Dr K.L Bhatia
The day April 24 is significant in the constitutional development of India, because on this day in 1973 the Supreme Court of India by 7:6 expounded that the Parliament of India does not enjoy infinite powers under Article 368 of the textual Constitution of India to destroy its foundational fundamentals. The foundational values are inherent in the textual Constitution which is not seasonal but permanent those are based on the experiences of the past, encapsulated in the present, and the present binds the posterity for ages. The foundational values constitute India into Sovereign, Socialist, Secular, Democratic, Republic and secures justice, equality, and liberty to promoting fraternity, and to assuring the unity and integrity of the Nation. These foundational fundamentals are the genesis of the basic structure of the textual Constitution. The edifice of the fabric of the basic structure has been under attack right from first amendment to the Constitution to 24th, 25th and 29th amendments to the Constitution, which were in conviviality in Kesavananda Bharathi v. State of Kerala, 1973.
Kesavananda Bharathi’s case is sui generis as it expounds new contours to the constitutional language of Preamble, Fundamental Rights, Directive Principles of State Policy and Amending Power of the Parliament under Article 368. In brevity, the expressions Sovereign, Socialist, Secular, Democratic, Republic constitute India that is Bharat as a Union of States, which make up India as a federal and not unitary as a strong edifice of basic structure that comprises indestructible union of destructible units. This aspect has been comprehensively expounded at length by the Supreme Court in this case.
The cases preceding Kesavananda Bharathi recognized Parliament’s unlimited power to amend any provision of the Constitution. Mostly, the conflict revolved around right to property which could be acquired by the government at her will without paying the just and equivalent compensation as per market value. The word compensation was substituted by the word ‘amount’ which could be paid at government’s will that was arbitrary. Compensation means ‘just and equivalent’ and the word amount means payment by any means which could be arbitrary.
The 17th amendment to the Constitution was contended in Sajjan Singh v. State of Rajasthan, 1965. Justices Mudholkar and Hidayatullaha while delivering the dissenting opinion expressed that there were some fundamental principles of the Constitution which were beyond the amending power of the Parliament. These Justices, however, did not explain the conception of ‘fundamental principles’ and left the answer in great question mark. The 17th amendment, the only amendment, was again contended in I. C. Golaknath v. State of Punjab, 1967. The Supreme Court while taking a cue from the dissenting opinion of two Justices by 6:5 held that transcendental characteristics of fundamental rights could not be disturbed by the Parliament. Again, in R. C. Cooper v. Union of India, 1970, the Supreme Court reiterated that ‘compensation’ appearing in fundamental rights could not be at the caprice and whims of the government and ‘the amount’ could not be construed payment by any means of arbitrary will of the government.
The ruling elite in majority in Parliament, passed 24th, 25th and 29th amendments to the Constitution in order to undo the abovementioned three cases inasmuch the Parliament did by 1st amendment to undo the conception of ‘egalitarianism’ enjoined in the original constitutional language of Article 15 of the Constitution. These amendments were challenged in all the six writ petitions under Article 32 of the Constitution involving common questions as to the validity of these three amendments, which affected fundamental rights under Articles 25, 26, 14, 19(1) (f) and 31 (as it stood before 44th amendment of the constitution that repealed fundamental right to property and inserted Article 300-A in its place). The contentious amendments were pertinent inasmuch as that nothing shall apply to any amendment of this Constitution under Article 368. The contentious amendments enabled the Parliament to dilute fundamental rights through amendments to the Constitution. And, above all, the constitutional amendments could not be a question of challenge in the Courts. The petitioner, who lent his name for the presentation of the petition, was presented by a court room genius Shri Nani A. Palkhiwala, who contended that the amendments be declared unconstitutional, ultra vires and void as these amendments disturbed the basic identity or basic structure of the constitution. His contention was based on the thesis of a German scholar Professor Dr. D. Conrad who penned down the thesis of basic structure inasmuch as that the German Basic Law and its basic structure could not be destroyed and this thesis was based on the experiences of dictatorial attitude during the black days of Second World War. The Supreme Court was called upon to do complete justice and as such the basis of arguments seemed to be on the classic and genius statement of Justice Vivian Bose, one of the earliest Justices of the Apex Court as far back as 1954, namely, “We have upon us the whole armour of the Constitution and walk henceforth in its enlightened ways, wearing the breast plate of its protecting provisions and flashing the flaming sword of its inspiration”.
In the background of the above, the Supreme Court decided Kesavanada Bharathi case on 24 April, 1973, with hair-thin majority 7:6, consisting of 703 pages, culled out in summary signed by 9 Justices out of 13 Justices, has saved Indian democracy, as a basic feature of the Constitution, by expounding the genesis of basic structure. The Supreme Court expounded that Parliament could amend any part of the Constitution so long as it did not alter or amend “the basic structure or essential features of the Constitution”. The Supreme Court cautioned the Parliament not to play with the sacred Constitution as a play thing. “Amend as you may even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generations. But, the Constitution is a precious heritage; therefore, you cannot destroy its identity”. This was the implied or inherent limitation on the amending power of Parliament encapsulated in Article 368. This encapsulates that Parliament does not enjoy infinite power to amend the Constitution if it amounts to destroy the basic feature of the Constitution. Had it not been there, the supremacy of the Constitution could have been the prey of authoritarianism or autocratic democracy rule which could have been detrimental to Rule of Law to sustain Rule of Life. In the backdrop of this, basic structure is fundamental foundation somewhat like a Magna Carta which would be unalterable. It seems that the expounding of basic structure solely makes our Constitution living or living organism. The Superior Court has expounded the basic structure that binds the posterity for ages to come inasmuch as the great Chief Justice Marshal in Marbury v. Madison, 1803, for salt and vinegar in his wounds espoused the literary legal language of expounding philosophy: “… never forget that it is a constitution we are expounding … (but) a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs”.
Had there not been Kesavananda Bharathi case there could have been autocratic democracy. Shakespeare writes:
“O, it is excellent
To have a giant’s strength, but is tyranneous
To use it like a giant.”
(The author is former Professor of
Eminence National Law University Jodhpur)
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