutional law in
terms of their subjection to judicial review as to their consistency with the
fundamental rights, and two, that fundamental rights were transcendental,
natural rights.

In holding thus that there was no difference between constituent law and statute
law the Golaknath decision set at nought the distinction between the ‘controlled’
or rigid and ‘ uncontrolled’ or flexible constitutions. The point of distinction lies
in that in a ‘controlled’ constitution a different procedure is prescribed for
making ordinary laws, while in an ‘uncontrolled’ one the procedure for
amending the constitution is the same as that for making ordinary laws.

This was the basic bone of contention with regard to the amplitude of the
amending power which was not given due importance in the Golaknath
decision. The importance of this consideration consists in the injunction
contained in Article 13(2) that the State shall not make any ‘ law’ which takes
away or abridges the rights conferred by Part III. An amendment of the
Constitution within the terms of Articles 368 not being law within the meaning
of Article 13(2) vide Shankari Prasad and Sajjan Singh case, it cannot become
void 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) to
distinguish its notion of fundamentalness of rights to bring their amendment
within its judicial purview. In doing so the Golaknath decision inducted the
natural law concept into the Constitution which the Indian Supreme Court had
been so far reluctant to do.

The Majority justices said that “ fundamental rights” was the modern name “ for
what has been traditionally knowns as ‘natural rights’ “ or they were “ the
inalienable rights of the people.” Thus the Supreme Court assumed itself by a
slender majority of six to five in the Golaknath case the role as “ the sentinel of
the said rights and the balancing wheel between the rights, subject to social
control” owing a duty to prevent the assurance given by way of fundamental
rights from being converted into “ the playthings of a special majority.” (Italics
mine.)

One wonders if the qualifying phrase “ subject to social control” was not an
euphenmism for judicial control in view of the dominant theme of judicial law
making and a categorical immunity of fundamental rights from parliamentary
process. To emphasise their Lordships held that “absolute arbitrary power in
defiance of fundamental rights exists nowhere under our Constitution, not even
in the largest majority.”

PROVISIONS ABOUT FUNDAMENTAL RIGHTS

It is important to note in this context that there is intrinsic evidence in Part III of
the Constitution to show that the theory of natural rights was not recognized by
our Constitution makers. This is clear from the language of Article 13(2) which
speaks of rights, ‘conferred’ by Part III and enjoins the State not to make laws
inconsistent therewith. Article 32 of the Constitution says that the right to move

the Supreme Court for the enforcement of rights ‘ conferred’ by Part III is
guaranteed.

Further Article 19 of the Constitution restricts the grant of the seven freedoms to
the Indian citizen. Non-citizens were denied those rights because the conferment
of 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 to
determine to what extent the rights conferred by Part III should be restricted or
abrogated in their application to the members of the Armed Forces. Article
359(1) empowers the President to suspend the rights’conferred’ by Part III
during the proclamation of an emergency. Articles 25 and 26 show that the right
to freedom to religion is not a natural right but is subject to the paramount
interest of society.

The natural rights theory, by and large, stands repudiated today as noted by
Justice Chandrachud in his minority judgment in Keshavananda case. Besides
being not natural rights, the fundamental rights are also not given specially
protected position in the constitution like some entrenched provisions with
respect to which an amendment is required to be ratified by the legislatures of
not less than half of the State, after it has been passed by Parliament by special
majority.

The provisions guaranteeing fundamental rights have not been mentioned as
entrenched provisions. In Sajjan singh versus State of Rajasthan Justice
Gajendragadkar took the view that since fundamental rights had not been
mentioned as entrenched provisions they could be amended by Parliament by a
special majority. But in the same case Justice Hidayatulla took the view that
since the fundamental rights had not been mentioned as entrenched provisions
they could not be amended at all as it could not have been the intention of the
Constitution makers to make fundamental rights more easily amendable than
comparatively less important provisions mentioned as entrenched provisions.

In the same case Justice Mudholkar observed that “It would be indeed strange
that rights which are considered fundamental… should be more easily capable
of being abridged or restricted than any of the matters referred to in the proviso
of Article 368 some of which are perhaps less vital than fundamental rights.”
The majority in Golaknath case accepted this view. They observed that “it
would attribute unreasonableness to the makers of the Constitution” if “while
articles 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 “ if
there was any intention to make any part of the constitution unamendable why
should the makers of the Constitution have failed to indicate it expressly in
Article 368 ?” In this context it is important to note as pointed out by Granville
Austin that “It is one of the many surprising aspects of constitution-making in

India that entrenching the fundamental rights was apparently never seriously
considered.”

This should really cause no surprise if one appreciates properly the motivation
of socio-economic justice underlying the Directive Principles of State Policy in
juxtaposition with the rest of the Constitution and in particular with the
fundamental rights. Yet the apparent anomalous situation led Jawaharlal Nehru
to emphasise that there was “an inherent contradiction between the
fundamental rights and the Directive Principles of State Policy… It is up to the
Parliament to removes this contradiction and make the Fundamental Rights
subserve the Directive Principles of State Policy.” (Lok Sabha Debates, 14th
March 1955) (Emphasis supplied.)

It is curious to note that the Golaknath decision while it was overanxious to
protect the fundamental rights by ingenious judicial and natural right fictions
apparently held that the power of Parliament to amend the Constitution was
limited by the express command in Article 13(2) and that all the rights and only
those 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 are
not less fundamental to the democratic process than the rights enumerated in
Part III. These are the right to vote in Articles 326, or the right to Inter State
commerce in Article 301 which are no less important and fundamental than the
right to freedom of speech and expression or the right to property.

The impression is irresistible therefore that the majority Justices in the
Golaknath case were so enamoured by the natural theory genesis of the
individual rights incorporated as ‘fundamental’ in Part III that any violation of
the same was synonymous to them with the destruction of democracy; that they
were too much concerned with individual rights as such as contradistinguished
from social rights. But at the same time right to vote which is the very crux of
the democratic process remains unprotected.

It is clear that the Golaknath decision took a very literal, rigid and static view of
the word ‘fundamental’ in Part III and looked at the fundamental rights in a
school-masterly fashion unmindful that Part III was a component of the
complex constitutional instruments in which a proper construction must hold
balance between all its parts. It singularly failed to find a constitutional nexus
between the Fundamental Rights and the Directive Principles of State Policy.

Had it done so the majority in Golaknath would have found that the rights
which are no less fundamental and democratic such as the rights to adequate
means of livelihood in Article 39(a), the right to work in Article 41, or the right
to education in Articles 41 and 45 which though legally unenforceable at present
are “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 his
book Fundamental Rights and Amendment of the India constitution. Prof. Sathe
says : “The premise that certain rights are transcendental and therefore beyond
the reach of the power of Parliament to amend the constitution would have been
more meaningful if the court had ascribed the character of transcendenatalness
to rights on the basis of their intrinsic merit and proximity to the enduring
values such as liberty, justice and equality, rather than on the basis of their
textual position in the Constitution.”

JUSTICE CHANDRACHUD ON ‘DIRECTIVE PRINCIPLES’

The fundamental rights and the directive principles together constitute in the
words of Granville Austin “the conscience of the Constitution.” As regards their
relative importance Justice Chandrachud rightly observes in his minority
judgment in Keshavananda case that the “one is justiciable and the other not
may show the intrinsic difficulties in making the latter enforceable through legal
processes 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 means
of livelihood; the rights to obtain humane conditions of work ensuring a decent
standard of life and full enjoyment of leisure; and raising the level of health and
nutrition are not matters for compliance with the Writ of the Court… the basic
object of conferring freedoms (in Part III) on individuals is the ultimate
achievement of the deals set out in Part IV. The freedom of a few have then to
be 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 of
the country” and that “what is fundament in the governance of the country
cannot surely be less significant than what is fundamental in the life of an
individual.” (Emphasis supplied.)

Thus it is clear that the fundamental rights in Part III are not endowed with any
exclusive fundamentalness, nor do they enjoy any special primacy over the
directive principles. And talking of abuse of powers by the passing fancy of any
parliamentary majority alleged by the critics it may be pointed out as observed
by Chief Justice Marshall in Providence Bank versus Alpheus Billings (1892)
that a power may be capable of being abused but the constitution is not intended
to furnish a corrective for every abuse of power which may be committed by the
government.

And even the Golaknath decision failed in making the future safe for
fundamental rights as the subsequent constitutional history shows leading to the
24th and 25th amendments. And it must be noted that the alleged parliamentary
abuse of power is not confined to the possible tampering with the fundamental

rights. There is widest scope for doing so under several other constitutional
provisions.

These are powers of war and peace, the powers of finance and the powers of
preventive detention which are capable of serious abuse and yet the Founding
Fathers did confer these powers on the Parliament. This was done because trust
in the elected representatives is the cornerstone of a democracy.

And this was precisely what the Golaknath decision gravely distrusted and went
on to place a judicial veto on any amendment of Part III by denying to a
sovereign people acting through its freely elected representatives in Parliament
to implement policies according to people’s democratic mandate. It ignored
flatly that no judiciary can hold up the will of the people as expressed through
the democratic process of free elections.

The crux of the matter is as posed by Shri Seervai in his Constitutional Law of
India: “ If in future, Parliaments are elected with large majorities to carry out
specific policies, are they obliged to give up those policies because of an
unamendable Part III, or resort to violent revolution ?” Shri Seervai therefore
concluded that the majority judgement in the Golaknath case is “clearly wrong”
and “capable of the greatest mischief and should be overruled at the earliest
possible opportunity.’

JAWAHARLAL NEHRU’S OBSERVATIONS

In 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 the
Supreme Court Order that Parliament is an institution created by the
Constitution and hence subordinate to it, and that the 42nd, Amendment sought
to make it so powerful that it could destroy the Constitution through amendment
if it thought fit, and that the Parliament could make a mockery of the

Constitution through the invalidated Section of the 42nd Amendment by its
whims and passing fancies.

And was not making a “new Constitution” or “radically changing it” by
convening a Constituent Assembly as suggested by the majority in Golaknath an
euphemism for “destroying “ one and creating another constitution? And this
was to boot an untenable procedure as pointed out by constitutional experts like
Shri Seervai. What is wrong then in leaving the Parliament to follow its
majority will once it is elected? Why doubt its constitutional validity or
democratic bonafies?

The whole point of the Golaknath decision was that it was an ingenious judicial
device to make neither Parliament, nor Constitution supreme but rendering
judicial review sacrosanct, by setting itself as a super legislature. But a concept
of judicial review appears to rest on tenuous grounds as a brief consideration
will show.

If pursued to logical conclusion the concept of judicial review would bring into
question not only the doctrine of separation of powers but also the
parliamentary process which is the very foundation of any democracy. As Judge
Learned Hand observed in his book The Bill of Rights: “It was a plausible,
indeed, to my mind an unanswerable argument that it (Judicial review) invaded
that ‘ Separation of Powers” which as many believed was the condition of all
free Governments.”

In historical constitutional retrospect one can find the origin of autonomous
judicial review in the classis American case of Marbury vs. Madison (1803) the
judicial consequences of which were almost analogous to that of the Golaknath
case. In this case in the absence of any constitutional directives about judicial
review of legislation chief Justice Marsall relied on a priori reasoning when he
observed that it was “a proposition too plain to be contested that the
Constitution controls any legislative act repugnant to it.”

Alexander Hamilton’s Federalist paper Number 78 had anticipated this position
and it dismissed the argument as without weight that the courts would substitute
their own will for the legislative intention in the process of judicial review.

Marbury vs. Madison had far reaching constitutional consequences, And even
Mr,Justice Holmes though he believed such judicial review necessary also held
that the United States might survive without a Supreme Court to invalidate the
Acts of Congress. As regards its consequences, it was said in Australian
Communist Party vs. Commonwealth: “If the great case of Marbury vs. Madison
had pronounced a different view (judicial review) might perhaps not arise in
even in the case of the Commonwealth Parliaments; and there are those, even
today, who disapprove of the doctrine of Marbury vs. Madison and who do not
see 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 not
within power.”

CONSTITUENT ASSEMBLY DEBATES

In the Indian constitutional context is transpires from the constituent Asembly
Debates that though the courts were invested with basic powers of review it was
felt not advisable to give the Supreme Court exclusive jurisdiction in the sphere
of the fundament rights. The limitations on judicial review were as Sir Alladi
Ayyar 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 of
judicial review thought it is very tempting to do so when there is an
overemphasis on fundamental rights with least regard to the corresponding
obligations. In a very significant and profound study Judicial Review in the
Contemporary World, Mauro Cappellitti has argued that” the law also changes,
and even the fundamental values are mutable. One could say, to paraphrase
Benjamin Constant that the liberty of today is not of other times an the same can
be 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 a
parliamentary democracy. And the fact is that the Indian Supreme Court did
acquiesce in these limitations till the advent of the Golaknath case. Nothing
happended in this intervening period of about a decade and a half to warrant the
fear that would lead to their flagrant abuse in the legislative sphere or
undermine the constitutional freedoms.

REGRESIVE TREND OF SUPREME COURT

But unfortunately the Golaknath case upset constitutional balance and judicial
stability in a mischievous and dangerous manner. And instead of being
overruled the Golaknath trend persisted in the major legal battle in the Bank
Nationalisation case and the Privy Purses case culminating in the
Keshavananda Bharathi case in 1973. The latest Supreme Court Order has put a
Judicial seal of approval on this regressive trend in the Supreme Court
decisions.

It is instructive to look into these cases in order to appreciate the logical and
constitutional link between the judicial decisions and parliamentary
amendments. Under the Bank Nationalisation Act the compensation was fixed
after taking into consideration the ruling decision of the Supreme Court
rendered in the case of the State of Gujarat vs. Shantilal Mangaldas (3) SCR
341, 1969.

The genesis of the controversial issue of compensation in the case of Shantilal
Mangaldas can be found in the Bela Bannergee case (1954,SCR,558) when the
Supreme Court held that the word, “compensation”as provided in Article 31,
Clause 2 meant full market value of whatever property that is acquired. This
decision showed that the belief of the framers of the Constitution that the scope
for judicial review of compensation for acquisition of land would be very
limited was mistaken.

Article 31 Cl.2 was then amended as the Fourth Amendment to the Constitution
to enable it to have the same force that was originally intended by the
Constitution makers, that is to exclude judicial review from the question of the
actual amount of compensation when the property was acquired by the
Government.

The scope of the fourth Amendment of the Constitution came up for
interpretation by the Supermen Court in the case of State of Gujarat vs.
Shantilal Mangaldas. In this case the Supreme Court upheld the fourth
amendment excluding judicial review on the question on the adequacy of
compensation. Parliament, therefore, enacted the Bank Nationalisation Act

based on the interpretation of Article 31(2) given in the Shantilal Mangaldas
Case.

Yet in the Bank Nationalisation case when the matter came before a Bench of
eleven judges, the Court decided that the Act was bad because the principles for
compensation were not relevant and therefore stuck it down. In arriving at this
decision the Supreme court “distinguished” the case of Shantilal Mangaldas
which meant that the propositions approved in that case were overruled .

Next in the Privy Purses case (1971), the Government acted on the basis of the
unanimous 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 Shah
and Bachawat J.J. The Judges said :“On the coming into force of the
Constitution of India the guarantee for the payment of periodical sums as privy
purses is continued by Articles 291 of the Constitution, but it is essentially of a
political character as preserved by Article 363 of the constitution and the
obligation in this guarantee cannot be enforced in any municipal court.”

It is pertinent to note that this judgement belonged to the pre-Golaknath era of
the Supreme Court. It was clear from this decision that the Government’s power
to withdraw recognition and cease payment of privy purses was in essence
political 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 judicial
systems based on the English jurisprudence and, particularly in the Supreme
Court it is “the normal principle that the judgements pronounced by this Court
would be final, cannot be ignored” as Chief Justice Gajendragadkar observed in
the Bengal Immunity case.

The point of grievance in the Golaknath, Bank Nationalisation, and Privy
Purses 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 executive
order on the basis of existing decisions of the Court, the Court set aside the Act
or the Government order by reversing its own previous decisions not on
considerations of substantial and compelling character but in pursuance of an
ingeneously regressive judicial philosophy.

24TH AND 25TH AMENDMENS

This departure from solid precedent in the Supreme Court created a grave
uncertainty about the state of law. Moreover, these decisions had the effect of
thwarting vital pieces of legislation embodying policies of socio-economic
reform. It was understandable therefore the Parliament was led to the enactment

of the 24th and 25th Amendments to the Constitution covering Article 368 and
the insertion of new Articles 31-C.

These two Amendments sought to achieve the twin objective: (1) To make the
amending power of Parliament wide enough to enable it to amend every article
and every part of the constitution and (2) To render the Directive Principles in
Clause (b) and Clause(c) of Article 39 superior to Fundamental Rights
conferred by Articles 14, 19 and 31. These amendments were challenged in the
His Holiness Keshavananda Bharathi versus State of Kerala case which was
heard by a Thirteen Member Bench of the Supreme Court.

The Keshavananda case was decided by a slender majority of 7 to 6. The six
dissenting Justices headed by Justice Ray clearly laid down “(i) that the
Golaknath decision was wrongly decided and hence overruled, (ii) that there are
no limits to Parliament’s power to amend the Constitution and therefore both
the 24th and 25th Amendments were fully valid as the procedure laid down under
Article 368 had been strictly followed, and (iii) that the judicial review excluded
in Articles 31C of the question, whether or not particular enactment did seek to
give effect to Article 39(b) and (c) was valid.

The majority decision in a general sense had the effect of overruling the
Golaknath case. In fact, both Chief Justice Sikri and Justice Grover were parties
to the summary signed by them which said:“Golaknath’s case is overruled” and
that the 24th Amendment is valid. This was not what Shri N.A. Palkhivala, the
counsel for the petitioners was seeking; he was in fact seeking the invalidation
of the 24th Amendment.

But the 24th Amendment stood its constitutional ground as held unanimously by
all the 13 Judges; still most curiously the petitioners’ arguments were accepted
by some of the Judges responsible for the majority judgement in that despite the
language of the widest amplitude used in the amended Article 368 there still
remained certain “essential features” of the Constitution which could not be
altered or destroyed which presaged a constitutional period of endless
uncertainty and doubt.

The majority decision was evidently a curious constitutional case of judicial
double-think. If the 24th Amendment was to be held valid than the Golaknath
case had to be overruled, and yet an ingenious constitutional device was found
for the backdoor entry of the Golaknath spirit of the inviolability of
Fundamental rights by creating a new dimension of basic structure and
framework which included fundamental rights among other things and was
beyond the reach of the Parliament.

BASIC STRUCTURE OF CONSTITUTION

About the nature of this constitutional basic structure there was no unanimity
in the phraseology of the majority judgements. But with all the divergence on
the character of the basic structure seven Judges signed the summary
subscribing to the phraseology used by Justice Khanna and said : “ Article 368
does not enable Parliament to alter the basic structure, or framework of the
Constitution.” This was the mouse found after digging the constitutional
mountain.

The judicial search for the basic features and structure of the Constitution
reminds one of the parable of blind men and elephant who formed their ideas of
the 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 the
constitutional wood for its trees.

It is pertinent to remember in this context that Justice Chandrachud in his
minority judgement in the Keshavananda case said in his conclusion that (1) the
power of amendment of the Constitution conferred by the then Article 368 was
wide and unfettered, it reached every part of the Constitution, and (2) “There are
no inherent limitions on the amending power in the sense that the Amending
Body lacks the power to make amendments so as to damage or destroy the
essential features or the fundamental principles of the Constitution.”

This was because as Justice Chandrachud observed in the course of his
judgement dealing with the petitioners’ argument that the Parliament may
amend the provisions of Part III, but not so as to damage or destroy the core of
those rights or the core of the essential principles of the Constitution: “I see
formidable difficulties in evolving an objective standard to determine what
would constitute the core and what the peripherals layer of the essential of the
Constitution. I consider the two to be inseparable.”(Emphasis mine)

The doctrine of the basic structure of constitution was subsequently crystallized
in the Election case, that is, Indira Nehru Gandhi versus Raj Narain (1975)
which was considered by a five member Constitution Bench of the Supreme
Court. This case was argued on the basis that the Judges were bound by the
majority judgements in the Keshwananada case. The question was whether a
constitutional amendent, 39th Amendment validating a disputed election by a
legislative judgement damaged or destroyed an essential feature of democracy
as envisaged by our Constitution.

In this case the majority of the Judges admitted the appeal of Smt. Indira
Gandhi against the judgement of Justice Sinha and set aside the verdict of of
invalidation of her election. This was done in terms of the Election Laws
(Amendment) Act. However, the judicial consensus was (Ray C.J. and Beg
dissenting) that the newly inserted Article 329-A(4) to be in contravention of
the Keshavananda decision on the amendin power of Parliament, and

invalidated it because it impaired certain basic and essential features of the
Constitution.

But Justice Chandrachud J.’s observation in this context is pertinent. On the
question whether the Election Amendment violated the basic structure, the ratio
of the majority Judgements in Keshavananda case was considered. In Justice
Chandrachud 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 the
land. There could no longer be any stability or certainty of the fundamental
jiducial positions adopted by the Supreme Court. As a matter of fact the position
was actually worse than at the time when the Golaknath decision upset the
constitutional balance. At least in that case the Supreme Court had laid down
that every Article was amendable except the fundamental rights.

In this context the doctrine of the basic structure and essential leatures of
Contitution clearly means it could be anything whatever the Judges decide it to
mean as the wide divergence of opinion on basic features in the Keshavananda
case made it evident. It was this ambiguity about the basic structure and the
judicial assumption of the power to determine it which led the Parliament to
make explicitly the constituent amending power by an express clarification in
Clause 4 and 5 in amendment to Article 368 by the 42nd Amendment.

NULLIFICATION OF CONSTITUTIONAL EVOLUTION

As 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 by
one judicially subversive stroke the Supreme Court has once again nullified the
constitutional evolution in socio-economic justice up to the point of 25th
Amendment. If this is “momentous” it is not so in restoring the illusory primacy
of fundamental rights over the directive principles but in taking a complete
judicial U turn in the constitutional law as reflected in the Supreme Court
decisions.

The Indian constitution today is back to square one of the Golknath decision as
a result of the latest Supreme Court decision. It is pregnant with great
constitutional mischief and has needlessly opened the old constitutional
wounds. Even assuming that the unlimited constituent amending powers were
subversive and in fact subverted the Constitution during the Emergency was it
not the democratic process again which asserted itself through the elections by
the then Prime Minister, Smt. Gandhi- who allegedly had destroyed democracy
leading to the induction of the Janta Government and repeal of the 39th
Amendment and other features of the 42nd Amendment ? Did this happen by
virture of the judicial process and its power to review the Parliamantary
amending power or by virtue of the democratic proceses?

It cannot be stressed too often that the Constitutional evolution of Amendments
from 1967 to 1976 from the Golaknath case to the 42nd Amendment clearly
brings home that it was the ambiguous and regressive judicial stand adopted by
the Supreme Court judges upheld by a very slender majority of one that led to
progressive clarificatory amendments. It is significant to note that all these
Supreme court decisions and consequent amendments revolved around the
fundamental 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 42nd
Aamendment having nexus with Articles 39 (b) and (c) is judicially pointless
like closing the stable door after the horse has bolted because the property rights
itself has been taken out of the fundamental rights chapter by the 44 amendment
effected 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 Article
300A.

It is amazing indeed that the Chief Justice Chandrachud should have been a
party to this Supreme Court decision striking down the 42nd Amendment which
is clearly totally against the judicial convictions expressed in his minority
judgement in the Keshavananda case. In that case Justice Chandrachud was not
scared by the lurid picture painted by the petitioner’s counsel of the
consequences which will ensue if a wide untrammeled power is conceded to the
Parliament to amend the Constitution because in a democratic polity people
have the right to decide what they want and they can only express their will
through their elected representative.

In the same judgement Justice Chandrachud had also conceded the postulate of
our Constitution “which aims at bringing about a synthesis between
‘Fundamental Rights’ and the ‘Directive Principles of State Policy’ be giving to
the former a pride of place and to the latter a place of permanence. Together,
not individually, they form the core of the Constitution, said Justice
Chandrachud.

Another glaring anomaly of this Supreme Court decision striking down the 42nd
Amendment is that on 9th May 1980 when this opinion was delivered, another
five-member bench of the Supreme Court presided over by the Chief Justice
also delivered an opinion, on the same day, upholding the agricultural land
ceiling laws of Maharashtra, Andhra Pradesh, Haryana, Uttar Pradesh and West
Benagal. This Bench unanimously declared the constitutionality of the
amended Artice 31-C as well as other concerned constitutional provisions.

Thus it is clear that the one hand of the Supreme Court judiciary is completely
oblivious as to what its other hand is doing. The judicial relapse in the
construction under which the Supreme Court Order has struck down 42nd
Amendment has merely compounded the confusion and constitutional
uncertainty 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 judicial
review. This shows that the ghost of Golaknath decision is still haunting
uneasily the judicial corridors of the Supreme Court.

The theory of “essential features”and “basic structure”of the constitution
invented by ingenious judicial construction bristles with endless constitutional
wrangle. Shri H.M.Seervai has sought at length to justify the doctrine of basic
structure and features in the second edition of his Constitutional Law of
India(1976). But in my opinion Shri Seervai’s closely argued critique of the
constituent power defending the doctrine of basic features and his extraordinary
stand that fundamental rights are really pre-eminent over social rights clearly
goes counter to the constitutional stand taken by him in the first edition reprint
in 1968 notwithstanding his defence that the Election case had given a new
given 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 speech
in similar vein that “if governments elected with large popular support find that
their polices cannot be carried out because Part 3 is permanent, and alternative
confronting them is either a violent revolution or a reconstituted court, there is
little doubt that they will act as President Roosevelt acted.”

Not only that but Shri Seervai went on to remind that in Nehru’s words “the
whole Constitution is a creature of Parliament” and observed that “It would be a
strange irony if judgment which seek to preserve cherished human rights not
only fail to do so, but lead to the destruction of a cherished judicial
system.”(30.46, p.1119).

IS PARLIAMENT SUPREME ?

Ironically it is precisely this constitutional and judicial stage which has been
reached 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 Judges
can impose on Parliament their own policies, their own understanding of what is
good 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 the
Union Government to review the Supreme Court decision in the entire
constitutional perspective. The entire constitutional framework needs a close
retrospective look so as to co-ordinate the constitutional provisions into a
consistent whole and direct them to subserve the Preambulary ideal of a
Socialistic, Secular, Democratic Republic.

In this context it must be recalled that before the judgements in the Election
case were delivered the Union of India had taken steps to secure a
reconsideration of Keshavananda case. Accordingly the Court had indicated
that the petition would be heard on November 10, 1975 by a bench of 13 Judges
for considering (1) whether the power of amendment of the Constitution was
restricted by the theory of basic structure and framework as propounded in
Keshavananda case, and (2) whether the Bank Nationalisation case was
correctly decided.

On November 10, 1975 a large number of writ petitions were placed before a
13-Member Bench when an objection was raised to the Union Government’s
application for a reconsideration of Keshavananda’s case. The arguments were
heard 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 the
specified matter would be posted for hearing before the Constitution Bench
which after considering the matter may, if it thought necessary, refer the matter
to a larger bench.

The matter was obviously not pursued further in view of the political
uncertainty. Now that the Supreme Court has once again given a fresh lease of
constitutional life to the theory of basic structure even by burying the
“fundamental” significance of Directive Principles of State Policy the matter
cannot be delayed and longer.

However, it has to be borne in mind that whatever the outcome of the judicial
review by a special bench as asked by the Union Government the constitutional
issues will not be finally settled unless and until the judiciary sagaciously
decides to steer clear of the Parliamentary amending power as a “political
question” and hence addressed exclusively to the people’ representative.

In this context it becomes clear once again that the constitutional and judicial
volte-face of the Supreme Court on the issue of amendment power and its
failure to come to a synthesis of Fundamental Rights with Directive Principles
are regressive and anomalous constitutional steps which need timely correction
to avoid a confrontration injurious to the interests of our democratic policy.

Published by Government of Maharashtra, 1980
COPYRIGHT
________________________________________________________________

Supreme courts volte face on Constitutional Amendmendt

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