SUPREME COURTS

VOLTE-FACE

ON CONSTITUTIONAL AMENDMENT

By BAL PATIL

I think it is a matter of serious concern for the constitutional destiny of the nation because I fear the Supreme Court’s order striking down 42nd Amendment relating to Section 4 and Section 55 is the most regressive step injurious to the preambulary ideal of a Socialistic, Secular,Demoractic Republic of India. I believe the Supreme Court has needlessly revived the old controversy about the Parliamentary amending power and the primacy of Fundamental Rights vis-a vis Directive Principles of State Policy. To make the constitutional confusion worse confounded the Supreme Court’s Order strikes down the 42nd Amendment on the ground that the impugned provisions violate the basic features of the Constitution. I think the Union Government has rightly filed in the Supreme Court a petition seeking review by a larger bench of not less than seven judges of the Supreme Court’s Order striking down 42nd Amendment. The Order needs reconsideration because as noted by the Union Law Minister it would have far reaching consequences amounting to an amendment of the Constitution. There is a clamour in the press appealing to the Government that it should accept the Supreme Court Order. It is contended that the Supreme Court has reestablished two fundamental constitutional principles, one, that Parliament cannot amend the constitution so as to remove all limitation on its amending power, and two that the Fundamental Rights under the Constitution are indeed fundamental and cannot be subsidiary to the Directive Principles.

PROCESS OF CONSTITUTIONAL AMENDMENT To rebut these contentions it would be necessary to take a synoptic view of the tortuous course the process of constitutional amendment has run since 1951 when the first amendment was passed by the Parliament. It is pertinent to remember that the first Amendment to the Constitution was passed by the members of the Constituent Assembly sitting as the Provisional Parliament. The validity of the First Amendment Act, 1951 was challenged in the Supreme Court in Sri Shankari Prasad Singh Deo versus Union Of India and State of Bihar (1952, S.C.R.), It was urged in that case that the Amendment Act in so far as it purported to take away or abridge the rights conferred by Part III falls within the prohibition of Articles 13(2) and was therefore unconstitutional. Justice Patanjali Shastri speaking for the unanimous Court rejected this argument holding as follows: “No doubts, our Constitution-makers, following American model, have incorporated certain fundamental rights in Part III and made them immune from interference by laws made by the State. We find it, however, difficult in the absence of a clear indication to the contrary, to suppose that they also intended to make those rights immune from constitutional amendment. “On the order hand, the terms of Article 368 are perfectly general and empower Parliament to amend the Constitution, without any exception whatever. “We are of the opinion, that in the context of Article 13 ‘Law’ must be taken to mean rules and regulations made in exercise of ordinary legislative power with the result and Article 13(2) does not affect amendments made under Article 368.” This matter once against came before the Supreme Court when the Seventeenth Amendment was challenged in Sajjan Singh versus State of Rajasthan in 1965 before A 5- Member Bench presided over by Chief Justice Gajendragadkar. One of the arguments urged that the Amendment Act was void in view of the provisions of Article 13(2), in so far as the Act purported to abridge the Fundamental rights guaranteed by Part III. Chief Justice Gajendragadkar delivering the majority judgment on behalf of himself, Wanchoo and Raghubar Dayal, JJ., concurred with the reasoning in the Shankari Prasad and observed that the expression “amendment of the Constitution” plainly and unambiguously means amendment of all the provisions of the Constitution and therefore the amending power conferred by Article 368 extended to all the provisions of the Constitution. In this case, however, Hidayatulla and Mudholkar, JJ. Though they concurred with the final conclusion, doubted the majority view by separate judgments and observed that it was possible that Article 368 merely laid down the procedure for amending the Constitution but did not confer the power to amend the Constitution. Both the

judges stated expressly that they should not be taken to have expressed a final opinion on that question. GOLAKNATH CASE That was the Indian constitutional position on the issue of amendment till 1967 when a 11 Member Bench of the Supreme Court held in Golaknath versus State of Punjab on February 27, 1967, by a slender majority of one that the ‘fiction’ that a constitutional amendment was not ‘law’ within the meaning of this Article 13 could not be accepted, and that the fundamental rights “are given a transcendental position and kept beyond the reach of the parliament.” This was the beginning of the constitutional watershed which crystallized later in the Keshavananda Bharathi case decision. But it is interesting to note that Justice Chandrachud in his minority judgment in that Keshavanda case said significantly: “The seeds of the controversial decision in the Golaknath and Others versus State of Punjab and Another were sown by the doubt expressed by Hidayatulla and Mudhokar ,JJ., The following points emerged from the majority judgment in the Golaknath case:

(i) The majority of the judges in the Golaknath case consisting of Justice Wanchoo, Hidayatulla, Bhargava, Mitter, and Bachawat and Ramaswami rejected the argument that Article 368 merely prescribes the procedure to be followed in amending the Constitution.

(ii) They held that Article 368 also conferred the power to amend the Constitution.

(iii) The majority of judges consisting of Chief Justice Subba Rao and his four colleagues as well as Hidayatulla, J. held that there was no distinction between constituent power and legislative power and that the word ‘ law’ used in Article 13(2) includes a law passed by Parliament to amend the constitution.

(iv) Chief Justice Subba Rao and his four colleagues suggested that if a Constitution had to be radically altered the residuary powers could be relied upon to call for a Constituent Assembly. Hidayatulla,J. took a different view And held that for making radical changes so as to abridge fundamental rights Article 368 should be suitably amended and the Constituent Assembly should be called after passing a law under Entry 97 in the light of the amended provisions of Article 368.

(v) It is important to mention that all the eleven judges who constituted the Bench were agreed that even Fundamental rights could be taken away but they suggested different methods for achieving that purpose.

The essence of the Golaknath decision was thus that the fundamental rights were ‘ transcendental’ and therefore must not be allowed to be whittled by any majority in Parliament. Nevertheless as noted by Justice Chandrachud in his majority judgement in the Keshavananda case the “petitioners in the Golaknath case won but a pyrrhic victory.’ because the laws they had come to obtain a declaration as unconstitutional on the ground that they affected their fundamental rights were upheld by the Court. Yet there was consolation in the fact that the decision put a bar on any future abrogation of the fundamental rights by taking recourse to the Amercian judicial doctrine of “prospective overruling” as evidenced in Link later versus Walker (1965). ‘PROSPECTIVE OVERRULING’ TECHNIQUE The technique of “prospective overruling” is an ingenious judicial device to preserve the past and protect the future. In the Golaknath case the majority view faced a judicial dilemma that even if it was necessary to overrule the earlier decisions from Shankari Prasad to Sajjan Singh on the basis of which various laws embodying agrarian and other economic reforms had been enacted “it would introduce chaos and unsettle the conditions in our country” as observed by Chief Justice Subba Rao. On the other hand the learned Chief Justice feared that if the court were to hold that Parliament had the power to amend the constitution so as to take away or abridge the fundamental rights “a time might come when we would gradually and imperceptibly pass under a totalitarian rule.” In addition, Chief Justice Subba Rao believed that the judicial function of a constitutional court could not be restricted to law finding along but extended to judicial law making to “suit the expanding needs of society. In other words the majority view in Golknath sought to establish that the existing provisions in the Constitution were elastic enough to accommodate the future social change without requiring formal constitutional amendment. Thus the Supreme Court was to be the mentor of the socio-economic transformation envisaged by the Constitution and not the Parliament elected by the people. But the constitutional snag was that the teachnique of “prospective overruling” was applied in a misconceived manner because it could have been invoked to the extent it was necessary to save the past executive acts done in pursuance of the impugned amendments. The Golaknath decision had arrived at the conclusion that the Parliament did not have the power to amend the Constitution so as to take away or abridge any of the fundamental rights and that the Parliament in future would not have that power. How could then the Supreme Court allow the unconstitutional amendments to operate in future in spite of the fact that in the opinion of the majority in Golaknath they violated the fundamental rights? Justice Wanchoo had observed

that the court could not save a law from the vice of unconstitutionality if in its opinion it violated the fundamental rights. This was the glaring constitutional flaw in the scheme of judicial law making as envisaged by the then Chief Justice Subba Rao. With all their enthusiasm to rescue fundamental rights from the passing parliamentary majorities the majority Justices in the Golaknath case did not go so far as to ascribe immutability to any constitutional provision. They suggested that Parliament might convene a Constituent Assembly for making a “new Constitution” or “radically changing it.” Justice Hidayatulla suggested that “Parliament must amend Article 368 to convoke another Constituent Assembly, pass a law under item 97 of List I of the Seventh Schedule to call a Constituent Assembly and then that Assembly may be able to abridge or take away the fundamental rights if desired.” This was apparently a far fetched constitutional rationalization and fallacious too. This judicial reasoning also has an important bearing on the relationship between the Parliament and the constitution on the point as to which is the creature of which. As Shri Seervai rightly pointed out that “ if a law made by Parliament to amend Part III… is void in contravening Article 13(2), law passed by the same Parliament, convening a Constituent Assembly and authorizing it to do that very thing, must be equally void. For what Parliament cannot do itself, it cannot authorize another body to do.” The basic fallacy in the Golaknath stemmed from the fact of the majority judicial distrust in popular will as manifested in Parliamentary majority. The Preamble of the Constitution shows that the final authority on whose behalf the Constitution was enacted are the “people of India.” According to Article 326 the people of India acting through their Constituent Assembly vested the power of constitutional amendment in the future Parliament to be elected on the basis of adult franchise. Moreover one should not forget that the Constituent Assembly was elected through indirect election on the basis of much restricted franchise. Therefore as noted by Granville Austin in his Indian constitution : Cornerstone of a Nation it could hardly be said that the Parliament which was to be subsequently elected would be less democratic than the Constituent Assembly. The judicial logic of the inviolability of Fundamental Rights in the Golaknath case which was propped up by the patently untenable recourse to prospective overruling and distrust of Parliamentary majority was based on two premises: one, that there is no difference between ordinary law and constitutional law in terms of their subjection to judicial review as to their consistency with the fundamental rights, and two, that fundamental rights were transcendental, natural rights.

In holding thus that there was no difference between constituent law and statute law the Golaknath decision set at nought the distinction between the ‘controlled’ or rigid and ‘ uncontrolled’ or flexible constitutions. The point of distinction lies in that in a ‘controlled’ constitution a different procedure is prescribed for making ordinary laws, while in an ‘uncontrolled’ one the procedure for amending the constitution is the same as that for making ordinary laws. This was the basic bone of contention with regard to the amplitude of the amending power which was not given due importance in the Golaknath decision. The importance of this consideration consists in the injunction contained in Article 13(2) that the State shall not make any ‘ law’ which takes away or abridges the rights conferred by Part III. An amendment of the Constitution within the terms of Articles 368 not being law within the meaning of Article 13(2) vide Shankari Prasad and Sajjan Singh case, it cannot become void on the ground that it takes away or abridge the fundamental rights. But the majority decision in the Golaknath case mainly relied on Article 13(2) to distinguish its notion of fundamentalness of rights to bring their amendment within its judicial purview. In doing so the Golaknath decision inducted the natural law concept into the Constitution which the Indian Supreme Court had been so far reluctant to do. The Majority justices said that “ fundamental rights” was the modern name “ for what has been traditionally knowns as ‘natural rights’ “ or they were “ the inalienable rights of the people.” Thus the Supreme Court assumed itself by a slender majority of six to five in the Golaknath case the role as “ the sentinel of the said rights and the balancing wheel between the rights, subject to social control” owing a duty to prevent the assurance given by way of fundamental rights from being converted into “ the playthings of a special majority.” (Italics mine.) One wonders if the qualifying phrase “ subject to social control” was not an euphenmism for judicial control in view of the dominant theme of judicial law making and a categorical immunity of fundamental rights from parliamentary process. To emphasise their Lordships held that “absolute arbitrary power in defiance of fundamental rights exists nowhere under our Constitution, not even in the largest majority.” PROVISIONS ABOUT FUNDAMENTAL RIGHTS It is important to note in this context that there is intrinsic evidence in Part III of the Constitution to show that the theory of natural rights was not recognized by our Constitution makers. This is clear from the language of Article 13(2) which speaks of rights, ‘conferred’ by Part III and enjoins the State not to make laws inconsistent therewith. Article 32 of the Constitution says that the right to move

the Supreme Court for the enforcement of rights ‘ conferred’ by Part III is guaranteed. Further Article 19 of the Constitution restricts the grant of the seven freedoms to the Indian citizen. Non-citizens were denied those rights because the conferment of some of the rights on the Indian citizen was not in recognition of the pre- existing natural rights. Articles 33 confers upon the Parliament the power to determine to what extent the rights conferred by Part III should be restricted or abrogated in their application to the members of the Armed Forces. Article 359(1) empowers the President to suspend the rights’conferred’ by Part III during the proclamation of an emergency. Articles 25 and 26 show that the right to freedom to religion is not a natural right but is subject to the paramount interest of society. The natural rights theory, by and large, stands repudiated today as noted by Justice Chandrachud in his minority judgment in Keshavananda case. Besides being not natural rights, the fundamental rights are also not given specially protected position in the constitution like some entrenched provisions with respect to which an amendment is required to be ratified by the legislatures of not less than half of the State, after it has been passed by Parliament by special majority. The provisions guaranteeing fundamental rights have not been mentioned as entrenched provisions. In Sajjan singh versus State of Rajasthan Justice Gajendragadkar took the view that since fundamental rights had not been mentioned as entrenched provisions they could be amended by Parliament by a special majority. But in the same case Justice Hidayatulla took the view that since the fundamental rights had not been mentioned as entrenched provisions they could not be amended at all as it could not have been the intention of the Constitution makers to make fundamental rights more easily amendable than comparatively less important provisions mentioned as entrenched provisions. In the same case Justice Mudholkar observed that “It would be indeed strange that rights which are considered fundamental… should be more easily capable of being abridged or restricted than any of the matters referred to in the proviso of Article 368 some of which are perhaps less vital than fundamental rights.” The majority in Golaknath case accepted this view. They observed that “it would attribute unreasonableness to the makers of the Constitution” if “while articles of less significance would require consent of the majority of the States, fundamental rights can be dropped without such consent.” In the Golaknath case, however, Justice Wanchoo dissenting wondered that “ if there was any intention to make any part of the constitution unamendable why should the makers of the Constitution have failed to indicate it expressly in Article 368 ?” In this context it is important to note as pointed out by Granville Austin that “It is one of the many surprising aspects of constitution-making in

India that entrenching the fundamental rights was apparently never seriously considered.” This should really cause no surprise if one appreciates properly the motivation of socio-economic justice underlying the Directive Principles of State Policy in juxtaposition with the rest of the Constitution and in particular with the fundamental rights. Yet the apparent anomalous situation led Jawaharlal Nehru to emphasise that there was “an inherent contradiction between the fundamental rights and the Directive Principles of State Policy… It is up to the Parliament to removes this contradiction and make the Fundamental Rights subserve the Directive Principles of State Policy.” (Lok Sabha Debates, 14th March 1955) (Emphasis supplied.) It is curious to note that the Golaknath decision while it was overanxious to protect the fundamental rights by ingenious judicial and natural right fictions apparently held that the power of Parliament to amend the Constitution was limited by the express command in Article 13(2) and that all the rights and only those rights which were enumerated in Part III of the Constitution were “ fundamental rights”. This is rather strange because there are rights, which though outside Part III are not less fundamental to the democratic process than the rights enumerated in Part III. These are the right to vote in Articles 326, or the right to Inter State commerce in Article 301 which are no less important and fundamental than the right to freedom of speech and expression or the right to property. The impression is irresistible therefore that the majority Justices in the Golaknath case were so enamoured by the natural theory genesis of the individual rights incorporated as ‘fundamental’ in Part III that any violation of the same was synonymous to them with the destruction of democracy; that they were too much concerned with individual rights as such as contradistinguished from social rights. But at the same time right to vote which is the very crux of the democratic process remains unprotected. It is clear that the Golaknath decision took a very literal, rigid and static view of the word ‘fundamental’ in Part III and looked at the fundamental rights in a school-masterly fashion unmindful that Part III was a component of the complex constitutional instruments in which a proper construction must hold balance between all its parts. It singularly failed to find a constitutional nexus between the Fundamental Rights and the Directive Principles of State Policy. Had it done so the majority in Golaknath would have found that the rights which are no less fundamental and democratic such as the rights to adequate means of livelihood in Article 39(a), the right to work in Article 41, or the right to education in Articles 41 and 45 which though legally unenforceable at present are “nevertheless fundamental in the governance of the country”.

It is in this context that I find Prof. S.P.Sathe’s observation to the point in his book Fundamental Rights and Amendment of the India constitution. Prof. Sathe says : “The premise that certain rights are transcendental and therefore beyond the reach of the power of Parliament to amend the constitution would have been more meaningful if the court had ascribed the character of transcendenatalness to rights on the basis of their intrinsic merit and proximity to the enduring values such as liberty, justice and equality, rather than on the basis of their textual position in the Constitution.” JUSTICE CHANDRACHUD ON ‘DIRECTIVE PRINCIPLES’ The fundamental rights and the directive principles together constitute in the words of Granville Austin “the conscience of the Constitution.” As regards their relative importance Justice Chandrachud rightly observes in his minority judgment in Keshavananda case that the “one is justiciable and the other not may show the intrinsic difficulties in making the latter enforceable through legal processes but that distinctions does not bear on their relative importance.” He goes on to say: “ An equal rights of men and women to an adequate means of livelihood; the rights to obtain humane conditions of work ensuring a decent standard of life and full enjoyment of leisure; and raising the level of health and nutrition are not matters for compliance with the Writ of the Court… the basic object of conferring freedoms (in Part III) on individuals is the ultimate achievement of the deals set out in Part IV. The freedom of a few have then to be abridged in order to ensure the freedom of all.” Justice Chandrachud arrives at this conclusion on the basis of his conviction that “the Directive Principles of State Policy are fundamental in the governance of the country” and that “what is fundament in the governance of the country cannot surely be less significant than what is fundamental in the life of an individual.” (Emphasis supplied.) Thus it is clear that the fundamental rights in Part III are not endowed with any exclusive fundamentalness, nor do they enjoy any special primacy over the directive principles. And talking of abuse of powers by the passing fancy of any parliamentary majority alleged by the critics it may be pointed out as observed by Chief Justice Marshall in Providence Bank versus Alpheus Billings (1892) that a power may be capable of being abused but the constitution is not intended to furnish a corrective for every abuse of power which may be committed by the government. And even the Golaknath decision failed in making the future safe for fundamental rights as the subsequent constitutional history shows leading to the 24th and 25th amendments. And it must be noted that the alleged parliamentary abuse of power is not confined to the possible tampering with the fundamental

rights. There is widest scope for doing so under several other constitutional provisions. These are powers of war and peace, the powers of finance and the powers of preventive detention which are capable of serious abuse and yet the Founding Fathers did confer these powers on the Parliament. This was done because trust in the elected representatives is the cornerstone of a democracy. And this was precisely what the Golaknath decision gravely distrusted and went on to place a judicial veto on any amendment of Part III by denying to a sovereign people acting through its freely elected representatives in Parliament to implement policies according to people’s democratic mandate. It ignored flatly that no judiciary can hold up the will of the people as expressed through the democratic process of free elections. The crux of the matter is as posed by Shri Seervai in his Constitutional Law of India: “ If in future, Parliaments are elected with large majorities to carry out specific policies, are they obliged to give up those policies because of an unamendable Part III, or resort to violent revolution ?” Shri Seervai therefore concluded that the majority judgement in the Golaknath case is “clearly wrong” and “capable of the greatest mischief and should be overruled at the earliest possible opportunity.’ JAWAHARLAL NEHRU’S OBSERVATIONS In this context Jawahalal Nehru’s observation will merit careful consideration. Nehru said :

“No Supreme court and no judiciary can stand in judgement over the sovereign will of Parliament representing the will of the entire community. If we go wrong here and there, it can point it out, but in the ultimate analysis, where the future of the community is concerned, no judiciary can come in the way. And if it comes in the was, ultimately the whole Constitution is a creature of Parliament…. It is obvious that no court, no systems of judiciary can function in the nature of a third house, as a kind of third House of correction. So it is important that with this limitation the judiciary should function… ultimately the fact remains that the legislature must be supreme and must not be interfered with by the courts of law in such measures of social reform.” (Emphasis supplied.)

It is in this context I take strong exception to the contention implicit in the Supreme Court Order that Parliament is an institution created by the Constitution and hence subordinate to it, and that the 42nd, Amendment sought to make it so powerful that it could destroy the Constitution through amendment if it thought fit, and that the Parliament could make a mockery of the

Constitution through the invalidated Section of the 42nd Amendment by its whims and passing fancies. And was not making a “new Constitution” or “radically changing it” by convening a Constituent Assembly as suggested by the majority in Golaknath an euphemism for “destroying “ one and creating another constitution? And this was to boot an untenable procedure as pointed out by constitutional experts like Shri Seervai. What is wrong then in leaving the Parliament to follow its majority will once it is elected? Why doubt its constitutional validity or democratic bonafies? The whole point of the Golaknath decision was that it was an ingenious judicial device to make neither Parliament, nor Constitution supreme but rendering judicial review sacrosanct, by setting itself as a super legislature. But a concept of judicial review appears to rest on tenuous grounds as a brief consideration will show. If pursued to logical conclusion the concept of judicial review would bring into question not only the doctrine of separation of powers but also the parliamentary process which is the very foundation of any democracy. As Judge Learned Hand observed in his book The Bill of Rights: “It was a plausible, indeed, to my mind an unanswerable argument that it (Judicial review) invaded that ‘ Separation of Powers” which as many believed was the condition of all free Governments.” In historical constitutional retrospect one can find the origin of autonomous judicial review in the classis American case of Marbury vs. Madison (1803) the judicial consequences of which were almost analogous to that of the Golaknath case. In this case in the absence of any constitutional directives about judicial review of legislation chief Justice Marsall relied on a priori reasoning when he observed that it was “a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it.” Alexander Hamilton’s Federalist paper Number 78 had anticipated this position and it dismissed the argument as without weight that the courts would substitute their own will for the legislative intention in the process of judicial review. Marbury vs. Madison had far reaching constitutional consequences, And even Mr,Justice Holmes though he believed such judicial review necessary also held that the United States might survive without a Supreme Court to invalidate the Acts of Congress. As regards its consequences, it was said in Australian Communist Party vs. Commonwealth: “If the great case of Marbury vs. Madison had pronounced a different view (judicial review) might perhaps not arise in even in the case of the Commonwealth Parliaments; and there are those, even today, who disapprove of the doctrine of Marbury vs. Madison and who do not see why the courts rather than the legislature itself should have the function of

finally deciding whether an act of a legislature in a Federal Systems is or is not within power.” CONSTITUENT ASSEMBLY DEBATES In the Indian constitutional context is transpires from the constituent Asembly Debates that though the courts were invested with basic powers of review it was felt not advisable to give the Supreme Court exclusive jurisdiction in the sphere of the fundament rights. The limitations on judicial review were as Sir Alladi Ayyar put in his letter to Jawaharlal Nehri:

“While there can be no two opinion on the need for maintenance of judicial independence, both for safeguarding of individual liberty and the proper working of the Constitution, it is also necessary to keep in view one important principle that the doctrine of independence is not to be raised to the level of a dogma so as to enable the judiciary to function as a kind of super legislature or super executive. The judiciary is there to interprete the Constitution or adjudicate upon the rights between the parties concerned. As has been pointed out recently in a leading decision of the Supreme Court (of the Unite States), the Judiciary as much as the Congress and the Executive, is depending for its proper functioning upon the co-operation of the other two.” (quoted in Granville Austin’s Indian Constitution: Cornerstone of a Nation).

Nor is there any ground for the judiciary to be overscrupulous of its powers of judicial review thought it is very tempting to do so when there is an overemphasis on fundamental rights with least regard to the corresponding obligations. In a very significant and profound study Judicial Review in the Contemporary World, Mauro Cappellitti has argued that” the law also changes, and even the fundamental values are mutable. One could say, to paraphrase Benjamin Constant that the liberty of today is not of other times an the same can be said of justice and all other values.” Concluding on judicial review Cappellitti says :

“So it is that in spite of its universal appeal, judicial review remains an enigmatic institution. It operates principally in States with democratic philosophies; yet, it claims the rights to frustrate, in certain situations, the will of the majority. Its decision are often preeminently political, yet they are made by men not themselves responsible to the electorate. The theoretical power of the judge of constitutionality is awesome; yet in the end he has ‘neither sword nor purse’ and must depend on others to give his decisions meaning.”

Which amounts to a tacit recognition of the limitations of judicial review in a parliamentary democracy. And the fact is that the Indian Supreme Court did acquiesce in these limitations till the advent of the Golaknath case. Nothing happended in this intervening period of about a decade and a half to warrant the fear that would lead to their flagrant abuse in the legislative sphere or undermine the constitutional freedoms.

REGRESIVE TREND OF SUPREME COURT But unfortunately the Golaknath case upset constitutional balance and judicial stability in a mischievous and dangerous manner. And instead of being overruled the Golaknath trend persisted in the major legal battle in the Bank Nationalisation case and the Privy Purses case culminating in the Keshavananda Bharathi case in 1973. The latest Supreme Court Order has put a Judicial seal of approval on this regressive trend in the Supreme Court decisions. It is instructive to look into these cases in order to appreciate the logical and constitutional link between the judicial decisions and parliamentary amendments. Under the Bank Nationalisation Act the compensation was fixed after taking into consideration the ruling decision of the Supreme Court rendered in the case of the State of Gujarat vs. Shantilal Mangaldas (3) SCR 341, 1969. The genesis of the controversial issue of compensation in the case of Shantilal Mangaldas can be found in the Bela Bannergee case (1954,SCR,558) when the Supreme Court held that the word, “compensation”as provided in Article 31, Clause 2 meant full market value of whatever property that is acquired. This decision showed that the belief of the framers of the Constitution that the scope for judicial review of compensation for acquisition of land would be very limited was mistaken. Article 31 Cl.2 was then amended as the Fourth Amendment to the Constitution to enable it to have the same force that was originally intended by the Constitution makers, that is to exclude judicial review from the question of the actual amount of compensation when the property was acquired by the Government. The scope of the fourth Amendment of the Constitution came up for interpretation by the Supermen Court in the case of State of Gujarat vs. Shantilal Mangaldas. In this case the Supreme Court upheld the fourth amendment excluding judicial review on the question on the adequacy of compensation. Parliament, therefore, enacted the Bank Nationalisation Act

based on the interpretation of Article 31(2) given in the Shantilal Mangaldas Case. Yet in the Bank Nationalisation case when the matter came before a Bench of eleven judges, the Court decided that the Act was bad because the principles for compensation were not relevant and therefore stuck it down. In arriving at this decision the Supreme court “distinguished” the case of Shantilal Mangaldas which meant that the propositions approved in that case were overruled . Next in the Privy Purses case (1971), the Government acted on the basis of the unanimous decision of the Supreme Court in Usman Ali’s case (1965,(3) SCR, 201). In this case the decision was given by Chief Justice Subba Rao and Shah and Bachawat J.J. The Judges said :“On the coming into force of the Constitution of India the guarantee for the payment of periodical sums as privy purses is continued by Articles 291 of the Constitution, but it is essentially of a political character as preserved by Article 363 of the constitution and the obligation in this guarantee cannot be enforced in any municipal court.” It is pertinent to note that this judgement belonged to the pre-Golaknath era of the Supreme Court. It was clear from this decision that the Government’s power to withdraw recognition and cease payment of privy purses was in essence political and hence its validity could not be challenged in any court. But curiously when the Princes challenged the order withdrawing recognition, the court” distinguished” Usman Ali’s case and quashed the government order. Consistency may be a hobgoblin of little iminds, but at least in the judicial systems based on the English jurisprudence and, particularly in the Supreme Court it is “the normal principle that the judgements pronounced by this Court would be final, cannot be ignored” as Chief Justice Gajendragadkar observed in the Bengal Immunity case. The point of grievance in the Golaknath, Bank Nationalisation, and Privy Purses case is not that the court stuck down laws and orders of the Government, but that when the Government proceeded to legislate or to pass an executive order on the basis of existing decisions of the Court, the Court set aside the Act or the Government order by reversing its own previous decisions not on considerations of substantial and compelling character but in pursuance of an ingeneously regressive judicial philosophy. 24TH AND 25TH AMENDMENS This departure from solid precedent in the Supreme Court created a grave uncertainty about the state of law. Moreover, these decisions had the effect of thwarting vital pieces of legislation embodying policies of socio-economic reform. It was understandable therefore the Parliament was led to the enactment

of the 24th and 25th Amendments to the Constitution covering Article 368 and the insertion of new Articles 31-C. These two Amendments sought to achieve the twin objective: (1) To make the amending power of Parliament wide enough to enable it to amend every article and every part of the constitution and (2) To render the Directive Principles in Clause (b) and Clause(c) of Article 39 superior to Fundamental Rights conferred by Articles 14, 19 and 31. These amendments were challenged in the His Holiness Keshavananda Bharathi versus State of Kerala case which was heard by a Thirteen Member Bench of the Supreme Court. The Keshavananda case was decided by a slender majority of 7 to 6. The six dissenting Justices headed by Justice Ray clearly laid down “(i) that the Golaknath decision was wrongly decided and hence overruled, (ii) that there are no limits to Parliament’s power to amend the Constitution and therefore both the 24th and 25th Amendments were fully valid as the procedure laid down under Article 368 had been strictly followed, and (iii) that the judicial review excluded in Articles 31C of the question, whether or not particular enactment did seek to give effect to Article 39(b) and (c) was valid. The majority decision in a general sense had the effect of overruling the Golaknath case. In fact, both Chief Justice Sikri and Justice Grover were parties to the summary signed by them which said:“Golaknath’s case is overruled” and that the 24th Amendment is valid. This was not what Shri N.A. Palkhivala, the counsel for the petitioners was seeking; he was in fact seeking the invalidation of the 24th Amendment. But the 24th Amendment stood its constitutional ground as held unanimously by all the 13 Judges; still most curiously the petitioners’ arguments were accepted by some of the Judges responsible for the majority judgement in that despite the language of the widest amplitude used in the amended Article 368 there still remained certain “essential features” of the Constitution which could not be altered or destroyed which presaged a constitutional period of endless uncertainty and doubt. The majority decision was evidently a curious constitutional case of judicial double-think. If the 24th Amendment was to be held valid than the Golaknath case had to be overruled, and yet an ingenious constitutional device was found for the backdoor entry of the Golaknath spirit of the inviolability of Fundamental rights by creating a new dimension of basic structure and framework which included fundamental rights among other things and was beyond the reach of the Parliament. BASIC STRUCTURE OF CONSTITUTION

About the nature of this constitutional basic structure there was no unanimity in the phraseology of the majority judgements. But with all the divergence on the character of the basic structure seven Judges signed the summary subscribing to the phraseology used by Justice Khanna and said : “ Article 368 does not enable Parliament to alter the basic structure, or framework of the Constitution.” This was the mouse found after digging the constitutional mountain. The judicial search for the basic features and structure of the Constitution reminds one of the parable of blind men and elephant who formed their ideas of the animal by touching its different parts and mistook the part for the whole. The majority exercise in the Keshavanand case was thus losing sight of the constitutional wood for its trees. It is pertinent to remember in this context that Justice Chandrachud in his minority judgement in the Keshavananda case said in his conclusion that (1) the power of amendment of the Constitution conferred by the then Article 368 was wide and unfettered, it reached every part of the Constitution, and (2) “There are no inherent limitions on the amending power in the sense that the Amending Body lacks the power to make amendments so as to damage or destroy the essential features or the fundamental principles of the Constitution.” This was because as Justice Chandrachud observed in the course of his judgement dealing with the petitioners’ argument that the Parliament may amend the provisions of Part III, but not so as to damage or destroy the core of those rights or the core of the essential principles of the Constitution: “I see formidable difficulties in evolving an objective standard to determine what would constitute the core and what the peripherals layer of the essential of the Constitution. I consider the two to be inseparable.”(Emphasis mine) The doctrine of the basic structure of constitution was subsequently crystallized in the Election case, that is, Indira Nehru Gandhi versus Raj Narain (1975) which was considered by a five member Constitution Bench of the Supreme Court. This case was argued on the basis that the Judges were bound by the majority judgements in the Keshwananada case. The question was whether a constitutional amendent, 39th Amendment validating a disputed election by a legislative judgement damaged or destroyed an essential feature of democracy as envisaged by our Constitution. In this case the majority of the Judges admitted the appeal of Smt. Indira Gandhi against the judgement of Justice Sinha and set aside the verdict of of invalidation of her election. This was done in terms of the Election Laws (Amendment) Act. However, the judicial consensus was (Ray C.J. and Beg dissenting) that the newly inserted Article 329-A(4) to be in contravention of the Keshavananda decision on the amendin power of Parliament, and

invalidated it because it impaired certain basic and essential features of the Constitution. But Justice Chandrachud J.’s observation in this context is pertinent. On the question whether the Election Amendment violated the basic structure, the ratio of the majority Judgements in Keshavananda case was considered. In Justice Chandrachud opinion:

“The ratio of the majority judgement is not that some named feature of the Constitution are a part of its basic structure but that the power of amendment cannot be exercised so as to damage or destroy the essential elements or the basic structure of the Constitution, whatever these expressions may comprehend… for determining whether a particular feature of the constitution is a part of its basic structure one has perforce to examine in each individual case the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of the country’s governance.”(Emphasis added.)

This was a formidable judicial proposition coming from the highest court of the land. There could no longer be any stability or certainty of the fundamental jiducial positions adopted by the Supreme Court. As a matter of fact the position was actually worse than at the time when the Golaknath decision upset the constitutional balance. At least in that case the Supreme Court had laid down that every Article was amendable except the fundamental rights. In this context the doctrine of the basic structure and essential leatures of Contitution clearly means it could be anything whatever the Judges decide it to mean as the wide divergence of opinion on basic features in the Keshavananda case made it evident. It was this ambiguity about the basic structure and the judicial assumption of the power to determine it which led the Parliament to make explicitly the constituent amending power by an express clarification in Clause 4 and 5 in amendment to Article 368 by the 42nd Amendment. NULLIFICATION OF CONSTITUTIONAL EVOLUTION As if this was not a step retrograde enough ( in striking down the Clauses 4 & 5) the Supreme Court has also held Section 4 of the 42nd Amendment void. Thus by one judicially subversive stroke the Supreme Court has once again nullified the constitutional evolution in socio-economic justice up to the point of 25th Amendment. If this is “momentous” it is not so in restoring the illusory primacy of fundamental rights over the directive principles but in taking a complete judicial U turn in the constitutional law as reflected in the Supreme Court decisions.

The Indian constitution today is back to square one of the Golknath decision as a result of the latest Supreme Court decision. It is pregnant with great constitutional mischief and has needlessly opened the old constitutional wounds. Even assuming that the unlimited constituent amending powers were subversive and in fact subverted the Constitution during the Emergency was it not the democratic process again which asserted itself through the elections by the then Prime Minister, Smt. Gandhi- who allegedly had destroyed democracy leading to the induction of the Janta Government and repeal of the 39th Amendment and other features of the 42nd Amendment ? Did this happen by virture of the judicial process and its power to review the Parliamantary amending power or by virtue of the democratic proceses? It cannot be stressed too often that the Constitutional evolution of Amendments from 1967 to 1976 from the Golaknath case to the 42nd Amendment clearly brings home that it was the ambiguous and regressive judicial stand adopted by the Supreme Court judges upheld by a very slender majority of one that led to progressive clarificatory amendments. It is significant to note that all these Supreme court decisions and consequent amendments revolved around the fundamental rights to property and the other related rights and Parlimament’ power to amend the same. But the Supreme Court decision striking down Section 4 of the 42nd Aamendment having nexus with Articles 39 (b) and (c) is judicially pointless like closing the stable door after the horse has bolted because the property rights itself has been taken out of the fundamental rights chapter by the 44 amendment effected during the Janata rule and converted from a “Fundamental” to a “legal’ right by inserting new Chapter IV in Part XII of the new Constitutional Article 300A. It is amazing indeed that the Chief Justice Chandrachud should have been a party to this Supreme Court decision striking down the 42nd Amendment which is clearly totally against the judicial convictions expressed in his minority judgement in the Keshavananda case. In that case Justice Chandrachud was not scared by the lurid picture painted by the petitioner’s counsel of the consequences which will ensue if a wide untrammeled power is conceded to the Parliament to amend the Constitution because in a democratic polity people have the right to decide what they want and they can only express their will through their elected representative. In the same judgement Justice Chandrachud had also conceded the postulate of our Constitution “which aims at bringing about a synthesis between ‘Fundamental Rights’ and the ‘Directive Principles of State Policy’ be giving to the former a pride of place and to the latter a place of permanence. Together, not individually, they form the core of the Constitution, said Justice Chandrachud.

Another glaring anomaly of this Supreme Court decision striking down the 42nd Amendment is that on 9th May 1980 when this opinion was delivered, another five-member bench of the Supreme Court presided over by the Chief Justice also delivered an opinion, on the same day, upholding the agricultural land ceiling laws of Maharashtra, Andhra Pradesh, Haryana, Uttar Pradesh and West Benagal. This Bench unanimously declared the constitutionality of the amended Artice 31-C as well as other concerned constitutional provisions. Thus it is clear that the one hand of the Supreme Court judiciary is completely oblivious as to what its other hand is doing. The judicial relapse in the construction under which the Supreme Court Order has struck down 42nd Amendment has merely compounded the confusion and constitutional uncertainty on the questions of the so-called basic structure of the Constitution, the Parliament’s power of amendment and as a corollary the extent of judicial review. This shows that the ghost of Golaknath decision is still haunting uneasily the judicial corridors of the Supreme Court. The theory of “essential features”and “basic structure”of the constitution invented by ingenious judicial construction bristles with endless constitutional wrangle. Shri H.M.Seervai has sought at length to justify the doctrine of basic structure and features in the second edition of his Constitutional Law of India(1976). But in my opinion Shri Seervai’s closely argued critique of the constituent power defending the doctrine of basic features and his extraordinary stand that fundamental rights are really pre-eminent over social rights clearly goes counter to the constitutional stand taken by him in the first edition reprint in 1968 notwithstanding his defence that the Election case had given a new given a new dimension to the amending power. Shri Seervai had then observed quoting with approval Roosevelt’s famous ‘packing the court’ speech and Jawaharlal Nehru’s constituent assembly speech in similar vein that “if governments elected with large popular support find that their polices cannot be carried out because Part 3 is permanent, and alternative confronting them is either a violent revolution or a reconstituted court, there is little doubt that they will act as President Roosevelt acted.” Not only that but Shri Seervai went on to remind that in Nehru’s words “the whole Constitution is a creature of Parliament” and observed that “It would be a strange irony if judgment which seek to preserve cherished human rights not only fail to do so, but lead to the destruction of a cherished judicial system.”(30.46, p.1119). IS PARLIAMENT SUPREME ? Ironically it is precisely this constitutional and judicial stage which has been reached today in India. The crux of the problem is whether the Socialist, Secular, Democratic Republic envisaged by the Constitution provides for the

Parliament as Supreme in matters of legislative policy or whether the Judges can impose on Parliament their own policies, their own understanding of what is good or bad for the people. I wonder therefore in Roosevelt’s words whether India today has not reached

“the point as a Nation where we must take action to save the Constitution from the Court and the Court from itself. We want a Supreme Court which will do justice under the Constitution- not over it. In our Courts we want a government of laws and not of men……that means a Supreme Court that will enforce the Constitution as written, that will refuse to amend the Constitution by an arbitrary exercise of judicial power- amendment of judicial say-so.” (Emphasis added.)

It is for this reason if not for anything else there is an imperative need for the Union Government to review the Supreme Court decision in the entire constitutional perspective. The entire constitutional framework needs a close retrospective look so as to co-ordinate the constitutional provisions into a consistent whole and direct them to subserve the Preambulary ideal of a Socialistic, Secular, Democratic Republic. In this context it must be recalled that before the judgements in the Election case were delivered the Union of India had taken steps to secure a reconsideration of Keshavananda case. Accordingly the Court had indicated that the petition would be heard on November 10, 1975 by a bench of 13 Judges for considering (1) whether the power of amendment of the Constitution was restricted by the theory of basic structure and framework as propounded in Keshavananda case, and (2) whether the Bank Nationalisation case was correctly decided. On November 10, 1975 a large number of writ petitions were placed before a 13-Member Bench when an objection was raised to the Union Government’s application for a reconsideration of Keshavananda’s case. The arguments were heard for two days and on November 12, 1975 as soon as the Court assembled, Ray CJ. Informed the parties that the Bench had been dissolved and the specified matter would be posted for hearing before the Constitution Bench which after considering the matter may, if it thought necessary, refer the matter to a larger bench. The matter was obviously not pursued further in view of the political uncertainty. Now that the Supreme Court has once again given a fresh lease of constitutional life to the theory of basic structure even by burying the “fundamental” significance of Directive Principles of State Policy the matter cannot be delayed and longer.

However, it has to be borne in mind that whatever the outcome of the judicial review by a special bench as asked by the Union Government the constitutional issues will not be finally settled unless and until the judiciary sagaciously decides to steer clear of the Parliamentary amending power as a “political question” and hence addressed exclusively to the people’ representative. In this context it becomes clear once again that the constitutional and judicial volte-face of the Supreme Court on the issue of amendment power and its failure to come to a synthesis of Fundamental Rights with Directive Principles are regressive and anomalous constitutional steps which need timely correction to avoid a confrontration injurious to the interests of our democratic policy. Published by Government of Maharashtra, 1980 COPYRIGHT ________________________________________________________________