Golden Jubilee Of Kesavananda Bharati: Celebration And Introspection

An understanding of the constitutional scheme and the constitutional developments of the first two decades will help to comprehend and appreciate the origin and evolution of the doctrine of basic structure.

The objective of the Constitution makers inspired by the freedom movement was to usher in an egalitarian society by bringing about socio-economic reforms. Agrarian reforms were high on the Government’s agenda. With this end in view land reforms legislation was brought. This came into conflict with the fundamental right to property. Courts declared as unconstitutional land reforms laws as offending the right to property. The judiciary appeared as the stumbling block on the road to social reconstruction. The political executive had to respond keeping in view its promises and the public sentiment. Parliament, which was then the Provisional Parliament till the first general election in 1952 and comprising the same persons who were members of the Constituent Assembly, enacted the Constitution 1^st Amendment in 1951. It introduced Arts 31A and 31B into the Constitution to shield agrarian reforms and other nationalization schemes against attack on the ground of inadequacy of compensation. It also brought in the device of Schedule IX which immunized all laws included therein from any challenge on the ground that they infringe any of the fundamental rights. It is a historical truth that some of the purposes and objectives of the Constitution would have been delayed or defeated but for this amendment.

In Sankari Prasad v. Union of India (AIR 1951 SC 458) the Court held that Parliament’s constituent power certainly included the power to amend fundamental rights and ‘law’ in Art 13 refers only to ordinary legislation and not constitution amendments.

However, in matters regarding compensation, the Court ruled that in spite of Arts 31A and 31B, an attack on the ground that the compensation provided was so inadequate as to be illusory or amounting to no compensation, was not barred. In a challenge to laws relating to urban development and not covered by Arts 31A and 31B the Court held that compensation in Art 31(2) meant payment of full market value so as to fully indemnify the expropriated owner. [see, inter alia, State of West Bengal v Bela Banerjee (AIR 1954 SC 170)]. The Constitution 4^th Amendment provided that adequacy of compensation was not justiciable. Even so, in Rustom Cooper v Union of India (AIR 1970 SC 564) the Court held that as ‘compensation’ in Art 31(2) was still there, it would signify only full compensation. Sankari Prasad was followed in Sajjan Singh v State of Rajasthan (AIR 1965 SC 845), but doubts about that legal position were expressed by Hidayatullah and Mudholkar, JJ. Then came Golak Nath v State of Punjab (AIR 1967 SC 1643) in which it was held 6:5 that Parliament had no power to take away or abridge any fundamental right and ‘law’ in Art 13 included a constitution amendment and, therefore, the inhibitions/limitations in Art 13(2) applied to that also.

The net result was a kind of confrontation between the judiciary which was seen as supporting vested interests and Parliament representing the populace and appearing to be keen about reforms and progress.

It is interesting and enlightening to note what the Supreme Court said years later: “The Indian constitutional experiments with the ‘right to property’ offer an interesting illustration of how differences in the interpretation of the fundamental law sometimes conceal-or expose- conflicts of economic ideologies and philosophies. With the right to property conceived as a fundamental right at the inception of the Constitution, it found so strong an entrenchment that in its pristine vigour it tended to be overly demanding and sought the sacrifice of too many social and economic goals at its altar and made the economic cost of social and economic change unaffordably prohibitive. .... Inevitably the constitutional process of de-escalation of this right in the constitutional scale of values commenced culminating, ultimately, in the deletion of this right from the Fundamental Rights Part (in 1979). Arts 31A and 31B were significant constitutional milestones in the harnessing and socialisation of the concept of the right to property which, in its laissez faire trappings, became an unruly horse. Art 31 C in effect and substance is to urban property what Art 31 A is to agricultural property.”[Tinsukia Electric Co. Ltd. v. State of Assam, AIR 1990 SC 123]

To overcome the Golak Nath judgment, the Constitution 24^th Amendment specifically provided that Art 13 would not apply to a Constitution Amendment, that is, a Constitution Amendment would not be susceptible to a challenge on the ground that it infringed fundamental rights. The title of Art 368 –‘Procedure for amendment of the Constitution’ was changed to ‘Power of Parliament to amend the Constitution and procedure therefor.’ It was also clarified that an amendment under Art 368 would not come within the purview of Art 13. The Constitution 25^th Amendment replaced the word ‘compensation’ in Art 31(2) with ‘amount’ to place beyond any doubt that compensation was not justiciable.

The stage was then set for the biggest and most significant constitutional case in India’s history-Kesavananda Bharati v State of Kerala (AIR 1973 SC 1461). The challenge was to the Constitution 24^th, 25^th and 29^th Amendments. By the Constitution 29^th Amendment the Kerala Land Reforms laws were included in Schedule IX. The Court was faced with an unenviable task. The Golak Nath judgment appeared to have laid down too wide and too wild a proposition which was clearly unsupportable and had to go. The Court wanted to save the Constitution from, what was alleged and the majority of the Court also believed to be, onslaughts on the Constitution.

We first come across the idea of basic features in the context of a constitution and constitutional amendment in the judgment of Cornelius, CJ of Pakistan in Fazlul Quadar Chowdhry v Muhd.Abdul Haque (PLD 1963 SC 486) where he took the view that though the Pakistan President under the 1956 Constitution of Pakistan was empowered to remove difficulties, he had no power to remove or alter a fundamental feature of the Constitution. Shortly thereafter in October 1964 Mudholkar, J. in his separate opinion in Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845) observed whether the basic features of the Constitution should be given a permanency; and whether making a change in a basic feature can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution.

Almost immediately thereafter in February 1965, Prof. Dieter Conrad, Head of the Department of Law, South Asia Institute of the University of Heidelberg, West Germany delivered a lecture on Implied Limitations on the Amending Power to the Law Faculty of Banaras Hindu University. Our great constitutional lawyer M.K. Nambyar borrowed this from the Professor and presented it to the Supreme Court in Golak Nath case. The Court, however, did not express any opinion in that regard and decided the case on a narrower basis in February 1967- Golak Nath v State of Punjab (AIR 1967 SC 1643). There was also an article by Prof. Conrad- Limitation of Amendment Procedures and the Constituent Power (India Year Book of International Affairs XV-XVI 1966-67). The seed that was planted by Dr. Conrad, adopted in the arguments of the redoubtable Nambyar in Golak Nath was brought to flower and fruition by the impassioned advocacy and forensic brilliance of Nani Palkhivala in Kesavananda Bharati.

The purported view of the majority as signed by 9 of the 13 Judges on the Bench in Kesavananda was: “Art 368 does not enable Parliament to alter the basic structure or framework of the Constitution.” Khanna, J. whose judgment tilted the balance approvingly quoted Prof. Conrad: “Any amending body organized within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure, change the fundamental pillars supporting its constitutional authority.”

Commenting on these developments, Granville Austin in his Working of a Democratic Constitution remarked: “The nine judges (who signed the summary of the Kesavananda judgment) seem to have performed an act of statesmanship, even of legerdemain. The Court mollified the Government by overruling Golak Nath and upholding the three amendments, in effect nearly returning to the Sankari Prasad case position, while preserving, indeed strengthening, its own power of judicial review. The history of Golak Nath is a cautionary tale of unintended consequences. The fears for civil liberty and for institutions of the Constitution that fed that decision’s rigid restrictions on amendment evoked amendments hazarding liberty and the Constitution- as their use during Mrs. Gandhi’s Emergency soon would demonstrate. The amendments, in their turn, produced Kesavananda which entrenched the Fundamental Rights- as even the Constituent Assembly had not done- while strengthening the courts under the Constitution.”

The Constitution in Art 368 vests the amending power in Parliament and prescribes the manner of its exercise. That is constituent power. Where a written Constitution like ours after setting up an amending body invested with the power to amend does not impose any express limitations upon that power, it may not be right to read implied limitations upon it by judicial interpretation. As Dr. Ambedkar said in the Constituent Assembly, “If the future Parliament wishes to amend any particular article all that is necessary for them is to have a two-thirds majority.”[IX CAD 1663 (17.9.1949] And again, “Those who are dissatisfied with the Constitution have only to obtain a two thirds majority.”[XI CAD 976 (25.11.1949)] The entire tenor of the Constituent Assembly Debates was that all articles of the Constitution were subject to the amendatory process as Khanna, J. also noted in his Kesavananda judgment. And in the earliest case of Sankari Prasad v Union of India (AIR 1951 SC 458) where the Constitution First Amendment was under challenge, Patanjali Sastri, J. speaking for a unanimous Constitution Bench declared in ringing tones, “To make a law which contravenes the Constitution constitutionally valid is a matter of constitutional amendment, and as such it falls within the exclusive power of Parliament.”

Yet for the first time in Kesavananda the Court by a slender majority of 7:6 declared that while Parliament had the power to amend every part of the Constitution including Fundamental Rights in Part III and there were no implied limitations on the amending power, the power did not extend to amending ‘the basic structure of the Constitution’, a term not found in the Constitution. Six judges held that the amending power was limited by various inherent and implied limitations, while six other judges held that there were no limitations on the amending power. Khanna, J. expressly rejected the theory of inherent or implied limitations and held the amending power was plenary, but the word ‘amendment’ by its limited connotation did not permit abrogating the Constitution and, therefore, subject to retention of the basic structure or framework of the Constitution, any part of it could be amended. There is no common ground on the reasoning for any limitation on the amending power between Khanna, J. and the six other judges in the majority. Indeed there appears to be an unbridgeable gap between their concepts and lines of reasoning. The idea of the impermissibility ‘to alter the basic structure or framework of the Constitution’ was picked up and adopted from the judgment of Khanna, J. It is inconceivable how this could be said to be the view of the majority. Equally, if not more, incomprehensible is the reasoning and conclusion that though there are no implied limitations on the power of amendment, it could still be restricted or curtailed only on the basis of the meaning of the word ‘amend’ which in plain English means change, alter and no qualifications or limitations inhere in that word or its meaning.

This then is the genesis and purport of the basic structure doctrine. Thereafter the theory has been invoked and applied in many cases- some justifiably, some indiscriminately and sometimes wholly unjustifiably.

A direct fall out of the judgment was the supersession of three senior most judges. Chief Justice Sikri retired on April 25, a day after the judgment. Justice A. N. Ray, the fourth senior most judge was appointed Chief Justice of India and took office on April 26, superseding Justices Shelat, Hegde and Grover all of whom resigned.

The basic structure doctrine was accepted and applied in Indira Gandhi v Raj Narain (AIR 1975 SC 2299). As Chandrachud, J. said the ratio of the majority in Kesavananda Bharati is that the power of amendment cannot be exercised so as to damage or destroy the essential features or basic structure of the Constitution, whatever those expressions may comprehend. And Minerva Mills v Union of India (AIR 1980 SC 1789) stated the theme song of the majority in Kesavananda: “Amend as you may even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generation. But the Constitution is a precious heritage, therefore you cannot destroy its identity.”

When we try to understand and define basic structure and dwell upon the doctrine, difficulties arise. Is there a match between the label and the thing? To quote T.S.Eliot, “When a term has become so universally sanctified as ‘democracy’ now is, I begin to wonder whether it means anything in meaning too many things.” Much the same can, perhaps, be said about the basic structure doctrine.

It is interesting that there was a unilateral attempt to review and try to undo the Kesavananda doctrine. A.N.Ray, CJ, by his order dated 9.10.1975, as it turned out without any request from any quarters, constituted a 13-judge bench: Ray, CJ and H. R. Khanna, K. K. Mathew, M. H. Beg, Y. V. Chandrachud, P. N. Bhagwati, V. R. Krishna Iyer, P. K. Goswami, R. S. Sarkaria, A. C. Gupta, N. L. Untwalia, Murtaza Fazl Ali and P. N. Singhal, JJ. Immediately after the pronouncement of judgment in Indira Gandhi’s case on 7.11.1975, this 13 judge bench assembled on 10.11.1975. The hearing took place on the 10^th and the 11^th. Palkhivala again appeared to oppose the review. His impassioned advocacy saved the day for the citizen. As Khanna, J. mentioned the height of eloquence to which Palkhivala rose on that occasion has seldom been equalled and never surpassed in the history of the Court. It was stated on both sides that none had sought a review. The Chief Justice found himself in a minority of one. And on 12.11.1975 as soon as the bench assembled, he dissolved the bench by an oral order. This is the only case of which no record of proceedings is available in the Court.

The raison d’etre for the basic structure doctrine apparently is: Every measure or action-executive or legislative-has to conform to the limits set by the Constitution. It is open to challenge and judicial scrutiny on recognized grounds. A law can be assailed only on the ground of lack of legislative competence, violation of fundamental rights or any other constitutional limitations. The ultimate power and responsibility of law making is vested in the legislature. But Parliament exercises not only legislative power. While acting under Art 368 Parliament exercises constituent power and the product of that exercise is an amendment to the Constitution which is not amenable to substantive challenge on any grounds of challenge to a legislation. It is to ensure that by the process of amendment the Constitution is not denuded of its core or made to suffer a loss of identity that the doctrine of basic structure has been judicially conceived and evolved as a substantive and only ground to challenge a constitutional amendment. It is to be applied wisely and cautiously in appropriate cases.

Over the years after Kesavananda what was then thought of and understood as the limited scope of judicial control by the basic structure doctrine has been enlarged by subsequent pronouncements into a total judicial supremacy over the amending power. Successive judgments have simply proceeded on the basis that Kesavananda has held that an amendment to the Constitution cannot alter its basic structure. With even Constitution amendments being susceptible to a challenge as destroying the basic features and violating the basic structure of the Constitution, the basic structure theory upsets the fine balance among the different co-equal wings and raises the issue of the democratic character of judicial review in its most acute form. In limiting the amending power, the doctrine in effect stifles democracy, a basic feature. The basic major premise of the Constitution is that what obtains is limited government. Checks and balances of powers in the constitutional scheme is perhaps the most fundamental feature of democratic constitutions. Is that basic feature not breached by the basic structure doctrine? If constitutional government is limited government, one of its enemies is absolutism of any kind. The Kesavananda doctrine is indeed judicial absolutism or imperialism.

It is important to note that Prof. Conrad’s thesis was greatly influenced by the entrenched provisions in certain European constitutions. Those Constitutions expressly declare certain provisions as basic and make them unamendable. It is not a case of any implication or implied limitation but express entrenchment. Such is not the case with the Indian Constitution and Art 368. When the Constitution has provided for its amendment without any reservation, the mere gravity of the subject of amendment cannot give rise to any implied limitation.

Without doubt, the Kesavananda judgment salvaged something precious. The doctrine is, perhaps, essential to save the Constitution which needs and deserves to be kept pristine and inviolate. But one cannot test or justify the juristic foundation of a concept based on the result, however beneficial or alluring.

We as a nation seem to be obsessed with judicial salvation. Appeal to the judiciary for nullifying constitutional amendments demonstrates the belief that judicial power alone can cure the misuse of constituent power. We cannot forget that during the Emergency the Court failed to protect our liberties. It is the people and the people’s representatives who ended the Emergency and corrected the misuse of constituent power. We recall Palkhivala’s insightful words that we must get away from the fallacy of ‘the legal solubility of all problems’. Indeed he reminded us that Buddha’s last words to his disciples “look not for refuge to anyone besides yourselves” come home with a strange poignancy.

The basic structure doctrine is a product of its time and history. Having been in place for half a century, it would be difficult and perhaps even imprudent to dislodge it or even make such a suggestion. It may be said that the doctrine was the response of an anxious, activist court to save the Constitution from a tidal wave of majoitarianism. Now on the occasion of the golden jubilee of that celebrated judgment and the doctrine expounded therein, we need to remind ourselves that the doctrine is neither an unalloyed blessing nor an unmitigated disaster. Like many other tools it has to be judiciously and cautiously employed. It is a rare weapon to be used sparingly. Unjustified and indiscriminate invocation and application of the basic structure doctrine, which has not been absent altogether, will itself be an abrogation of the Constitution’s basic structure.

“When in any field of human observation, two truths appear in conflict, it is wiser to assume that neither is exclusive, and that their contradiction though it may be hard to bear, is part of the mystery of things.” But as Justice Frankfurter points out judges cannot leave such contradictions as part of the mystery of things, they have to adjudicate and if the conflict cannot be resolved, they have to arrive at an accommodation of the contending claims. This is the great challenge for a judge and “the agony of his duty.” How this duty is performed is dependent on the individuals who are called upon to exercise this power. They must possess and demonstrate judicial wisdom and statesmanship and a sensitivity to the awesome responsibility imposed on them. They must have “a breadth of outlook and an invincible disinterestedness rooted in temperament and confirmed by discipline.” We cannot avoid what Cardozo, J. deemed inherent in the problem of construction, and in constitutional exposition even more, ‘making a choice between uncertainties, we must be content to choose the lesser.’(see: Burnet v Guggenheim 288 U S 280, 288). As held by the Supreme Court in Ambika Prasad Mishra v State of Uttar Pradesh (AIR 1980 SC 1762), “It is fundamental that the nation’s Constitution is not kept in constant uncertainty by judicial review every season because it paralyses by perennial suspense all legislative and administrative action on vital issues deterred by the brooding threat of forensic blow up.”

The debate about both the desirability and the tenability of the doctrine will continue to engage us and we will constantly remember Nani Palkhivala and his stellar contribution to our constitutional jurisprudence.

The love and respect with which we light his memory and record our gratitude for a life to which we owe so much is a measure of his immeasurable contribution to our public life and constitutional jurisprudence, to fostering constitutionalism and even more his character and qualities as a man.