Existing Constitution Can't Be Dismembered Under The Guise Of Amending It: Justice PV Sanjay Kumar

Supreme Court Judge Justice PV Sanjay Kumar recently spoke on the 'Contours Of The Basic Structure' at the 4th Justice HR Khanna Memorial National Symposium organised by CAN Foundation. 

In his address, he detailed the essence of Constitutional Amendments and how the renowned scholar and Judge, Justice HR Khanna viewed the importance of limiting Parliament's amending powers.  

Justice Kumar noted that several countries like Germany, Bosnia, Herzegovina, Afghanistan, Turkey and Brazil impose limits through 'eternity clauses' on constitutional amendments to their respective Constitutions. 

The Judge then addressed the dilemma of those Countries like India where there is no express 'eternity clause' present and the Constitution in turn provides powers to make constitutional amendments. 

Turning to the landmark case of Kesavananda Bharati v. State of Kerala and Anr, Justice Kumar stressed the interpretation of the term 'amendment'. He explained that when the Parliament amends the Constitution, it means making changes to the existing Constitution, not creating a new one. The core principles and structure of the Constitution must remain unchanged even after amendments.

"The phrase amendment of the Constitution was interpreted to mean that the amended original Constitution would still remain standing and the power of amendment would not be a source to bring about a new constitution. This implies that there is a requirement to retain the basic fundamental structure of the Constitution as it exists which cannot be altered by amendment." 

He indicated that there was subsequent criticism of the Supreme Court's self-formulated 'eternity clauses' in the absence of any 'eternity clauses' in the Constitution.  

However, Justice Kumar pointed out that such power of imposing self-formulated 'eternity clauses' can be found within the Constitution. He analysed that the Constitution gives the power to make changes to it, but not to create a new one. The term 'amend' means to change, not replace. When courts limit this amendment power, they are protecting the people's sovereignty and ensuring that the groups formed by the Constitution don't overstep their roles.

"The answer lies in the very power conferred by the Constitution, that is the power to amend the existing Constitution. Stress being upon the connotation of the word used - 'amend' which implies making changes but would not include the authority to enact a completely new constitution. Therefore when courts curb the new power of amendment to establish a completely new constitution, they actually safeguard the sovereignty of the people  and protect the constitution by preventing bodies that were created by the Constitution from exceeding their authority." 

" The Court is not protecting itself but protecting fundamental principles such as independence of the judiciary and the rule of law which forms the mosaic of the Constitution." 

Difference Between 'Amendment' & 'Dismemberment' 

Justice Kumar explained that the Constitution only allows for an amendment which is within the constitutional spirit and not an act of  'dismemberment' which may put the existence of the original Constitution into grave peril. 

"Amendment would alter the provisions within certain existing parameters, while dismemberment would be a total and foundational alteration departing from the existing framework. In the result that dismemberment brings about a completely transformative change." 

He highlighted that when seeing the changes to the constitution, we must remember that these changes shouldn't completely break apart or replace the original constitution. The parliament can make amendments, but they should not destroy what's already there.

"It is this distinction which is kept in mind while considering the validity of constitution amendments as it is not permissible to completely dismember the existing Constitution in the guise of undertaking an amendment thereof."  

Interpretation Of Constitutional Amendments  Depends On A Country's Social And Constitutional Past And Future Aspirations

Justice Kumar referred to the proposition of Professor Vicky Jasckon who proposes to apply a common set of  " Transnational Constitutional Norms"  across Countries in interpreting the constitutional amendments

Expressly disagreeing, Justice Kumar opined that the suggested method won't work because each country has its unique history, values and futuristic agendas that shape its laws and society. While Professor Jackson thinks that courts should base their understanding of constitutional principles on practices that are common across various countries, this idea might not work if these common practices can't be fully aligned. Therefore, while international norms can offer some guidance, they shouldn't be mandatory.

"I personally feel that this approach would be unworkable to us in practice. Constitutional History and Basic Societal Values vary from country to country depending upon its past antecedents and its future perceptions. The basic premise of Prof Jackson's is that a Court should in some way tie its definition of  Constitutional fundamentals to Constitutional practices common to a multitude of foreign Constitutional Systems this premise would necessarily fail if such commonality cannot be achieved in absolute terms. Such Transnational norms can therefore be of guidance but cannot be binding"  

On Justice HR Khanna's Disagreement On Including Constitutional Amendments Under Article 13(2)  

Talking about Justice HR Khanna's jurisprudence over constitutional amendments, Justice Kumar recalled how Justice Khanna disagreed with the decision in Golaknath v. State of Punjab. 

In the Golaknath case, the Court held that constitutional amendments would stand the test of Article 13(2). Under Article 13 (2) the Parliament cannot make any laws that take away or reduce the essence of Fundamental Rights granted under Part III of the Constitution. 

Justice Kumar explained the reason for Justice Khanna to disagree with the said decision. According to Justice Khanna, there was a key difference between laws statutorily authorised to be made by the Parliament and the fundamental laws that make up the Constitution. Justice Khanna argued that it would be wrong and short-sighted for one generation to assume future generations can't make wise decisions, essentially limiting their freedom to make their own choices.

"He opined that there is a clear distinction between a statutory law made in the exercise of legislative power and Constitutional Law which is made in the exercise of Constituent Power. He then noted the necessity and purpose behind providing for the amendment of the Constitution. He said that it would be nothing short of a presumptuous and weighing act and a myopic obsession with its own wisdom for one generation to distrust the wisdom and good sense of future generations, and to treat them in a way that the generations to come would not be sui juris" 

Justice Kumar further added how Justice Khanna viewed the ability to amend the constitution as important for improving and adapting it to a nation's changing demands. Just like in other areas of life, nothing is perfect and people always seek improvements, so is the case with the Indian Constitution. 

He noted that the people who created our constitution knew it was important to balance the need for change with the need to keep things stable. They understood from history that too much change can lead to chaos, but without any change, there can be no progress.

"He said that the grant of the power of amendment is based upon the assumption that as in other human affairs, in constitutions there are no absolutes and the human mind can never reconcile itself to fetters in its request for a better of things. He observed that the framers of our constitution were conscious of the desirability of reconciling the urge for change with the need for continuity and that they were not oblivious of the phenomenon writ large in human history that change without continuity can be anarchy, change can mean progress, and continuity without change can mean no progress." 

Justice Khanna believed that the makers of the Constitution struck a balance by making the amendment process neither too rigid nor too flexible. They decided that while minor amendments could be made with a simple majority, more significant changes would require a stricter process.

"He opined that the constitutional makers therefore kept a balance between the bridge of having a non-amendable Constitution and a Constitution which is too easily amendable and provided that except for some not very vital amendments which could be brought about by simple majority, other amendments could be secured only satisfying the prescribed procedural safeguards."