Cosnti and Sc- Federalism

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Economic and Political Weekly July 24, 2004 3355

Perspectives

P RAN C HOPRA

O f all forms of government, thefederal parliamentary form is themost complex. A monarchy is thesimplest. It has to manage only the throne.The unitary presidential form comes next.It puts the whole country under one au-thority and frees it from the hazards of daily accountability to parliament. Parlia-mentary democracy wallows in thesehazards but if it is unitary it ensures uniformcommand over the whole country. Morecomplex is a presidential federation be-cause it divides the domain both verticallyand horizontally. To this complexity aparliamentary federation adds the burdensof daily accountability. But the form withmost nightmares is one which is bothparliamentary and federal, and in a coun-try which is large in size, has a conspicu-ously diverse society and polity, is a vigo-

rous democracy and has a party systemwhich mirrors the diversity.

In brief, if it is India. Hence the night-mares for those who govern this country.

Why did Indias leaders choose thismost difficult form? The answer is theirfaith in the values of this system, and theirconfidence that Indians could manage it.Independent India is a product of the mostmassive freedom movement the worldhas seen. Hence it could not but be amass democracy based on universal adultfranchise; nor anything but parliamentarybecause only a political apex consisting

of some hundreds of members, not a singleperson drawn from one or another of theinnumerable pieces of the Indian mosaic,can be a faithful reflection of the hundredsof millions of very diverse Indians; andit could not be anything but federal if thenumerous political entities which existedbefore independence were to become activeand equal partners in the same powersystem across the whole country.

Such a system, however, must maintaina balance between all the stakeholderswhich constitute it, and India has a verygreat many of them. If any stakeholdersteps out of the place which the systemhas allotted to it the transgression cantrigger a collapse. That is why those whoset up the system wrote out one of the mostdetailed constitutions in the world, andone which has done several things mostpainstakingly.

First, it has defined the functions and

powers of each component of the federalgovernment, and at each layer, that is atthe level of the federal centre, the feder-ating states, and since 1993 at the locallevel also, whether in rural or urban India.Second, it has set up mechanisms forresolving all kinds of disputes that couldbe foreseen. Third, it has laid downmechanisms for dealing with unforeseendisputes. Fourth, it has prescribed veryclear processes by which, and the limitswithin which, the Constitution can beamended in the light of the countrysexperience and evolving needs. Fifth, in

prescribing the amending processes it hasreaffirmed the federal imperative. Sixth,it has empowered the most authoritativeinterpreter of the Constitution, namely,the Supreme Court, to resolve, in the lightof the Constitution, any dispute betweencomponents of the federal system, orbetween a component and a citizen. Forthis reason it is all the more unfortunatethat the most intricate systemic problem,which was the least foreseen and thereforealso the least provided against, has arisenat the level of the court itself.

The Supreme Court has three main areasof work. If any matter before it relates tolaws it measures the matter against the textof the law and its own previous judg-

ments; or against what, in accordance withthe established principles of interpreta-tion, the law and the precedents can beinterpreted to have said. Second, if thematter relates to the constitutionality of alaw passed by parliament in its legislativerole the court measures it against what thetext of the Constitution says or, subjectto the same qualification, can be inter-preted to have said. The same applies,third, and again with the same qualifica-tion, to a matter relating to constitution-ality of a constitutional amendment madeby parliament meeting in its constituentmode, which is the only body authorisedby the Constitution to amend the Consti-tution. The court measures the matteragainst the existing text of the Constitu-tion or its legitimate interpretation.

This makes the Constitution the found-ing document and preserver of the federalsystem of India. No document, institutionor authority is superior to it. Rightly then,the best known authority on the Consti-tution and best known as its author,B R Ambedkar, gave a much needed earlywarning against what may befall the coun-

try if the Constitution were violated or by-passed by anyone. Speaking in the con-stituent assembly on September 17, 1949,he said In fact the purpose of the Con-stitution is not merely to create the organsof the state but to limit their authority,because if no limitation was imposed uponthe authority of the organs, there will becomplete tyranny and complete oppres-sion. The legislature would be free tomake any law, the executive free to takeany decision, and the Supreme Court freeto give any interpretation of the law. Itwould be result in utter chaos. 1

The Constitution andSupreme CourtThe Indian Constitution, true to its commitment to the federalimperative, includes the important provision that any amendment which may affect rights granted by the Constitution to the federated states can be made only with the consent of the majority of theconstituents, obtained by methods prescribed by the Constitution.

Despite such clarity, some important aspects of the IndianConstitution have been misunderstood from time to time; themisunderstanding has occurred at the highest levels of government

and the judiciary. These institutions moreover, haveunderestimated the part public opinion can play in acting as a

proper guardian of the Constitution.


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These are among the wisest words of a very wise man. But read in the contextof some recent events, they also havean ironic twist in them. The SupremeCourt has used its powers very wisely tokeep the legislature from making anylaw and the executive from taking anydecision. But it has not restrained itself from giving any interpretation. The

emerging consequence is that the twomain lieutenants of the Constitution,parliament and the Supreme Court, arefighting each other for the possession of its body and soul. This irony is the themeof the present writing.

Two Roots of the Irony

Federations are either formed when somestates decide to come together for what-ever reason, or when the components of a state opt for decentralisation, whether formore efficient governance or greater self-governance for the components. Either waya federation is founded on some generalor specific terms, which then go into itsConstitution. It also prescribes whether,when, how, how far, and by whom theterms may be amended. It also providessome form of an apex court for detecting,preventing or annulling any departure fromthe Constitution by any component of thefederation.

True to its commitment to the federalimperative, the Indian Constitution hasadded the important provision that any

amendment which may affect the rightsgiven by the Constitution to the federatedstates can be made only with the consentof the majority of the constituents, ob-tained by methods and to the extent pre-scribed by the Constitution. But consi-dering the importance and clarity of theConstitution, two things are ironic. First,that some important aspects of the Constitu-tion, such as the source of its own authorityand the authority of such key constitu-tional institutions as parliament and theSupreme Court, have been misunderstoodfrom time to time; and second that theyhave been misunderstood at such highlevels as parliament, the president, theprime minister, and the Supreme Courtitself. Some of them have also under-estimated the part public opinion can playin making desirable changes in the Con-stitution or preventing undesirable ones,that is in acting as a guardian of the Con-stitution.

But We the people had barely com-pleted the act of giving ourselves thisConstitution, which they did on Janu-ary 26, 1950, when some enthusiastic MPs

began to describe the Indian parliamentas sovereign, which it is not. They weremisled by the example of the British insti-tution which bears the same name. InBritain the Constitution on a given day iswhat the British parliament says it is,while in India any matter relating to theConstitution can be decided only in thelight of the Constitution, which is not only

a written Constitution but is also amongthe longest and most detailed, and it is theultimate repository of the sovereignty of India.

On the other hand president RajendraPrasad made the contrasting mistake of reading too much into individual lines of the text and overlooking the structure of the Constitution when it came to decidingthe source and limits of certain apparentlydiscretionary powers of the president. But amore curious mistake was made by PanditNehru on September 10, 1949, in theconstituent assembly. Presumably think-ing of the Lok Sabha and the Rajya Sabhaas the first and second chambers, he saidNo Supreme Court and no judiciary willsit in judgment over the sovereign will of Parliament. Ultimately, the whole Con-stitution is a creature of Parliament. 2

There are two mistakes in this shortpassage from Nehru. Our parliament is notsovereign; only the Constitution is. Sec-ond, the Constitution is not and never wasa creature of parliament. It was created bythe constituent assembly, and when thelatter was dissolved on completing its

work the Constitution was not entrustedto parliament as such but exclusively toparliament meeting in exercise of itsconstituent power, the term specificallyused in the Constitution for such func-tions of parliament as may relate to theConstitution. 3

But a directly opposite view has beenthrown into the ring by the Supreme Court.As the result of perhaps the most convo-luted course it has taken in a constitutionalmatter, the court in effect came to theposition in 1973, as a result of theKeshavanand case, that it has an unde-fined, undefinable, and therefore inexhaust-ible power to annul any amendment to theConstitution which the court thinks to beaverse to whatever the court may considerto be a basic feature of the Constitution.The court has stuck to this novel deviceever since, and it has come to be knownas the doctrine of basic features.

These two positions, the Constitutionsand the doctrines, can create a directclash between the Constitution and theSupreme Court at three different levels.First, between the court and clause (1) of

Article 368 of the Constitution; second,between the court and one part of clause(2) of the same article; and third, whichcan subject the president to an untenableconstitutional position, between the courtand another part of the same clause. Inaddition, a very complex controversy hasbeen created over the dividing line be-tween interpretation of the Constitution

and the interpolation of a new clause init or the subtraction of one from it.

The Federal Imperative

Article 368 of the Constitution clearlyconfers well defined but in effect exten-sive powers on the constituent mode of parliament in the matter of making amend-ments to the Constitution. They can bemade only according to a prescribed pro-cedure. But the procedure excludes noth-ing from the scope of such amending power.It only prescribes certain margins of majority support which an amendment musthave before it may be incorporated into theConstitution. A collision between thatpower and the doctrine can result in aconstitutional crash. The scope for thecollision is as extensive as the Constitutionis on one side and on the other side theundefined and unlimited doctrine.

It can also be a very sharp crisis becauseof the unusually mandatory language of Article 368 on the one hand and on theother hand the open ended view theSupreme Court seems to have taken re-

garding where interpretation of the Con-stitution ends and interpolation of clausesinto it begins. Clause 1 of Article 368 saysnotwithstanding anything in this Consti-tution, parliament may, in exercise of itsconstituent power amend any provisionof this Constitution in accordance with theprocedure laid down in this Constitution,and while saying so the clause gives a verywide interpretation to the word amend.Clause 2 of Article 368 says that an amend-ment to this Constitution may be initiatedonly by the introduction of a bill for thepurpose in either house of parliament. Onthe other hand the Supreme Courts po-sition is that under its doctrine it canstrike down any amendment which affectsany feature of the Constitution which thecourt may consider to be basic .

The court has illustratively listed somefeatures as basic, but the list has gone ongrowing over the years and the featuresalready listed not only relate directly to alarge number of provisions of the Consti-tution but can be related to many moreindirectly through the courts power of interpretation. 4 The court has not only left


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the power of interpretation free of anylimitations; its doctrine in fact rests uponthe assumption that there are no limits. If there were any there would be no placeand no need for a separate doctrine be-cause any amendment which, within thesettled limits of interpretation, could beheld to be in violation of the text or meaningof any provision of the Constitution could

be struck down in any case as ultra vires .Several proposed amendments have in factbeen struck down that way. 5

But if in spite of this power which italready has the court has taken the troubleof inventing the doctrine, it is reasonableto ask why is it searching for extra-con-stitutional weapons against the constitu-tionally valid power of amendment Article368 has given to the constituent role of parliament. Justice Chandrachud has givenone reason, with which Granville Austinappears to agree.

In the Election Case Justice Chandrachudsuggested that instead having to test thevires of every amendment in every indi-vidual case, it would be nice to have anopen ended check list of basic featureshandy, so that the court may quickly consultit as a dictionary and throw the offendingamendment out. 6 That would eliminate thelabour of arguing the matter out in everycase on the basis of the text of the Con-stitution. But while it may be convenientto have such labour-saving devices, pre-servation of the sanctity of the Constitu-tion is too serious a matter for cutting

corners on it. Besides, specific details of every individual case can tell a differentstory, as a conscientious judge like JusticeKhanna showed in dealing with the samematter, fundamental rights. 7

The doctrine also allows the court toinsert something into the Constitutionthrough the art of interpolation, sometimesin the name of what is good for the peoplewithout anyone having to go through thetoil of either finding out whether the peoplewant it or the greater toil of having topersuade people that they should want it.The consent of a dozen men in black robesand wigs is all that is needed under thedoctrine, which by-passes the constitu-tional stipulation in Article 368 that anamendment may be initiated only througha bill introduced in either house. 8

But the language of Article 368 becomeseven more mandatory when it comes todefining the role of the president in themaking of an amendment. Clause 2 of theArticle says that when a Constitutionamendment bill has been passed by parlia-ment in compliance with the procedurelaid down in Article 368, it shall be

presented to the president who shall givehis assent to the bill, and thereupon theConstitution shall stand amended in accor-dance with the terms of the bill. Whathappens then if, after its adoption byparliament the bill runs into the doctrine?What survives the collision, the bill or thedoctrine, and what happens to the assentgiven to the bill by the president? Is he

left holding his letter of assent which bearshis signatures but is a dead letter?

The provisos to clause 2 prescribe cer-tain qualifications which the bill must sat-isfy before it can be sent to the presidentfor signatures. 9 The purpose of the pro-visos is to ensure the fulfilment of thefederal imperative that the powers andprivileges which the Constitution may haveassured to the federated states at the timeof their joining the federation may not bewatered down without the consent of atleast half of them. That is why the articlerequires that the amending bill must beapproved by the legislatures of not lessthan half the states.

There is further fulfilment of the federalimperative in the requirement that the billmust be passed not by just a simple majoritybut by two-thirds majorities by each of thetwo houses of parliament, because thesehouses are substantially representative of the peoples and legislatures of the fede-rated states, as is indeed the president toowhose assent is also required. 10

Because of this it would be anomalousif a bill approved by two of the three

most important institutions of the Con-stitution, the president and parliament,which are also the most federal in theircharacter, were to be struck down by thethird, the Supreme Court, which is theleast federal; and struck down in thename of a doctrine in the making of which no part has been played by theConstitution, or by the president, or byparliament or by the states.

Decline of Parliament

Since the dissolution of the constituentassembly, the constituent role of parlia-ment, which is much less familiar to thepeople than its legislative role, has oftenbeen confused with the latter. At the sametime the legislative role has been hugelydefamed by the disorder which marks or mars its deliberations. The combi-nation of these two phenomena has low-ered the status of the constituent role inpublic esteem, which is the best fortifica-tion that a political institution can have forits authority. In contrast the Supreme Courthas grown in public stature despite its

numerous ills because the ills are muchless in the public eye than the daily riotingin parliament. The consequence has beenthat of late the effective legislative andpolitical power of parliament has beendeclining, and the judicial power of theSupreme Court has developed politicaldimensions as well.

Some 40 years ago the Supreme Court

began to take the supreme part of itsname more seriously, and thus began whatto the outside world looked, understand-ably, more and more like a turf war be-tween the court on the one hand and onthe other hand the legislative role of parliament to begin with and the then theconstituent role as well. 11 But more re-cently the Supreme Court has also takenon the Constitution itself. The change isclearly reflected in the opinions whichhave lately been expressed, among others,by Fali Nariman, senior advocate and alegal and constitutional luminary who isno less luminous in his own field thanNehru was in his.

He noted in The Indian Advocate,(Vol XXIX, 1999-2000) that The major-ity view in Keshavanand was criticised asan assertion of naked political power bythe court in the guise of judicial interpre-tation. By propounding the basic structuretheory, the guardians of the Constitution(it was said) had at one bound becomeguardians over the Constitution. Consti-tutional adjudicators had assumed the roleof constitutional governors. Nariman

agrees with this description of the new roleassumed by the court but adds it is onlyan auxiliary precaution taken against thepossible tide of majoritarian rule. 12 Inanother context he has observed If wemust have faith in elective bodies for ourdemocracy to survive we must also hedgeour bets. We must beware of majoritariangovernments at all times whether BJP,Congress or any other It is this noveldoctrine that has helped save our liber-ties. 13 And in another context he acknow-ledges yet more frankly that with theKeshavanand judgment the Supreme Courthas succeeded in retaining to itself thecustody and control of the Constitution,which in the 1970s was in danger of beingtaken over by parliament.

Granville Austin, a more detachedscholar but perhaps not less dedicated tohis convictions was asked once whetherthe court would be in conflict with theConstitution if, in keeping with the doc-trine, it struck down a constitutionalamendment made by parliament in fullcompliance with Article 368. He repliedYes, if one believes in parliamentary


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supremacy. NO, if one does not trustParliament to refrain from damaging theConstitution. His lack of faith in ourparliament is obvious. But not only his,and yet our more vociferous MPs do notrealise how deep parliament sinks whenthey jump into the well. However, whois to measure, by what yardstick, whetheror when parliament may regain the

respect of the people? Or how far the judicial system st il l commands thepublics trust, which used to be its mostcherished asset?

But there are also voices in favour of theconstituent role of parliament among menof law, some of whom have the same statureas some of its critics. They see in the doctrinea dangerous distortion of the constitutionalposition regarding so important a part of the Constitution as the provisions relatingto its amendment. A former chief justiceand three peers of Nariman, all of themsenior advocates of the Supreme Court likehimself, have drawn attention to situationswhich must be seen as disturbing regard-less of where one stands in respect of thedoctrine of basic features.

Their comments show how indefensibleit would be if one side went ahead and didsomething indefensible in the belief thatthe other side was going to do it and itdecided to be the first to land its own fistin the others face. Is the doctrine justsuch a fist ? What would it do which thelaws for defending minority rights cannotdo against a majority becoming majorit-

arian? Or would enlightened public opin-ion be a better safeguard?

Interpretation or Interpolation?

This phenomenon of the doctrine andthe meaning of its words justifies thecomments by former chief justiceS Ranganathan, and by two senior advo-cates P P Rao and Raju Ramachandran,while a third senior advocate, Andhya-rujina, raises the all important questionwhether the Supreme Court should drawa line, and if so where, between interpret-ing the Constitution and interpolatingsomething into it without meeting therequirements of Article 368.

Justice S Ranganathan contemplated thisdilemma in his memorial lecture in honourof Sir Alladi Krishnaswami Ayyar, one of the great luminaries who wrote the Con-stitution. Justice Ranganathan said It doesnot seem likely that the Constitution makersintended to repose in the judiciary thepower to pronounce even on the validityof a constitutional amendment. In hisown lecture in the same series senior

advocate, P P Rao, said (the doctrineof) basic structure remains a vague andundefined concept At the same time inthe folds of vagueness of basic structurelies limitless judicial power. Referring tothe judgment in the Keshavanand case,which gave birth to the doctrine, Rao saidThis single decision has deflected thebalance of power decisively in favour of

the judiciary at the cost of parliament,and cast a cloud of uncertainty over theamending power of parliament in its con-stituent mode.

Another senior advocate, Raju Rama-chandran, says the doctrine is anti-demo-cratic because under its cover unelected

judges have assumed vast political powernot given to them by the Constitution. Heexamines the whole set of cases having abearing on the doctrine and draws atten-tion to two features which are common tothem: one, that they uncover a struggle forpower between the Supreme Court andparliament, and two, that the court ex-tended its domain step by step as the powerof parliament declined because of the de-plorable way it conducts its business. Heconcludes The basic structure doctrineproceeds upon a distrust of the democraticprocess, which itself must surely be a partof the basic structure. In limiting theamending power, the basic structure in factstifles democracy, a basic feature.

On the other hand Andhyarujina showshow far the Supreme Court has carried itspower of amending the Constitution by

stretching its power of interpreting it. Henotes The framers of the Indian Consti-tution, after deep deliberation extendingover several years, rejected the US conceptof due process in the Indian Constitution.He then traces various cases in which thecourts have interpreted the Constitution,particularly Articles 14 and 21, and arguesthat these interpretations have introducedthe concept of due process of law in theIndian Constitution, He then pleads Theviable constitutional law of India since1978 has been the concept of due processof law in the Constitution, and he addsIt is time to recognise that, never mindthe fact, which he recognises, that theconcept was rejected by the framers of the Indian Constitution.

The issue here is not whether any featureof the Constitution is basic or not.Obviously one feature can be more impor-tant than another. But are any of themimpervious to the power given to parlia-ment by the Constitution to amend anyfeature? Similarly, the question is notwhether India would or would not be betteroff under the US concept or any other

version of due process. The question iswhether anything which the authors of theConstitution kept out of it after deepdeliberation for years can be brought intoit by the backdoor of incremental interpre-tations, as due process has been accord-ing to Andhyarujina. Conversely, can thedoctrine of basic features be used toblock an amendment which has been

adopted by parliament in full compliancewith the Constitution?

The principles of interpretation andamendment are clear enough. After scru-tinising constitutions around the world theredoubtable scholar, senior advocate and

jurist, H M Seervai, has laid out the prin-ciples in his authoritative work, Constitu-tional Law of India. In the chapter onInterpretation he emphasises that whatis not in the language of the text is not inits meaning, and nothing can be insertedinto the text in the light of considerationsor criteria which find no place in the text.The doctrine finds none. Besides, thereis much less room for judge made laws ina country like India which has a moredetailed and explicit Constitution than thereis in a country like America, which hardlyhas a Constitution. Britain has even less.

While there is ample room for amend-ments in India because Article 368 has lefteverything open for it, be it only througha specified process, there is not much roomfor the doctrine. After an exhaustivesurvey of the amendments made so far,Seervai has shown that all of them are

protected or authorised by the language of the Constitution. They do not need andcannot get any more protection from adoctrine which itself is not reflected in thatlanguage. Almost anything which can becalled basic is related by its language,substance, or meaning to the language of one or another provision or structure of theConstitution. It is therefore protected bythe latter and can be amended only in themanner and to the extent permitted bythe Constitution. Otherwise it would bestruck down on grounds of inconsistencyand vires .

The difference between striking downan amendment under the doctrine or underthe Constitution is not merely technical .The former method sidelines the Consti-tution, the latter affirms the sanctity of theConstitution, which is the bulwark forensuring the stability of the constitutionalsystem. Every time the Supreme Court by-passes the Constitution in the name of public good it reinforces the classic argu-ment of the military dictator that he istaking over only because democracy is tooslow or it only produces majoritiarian


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rule. That allegation may well be true. Butthere are laws for protecting the rights of minorities, and all of them have been passedby majorities.

If the courts were more open and fasterin applying them, because in the long runpublic interest is served better when par-liament respects public opinion, courtsrespect laws, and both keep their processes

open and transparent so that public opin-ion is educated and updated more regu-larly. And be it remembered, it was judges,not parliament, which first succumbed tothe ambitions of Indira Gandhi, and shewas overthrown by an aroused electorate,not by doctrines produced by judgeshuddled in their chambers.

But even assuming that some device likethe doctrine can serve some publicpurpose, it can do that much better if itis enshrined in the Constitution by an openpolitical process, not insinuated into thesystem by people whose faith in the demo-cratic process appears to have faltered.Any such device should be debated openlyand as long as needed, and then led intothe Constitution by parliament itself, notbehind its back.

Getting Us Back On Track

What is happening at present is thatwhile the Supreme Court and parliamentfight each other for control of the Consti-tution, neither helps much in educating thepeople in what their Constitution is all

about, and voters get only one chance isso many years to help the rulers to under-stand what the people are all about. Butsome interesting attempts have beenmade to get us back on track and theyneed to be pursued. For example in SajjanSingh vs State of Rajasthan, 1964, a five-

judge bench of the Supreme Court reiter-ated by a majority of three to two what thefive-judge bench in Shankari Prasad vsUnion of India, 1951, had unanimouslysaid earlier, that parliament could abridgeor take away any fundamental right underArticle 368 so long as it did so by thespecial majorities prescribed in the provi-sos to that article, which really means bya majority of the whole electorate.

But the majority in Sajjan Singh alsosuggested to parliament that fundamen-tal rights also be covered by the sameprovisos. They would then cease to beunamendable (which nothing is, accord-ing to any legitimate interpretation of theConstitution) but it would not be possiblefor parliament to curtail any of them withoutthe specific consent of a majority of thevoters. Unfortunately the suggestion was

ignored as Nariman records. Another effortto get back to the basic sovereignty of thepeople was made in 1978, the time whenthe people were more in our thoughtsthan at any time before or since. It wassuggested then that a referendum shouldbe required for the adoption of certaintypes of amendment to the Constitution.Members of parliament and men of law

would be better off publicly debatingwhat else, if anything, should go into thatlist of specially protected clauses of theConstitution.

But the road to an enlightened publicopinion does not lie through legal cloisterswhich are shrouded in erudition if not alsoin secrecy. Nor does it lie through legalcoups such as the doctrine against theprinciples and practices of open gover-nance through open debate. Nor throughbattles between the Supreme Court andparliament for capturing the Constitutionin the name of democracy. Amendmentsto the Constitution which are not sup-ported by parliament will last only as longas laws which are not supported by thepeople. Protecting the people from a par-liament they have elected themselves wouldremain an absurdly elitist proposition solong as it did not actively engage the peoplein protecting it.

Address for correspondence:[email protected]@yahoo.co.in

Notes

1 Constituent Assembly debates.2 Pandit Nehrus speeches, Vol 1, published by

Government of India.3 Constitution of India, Article 368, Clause 1.4 Constitutional Law of India , by D D Basu,

7th edition, page 470, lists 20 features asbasic, ranging from specific articles andclauses to concepts such as supremacy of the Constitution, the principle of freeand fair elections, freedom and dignityof the individual and effective access to

justice, etc.5 The history of the formulation of constituent

power from Shankari Prasad vs Union of India in 1951 to its further clarification andfirming up in the 24th Amendment Act of 1971, and later applications of the 24thAmendment Act since 1971, is full of examples of earlier amendments to theConstitution being struck down and various

judgments of the Supreme Court bei ngupturned on account of subsequent discoveryof grounds of inconsistency with theConstitution. In Keshavanand vs State of Kerala,, 1973, in which the doctrine acquiredits present status, a part of the 25th Amend-ment Act was invalidated on the ground thatit was inconsistent with the Supreme Courtspower of judicial review. That means even

as the doctrine was being formulated theSupreme Court had the power to strike downan amendment on grounds of its inconsistencywith the Constitution. Incidentally, Funda-mental Rights were not held to be a limita tionon the consituent power of parliament.

6 As quoted by Seervai (page 2693 of Chapteron Amendment of the Constitution inConstitutional Law of India ), JusticeChandrachud stressed the immensity of thetask that would be involved in determining inadvance whether a particular feature of theConstitution is a part of its basic structure.Seervai himself commented along the samelines and said For a precise formulation of the basic features of the Constitution wouldbe a task of the greatest difficulty and wouldadd to the uncertainty of interpreting the scopeof Article 368 which sets out the procedurefor amending the Constitution. In a letter tothe present author which is cited here bypermission, Granville Austin said (March 25,2004) If one accepts the idea of a basicstructure doctrine, it should not follow that theCourt should define every timber in thestructure before cases involving the conceptappear before them.

7 In Keshavanand and the Election Case .8 Clause 2 of Article 368.9 It is not very clear whether Clause 2 leaves

any room for the president to satisfy himself that the amendment bill has met the conditionsit is supposed to have met before beingpresented to him for signatures. But there isno doubt regarding the mandatory nature of the requirement that he shall give his assentwhen the bill is presented to him and that uponhis giving it the Constitution shall standamended. This is clear enough from thelanguage of the clause and is further reinforcedby the circumstance that while he retains his

power to veto other bills, subject to the adviceof his cabinet, his assent to a bill under Clause2 has been made obligatory by the 24thConstitution Amendment Act, the same Actwhich has stated so explicitly in the new Clause1 of Article 368 that the constituent power of parliament extends to the whole Constitutionsubject only to the procedure laid down in thearticle.

10 Lok Sabha is not elected by the wholeelectorate acting as a single constituencybut by the electorate of each state, thenumber depending upon the population of that state. Most of the Rajya Sabha membersare elected by the legislative assemblies of the federating states, the number dependingupon the size of the assembly concerned.The president is not elected directly by thewhole country but by the legislatures of thefederated states.

11 The issue took clear shape in Keshavanandthough some beginnings are to be found insome earlier cases as well .

12 In The Indian Advocate , Vol XXIX, 1999-2000.

13 In a letter to the present author, March 23,2004, quoted here by permission. Incidentally,Shorter Oxford English Dictionary doesnot recognise the word majoritarian. Websterdoes and defines it is a majority in a state of hysteria.

EPW

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