k Subba Rao-golaknath and Kesavananda-The Two Judgements

8/8/2019 k Subba Rao-golaknath and Kesavananda-The Two Judgements

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The Two Judgments: Golaknath and Kesavananda Bharati*

by K. Subba Rao (Ex-Chief Justice of India)

Cite as : (1973) 2 SCC (Jour) 1

The purpose of this article is not to criticize the judgment, but to give its effect and thechanges it made in the previous constitutional position of fundamental rights.

Before considering the effect of the recent judgment, it would be convenient at this stage

to notice the scope of Golaknath judgment for two reasons: (1) there is misapprehension

as regards the scope of the said decision and (2) it would help to ascertain how far and towhat extent, the fundamental freedoms of the people, as recognised by that decision, have

been changed by the recent decision.

In that case the landlord questioned the constitutional validity of an Act passed by the

legislature taking away the fundamental rights in an estate. The Supreme Court dismissedthe petition of the landlord. That is to say, contrary to the impression created by

propaganda, the rich man lost the case. In effect it laid down the following propositions:

(1) All the amendments made up to the date the judgment was delivered, were valid.

(2) The amendment under Article 368 being law, it is subject to the provisions of Article13 and therefore if the said law takes away or abridges the fundamental rights, except in

the manner and to the extend prescribed by Part III, it will be void.

(3) Parliament can, by the law of amendment or by ordinary law, abridge or restrict the

fundamental rights to the extent permitted in Part III.

(4) Though it cannot take away the fundamental rights, it can add to the list offundamental rights.

It will be seen from the said propositions that the Supreme Court, as wrongly represented,

did not hold that Parliament has no power to amend fundamental rights. On the other

hand it held that it could amend all the fundamental rights, but it could not, by the processof amendment, take away the fundamental rights or restrict them beyond that sanctioned

by Part III. It follows that under the decision the Parliament can add to the list offundamental rights or restrict them reasonably in public interest. To put it in other words,Parliament cannot by amendment take away, to use the terminology of the recent

Supreme Court Judgment, the core of the fundamental rights.

In that case, before the Supreme Court two alternative arguments were advanced: (1) As

Article 368 is subject to Article 13, any law of amendment taking away or abridging thefundamental rights beyond that prescribed under Part III would be void, and (2) In
http://www.ebc-india.com/lawyer/articles/73v2a1.htm#NOTE*http://www.ebc-india.com/lawyer/articles/73v2a1.htm#NOTE*


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exercise of its power of amendment, Parliament cannot destroy the basic structure of the

Constitution, but it can only modify the provisions thereof within the framework of the

original instrument for its better effectuation; and the fundamental rights formed part ofthe basic structure. The Supreme Court accepted the first argument and held that whether

the law of amendment was made in exercise of the power under Article 248 or of the

power implied in Article 368, it being 'law' would be void if it was made in contraventionof the provisions of Article 13. On the second question the Supreme Court held that there

was considerable force, but it did not express its final opinion thereon as the case before

it could be decided on the first point.

The criticism of the Golaknath Judgment ran on the following lines.

(1) It was held in the Judgment that the Parliament has no power to amend theConstitution in order to abridge the fundamental rights.

(2) It was held therein that the power to amend the Constitution was conferred on the

Parliament under Articles 245, 248 and entry 97 of Schedule I, that Article 368 onlyprescribed the procedure and therefore any law amending the Constitution taking away or

abridging the fundamental rights would be void in terms of Article 13 of the Constitution.

The said legal position, it was said, was erroneous as the power to amend was a

constituent power conferred on the Parliament under Article 368 and therefore any lawmade in exercise of that power would not be hit by Article 13 which only governed laws

made in exercise of legislative power.

(3) The Judgment had so entrenched the right to property that it stood in the way of the

Parliament in improving the socio-economic conditions of the country.

The first ground of criticism has no basis. The Supreme Court of India in GolaknathJudgment did not say that the Parliament has no power to abridge the fundamental rights.

What it said was it has no power to abridge the fundamental rights except in the mannerand to the extent prescribed in Part III of the Constitution. To put in other words, as the

amendment is "law" within the meaning of Part III of the Constitution, Parliament can

restrict the fundamental rights in accordance with the relevant provisions of Part III. In

effect it said Parliament cannot by amendment take away the core of the fundamentalrights.

The broad sweep of the power of the Parliament to restrict or limit the fundamental rights

in order to implement the directive principles will be apparent if the relevant provisions

of Part III are scrutinised. The fundamental right to equality is subject to the law ofacquisition; the right to admission to colleges and employment is subject to the law

making special provision for backward communities and scheduled castes; the right to

seven freedoms is subject to the laws of reasonable restrictions in public interest; the rightto life and personal liberty is subject to procedure prescribed by law; the right to property

is subject to the law of deprivation, acquisition and taxation; the right against exploitation

is subject to the law of imposing compulsory services for public purpose; the right tofreedom of religion is subject to laws of public order, morality and health and also the


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law regulating or restricting economic, financial, political or other secular activity or

provisions for social welfare and reform; the right to manage religious affairs is subject to

the law of public order, morality; and the right to administer the property of religiousinstitutions is subject to law. The fundamental rights can also be modified by Parliament

by law in their application to armed forces and the forces charged with the maintenance

of the public order. They may also be restricted by Parliament by law while martial law isin force and when the proclamation of emergency is issued during the continuance of

which, Article 19 is suspended and the President by special order can suspend other

rights. A scrutiny of the said provisions discloses that the Parliament has ample power tomake laws in public interest to restrict the said rights. To put it in other words, while the

Parliament has the necessary power to make laws restricting the said fundamental rights

reasonably in public interest, the Constitution has provided for a minimal judicial check

against the autocratic exercise of that power. This minimal check on autocracy is irksometo men in power.

The second criticism is also not sound. It is true that five of the six judges who formed

the majority held that amendment is law within the meaning of Article 248 of theConstitution and that Article 368 only lays down the procedure. But the sixth judge foundthat power in Article 368 itself. It is immaterial whether the power to amend the

Constitution is found in one provision or other, for it is a power under the Constitution. It

is also immaterial whether the said power is called legislative power, amending power orconstituent power, so long the amendment made in exercise of the said power is law. If it

is law, Article 13 is automatically attracted. That apart, the criticism mixes up the two

concepts of amending power and constituent power. It may be that the amending power iscarved out of the constituent power. It may also be that the amending power may loosely

be described as constituent power. But the distinction between the two is real. One is a

power outside the Constitution and inherent in the people. The other is a power under the

Constitution which vests in the Parliament. Therefore, any amendment made in exerciseof the power under the Constitution is "law" within the wide meaning of the definition of

Article 13. The result of the said decision, whatever may be the reasoning thereunder,

was that the Parliament by amendment cannot take away the fundamental rights but canabridge them within the limits laid down by Part III. It can even add ot her fundamental

rights to the list.

The third ground is an alibi for incompetence or neglect of duty. To appreciate the scope

of the judgment in the context of its effect on the right to property, it would be necessaryto know the scope of the said right as it existed before the said judgment.

The then constitutional position of the right to property may be briefly stated thus:

1. Every citizen has a fundamental right to acquire, hold and dispose of property;

2. The State can make a law imposing reasonable restrictions on the said right in public

interest. The said restrictions, under certain circumstances, may amount even todeprivation of the said right;


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3. Whether a restriction imposed by law on a fundamental right is reasonable and in

public interest or not is a justiciable issue;

4. The State can, by law, deprive a person of his property if the said law of deprivationamounts to a reasonable restriction in public interest within the meaning of Article 19(5);

5. The State can acquire or requisition the property of a person for a public purpose after

paying compensation;

6. The adequacy of the compensation is not justiciable;

7. If the compensation fixed by law is illusory or is contrary to the principles relevant tothe fixation of compensation, it would be a fraud on power and, therefore, the validity of

such a law becomes justiciable; and

8. Laws of agrarian reform depriving or restricting the rights in an estate the said

expression has been defined to include practically every land in a village cannot bequestioned on the ground that they have infringed fundamental rights;

9. The State has powers to impose taxes on all types of property and incomes.

The result is that in India the State has ample power to make laws to bring about all

agrarian reforms unhampered by fundamental rights. The State had now become the final

authority in the shaping of land tenures.

Even on industrial and business front the Constitution has conferred large powers on the

State to regulate it, to prevent concentration of wealth and exploitation and even to

nationalise an industry or business in public interest.

Briefly stated, before the Golaknath judgment there was practically no fundamental rightto property in regard to an estate, which by definition includes almost all the land in rural

area. In regard to other property the State can tax it. If acquired, it has to pay

compensation to its owner on relevant principles, and which is not illusory. The sloganwhich, by repetition has become a conviction in the uninformed mind that under the

Indian Constitution the property right has become entrenched, has therefore no

foundation in fact. What the judgment in effect saved were other fundamental rights such

as right to equality, seven freedoms, right against exploitation, right to life and liberty,etc. from total extinction.

The Parliament passed the 24th Amendment with the object of overruling the effect of

Golaknath judgment and to assert the Parliament's power to take away the fundamental

rights. The 25th, 26th and 29th Amendments to the Constitution were made abridging thefundamental rights in certain areas or in respect of certain laws. The question of the

validity of the said Amendments was the subject-matter of the recent Supreme Court

judgment inKesavananda Bharatv. State of Kerala, (1973) 4 SCC 225. It was heard by13 Judges. All the Judges unanimously held that the 24th Amendment is valid and in


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exercise of its power conferred thereunder Parliament can amend any Article of the

Constitution including the fundamental rights. But seven of the Judges held that the

Parliament by amendment of the Constitution cannot affect the basic structure of theConstitution. There is conflict on the question of the content of the structure and whether

and to what extent and in what circumstances the fundamental rights form part of the said

structure.

The effect of the judgment depends upon the content of the expression 'basic structure ofthe Constitution'. The basic structure of the Constitution takes in, not only the institutions

but also the fundamental principles or the objectives of the Constitution. If the latter are

ignored, the former will become a body without a soul, for the structure is so designed asto implement the philosophy of the Constitution. Indeed, the philosophy and the

institutional devices are so mixed up that if they are separated it becomes a different

Constitution. The Constitution in sonorous terms resolved to constitute India as aSovereign Democratic Republic and to secure to all its citizens Justice, Liberty, Equality

and Fraternity. The Preamble is not a platitude. It is the condensed version of its

philosophy. It is sought to be implemented through the provisions of the Constitution.

The basic structure of the Constitution is made up of the following concepts:

1.Republic: Republic is an independent, sovereign power or State. It is distinguishedfrom monarchy or oligarchy. The power vests in the people. It is a State in which the

supremacy of the people is formally acknowledged. It is a Government for the protection

of the citizens against the exercise of arbitrary and unjust power.

2.Democracy: Democracy is a form of Government where people exercise their power totake political decisions through their representatives selected by the process of free

election. It is a representative and responsible Government. The fundamentals ofdemocracy are free elections and freedoms. Both go together; one cannot exist withoutthe other. If people are deprived of their freedoms, there cannot be free elections. The

Government so elected, in order to perpetuate itself, will supress the freedoms of the

people. So the basis of democracy is freedoms. They are preserved and protected byconventions in highly-developed democracies, where there are no written Constitutions;

they are embodied and protected under written Constitutions in their Democracies; they

are described as Bill or rights in some Constitutions and as fundamental rights in others.Another aspect of the concept of freedom is the equality of all men, for democratic

freedom necessarily means freedom for all people, which means the abolition of glaring

inequalities. There may be additions or restrictions or even suspension of fundamental

rights, having regard to time, place and circumstances, but without them democracy willbe a caricature or empty shell.

3. Constitutional Democracy: It is an evolved device to control the tremendous economic

and political power the executive, over the years, has gathered into its hands. The essence

of Constitutional Democracy is the existence of an effective restraint upon political andgovernmental action. By definition it is a limited Government or a Government that is

subject to restraints. In Constitutional Democracy the Constitution is supreme and all the


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institutions created thereunder shall function within the limits laid down therein. The

existence of rights is an important substantive check on the Government; judicial review

makes the check real, for it is the machinery to enforce the rights. Indeed, the means is apart of the right and therefore the judicial review is itself made a fundamental right.

4.Federation: Federation is a form of Government wherein the sovereign power isdivided between the Centre and the States.

5. Welfare State: Welfare State is a compromise between capitalism and communism. Ithas taken the good points of both and avoided their defects. In a Welfare State the people

have freedoms. But the said freedoms are regulated by the State through laws and the

arbitrary power of the State is controlled by judiciary. Part III and Part IV represent the

core of the Indian Constitutional philosophy. Part III enshrines the fundamental rightsand Part IV declares the directive principles. The combined effect of the two parts is

described from the following different perspectives:

(1) Political, social and economic.

(2) Physical, intellectual and spiritual.

(3) Liberty, equality and security.

(4) Human or fundamental rights and directive principles.

(5) Rights and duties of man.

(6) Means and end.

(7) Directive principles giving content to fundamental rights.

However they are described, both are fundamental for the governance of the country.

Both constitute an integrated scheme. As the social goal is an elastic one, by thecontinuous interaction of the fundamental rights and the directive principles through the

medium of judicial process, the Constitution envisaged an organic growth of socio-

economic justice in a free society. Indeed, the main objective of the directive principles isto give a practical content to the fundamental rights and enlarge their content in the

interest of society. This should be done by a process of harmonisation and not by creating

a conflict between the two, for the permissible formulae of reconciliation are wide and

elastic enough to implement the directive principles without unreasonably abridging ortaking away the fundamental rights. Both together constitute the ideals of a democratic

welfare State and indeed its conscience. The Constitution advisedly reserved the

minimum rights for the people and kept them beyond the unreasonable reach ofParliament. Looked at from a different standpoint, they constitute the necessary checks

on the arbitrary and unconstitutional exercise of legislative and executive power.


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6.Rule of Law: In the Twentieth Century rule of law has acquired a rich content. It takes

in the concepts of law and order, liberty, equality and security. It has become a potent

instrument of socio-economic justice. Judicial review is an integral part of the rule of law.

7.Judiciary: Indian judiciary has an important role to play. In the working of the

Constitution there will be conflicts between the Centre and the States, the States, theParliament and the legislatures, the Citizens, the State and the Citizens, the majority and

the minority interests, and parties who believe in democracy and those who do notbelieve in it. There is also tendency for power to degenerate into autocracy and

despotism. The judiciary is constituted as an umpire to resolve these conflicts. The main

functions of the judiciary are (1) it is a balancing wheel of the federation; (2) it keepsequilibrium between fundamental rights and principles of social justice; (3) it keeps all

the authorities functioning in India within bounds; (4) it controls the administrative

tribunals; (5) it decides disputes between people and between State and the people.Judicial review is an integral part of rule of law, for without that power it is not possible

for the judiciary to discharge the said onerous duties.

8.Parliament: This is a very important institution of the Constitution. The Constitution

minutely defines its powers and limitations. Notwithstanding its wide powers it is notsupreme, for it must function within its bounds laid down in the Constitution. Broadly

stated, it must function with Constitutional competence and without infringing

fundamental rights. The said two conditions are the limitations on the power of theParliament.

9.Executive: The executive is responsible to the Parliament. But in developing countries

like India the executive has gathered into its hands tremendous power, practically free

from the wellknown checks that are found in developed democracies. In the absence of

strong opposition, enlightened public opinion and abiding conventions the judiciary is theonly check on the executive.

10.President: India is a republic. The President is the constitutional head of the State and

he shall function within the limits laid down by the Constitution and protect and preserveit.

Briefly stated, the following are the concepts of the basic structure of the Constitution:

(1) Republic.

(2) Federation.

(3) Constitutional Democracy with its division and limitation of powers.

(4) Representative Government.

(5) Responsible Government through Parliamentary executive.


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(6) Welfare State i.e. a State where there will be prosperity, gainful employment,

freedoms, equality and social justice. Fundamental rights and directive principles are the

fundamentals to the governance of the country and constitute the philosophy andobjectives of the Indian Democracy.

(7) The high concept of Rule of Law in which socio-economic justice and freedoms areintegrated, and judicial review is an integral part of it.

It is manifest that the Indian Constitution has definitely rejected the authoritarian form ofGovernment and directed the State to bring about an egalitarian social order through the

Rule of Law. It has imposed judicial check on the executive and legislative power in

order the keep them within the bounds laid down by the Constitution. Under such a

constitutional scheme the end and the means are equally important; together they formone philosophy.

The observations made by some of the judges in regard to the basic structure or the basic

or fundamental features of the Indian Constitution will, to some extent, help to clarify theposition. Chief Justice Sikri said on page 366 (paras 292 and 293) that:

"The basic structure may be said to consist of the following features

(1) Supremacy of the Constitution,

(2) Republican and Democratic form of Government;

(3) Secular character of the Constitution;

(4) Separation of powers between the legislature, the executive and the judiciary;

(5) Federal character of the Constitution.

The above structure is built on the basic foundation i.e. dignity and the freedoms of theindividual. This is of supreme importance. This cannot by any form of amendment be

destroyed."

According to the Chief Justice the freedoms of the individual are the foundation of thestructure itself.

Shelat and Grover, JJ., speak of the structure on page 454 (para 582) thus:

"The basic structure of the Constitution is not a vague concept The following can be

regarded as the basic elements of the Constitutional structure. (These cannot be

catalogued but can only be illustrated):

(1) The Supremacy of the Constitution;


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(2) The Republican and Democratic form of Government and Sovereignty of the country.

(3) Secular and federal character of the Constitution.

(4) Demarcation of power between the legislature, the Executive and the Judiciary.

(5) The dignity of the individual secured by the various freedoms and basic rights in Part

III and the mandate to build a welfare State contained in Part IV.

(6) The unity and the integrity of the nation."

The learned Judges treat the fundamental rights and directive principles as part of the

basic structure of the Constitution.

Hegde and Mukherjee, JJ., enumerate the basic features thus on page 486 (para 666):

"On a careful consideration of the various aspects of the case, we are convinced thatParliament has no power to abrogate or emasculate the basic elements or fundamental

features of the Constitution such as sovereignty of India, the democratic character of our

polity, the unity of the country, the essential features of the individual freedoms securedto the citizens. Nor has the Parliament power to revoke the mandate to build a Welfare

State and egalitarian Society. These limitations are only illustrative and not exhaustive."

Earlier they said,

"When we speak of the 'abrogation' or 'repeal' of the Constitution we do not refer to any

form but to substance. If one or more basic features of the Constitution are taken away to

that extent the Constitution is abrogated or repealed. If all the basic features of theConstitution are repealed and some other provisions inconsistent with those features are

incorporated, it cannot still remain the Constitution referred to in Article 368. Thepersonality of the Constitution must remain unchanged." (page 481, para 651).

Mr Justice Ray, who accepted the unrestricted power of the Parliament to repeal every

part of the Constitution, had to concede that the amendment should leave "an organic

instrument which provides for the making, interpretation and implementation of law"(page 557, para 917-A). To put in it other words, the Parliament by amendment,

according to the learned Judge, can take away every one of the provisions of the

Constitution provided it keeps a bare mechanism of Government. Perhaps the learned

Judge's definition of 'amendment' would enable the Parliament to take away all theprovisions of the Constitution except 53(1), with an additional section providing that the

President or some other dignitary shall be the President for life, with a power to nominate

his successor. For Section 53, so amended, leaves a machine for the governance. ThePresident's word would be law, it would be interpreted and implemented by his

subordinates. In this view, a Parliament elected for five years on a minority vote, if it gets

two-thirds majority can rewrite the Constitution and change democracy into a totalitarian


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form of Government, depriving its people of all their freedoms. But, the majority of the

learned Judges did not agree with this view.

Jaganmohan Reddy on pp. 637-638 (para 1159) dealt with the subject of basic oressential features of the structure of the Constitution. He observed:

"The elements and the basic structure are indicated in the preamble and translated in the

various provisions of the Constitution. The edifice of our Constitution is built upon and

stands on several props, remove any of them, the Constitution collapses. These are: (1)Sovereign Democratic Republic; (2) Justice social, economic and political; (3) Liberty

of thought, expression, belief, faith and worship; (4) Equality of status and opportunity.

Each one of these is important and collectively they ensure a way of life to the people of

India which the Constitution guarantees. To withdraw any of the above elements, thestructure will not survive and it will not be the same Constitution, or this Constitution,

nor can it maintain its identity if something quite different is substituted in its place,

which the sovereign will of the people alone can do. . . . What then are the essential

features or the basic elements comprising the structure of our Constitution need not beconsidered in detail as that will fall for consideration in any concrete case, where they are

said to have been abrogated and made non-existent. The fact that a complete list of theseessential elements constituting the basic structure are not enumerated is no ground for

denying that these exists . . . . A sovereign democratic republic, Parliamentary

democracy, the three organs of the State, certainly in my view, constitute the basicstructure. But do the fundamental rights in Part III and the directive principles in Part IV

constitute essential elements of our basic structure of Constitution in that the Constitution

will be a Constitution without them? In other words, if Parts III and IV or either of them

are totally abrogated, can it be said that the structure of the Constitution as an organicinstrument establishing sovereign democratic republic as envisaged in the preamble

remains the same? In the sense as I understand the sovereign democratic republic, itcannot; without either fundamental rights or directive principles, what can such aGovernment be if it does not enforce political, economic or social justice?"

The learned Judge, though he has not given an exhaustive list of the essential features of

the structure of the Constitution, has clearly expressed his views on certain aspects,

particularly in regard to the fundamental rights and directive principles. The core of thesaid rights and principles constitutes the Indian Constitutional philosophy and permeate

the entire structure of the Constitution and therefore forms part of its structure.

Palekar, J., on page 699 (para 1281), has given some of the essential features of the

Constitution that were enumerated by the Advocate for the Petitioners. The learnedJudge, after noticing the wide sweep of the argument, stated that in the ultimate result the

case really boiled down to whether the core of the fundamental right to property had been

damaged or destroyed principally by the 25th Amendment and if so whether there wereany implied or inherent limitations on the amending power which prohibited its

amendment (para 1286). He observed that the several essential features listed by Shri

Palkhivala, did not come into the picture in the present case and that since it was not thepractice of the court to decide the questions which were not of immediate controversy, it


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would not be proper to pronounce whether this or that particularly so-called essential

features could or could not be damaged or destroyed by amendment. Having said that,

instead of confining his observations to the right to property, he said that, since it wasargued on behalf of the State that there could be no limitations on the amending power

except those expressly provided in the Constitution and since that would affect the

decision on the validity of the 25th Amendment, he would have to deal briefly with thequestion of implied and inherent limitations with special reference to fundamental rights

including property rights (para 1286). Then the learned Judge after considering the

question at some length again stated (para 1299):

"Having regard to the rules of construction relating to power referred to, we have to see ifeither a provision relating to fundamental rights to property or any related provisions of

the Constitution contain words of prohibition or limitation on the amending power."

On that basis he proceeds to consider the question and he comes to the following

conclusion (page 720, para 1318):

"On a consideration, therefore, of the nature of the amending power, the unqualified

manner in which it is given in Article 368 of the Constitution it is impossible to imply

any limitations on the power to amend rights. Since there are no limitations expressed or

implied on the amending power it must be conceded that all the Amendments in questionhere must be deemed to be valid."

Though his finding applies to all fundamental rights, because of his earlier observations,

there is some hope that in future he will consider the question more deeply if and when

other fundamental rights such as the seven freedoms, right to equality, etc., are takenaway by amendment, and come to a definite conclusion whether they form the basic

structure of the Constitution and could not be taken away. But for the present it may bestated that the tentative view of Palekar, J., is that all the fundamental rights could betaken away by amendment of the Constitution, whether they form part of the structure or

not.

As the judgment of Khanna, J., appears to tilt the balance on the one side or the other, it

is necessary to consider it in some detail. In regard to the scope of the amending power,the learned Judge said at page 768 (para 1430):

"In my opinion, the minimum required is that which relates to the basic structure or

framework of the Constitution. If the basic structure is retained, the old Constitution

would be considered to continue even though other provisions have undergone change.On the contrary, if the basic structure is changed, mere retention of some articles of the

existing Constitution would not warrant a conclusion that the existing Constitution

continues or survives."

Dealing with the power to amend fundamental rights the learned Judge says at page 769

(para 1434):


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"Subject to the retention of the basic structure or framework of the Constitution, I have

no doubt that the power of amendment is plenary and would include within itself the

power to add, alter or repeal the various Articles including those relating to fundamentalrights."

The learned Judge further made it clear that:

"It would be impermissible to differentiate between the scope and width of powers of

amendment when it deals with fundamental rights and the scope and width of that powerwhen it deals with provisions not connected with fundamental rights." (para 1435)

The learned Judge negatived the contention against amendability of the fundamental

rights on the grounds of "essential features", "core", "natural rights", "human rights" and

"preamble" and concluded his discussion at page 806 (para 1508) thus:

"Fundamental rights contained in Part III of the Constitution can, in my opinion, be

abridged or taken away in compliance with the procedure prescribed in Article 368, aslong as the basic structure of the Constitution remains unaffected."

This conclusion has two aspects: (1) Fundamental rights can be taken away or abridged

by amendment of the Constitution; (2) If the amendment of the fundamental rights takingaway or abridging singly or wholly or by various combinations affects the basic structure

of the Constitution it would be void. The question, therefore, is what is in the opinion of

the Judge the basic structure of the Constitution and in what circumstances theamendment of the fundamental rights affects the basic structure.

To ascertain the views of the learned Judge on this question, it would be useful to notice

his approach to the problem of the amendment of the Constitution. He said at pp. 770 and771 (para 1437):

"(A) Constitution provides for the framework of the different organs of the State, namely,

the executive, the legislature and the judiciary. A Constitution also reflects the hopes and

aspirations of a people. Besides laying down the norms for the functioning of different

organs, a Constitution encompasses within itself the broad indications as to how thenation is to march forward in times to come . . . . A Constitution must of necessity be the

vehicle of the life of a nation . . . it is not a document for fastidious dialectics, but the

means for ordering the life of a people."

From these observations it is clear that Parts III and IV of the Constitution, which givethe broad indications how the nation is to "march forward" and "a means of ordering the

life of people" are important and integral parts of the Constitution. The Constitutional

means to the "forward march" of the nation's life is certainly reflected in Parts III and IVof the Constitution. The scheme for the new social order cannot but be a part of the

structure of the Constitution.


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In dealing with this aspect the learned Judge, while recognising that some Articles singly

or in combination may form the basic structure, did not finally decide on all aspects. His

analysis may be grouped under three heads: (1) Articles which do not form the basicstructure; (2) those which form the basic structure; and (3) those left for future decisions.

Under the first group, he puts the right to property. He gives, three reasons for it at page

794 (para 1483): (1) The right to property is a matter of detail; (2) the said right changesfrom time to time and (3) the approach of the framers of the Constitution was to

subordinate the individual's right to property to the social good. Under the second group

the learned Judge said that the following amendments, though the list is not exhaustive,affect the basic structure of the Constitution: (1) changing the democratic Government

into dictatorship or hereditary monarchy; (2) abolishing the Lok Sabha or Rajya Sabha;

(3) changing the secular character of the State, according to which the State shall not

discriminate against any citizen on the ground of religion. This indicates that in thelearned Judge's view taking away one or two fundamental rights might affect the

structure; (4) the amendment which "excludes judicial review regarding the validity of a

statute, which might be enacted by the legislature in the future in respect of a specified

subject, but also excludes judicial review for finding whether a statute enacted by thelegislature is in respect of a subject for which judicial review has been excluded". (para

1533) The said list is not exhaustive but only illustrative. Under the third group thelearned Judge posed many questions and left them unanswered. On the question of the

abuse of emergency powers under Article 352, the extension of the life of the Parliament

under Article 83, the amendment of the Constitution under Article 368, so as to make it

unamendable, he declined to give a definite answer, though he expressed the hope thatsuch amendments would not be made.

Briefly stated, according to the learned Judge, barring the right to property, an

amendment of other fundamental rights, singly, wholly or in combination with other

provisions of the Constitution may under certain circumstances affect the basic structureof the Constitution. An amendment may repeal Part IV or Part III or both Part III and IV;

it may keep all the fundamental rights but repeal Article 32; it may repeal Article 19

which embodies the seven freedoms, without which democracy cannot survive; it mayremove the doctrine of equality which is the cherished value of democracy; it may repeal

the provisions in Part III which preserve the doctrine of the tolerance of religious

diversity; it may repeal the provisions which protect the exploited people and minorities.All the amendments and such others will have to be scrutinised in the view of the learned

Judge on the touchstone of the "basic structure" of the Constitution.

Even in regard to the right to property it would still be an open question whether, if the

amendment takes away generally without confining it to a particular subject not onlyArticle 31 and 19(1)(f) but also other rights in Article 14 and other clauses of Article

19(1), it would not affect the basic structure of the Constitution. Suppose the effect of an

amendment is that not only the right to property but also other rights of the people suchas freedom of speech, association, equality, judicial review to the extent directly,

indirectly or remotely connected with the right to property are repealed, can it be said that

such an amendment does not affect the democratic structure of the Constitution. No doubtthe learned Judge held that the first part of Article 31-C was good but he held so because


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that part related only to a particular subject-matter covered by Article 39(b) and (c) and

that as Part II of 31-C was held void, the judicial review in respect of the laws mentioned

in Part I was retained. It may therefore be said that Khanna, J., agreed with the other sixJudges, who preserved the freedoms except in regard to right to property, though his

conclusion was based not on principle of "core" but on that of "basic structure".

Mathew, J., on this aspect has to say this: On page 880 (para 1714) dealing with

fundamental rights the learned Judge observed:

"I think these are rights which inher in human beings, because they are human beings

whether you call them natural rights or by some other appellation is immaterial. As the

preamble indicates, it was to secure the basic human rights like liberty and equality, that

the people gave unto themselves the Constitution and these basic rights are essentialfeatures of the Constitution; the Constitution was also enacted by the people to secure

justice, political, social and economic. Therefore, the moral rights embodied in Part IV of

the Constitution are equally essential features of it, the only difference being that the

moral rights embodied in Part IV are not specifically enforceable as against the State by acitizen in a court of law in case the State fails to implement the duty. But they are

fundamental to the governance of the country, and all organs of the State including thejudiciary are bound to enforce those directives."

Further he proceeded to state that:

"the responsibility of the Parliament in taking away or abridging a fundamental right is an

awesome one and whenever a question of Constitutional amendment which will have the

above effect comes up for consideration, Parliament must be aware that they areguardians of rights and principles of the people in greater degree than courts, as the courts

go into the validity of the amendment on any substantive ground."

Adverting particularly to the right to property the learned Judge says at page 884 (paras1725 & 1727):

"The most that we can claim, as general principle applicable to all the stages of social

development, is that without some property or capacity for acquiring property, there can

be no individual liberty, and that without some liberty there can be no properdevelopment of character. In short, the concept of property is not an arbitrary ideal but is

founded on man's natural impulse to extend his own personality. In the long run, a man

cannot exist, cannot make good his right to marriage or found a family unless he is

entitled to ownership through the acquisition of property."

He came to the following conclusion at page 885 (para 1731):

"The framers of our Constitution made the right to acquire, hold and dispose of property

a fundamental right thinking that every citizen in this country would have an opportunity

to come by a modicum of that right."


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No doubt the learned Judge dealt with the three different types of property, the different

stages of the development of the right to property and also the liability of the said right

being controlled or modified by law. He also accepted the argument that Parliamentthrough the amending process can take away the right. But what I am emphasising now is

that even Mathew, J., who conceded the unrestricted power to Parliament to take away

the fundamental rights by the amending process holds that the fundamental rightsincluding right to property, subject to the laws of social control along with the directive

principles are the essential features of the Constitution. The expression "essential

features" is not different from the expression "basic structure".

Beg., J., though held that Parliament, through the amending process, could take away allthe provisions of the Constitution without abrogating the Constitution or creating a

vacuum, said about the status of fundamental rights in the Indian Constitution in the

following words at page 901 (paras 1800 and 1801):

"The voice of the people speaking through the Constituent Assembly constituted a new

'Republic' which was both 'Sovereign and Democratic'. It no doubt sought to secure thenoble objectives laid down in the preamble primarily through both fundamental rights

found in Part III and the Directive Principles of the State Policy found in Part IV of theConstitution If any distinction between Fundamental Rights and Directive Principles

on the basis of the difference between ends or means were really to be attempted, it

would be more proper, in my opinion, to view fundamental rights as the ends of theendeavours of the Indian people for which Directive Principles provided the guidelines. It

would be still better to view both Fundamental rights and the 'fundamental' Directive

Principles as guidelines."

He proceeded to describe graphically the position of fundamental rights in the

Constitution thus (p. 902, para 1802):

"Perhaps, the best way of describing the relationship between the two would be to look

upon the directive principles as laying down the path of the country's progress towards

allied objectives and aims stated in the preamble, with fundamental rights as the limits ofthat path, like the banks of the flowing river, which could be amended or mended by

displacements, replacement or curtailments or enlargements of any part according to the

needs of those who had to use the path. In other words the requirements of the path itselfare more important."

At page 909 (para 1823) the learned Judge stated the Constitutional function of the

judiciary thus:

"(It) is to see that the chosen vehicle does not leave the chartered course or path or

transgress the limits prescribed by the Constitution at a particular time. The fundamentalrights as I have said earlier may be viewed as such limits. The power of amendment, in a

Constitution such as ours, must include the power to change these limitations to suit the

needs of each age and generation."


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Briefly put, the learned Judge, while conceding the plenary power of the amending

process, described the fundamental rights as the banks of a "flowing river". If the

metaphor is pursued to the logical end, it follows that just like the bunds of a river, to usethe terminology of the learned Judge, they could be amended by displacements,

replacements or curtailments or enlargements, but cannot be destroyed. To use the

phraseology of some of the learned Judges, if the core of the bund is removed the entireriver loses its direction and submerges the land on all sides. So too the destruction of the

core of the fundamental rights destroys the structure of the democratic polity. This

indicates the importance of the fundamental rights as a basic feature of the structure ofthe Indian Constitution. No doubt, the learned Judge observed that there was no

distinction between the more or the less basic parts of the Constitution except in the more

difficult procedure prescribed for the amendment of some Articles, and concluded that no

parts of the Constitution were sacrosanct and beyond the reach of Article 368. The onlylimitation he placed upon the amending process was that it could not abrogate the

Constitution or create a vacuum, though at the same time he said that it could be done

step by step by the bodies empowered to amend if they so desired and followed the

appropriate procedure. (Para 1836) This conclusion meant that according to the learnedJudge every provision, whether it is basic to the structure of the Constitution or not, could

be repealed.

Dwivedi, J., who gave the widest interpretation to the amending power distinguishing theessential features from the non-essential features of the Constitution said at page 942

(paras 1930-31) thus:

"Every provision of the Constitution which may be amended only by the procedure

prescribed in Article 368 is an essential feature of the Constitution, for it is more set thanlegislative laws . . . . Thus the provisions specified in the proviso to Article 368 are more

essential than the rights in Part III. It has already been shown earlier that the fundamentalrights, even though an essential feature of the Constitution, are within the sway of theamending power in Article 368."

The learned Judge, therefore, accepted the position that the fundamental rights are

comparatively an essential feature of the Constitution, and the test of essentiality he

found in Article 368 of the Constitution.

Chandrachud, J., who also endowed Article 368 with the plenary power of amendment

said of fundamental rights thus (p. 985, para 2076):

"Fundamental rights undoubtedly occupy a unique place in the civilized societies whether

you call them 'transcendental', 'inalienable', 'inviolable' or as Lieber called 'primordial'.There is no magic in these words for the strength and importance of these rights is

implicit in their very description of them as 'fundamental'."

On page 999 (para 2120) the learned Judge reaffirmed his earlier view thus:


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"I have stated in the earlier part of my judgment that the Constitution accords a place of

pride to fundamental rights and a place of permanence to the directive principles. I stand

by what I have said, Fundamental Rights which are conferred and guaranteed by Part IIIof the Constitution undoubtedly constitute the ark of the Constitution and without them a

man's reach will not exceed his grasp."

But the learned Judge held that Article 368 conferred a plenary power on the Parliament

to repeal every provision of the Constitution.

To sum up:

(1) All the Judges agreed that the 24th Amendment, amending Article 368 of the

Constitution was valid and under the amended section, all the Articles of the Constitution

including those enshrining fundamental rights could be amended.

(2) Seven of the Judges Sikri, C.J., Shelat, Hegde, Grover, Jaganmohan Reddy,

Khanna and Mukherjea, JJ., held that the provisions, including those providing forfundamental rights could not be amended, if they affected the basic structure of the

Constitution.

(3) Six of the said seven, excluding Khanna, J., held that the 'core' of the fundamentalrights, formed part of the basic structure of the Constitution. Four Judges Mathew,

Beg, Dwivedi and Chandrachud, JJ., held that the fundamental rights were the basic

features of the Constitution, though they held that the said fact did not keep them beyondthe reach of the amendatory process.

(4) Khanna, J., held that the right to property was not a part of the basic structure of the

Constitution. In his view the validity of the amendment of the other fundamental rightswould depend upon the fact, whether the nature of the amendment of such a right orrights affects the basic structure of the Constitution.

(5) Six Judges Ray, Palekar, Mathew, Beg, Dwivedi, Chandrachud, JJ., did not accept

his limitation on the plenary power of the Parliament to amend the Constitution. But there

of them, Ray, Mathew and Beg, JJ., held that the said power could not enable theParliament to destroy the Constitution without retaining a bare mechanism of

Government.

The result is that the Supreme Court by majority declared that the Parliament under the

Indian Constitution is not supreme, in that it cannot change the basic structure of theConstitution. It also declared by majority that under certain circumstances, the

amendment of the fundamental rights other than the right to property would affect the

basic structure and therefore would be void. The question whether the amendment of thefundamental right to property would under some circumstances affect the basic structure

of the Constitution is not free from doubt; the answer depends upon the view the

Supreme Court takes hereafter of the impact of the opinion of Mathew, Beg, Dwivedi andChandrachud, JJ.the fundamental rights are the basic features of the Constitution on


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the opinion of the six Judges, who held that the core of the fundamental rights is part of

the basic structure of the Constitution. One possible view is that together they form a

clear majority on the content of the basic structure; another possible view is that theiropinion should be read along with their finding that the entire Constitution, except

perhaps the bare machine of Government, could be repealed by amendment. Prima facie I

am inclined to agree with the first view, as the two questions can be separated, but as thepoint is argued, final decision could be given only by the Supreme Court.

InKshavananda Bharati case, the judgment is drawn on a larger canvass. In one sense it

went beyond the Golaknathjudgment. As the Golaknath judgment was overruled, all the

previous amendments, which were held to be valid by Golaknath judgment are now opento be reviewed, though they can be sustained on the ground that they do not affect the

basic structure of the Constitution or on the ground that they are reasonable restrictions

on the fundamental rights in public interest. Except as regards the right to property, thepractical effect of the judgment is the same as that ofGolaknathjudgment in regard to

fundamental rights other than the right to property. Under the Golaknath judgment, an

amendment can be supported on the basis of the laws of social control in terms of Part III,under the present judgment on the ground that it does not affect the basic structure of theConstitution. Indeed, the present judgment goes further and restricts the Parliament's

power to amend any other Article, if it affects the basic structure of the Constitution. In

regard to the right to property the people have practically lost that right even beforeGolaknath judgment; under the present judgment according to one view the fundamental

right to property is not a part of the basic structure and therefore can be taken away by

amendment and according to another view the validity of the previous amendments andthe future ones taking away the fundamental right to property could be tested on the

touchstone of the concept of "basic structure". Be it as it may, we must accept the recent

judgment as final. I hope and trust that instead of again building up pressures around the

judgment the Supreme Court will be allowed to evolve the Constitutional law of ourcountry to suit the fast-changing needs of our Society in terms of Parts III and IV of the

Constitution.

The Supreme Court also considered the question of the validity of the 25th Amendment.The 25th Amendment has made certain changes in Article 31(2) of the Constitution and

also inserted Article 31-C. It made the following changes in Article 31(2):

1. It has amended Article 31(2) in two respects

(a) It substituted the word "amount" for the word "compensation" for property acquired

or requisitioned.

(b) It has provided that the law for the purpose of acquisition or requisition shall not be

called in question on the ground that the whole or any part of the amount is to be given

otherwise than in cash.


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2. It has provided that the fundamental rights to acquire, hold and dispose of property

under Article 19(1)(f) cannot be invoked in respect of any such law as is referred to in

Article 31(2).

3. It has inserted 31-C which makes the fundamental rights conferred by Articles 14, 19

and 31 inapplicable to certain categories of laws passed by Parliament or by any Statelegislature.

4. It also added a proviso that a statutory declaration in the said law that it is toimplement the directive principles in Article 39(b) and (c) of the Constitution is binding

on the court.

On the question of the construction of Article 31(2) of the Constitution as it now stands

after the 25th Amendment, the majority view is clear. I shall briefly quote the views ofdifferent judges on the subject before making my comments.

Sikri, C.J., held that the substitution of the word "amount" for "compensation" wouldmean that the person whose property is acquired can no longer claim full compensation,

or just compensation, but he can still claim that the law should lay down the principles todetermine the amount which he is to get and those principles must have rational relation

to the property sought to be acquired. In this view he held that the Parliament cannot

empower the legislature to fix an arbitrary or illusory amount or an amount that virtuallyamounts to confiscation and the same considerations should apply to the manner of

payment (p. 390). He also held that clause (2-B) in Article 31 which makes Article 19(1)

(f), inapplicable is not an unreasonable abridgement of rights under Article 19(1)(f), and

if the procedure for the determination of the amount is arbitrary the relevant provision oflaw may be struck down under Article 14. (p. 392, para 413).

Shelat and Grover, JJ., construed the amended Article 31(2) in an attempt to rationalise it.

They observed that the court would have to be satisfied that the amount had reasonablerelationship with the value of the property acquired or requisitioned and one or more of

the relevant principles had been applied and further, the amount awarded was neither

illusory nor had it been fixed arbitrarily, nor was it such a figure that it amounted to

virtual deprivation of the right. (p. 457).

Hegde and Mukherjea, JJ., said much to the same effect on page 500 (para 707).

"If you bear in mind that the amount in question is to be made in lieu of the property

taken, then it follows that it must have a reasonable relationship with the value of theproperty taken. It may not be the market value of the property taken. The market value ofthe property is a result of interaction of various forces."

They concluded:

"It (court) can only go into the question whether the amount was arbitrarily fixed or

illusory or whether the principles laid down for the purpose of determining the amount


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payable have reasonable relationship with the value of the property acquired or

requisitioned."

Ray, J., felt that the adequacy of the amount fixed or the principles as specified could notbe a subject-matter for judicial review. (p. 582, para 1019)

Jaganmohan Reddy, J., in dealing with the amendment to Article 31(2) observed that the

pre-existing law on the question of fixing the amount for the property acquired has not

been affected by the amendment by merely substituting the word "amount" for"compensation". In regard to that aspect he came to the following conclusion (p. 643,

para 1166):

"Once it is satisfied that the challenge on the ground that the amount or the manner of its

payment is neither arbitrary nor illusory or where the principles upon which it was fixedwere found to bearreasonable relationship to the value of the property acquired, the

court cannot go into the question of the adequacy of the amount so fixed on the basis of

such principles."

In his view the effect of the amendment is only that the law now need not provide forgiving compensation in the sense of equivalent in value or just equivalent to the value of

the property acquired, but the amount should have reasonable relation to the value of the

property acquired. Dealing with the amendment disconnecting Article 19(1)(f) withArticle 31(2) he reads down the relevant amendment and on the application of the

principle of severability he holds that Section 2(b) of the 25th Amendment should be

restricted to the abridgement of Article 19(1)(f) and not to its abrogation (para 1168). On

that construction he concludes that the aggrieved party whose property is acquired shouldhave reasonable opportunity to establish his case (paras 1169-70).

Palekar, J., dealing with the amendment to Article 31(2) which substituted the word

"amount" for compensation, and while holding that the amendment was good, made thefollowing observations (page 721, para 1319):

"Whether a particular law fixed an amount which is illusory or otherwise a fraud on

power denying fundamental right to receive an amount specially conferred by clause (2)

will depend upon the law when made on the basis of clause (2). One cannot anticipateany such matters and strike down an amendment which, in all conscience, does not

preclude afair amountbeing fixed for payment in the circumstances of a particular

acquisition or requisition. The possibility of abusing power given under the amendment

of the Constitution is not determinative of the merit of the amendment."

From this observation it is clear that the learned Judge is inclined towards the view that if

a law of acquisition fixes an illusory amount or amounts, which is fraud on power and

thus denies the fundamental right to receive the amount, it may be liable to be set aside.


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Khanna, J., held that Article 31(2), as amended, was valid but did not express any view

on the construction of the amended article for, in his view, whatever might be the

construction of the word "amount", the amendment was valid (para 1613).

Mathew, J., said that fixation of the amount or the principle for determining the amount is

a matter within the absolute discretion on Parliament and the State legislature, and thecourt cannot question the fixation of that amount. He has left open the question whether a

law, fixing an amount which is illusory or which is fraud on the Constitution, can bestruck down by court (pp. 888-891).

Beg, J., agreed with the view expressed by Ray, Palekar, Mathew and Dwivedi, JJ., (para

1856).

Dwivedi, J., held that Article 31(2) is good and that if a court fixed an amount it cannotbe questioned on the ground that it is arbitrary, illusory or fraudulent (p. 953, paras 1970-

71).

Chandrachud, J., asserted the court's jurisdiction to question a law passed under the

amendment, if the power of compulsory acquisition or requisition was exercised for acollateralpurpose or it offended theprinciples ofthe Constitution or if it was in the

nature of fraud on the Constitution. He further opined that the court would have the

power to question the law if the amount fixed was illusory or the principles fordetermining the amount were wholly irrelevantfor fixation of the amount (pp. 1000-01).

The learned Judge observed at page 1000 (para 2123) thus:

"But to say that an amount does not bear reasonable relationship with the market value is

a different thing from saying that it bears no relationship at all, none whatsoever. In the

latter case the payment becomes illusory and may come within the ambit of permissiblechallenge."

Though the learned Judge did not discuss the question fully he concluded thus (p. 1000,

para 2124):

"(T)hough it is not open to the court to question a law under Article 31(2) on the groundthat the amount fixed or determined is not adequate, courts would have the power to

question such a law, if the amount fixed thereunder is illusory; if the principles of any are

stated, for determining the question are wholly irrelevant for fixation of the amount; if thepower of compulsory acquisition or requisition are exercised for a collateral purpose; if

the law offends constitutional safeguards other than that contained in Article 19(1)(f) or ifthe law is in the nature of fraud on the Constitution". He added that "if the amount isshown to depend upon principles bearing on social good, it may not be possible to say

that the principles are irrelevant."

The Court therefore unanimously held that the 25th Amendment, insofar as it introduced

the changes in Article 31(2), is valid. But the majority of judges held, in effect, that theamount fixed by law or the principles laid down thereunder for fixing the amount must be


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reasonable and relevant to the property acquired and the amount fixed shall not be

illusory or in fraud of power (Sikri, C.J., Shelat, Hegde, Grover, Jaganmohan Reddy,

Mukherjea and Chandrachud, JJ.). Out of the remaining judges, Palekar, J., was inclinedto hold that the law would be bad if the amount fixed was illusory or in fraud of power.

Mathew, J., left open the question and Khanna, J., did not express any view on the

construction of the amended Article. Broadly stated, the doctrine of "reasonableness" issubstituted for that of "just equivalent". It is therefore clear from the said Judgment that

the majority of judges in effect held that the fixation of the amount by the Parliament can

be questioned by the court if the amount so fixed is unreasonable or illusory or if theprinciples laid down are irrelevant or in fraud of power.

The fixation of compensation for a property acquired is not an exact science. The

principles evolved up to now are not a closed book. The principles can be improved or

new ones evolved having regard to the changes in the socio-economic structure of thecountry. Even when the concept of "just equivalent" governed the situation Jurists could

have made a research and evolved new principles which would be "just equivalent" to the

property acquired having regard to the said changed conditions. But unfortunatelyvaluable time was wasted on criticising the judgments of the Supreme Court instead ofhelping to implement the law laid down by the said court. "Just equivalent" does not

mean any "market value". It may represent an amount which is just recompense for the

property acquired having regard to the obligations of the owner to the Society. I hadhoped, when the Supreme Court delivered the judgment in Vajravelu case (1965) 1 SCR

614, the Jurists and the legislatures would help to evolve relevant principles in terms of

the said judgment. Instead the court's decision was used to build up pressures throughmass media and seminars. Now the Supreme Court has substituted the words "reasonable

amount" for "just equivalent". It is hoped, instead of again building up pressures on that

decision as a step to remove altogether Article 31, the men in power will appoint a high

power committee of eminent lawyers to evolve principles for evolving "reasonableamount" for the land acquired. Otherwise there will be instability in the county because

of uncertainty and amiguity in the domain of property law. So long democracy continues

to exist in our country, so long the State has not become the owner of all property,definiteness and certainty in law of property is essential for the stability of the State.

I shall now briefly consider the views of the various Judges on the validity of 25th

Amendment introducing Article 31-C in the Constitution.

Sikri, C.J., held that as Parliament could not under Article 368 abrogate fundamentalrights, it could not equally enable the legislatures to abrogate them and therefore the said

provision was void. He also rejected the plea that Article 31-C was an implied

amendment of Article 368 and, even if it was so, he held that it was beyond the powers ofParliament under Article 368. (pp. 395-402)

Shelat and Grover, JJ., held that Article 31-C was bad on two counts: (1) It enabled total

abrogation of fundamental rights contained in Articles 14, 19 and 31, and (2) the power

of amendment contained in Article 368 was of a special nature which had beenexclusively conferred on the Parliament and it could be exercised only in the manner laid


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down in the article and it could not be delegated to any other legislature. (page 461, para

604)

Hegde and Mukherjea, JJ., held that Article 31-C gave power to the Parliament and theState legislatures not only to abridge but even to take away the rights guaranteed under

Articles 14, 19 and 31 by ordinary law contrary to the expressed provisions of Article 368and therefore was void. They negatived the contention of the State that Article 31-C only

lifted the ban placed on the State legislatures and the Parliament under Articles 14, 19and 31, on the ground that the laws permitted to be made under Article 31-C enabled the

State legislatures to take away the fundamental features of the Constitution and were also

void under Article 13 and therefore could not be equated with the Articles which onlylifted the ban and which did not take away such fundamental features of the Constitution.

The argument based on the analogy of the Article 31-A was also rejected for the reason

that though Article 31-C bore some analogy to Article 31-A, the former Article went farbeyond the permissible limits of encroachment of fundamental rights and therefore was

constitutionally void. The contention that Article 31-C merely delegated the amending

power to the legislatures was not accepted on the ground that Parliament could not createa new power inconsistent with Article 368 of the Constitution. The argument that Article31-C was an amendment of Article 368 was held to be untenable as the said Article did

not purport to be so. With the result that the learned Judges came to the conclusion that

Article 31-C permitted the destruction of some of the basic features of the Constitutionand consequently was void (pp. 503-509).

Ray.J., accepted all the arguments rejected by Hegde and Mukherjea, JJ., and held that

Article 31-C was good. But the learned Judge held that in order to decide whether a

statute was within Article 31-C the court might examine the nature and character of thelegislation and the matter dealt with as to whether there was nexus between the law and

the principles mentioned in Article 39(b) and (c) and that if it appeared that there was nosuch nexus the said law would not be within the protective umbrella.

If there was such nexus in his view the court was precluded from questioning the validityof any law passed in exercise of the power conferred thereunder. (pp. 591-592, paras

1056-57)

In construing Article 31-C, Jaganmohan Reddy, J., rejected the main arguments advancedby the State. He held by the application of the doctrine of severance that the said Article

was valid. The said Article as held by him to be valid after deletion of some terms reads

thus: 'Notwithstanding anything contained in Article 13, no law giving effect to the

policy of the State towards securing the principles specified in clause (b) or (c) of Article39 shall be deemed to be void on the ground that it abridges any of the rights conferred

by Articles 14, 19 or 31.' (para 1210).

In coming to the conclusion the learned Judge held that the Parliament by amendment

could not confer a power on the legislatures to exclude the operation of Article 14 or theprovisions of Article 19 other than Article 19(1)(f) and (g), for other clauses relate to

freedoms other than right to property. The learned Judge also held that the finality to the


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statutory declaration given under Article 31-C was bad. The learned Judge came to the

conclusion that if the said words were deleted, the fundamental right to property would

not be destroyed or emasculated and therefore the remaining Article would be good. (pp.645-665)

Mr Justice Palekar accepted all the contentions advanced by the State and held thatArticle 31-C was valid. But accepting the concession made by the Union, he ruled that if

the court came to the conclusion that the declaration was merely a pretence and the realobject was discrimination or something other than the objects specified in Article 39(b)

and (c), Article 31-C would not be attracted. (pp. 724-725)

Khanna, J., struck down the second part of Article 31-C of the Constitution on the

following grounds (page 822, para 1535-A):

"(1) It gives a carte blanche to the legislature to make any law violative of Articles 19, 14

and 31 and make it immune from attack by inserting the requisite declaration. Article 31-

C taken along with the second part gives in effect the power to the legislature, including aState legislature, to amend the Constitution.

(2) The legislature has been made the final authority to decide as to whether the law made

by it is for the objects mentioned in Article 31-C. The vice of the second part of Article

31-C lies in the fact that even if the law enacted is not for the objects mentioned inArticle 31-C, the declaration made by the legislature precludes a party from showing that

the law is not for that object and prevents the court from going into the question as to

whether the law enacted is really for that object. The exclusion by the legislature,

including a State legislature, of even that limited judicial review strikes at the basicstructure of the Constitution. The second part of Article 31-C goes beyond the

permissible limits of what constitutes amendment under Article 368."

To put it in other words, the learned Judge has said that under Article 368 the Parliamentcannot amend the Constitution so as to confer on the legislature the power to make any

law violative of fundamental rights, or a power to decide finally whether a particular law

is in enforcement of the directive principles. The former is the delegation of its amending

power and therefore void and the later is the exclusion of judicial review affecting thebasic structure and therefore void.

Mathew, J., held that the first part of Article 31-C is similar to Article 31-A. Regarding

the scope of the declaration he said (page 896, paras 1778 & 1779):

"It is only a law for giving effect to the policy of the State towards securing the principlesspecified in clauses (b) and (c) of Article 39 that can contain a declaration . . . . The

declaration can never oust the jurisdiction of the court to see whether the law is one for

giving effect to such a policy, as the jurisdiction of the legislature to incorporate thedeclaration is founded on the law being one to give effect to the policy of the State

towards securing these principles.


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In order to decide whether a law gives effect to the policy of the State towards securing

the Directive Principles specified in Article 39(b) or (c), a court will have to examine the

pith and substance, the true nature and character of the law as also its design and thesubject-matter dealt with by it together with its object and scope. If the Court comes to

the conclusion that the declaration was merely a pretence and that the real purpose of the

law is the accomplishment of some object other than to give effect to the policy of theState towards securing the Directive Principles in Article 39(b) and (c), the declaration

would not be a bar to the Court from striking down any provision therein which violates

Article 14, 19 or 31. In other words, if a law passed ostensibly to give effect to the policyof the State is, in truth and substance, one for accomplishing an unauthorised object, the

Court would be entitled to tear the veil created by the declaration and decide according to

the real nature of the law."

Beg, J., held that the Section 31-C was valid, but it did not preclude a judicialexamination of the nexus between Article 39(b) and (c) and the law and the courts could

still determine whether the law passed was really one covered by the field carved out by

Article 31-C or merely pretended to be so protected under the cover of the declaration. (p.918)

Dwivedi, J., also held that Article 31-C was good, but the court could go into the question

of the relevancy of the law to the subject-matter of Article 39(b) and (c). (p. 956)

Chandrachud, J., held that Article 31-C was good as it only identified the class of

legislation and exempted it from the operation of Articles 14, 19 and 31. The field oflegislation was not created by Article 31-C. The power to legislate existed apart from it.

In the learned Judge's view, the second part was also good, as the finality of the

declaration did not preclude the court from deciding whether there was reasonable nexus

between the law and directive principles. (p. 1002)

The aforesaid discussion leads to this position: Sikri, C.J., Shelat, Hegde, Grover and

Mukherjea, JJ., held that entire Article 31-C was void; Jaganmohan Reddy, J., deleted

certain portions from the first part of Article 31-C and held the rest valid and the secondpart void. Khanna, J., held the second part void. The other five Judges expressed the view

that the entire Article 31-C was good, though in effect they held that the Article did not

preclude the court from going into the question whether there was a nexus between thelaw made by the legislature and the principles embodied in Article 39(b) and (c) of the

Constitution. The result is the Supreme Court by majority held that the first part of

Article 31-C was valid and the second part invalid. The effect of the decision is that the

Supreme Court preserved its power of judicial review on the question whether a law bythe legislature has in fact implemented the principles laid down in Article 39(b) and (c) of

the Constitution. Even the Judges, who gave their approval to the second part reserved

the power of the Supreme Court to review, though it was only confirmed to the narrowquestion of 'nexus'. Though the scope of judicial review is considerably narrowed in

regard to laws enforcing the principles of Article 39(b) and (c) in the context of its impact

on fundamental right to property, the fact that it is still preserved is a guarantee againstperverse legislative action.


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To sum up, the 25th Amendment, as interpreted by the Supreme Court, made the

fundamental right to property more attenuated than it had already become. The judicial

review is now confined only in respect of a law affecting that right to the followingquestions:

(1) Whether the legislature has constitutional competence in respect of the subject?

(2) Whether the acquisition is for a public purpose?

(3) Whether the amount paid for acquisition or the principles laid down in regard thereto

have any reasonable relation to the property acquired? and

(4) Whether the law made affecting the fundamental right to property, in order to enforce

the principles under Article 39(b) and (c), has in fact been made to enforce them.

It is hoped that the men in power will accept the judgment. The present attenuated

fundamental rights to property cannot possibly obstruct the ushering in all reasonablesocio-economic reforms and indeed the existence of a remote judicial control may only

act as a brake against hasty and unreasonable legislative and executive action and as a

form of guarantee to the public against instability. The stability of the Constitution

stabilises the State.

* (1973) 4 SCC 225.

k Subba Rao-golaknath and Kesavananda-The Two Judgements

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