Introduction
The debate on the 'basic structure' of the Constitution, lying somnolent in the archives of India
constitutional history during the last decade of the 20th
century, has reappeared in the public realm.
While setting up the National Commission to Review the Working of the Constitution (the
Commission), the National Democratic Alliance government (formed by a coalition of 24 national and
regional level parties) stated that the basic structure of the Constitution would not be tampered with.
Justice M.N. Venkatachalaiah, Chairman of the Commission, has emphasised on several occasions
that an inquiry into the basic structure of the Constitution lay beyond the scope of the Commission's
work.
Several political parties -- notably the Congress (I) and the two Communist parties which are in the
opposition -- have made it clear that the review exercise was the government's ploy to seek legitimacy
for its design to adopt radical constitutional reforms thus destroying the basic structure of the
document.
Much of the public debate has been a victim of partial amnesia as even literate circles of urban India
are unsure of the ramifications of this concept, which was hotly debated during the 1970s and 1980s.
The following discussion is an attempt to chart the waters of that period rendered turbulent by the
power struggle between the legislative and the judicial arms of the State.
According to the Constitution, Parliament and the state legislatures in India
laws within their respective jurisdictions. This power is not absolute in nature. The Constitution vests
in the judiciary, the power to adjudicate upon the constitutional validity of all laws. If a law made by
Parliament or the state legislatures violates any provision of the Constitution, the Supreme Court has
the power to declare such a law invalid or ultra vires. This check notwithstanding, the founding
fathers wanted the Constitution to be an adaptable document rather than a rigid framework for
governance. Hence Parliament was invested with the power to amend the Constitution. Article 368
of the Constitution gives the impression that Parliament's amending powers are absolute and
encompass all parts of the document. But the Supreme Court has acted as a brake to the legislative
enthusiasm of Parliament ever since independence. With the intention of preserving the original
ideals envisioned by the constitution-makers, the apex court pronounced that Parliament could not
distort, damage or alter the basic features of the Constitution under the pretext of amending it. The
phrase 'basic structure' itself cannot be found in the Constitution. The Supreme Court recognised this
concept for the first time in the historic Kesavananda Bharati case in 1973.{1}
Ever since the Supreme Court has been the interpreter of the Constitution and the arbiter of all amendments made by
Parliament.
The pre-Kesavanada position
Parliament's authority to amend the Constitution, particularly the chapter on the fundamental rights of
citizens, was challenged as early as in 1951. After independence, several laws were enacted in the
states with the aim of reforming land ownership and tenancy structures. This was in keeping with the
ruling Congress party's electoral promise of implementing the socialistic goals of the Constitution
[contained in Article 39 (b) and (c) of the Directive Principles of State Policy] that required
equitable distribution of resources of production among all citizens and prevention of
concentration of wealth in the hands of a few. Property owners -- adversely affected by these
laws -- petitioned the courts. The courts struck down the land reforms laws saying that they
transgressed the fundamental right to property guaranteed by the Constitution. Piqued by the
{ }
{1}. Kesavananda Bharati v. State of Kerala
page2
unfavourable judgements, Parliament placed these laws in the Ninth Schedule of{2}
the Constitution
through the First and Fourth amendments (1951 and 1952 respectively), thereby effectively
removing them from the scope of judicial review.
[Parliament added the Ninth Schedule to the Constitution through the very first amendment in 1951
as a means of immunising certain laws against judicial review. Under the provisions of Article 31,
which themselves were amended several times later, laws placed in the Ninth Schedule -- pertaining
to acquisition of private property and compensation payable for such acquisition -- cannot be
challenged in a court of law on the ground that they violated the fundamental rights of citizens. This
protective umbrella covers more than 250 laws passed by state legislatures with the aim of regulating
the size of land holdings and abolishing various tenancy systems. The Ninth Schedule was created
with the primary objective of preventing the judiciary - which upheld the citizens' right to property on
several occasions - from derailing the Congress party led government's agenda for a social
revolution.{3}]
Property owners again challenged the constitutional amendments which placed land reforms laws in
the Ninth Schedule before the Supreme Court, saying that they violated Article 13 (2) of the
Constitution.
Article 13 (2) provides for the protection of the fundamental rights of the citizen.{4}
Parliament and the
state legislatures are clearly prohibited from making laws that may take away or abridge the
fundamental rights guaranteed to the citizen. They argued that any amendment to the Constitution
had the status of a law as understood by Article 13 (2). In 1952 (Sankari Prasad Singh Deo v. Union
of India{5}
) and 1955 (Sajjan Singh v. Rajasthan{6}
), the Supreme Court rejected both arguments and
upheld the power of Parliament to amend any part of the Constitution including that which affects the
fundamental rights of citizens. Significantly though, two dissenting judges in Sajjan Singh v.
Rajasthan case raised doubts whether the fundamental rights of citizens could become a plaything of
the majority party in Parliament.
The Golaknath verdict
In 1967 an eleven-judge bench of the Supreme Court reversed its position. Delivering its 6:5 majority
judgement in the Golaknath v. State of Punjab case{7}
, Chief Justice Subba Rao put forth the curious
position that Article 368, that contained provisions related to the amendment of the Constitution,
merely laid down the amending procedure. Article 368 did not confer upon Parliament the power to
amend the Constitution. The amending power (constituent power) of Parliament arose from other
provisions contained in the Constitution (Articles 245, 246, 248) which gave it the power to make
laws (plenary legislative power). Thus, the apex court held that the amending power and legislative
powers of Parliament were essentially the same. Therefore, any amendment of the Constitution must
be deemed law as understood in Article 13 (2).
{ }
{2}. Originally, the Constitution guaranteed a citizen, the fundamental right to acquire hold and dispose of property under Article 19f. Under Article 31 he could not be deprived of his property unless it was acquired by the State, under a law that determined the amount of compensation he ought to receive against such an acquisition. Property owned by an individual or a firm could be acquired by the State only for public purposes and upon payment of compensation
determined by the law. Article 31 has been modified six times -- beginning with the First amendment in 1951 --
progressively curtailing this fundamental right. Finally in 1978, Article 19f was omitted and Article 31 repealed by the Forty-fourth amendment. Instead Article 300A was introduced in Part XII making the right to property only a legal right. This provision implies that the executive arm of the government (civil servants and the police) could not interfere with the citizen's right to property. However, Parliament and state legislatures had the power to make laws affecting the citizens' right to property.]
{3}. Later on, laws relating to the nationalisation of certain sick industrial undertakings, the regulation of monopolies and restrictive trade practices, transactions in foreign exchange, abolition of bonded labour, ceiling on urban land holdings, the supply and distribution of essential commodities and reservation benefits provided for Scheduled Castes and Tribes in Tamil Nadu were added to the Ninth Schedule through various constitutional amendments.
{4}. Article 13 (2) states- "The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void." The term Part refers to Part III of the Constitution which lists the fundamental rights of the citizen.
{5}. Sankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458
{6}. Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.
{7}. I.C. Golaknath v. State of Punjab, AIR 1967 SC 1643.
page3
The majority judgement invoked the concept of implied limitations on Parliament's power to
amend the Constitution. This view held that the Constitution gives a place of permanence to the
fundamental freedoms of the citizen. In giving the Constitution to themselves, the people had
reserved the fundamental rights for themselves. Article 13, according to the majority view, expressed
this limitation on the powers of Parliament. Parliament could not modify, restrict or impair
fundamental freedoms due to this very scheme of the Constitution and the nature of the freedoms
granted under it. The judges stated that the fundamental rights were so sacrosanct and
transcendental in importance that they could not be restricted even if such a move were to receive
unanimous approval of both houses of Parliament. They observed that a Constituent Assembly might
be summoned by Parliament for the purpose of amending the fundamental rights if necessary.
In other words, the apex court held that some features of the Constitution lay at its core and
required much more than the usual procedures to change them.
The phrase 'basic structure' was introduced for the first time by M.K. Nambiar and other counsels
while arguing for the petitioners in the Golaknath case, but it was only in 1973 that the concept
surfaced in the text of the apex court's verdict.
Nationalisation of Banks and Abolition of Privy Purses
Within a few weeks of the Golaknath verdict the Congress party suffered heavy losses in the
parliamentary elections and lost power in several states. Though a private member's bill - tabled by
Barrister Nath Pai - seeking to restore the supremacy of Parliament's power to amend the Constitution
was introduced and debated both on the floor of the house and in the Select Committee, it could not
be passed due to political compulsions of the time. But the opportunity to test parliamentary
supremacy presented itself once again when Parliament introduced laws to provide greater access to
bank credit for the agricultural sector and ensure equitable distribution of wealth and resources of
production and by:
a) nationalising banks and
b) derecognising erstwhile princes in a bid to take away their Privy purses, which were promised in
perpetuity - as a sop to accede to the Union - at the time of India's independence.
Parliament reasoned that it was implementing the Directive Principles of State Policy but the
Supreme Court struck down both moves. By now, it was clear that the Supreme Court and
Parliament were at loggerheads over the relative position of the fundamental rights vis-à-vis the
Directive Principles of State Policy. At one level, the battle was about the supremacy of Parliament
vis-à-vis the power of the courts to interpret and uphold the Constitution.
At another level the contention was over the sanctity of property as a fundamental right jealously
guarded by an affluent class much smaller than that of the large impoverished masses for whose
benefit the Congress government claimed to implement its socialist development programme.
Less than two weeks after the Supreme Court struck down the President's order derecognising the
princes, in a quick move to secure the mandate of the people and to bolster her own stature Prime
Minister Indira Gandhi dissolved the Lok Sabha and called a snap poll.
For the first time, the Constitution itself became the electoral issue in India. Eight of the ten
manifestos in the 1971 elections called for changes in the Constitution in order to restore the
supremacy of Parliament. A.K. Gopalan of the Communist Party of India (Marxist) went to the extent
of saying that the Constitution be done away with lock stock and barrel and be replaced with one that
enshrined the real sovereignty of the people{8}
. The Congress party returned to power with a two-thirds
majority. The electorate had endorsed the Congress party's socialist agenda, which among other
things spoke of making basic changes to the Constitution in order to restore Parliament's supremacy.
{ }
{8}. Quoted in Granville Austin, Working a Democratic Constitution, The Indian Experience, Oxford University Press, New Delhi,
1999, p. 235.
page4
Through a spate of amendments made between July 1971 and June 1972 Parliament sought to
regain lost ground. It restored for itself the absolute power to amend any part of the Constitution
including Part III, dealing with fundamental rights.{9}
Even the President was made duty bound to give
his assent to any amendment bill passed by both houses of Parliament. Several curbs on the right
property were passed into law. The right to equality before the law and equal protection of the
laws (Article 14) and the fundamental freedoms guaranteed under Article 19{10}
were made subordinate to Article 39 (b) & (c) in the Directive Principles of State Policy.{11}
Privy purses of erstwhile princes were abolished and an entire category of legislation dealing with land reforms was
placed in the Ninth Schedule beyond the scope of judicial review.{12}
Emergence of the Basic Structure Concept- the Kesavanada milestone
Inevitably, the constitutional validity of these amendments was challenged before a full bench of the
Supreme Court (thirteen judges). Their verdict can be found in eleven separate judgements.{13}
Ninejudges signed a summary statement which records the most important conclusions reached by them
in this case. Granville Austin notes that there are several discrepancies between the points contained
in the summary signed by the judges and the opinions expressed by them in their separate
judgements.{14}
Nevertheless, the seminal concept of 'basic structure' of the Constitution gained
recognition in the majority verdict.
All judges upheld the validity of the Twenty-fourth amendment saying that Parliament had the power
to amend any or all provisions of the Constitution. All signatories to the summary held that the
Golaknath case had been decided wrongly and that Article 368 contained both the power and the
procedure for amending the Constitution.
However they were clear that an amendment to the Constitution was not the same as a law as
understood by Article 13 (2).
[It is necessary to point out the subtle difference that exists between two kinds of functions performed
by the Indian Parliament:
a) it can make laws for the country by exercising its legislative power{15}
and
b) it can amend the Constitution by exercising its constituent power.
Constituent power is superior to ordinary legislative power. Unlike the British Parliament which
is a sovereign body (in the absence of a written constitution), the powers and functions of the Indian
Parliament and State legislatures are subject to limitations laid down in the Constitution. The
Constitution does not contain all the laws that govern the country. Parliament and the state
legislatures make laws from time to time on various subjects, within their respective jurisdictions. The
general framework for making these laws is provided by the Constitution. Parliament alone is given
{ }
{9}. The Constitution (Twenty-fourth amendment) Act 1971.
{10}. Freedom of speech and expression, the right to assemble peacefully, the right to form unions and associations, the
right to move freely and reside in any part of India and the right to practise any profession or trade are the six
fundamental freedoms guaranteed under Article 19. The right to property was also guaranteed in this section until 1979 when it was omitted by the Forty-fourth amendment during the Janata party regime.
{11}. The Constitution (Twenty-fifth amendment) Act 1971.
{12}. The Constitution (Twenty-sixth amendment) Act 1971 and The Constitution (Twenty-ninth amendment) Act 1972,
respectively.
{13}. His Holiness Kesavananda Bharati Sripadagalavaru v State of Kerala and Another 1973 (4) SCC 225ff.
{14}. See Austin, Working a Democratic Constitution…, p.265.
{15}. By virtue of the powers conferred upon it in Articles 245 and 246, Parliament can make laws relating to any of the 97 subjects mentioned in the Union List and 47 subjects mentioned in the Concurrent List, contained in the Seventh Schedule of the Constitution. Upon the recommendation of the Rajya Sabha (Council of States or the Upper House in Parliament) Parliament can also make laws in the national interest, relating to any of the 66 subjects contained in the State List.
page5
the power to make changes to this framework under Article 368.{16} Unlike ordinary laws, amendments to constitutional provisions require a special majority vote in Parliament.Another illustration is useful to demonstrate the difference between Parliament's constituent power and law making powers. According to Article 21 of the Constitution, no person in the country may be deprived of his life or personal liberty except according to procedure established by law. The Constitution does not lay down the details of the procedure as that responsibility is vested with
the legislatures and the executive. Parliament and the state legislatures make the necessary laws
identifying offensive activities for which a person may be imprisoned or sentenced to death. The
executive lays down the procedure of implementing these laws and the accused person is tried in a
court of law. Changes to these laws may be incorporated by a simple majority vote in the concerned
state legislature. There is no need to amend the Constitution in order to incorporate changes to these
laws. However, if there is a demand to convert Article 21 into the fundamental right to life by
abolishing death penalty, the Constitution may have to be suitably amended by Parliament using its
constituent power.
Most importantly seven of the thirteen judges in the Kesavananda Bharati case, including Chief
Justice Sikri who signed the summary statement, declared that Parliament's constituent power
was subject to inherent limitations. Parliament could not use its amending powers under Article
368 to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or
framework of the Constitution.
Basic Features of the Constitution according to the Kesavanada verdict
Each judge laid out separately, what he thought were the basic or essential features of the
Constitution. There was no unanimity of opinion within the majority view either.
Sikri, C.J. explained that the concept of basic structure included:
• supremacy of the Constitution
• republican and democratic form of government
• secular character of the Constitution
• separation of powers between the legislature, executive and the judiciary
• federal character of the Constitution
Shelat, J. and Grover, J. added two more basic features to this list:
• the mandate to build a welfare state contained in the Directive Principles of State Policy
• unity and integrity of the nation
Hegde, J. and Mukherjea, J. identified a separate and shorter list of basic features:
• sovereignty of India
• democratic character of the polity
• unity of the country
• essential features of the individual freedoms secured to the citizens
• mandate to build a welfare state
Jaganmohan Reddy, J. stated that elements of the basic features were to be found in the Preamble
of the Constitution and the provisions into which they translated such as:
• sovereign democratic republic
{ }
{16}. However certain constitutional amendments must be ratified by at least half of the State legislatures before they can comeinto force. Matters such as the election of the President of the republic, the executive and legislative powers of the Union and the States, the High Courts in the States and Union Territories, representation of States in Parliament and the Constitution amending provisions themselves, contained in Article 368, must be amended by following this procedure.
page6
• parliamentary democracy
• three organs of the State
He said that the Constitution would not be itself without the fundamental freedoms and the
directive principles.{17}
Only six judges on the bench (therefore a minority view) agreed that the fundamental rights of
the citizen belonged to the basic structure and Parliament could not amend it.
The minority view
The minority view delivered by Justice A.N. Ray (whose appointment to the position of Chief Justice
over and above the heads of three senior judges, soon after the pronunciation of the Kesavananda
verdict, was widely considered to be politically motivated), Justice M.H. Beg, Justice K.K. Mathew
and Justice S.N. Dwivedi also agreed that Golaknath had been decided wrongly. They upheld the
validity of all three amendments challenged before the court. Ray, J. held that all parts of the
Constitution were essential and no distinction could be made between its essential and non-essential
parts. All of them agreed that Parliament could make fundamental changes in the Constitution by
exercising its power under Article 368.
In summary the majority verdict in Kesavananda Bharati recognised the power of Parliament to
amend any or all provisions of the Constitution provided such an act did not destroy its basic
structure. But there was no unanimity of opinion about what appoints to that basic structure. Though
the Supreme Court very nearly returned to the position of Sankari Prasad (1952) by restoring the
supremacy of Parliament's amending power, in effect it strengthened the power of judicial review
much more.{18}
Basic Structure concept reaffirmed- the Indira Gandhi Election case
In 1975, The Supreme Court again had the opportunity to pronounce on the basic structure of the
Constitution. A challenge to Prime Minister Indira Gandhi's election victory was upheld by the
Allahabad High Court on grounds of electoral malpractice in 1975. Pending appeal, the vacation
judge- Justice Krishna Iyer, granted a stay that allowed Smt. Indira Gandhi to function as Prime
Minister on the condition that she should not draw a salary and speak or vote in Parliament until the
case was decided. Meanwhile, Parliament passed the Thirty-ninth amendment to the Constitution
which removed the authority of the Supreme Court to adjudicate petitions regarding elections of the
President, Vice President, Prime Minister and Speaker of the Lok Sabha. Instead, a body constituted
by Parliament would be vested with the power to resolve such election disputes. Section 4 of the
Amendment Bill effectively thwarted any attempt to challenge the election of an incumbent, occupying
any of the above offices in a court of law. This was clearly a pre-emptive action designed to benefit
Smt. Indira Gandhi whose election was the object of the ongoing dispute.
Amendments were also made to the Representation of Peoples Acts of 1951 and 1974 and placed in
the Ninth Schedule along with the Election Laws Amendment Act, 1975 in order to save the Prime
Minister from embarassment if the apex court delivered an unfavourable verdict. The mala fide
intention of the government was proved by the haste in which the Thirty-ninth amendment was
passed. The bill was introduced on August 7, 1975 and passed by the Lok Sabha the same day. The
Rajya Sabha (Upper House or House of Elders) passed it the next day and the President gave his
assent two days later. The amendment was ratified by the state legislatures in special Saturday
sessions. It was gazetted on August 10. When the Supreme Court opened the case for hearing the
next day, the Attorney General asked the Court to throw out the case in the light of the new
amendment.
{ }
{17}. His Holiness Kesavananda Bharati Sripadagalavaru v State of Kerala and Another 1973 (4) SCC pp. 637-38.
{18}. The majority view declared certain parts of the Twenty-fifth amendment invalid especially those relating to Article 31 (c) and upheld the Twenty-ninth amendment- for a detailed account see Austin, Working of a Democratic Constitution…, pp.265ff.
page7
Counsel for Raj Narain who was the political opponent challenging Mrs. Gandhi's election argued that
the amendment was against the basic structure of the Constitution as it affected the conduct of free
and fair elections and the power of judicial review. Counsel also argued that Parliament was not
competent to use its constituent power for validating an election that was declared void by the High
Court.
Four out of five judges on the bench upheld the Thirty-ninth amendment, but only after striking down
that part which sought to curb the power of the judiciary to adjudicate in the current election dispute.{19}
One judge, Beg, J. upheld the amendment in its entirety. Mrs. Gandhi's election was declared valid
on the basis of the amended election laws. The judges grudgingly accepted Parliament's power to
pass laws that have a retrospective effect.
Basic Features of the Constitution according to the Election case verdict
Again, each judge expressed views about what amounts to the basic structure of the Constitution:
According to Justice H.R. Khanna, democracy is a basic feature of the Constitution and
includes free and fair elections.
Justice K.K. Thomas held that the power of judicial review is an essential feature.
Justice Y.V. Chandrachud listed four basic features which he considered unamendable:
• sovereign democratic republic status
• equality of status and opportunity of an individual
• secularism and freedom of conscience and religion
• 'government of laws and not of men' i.e. the rule of law
According to Chief Justice A.N. Ray, the constituent power of Parliament was above the Constitution
itself and therefore not bound by the principle of separation of powers. Parliament could therefore
exclude laws relating election disputes from judicial review. He opined, strangely, that democracy
was a basic feature but not free and fair elections. Ray, C.J. held that ordinary legislation was not
within the scope of basic features.
Justice K.K. Mathew agreed with Ray, C.J. that ordinary laws did not fall within the purview of basic
structure. But he held that democracy was an essential feature and that election disputes must
be decided on the basis of law and facts by the judiciary.
Justice M.H. Beg disagreed with Ray, C.J. on the grounds that it would be unnecessary to have a
Constitution if Parliament's constituent power were said to be above it.{20} Judicial powers were vested
in the Supreme Court and the High Courts and Parliament could not perform them. He contended that
supremacy of the Constitution and separation of powers were basic features as understood by
the majority in the Kesavananda Bharati case. Beg, J. emphasised that the doctrine of basic
structure included within its scope ordinary legislation also.
Despite the disagreement between the judges on what constituted the basic structure of the
Constitution, the idea that the Constitution had a core content which was sacrosanct was
upheld by the majority view.
{ }
{19}. The Supreme Court struck down Section 4 of the Thirty-ninth amendment Act, i.e. Article 329A of the Constitution as it existed in 1975.
{20}. A comparison with the Westminster model would bring out the subtleties involved in this matter more clearly. The UnitedKingdom does not have a written Constitution like India or the USA. The British Parliament is a sovereign body and there is very little difference between constitutional law and ordinary law in that country. The Indian Parliament owes its existence to a written Constitution that was put together by another sovereign body, namely, the Constituent Assembly. Parliament's powers (including the power to amend) are not sui juris but essentially derived from this Constitution. Therefore it cannot be said to occupy a position superior to the Constitution.
page8
The Kesavananda Review Bench
Within three days of the decision on the Election case Ray, C.J. convened a thirteen judge bench to
review the Kesavanada verdict on the pretext of hearing a number of petitions relating to land ceiling
laws which had been languishing in high courts. The petitions contended that the application of land
ceiling laws violated the basic structure of the Constitution. In effect the Review bench was to decide
whether or not the basic structure doctrine restricted Parliament's power to amend the
Constitution. The decision in the Bank Nationalisation case was also up for review.
Meanwhile Prime Minister Indira Gandhi, in a speech in Parliament, refused to accept the
dogma of basic structure.{21}
It must be remembered that no specific petition seeking a review of the Kesavananda verdict filed
before the apex court- a fact noted with much chagrin by several members of the bench. N.N.
Palkhivala appearing for on behalf of a coal mining company eloquently argued against the move to
review the Kesavananda decision. Ultimately, Ray, C.J. dissolved the bench after two days of
hearings. Many people have suspected the government's indirect involvement in this episode seeking
to undo an unfavourable judicial precedent set by the Kesavananda decision. However no concerted
efforts were made to pursue the case.
The declaration of a National Emergency in June 1975 and the consequent suspension of
fundamental freedoms, including the right to move courts against preventive detention, diverted the
attention of the country from this issue.
Sardar Swaran Singh Committee and the Forty-second amendment
Soon after the declaration of National Emergency, the Congress party constituted a committee under
the Chairmanship of Sardar Swaran Singh to study the question of amending the Constitution in the
light of past experiences. Based on its recommendations, the government incorporated several
changes to the Constitution including the Preamble, through the Forty-second amendment (passed
in 1976 and came into effect on January 3, 1977). Among other things the amendment:
a) gave the Directive Principles of State Policy precedence over the Fundamental Rights
contained in Article 14 (right to equality before the law and equal protection of the laws),
Article 19 (various freedoms like freedom of speech and expression, right to assemble
peacefully, right to form associations and unions, right to move about and reside freely in
any part of the country and the right to pursue any trade or profession) and Article 21 (right
to life and personal liberty). Article 31C was amended to prohibit any challenge to laws made
under any of the Directive Principles of State Policy;{22}
b) laid down that amendments to the Constitution made in the past or those likely to be made in
future could not be questioned in any court on any ground;
c) removed all amendments to fundamental rights from the scope of judicial review and
d) removed all limits on Parliament's power to amend the Constitution under Article 368.
{ }
{21}. Speech in Parliament- October 27, 1976: see Indira Gandhi: Selected Speeches and Writings, vol. 3, p.288.
{22}. Article 31C stated that laws passed to implement the Directive Principles of State Policy could not be challenged in courts on the ground that they violated any fundamental right. Prior to the Forty-second amendment this clause was applicable only to Article 39 (b) & (c) of the Directive Principles which dealt with equitable distribution of wealth and resources of production.
page9
Basic structure doctrine reaffirmed- the Minerva Mills and Waman Rao cases
Within less than two years of the restoration of Parliament's amending powers to near absolute terms,
the Forty-second amendment was challenged before the Supreme Court by the owners of Minerva
Mills (Bangalore) a sick industrial firm which was nationalised by the government in 1974.{23}
Mr. N.A. Palkhivala, renowned constitutional lawyer and counsel for the petitioners, chose not to
challenge the government's action merely in terms of an infringement of the fundamental right to
property. Instead, he framed the challenge in terms of Parliament's power to amend the Constitution.
Mr. Palkhivala argued that Section 55 of the amendment{24} had placed unlimited amending power in
the hands of Parliament. The attempt to immunise constitutional amendments against judicial review
violated the doctrine of basic structure which had been recognised by the Supreme Court in the
Kesavananda Bharati and Indira Gandhi Election Cases. He further contended that the amended
Article 31C was constitutionally bad as it violated the Preamble of the Constitution and the
fundamental rights of citizens. It also took away the power of judicial review.
Chief Justice Y.V. Chandrachud, delivering the majority judgement (4:1), upheld both contentions.
The majority view upheld the power of judicial review of constitutional amendments. They maintained
that clauses (4) and (5) of Article 368 conferred unlimited power on Parliament to amend the
Constitution. They said that this deprived courts of the ability to question the amendment even if it
damaged or destroyed the Constitution's basic structure.
The judges, who concurred with Chandrachud, C.J. ruled that a limited amending power itself
is a basic feature of the Constitution.
Bhagwati, J. the dissenting judge also agreed with this view stating that no authority howsoever lofty,
could claim to be the sole judge of its power and actions under the Constitution.{25}
The majority held the amendment to Article 31C unconstitutional as it destroyed the harmony and
balance between fundamental rights and directive principles which is an essential or basic
feature of the Constitution.{26} The amendment to Article 31C remains a dead letter as it has not
been repealed or deleted by Parliament. Nevertheless cases under it are decided as it existed prior to
the Forty-second amendment.
In another case relating to a similar dispute involving agricultural property the apex court, held that all constitutional amendments made after the date of the Kesavananda Bharati judgement were open to
judicial review.{27} All laws placed in the Ninth Schedule after the date of the Kesavananda Bharati
judgement were also open to review in the courts. They can be challenged on the ground that they
are beyond Parliament's constituent power or that they have damaged the basic structure of the
Constitution. In essence, the Supreme Court struck a balance between its authority to interpret the
Constitution and Parliament's power to amend it.
{ }
{23}. Minerva Mills Ltd. v Union of India (1980) 3 SCC 625.
{24}. The Constitution (Forty-second amendment) Act 1976 [corresponding to Article 368 (4) & (5)]
{25}. Such a position seems contrary to the philosophy of separation of powers that characterise the structure of governance in India. The Constitution provides for a scheme of checks and balances between the three organs of government namely, the legislature, the executive and the judiciary, against any potential abuse of power. For example, the judges of the Supreme Court and the High Courts in the States are appointed by the executive i.e. the President acting on the advice of the Prime Minister and the Chief Justice of the Supreme Court. But they may be removed from office only if they are impeached by Parliament. This measure helps the judiciary to function without any fear of the executive. Similarly, the executive is responsible to Parliament in its day to day functioning. While the President appoints the leader of the majority party or a person who he believes commands a majority in the Lok Sabha (House of the People or the Lower House) a government is duty bound to lay
down power if the House adopts a motion expressing no confidence in the government.
{26}. Bhagwati, J. upheld its validity and concurred that the government's takeover of the sick mill was valid.
{27}. Waman Rao v Union of India 1981 2 SCC 362. The Supreme Court decided this case along with that of Minerva Mills.
Bhagwati, J. who was in the minority again incorporated his opinions on both cases in a single judgment.
page10
Summary
It may be said that the final word on the issue of the basic structure of the Constitution has not been
pronounced by the Supreme Court- a scenario that is unlikely to change in the near future. While the
idea that there is such a thing as a basic structure to the Constitution is well established its contents
cannot be completely determined with any measure of finality until a judgement of the Supreme Court
spells it out. Nevertheless the sovereign, democratic and secular character of the polity, rule of
law, independence of the judiciary, fundamental rights of citizens etc. are some of the
essential features of the Constitution that have appeared time and again in the apex court's
pronouncements. One certainty that emerged out of this tussle between Parliament and the
judiciary is that all laws and constitutional amendments are now subject to judicial review and laws
that transgress the basic structure are likely to be struck down by the Supreme Court. In essence
Parliament's power to amend the Constitution is not absolute and the Supreme Court is the final
arbiter over and interpreter of all constitutional amendments.
In another case relating to a similar dispute involving agricultural property the apex court, held that all constitutional amendments made after the date of the Kesavananda Bharati judgement were open to
judicial review.{27} All laws placed in the Ninth Schedule after the date of the Kesavananda Bharati
judgement were also open to review in the courts. They can be challenged on the ground that they
are beyond Parliament's constituent power or that they have damaged the basic structure of the
Constitution. In essence, the Supreme Court struck a balance between its authority to interpret the
Constitution and Parliament's power to amend it.
{ }
{23}. Minerva Mills Ltd. v Union of India (1980) 3 SCC 625.
{24}. The Constitution (Forty-second amendment) Act 1976 [corresponding to Article 368 (4) & (5)]
{25}. Such a position seems contrary to the philosophy of separation of powers that characterise the structure of governance in India. The Constitution provides for a scheme of checks and balances between the three organs of government namely, the legislature, the executive and the judiciary, against any potential abuse of power. For example, the judges of the Supreme Court and the High Courts in the States are appointed by the executive i.e. the President acting on the advice of the Prime Minister and the Chief Justice of the Supreme Court. But they may be removed from office only if they are impeached by Parliament. This measure helps the judiciary to function without any fear of the executive. Similarly, the executive is responsible to Parliament in its day to day functioning. While the President appoints the leader of the majority party or a person who he believes commands a majority in the Lok Sabha (House of the People or the Lower House) a government is duty bound to lay
down power if the House adopts a motion expressing no confidence in the government.
{26}. Bhagwati, J. upheld its validity and concurred that the government's takeover of the sick mill was valid.
{27}. Waman Rao v Union of India 1981 2 SCC 362. The Supreme Court decided this case along with that of Minerva Mills.
Bhagwati, J. who was in the minority again incorporated his opinions on both cases in a single judgment.
page10
Summary
It may be said that the final word on the issue of the basic structure of the Constitution has not been
pronounced by the Supreme Court- a scenario that is unlikely to change in the near future. While the
idea that there is such a thing as a basic structure to the Constitution is well established its contents
cannot be completely determined with any measure of finality until a judgement of the Supreme Court
spells it out. Nevertheless the sovereign, democratic and secular character of the polity, rule of
law, independence of the judiciary, fundamental rights of citizens etc. are some of the
essential features of the Constitution that have appeared time and again in the apex court's
pronouncements. One certainty that emerged out of this tussle between Parliament and the
judiciary is that all laws and constitutional amendments are now subject to judicial review and laws
that transgress the basic structure are likely to be struck down by the Supreme Court. In essence
Parliament's power to amend the Constitution is not absolute and the Supreme Court is the final
arbiter over and interpreter of all constitutional amendments.
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