Basic Structure Constitutionalism: Basic Structure Constitutionalism- Revisiting Kesavananda Bharati 9350281880, 9789350281888

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Preface

At the outset, we would like to pay homageto the two legal luminaries of this country, Mr N.A. Palkhivala and Mr H.M. Seervai, whose contributions, both as a jurist and lawyer, is unparalleled in the legal profession. Indeed, it is a matter of great pride for the Centre for Public Law, ILS Law College, Pune to present this book in honour of these legends of law. The Centre for Public Law was established in ILS Law College, Pune to promote the research in different aspects of constitutional law and to comprehend its linkages with other disciplines like international trade law, taxation, etc. To commemorate the year of establishment of the Centre, an idea was conceived to undertake two major initiatives. Firstly, an event was organised to reargue Kesavananda Bharati case on 16 January 2010 to celebrate the 90th birth anniversary of Mr Palkhivala by inviting the eminent Councils who had actually appeared in the case before a Bench of distinguished judges and academicians. Secondly, it was decided to bring out a volume to honour the contribution of Mr Palkhivala and Mr Seervai in the field of constitutional law. This initiative was appreciated by none other than the former Chief Justice of India, Hon’ble Mr K.G. Balkrishnan, and he gave his kind consent to write the foreword to this volume. At this juncture, it would be appropriate to provide a brief narrative of the success of this immensely ambitious initiative. This volume runs in three sections. Section I deals with the comparison and critical analysis of 11 opinions in Kesavananda Bharati case. Section II is devoted to the legacy of Mr Seervai and Mr Palkhivala and has two articles by Advocate Navroz Seervai (son of Mr H.M. Seervai) and by Mr Behram A. Palkhivala (brother of Mr

N.A. Palkhivala). Section III contains research articles contributed by invited lawyers, jurists and academicians. By no stretch of imagination, analysing Kesavananda Bharati’s case was an easy task. However, we could accomplish the same because of hard work, dedication and sincerity of the team of enthusiastic student researchers and concerned faculties. Initially, we had decided to confine our research to certain fundamental issues highlighted in Kesavananda Bharati viz. relationship between fundamental rights and directive principles, distinction between

XVI.

Basic Structure Constitutionalism

constituent and legislative power, scope of judicial review, nature and scope of Article 368, etc. However, we soon realised that the same would not enable us to fully comprehend myriad dimensions of this fundamental case. Accordingly, we decided to undertake threadbare para by para analysis of each opinion. For this purpose, all the 11 opinions were assigned to student researchers who prepared the para wise summary of the same. It was followed by issue wise co-relation of paragraphs of each opinion. It was also successfully accomplished by the junior student researchers of BSL 2nd year. We also assigned the task of reviewing the existing literature on Kesavananda Bharati case to the student researchers and they came out with a thorough research of it. The next logical step was to prepare the initial drafts of the analysis of all the 11 judgments by using the above data and it was successfully completed by senior student researchers of BSL Final year. During the preparation of the final drafts, the aforesaid material proved extremely efficacious. The final drafts are mainly prepared by Dr. Sanjay Jain (Faculty ILS Law College and Coordinator of Centre for Public Law),

Ms Sathya Narayan (Senior Faculty ILS Law College and Hon. Joint Director IALS, Pune), Mr Amit Pai (student of BSL Final), Mr Sharath Chandran (student of LLB II), Mr Rohit Saboo (student of BSL final), Ms Ayushi Agrawal (student of BSL final). We would also like to place on record the immense contribution made by the following junior student researchers: Mahima Sinha, and A. Vivek Ravichandran (students of III BSL, LLB), Aankhi Ghosh, Aditi Ashok, Aparna Appaiah, Aparna Sreedhar, Geetanjali Joshi, Madhupreetha E., Rohit Rathi, Subham Chatterjee, Subhashree S., Sumedha Sarkar (students of II BSL, LLB). Section III of the volume contains in all 11 articles covering range of issues touching basic structure doctrine in general. Papers of Dr. A. Laxminath, Dr. S.L. Deshpande and Mr Shiv Prasad Swaminathan are devoted to jurisprudential analysis of basic structure, whereas articles of Advocate Anil Diwan and Advocate T.S. Anadhyarujina depict the fond memories of the proceedings of the case. Contribution of Dr. Venkat Rao in his article examines the human rights dimension of Kesavananda Bharati. Dr. Sanjay Jain in his paper has advocated for linkage of feminist legal theory and constitutional law by arguing that principle of gender equality must be recognised as one of the features of the basic structure of the Constitution. Whereas, the Paper of Advocate Arvind Datar briefly reviews the overall journey of basic structure. Advocate Sriram Panchu in his interesting paper has examined the impact of swing boats in the determination of the outcome of landmark adjudications. The paper of Dr. Avinash Govindjee and Rossan Kruger is an immensely useful contribution in the arena of comparative constitutional law and the authors have enquired into the question of applicability of basic structure doctrine to South African Constitution. Last but not the least, there is also a paper written by a student

Preface

XVII

researcher Mr Amit Pai, who has argued that Kesavananda Bharati only partially overruled the Golak Nath. It would be also appropriate to briefly record some of our findings during the editing of this immensely ambitious work. At the end of this project, we have realised the efficacy of threadbare analysis of judgment. Students were put to an immense learning exercise while correlating the scattered paragraphs of each opinion issuewise. Since they had to read the entire judgment in order to write the initial drafts, they came out with amazing questions to understand the complexities in the reasoning of the judges. The same also enabled them to identify the paradoxes and contradictions in the reasoning of the judges. Thus, to mention only one of such paradoxes, although, Shelat and Grover JJ based their opinion on basic structure doctrine, while analysing their opinion, we reached a rather interesting and paradoxical conclusion that their conception of basic structure would not impede the amending body from amending the Constitution to convoke a special Constituent Assembly for framing an entirely new Constitution. The same led us to conclude that the conception of basic structure adopted by learned judges does not match with its formulation by the other majority judges and therefore, we reached a finding that the notion of basic structure attributed to majority of seven judges should actually be identified with only five judges. If the above finding is appreciated in its earnestness, then the entire ratio of Kesavananda Bharati will have to be reconsidered. We performed a modest task of providing extensive analysis of each opinion and for the same, we have made extensive use of footnotes to highlight paragraphs in the opinions and to correlate them issuewise. We have also tried to compare and contrast the views of the judges in the case. We have also tried to highlight the change of positions of the judges in Kesavananda Bharati in the subsequent decisions. We have tried our level best to eliminate errors and keep the discussion running in a lucid language. Nevertheless, there are bound to be certain discrepancies and for the same, we quite candidly own up the responsibility. 7 Present time is the time of constitutional crisis as every organ of the State is being rocked by controversies and scandals at a regular interval. In such turbulent scenario, discourse on basic structure, in general and Kesavananda Bharati in particular, which is characterised as a running Constitution of this

country, is bound to be a most timely call. We modestly hope that research generated through this volume would lead to constructive discussion and generate new ideas. While concluding, we would like to congratulate the student researchers for doing excellent work and hope that the same zeal would continue in future as well.

—Dr. Sanjay Jain Faculty, ILS Law College Law College Road, Pune

—Ms Sathya Narayan Hon. Joint Director Indian Institute of Advanced Legal Studies ILS Law College, Pune

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Acknowledgement

First and the foremost, we would like to sincerely thank former Chief Justice of India and now the Chairperson of National Human Rights Commission, India, Hon’ble Mr Justice K.G. Balakrishnan, for writing a foreword for this volume. We would also gratefully acknowledge Advocate T.R. Andhyarujina for permitting us to reprint his article. “The untold story of how Kesavananda Bharati and the basic structure doctrine survived an attempt to reverse them by the Supreme Court” in this volume had earlier appeared in (2009) SCC J-33. We are also grateful to Advocate Navroz Seervai, for permitting us to reprint his article in this volume earlier appeared in the book Evoking H.M. Seervai—Jurist and Authority on the Indian Constitution compiled for his centenary by Feroza H. Seervai, (2005). We are also thankful to Advocate Behram Palkhivala and Maj. Gen. Nilendrakumar for giving us the permission to reprint the article “This was a Man” appeared earlier in Nani Palkhivala—A Role Model, (2006). We would also gratefully acknowledge the critical inputs supplied by Dr. Anupa Thapliyal on some of the drafts of the judgments. We would like to thank the Principal, Ms Vaijayanti Joshi for her constant support and encouragement, and for providing all the help. We also thank all the faculty members and staff of the library, ILS Law College, Pune for providing us assistance at every stage of this project. We would also like to express our gratitude to all the invited authors for submitting their papers within the prescribed schedule. We would also express our deepest appreciation to the publishers, Eastern Book Company (P) Ltd. for sponsoring the publication of this volume. We would also like to acknowledge the untiring support of Ms Sakshi Jain, who not only provided the research assistance but also took painstaking efforts for the proper formatting of this book. We would also place on record sincerity and dedication of Mr Amit Pai, Mr Sharath Chandran and the entire team of student researchers who participated in the project right from its inception. In particular, we would like to place on record the research assistance

of Mr Sharath Chandran, during the preparation of the final drafts of all the judgments. We would also like to acknowledge the assistance of Mr Sharath Chandran, Ms Maithili Sane and Ms Rajalakshmi Joshi in formatting the book and in the preparation of Table of Cases and Index.

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Contents

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ONE

CRITICAL AND COMPARATIVE ANALYSIS OF ELEVEN OPINIONS IN KESAVANANDA

BHARATI

1. Kesavananda Bharati—A watershed in the evolution of

jurisprudence of-judicial review in Indiay S72

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Dr. Sanjay Jain

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Dr. Sanjay Jain and Mr Sharath Chandran

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Dr. Sanjay Jain and Ayushi Agrawal

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Dr. Sanjay Jain, Mr Amit Pai and Mr Rohit Saboo

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XXII

Basic Structure Constitutionalism

SECTION

TWO

REMEMBERING MR SEERVAI AND MR PALKHIVALA

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Behram A. Palkhivala (Advocate)

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SECTION

THREE

CRITICAL PAPERS

15. The untold story of how “Kesavananda Bharati” and the basic structure doctrine survived an attempt to reverse them by the Supreme Courte 78 .%3 Bev. BVA ATMO. Ge. SAC TIAA? 133 T.R. Andhyarujina

16. Random recollections: Revisiting ““Kesavananda Bharati” from a personal perspectives? 2 wrndehs Leis hul- tey oaeolasiebe «ss - 145 Anil B. Divan

17. Judicial predilections, leanings and the swing vote.............

153

Sriram Panchu

18. The basic structure doctrine—A 37-year journey..............

159

Arvind P. Datar 19. Precedential value of ““Kesavananda Bharati”................. Prof. A. Lakshminath

168

20. Basic structure and basic human rights .............00000008.

187

Dr. R. Venkata Rao

21.. India, that is; Bharat: . ..::.. ..-

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Dr. S.L. Deshpande

22. The basic structure doctrine debate: South African Explorations. . 209 Dr. Avinash Govindjee and Dr. Rosaan Kruger

23. Reading the principle of gender equality into the basic structure doctrine of the Constitution of India: Critical reflections ........ Dr. Sanjay Jain

228

24. The philosophical foundations of the basic structure doctrine ....

257

Shivprasad Swaminathan

23. Is “GolakNathspantly.correct?\.

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273

AmitA. Pai

Bibliography SUDlOCE NECK

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287

Table of Cases

A.K. Gopalan v. State of Madras, AIR 1950 SC 27: (1950) SCR 88 ........... 14, 84, 102 Akadasi Padhan v. State of Orissa, AIR 1963 SC 1047: 1963 Supp (2) SCR 691 ...... 23, 43 Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201: 1997 SCC (L&S) 1299 ......... eA mspok Kumar Thakur y,.Union of India; (2008),6.SCC Jie cs oc axe ooo aves cone + wotmaset «ace 10 82 Attorney General for Ontario v. Attorney General for Canada, 1912 AC 571 (PC)........ 10, 29 erate apr v. State OF TN, (CCCI) TCO Zor oe ni caress Cee ree hac prescient Sie, 3 ae ee Bent 70 Peauharnais vy. Hlinois; 96.L: Ed 919: 343 US 250 (1951) S08. Bennett Coleman & Co:'v- Union of India; (1972) 2 SCE 788)

SSS

hee

es

Berubari Union and Exchange of Enclaves, re, AIR 1960 SC 845: 1960 (3) SCR 250 .. Bribery Commr. v. Ranasinghe, 1965 AC 172: (1964) 2 WLR

64 31, 86

1301: (1964) 2 All

ER 785:(PC) .cccssiscassseces OS AERA BIRR OO CORY oF RARER 30%

17

Dwarkadas Shrinivas v. Sholapur Spg. & Wvg. Co. Ltd., AIR 1954 SC 119.............

52

Express Newspapers (P) Ltd. v. Union of India, AIR 1958 SC 578: 1959 SCR 12.........

64

mrases Henieins Pty: Ltd. v. Cody, (1945) 70 CLE 100 i. oso oo siepe-k ows Soe gie vieis cugpeccig we

41

cuamtock estate (P) Lid»: State of T.N.; (2010) 10: SCC 96 oo occ ons ovo k bse esc ey 10 Golak Nath v. State of Punjab, AIR 1967 SC 1643: (1967) 2 SCR 762.... 5, 12, 13, 37, 74, 106

SC NAION S CASS ACPD OA NORCO

ST asic orc 0s ois a eagainin ois on ib ain eoNin We dald Scale BP Hele s SSeS

36

bie Cocino v:, State Gf TN; (2007) 2:SCC Vink ie fic vc cd esiewes 4, 10, 16, 24, 38, 64, 97 Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1....... 9, 24, 72, 78, 85, 87, 97, 98, 108 Jayantilal Amratial Shodhan v. FN. Rana, AIR 1964 SC 648: (1964) 5 SCR 294 ........

33

Kavalappara Kottarathil Kochuni v. States of Madras and Kerala, AIR 1960 SC 1080 ....

62

Kerala Education Bill, 1957 re, AIR 1958 SC 956: 1959 SCR 995. ........ 0. cece ee ewes 44 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 ............... 12, 26, 36, 46, 56 66, 72, 82, 95, 99, 106 Kihoto Hollohan y. Zachillhu, 1992 Supp (2) SCC 651 2.2... ccc cece eee eee nee 10 L. Chandra Kumar v. Union of India, (1997) 3 SCC 261: 1997 SCC (L&S) 577........ 4, 10 Leserv, Gamett, 66 L Ed 505: 258 US TS0 (1921) 6.0 o ccc cee cece e ees eccenccnes 80 M. Nagaraj v. Union of India, (2006) 8 SCC 212 .............005 4, 10, 16, 19, 64, 97, 110 27, 64 cc cece eee eee renee Maneka Gandhi v. Union of India, (1978) 1 SCC 248. ........ 0. ccc s cree c reece cer cescvessesesessscrees 42 McCawley v. R., 1920 AC 691 (PC)...

XXIV

Basic Structure Constitutionalism

Missouri v. Holland, 64 L Ed 641: 252 US 416 (1919).

2.0... . cece cece cence ere eevenees

83

30, 44

Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731: 1959 SCR 629...........

he ov oo me 81 N.B. Jeejeebhoy v. Collector, AIR 1965 SC 1096: (196501 BER GIGS PIMA

6.

Nagpur Improvement Trust v. Vithal Rao, (1973) 1 SCC 500......

cece eee eee

ees

63 9

P. Sambamurthy (2) v. Union of India, 1987 Supp SCC 706: 1988 SCC (L&S) 354........ isto icin coorange «meee a a eee ele rete ara a Bras7) oA Oo esas RR R.C. Poudyal v. Union of India, 1994 Supp (1) SCC 324 ....... cs eeccserencrcevccene Roberts v. Hopwood, 1925 AC 578, 590: 1925 All ER Rep 24 (HL) ........2.+20ss0008 Rustom Gavasjee Cooper v. Union of India, (1970) 1 SCC 248 ..............

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S.P Samipath Kumar y. Union Or inata, (1967) 1 SCC N24

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13.

This was a man!*

Behram A. Palkhivala (Advocate)

There can be no development without effort, and effort means work. Nani in “Education and Youth

in a Democratic Society”

“Son, remember the poor orphan next door?”, the father reminded the two year old who was about to help himself to a bowl of almonds. That day, a man of charity took birth in the babe. He immediately handed over the entire bowl to the orphan. The babe turned boy. “Become a lawyer, my son, you are cut out for law”, his father told him repeatedly, noticing his amazingly clear thinking and his incredible debating power. But after his BA, the lover of literature desired to be a college lecturer. He lost the post to a lady because he did not have her teaching experience. “Become a lawyer, my son.” But after his MA, led by the woman he loved, he aspired for the ICS, then the highest and toughest examination. The final was to be held in Delhi. An epidemic broke out there. His dear ones dissuaded him from filing the application form for which a time had been set. After the period expired, the government announced the shifting of the venue, because of the epidemic, from Delhi to Bombay (his hometown). “Become a lawyer, my son.” He had always remembered the advice. Now he respected it, and got first class in both First and Second LLB (bagging almost all possible prizes and medals), and first in every individual paper in the Advocate (OS) examination. In one of his answer papers in LLB, the examiner wrote, “Frankly, this candidate knows much more than I do.” He was a meteor at the Bar and soon left his seniors way behind. He was offered a seat on the Supreme Court Bench, more than once—probably the youngest to receive the offer, the first to be chosen straight from the Bar (selection is made from the High Court judges), and with the * This article first appeared in Maj. Gen. Nilendra Kumar (Ed.), Nani Palkhivala—A Role Model (Universal Law Publishing Co. Pvt. Ltd., 2006). Reprinted with the kind per-

mission of its author, Mr Behram Palkhivala and the editor, Maj. Gen. Nilendra Kumar who have the copyrights.

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[Chap.

prospect of the longest tenure ever, both as a judge and as the Chief Justice of the Supreme Court. Obeying his inner voice, he declined. Later, he became the most outspoken critic, both in his writings and in his public speeches, of the government's unwise fiscal and economic policies—what he could not have done as the Supreme Court judge. He was offered the office of the Attorney General of India, again more than once and probably the youngest to get the offer. Last time, he was pressed hard by the Law Minister to accept it. After a great deal of hesitation, he agreed. At three o’clock in the morning, the day the announcement was to be made in Parliament, the voice within told him that his decision was wrong and he should reverse it. Early in the morning, he apologised to the Law Minister for changing his mind. In the years immediately following, he, as the citizen’s advocate, successfully fought several historical cases against the government’s unconstitutional measures which, as the Attorney General, it would have been his duty to defend. Once he was engaged to argue a Special Leave Petition in the Supreme Court, and his two-way air ticket from Bombay to Delhi was booked. Three days before the hearing, he developed a bad cold and fever and returned the brief. The next day he felt better, and decided to do the case since it meant a lot

to a poor and deserving litigant. The day thereafter his temperature rose higher and he was forced to return the brief again. The plane by which he was to come back took off from Delhi and crashed. There were no survivors. A man of these experiences could not but believe in the existence of God, at least as much as in his own. “I have deep faith in the existence of a Force that works in the affairs of men and nations. You may call it chance or accident, destiny or God, Higher Intelligence or the Immanent Principle. Each will speak in his own tongue.” On 16 January 1920, Nani Ardeshir Palkhivala was born in a middle class family where love ruled. Let him speak: To my parents, to their love and care and guidance, I owe a debt which could never be repaid. From them I learnt that all the loveliness in the world can be reduced to its first syllable. My father inculcates in me a passion for literature, which has remained an abiding joy throughout my life.... My mother was a woman of exceptionally strong character who could meet with Triumph and Disaster and treat the two imposters just the same....

A parental pair, ever so rare. Two self-effacing souls, in all matters of family life, they placed themselves last. From them, Nani and his siblings learnt lessons which no school, no college, no university could impart. The children studied in school. They were educated at home. From his early years, Nani was conscious that he was born with a mission. Before marrying Nargesh he had told her that if they were to have children it would be his duty to give them all his time needed for their upbringing but that

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This wasaman!

117

was not feasible since he had a lot to do for his motherland and for mankind, and to that end he would devote all his time and all his breath. Nargesh, who on her own could see what Nani was marked out for, much readily agreed. A loving and caring wife, she single-mindedly helped him achieve his aim. Even as a schoolboy, Nani never wasted time, the stuff life is made of.

Forgoing food and other necessities of life, he would save every bit of money to buy second hand books. Pleasures did not please him. He found his rest in work. His “relaxations” were violin, fretwork, palmistry, sketching and painting, and photography. Of course, he had abundant humour and enjoyed practical jokes, for which he spared time even in his later days. But that was the outer self. Back must the spirit return to the task for which he had come. His ready wit regaled his hearers in private conversations, in courtrooms, in his law college lectures and public speeches. Nani was a journalist before he was an author. His first article appeared in a newspaper when he was 13; his first book was published when he was 30. It was The Law and Practice of Income Tax, which was greeted as “an incredible performance”. Chagla CJ, while hearing income tax references, referred to it as “The book”; and often when a ticklish question of law arose on which precedents were silent, he would ask, “What does the book say?” The Highest Taxed Nation, published a fortnight before the presentation of the 1965-1966 Budget in Parliament, compelled the government to redraft part of the Budget on an emergency basis simplifying the maddeningly complicated tax structure, and later to bring down the tax rates from their vertiginous heights. Reviewing “We, the People”, Khushwant Singh wrote, “My quest for memorable quotes by an Indian has been fruitful.” In the early days of his practice, Nani was offered the post of the principal of the Government Law College. Should he accept it? Of course, the remuneration was highly tempting—¥1500 a month! But he might do better at law if he stayed on long enough. He decided to decline. He had not long to wait. His big break came within two years of his practice, with P.V. Rao v. Khushaldas S. Advani', under the infamous Bombay Land Requisition Act. The petitioner sought from the Bombay High Court a high prerogative writ against the government. Various High Courts had already held that no writ could be issued | against the government. A highly respected senior was engaged to argue the case, with Nani as his junior. The government was represented by Advocate General Mr M.P. Amin. The case came up before N.H. Bhagwati J. The senior did his best but was fighting a losing battle. When the Advocate General was about to finish his reply, the senior told Nani that he was engaged elsewhere the next day and therefore Nani should prepare to give the rejoinder. Nani worked lunatically overnight, and the next day, in his rejoinder, began to present entirely fresh arguments which he was not legally entitled to do. The Advocate General raised no objection but he was given the right of surrejoinder. The 1. AIR 1949 Bom 277.

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judgment went in favour of Nani and a writ of mandamus was issued against the State Government—the first writ of its kind against any government in India. At the end of the case, the Advocate General told a grateful Nani, “I did

not object to your presenting new arguments in your rejoinder because I could see you were building your career.” The career was built fast and the top was reached soon. Nani’s tenacity was amazing. In an income tax reference, he argued vehemently for hours, but Chagla CJ was totally against him. Nani persisted. When the noble judge, courteous to all, began showing signs of impatience, Nani said, “My Lord, I would have sat down long ago but for my conviction that in this Court no case is lost till the last word is spoken.” His arguments got a fresh lease of life. Nani fought for his countrymen in Indian courts, and for his country in international forums. Most of his fights for the citizens against the legislative or governmental excesses, and all those for India before the international tribunals, were without charging fees. On all occasions, big or small, his arguments in the court were mercilessly intellectual. On big occasions, at times, they were also spiritual. To a question posed by a judge to corner him he would, without a moment’s thought, come out with “There are four answers” or “There are five answers”. I once asked him how it was possible, even for a man of his intellect, to do that. He gestured, stretching out his hand and bringing it back with open fingers towards his head, “I see them coming to me.” “All of them together”, “Yes.” A Supreme Court judge, goodly in girth, once met Nani at a private function. He said, “I have now decided never to put you such a question. Because whenever I do, you straightaway reply, ‘There are five answers’ or ‘There are six answers’, and I am made to look so small in open court.”

In the famous Fundamental Rights case’, Nani obtained from the Supreme Court, in April 1973, the historic pronouncement that Parliament cannot so amend the Constitution as to destroy or alter its basic structure. That was his finest hour—till that time. His finer hour was waiting. “Emergency” was proclaimed two years later. The judiciary was terrorised, the press strangled, the voice of the common man muffled, and the dissenters jailed without trial. In such an atmosphere, the then government tried to have the Supreme Court overrule its earlier judgment in the Fundamental Rights case, to pave the way for a totalitarian rule. But Nani was there. And not so easily could the nation’s onward march be stayed. Not so readily would the lights of freedom die. His impassioned appeal so moved all the 12 judges on the Bench that the Chief Justice, reduced to a minority of one, had to take a step perhaps never done before or since: he unceremoniously dissolved the Bench and the matter ended there. One of the judges, referring to Nani’s address, observed, ‘Never before in the history of the Court has there been a performance like that’; “Such 2. Kesavananda Bharati v. State of Kerela, (1973) 4 SCC 225 (also known as Fundamental Rights case).

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arguments will not be heard in this Court for centuries to come”; “a forensic feat that will perhaps never be equalled”; “advocacy and eloquence of unparalleled merit in the entire history of The world”—were the views of some senior lawyers present in the court. In September 1999, H.R. Khanna J paid a visit to ailing Nani. Our talk inevitably turned to Nani’s legal acumen. Referring to Nani’s address, he said, “It was not Nani who spoke. It was Divinity speaking through him. Later I asked some of my brother judges for their reaction, and all of them were of the same opinion.” Nani had an unconquerable mind. As a child, he suffered from a dreadful stammer. “It seemed that I had as much chance of becoming an advocate or a public speaker as a victim of multiple sclerosis has of becoming an Olympic athlete.” The little Demosthenes overcame the handicap. Modestly, also justly, he attributed it to “Providential grace”. As a schoolboy and as a collegian, he took part in elocution competitions at the State and interstate levels, and went on to become one of the world’s greatest orators. His annual budget speech initially drew an audience of about 400 which gradually swelled to about 1,00,000. Nothing less than Bombay’s largest cricket ground, the Brabourne Stadium, could hold the number. Lord Roll of Ipsden, who presided over one of the meetings, observed in his presidential address that nowhere in the world (“I repeat, nowhere in the world”) would a budget speech attract such an audience. Foreigners who attended his speeches were amazed at his performance. Dr. William Emerson, a collateral of the famous American writer, observed that if such a speech were given in the US, people would hold discussion sessions for days on the points made and newspapers would carry articles about them. A Hungarian lady from London, when introduced to Nani after one such speech, said to him, “it was worth coming all the way from England to hear you speak”. Another time, an Australian expressed the same sentiment, and added, “Never before in my life have I heard a lecture like this.” “When Nani spoke, the venue itself became the Parliament of the people”, stated an article in a newspaper. The yearly meeting became a national event, and began to be held in different States in India, and abroad. _ His oratorical talents were not confined to legal and fiscal matters only. He addressed meetings of all sorts, of medical practitioners and journalists, ef corporate managers, maritime engineers and trade union functionaries, of planters and farmers, the police and the armed forces. His subjects ranged sweepingly from the spiritual to the temporal, from yoga, religion and destiny to the stock exchange and road transport. Prominent among the personalities on whom he spoke were Sri Aurobindo and Adi Sankara whose philosophies greatly inspired him. ; During his 21-month tenure as India’s Ambassador in the US, he delivered more than 170 speeches in different States, which included speeches at over 50

universities, sometimes giving three or four speeches a day at different places;

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and he had about 80 meetings with the media of different States, once giving seven interviews in a day. Encomiums greeted him both in and outside the legal field. Many ranked him among the greatest lawyers of all time. Khanna J said in a public lecture, “If a count were to be made of the ten topmost lawyers of the world, I have no doubt that Nani’s name would find a prominent mention therein.” Earlier, Chagla CJ had stated in his autobiography, “Today, he is undoubtedly the most brilliant advocate we have in India.” Still earlier, when Nani was a very young lawyer, Meherchand Mahajan, the then CJ, at a reception given to him by the Bombay Bar Association on his visit to Bombay, had said, “Your Bar holds the distinction of possessing the best legal brain in our country.” Lawrence University, Wisconsin, one of the several to confer the honorary degree of Doctor of Laws on Mr Palkhivala, stated in its citation, “Never more did you live your principles than during...the nineteen-month ordeal which India went through in what was called ‘The Emergency’....Under the shadow of near tyranny, at great risk and some cost, you raised the torch of freedom.” The public hailed him as “the Keeper of the Nation’s Conscience” and “the Tribune of the People of India”. Morarji Desai, the then PM, described him as, “the country’s finest intellectual”. C. Rajagopalachari called him, “God’s gift to India”. One of his clients, who walked with kings, told me, “Nani’s brilliance

is unbelievable. And I know only one man who surpasses him—Winston Churchill.” That was around 1950. Mr Palkhivala was four years at the Bar. Churchill had won the war. His life was gentle; and the elements

So mix’d in him, that nature might stand up, And say to all the world, ‘This was a man!’

The man was greater than any of his achievements. His was an influence which you would not avoid if you could and you could not avoid if you would. Uncompromising integrity and strict discipline were the hallmarks of his character; even the most vocal opponents to his ideology had to concede. His innate humility, unfailing courtesy and disarming simplicity endeared him to all. From the days he made $15 a month as a journalist to the days he made charity by millions, his hat size remained the same. On Nanji’s first intended visit to the US, an American attorney who had met

the young Nani in Bombay, gave him a letter of introduction to a judge of the US Supreme Court, in which it was stated, “He is a taxation lawyer. But do not bother. He can speak on any subject.” The attorney was wrong. There was one subject on which he could not speak—himself. His admirers entreated him in vain for his autobiography. “The greater the genius, the more simple and common the man”, said Einstein. As Nani’s brother and his junior at the Bar, I had plenty occasions to

watch the genius and the man walk hand-in-hand. Once we were engaged in a

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big tax matter of the Birlas in Calcutta. I worked long on the case, collected a large number of authorities, prepared and handed over the brief to Nani days in advance, and requested for a conference. “Shall we have it in Calcutta?”, I told

him that the facts were numerous and complicated, and the authorities many. I got just a gentle smile indicating “don’t worry’—from the man who in his daily routine compressed the work of 200 hours into 20. (Honestly, there were times when the speed at which he could think and work made me feel there was something wrong with the chemistry of the man.) We reached Calcutta the night before the hearing. The officers of the company had kept the authorities ready in his room in the hotel. Next morning, I went to his room for breakfast, expecting him to discuss with me any point of law or fact on which he wanted clarification. My heart sank when, while settling down for breakfast, he inquired what was the case about. He had not even opened the brief, leave aside going through the case law. That work, I was to find later, was reserved for the minutes between the hotel and the court. I

placed before him the facts and the law points as fast as I could. He grasped them faster than I could present them, indicating by his constant nods that he had already guessed what I was about to say. The hearing was at 11.00 a.m. As previously arranged, at 10.00 a.m. the officers arrived at his room to take the law volumes down to the waiting car. When we went down a few minutes later, they were in jitters. They nervously explained that the parked car had been blocked by a truck whose driver could not be traced. Nani gave them a puzzled look: “But what’s the difficulty? We can take a taxi.” He himself hailed a passing cab, picked up as many volumes as he could, and started walking towards it. “Sir, but Sir...”, the officers’ entreaties had no effect. After the hearing, snatching a moment with me alone, they confided that they had expected all hell to break loose, instead, they were amazed at Nani’s behaviour. How could

a lawyer of his reputation travel by taxi, and do what he did! Just the previous month, another lawyer from Bombay, whom they had engaged for a civil matter in Calcutta, had insisted on an air-conditioned limousine being at his disposal throughout his stay. As Walter Scott observed that he valued his dignity so much that he never stood upon it. Nor did Nani. Once, when he was deeply engrossed in a conference, a stranger suddenly stepped into the chambers and inquired when his conference was fixed. Obviously, there was some misunderstanding on his part, and Nani told him that there was no such conference noted in the diary. The stranger kept saying something unintelligible in his own language. Nani got slightly irritated and requested the stranger not to disturb him in his conference. The stranger went away. A couple of minutes later, a disturbed Nani abruptly excused himself and left the chambers. After about five minutes, he returned with relief writ large on his face. He had sought out the stranger at the other end of the High Court and apologised for his impoliteness.

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A lady member of the Bar gratefully recalls how she, a raw junior then, happened to meet Nani in court. She asked him if she could see him later for fixing an appointment for personal advice. She was as delighted as surprised to get the reply, “No need for a formal appointment. You may see me in my chamber at any time convenient to you.” An old neighbour of ours, who was a professor in Sophia College, told me a story which the principal of the college later confirmed. While the two were taking a morning walk on Marine Drive, the principal said that she wanted to invite Nani to address the students of the college, but did not know how to approach this man of formidable reputation. The professor merely smiled and straightaway took the principal to Nani who lived nearby. He was in his sleeping suit, having breakfast in his study. Without any reservation he came out, brought them in his study room, and insisted they shared his breakfast. The principal later left with a convenient date for the lecture. Most of those who came in contact with him, even once, have happy tales to tell. A recent one was in a letter to the press a few months ago. The writer as a young law student “with great trepidation” walked into Nani’s office to get his signature on one of his books “expecting to be booted out for such a frivolous request”. Surprisingly for him, the secretary just called on the intercom, and “within a minute I was in front of Mr Palkhivala! He asked me a few personal questions as he was signing it. As I stepped out of Bombay House, I could not believe it and neither did my other fellow students of the Government Law College”. Nani loved his family, his friends, his country, and humanity, as few would do. Among all sections of the Indian people, his highest admiration was for our armed forces particularly for their discipline. For him, they were the pride of India. Whenever military rule replaced a democratically established government in a country, he would tell me that the Indian nation need have no such fear. As far as I know, he had not declined a single invitation to speak

before them. The special love and respect which Nani had for the common man got its response from unexpected quarters. Once my wife was in need of some special kind of genuine silk thread which, she was told, would be available only in

Bangalore, and that, too, not in any big shop but only with a few little-known workers working in a basement situated in a small gully. She flew to Bangalore, requested the workers to collect and send her the samples, and for that purpose, gave them her visiting card. Reading it, the workers inquired whether she was related to Nani Palkhivala. She said she was his sister-in-law, and asked them how they had come to know of him. “Oh,” they said, “We know him very well. All of us attend his lectures whenever he comes here to speak.” And they were happy to meet her requirements with great urgency, enabling her to return to Bombay that very day. On another occasion, a taxi driver was bringing my youngest son home from the airport. In the course of the conversation,

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he learnt that his passenger was Nani’s nephew. On reaching home, as a gesture of respect for Nani, he refused to accept the fare. My son had to virtually force him to take it. “My father taught me compassion and kindness for the less privileged”, he had said while recalling the “almonds” incident 60 years later. ‘““That incident has made a deep impression on me ever since.... I have always treasured that lesson. It has proved far more important than any legacy of land or wealth he may have left for me.” His deep concern for the poor did not permit him to use his wealth and earnings on himself and his family alone. He felt that out of what he earned, he was entitled to keep only what was reasonably needed for his requirements, and the rest he had to hold as a trustee for, “the man with too

weighty a burden, too weary a load”. So he created various charitable trusts, gave donations to charitable institutions, and financially helped those who approached him directly. No one who came to him with empty hands went back empty-handed. The recipients ranged from his poor relatives to the needy in remote places in India and abroad. Amongst his last donations, was one of ¥2,50,00,000 to Sankara Nethralaya, a hospital in Chennai. Nani had an infinite capacity for bearing physical pain. While playing with his school friends, he once dislocated his shoulder but did not speak about it to anyone at home and kept bearing the pain. It was only when a friend came home the next day to inquire after his condition that his parents came to know about the incident. In later life, he had to undergo an operation for appendicitis. When the nurse entered the room to give the pre-operation injection, she found the bed empty and some people talking light-heartedly among themselves. The perplexed lady, with the syringe in her hand, had to inquire of us, “Who is the patient?” Still later, Nani developed kidney trouble, the stone ultimately blocking the urinary tract and causing him immense pain. Many conferences were fixed in the chambers for the evening. When clients for the first conference arrived, I informed them of his condition and was about to cancel all conferences. Just then, to the amazement of all, Nani walked in and stayed on to finish all his conferences. “I feel less pain when I work”, he explained. Ultimately he had to be taken to the hospital to remove the stone. Knowing his nature and tendency, the RMO gave him strict instructions to remain completely in bed for a few days. The very next day, unknown to the RMO and to the consternation of the pleading nurse, Nani quietly slipped out of the hospital, held some meetings in his office, and as quietly slipped back into his hospital bed. I was ever a fighter, so—one fight more, The best and the last!

Nani’s last fight, also his best, which began in 1996 was with himself. His

76-year-old frame, which had already felt the surgeon’s knife six times in the past, was now battered by paralytic strokes, three major and many minor, year

after year. But he worked on, in the hospital, at home, in his office, and outside.

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On being informed one early morning about his first major stroke, my wife and I went to the hospital. He was in bed reading a newspaper, with a stack of foreign newspapers by his side. His speech and left leg had been affected. Still he talked to us, with great difficulty. His wife Nargesh, who was also ill, was

on the opposite bed. While we were talking with her, Nani struggled to leave the bed and proceed towards the bathroom. I rushed to his aid. “No, thanks. Let me do it on my own.” He shaved, bathed and tottered back to his bed. Of course, the doctor was not expected to know what he did. A day or two passed and Nani wanted to be taken home. The doctor, knowing how helplessly he was in love with his work, tried to impose compulsory rest on him by delaying his departure. Nani would have none of it. He got together the two bed tables meant to serve food to him and Nargesh, spread a big tablecloth on them, and he resumed his work at the “desk”. For the first four years, he fought with his gradually weakening body, trying in vain to bring it back to health. In the latter two, after losing Nargesh in 2000, he fought with his rebellious spirit, forcing it to accept the ordained. Loss of speech, inability to swallow food, loss of the use of his fingers and legs, a big tumour near the neck which made it difficult for him to look straight, urinary infection, prostate pain, failing heart—he bore them all, without complaint, without demur, as if he had made friends with his fate. A lady with psychic powers once came to see him. After she was with him for some time in his bedroom, we took her into his study. The moment she en-

tered that room she said, “Oh! May I stay here and meditate a while?” She did not come out till about the time of our leaving Nani. When at last she did, she said, “Only the body of Nani is in his bedroom. His mind and soul are in his study. He lives there. Sri Aurobindo and The Mother are looking after him.” Later she added, “I had so far linked only spirituality with God. Today, for the first time, I came to know that even the intellect can be God’s domain.” For months, I was in deep gloom and wondered why Nani had to suffer so much and so long. The answer came one early morning at about 4.00 a.m., one of those solemn, silent hours when creation speaks. It ran somewhat on these lines: In the intellectual field Nani has achieved the ultimate. This is the last of his lives on the mental plane. In his next life, and thereafter, he will be doing spiritual work with the help of the intellectual wealth he has so far amassed—work of the type done by Swami Vivekananda and Paramhansa Yogananda. Therefore, Nani is now working out the karmas of all his past and present mental lives, so that he can hereafter begin his spiritual work with a clean slate. .

In 1984, Nani had written, “I believe that the journey will be over at the predestined hour, irrespective of the medical care which money can buy.” The journey was over on 11 December 2002. The predestined hour was 5.15 p.m. The medical care was the best which money could buy.

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A couple of days thereafter, while we were returning from the fire temple, our car stopped at a traffic signal on Marine Drive. An aged beggar looked through the glass with a sad face and said, “Malum hai Palkhivala sahib chale gaye?” (Do you know, Shri Palkhivala has passed away?) The last word must lie with Kuldip Singh J of the Supreme Court of India who presented Nani a citation on behalf of the various Rotary Clubs of Bombay in 1997: One feels that he is not a man of this world but someone from outside. I have many times tried to explain him as a man. But it is very difficult. One can only feel his essence and enjoy, as one enjoys the fragrance of a flower or the smile of a child. He is like cool breeze on a warm sunny day. That is Nani, the gentleman. *

*

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A son remembers his father

Navroz H. Seervai*

My father lived a complete life, devoting his time and energy in equal measure to law, literature, his family and his friends. If one had to single out one quality and characteristic of H.M. Seervai, amongst many, one would have to speak of his absolute or inflexible honesty and integrity. For him, truth was sacred and he never swerved from the path of truth and righteousness. Apart from this what comes to mind was his affection and kindness for all; his courteousness to even the most humble person; his courage in fighting causes, but never through improper means. He despised the glib phrase, “The ends justify the means.” He used to say, “Once you swerve from the path of truth, you are on the slippery slope.” It was with justifiable pride that he said that in over 50 years of active practice, he never once shouted in court, or lost his temper in court. But his voice was dominating and could be heard in other courtrooms. Iron willpower and control saw to his not losing his temper, although once in a while, he would say, “I was terribly provoked, but I kept my temper in Court.” Mr Seervai used to quote, with a shaking voice and tears in his eyes, the lines of Walter Scott “Without courage, there cannot be truth and without truth

there can be no other virtue.” My earliest memories of my father are of playing with him as a small child, either at home or in his chamber—Chamber No. 24 on the first floor of the High Court. It was one of his rare qualities, that he somehow found time for his family—however, busy he was. I never once heard him tell my mother, or my sisters, or me, “Later, I’m busy just now.” One incident, to highlight this, sticks Out in my mind. It was in 1973. My sister was in Inter Arts. Dad was in the midst of Kesavananda Bharti v. State of Kerala'. He used to be in Delhi throughout the week and in Bombay at the weekends. One morning, I happened to wake up around 3.30 a.m. and to my amazement, I found dad reclining on the living room sofa with a book in hand and

paper and pen next to him. On questioning him, I discovered he was reading * This article first appeared in the book, Evoking H.M. Seervai-Jurist and Authority on the Indian Constitution, compiled for H.M. Seervai’s Centenary by Feroza H. Seervai in 2005. Initially written for himself, Navroz agreed to publish it at the behest of the editor of this book. With the kind permission of the author and editor, we are reprinting it in this volume. 1. (1973) 4 SCC 225.

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Deductive Logic by Joseph (it was his own copy from the 1920s). He said, “Shilliboo (his pet name for Shirin) is having some problems with the subject, so I’m helping her. She’ll be coming to the Chamber at 10 a.m., so I must be ready for her.” To him, poetry and literature were amongst the most precious things in life. My aunt, Freny Mehta once told me, that he had told her, that through the 10 lean years at the Bar, he sustained himself by learning up poems by heart and by absorbing himself in poetry and literature. He said the same in his talk at Pen on Poetry and Life. When I once asked him about this, he said, “Yes, I used to try and learn at least a couple of poems a week. It kept me going when there was precious little, or no work.” He knew by heart hundreds of poems. And each was recited with body, mind and soul. Scott, Milton, Tennyson,

Browning, Blake, Keats, Shelly, Fielding, Byron, Johnson, the list is endless. But his dearest poet was Wordsworth. A special look suffused his face when he recited Wordsworth’s great sonnets and other poems. Be it “Daffodils” or “Upon Westminster Bridge” or “On the Extinction of the Venetian Republic” or “1812” or any of the other great poems, long or short, he would recite the lines with great feeling and with perfect diction. It was as if the poem, the poet and he were merged into one. It is no coincidence that in the first two editions of his book on the Constitution and in his book Partition of India, he put on the title page, these lines of Wordsworth: “We shall exult if they who rule the land Be men who hold its many blessings dear, Wise, upright, valiant; not a servile band, Who are to judge of dangers which they fear; And honour which they do not understand.” And in his book on the Emergency, these lines, also of Wordsworth: “Enough if something from our hands have power to live, and act and serve the future hour.” Apart from these greats, Shakespeare held a very special place in his heart. Be it the Sonnets or the great lines in the plays, he knew them by heart. Henry V at Agincourt; Hamlet’s great soliloquies; Macbeth’s soliloquy before murdering Duncan, Portia on the Quality of Mercy...the list is endless. But this was not all. Dickens, Trollope, Scott, Jane Austen, Goldsmith, Johnson, Meredith,

Fielding, Samuel Butler, George Elliot and hundreds of others had been read and re-read, and, as he would say, re-re-read. Entire passages from Pickwick Papers or Pride & Prejudice or Esmond or Precious Bane were known to him. His love of knowledge manifested itself in his deep affection for Elphinstone College. He participated in the college’s centenary and its 125th anniversary. On the latter occasion, through his personal efforts, the college collected ¥7.5 lakhs. He was its trustee for almost 40 years—until his death. It was at Elphinstone College that he first met J.C.P. d’Andrade—his professor of Philosophy. It was because of him that he did his BA and MA in Philosophy. Apart from his mother, Meherbai, the greatest influence on father in his early years, was d’Andrade. If there were three persons whom he revered, they were his mother, Prof. d’Andrade and Sir Jamshedji Kanga.

A life-long student of Philosophy, he did his BA with Philosophy and his MA

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by his thesis on “God and Existence”. He voraciously read the great philosophers, Plato, Aristotle, Spinoza, Kant, Hegel, Bradley, to mention only a few. He loved to quote Aristotle on Plato: “Plato is great, but Truth is greater.” He studied Philosophy and he lived his philosophy. His quote of Plato on Socrates was also often repeated to us, “Of all the men of his time, he was the wisest,

the justest and the best.” His knowledge of English history and politics was profound. Once in 1973, when on our first trip to UK, he and I were at Pitt’s Cottage, and some lines were inscribed over the fire place, to the amazement of the English guide, English tourists and others, dad said, “Oh Scott—But what a pity that the next few lines were not inscribed.” And in his mellifluous voice, he recited the lines “Now is the stately column broke; The beacon light is quenched in smoke...” and he completed the last stanza. A tourist said, “Are you a professor of history or literature at Oxford or Cambridge?” Dad laughed and said, “No, no, no! I’m

a lawyer from India, but these lines are so famous, everyone knows them.” Of course, nobody but he, knew them in the whole group! At a celebration for the 4th of July, at the US Consulate in Bombay, dad amazed the Vice Consul by reciting Abraham Lincoln’s second inaugural address. And then rattled off the Gettysburg address. At home he said, “The silly chap didn’t even know that, Lincoln had made one of his greatest speeches at his Second Inaugural.” And I said, “But dad, everyone isn’t steeped in history and prose like you.” “But surely an American should know of Lincoln’s great speeches”, he retorted, with just a hint of irritation.

We children owe it to dad that we know so much poetry and prose and so many speeches by heart. We would hear him recite a poem repeatedly and learn it over a period of time. My daughter, Shanoor learnt her first poem in the same manner from my dad. If he was familiar with the life and times of Cromwell, Pitt the Elder Pitt the Younger, Chatham, Bright, Fox, Peel, Gladstone and Disraeli, his knowl-

edge of, and familiarity with, the life of Churchill was in a class of its own. Apart from having read almost every book by Churchill, he had read dozens of books on Churchill. He was proud of the fact that he had heard almost all of Churchill’s great war-time speeches live on the BBC. To him, a visit to Chartwell & Blenheim Palace (in 1973) was both a pilgrimage and a source of intense pleasure. If the tourists at Pitt’s Cottage were surprised at his knowledge of Pitt and of Sir Walter Scott, those at Chartwell were amazed. He virtually took over from the guide. It was hilarious—H.M. Seervai with his little group and the guide with her little group! At Blenheim, knowledge of Churchill was complemented by knowledge of the first Duke of Marlborough and his war campaigns and his great victories, including at Blenheim. Father was, above all else, a perfectionist. He took infinite pains to achieve his exacting self-imposed standards. As a school child, I remember dad reading Lancelot Hogbein’s Mathematics For The Millions; and several standard books on physics, for the Krishna River Water: Dispute. Eric Saldanha, a top

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engineer with the Maharashtra State Government told me years later of dad’s absolute mastery of the technical aspects of the case. In the court fees case, since government did not provide facts and figures, dad obtained two passes to the Legislative Assembly from his old friend Bobby Dalal, former RLA, and we spent three days pouring over the budget books to get at all the relevant figures. At that time, he was 74 or 75. No case, howsoever, small or unimportant it may be, passed through his hands, without the facts being thoroughly mastered and the law thoroughly researched. This I learnt, amongst others, from Atul Setalvad. Once as a very raw

junior, I complimented Atul on having dug out all the relevant law for a writ petition—at the admission stage. He looked askance at me and said, “What are you congratulating me for? It’s nothing more than what your father did for every matter of his. We have only learnt from him.” But over and above the law, his books, his poetry, was his family. His love and affection were overwhelming and all consuming. As adolescents, it sometimes proved irksome and we would rebel. He would let us blow off steam, berate him, sometimes even shout at him and then without raising his voice, he would calmly say, “You are right, but I’m made that way, and I’m too old to change. I can’t help my anxiety when you all come home late at night. So I will stay up, but please do come home as late as you like.” He was never happier than with his family and in the last decade or so, he revelled in the company of his grandchildren. His love for children manifested itself and flowed over for his grandchildren. I believe that he considered his happy family life as being of infinitely greater value than success at the Bar, the success of his books and the honours and awards bestowed upon him. For this, he did refuse judgeship of the Supreme Court in 1956. Had he accepted, he would have had a tenure of 15 years as a judge, 5% years as a Chief Justice. For this and for his book, he did refuse Attorney Generalship in 1971 for he did not want to disrupt his family life in Bombay and felt that the move to Delhi would inevitably disrupt the family life. But it was not only his family upon which he lavished his love and affection. He was a devoted and loyal friend. Many of his friends were of over 50 years’ standing. He visited them when they got old (Manekshaw, P.B. Vaccha) or when they were ill (Prof. d’Andrade, Porus Mehta, J.C. Bhatt, Rasesh Bhatt). In the last few years, he repeatedly visited and met Jehangir Dubash, Sorab Vimadalal or Rustomjee Andhyarujina who was a friend for well over 75 years,

the friendship going back to school days. Churchill said of his dear friend FE. Smith that he did not need a statue or memorial to remember him, for his greatest memorial was that he would live in the hearts of men. My father loved these lines. I believe they equally apply to him. How to sum up his life and what he stood for? It can only be in the poetry or prose he loved. He was fond of so many and quoted them appropriately as the occasion demanded. These were some of his favourite lines:

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Without courage, there cannot be truth, and without truth there can be no other virtue.

—Sir Walter Scott

Heaven doth with us as we with torches do, Not light them for themselves... —Shakespeare, Measure For Measure In our heart of hearts believing Victory crowns the just; And that braggarts must Surely bite the dust; Press we to the field ungrieving, In our heart of hearts believing

Victory crowns the just. —Thomas Hardy The woods are lovely, dark and deep

But I have promises to keep; And miles to go before I sleep

And miles to go before I sleep. —Frost

But two sets of lines, I believe, sum him up better than most. The first are the magnificent lines of Milton, unmoved

Unshaken, unseduced, unterrified,

His loyalty he kept, his love, his zeal, Nor number, nor example with him wrought To swerve from truth, or change his constant mind.

—Milton

In a recollection written by him in 1950 under extreme emotional pressure, on the death of Prof. d’Andrade, my father chose these lines to describe his

beloved professor. He wrote: But the words which seem most applicable to him are the words which were written about a humble man by a man with a very great heart:

His virtues walked their ample round Nor made a pause, nor left a void,

And sure the Eternal Master found

His shining talents well employed.

My father substituted “ample” for “narrow” and “shining” for “single”. I truly believe that if my father had, had to choose some lines to sum it all up, he would have chosen these favourite lines of Johnson.

Section Three

Critical Papers

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The untold story of how “Kesavananda Bharati” and the basic structure doctrine survived an attempt to reverse them by the Supreme Court* T.R. Andhyarujina**

Few persons know that the most momentous judgment of the Indian Supreme Court in constitutional law delivered on 24 April 1973 by the largest Bench of 13 judges in Kesavananda Bharati v. State of Kerala! (Kesavananda Bharati) was subjected to a serious attempt to overrvle it by a review by another Bench of 13 judges for two days on 10 November 1975 and 11 November 1975 but on the third day, the review was suddenly and inexplicably abandoned and the 13-Judge Bench was dissolved. The circumstances under which the review was made and given up have for long been clouded in mystery and, lawyers and judges have speculated about it till now. No official record or report exists of this attempt to review Kesavananda Bharati judgment. The review took place during the height of the Emergency when even the reporting of courts’ judgments by the press was restricted. Today, it is possible to piece together the full story of this important event in our constitutional history from a few published and mostly unpublished accounts, memoirs of some of the participants in the review and interviews by this writer and others, of judges constituting the reviewing Bench. It is a story as dramatic as instructive. It is an extension of the saga of the extraordinary circumstances in which Kesavananda Bharati itself was heard for five months between 1972-1973. As a matter of interaction of constitutional law with politics of the day as well as for difficulties in formulating the abstruse concept of the basic structure of the Constitution, the story of Kesavananda Bharati and the attempted reversal of Kesavananda Bharati require to be widely known. In the US, landmark Supreme Court decisions in Marbury v. * This article first appeared in (2009) SCC J-33 and we are reprinting in it in this volume with the kind permission of the author. ** Senior Advocate, Supreme Court of India, former Solicitor General of India (1996-1998),

Advocate General of Maharashtra (1993-1995). He also appeared in Kesavananda Bharati. 1. (1973) 4 SCC 225.

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Madison?, Dred Scott v. Sandford?, Brown v. Board of Education*, have been commented on for their political and social background as well as for the actual decision making by judges. Such an exercise has not been done for any important case of the Supreme Court of India. Kesavananda Bharati is one case which requires to be related in its political background and the actual decision making to understand it. As an active participating lawyer in the 76 days’ hearing of Kesavananda Bharati spread over five months in 1972-1973 and being privy to some of the inside goings-on in that case, I have maintained that the so-called decision in Kesavananda Bharati that Parliament has no power to amend the basic structure of the Constitution—was not truly the decision emerging from 11 judgments in that case. We now know that prior to the hearing of that case, the government appointed some judges who appeared to have pro-government leanings. The manner of hearing and deciding that case by a faction-ridden Bench of 13 judges did not lend itself to a dispassionate decision free from tensions in that case. Most importantly, some of the judges had preconceived ideas on Parliament’s power to amend the Constitution which they maintained throughout the hearing. I have written of this and spoken on it earlier. 1. Background of the review 1.1.

“THE VIEW OF THE MAJORITY” IN ““KESAVANANDA BHARATI”

It is important to note how the review of Kesavananda Bharati came about. The 11 judgments in Kesavananda Bharati were controversial from the moment they were delivered in the court on 24 April 1973. At the end of the delivery of the judgments by the 11 judges, Sikri CJ produced, “The view of the majority” by way of six propositions for the signatures of all the judges. Proposition 2 of “The view of the majority” was “Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.” “The view of the majority” was not debated or considered in open court before it was given to the other judges to append their signatures. Four judges, A.N. Ray, K.K. Mathew, M.H. Beg and S.N. Dwivedi JJ visibly and almost indignantly refused to sign it in open court. It was signed by the remaining nine judges of the court. Only the court archives show this. The law reports do not reveal this significant fact. One of them even mixes up “The view of the majority” with the order of the court. The order was signed by all the 13 judges. It merely stated: The Constitution Bench will determine the validity of the Constitution (Twentysixth Amendment) Act, 1971 in accordance with law. The cases are remitted to the

Constitution Bench for disposal in accordance with law. There will be no order as to costs incurred up to this stage.

2. 2 LEd 60: 5 US (ICr) 137 (1803). 3. 15 LEd 691: 60 US 393 (1856). 4, 98 L Ed 873: 347 US 483 (1953).

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Subsequently, in the course of the hearing of its review, some judges of the Kesavananda Bharati Bench maintained that “The view of the majority” was not a correct summary of the 11 judgments. 2. Supersession of judges On the very next day of the delivery of the judgments on 25 April 1973, Sikri CJ was to retire. The next day, ignoring the seniority of three seniormost judges viz. J.M. Shelat, K.S. Hegde and A.N. Grover JJ who had in their judgments subscribed to limitations on the amending power of Parliament and who had signed “The view of the majority”, to the surprise of the Bar and the public, the government appointed A.N. Ray J as the next Chief Justice of India. Ray J (with Mathew, Beg, Dwivedi, Palekar and Chandrachud JJ) had held that

Parliament’s power to amend the Constitution was unlimited supersession of the three senior judges was seen by the Bar as a disapproval of their judgments in Kesavananda Bharati and as undermining the independence of judges by appointing a Chief Justice pliant to the government. The supersession led to strong protests from lawyers throughout India. Shelat, Hegde and Grover JJ resigned, creating considerable tension in the Supreme Court Bar and in its Bench. It made the Kesavananda Bharati verdict highly controversial, legally and politically. The government and almost all sections in Parliament were highly critical of it. 3. “Indira Nehru Gandhi case’”

In this climate of tension prevailing in the Supreme Court, an unexpected development took place on 12 June 1975 when Sinha J of the Allahabad High Court held Indira Gandhi guilty of two corrupt electoral practices under © Section 123(7) of the Representation of the People Act, 1951, and disqualified her for six years in an election petition by Raj Narain. However, the judge stayed his judgment for 15 days to enable Indira Gandhi to seek a stay pending her appeal to the Supreme Court. The Allahabad High Court’s decision was made during the vacation of the Supreme Court. Krishna Iyer J was the Vacation Judge before whom urgent applications for stay of judgments would have to be made. We have it now from Iyer J in his memoirs® that within minutes of the delivery of the Allahabad High Court judgment at 10.30 a.m., the then Union Law Minister, Mr H.R. Gokhale without any reason, sought to meet him at his residence. Iyer J querried the Law Minister for the purpose of the meeting. The Minister said, “The verdict in the Prime Minister’s case had

gone against her in the High Court. You are the Vacation Judge. So to file the appeal and to seek stay of the order I wish to meet you”. Iyer J declined to meet the Law Minister and told him to tell her advocate to file the appeal. 5. Indira Nehru Gandhi v. Raj Narain, (1975) 2 SCC 159.

6. Krishna lyer, “Before the Emergency and After” in Off the Bench, 1-2.

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4. Hearing of Indira Gandhi’s application for stay In a day-long hearing on 23 June 1975 before lyer J in the court, Mr N.A. Palkhiwala appearing for Indira Gandhi pleaded passionately for an immediate unconditional stay of Indira Gandhi’s disqualification in national interest. This was opposed by Mr Shanti Bhushan appearing for Raj Narain. On 24 June 1975, Iyer J in a written judgment and order declined to grant a total stay of the Allahabad High Court’s judgment but by a conditional order allowed Indira Gandhi to attend Parliament as a member and as the Prime Minister to participate in its proceedings without any vote, pending the final decision in the election appeal. Mr H.M. Seervai considers this the finest hour of the Supreme Court.’ This order was considered an affront to the Prime Minister. The immediate effect of this order of Iyer J was a Proclamation of Emergency signed by the President of India, Mr Fakhruddin Ali Ahmed at midnight on the same day. It was published early the next day on 25 June 1975 and following upon it, the Fundamental Right under Article 21 was suspended, leading opposition members were preventively detained, censorship was imposed and later some judges of the High Court were transferred. 5. Parliament’s efforts to validate Indira Gandhi’s election

Whilst Indira Gandhi’s appeal was pending in the Supreme Court, on 10 August 1975, Parliament enacted the Constitution (39th Amendment) Act, 1975 inserting Article 329-A in the Constitution by which a dispute of a Prime Minister’s election was retrospectively taken out of the jurisdiction of courts and freed from ordinary election laws and it was enacted that no election of a Prime Minister would be declared void by any court. Parliament also passed the Election Laws (Amendment) Act, 1975 (Act 40 of 1975) by which electoral offences for which Indira Gandhi was disqualified under the Representation of the People Act, 1951 by the Allahabad High Court were retrospectively nullified by changing the law. Thus, Indira Gandhi’s election was sought to be validated by these amendments to the Constitution and to the election law. 6. Basic structure theory raised in Indira Gandhi’s appeal On 25 August 1975 Indira Gandhi’s appeal came up for hearing in the Supreme Court before a Constitutional Bench of five judges which comprised of Ray CJ, H.R. Khanna, Mathew, Beg and Chandrachud JJ. Mr Ashok Sen now appeared for Indira Gandhi as Palkhivala had returned her brief on the proclamation of Emergency. Indira Gandhi relied upon the Constitution (39th Amendment) Act, 1975 and the Election Laws (Amendment) Act, 1975 for setting aside her disqualification and allowing her appeal. Thereupon, Mr Shanti Bhushan, counsel for Raj Narain challenged the validity of the amendments as destructive of the 7. H.M. Seervai, Constitutional Law of India, Vol. 2 (4th Edn.) 2206.

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basic structure of the Constitution and relied on Kesavananda Bharati. The Attorney General, Mr Niren De to whom notice was given by the court appeared to defend the amendments. The appeal largely turned on the question of whether Article 329-A inserted by the Constitution (39th Amendment) Act, 1975 destroyed various concepts of the basic structure of the Constitution following Kesavananda Bharati. The five-Judge Bench hearing Indira Gandhi’s appeal were bound by the decision of 13 judges in Kesavananda Bharati. In the course of his arguments, the Attorney General Mr Niren De was highly critical and at times quite scornful of the theory of the basic structure of the Constitution. 7. Attorney General’s application and order for review of “Kesavananda Bharati”

On |! September 1975 whilst Indira Gandhi’s appeal was being heard, the Attorney General, Mr Niren De along with the Advocate General of Tamil Nadu made an oral application to the Chief Justice for early hearing of certain petitions in land ceiling cases in which the question of violation of the basic structure of the Constitution was involved. On 9 October 1975, the arguments

in the election appeal were concluded and judgment was reserved. Even before the judgment was delivered, on 20 October 1975, Ray CJ issued a written order that the court would hear arguments on 10 November 1975 on two matters: 1. Whether or not the basic structure doctrine restricted Parliament’s power to amend the Constitution? 2. Whether or not Bank Nationalisation case* had been correctly decided? For this purpose, a 13-Judge Bench was to be constituted. A review of an earlier judgment is ordered by the court only after a judicial hearing by a Bench which feels a doubt about its correctness. No such hearing had taken place before the Chief Justice made the order for review on the application of the government. The Chief Justice’s order for review was also not reported or known to the other judges of the Supreme Court. Indeed H.R. Khanna J records in his memoirs that he was taken by surprise when he heard of it from a colleague who told him that in the “prevailing atmosphere of the Emergency it would not be difficult for Government to have a favourable decision”. For one thing, it was believed that there would be no counsel of stature to vigorously argue for limitations on Parliament as had been done for five months in the hearing of Kesavananda Bharati in 1972-1973. 7.1.

INDIRA GANDHI’S APPEAL ALLOWED BY THE SUPREME COURT

On 7 November 1975, the election appeal of Indira Gandhi was allowed and the Allahabad High Court judgment, disqualifying her, was set aside.'® For 8. R.C. Cooper v. Union of India, (1970) 1 SCC 248. 9. H.R. Khanna, Neither Roses Nor Thorns, 73.

10. Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1.

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this, the court relied on the amendments to an ordinary law, the Representation of the People Act, 1951 which had retrospectively removed her disqualifications in her case but the court held that the Constitution (39th Amendment) Act, 1975 was unconstitutional. Four out of the five judges viz. H.R. Khanna, K.K. Mathew, M.H. Beg and Y.V. Chandrachud JJ applied different and contradictory concepts of the basic structure of the Constitution to invalidate the Constitution (39th Amendment) Act, 1975 but Ray CJ held that it was invalid for other considerations without expressly stating that it violated the basic structure of the Constitution. The Chief Justice made a significant reservation

in his judgment that “the hearing has proceeded on the assumption that it is not necessary to challenge the majority view in Kesavananda Bharati case”. 7.2.

13-JUDGE BENCH CONSTITUTED TO HEAR THE REVIEW

Following the order of the Chief Justice of 9 October 1975, a 13-Judge Bench commenced hearing of the review of Kesavananda Bharati on 10 November 1975. The Bench consisted of A.N. Ray CJ, H.R. Khanna, K.K. Mathew, M.H. Beg, Y.V. Chandrachud, P.N. Bhagwati, V.R. Krishna Iyer, P.K. Goswami, R.S. Sarkaria, A.C. Gupta, N.L. Untwalia, S.M. Fazal Ali and P.M. Singhal JJ. To the surprise of everyone, N.A. Palkhivala who was the principal exponent of limitations on the amending power of Parliament in Kesavananda Bharati in 1973, but who had returned the brief of Indira Nehru Gandhi on the proclamation of Emergency, now appeared in one of the petitions for a coal mining company to oppose its review by the court. 7.3.

PALKHIVALA’S LETTER TO INDIRA GANDHI

Mr Palkhivala felt so strongly against the review that one day prior to the hearing on 9 November 1975 with doubtful propriety, he wrote a long letter to Indira Gandhi, the then Prime Minister.'! In the letter addressed to her as “My Dear Indiraji”, he felicitated her on her victory in her election appeal, praised her personal qualities but implored her in the interest of the nation to stop the reconsideration by the Supreme Court of what he considered as the most vital basic structure doctrine of the Constitution. He pleaded that if Parliament was given an unlimited power of amending the Constitution, democracy and the unity and integrity of the country would vanish, and after her, there would be nobody to hold the entire country together. He wrote that the basic structure of the Constitution was the real safeguard of the minorities and with limitless amending power, the rule of law would disappear. He stated that her own election appeal had been argued in the Supreme Court on the basis that Kesavananda Bharati represented the law of the land and it would be strange that within three days of the historic judgment in her favour, the court should consider whether that very case should be overruled. He concluded by writing: 11. The lengthy letter of Mr Palkhivala Palkhivala—A Life, 190-194.

is reproduced

by MV.

Kamath

in Nani A.

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The hearing in the Supreme Court on correctness of Kesavananda case begins tomorrow. It need not continue unless the Government wants it to. Believe me, my respectful appeal to you is not made out of any lack of confidence in the case for holding Parliament’s amending power to be limited, but it is based upon my belief that it would be a great gesture on your part to withdraw the State’s plea for unsetting the law. I shall be very happy to call upon you if you so desire.

It is a matter of speculation, what Indira Gandhi did on receipt of Mr Palkhivala’s

letter and whether it was acted upon in some way? Did the Attorney General receive instructions from her? We do not know. I myself had understood from Mr Palkhivala towards the end of his life that he had met Indira Gandhi but my impression is strongly refuted by his brother, Mr Behram A. Palkhivala in a letter to me. 8. Hearing of the review 8.1.

HEARING ON 10 NOVEMBER

1975

Despite Mr Palkhivala’s plea to Indira Gandhi, the hearing of the review did commence on 10 November 1975 to a packed central court of the Supreme Court. There is no official record of the hearing but we have brief accounts from observers of the arguments made on 10 November 1975 and 11 November 1975.'” On 10 November

1975, at the outset, Mr Palkhivala raised preliminary

objections to the review of Kesavananda Bharati. First, he argued that the Kesavananda Bharati judgment could not be reviewed as the court in that case had directed that six petitions would be decided in the light of the law laid down in that case. He argued that as long as those six petitions were pending before the court, this court cannot review Kesavananda Bharati which was res judicata for these six cases. More plausibly, Mr Palkhivala argued that no case had been made out to review the basic structure theory and there was no case in which the court had expressed difficulty in applying the theory. He was referring to the fact that the order for the review had been made by the Chief Justice by a mere administrative order on the oral request of the government. He urged that in any case it was most inopportune to review Kesavananda Bharati during the time of Emergency. He then made out a powerful case of the consequences of unbridled power of amendment of the Constitution if the limitation of the basic structure was revised by the court. He referred to the proposed 41st Amendment to the Constitution which if passed by Parliament would give immunity for the most heinous crimes committed by a political person who became a Governor. 12. Some accounts of arguments are given by Mr Prashant Bhushan in his book. The Case that Shook India, 256-267. Mr Bhushan was present in the court. We have also an account based on Mr Bhushan’s version and interviews of observers in Granville Austin, Working of a

Democratic Constitution, 328-133 and in The Supreme Court of India—A Social Legal Critique of its Justice Technique by Rajeev Dhavan and M.V. Kamath in his biography of Mr Palkhivala, 419-442. Mr Palkhivala’s written submissions given to the court are reproduced in M.R. Pai, Legend of Nani Palkhivala, 1-17.

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Whilst the first objection of Mr Palkhivala did not receive serious consideration, the later objections of Mr Palkhivala had a powerful impact. Argued with great force and eloquence, he held the court and spectators spell-bound. Mr Palkhivala was at all times a master of advocacy when he developed the unacceptable consequences of a situation in law. He did this with telling effect in this case, sometimes derisively countering the arguments of some judges who found difficulties in the basic structure theory and its vagueness and uncertainty. Several observers, including Khanna J’*, who saw Mr Palkhivala’s performance that day, believe that the height of eloquence reached by him on that day will never be surpassed in the Supreme Court. Much of the arguments turned on how and why the review of Kesavananda Bharati had been ordered by the Chief Justice. At one stage, the Chief Justice said that the request for the review had even come from the petitioners which Mr Palkhivala hotly denied as incredible. The Chief Justice then stated that the Tamil Nadu Government had asked for a review upon which Mr Govind Swaminathan, the Advocate General for Tamil Nadu, promptly got up to deny that any such request had been made by him. 8.2.

HEARING ON 11 NOVEMBER

1975

On the next day, 11 November 1975, the Attorney General replied to Mr Palkhivala’s preliminary objections. He argued that Mr Palkhivala had delivered a political lecture in the guise of preliminary objections. He stated that the decision to review was taken by the court for good reasons as with the basic structure doctrine, the constitutional situation was chaotic. Following

Kesavananda Bharati, every constitutional amendment was being challenged in the various High Courts and nobody including the Supreme Court judges were sure of what the basic structure of the Constitution was. In these circumstances, he pleaded that it was essential that the court cleared up the situation. Interestingly, Mathew and Beg JJ stated that they did not agree that “The view of the majority” signed by nine judges correctly stated the result of the 11 judgments in Kesavananda Bharati. On the other hand, Chandrachud J said that it was a correct summary. At this stage, several questions were put to the Attorney General by judges if there was any pending case in which the court had found any difficulty in applying the basic structure concept. The Attorney General could not point out any petition listed on board in which there would be any difficulty in applying the basic structure principle. Except one petition, the listed petitions related to right to property which had been declared as not a basic structure of the Constitution in Kesavananda Bharati. The only case which was not a property case was a challenge to the Constitution (32nd Amendment) Act, 1973 which had set up an Administrative Tribunal in Andhra Pradesh for deciding service matters excluding the jurisdiction of courts. 13. H.R. Khanna, Neither Roses Nor Thorns, 74.

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At this stage, the Attorney General was asked searching questions by some judges:" Justice Khanna: Has the theory of basic features impeded any legislation about socio-economic measures? Mr De: Socio-economic measures are not the only thing, important as they are. The very structure of the Government is the fundamental object of the amending process. You don’t need the amending power for non-essential features of the Constitution. . Justice Untwalia: Is there any example where the Government wanted to amend the Constitution in public interest and has been prevented by the basic feature theory? Mr De: Take the case of the Thirty-ninth Amendment. Justice Untwalia: I am talking of amendments in public interest. Mr De: The point is that Parliament doesn’t know what it can do. It doesn’t know where it stands. We must know where we stand. Mr De pleaded that the case be reconsidered as there were many fundamental issues involved in the case. Justice Krishna Iyer: The same plea can be advanced the very next day after reconsideration. You can still say that it is very important and must be reconsidered. The point is, what has really happened to justify a second look at the ruling? Mr De told the court that there was a tremendous amount of uncertainty in the country about the meaning of the basic structure theory. Justice Krishna Iyer: Are you asking for a clarification of the basic structure, or do you want us to annihilate the theory? Mr De: Mr Palkhivala has raised preliminary objection that we can’t go into that case. At least the court can go into it to clarify it. Justice Bhagwati: This is a matter of application of the case. Every judge can have his own view as to what the basic structure is. We need not review the case for that. Mr De: All over India, litigation is going on on the concept of basic structure. Are we going to tolerate a situation where different High Courts give different judgments on the same concept? Justice Krishna Iyer: Are you assuming that after reconsideration we will get a homogenised version? Justice Chandrachud: There will be difference of opinion in every case. You cannot prevent that. On this note, the hearing stood over for the next day. 8.3.

EVENTS OF THE FINAL DAY—12 NOVEMBER

1975

On the next day, 12 November 1975, the Bench assembled to a packed court for resumption of the arguments. Hardly had the 13 judges taken their seats, when 14. Reproduced from Prashant Bhushan’s, The Case that Shook India, 265.

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to the surprise of all, the Chief Justice stated that “This Bench is dissolved”. He

observed that for two days arguments were found “to go in the air”. He directed that a Constitution Bench would hear the petition from Andhra Pradesh which had challenged the Administrative Tribunal in Andhra Pradesh created by the Constitution (32nd Amendment) Act, 1973 and that Bench could refer the case to the Full Court if it found any difficulty in applying Kesavananda Bharati. 9, Reasons for the sudden end

The sudden end of the review hearing took everybody in court including Mr Palkhivala by surprise. The reason for it has remained a mystery till now. What was the reason for it? We now have some revelations. It appears that Mr Palkhivala’s arguments that there was no case in which the court had found difficulty in applying the basic structure had made a big impact on some judges. Iyer J, for one, felt this. What followed is best expressed in Iyer J’s own words. He says, Hearing him (Palkhivala) at some length, I was inclined to the view that the objection merited serious consideration. As we rose, retiring for the day to reassemble the next day to continue arguments, I told Mathew J about my tentative response to Mr Palkhivala’s submissions. I confided in him my opinion that the question of basic structure did not appear to arise in this case and the point raised by Mr Palkhivala needed weighty consideration. I did not tell him what the reaction of any other Member on the Bench was. We left for home to meet in the chambers of the Chief Justice the next morning as was our wont. Maybe, the Chief Justice of India was inclined to a contrary view, like Mathew J. However, my individual response to Mr Palkhivala’s contention was perhaps misunderstood by Mathew J, for, I gathered whether it was accurate information or a mere guesswork is not beyond doubt—that Mathew J told Ray CJ that I had ganged up a number of judges on the Bench to my pro-Palkhivala view. It looks as if this first flush opinion expressed to Mathew J by me, which was unwittingly exaggerated by him into a gang-up conclusion, infuriated the Chief Justice. The next morning when all of us gathered, as usual, in the Chief Justice’s chambers,

his face expressed his indignation. In impatient irritation, as it were, he remarked “that everything was in the air” so far as the part-heard case was concerned. Then all of us moved on to the Bench and took our seats with appropriate decorum. The Bar was full in the hall and suspense prevailed when the case was called. Immediately, the learned Chief Justice announced with authoritative brevity that the Bench was being dissolved and thereby put an end to the hearing. All of us rose, returned to our chambers to proceed with other cases assigned to us. How, Mathew J, without any further discussion with me, came to the unwarranted view that I had ganged up other colleagues with me, I do not know. It is still a mystery inside an enigma. Or was there some missing element which I was not aware, especially because the Chief Justice for whom I had reverence had not asked me a word about my view of the case? This is the story of the dissolution

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of the Bench and Kesavananda Bharati ruling surviving without its uncertain.

frontiers spelt out.!5

We have another version from the late Chandrachud J. Mr M-V. Kamath who has written a biography of Mr Palkhivala refers to Mr Palkhivala’s letter to Indira Gandhi and to the unexpected end of the hearing on 12 November. He interviewed Chandrachud J in 2006 for an explanation for the sudden end of the hearing. Chandrachud J gave his own explanation which was in Mr Kamath’s manuscript but for some unknown reason is not reproduced in his book on Mr Palkhivala. It has been given to me by his brother Mr Behram Palkhivala. It is as follows: Since Chandrachud was one of the judges in the review of Kesavananda Bharati, he was asked if the case was dropped at the behest of the Government or Indira Gandhi. Chandrachud said, Nothing of that sort. The Bench of 13 Judges was dissolved because none of us was with the Chief Justice. All 12 of us were against it (i.e. the review). After the case was ably argued by Nani, the Chief Justice looked here, there and at everyone. He found everyone against it. How can you change a judgment? With great respect to Justice A.N. Ray, he was not a great jurist or anything. He was a very obstinate type of person. On the contrary, the Government was amazed. It lasted one hour when we al! sat together. After it, he found that people were laughing at him. We too were whispering into each other’s ears, virtually making jokes at the Chief Justice. And suddenly he said, ‘The Bench is dissolved.’ We too were very surprised.

Chandrachud J’s recollection appears to me not accurate. For one thing, not all 12 judges were against the review. Mathew and Beg JJ and, possibly Iyer J, in principle at least, were in favour of a review of the basic structure theory. It is also not correct that the hearing on 12 November lasted as long as one hour. It was over in a few minutes and therefore, the laughter in the court at the Chief Justice or making jokes at him does not appear to be correct. In 2009, when I asked Bhagwati J who was also a member of the Bench about his recollection and the explanations given by Iyer and Chandrachud JJ, he was also inclined to think that Iyer J’s account was probably correct and did not think that Chandrachud J was correct. Unfortunately, despite a request, I have not been able to get the version of Ray J. From all accounts, it does appear that the Chief Justice felt uncomfortable at the doubts expressed by some of his colleagues and the manner in which he had ordered the review. But, however, wrongly the review was ordered, it was even more wrong to dissolve a Bench without any reason in the manner the Chief Justice did. No one objected to that except an editorial comment in the Calcutta Weekly Notes.’ 15. V. Lakshmanan, Justice Krishna Iyer, Stroke of Genius reproducing article by Krishna Iyer, “There was no Hidden Agenda Mr Nariman” October 2005 The Hindu. 16. (1975) 80 CWN 21.

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10. The basic structure theory survives

In this manner, the basic structure doctrine survived a review and possibly a reversal. Never thereafter has it been suggested that it should be reconsidered. The basic structure doctrine has now become a mantra of our constitutional law and is accepted without demur and applied in subsequent cases as such by the Supreme Court of India’. It has been accepted by the Supreme Court of Bangladesh"®. It is not clear whether the basic structure doctrine has been accepted in Pakistan. The latest judgment there does not favour the doctrine’’. The Sri Lankan Supreme Court”? and the Malaysian Supreme Court have rejected it”!. In India, a maladroit attempt to review it has contributed to its standing for all times. Constitutional law is as much an accident of history as of political events. Nothing illustrates this better than the basic structure doctrine purported to be prescribed by Kesavananda Bharati and preserved by its abortive review.

17. Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625; Waman Rao vy. Union of India, (1981) 2 SCC 362; P. Sambamurthy v. State of A.P., (1987) 1 SCC 362: (1987) 2 ATE 502:

Nagaraj v. Union of India, (2006) 8 SCC 212; I.R. Coelho v. State of T.N., (2007) 2 SCC 1. 18. Anwar Hossain Chowdhury v. Bangladesh, 1989 BLD (AD) (Spl) 1. 19. Pakistan Lawyers Forum vy. Federation of Pakistan, PLD 2005 SC 719. For a review of case law in Pakistan on the subject, see, R. Fazal Rahim, Judicial Review of Public Actions, 1249-1265. 20. Thirteenth Amendment (Const.) 1.

to the Constitution

& Provincial Council Bill, re, 1990 LRC

21. Phang Chin Hock v. Public Prosecutor, (1980) 1 MLJ 70.

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Random recollections: Revisiting ‘“Kesavananda Bharati” from a personal perspective Anil B. Divan*

When the Centre of Public Law of ILS Law College, Pune requested me to write an article on “Experimenting with the Basic Structure Doctrine: A Lawyer’s Perspective” as a topic, I thought that I would rather select a topic of my choice. I would not like to add to the considerable erudite and scholarly literature and comments on the case.' The opinion of 11 learned Justices and their critical analysis is a daunting task which is best left to an academician particularly because the basic structure doctrine is now almost universally accepted and applauded in India. So I chose the easier alternative of indulging myself with some “random recollections”—some interesting, some amusing and some displaying the tensions between the principal “dramatis personae” in the case—both judges and lawyers. All the 13 judges are no more—the last to leave us being Chandrachud J. Mr Palkhivala, Mr Seervai and Mr Niren De have also departed. Among the other counsel who appeared, Soli Sorabjee, myself, Sandip Thakore, and T.R. Andhyarujina are all in the 70s. Before memories fade further, it is best to record some anecdotal material which may be lost with the passage of time. It is in that spirit that I attempted this article. Mr Palkhivala’s opening argument commenced on 31 October 1972 and ended in December 1972. The total hearings took place for about 66 days. Normally, the hearings were on Tuesday, Wednesday and Thursday, as Monday and Friday were for miscellaneous matters. We used to go to Bombay on Thursday evening and return on Monday evening. I was briefed with Sandeep Thakore for the sugar factories of Maharashtra and was instructed by M.L. Bhakta, Solicitor (Kanga & Co.) and D.M. Popat, Solicitor (Mulla & Mulla). We were in the Palikhivala team. Mr Palkhivala was a part-time professor in the Government Law College during 1949-1951 * The author is Senior Advocate in the Supreme Court and he appeared in Kesavananda Bharati. Copyright with the author. 1. See, Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.

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and he taught us Jurisprudence and Evidence. Soli Sorabjee was also appearing for some supporting petitioners. J.B. Dadachandji instructing us was the doyen of Advocates on Record. He was always the first choice because his firm had a strong infrastructure and support system of staff, juniors, stenos and cyclostyling systems. Mr Palkhivala and Dadachandji were good friends and had fought and succeeded in R.C. Cooper v. Union of India? (commonly known as Bank Nationalisation case) and Madhav Rao Scindia v. Union of India’ (commonly known as Privy Purse case).

Mr Palkhivala’s accepting the brief for the petitioners was uncertain till about a fortnight before the case started. He was hesitant because of time constraints as the case was likely to take a lot of time. In fact, it started on 31 October 1972 and Mr Palkhivala’s opening address concluded only in December 1972. M.C. Chagla, former CJ, Bombay who was then practising in the Supreme Court was to commence the leading argument for the petitioners in the event of Mr Palkhivala not taking up the case. Mr Palkhivala had the greatest admiration for Chagla and in his early years, he leapt to fame in Chagla’s court with considerable encouragement from the Bench. Chagla, however, felt that Mr Palkhivala, who was at the height of his unrivalled powers as an Advocate, must present the opening arguments in such a seminal and important case. Chagla used his enormous personal charm and influence to persuade Palkhivala to take up the responsibility of arguing the case. Maybe, in Mr Palkhivala’s absence, the decision may have gone the other way. Palkhivala reached Delhi a couple of days before the start of the argument. I distinctly recall my first meeting with Palkhivala at the hotel in New Delhi. He asked me and Sandeep Thakore to give him a list of cases where constitutional amendments were struck down as invalid. We were taken aback and flummoxed and told him that there was no such reported case where a constitutional amendment was challenged on substantive grounds. There were, however, cases where, “the manner and form” i.e. the requisite procedure and requisite majority were not observed and the amendments were challenged. Mr Palkhivala’s face fell and one could read the disappointment in his body language. We, however, gave him an article by Dr. Dieter Conrad of Heidelberg University, West Germany. Conrad had analysed how Adolf Hitler had seized absolute and dictatorial powers by amending the German Constitution and thereafter subverted it. Conrad therefore had deeply thought about the “amending power” in a Constitution and the passionate and convincing arguments in his lecture immediately lifted Mr Palkhivala’s spirits. These postulates were the basis of Mr Palkhivala’s impassioned plea and address during the arguments in Kesavananda Bharati v. State of Kerala* (Kesavananda Bharati). 2. (1970) 1 SCC 248. 3. (1971) 1 SCC 85. 4. (1973) 4 SCC 225 (also known as Fundamental Rights case).

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1. Implied limitations doctrine M.K. Nambyar was the leading counsel in Golak Nath v. State of Punjab> (Golak Nath) and if one carefully reads the judgment of Subba Rao CJ, the

argument had been noted as under: The next argument is based upon the expression ‘amendment’ in Art. 368 of the Constitution and it is contended that the said expression has a positive and a negative content and that in exercise of the power of amendment Parliament cannot destroy the structure of the Constitution, but it can only modify the provisions thereof within the framework of the original instrument for its better effectuation. If the fundamentals would be amenable to the ordinary process of amendment with a special majority, the argument proceeds, the institutions of the President can be abolished, the Parliamentary executive can be removed, the fundamental rights can be abrogated, the concept of federalism can be obliterated and in short the sovereign democratic republic can be converted into a totalitarian system of Government. There is considerable force in this argument. Learned and lengthy arguments are advanced to sustain it or to reject it. But we are relieved of the necessity to express our opinion on this all important question, as, so far as the fundamental rights are concerned, the question raised can be answered on a narrower basis. This question may arise for consideration only if Parliament seeks to destroy the structure of the Constitution embodied in the provisions other than in Part III of the Constitution. We do not, therefore, propose to express our opinion in that regard.®

I owe a debt of gratitude to my old and lifelong friend and distinguished author and critic on constitutional law, A.G. Noorani (who has written in detail about

this interaction) for sharing with me the correspondence between Nambyar and Dr. Dieter Conrad. When Nambyar came to know about Conrad’s lecture at the Banaras Hindu University, he wrote a letter on 20 October 1966 to Conrad seeking his permission to cite the manuscript and Conrad readily agreed on 27 October 1966 but stipulated that the whole manuscript be presented to the court. This was the genesis of the argument of implied limitations which was developed by Mr Palkhivala and ultimately resulted in the basic structure doctrine of the Constitution as a limit on the power of amendment. The seed implanted by Nambyar, inspired by Dr. Conrad’s lecture and developed by Mr Palkhivala in Fundamental Rights case, bore fruit in the majority judgment in Kesavananda Bharati. 2. Opening address ° Mr Palkhivala was not fully prepared when the case started on 31 October 1972. But his grasp, pickup and clear-headed formulation was unsurpassed and his mind functioned with the speed of lightning. His brain was like a sponge

5. (1967) 2 SCR 762: AIR 1967 SC 1643, 1664. 6. AIR 1967 SC 1643, para 40.

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which not only very quickly absorbed facts, concepts and law but metamorphosed them into a convincing and unanswerable argument in record time. He started by reading the Golak Nath judgment, as one of the principal issues was whether it was correctly decided and required to be overruled. The Golak Nath judgment had held that the word “law” in Article 13 included a constitutional amendment. An amendment which violated or abridged fundamental rights would be unconstitutional. However,

17th Amendment

Act,

though invalid, was saved by applying the doctrine of prospective overruling. As the Golak Nath Bench consisted of 11 judges, a Special Bench of 13 judges was constituted for Kesavananda Bharati. The case started with the debate on the meaning of Article 13 and the word “law” and whether a constitutional amendment abridging fundamental rights could be regarded as “law” within the meaning of Article 13 and the scope of Article 368. Could such an amendment be rendered unconstitutional as abridging fundamental rights? An amusing interlude needs to be mentioned. Mr Palkhivala started reading the Golak Nath judgment slowly and making his comments from time to time and he was interrupted by various members of the Bench. The trend of posing questions by several members of the Bench was along the following pattern: Mr Palkhivala, has the US Supreme Court not decided so and so? Has not the Canadian Supreme Court decided so and so? My recollection is that Privy Council many years back has dealt with the question. Do I recollect correctly that in Sajjan Singh’s case there is an observation made along the following lines...? How do you get over the observation in Shankari Prasad’s case at page...?

Some members of the Bench were indulging in a competitive display of erudition. Mr Palkhivala’s method was, as far as possible, to answer immediately or latest by the next morning unless a long research was involved. As a result our energies as juniors was employed every evening, first in locating the relevant decisions and the relevant passages (many times a wild goose chase) so that Mr Palkhivala could answer them in court next morning. Again his response would lead to further discussions and more questions. This went on for almost a whole week and Mr Palkhivala made little progress and became restless and was not sure as to when he could finish. Sikri CJ’s retirement in April 1973 was known and time was running short. C.K. Daphtary (former Attorney General and a great wit), who was also briefed for one of the petitioners/interveners used to come at about 4.00 p.m. at the end of the day and would ask Mr Palkhivala as to how the case was progressing. Mr Palkhivala narrated what was happening and said, “Chandubhai (Daphtary’s first name), I am not making any progress and I am alarmed as to when I will be able to complete.” After the weekend break (as the matter was normally heard from Tuesday to Thursday), Mr Palkhivala recommenced his argument and there were no

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interruptions and the matter proceeded smooth and fast throughout the week. At the end of the week, Daphtary again asked Mr Palkhivala as to how the matter was progressing and Mr Palkhivala responded that it was going very smoothly and there were hardly any interruptions. Later the secret was revealed. Daphtary told us that he met Sikri CJ at a function during the weekend and Sikri enquired as to why Daphtary was not seen in court. Daphtary told him that he was receiving daily reports from his friend’s young and attractive niece who was attending court daily. Daphtary asked her about her impression and she said—the case is going on very well and she was mightily impressed by the gravity, wisdom and intelligent remarks from the 13 judges from time to time. But she said there was one discordant note. These 13 wise and dignified judges who are contributing so much to the case are being interrupted from time to time by a young man standing opposite them. He should be removed. Sikri CJ told Daphtary—I have got your message. 3. Hearing

A certain judge on the Bench would invariably fall asleep after lunch and some of the juniors including Soli Sorabjee and myself would take bets as to when he would again wake up. This continued for a long time. However, I must confess that this characteristic was not shared by any of his colleagues on the Bench. I recall a famous story about the English Court of Appeal. In the olden days, the judges never retired and some of them were quite advanced in age. An experienced Q.C remarked that “I have no objection to Lord Justice so and so going to sleep on the Bench but I strongly resent his snoring so loudly so as to disturb the sleep of his brother judges.” J.B. Dadachandji was instructing Mr Palkhivala and he had his hand on the pulse of the case and knew behind the scene activities. Before the case started, he told us that there was a strong rumour that the Attorney General, Niren De would object to K.S. Hegde J sitting on the Bench because he was reported to have expressed strong views on the subject in a speech. Dadachandji and his clients said that they have got ready an application against another judge, (Dwivedi J) who was recently elevated by the government, because in his farewell speech at the Allahabad Bar, he had openly stated that he would undo the damage done in Golak Nath. Happily, no objections were taken by either side. Another little known fact which I must share with you is that the then Law Minister, H.R. Gokhale had made great efforts to convince H.M. Seervai, Advocate General of Maharashtra to come and argue the case for the government and defend the constitutional amendments. Seervai was briefed for the State of Kerala (which was the first petition) and had stipulated that he would accept the brief only if he was to start the arguments on behalf of the respondents. The government had agreed to this but it appears behind the back of the Attorney General, Niren De. The Attorney General had worked hard

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for several months and had prepared excellent volumes and other documents/ materials in support of the respondent’s case. Jaganmohan Reddy J (a member of the Bench) describes this in his autobiography’. He recounts: Gokhale brought Seervai who only accepted on condition that he would begin on behalf of the respondents and Niren De would come after him. Ray and I, however, protested. We said the Attorney General had precedence and he should begin and pointed out that the Chief Justice, Shelat and Hegde in the Bank Nationalisation case had said that this reversal of order could not be allowed. In any case Chief Justice Sikri later said it is for both Seervai and De to settle the issue and if De permitted, Seervai could start first. This, of course, was right but evidently by then at the instance of Gokhale, De was asked to give way to Seervai.®

This tension (on the respondent’s side) between the senior counsel lasted throughout the hearing. Jaganmohan Reddy J’s autobiography gives an insider’s view and is a mine of information. Mr Palkhivala concluded his arguments on 21 December 1972 with a flourish. He said something along the following lines: I am going to present to your Lordships the views of a very eminent constitutional lawyer. A view on fundamental rights which completely supports my case. Your Lordships would be surprised to know the name of the Author. The Author is none but H.M. Seervai.

This created some amusement on the Bench. After this, he quietly handed over three articles written by H.M. Seervai.? They related to proposed amendments of the Constitution (4th Amendment) during the lifetime of Jawahar Lal Nehru and contained passages attacking the proposed amendment which deprived a citizen of full compensation. Seervai wrote: The Prime Minister would never make a mockery of the Constitution by providing for the confiscation of the ordinary man’s property. I am afraid this very mockery is contained in the proposed amendment to Article 31-A. The abolition of Zamindari has thus no relevance to the vast powers of confiscation which are now sought to be acquired by the amendment of the Constitution. I shall consider the grave consequences of treating the Constitution as ordinary law to be changed at the will of the party in power and measureless harm that can be done to the economic and moral life of our country. If the effect of the amendments on the economic and moral life of the country will be grave, the effect on the young democracy of India will be disastrous since the Constitution will have been treated as an ordinary law to be changed at the will of the Party in power.

This flourish had a big psychological impact on several judges on the Bench. Seervai, on that day, took it in his stride but it led to strained relations between

him and Mr Palkhivala for some time which later were happily resolved. 7. See, P. Jaganmohan Reddy, The Judiciary I served (Orient Longman Ltd., 1999). 8. Ibid, 230. 9. Aricles published in The Times of India (Bombay Edn.) on 14—16-2-1955.

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In March 1973, before conclusion of the hearing, Beg J fell ill and the matter had to be adjourned for a few days. When the Bench assembled without Beg J, a suggestion was made that the arguments can continue and he can rejoin later. Meanwhile, the arguments could be recorded for his benefit. This was strongly opposed by both Niren De and Seervai and they threatened to withdraw from the case. To my best recollection, L.M. Singhvi (who was then Advocate General for Rajasthan and who was supporting the respondents case) boldly disagreed. However, Beg J resumed attending the hearing. Mr Palkhivala curtailed his final rejoinder to a few days and submitted the remaining arguments in writing. He had no choice because enormous costs had been incurred by the clients and the amount of time devoted by the 13 judges would be completely wasted if a second hearing was to take place after Sikri CJ’s retirement on 24 April 1973. 4. Impact of the judgment—Emergency—Seervai changes his view Now Kesavananda Bharati’s ratio has been followed repeatedly in our Supreme Court judgments as well as in other jurisdictions. It is regarded as one of the greatest judgments of all time. Seervai who was one of the strongest critics of the majority judgments changed his mind. In my article in the book,"® I wrote that he had firm views that Golak Nath was wrongly decided and that the Supreme Court had erred in propounding the basic structure doctrine in the Fundamental Rights case. This doctrine fettered and restricted the amending power of Parliament. But all this changed gradually but decisively as the excesses of the Emergency snowballed and the extreme contentions in /ndira Nehru Gandhi v. Raj Narain'! (also known as Election case) were argued. Seervai’s outraged conscience found expression in his later comments on the

judgment in the A.D.M., Jabalpur v. Shivkant Shukla’? (also known as Habeas Corpus case) which have already been mentioned above. His considered views on the basic structure doctrine are now clarified.'? To quote:!* We can now answer the question: does the doctrine of the basic structure provide a correct interpretation of Article 368? It is clear from our discussion that it appears to be the only doctrine which supplies an answer to the question.'® Coming to the second answer, our discussion has shown that the consequences of rejecting the doctrine of the basic structure would be so grave, and so opposed to the objectives of the Constitution, that the consequence of uncertainty would 10. See, Anil B. Diwan, “H.M. Seervai-Random Memories and Recollections” in Evoking

H.M. Seervai-Jurist and Authority on the Indian Constitution. Ibid, 53-64. Feroza H. Seervai, “Compiled for his Centenary” (Universal Law Publishing Co., Delhi 2005). 11. 1975 (Supp) SCC 1. 12. (1976) 2 SCC 521. 13. Seervai, Constitutional Law of India, Vol. II (3rd Edn.) 2686, 2692. 14. Indira Nehru Gandhi v. Raj Narain, 1975 (Supp) SCC 1, 60. 15. Ibid, 2686, para 3071.

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be insignificant by comparison. This is all the more so because the Kesavananda doctrine has neither prevented an amendment of the Constitution in the public

interest nor the enactment of socio-economic laws...'°

By taking a 180° turn, Seervai showed a resilience breadth of vision and a rare quality of intellectual honesty and integrity seldom found in human beings. Mr Palkhivala’s argument had won its final victory. Time and the Emergency had vindicated the majority view.

16. Ibid, 2692, para 3077.

17

Judicial predilections, leanings and the swing vote* Sriram Panchu**

If one wants to grapple in the intricacies of judicial process then one must closely follow the reasoned elaboration on various case laws of both Mr H.M. Seervai and Mr N.A. Palkhivala. This paper is a modest attempt to follow their scholarly path. ...It is inevitable that the social philosophy and the scale of values of the Judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint...'

Distinguished Speakers, Principal Joshi, my other friends: Whatever credit is there in what I am going to say is because of three young people—Vivek Shivakumar, Gayatri from Madras and a young lady from here who interned with me. Her name is Shruti Iyer. I am going to offer you some thoughts on how judges are influenced by their individual philosophy, their predilections, their own world view and background and I am going to submit that especially in the field of constitutional interpretation, these have a great deal of impact on the judgment. Now, you probably all know that Oliver Wendell Holmes Jr. started his book The Common Law with these words, The life of the law is not logic; it is experience. The felt necessities of the times, social and political theories, intuitions of public policy, avowed or unconscious, indeed even the prejudices judges share with their fellowmen have a great deal more to do than the syllogism, in determining the rules under which we are to be governed.”

And the collection of rules under which we are to be governed is classically constitutional law. * This is the transcript of the lecture delivered in the conference “Rearguing Kesavananda Bharati” held on 16-1-2010 at the ILS Law College, Pune. I and Shruti Iyer have transcribed this lecture from the video recording. I am responsible for any resulting error. ** Senior Advocate, High Court of Madras. 1. Per Patanjali Sastri CJ, State of Madras v. V.G. Row, AIR 1952 SC 196, 200. 2. Oliver Wendell Holmes Jr., The Common Law (1881) 1.

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Now, if you read Jaganmohan Reddy J’s account of Kesavananda Bharati v. State of Kerala} (Kesavananda Bharati) and mind you, he was right there in the thick of it, its very instructive.* He says, [t]he case went on, the arguments went on for 66 days. Within one week, the battle lines were clear. Justices Sikri and Hegde and Grover were asking questions, making suggestions and giving examples to support the view that the word ‘amendment’ had a limited scope, that there were implied limitations, that the essential features and the basic structure could not be changed. On the other hand, Justices Ray, Palekar, Matthew and Dwivedi were stressing the opposite. There were no limits to the amending power of the Parliament. And they asking Palkhiwala from where he got these theories of implied limitations, essential features and basic structure.°

Now notice please, the same bent of mind is reflected in the judgments of these judges after 66 days of hearing. And that tells you something about preconceived philosophies coming to the fore. So, 7 out of the 13 judges disclosed their intentions right at the outset. And Reddy J says that minds were closed, views were predetermined. Now, sometimes this predetermination occurs not just at the beginning of a case, it also happens before the appointment to the court. And a classic instance is Dwivedi J who told the Bar at the Allahabad High Court, “that he was going to the Supreme Court to see that the Golak Nath case was overruled”.® Mr Andhyarujina mentioned this, and he (Mr Andhyarujina) also mentioned that he is going to write a history of Kesavananda Bharati in due course. I might tell you one thing. After the war, Winston Churchill had a fierce debate in the House of Commons with Nancy Astor over some aspect of World War II. The two were perpetually at logger heads. She said to him, “Mr Churchill, history will judge you very unkindly” and Churchill said, “Madam, history will judge me kindly, because I shall be writing it.” (So, Mr Divan, if you want to continue winning “Kesavananda Bharati” you also should start writing a history of it.) Now, look at the appointments of the court from 1971 onwards. Granville Austin says that Reddy J believed that the composition of the Supreme Court at the time of Kesavananda Bharati provided a useful starting point for an examination of the “unusual happenings” during the case to which Chandrachud J alluded. For Reddy J, these happenings had their origin well before the Bench was formed. He thought Kumaramangalam, Ray and Gokhale JJ had begun “packing” the court in 1971 in expectation of an attempt to overturn Golak Nath.’ Austin cites Reddy J as his source and refers to his book “We have a

Republic: Can we keep it?’’® So just look to see, before they started hearing the . (1974) 4 SCC 225: AIR 1973 SC 1461.

. P. Jaganmohan Reddy, The Judiciary I Served (Orient Longman, 1999), . Ibid, 226, 227. . Ibid, 228. . Granville Austin, Working a Democratic Constitution (OUP, 1999). W SS N CONN . P. Jaganmohan

Reddy, We have a Repubic: Can we keep it? (Department of Law, Sri

Venkateswara University, Tirupathi 1894) 93-95.

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case, how much of the decision had already taken place. Kesavananda Bharati is a fantastic example of how the predetermination starts in a case. In other words, the dice falls, but the dice falls before the game begins.

Now, judges can even form prejudices from the manner of presentation by counsel. Twice in his account, Reddy J tells us that the Attorney General (Niren De) “... was most arrogant and rude, suggested though not in so many words that the Court’s future would be at stake. He said at one stage that the consequences have to be borne if the decision went against the Government”.’ Now, what might have Reddy J thought? If this is how the first officer of the government is going to speak and threaten us, judges of the Supreme Court, what does this tell us about how this government, with unrestricted amending power, wili deal with people? What about being fearful for the existence of the court itself? I am taking you forward to ADM, Jabalpur v. Shivkant Shukla’®. At least one member of that Bench, who sided with the government, said after retirement that he did so because he was fearful that if the court held against the government during the Emergency, the court would be closed down. That is another hidden thing that can operate. What about experiences during your formative years? Reddy J studied in England, and he said that during his student days, he closely followed the developments in Germany. Hitler was appointed by the President as Chancellor under the Weimar Constitution. Hitler exercised the power of amendment [of the Constitution] to declare himself the President. He exercised an unlimited

power of amendment to convert that State into a dictatorship. Now, if this is what you are closely following in your formative years, will you not come to the Bench with a horrendous fear of the unlimited power of amendment? And that is why people say that the judge goes one way because of his emotional bent of mind. Having reached that point, then the judge has the facility, the resourcefulness to find the reasons to back his inclination. Charles Evan Hughes (Chief Justice of the Supreme Court of US) said to William O. Douglas (Associate Justice of that court), “Justice Douglas, you must remember one thing. At the constitutional level, ninety per cent of any decision is emotional. The rational part of us provides the reasons for supporting our predilections.”!! In other words, we come instinctively to a decision, and then we find the reasons to support the predilection. There is a wonderful story of John Marshall, arguably the most famous and important American Chief Justice, who won for that court, the power of judicial review. It used to be said that in major constitutional cases, the court of nine would hear the case and they would rise. And Marshall CJ would turn to his colleague Joshua Story J, who was very adept at writing judgments, and say, 9. P. Jaganmohan Reddy, The Judiciary I Served (Orient Longman, 1999) 230.

10. (1976) 2 SCC 521: AIR 1976 SC 1206. 11. William Orville Douglas, The Court Years, 1939-1975: The Autobiography of William O. Douglas (Random House, New York 1980) 8.

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“Story, this is the decision. Now you go and find the reasons for it.’ Because Marshall knew governance, he knew what the country needed and he knew

what the court could do and beyond which the court must not venture. Look at what Richard Posner says. This is another judge who, mind you, loves treading on toes and who does not withhold his love for writing. He does not let his judicial duties interfere with that. He says, Emotions exert a huge influence on how people translate their experiences into beliefs.... Often when impartial analysis does not yield a definite answer to an urgent question, emotion takes over and the role of conscious intellect is reduced to that of rationalisation.

It is the faculty of intuition, he says, that enables a judge to make a quick judgment and it “is best understood as a capability for reaching down” and mark these words, “to a subconscious repository of knowledge acquired from one’s education and particularly one’s experiences.”"” This is all the more so in constitutional cases because the Constitution tends to deal with fundamental issues, which arouse greater emotions than most statutory cases.’ Now, what does this therefore tell us? It is that the constitution of the Bench is as important as the arguments are of the learned counsel, and as important as the precedents are of the court. We do not start off in constitutional cases with an unwritten slate and a completely open mind of those who are hearing the case. And if you look at the Supreme Court of US, they have lifetime appointments—you know that Scalia and Thomas JJ will always vote one way. You know that Brennan, White and Souter JJ will always vote the liberal way. And as a result, great attention is paid there to the philosophy and the leanings of judges who come to the Supreme Court. Does that happen here? It does not. And this is one problem with our system. We go by this principle of seniority, as though seniority were a principle. Seniority is a norm, which is being followed. Even when we talk of merit, no attention is paid to the philosophy of the judge, his social or political views. These do not enter into the scale. And there is another problem. Where seniority is the norm, another result follows. It means the composition of the court is decided 15 years earlier. It is the people who get in at the age of 40 who are going to make up the constitutional court 15 or 18 years, hence. We do not pay attention to these nominees. Again, on the Constitution Bench, who sits on the Bench? Are all 30 judges of the Supreme Court eligible? Do we want specialists? Or do we want generalists? Do we want a Special Judge or can anyone be a constitutional judge?

Do we want the seniormost? Or do we want them picked by the Chief Justice? Can we have just a Constitutional Bench? These are the issues we need to talk about, once we realise that the composition of the Bench is, perhaps the most important thing.

12. Richard A. Posner, How Judges Think (Harvard University Press, 2008) 96, 105, 107. 13. Ibid, 107.

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Then look at the procedure. Normally, in a properly run court, if there is a minority and a majority, the seniormost judge for the majority assigns who is going to write the judgment for the majority. The seniormost judge on the minority will assign the task of writing the minority judgment. On each side, they will get together to sort out differences, to try and get common ground so that you have two decisions and people know what the court is doing. There is some clarity. Above all, the court needs to give people clarity. Kesavananda Bharati, with its multiple judgments, was a disaster in this respect. But I think that it had one saving grace. And that was the two-page statement that Sikri CJ circulated and got signed by nine judges and if that was not there, there would be such tremendous confusion as to what the 13 judges held in what is arguably, the most important case in India’s constitutional law. So I think that was a master stroke. Please also note the way Sikri CJ worded the statement, and brought Khanna J on board by using the concept of basic structure. He got his majority and he got the statement through by getting nine people to sign it. And I would think that is a superb example of his Punjabi practicality. So you have judges on the one side and judges on the other side. Who tips the balance? Those are the middle grouncers. These are the swing votes, and really we should pay attention to those. In this case, they were Shelat, Mukherjee and Jaganmohan Reddy J and you may add Khanna J. They are the ones who really decide the way the court will go. As Reddy J says, “insofar as the (other) matters regarding implied limitation, basic structure, essential features etc. were concerned” he was “struggling to arrive at a conclusion.”* And that is the correct way for a constitutional judge to do; to keep yourself open; to be like Learned Hand J, the perpetual doubter; to take your time. And this is the importance of the swing vote. The judge who is willing to be in middle, willing to be persuaded by either side, keeping an open ear and open mind. If you look at the American jurisprudence now, while Sandra O’Connor was there, and Anthony Kennedy, they were the most powerful voices in the court and invariably the counsel addressed their arguments to these two because they knew they would tilt the decision this way or that way. Open to change. Being persuaders. These, I think, are major attributes of constitutional judges. And I am going to close with this observation on constitutional law and politics, and I think the two are intertwined. Major constitutional decisions do not happen in a political vacuum. In fact, you need a robust sense of what the country needs, like John Marshall CJ had. In Kesavananda Bharati, the unstated questions are—How far can we trust Parliament? How far will this democracy survive? We conduct elections well; our electoral democracy works. But the way political parties function and the increasing corruption there is,

our functional democracy might be a failure. How far can we trust elected representatives? 14, P. Jaganmohan Reddy, The Judiciary I Served (Orient Longman, 1999) 232.

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Constitutions again depend on the times, as Holmes said, “the felt necessities of the time[s]’’> and each time is different. Sensitivity to those timings, being alive to political realities, being alive to differing needs of generations, because for each generation, there may be basic truths but they may vary from one to the other. And if we think what the court now declares as basic structure is inviolable for all times, we will be wrong. Let me offer you a scenario, and it is a grim one. I do not like grim ones but let me offer it to you for thinking. We have a world which is tipping into perilous times because of global warming. With a shortage of water, a shortage of oil and a shortage of food and if in the hundred years to come, the people of the country feel that we have such scarce resources then the most important thing to do is to conserve them, and therefore a socialist bordering communist form of government is necessary,

and that individual liberty does not matter as much as feeding everybody, those will be the realities of that time. Certainly judges then will have different predilections and different philosophies. The components of the basic structure then will be different. Thank you very much.

15. Oliver Wendell Holmes Jr., The Common Law (1881) 1.

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The basic structure doctrine—A.>

37-year journey Arvind P. Datar*

As a practising lawyer and as an author, I have always drawn inspiration from both Mr H.M. Seervai and MrN.A. Palkhivala. Undoubtedly, both contributed very richly in evolution of the basic structure doctrine of the Indian Constitution and I feel very happy to dedicate this paper in their honour. The object of this article is to examine the application of the basic structure doctrine after it was laid down almost 37 years ago. This single doctrine altered the judicial and political landscape of the country. It is said that one knows the value of oxygen only when one is deprived of it. Similarly, the value of the basic structure doctrine can be determined only by imagining what would have happened if this doctrine had not become part of our constitutional law. It is almost certain that India may not have survived as a democracy but would have slowly degenerated into a totalitarian State. Ironically, the word “basic structure” is nowhere used in the Constitution and not a single judge in Kesavananda Bharati v. State of Kerala' (Kesavananda Bharati) has referred to any particular article or group of articles that would constitute the basic structure. If one carefully analyses the judgments, the basic structure doctrine represents the essential or core principles that form the bedrock of our Constitution. Take away any of the principles constituting the basic structure, and India will cease to be a true republican democracy. In his arguments, Mr Palkhivala had set out the 12 principles that according to him, constituted the basic structure. These 12 principles given below are set out in the judgement of A.N. Ray J:

Supremacy of the Constitution Sovereignty of India Integrity of the country Democratic way of life Republican form of the government nA PwWwndr * Senior Advocate, Madras High Court. The writer acknowledges the assistance of Advocate Ananth Padmanabhan and Ms Smita Das, a IVth year student of the Gujarat National Law University (GNLU), Gandhi Nagar, Gujarat, in the preparation of this article. 1. (1973) 4 SCC 225.

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Guarantee ofbasic human rights elaborated in Part III of the Constitution Secular State Free and independent judiciary Dual structure of the Union and the States Balance between the legislature, the executive and the judiciary Parliamentary form of the government as distinct from the presidential meow PND form of the government 12. Article 368 can be amended but cannot be amended to empower Parliament to alter or destroy any of the essential features of the Constitution —

However, the submissions of Mr Palkhivala were not fully accepted on this issue. In fact, in the opinions supporting the theory of basic structure (also referred to as essential features or fundamental features), differing views have

been expressed on what would constitute the basic structure.

l. View taken by Sikri CJ: (a) Supremacy of the Constitution (b) Republican and democratic forms of the government (c) Secular character of the Constitution (d) Separation of powers between the legislature, the executive and the judiciary (e) Federal character of the Constitution . View taken by Shelat and Grover JJ:

(a) Supremacy of the Constitution (b) Republican and democratic form of the government and sovereignty of the country (c) Secular and federal character of the Constitution (d) Demarcation of power between the legislature, the executive and the judiciary (e) Dignity of the individual secured by the various freedoms and basic rights in Part III and the mandate to build a welfare State contained in Part IV (f) Unity and the integrity of the nation. . View taken by Hegde and Mukherjea JJ: (a) Sovereignty of India (b) Democratic character of our policy (c) Unity of the country (d) Essential features of the individual freedoms DERE: to the citizens (e) Welfare state and egalitarian society . View taken by Jaganmohan Reddy J: (a) Sovereign democratic Republic (b) Justice, social, economic and political (c) Liberty of thought, expression, belief, faith and worship (d) Equality of status and opportunity

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There was thus, no unanimity amongst the judges in Kesavananda Bharati as to what constituted the basic structure. What does one mean by “essential features of the individual freedoms secured to the citizens” as mentioned by Hegde and Mukherjea JJ? The components of basic structure as given by Reddy J are nothing but extracts from the preamble to the Constitution. A precise definition of basic structure was perhaps difficult and, indeed, inadvisable. Like “due process”, the “basic structure doctrine” should be left for interpretation by the Supreme Court and the High Courts to meet future challenges; the doctrine must be capable of being adapted to meet the “felt necessities of the times”. 1. Genesis of the doctrine

Till 1965, no one felt the need to question the extent of Parliament’s power to amend the Constitution. In Shankari Prasad v. Union of India? (Shankari Prasad), it was held that Parliament’s power was indeed unlimited—the only requirement was to follow the procedure prescribed by Article 368. But in Sajjan Singh v. State of Rajasthan? (Sajjan Singh), Hidayatullah and Mudholkar JJ raised the issue of implied limitation. Noting that this issue was not raised in Shankari Prasad, Mudholkar J asked the key question, whether

there were basic features of our Constitution that were to endure for all time or whether they were no more enduring than the implemental and subordinate provisions of the Constitution? Significantly, MudholkarJ relied ona decision of Cornelius CJ of the Supreme Court of Pakistan* who, relying on Cooley’s Constitutional Limitations, held that the power conferred on the President by the Pakistani Constitution to remove difficulties did not extend to making an alteration to the fundamental features of the Constitution. Golak Nath v. State of Punjab° (Golak Nath) went one step beyond, perhaps too far and held that no part of Part III could be amended at all. This decision was rightly overruled later. The essential proposition of law laid down in Kesavananda Bharati was that Article 368 did not enable Parliament to alter the basic structure of the Constitution. This decision was rendered on 24 April 1973 and declared that all the amendments made prior to that date were valid and constitutional. This meant that all the amendments made to the Constitution prior to this decision, even if they weakened the core of the Constitution, could not be called into question in the courts.

2. AIR 1951 SC 458: (1952) SCR 89. 3. AIR 1965 SC 845: (1965) 1 SCR 933. 4. Fazlul Quader Chowdhry v. Mohd Abdul Haque, 1963 PLD 486.

5. (1967) 2 SCR 762.

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2. Application in Pakistan and Bangladesh

The decision given in this case became a constitutional benchmark. In 1989, the Supreme Court of Bangladesh adopted the basic structure doctrine primarily relying on the decision delivered in Kesavananda Bharati.® Earlier, in 1980, some of the High Courts of Pakistan took the view that the Pakistani Constitution had some unalterable parts or basic features which could not be amended.’ When the validity of a constitutional amendment is questioned, the Supreme Court or the High Courts have to consider two questions: 1. Whether the procedural requirements of Article 368 have been complied with? 2. Whether the amendment destroys the basic structure of the Constitution?® 3. Criterion of validity

What is the difference between an “ordinary” law passed by Parliament in the exercise of ordinary legislative power and an act of Parliament amending the Constitution under Article 368? Is there a difference between the passing of a law in the exercise of “legislative power” and a law passed in exercise of “constituent power’? Relying upon the works of positivist jurists Austin, Kelsen and the realist Salmond, Prof. P.K. Tripathi’ pointed out that the distinction between law and Constitution lay in the criterion of validity i.e. whereas an ordinary law depended on a higher law for its validity, a provision of the Constitution did not so depend on another law and instead, generated its own validity. Now, what is the impact of the basic structure doctrine on the “criterion of validity”? Now, even a constitutional amendment will depend for its validity, on the basic structure doctrine. The basic structure doctrine, however, has been applied by the Supreme Court and the High Courts. These cases are discussed briefly in the subsequent paragraphs. 3.1.

FFRREE AND FAIR ELECTIONS

The first case to apply this doctrine was Indira Nehru Gandhi v. Raj Narain"® (Indira Nehru Gandhi). The Constitution (39th Amendment) Act, 1975, made

an audacious attempt to silence the judiciary. This amendment basically had a 6. Anwar Hossain Chowdhury v. Bangladesh, 41 DLR 1989 App Div 165. 7. Darwesh Anbey v. Federation of Pakistan, PLD 1980 Lah 206; Suleman v. President,

Special Military Cant., NLR 1980 Cir. Quetta 873. 8. Raghunatharao Ganpatrao v. Union of India, AIR 1993 SC 1267. 9. Prof. P.K. Tripathi, “Kesavananda Bharati v. The State of Kerala Who Wins?” (1974) 1

SCC J-3. 10. 1975 Supp (1) SCC 1.

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threefold objective: firstly, to withdraw the election of the Prime Minister and a few other constitutional functionaries from the scope of the ordinary judicial process; secondly, more specifically, to annul and legislatively overrule the High Court of Allahabad’s decision that invalidated Indira Gandhi’s election to the Lok Sabha; and thirdly, to exclude the Supreme Court’s jurisdiction from hearing any appeal whatsoever on the matter.” Clause 4 of Article 329-A, inserted by the 39th Amendment, was found to

be in contravention of the basic structure of the Constitution on the ground that democracy constituted a basic or essential feature of the Constitution. Free and fair elections were integral to democracy and entailed the creation of an appropriate forum where elections could be challenged as being illegal. Clauses 4 and 5 of Article 329-A, as introduced by the 39th Amendment, took away the existing forum and also failed to create a fresh one, thereby violating the basic structure. Accordingly, the Supreme Court declared clause 4 as being unconstitutional. However, a point of significance that could be crystallised from the opinions delivered by all the judges was that the principle of “basic structure” was applicable only to a constitutional amendment and not to an ordinary legislation. In the same case, Chandrachud J evolved a working test enlisting five aspects to ascertain whether a specific part would constitute the basic structure of the Constitution viz. 1) sovereign democratic republic status; 2) equality of status and opportunity of an individual; 3) rule of law; 4) secularism and freedom of conscience and religion; and 5) judicial review. Another test evolved recently by the Supreme Court to gauge the valid exercise of legislative power is the “width test” and the “test of identity”.'? This has been discussed later in this article. 3.2.

SECULARISM

The Supreme Court in the pivotal case of S.R. Bommai v. Union of India (Bommai) held that secularism constituted a part of the basic structure of the Indian Constitution and any act of State which subverted it can be considered to be a situation wherein the government of the State is not acting in consonance with the spirit of the Constitution. In fact, even the judges in Kesavananda Bharati agreed that the secular nature of our country was a part of the ba-

sic structure of the Indian Constitution’* In Bommai, it was held that judicial review was part of the basic structure and proclamation of Emergency under Article 356 was amenable to judicial review.

11. M.P. Jain, Indian Constitutional Law (Sth Edn. Wadhwa, 2003) 1912. 12. M. Nagaraj v. Union of India, (2006) 8 SCC 212. 13. (1994) 3 SCC 1. See also, M. Ismail Faruqui v. Union of India, AIR 1995 SC 605. 14. Sikri CJ, mentioned secular character of the Constitution as one of constituents of the “basic foundation and structure” of the Indian Constitution.

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3.3.

ToTAL EXCLUSION OF JUDICIAL REVIEW

[Chap.

In Minerva Mills Ltd. v. Union of India’ (Minerva Mills), the Supreme Court considered clauses 4 and 5 of Article 368 that were inserted by the 42nd Amendment and held them to be unconstitutional. These clauses had transgressed the limits of the amending power available under the said article, thereby damaging the basic structure of the Constitution. What is pertinent to note is that these two clauses prohibited any future constitutional amendment from judicial challenge and upheld the validity of all previous amendments. Retrospectively, all past amendments were validated and future amendments were protected. These two clauses deserve to be reproduced: 1. No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article [whether before or after the commencement of Section 55 of the Constitution (42nd

Amendment) Act, 1976] shall be called in question in any court on any ground. 2. For the removal of doubts, it is hereby declared that there shall be no limitation, whatever, on the constituent power of Parliament to amend

by way of addition, variation or repeal the provisions of this Constitution under this article].

In P. Sambamurthy v. State of A.P.'°, the Supreme Court, considering into the validity of Article 371-D(3) and (5), held that if any constitutional amendment made by Parliament takes away the High Court’s power of judicial review and vests it in any other institution, it would not be violative of the basic struc-

ture doctrine; however, as soon as it is found that the alternative institutional mechanism or authority is not as effective as the High Court or obstructions are being placed for rendering them ineffective, the basic structure doctrine shall come into play and the amendment will be struck down. This was the reason why Article 371-D(5) was not struck down. In Bhagwan Bajirao Bhargude v. State of Maharashtra", it was held that by abolishing the Maharashtra Revenue Tribunal and entrusting the powers with the Divisional Commissioner, the amendment clearly was in negation of the principle of separation of powers and the independence of judiciary. Moreover, it is important to understand that such an abolition ousted the power of superintendence of the High Court, all of which constitute the basic structure

15. (1980) 3 SCC 625 : AIR 1980 SC 1789. 16. (1987) 1 SCC 362: AIR 1987 SC 663. See also, S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124. In this case, it was held that the power of judicial review vested in the High

Courts under Art. 226 of the Indian Constitution is a part of the basic and essential feature of the Constitution constituting part of its basic structure. Also see, Nachane Ashwini Shivram v. State of Maharashtra, (1998) 2 Mah LJ 234.

17. (2004) 4 Mah LJ 1010.

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of the Constitution. Therefore, the Act was held to be illegal and ultra vires the Constitution. In Kihoto Hollohan v. Zachillhu'®, the Supreme Court examined the validity of para 7 of Schedule X to the Constitution which excluded judicial review of the decision of the Speaker/Chairman on the question of disqualification of MLAs and MPs. It was observed that it was unnecessary to pronounce on the contention whether judicial review is a basic feature of the Constitution and para 7 of Schedule X violated such basic structure. In L. Chandra Kumar v. Union of India", the Supreme Court explained how judicial review by the higher courts constituted an essential or basic feature of our Constitution. The court stated as follows: An analysis of the manner in which the framers of our Constitution incorporated provisions relating to the judiciary would indicate that they were very greatly concerned with securing the independence of the judiciary. ... The judges of the superior courts have been entrusted with the task of upholding the Constitution and to this end, have been conferred the power to interpret it. It is they who have to ensure that the balance of power envisaged by the Constitution is maintained and that the legislature and the executive do not, in the discharge of their functions, transgress constitutional limitations. It is equally their duty to oversee that the judicial decisions rendered by those who man the subordinate courts and tribunals do not fall foul of strict standards of legal correctness and judicial independence. We, therefore, hold that the power of judicial review over legislative action vested in the High Courts under Article 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure. Ordinarily, therefore, the power of the High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted or excluded.” 3.4.

NINTH SCHEDULE

In an even more recent judgment delivered in I.R. Coelho v. State of T.N.', the Supreme Court again applied the doctrine clearly elucidating the importance

of retaining the basic features of the Constitution framed by our forefathers.” The court held the following: It is permissible for the legislature to amend the Ninth Schedule and grant a law the protection in terms of Article 31-B but subject to the right of the citizen to assail it on the enlarged judicial review concept. If a law that abrogates or abridges rights guaranteed by Part III of the Constitution violates the basic structure doctrine, whether by amendment of any article of Part III or by an insertion in the Ninth Schedule, such law will have to be invalidated in exercise of judicial

review power of the court.” 18. 19. 20. 21. 22. 23.

1992 Supp (2) SCC 651, 715, para 120. (1997) 3 SCC 261, para 78. Ibid. AZ00T) 2 SCC I. See also, R.S. Garg v. State of U.P., (2006) 6 SCC 430: AIR 2006 SC 2912. (2007) 2 SCC 1, para 143.

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3.5.

Two NEW TESTS

[Chap.

In M. Nagaraj v. Union of India**, two new tests—called as the “twin-tests” were required to be satisfied in the matter of application of the principle of basic structure. These were called the “width test” and “test of identity” and the two different tests warranted two different judicial approaches. These two tests were applied to uphold the validity of the 77th, 82nd and 85th Amendments. The “width test” enables the courts to examine whether the boundaries of a particular power have been transgressed. Applying this test to Article 16(4-A) and (4-B), the Supreme Court found that the ceiling limit of 50 per cent, the exclusion of creamy layer, and the compelling reasons of backwardness, inadequacy of representation and overall administrative efficiency had not been obliterated by the impugned amendments. And the test of identity was also satisfied because the impugned amendments did not violate the overarching principles like “secularism, federalism, etc.” The latter observation is incorrect and impugned amendments violated the overarching principle of quality. 3.6.

OTHER FEATURES

Furthermore, aspects like democracy and the rule of law’, concept of equality as found under Article 14 of the Constitution”®, separation of powers?’, have also been said to constitute the basic structure of our Constitution. 4. Limitations of the doctrine

Through the course of time, even the judiciary did not want to brandish this doctrine as a Trojan horse to help penetrate the already weakened separation of powers between the three organs. The Apex Court accordingly in Bhim Singhji v. Union of India*® unequivocally stated that the basic structure doctrine cannot be widened so as to include right to property as “... The whole adventure of the Constitution is to remove poverty and in that process remove concentration of property.” Likewise, as found in Indira Nehru Gandhi v. Raj Narain® (also known as Election case), and in Kuldip Nayar v. Union of India’, it categorically held that the basic structure doctrine is inapplicable to ordinary legislations passed by Parliament, thereby limiting the application of the said doctrine only to constitutional amendments. The court herein elucidated that an ordinary law or 24. (2006) 8 SCC 212. 25. Verma J, in his minority opinion, mentioned democracy as a part of the basic structure

of the Constitution and that the rule of law was essential for existence of democracy. 26. Indra Sawhney v. Union of India (II), (2000) 1 SCC 168: AIR 2000 SC 498. 27. State of Bihar v. Bal Mukund Shah, (2000) 4 SCC 640: AIR 2000 SC 1296. 28. (1981) 1 SCC 166. 29. Ibid. 30. 1975 (Supp) SCC 1: AIR 1975 SC 2299, 31. (2006) 7 SCC 1: AIR 2006 SC 3127.

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legislation can be invalidated on two grounds: 1) contravention of fundamental rights as encapsulated under the Constitution; and 2) legislative incompetence. Till date, there is no clear explanation why the basic structure doctrine will not apply to strike down an ordinary law. Indeed, not using the doctrine in such a scenario can cause greater harm to the Constitution as this makes laws evolved by Parliament not amenable to judicial scrutiny. Rendering this doctrine nugatory would create a totalitarian regime, as heid in Ashoka Kumar Thakur v. Union of India**, “When judicial review is barred, democracy evaporates.”** Also, it is difficult to comprehend why the Supreme Court has sought to use this doctrine only when constitutional amendments were involved and not ordinary laws because the latter could cause as much harm to the Constitution. It is important to note that the underlying motive of the basic structure doctrine is to ensure that certain limitations are imposed on Parliament in its exercise of law making powers. If, however, Parliament is allowed to pass laws without regard for the basic feature doctrine, it would lead to an absurd situation—a constitutional amendment will be subject to a more rigorous test than an ordinary law. It is pertinent to note what Hegde and Mukherjea JJ had stated in Kesavananda Bharati to explain the raison d’etre for this doctrine: Our Constitution is not a mere political document. It is essentially a social document. It is based on social philosophy and every social philosophy like every religion has two main features, namely, basic and circumstantial. The former remains constant but the latter is subject to change. The core of a religion always remains constant but the practices associated with it may change. Likewise, a constitution like ours contains certain features which are so essential that they cannot be changed or destroyed.**

Therefore, it is of crucial importance that the higher courts while considering the validity of a particular law in the light of the basic structure doctrine should only resolve to maintain the fixed or basic structure of the Constitution and not every ancillary part of the Constitution. 5. Conclusion

In conclusion, it is submitted that Kesavananda Bharati is illustrative of judicial creativity and speaks volumes of the role of the Apex Court in ensuring the balance between the three spheres. Even with the wide chasm in the views of the 13 judges, it is apparent that the judgment ultimately declared that the Indian Constitution cannot be subjected to the political ideologies of different ruling parties. Despite all its drawbacks, the basic structure doctrine ensured the rule of law for many generations to come.

32. (2008) 6 SCC 1.

33. Ibid, para 508. 34. See, Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, 1624.

19

Precedential value of ‘“‘Kesavananda Bharati’ RATIONALISING

THE

RATIO

OF THE

CASE

Prof. A. Lakshminath*

Both Mr H.M. Seervai and Mr N.A. Palkhivala were under the influence of common-law tradition and copiously cited precedents from commonwealth jurisdictions. As a teacher of judicial process, I find it therefore most fitting to write a paper on precedential value of Kesavananda Bharati v. State of Kerala' (Kesavananda Bharati) and dedicate it to them as a mark of respect. Beneath the dry and niggling distinctions, the flat frustrating contradictions, behind the bold dynamic precept, suddenly emasculated or the mouldering precedent revivified by a new constellation of facts, behind the wavering alterations

of judicial caution and judicial valour, coyness and courage, the lawyer of imaginative intelligence must be conscious of the elements of a perennial mystery. He is challenged to ask: what magic at the heart of the system of stare decisis can transform a symbol of immobility into a vehicle of change? And the challenge confronts him in the dimension both of space and time.

At the heart of our appellate system, which is structured on the common-law pattern of hierarchy of courts, the doctrine of precedent exists like a vigilant omnipresence. The relevance of precedent as a guide to judicial decision making remains as undisputed in the present day as it did more than 150 years ago when Lord Campbell called attention to the importance of the binding effect of the ratio decidendi of acase in A.G. v. Dean and Connons? (Windsor).

It is impossible to devise formulae for determining the ratio decidendi of a case. This does not mean that it is impossible to give a tolerably accurate description of what lawyers mean when they use the expression. It is submitted that the following is such a description. The ratio decidendi of a case is any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him.* * Chancellor, A.P. University of Law, Vishakapatnam; and Vice Chancellor, Chanakya Law University, Patna.

1. (1973) 4 SCC 225. 2. (1860) 6 Jur. N. S. 833. 3. See generally, Julius Stone, “Ratio of Ratio Decidendi” (1969) 22 MLR 597; Cross and Harris, “Precedent in English law”.

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Prof. Montrose suggested that the expression ratio decidendi is used in two senses: 1) “The rule of law for which a case is binding authority”; and 2) “The rule of law to be found in the actual opinion of the judge, forming the basis of his decision”. If our description of the ratio decidendi is correct, there is generally no distinction between these two senses of the phrase until a decision has been interpreted in subsequent cases. Up to that moment, the rule of law for which the decision is binding authority is that which is to be found in the actual opinion of the judge, forming the basis of his decision. Very often there will continue to be no distinction between the two suggested senses of the phrase ratio decidendi even after the decision has been interpreted in subsequent cases. There are, however, many instances in which the rule of law forming the basis of a decision ceases to be the rule of law for which the case is binding authority because judges in later cases have followed the practice to which reference has already been made of interpreting the decision in the light of the facts of the case and other relevant judgments. The “interpretation” of a case frequently means no more than the ascertainment of its ratio decidendi, but it may mean a great deal more. It may involve firstly, the ascertainment of the ratio decidendi of the case; secondly, a consideration of that ratio decidendi in the light of the facts of the case; thirdly, a consideration of observations with regard to the case made by judges in later cases; fourthly, the ascertainment of the rationes decidendi of later cases; and finally the formulation of a rule of law based on a number of cases. It may then appear that the case which is being interpreted was decided consistently with that rule, although the ratio decidendi of the case has ceased to be the proposition of law for which it is authoritative. The process of interpretation is most likely to occur when the original ratio decidendi was a wide one for, to quote Prof. Glanville Williams, “Courts do not accord to their predecessors an unlimited power of laying down wide rules.” No doubt this is especially true when the court interpreting the*earlier case is not strictly bound to follow it; but broad statements by the highest tribunals are sometimes restrictively interpreted in lower courts. It is at least arguable that Lord Atkin considered the neighbour principle which he enunciated in Donoghue v. Stevenson‘ to be ratio decidendi but it was immediately said to

have been too wide in the Court of Appeal. The claim that ratio decidendi describes the rule first laid down by the deciding court is compatible with the recognition that subsequent courts, even those bound within the rules of precedent to follow the decision, have a residual power to restrict the scope of the rule. This power has been called by Prof. Raz as a power to distinguish “in the strong sense”, as distinct from the weak sense of distinguishing where a ratio is simply held not to apply to the facts in ques-

tion; and it has been called by Prof. Mac Cormick a power to “revise” the original ratio. None of the above modes of interpretation to which a ratio may 4, (1932) AC 562.

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be subjected warrants the claim made by Prof. Julius Stone that ratio decidendi describes nothing, that it is a “category of illusory reference”. In the ordinary run of cases, it is not that difficult to articulate what the ratio was. In an illuminating critique of the conceptual vagueness inherent in the notion of ratio decidendi, Prof. Stone distinguishes two versions of ratio de-

cidendi viz. the prescriptive and descriptive versions. Prescriptively used, the phrase ratio decidendi refers to a normative judgment requiring the later court to choose a particular ratio decidendi as legally required to be drawn from a prior case i.e. as the binding ratio decidendi. The descriptive and prescriptive versions normally coincide where we adopt as our definition that view of the ratio which stresses the propositions of law enunciated by the court as a basis for its holding. On the other hand, if we employ Prof. Goodhart’s versions insofar as the later court may select as “material” facts different from those which would be inferred to such from the propositions of law emerging from the prior decisions, the prescriptive ratio might turn out to be different from the descriptive ratio. Further, we have to guard ourselves against the assumption that there is normally one ratio decidendi and the only one which explains the holding on facts and which can be delimited from an examination of particular case itself. Prof. Stone has made a searching examination of the ways by which law courts change and develop the law under cover of certain legal categories, which he distinguishes, categories of meaningless references concealed multiple reference and indeterminate reference. These categories are meant to focus attention on decisional choices involving competing decisional models as between which logically no rational choice is possible because both are logically persuasive though as an aspect of justice, a choice is made by a recourse to transcendental value judgments. The concept of “basic structure” is a legal category of concealed multiple reference. In Indira Nehru Gandhi v. Raj Narain? (Indira Nehru Gandhi), it

was interpreted to include “democracy” in the sense of free and fair elections, equality in the sense of rule of law (according to Mathew J, it also includes Article 14 which itself is a fundamental right) and the principle of separation of powers. Sikri CJ himself in Kesavananda Bharati gave a detailed enumeration of the basic features. But unless a later court adopts any one of them as a basis for decision, they are only potential versions of a ratio decidendi under the head basic structure (See, infra). The constitutional basis of the basic structure was taken to be binding precedent by the court in Indira Nehru Gandhi and the court confirmed itself to apply the doctrine to a new set of legal and factual circumstances. Questions regarding the limitations on the constitution amending power were raised before the Supreme Court since 1951 through Shankari Prasad Singh v. Union of India® (Shankari Prasad). The theory of basic structure

5. 1975 Supp SCC 1. 6. AIR 1951 SC 458.

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and the theory of implied limitations and the doctrine of acquiescence formed the bases of minority opinions in Sajjan Singh v. State of Rajasthan’ (Sajjan Singh) and Golak Nath v. State of Punjab’ (Golak Nath). Mudholkar J in his minority judgment in Sajjan Singh? emphasised that We may also have to bear in mind the fact that ours is a written Constitution. The Constituent Assembly which was the repository of sovereignty could well have created a sovereign Parliament on the British model. But instead it enacted a written Constitution, created three organs of State, made the Union executive responsible to Parliament and the State executives to the State Legislatures; erected a federal structure and distributed legislative power between Parliament and the State Legislatures, recognised certain rights as fundamental and provided for their enforcement, prescribed forms of oaths of office or affirmations which require those who subscribe to them to owe true allegiance to the Constitution and further require the Members of the Union Judiciary and of the higher judiciary in the State, to uphold solemn and dignified preamble which appears to be an epitome of the basic features of the Constitution. Can it not be said that these are indicia of the intention of the Constituent Assembly to give a permanency to the basic features of the Constitution? It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Article 368?

This minority opinion has become majority decision in Kesavananda Bharati as was the case with Lord Atkin’s proposition that inter arma legis non silenti laid down in Liversidge v. Anderson". However, in Golak Nath, fundamental rights were expressly recognised as limitations on the constitution amending power. The Golak Nath court unfortunately did not have the benefit of academic disquisitions on the distinction between Law and Constitution, the basis of such distinction being the “criterion

of validity”. Kesavananda Bharati though overtly overruled Golak Nath, but as some jurists pointed out, covertly exhumed Golak Nath. It will be worthwhile and intellectually rewarding to examine the basic structure doctrine as a limitation on the constituent or quasi-constituent or constitution amending power of the Parliament of India and justiciability of constitutional amendments. The Supreme Court of India’s judicial craftsmanship manifested through the basic structure doctrine constituted a legal category of concealed multiple reference and was used by the Supreme Court in striking down constitutional amendments in subsequent years demonstrably to uphoid rule of law and through it, judicial review and judicial power. The patent conflict between the majority decisions in Kesavananda Bharati as judicially reaffirmed in Indira Nehru Gandhi and the Constitution (42nd 7. (1965) 1 SCR 933: AIR 1965 SC 845. 8. (1967) 2 SCR 762: AIR 1967 SC 1643. 9. AIR 1965 SC 845, 864, paras 57, 58. 10. (1942) AC 206.

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Amendment) Act, 1976 raises interesting jurisprudential questions as the continuing validity of Kesavananda Bharati as a binding precedent under Article 141 of the Constitution. Under the orthodox theory of precedent, when there is a conflict of this kind, it is the statute which prevails and the inconsistent judicial decision is held to be without legal force. Can it be said that Kesavananda Bharati which involved the exercise of the constituent power by the judiciary, is likely to be overridden by a later constitutional amendment when the very validity of the amendment is open to challenge on the touchstone of the basic structure doctrine? Where separate judgments are delivered by a divided court, the court’s decision must be taken not referring to the final order of the court, allowing or dismissing the appeal but to a distinct and identifiable question of law which is presented for adjudication as a clear legal issue in itself. The legal position, is, however, different when there is only a single issue to be determined before the court for decision. In such a situation, minority opinions must be excluded because they played no part in the court reaching the final decision. Thus, we see that the observations of individual judges must be related to distinct legal issues, and if a plurality of judges converge to give a majority opinion on that issue, their observations may, to the extent they are consistent with the actual holding on that particular issue, be read together and related to each other so as to constitute the ratio decidendi of that case on that issue. The ratio of the decision so arrived at is, of course, binding on the minority in

a subsequent case. Further, where a judgment is subsequently interpreted by a court with the result that a ratio decidendi of that judgment emerged from this interpretation exercise, even though it may be doubtful whether the judgment under interpretation did contain such a ratio then the subsequent judgment, interpretative of the earlier judgment is binding on courts of coordinate and subordinate jurisdiction. These points can be best illustrated by an examination of Delhi Laws Act, 1912, re'' as interpreted in later decisions and Kesavananda Bharati as later, interpreted in Indira Nehru Gandhi and State of Karnataka v. Union of India'* as also in I.R. Coelho v, State of T.N. (I.R. Coelho). The complexities involved in determining the ratio decidendi in the difficult decisional situations of all these cases in themselves constitute a legal challenge which it is worthwhile for any serious research study of ratio decidendi to confront in the sharpest manner, in order to inquire what interesting light these several decisions throw on the relatively obscurer aspects of the problem of ratio decidendi. The complexities involved in deciding the ratio decidendi are aggravated a good deal when we move to the difficult decision of Kesavananda Bharati where the court was almost evenly split (7:6) and the existence of as 11. Art. 143, AIR 1951 SC 332. 12. (1977) 4 SCC 608. 13. (2007) 2 SCC 1.

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many as 11 opinions in that case has made the search for a common ratio, an

unrealistic exercise. 1. Complexities of “Kesavananda Bharati” According to the orthodox view of precedent, the theory of judicial decision is that every judicial decision on a distinct and identifiable legal issue is built on a course of legal reasoning which lays down the authoritative legal principles determinative of issues requiring decisions. To the extent, the legal reasoning discloses an applicable principle of law which can be ascertained having regard to the material facts and the actual decision of the case, they form operative

part of the ratio decidendi of a case. In order to construct the ratio decidendi of the case, full opportunity must be available to the parties in the later case to expound their view of the ratio, and after contesting claims in this behalf as advanced by counsel for both the sides are fully heard by the instant court, it must then consider what is the true effect of the decision and what is the ratio decidendi of the precedent case which the instant court is required to follow. Although the legal fiction is that the judge must discover the ratio of the earlier case as it was laid down by the author of the judgment in question, this obligation in actual judicial practice is fully discharged, if regard is had to the material facts of the precedent case and the reasonings as disclosed in the judgment are related to these facts and the actual holding in the case. In this respect, the factual position is similar to that involved in construing the legislative intent as embodied in a statute. Even as a parliamentary draftsman, who is the author of the legislative intent, cannot exclude judicial policy choices, to the extent they inevitably arise at the interpretative level, in the matter of ascertaining the sententia legis, so also the author of a judicial decision cannot bind future courts by confronting them with his own version of the ratio decidendi although the future courts are free to adopt that version if they find supporting legal evidence in the actual judgment itself which sustains such a version. In this connection, it merits emphasis to say that while the law declared by the Supreme Court in judicial decisions is binding on subordinate courts under Article 141 of the Constitution, Article 141 cannot in the very context of the doctrine of judicial precedent preclude the freedom open to the future court of ascertaining the ratio of a case as it sees it, after the event and in the light of the litigational exigencies now before it which might on the level of forensic perception of the ratio suggest dimensions which might not have been present in the mind of the earlier court but which necessarily must be taken into account for arriving at a view of the ratio decidendi. Not only has the future court this elementary freedom of determining for itself the true effect of the ratio of the case, guided as it might be in this task, by material facts and the holding in the earlier case and subsequent judicial decisions that might dwell upon the ratio, but it has the plainest duty to so

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construe the ratio by an enlightened interpretative exercise in order to arrive at the proposition of the law which it is obliged to follow. 2. Status of the summary of “Kesavananda Bharati” In the very forefront of Kesavananda Bharati, one is confronted with a summary note to the judgment which is signed by 9 of the 13 judges who took part in that decision and which purports to state the majority view of the court on some of the major though not all legal issues which were made the subject of adjudication. At the outset, it may be made clear by saying that in the limited context of judicial precedent as here, it is neither necessary to embark upon an examination of the several questions of constitutional law which were raised in that case nor with the merits of the majority view on those questions. What is needed, is to discover the ratio of this case on several legal issues presented for adjudication. The judicial policy options and the techniques adopted by the individual judges which led to the view of the law as expounded by them in their legal reasonings may also be considered. The value preferences which guide judicial decision making are an important fact to the problem of determining ratio decidendi for, they often shed light on what facts the judges deemed as material for the purpose of their decision. This apart, in the special context of constitutional decision making, what is modestly and on the institutional level of separation of powers described as judicial exigencies inevitably entails a sharing of the power by the judiciary with the legislative branches in regard to the policy perceiving, prescribing and clarifying roles. Hence, a legislative verdict as to the policy that the law is intended to pursue is not the ultimate determination but it has to be critically evaluated through a judicial review and balancing of the competing interests involved. In this sense, judges not only interpret the Constitution but share in the creative process of amending it. We agree with Prof. Upendra Baxi when he claims that in interpreting Article 368 of the Indian Constitution and in passing upon the constitutional validity upon amendments, judges share the amendatory power with Parliament. Of course, the limited jurisdiction that the judges exercise in this regard on the level of creative policy making arises necessarily as an adjunct to their adjudicatory function. But it is unnecessary to camouflage the whole exercise by raising pedantic objections to the judicial law making of this kind. Against the foregoing background, it is necessary to consider as to what is the constitutional status of the summary by the nine judges in this case. Does the summary constitute law declared by the Supreme Court under Article 141 on the question which it deals with? Does it have the effect of declaring the ratio of the majority judgments on those questions? Mr Seervai is correct in thinking that the summary cannot be taken as a binding declaration of law under Article 141 of the Constitution. The actual effect of this decision as regards the many fundamental questions of constitutional law raised therein can

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be properly assessed and determined only by a process of forensic construction by the later Constitutional Benches to which those questions are referred for disposal in accordance with law. By a declaration in the form of a “summary”, the court cannot obviously relieve the future courts of the necessity of using the actual judgments pronounced in the case as the only authoritative guide to the elucidation of the ratio. In the event of a conflict between the summary version and the version later deduced and adopted by the court, before whom the question arises, evidently, it is the latter court’s version which will have operative force. If the ratio so deduced is by a judge of the High Court, then its credibility will depend upon whether the Supreme Court on the appellate level is persuaded to adopt it as the authentic version of the ratio. Moreover, the ratio decidendi has to be always related to the final holding on the different legal issues in the various judgments. This cannot be done unless the actual judgments are read and then true effects considered. Subject to all the caveat, the “summary” may be used by way of general guidance for sensitising the future judges as to the broad legal issues in respect of which a clear consensus or majority of judicial opinion emerged. Mr Seervai observed that it is difficult to discover the ratio decidendi of the case in Kesavananda Bharati. At best, it may be possible to elucidate a set of principles and to indicate the weight of agreement or disagreement attached to each principle. Mr Seervai concludes that “the theory of precedent laid down by the Supreme Court is in an unsatisfactory state”. Prof. Baxi emphatically denies that such theories are analytically possible and he further maintains that it is a mistake to think (with respect) that where eminent jurists fail to systematise the holding of a case, eminent judges will somehow succeed. Though as a matter of strict law, the status of the “summary” appended to this case is anomalous, nevertheless, insofar as the broad conclusion stated therein can be related to the operative part of the reasonings of the concurring judges who constitute majority for those conclusions, the practical utility of the summary as a persuasive guide to the decisional task of future courts is not to be lost sight of. The summary does provide valuable assistance to counsel, judges and jurists alike, who feel it is their duty to ascertain the ratio of the decision. The weight of the judicial pronouncements of eminent judges who took part in so momentous a decision as this case, on so difficult a question, which judicial exegesis must inevitably confront, as the ratio of that case cannot be lightly brushed aside, though it neither can be held to be legally controlling nor can it be held to be conclusive of all the issues that arose for decision. To illustrate the point, apart from saying that amendments which go outside the basic structure of the Constitution are void, throw any light on the more difficult legal issues as to whether the fundamental rights can be described as part of the basic structure. Independent of the summary, an answer to this question must be sought for in the several judgments in this case as and when a

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proper occasion for adjudication for this matter arises. This question was posed to the judges who took part in the decision of Indira Nehru Gandhi and indeed two conflicting views were expressed on the point both claiming to interpret what was actually decided in this case. Whatever may be the legal status of a summary statement of the law as noticed in this decision either from the general point of view of legal theory or from the more limited standpoint of legal craftsmanship and forensic strategy, this decision is remarkable for the fact that it is the only judgment in which the Supreme Court adopted the unconventional course of appending a summary report. The central effect of the majority decision in Golak Nath was that Parliament could not invoke the amendment power so as to abridge or take away fundamental rights. In the context of Article 13(2) of the Indian Constitution, a

constitutional amendment could impose on fundamental straints than what are permitted to ordinary laws by the of the Constitution. The Constitution (24th Amendment) Act was directed pect of Golak Nath decision. The amendment restated the tial distinction between legislative power and amendment 2.1.

“INDIRA NEHRU GANDHI’’—RaATIO:

rights no greater reprovisions of Part III

to supersede this asfamiliar jurisprudenpower.

How IT IS CLARIFIED BY LATER

DECISIONS

Indira Nehru Gandhi is of seminal significance not only because this case furnishes a historic instance of a constitutional amendment which offended the basic structure of the Constitution in one of its most important aspects, but also because four of the judges who had dissented in Kesavananda Bharati applied the majority decision of that case to invalidate the Constitution (39th Amendment)

Act, (Article 329-A of the Constitution). The Election case

throws instructive light not only on the nature of constituent power but also on the basic structure doctrine itself as a ground for constitutional amendment. All the five judges who were parties to the decision have in their separate judgments made important observations which focus on the ratio decidendi of Kesavananda Bharati, so much so it has become necessary to ascertain and interpret the ratio of Kesavananda Bharati, in the light of the aforesaid observations thereon in the Election case. The treatment of the ratio of Kesavananda Bharati as interpreted in Indira Nehru Gandhi, attention may be usefully invited to the following clarification of the said ratio as given by Beg CJ in Charan Lal Neelam v. Sanjeeva

Reddy“ (Charan Lal Neelam): In Smt. Indira Nehru Gandhi case (supra) this Court had struck down Article 329-A(4) of the Constitution mainly on the ground that it violated the basic

structure of the Constitution inasmuch as Parliament, in exercise of its powers of amendment of the Constitution under Article 368 could not exercise a judicial 14. (1978) 3 SCR 1.

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power of decision on election disputes pending before this court. The basic structure of the Constitution resting on the doctrine of separation of powers, seemed to have been shaken rudely by Article 329-A(4) which was, therefore, declared void.

Evidently, the learned CJ seems to accept by necessary implication that the separation of powers rationale is part of the basic structure and that the ratio in Election case is built on that assumption. Charan Lal Neelam is then an instructive restatement of the ratio in Election case, which must assist judicial evaluation of the reach of the basic structure doctrine as a touchstone of the validity of constitutional amendments. It is necessary to add that only one segment of the ratio in Kesavananda Bharati has been examined as it relates to the basic structure in order to focus attention on the necessity to construe the ratio decidendi of a case in the light of its evolution through later case law. In the Election case, basic structure was interpreted to include democracy in the sense of “free and fair elections”, “equality in the sense of rule of law” (according to Mathew J, it also includes Article 14, itself a fundamental right) and the principle of separation of powers. Sikri CJ, himself in Kesavananda Bharati, gave a detailed enumeration of the basic features. Till a later court adopts any one of them as a basis for decision, they are only potential versions of a ratio decidendi under the head “basic structure”. In Minerva Mills v. Union of India’® (Minerva Mills), the court added “harmony between Fundamental Rights and directive principles” as a basic feature. In L. Chandra Kumar v. Union of India'® (Chandra Kumar), the court added judicial power as a basic feature. The Supreme Court in a number of cases consistently held that “judicial review” is a basic feature. Indira Nehru Gandhi and Charan Lal Neelam have been considered in order to show that the ratio of a case depends for its authoritative clarification and upon its future development through a string of cases. Chandrachud CJ cautions in Deena v. Union of India"’ that any case, even if it is locus classicus, is an authority for what it actually decides. Ratio of a decision can, no doubt, be extended to cases involving identical situations, but only after a careful examination of the rationale of the decision which is cited as a precedent. The creative possibilities opened up by the traditional notion of ratio decidendi permit considerable latitude to judges in the matter of fixing the limits to the ratio. In this connection, attention is also invited to a refreshing instance of a case where Bhagwati J, ina dynamic exposition of Article 21 of the Constitution, has extended its sweep to encompass a right to speedy and fair trial. The learned judge is understandably concerned to point out that social justice which is a paramount principle and a cultural paradigm of the Constitution must inform the interpretative exercise of the court insofar as it relates to the ascertainment and the construction of the ratio decidendi of prior cases. In this connection, 15. (1980) 3 SCC 625. 16. (1997) 3 SCC 261. 17. (1983) 4 SCC 645.

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the learned judge invites attention to what he felicitously describes as a dynamic interpretation placed by the court on Article 21 in Maneka Gandhi v. Union of India'* and observes that the right to speedy trial is implicit in that interpretation. The majority holding in Minerva Mills has been subjected to a devastating critique in some academic writings to which it is now necessary to invite attention. The majority decision has been criticised as follows: Firstly, it is said that there is no ratio in Kesavananda on the relation between the directive principles and fundamental rights to justify the Minerva holding that subordination of Articles 14 and 19 to the directive principles would destroy the Basic Structure.

The result is to restore Article 31-C to its pre-1976 position, namely, to protect only laws which seek to implement Article 39(b) and (c), subject of course to judicial review, as was held in Kesavananda Bharati (as to the validity of the article, see, Waman Rao v. Union of India’’). Paradoxically, while a review petition is pending against the decision in the Minerva Mills, Chinnappa Reddy J (Bhagwati, Venkataramiah and Baharul Islam JJ, concurring) has questioned its soundness in striking down Article 31-C as amended by the 42nd Amendment Act. But such observations do not suffice to overrule the decision in the Minerva Mills which stands as good law. It is rather unfortunate that a Division Bench of the court in Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd.” (Sanjeev Coke) by a majority of two judges (Bhagwati and Chinnappa Reddy JJ) should have thought it proper to characterise the majority decision in Minerva Mills on the constitutionality of amended Article 31-C as a mere exercise in an obiter dictum lacking in precedential force, compelling and controlling under Article 141 of the Constitution. We submit that such a criticism of the majority pronouncement in Minerva Mills is not in line with judicial discipline which mandates that a Division Bench comprising of lesser number of judges should not question the decision of a larger Constitutional Bench. Be that as it may, the validity of the majority decision in Minerva Mills, striking down Article 31-C as amended, is not impaired by the contrary observation on the subject contained in Sanjeev Coke. Sanjeev Coke went beyond the judicial norms when a Bench of the Supreme Court (leading judgment by Chinnappa Reddy J) questioned the very ratio of Minerva Mills. The judgment, somehow is disturbing. Sanjeev Coke has added to the confusion that already exists on the question of ascertaining the ratio of similar case. | It is both disturbing and confusing when the court says that they have some misgivings about Minerva Mills despite its rare beauty and persuasive rhetoric. Chinnappa Reddy J, obviously echoing the dissenting opinion of Bhagwati J in 18. (1978) 1 SCC 248. 19, (1981) 2 SCC 362. 20. (1983) 1 SCC 147.

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Minerva Mills, questions the competence of the court to answer hypothetical or academic questions. He further maintains that judicial pronouncements cannot be immaculate legal conceptions. He further cautions that it is inexpedient for the court to delve into problems which do not arise and express opinion thereon. Mr Soli Sorabjee proposes that at least, five features of the Constitution i.e. secularism, democracy, rule of law, federalism, and independence of the

judiciary, are “unanimously” thought to comprise the basic features of the Constitution. While reiterating the possibility that the court may add to these features of the Constitution, his statement would draw adequate support from the court’s precedents across the last three decades. Arguably, socialism and equality merit a mention as two other features which have played a significant, though not consistent, role in basic structure review cases. Mr Sorabjee’s confidence in naming these basic features rests assuredly on a reading of the court’s precedents. For example, Sikri CJ in Kesavananda Bharati interpreted the word “amendment” in Article 368 by first conducting a conspectus or survey of a wide range of constitutional provisions paying special attention to the Fundamental Rights and directive principles, chapters to gather insights into the appropriate scope of the amending power under Article 368. Sawant J adopts a similar approach in S.R. Bommai v. Union of India*' (Bommai) to conclude that the constitutional value of secularism constrains and guides the executive power to issue proclamation of President’s Rule under Article 356. This approach to constitutional interpretation, which may be described as a “structural approach’, has not been consistently adopted by all judges in these cases or by other courts deciding basic structure review cases. Despite this lack of unanimity in judicial opinions, arguably a structural approach to constitutional interpretation offers a potential explanation for the legal legitimacy of the basic structure doctrine.” In Kihoto Hollohan v. Zachillhu and Ors”, it was argued that an independent adjudicatory machinery for resolution of electoral disputes is an essential incident of democracy, which is a basic feature of the Indian Constitution. The investiture of the power of resolving such disputes in the Speaker or the Chairman does not answer this test of the independent, impartial quality of adjudicatory machinery. Therefore, para 6(1) of Schedule X is violative of the basic feature. Refuting the argument, the court held that the criticism that the provisions incur the vice of unconstitutionality ignore the high status and importance of the office of the Speaker in a parliamentary democracy. The Speakers/Chairmen hold a pivotal position in the scheme of parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to take far-reaching decisions in the functioning of parliamentary democracy.

21. (1994) 3 SCC 1. 22. Sudhir Krishna Swamy, 160, 170. 23. 1992 Supp (2) SCC 651.

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In R.C. Poudyal v. Union of India™, the petitioner challenged the reservation of seats for ethnic and religious groups, who are Sikkimese of Nepali origin, as violation of fundamentals of the Indian Constitution and violation of the principles of Republican and Secular character of the Indian Constitution which form part of the basic structure. The court by a majority of 3:2 held that Article 371-F(/) is not violative of any basic feature of the Constitution. The majority held on examination of the history of Sikkim Constitution, proportionality of representation is a broad, general and logical principle but not intended to be expressed with arithmetical precision. Mathematical proportionality of representation is not a ‘declared basic requirement in each and every part of the territory of India. Article 371-A, a special provision in respect of State of Nagaland, Articles 239-A and 240 illustrate the permissible areas and degrees of departure. The inequalities in representation in this case are an inheritance and compulsion from the past. Historical considerations have justified a differential treatment. There is material to sustain the conclusion that the “Sangha” had long been associated itself closely with the political developments of Sikkim and was interwoven with the social and political life of its people. In view of this historical association, the provisions in the matter of reservation of a seat for the Sangha recognises the social and political role of the institution more than its purely religious identity. Minority held that the amendment was in violation of the basic structure. According to Sharma CJ, from the entire scheme of the Constitution, its basic philosophy rejects the concept of separate electorate in India. According to the learned judge, Article 371-F permits separate electorates and to give a different construction, would be highly artificial and speculative and also violative of the basic feature of the Constitution. Regarding clause 9(1) of Article 371, according to the learned judge, it is violative of the basic feature of the Constitution. He observed that the sole objective of providing reservations in the Constitution is to put the principle of equal status to work .... The situation in respect to representation in legislature is entirely different. The excessive reservations in this situation will bring in an imbalance, of course, of another kind but defeating the cause of equal status all the time.

If the Constitution is so interpreted as to permit, by an amendment, a seat to be reserved in the legislature for a group of religious institutions like the Buddhist monasteries, it will follow that such a reservation would be permissible for institutions belonging to other religions also. There will not be any justifiable reason available against a similar provision for the Christian missionary institutions in the country on the ground of their services to the cause of upliftment of adivasis, their contribution in the field of education, and their efforts, 24. 1994 Supp (1) SCC 324.

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for medical assistance to the underprivileged; or for the innumerable other religious institutions of Hindus, Muslims, Sikhs and other religions providing invaluable relief to the helpless. And all this may ultimately change the very complexion of the legislatures. The effect that only one seat has been reserved today for the monasteries in Sikkim is the thin edge of the wedge which has the potentiality to tear apart, in course of time, the very foundation which the Democratic Republic is built upon. According to S.C. Agarawal J, the continuation of a practice which prevailed in Sikkim from 1958-1976 with regard to reservation of one seat for Sanghas and the election to the said seat on the basis of a special electoral college composed of Sanghas alone cannot be justified on the basis of historical considerations and the impugned provisions are violative of the constitutional mandate contained in Articles 15(1) and 325 of the Constitution.

In Raghunathrao Ganpatrao v. Union of India*®, an important question that arose for consideration of the Supreme Court was whether the 26th Amendment Act, which completely omitted Articles 291 and 362 and inserted a new Article 363-A and also substituted a new clause (22) in place

of its original clause of Article 366, has destroyed, damaged and altered the basic structure of the Constitution. A 13-Judge Bench of the Supreme Court in Kesavananda Bharati came to the conclusion that the Constitutional Bench will determine the validity of the Constitution (26th Amendment) Act, 1971 in accordance with law. The vital issue considered by the learned judges was whether the impugned Amendment Act which has taken away right to privy purse has damaged any basic structure or essential features of the Constitution and said, The right to property even as a fundamental right was not a part of the Basic Structure and even assuming that the right to privy purse is a property, it is a right capable of being extinguished by authority of law vide Article 300-A. Needless to emphasise, according to the rules laid down in Kesavananda Bharati that even the fundamental right can be amended or altered provided the Basic Structure of the Constitution is not damaged in any way.

It is a misnomer that the rulers made their sacrifices for which they were given just compensation and assured permanent payments of privy purse. What was given to the rulers was a political pension in consideration of their past pension. Hence, there is no question of breaking of solemn pledge or breach of promises, etc. given to the rulers. Therefore, the repudiation of the same cannot be said to have amounted to any breach of those guarantees and promises resulting in alteration of the basic structure of the Constitution. The observations made in Madhava Rao Scindia v. Union of India that “the privileges of rulers are made an integral part of the constitutional scheme” and that “institution of rulership is an integral part of the constitutional scheme” 25. 1994 Supp (1) SCC 191. 26. (1971) 1 SCC 85.

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must be read in the context of a challenge to an ordinance which sought to render nugatory certain rights guaranteed in the Constitution then existing. In any event, the constitutional bar of Article 363 denudes the jurisdiction of any court in relation to disputes arising from covenants and treaties executed by rulers. Hence, it is idle to contend that the 26th Amendment Act in any manner interferes with the basic structure of the Constitution. Thus, the only question whether there is any change in the basic structure of the Constitution by deletion of Articles 291, 362 and by insertion of Article 363-A and amendment of clause (22) of Article 366, the learned judge answered this question in the negative observing that the basic structure or the essential features of the Constitution is/are in no way changed or altered by the impugned Amendment Act. He said, We cannot make surmises on ‘ifs’ and ‘buts’ and arrive at any conclusion that Articles 291 and 362 should have been kept in fact as special provisions made for minorities in the Constitution. It is but a step in the historical evolution to achieve fraternity and unity of the nation transcending all the regional, linguistic, religious and other diversities which are the bedrock on which the constitutional fabric has been raised. The distinction between the erstwhile Rulers and the citizens of India has to be put an end to so as to have a common brotherhood.

Speaking for the unanimous court of nine judges, Y.K. Sabharwal CJ, in /.R. Coelho, while broadly considering whether it is permissible for Parliament to immunise legislations from Fundamental Rights by inserting them into Schedule IX and if so, what is its effect on the power of judicial review particularly after the basic structure doctrine was propounded i.e. after 24 April 1973 stated that “essentially, it is the consequence of the amendment which is relevant than its form to determine constitutional validity of the Schedule IX laws inserted after 24 April 1973 on the touchstone of the basic structure doctrine, to be adjudged by applying the direct impact and effect test i.e. rights test. The court briefly traced the constitutional developments leading up to Kesavananda Bharati and reiterated and reaffirmed the basic structure doctrine as developed and expanded in the post-Kesavananda Bharati decisional law. The court, through this decision, confirmed the ratio of Kesavananda

Bharati as expounded in various decisions of the Supreme Court developed after 24 April 1973. The court in /.R. Coelho held that the decision in Kesavananda Bharati was rendered on 24 April 1973 by a 13-Judge Bench and by majority of 7:6, Golak Nath was overruled. The majority opinion held that Article 368 did not enable Parliament to alter the basic structure of the Constitution. The Constitution (24th Amendment) Act, 1971 was held to be valid. Further, the

first part of Article 31-C was also held to be valid. However, the second part of Article 31-C that “no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy” was declared unconstitutional. The Constitution

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(29th Amendment) Act was held valid. The validity of the 26th Amendment was left to be determined by a five-Judge Constitutional Bench. The majority opinion in Kesavananda Bharati did not accept the unlimited power of Parliament to amend the Constitution and instead held that Article 368 has implied limitations. Article 368 does not enable Parliament to alter the basic structure of the Constitution. While construing the basic structure doctrine and its precedential value, due regard must be had to various decisions which led to the expansion of ratio and the consequent development of law, the court emphasised in /.R. Coelho. The court in Minerva Mills struck down clauses (4) and (5) and Article 368 finding that they violated the basic structure of the Constitution. The next decision to be noted is that of Waman Rao vy. Union of India”’ (Waman Rao). The

developments that took place post-Kesavananda Bharati have been noticed in this decision. It was held in Chandra Kumar that power of judicial review is an integral and essential feature of the Constitution constituting the basic part, the jurisdiction so conferred on the High Courts and the Supreme Court is a part of inviolable basic structure of Indian Constitution. In Bommai*, it was reiterated that judicial review is a basic feature of the Constitution and that the power of judicial review is a constituent power that cannot be abrogated by judicial process of interpretation. In Indira Nehru Gandhi, for the first time, the challenge to the constitutional amendment was not in respect of the rights to property or social welfare, the challenge was with reference to an electoral law. Analysing this decision, Mr Seervai said that “the judgment in the Election case broke new ground, which has important effects on Kesavananda Bharati’s case itself”. Further the author stated that “no one can now write on the amending power, without taking into account the effect of the Election case”.” In Waman Rao, Chandrachud J and in Minerva Mills, Bhagwati J have taken

note of binding effect of majority judgments in Kesavananda Bharati and the development of law post-Kesavananda Bharati was also considered. The conclusion has rightly been reached, also having regard to the decision in J/ndira Nehru Gandhi that post-Kesavananda Bharati or after 24 April 1973, the Schedule IX laws will not have the full protection. The basic structure doctrine was invoked in Kesavananda Bharati but its effect, impact and working was examined in Indira Nehru Gandhi, Waman Rao and Minerva Mills. On the issue of equality, the court in /.R. Coelho did not find any contradiction or inconsistency in the views expressed by Chandrachud J in Indira Nehru Gandhi, by Krishna Iyer J in Bhim Singh and Bhagwati J in Minerva Mills. All these judgments show that violation in individual cases has to be examined to find 27. (1981) 2 SCC 362. 28. (1994) 3 SCC 1. 29. H.M. Seervai, Constitutional Law of India (4th Edn.) paras 30.18, 30.19.

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out whether violation of equality amounts to destruction of the basic structure of the Constitution. Kesavananda Bharati did not hold that Fundamental Rights chapter is not part of basic structure. Khanna J, while considering 29th Amendment,

had

obviously in view that the laws that had been placed in the Schedule IX by the said amendment related to the agrarian reforms. Khanna J did not want to elevate the right to property under Article 19(1)(/) to the level and status or basic structure of the Constitution that explains the ratio of Kesavananda Bharati. This is an instance where a later court confirms the ratio of earlier cases. Doubts as to the opinion of Khanna J stood resolved on the clarification given in Indira Nehru Gandhi by the learned judge that in Kesavananda Bharati, he never held that fundamental rights are not a part of the basic structure of the Constitution. The majority opinion in Kesavananda Bharati clearly is that the principles behind the Fundamental Rights are part of the basic structure of the Constitution. It is necessary to always bear in mind that Fundamental Rights have been considered to be the heart and soul of the Constitution. Rather, these

rights have been further defined and redefined through various trials having regard to various experiences and some attempts to invade and nullify these rights. The Fundamental Rights are deeply interconnected. Each supports and strengthens the work of the other. The Constitution is a living document, its interpretation may change as the time and circumstances change to keep pace with them. This is the ratio of the decision in Indira Nehru Gandhi asserted by the court in [.R. Coelho. In Kesavananda Bharati, the majority held that the power of amendment of the Constitution under Article 368 did not enable Parliament to alter the basic structure of the Constitution. Kesavananda Bharati laid down a principle as an axiom which was examined and worked out in Indira Nehru Gandhi, Minerva Mills, Waman Rao and Bhim Singh. The power of amending the Constitution is a species of law-making power which is the genus. It is a different kind of law-making power conferred by the Constitution. It is different from the power to frame the Constitution i.e. a plenary law-making power as described by Mr Seervai*’. The scope and content of the words “constituent power” expressly stated in the amended Article 368 came up for consideration in Indira Nehru Gandhi. Article 329-A(4) was struck down because it crossed the implied limitation of amending power, that it made the controlled Constitution, uncon-

trolled; that it removed all limitations on the power to amend; and that it sought to eliminate the golden triangle of Article 21 read with Articles 14 and 19.2! Fictional validation based on the power of immunity exercised by Parliament under Article 368 is not compatible with the basic structure doctrine and, therefore, the laws that are included in Schedule IX have to be 30. Constitutional Law ofIndia (4th Edn.).

31. See also, Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625.

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examined individually for determining whether the constitutional amendments by which they are put in Schedule IX damage or destroy the basic structure of the Constitution. Being bound by all the provisions of the Constitution and also by the basic structure doctrine, the court has necessarily to scrutinise the Schedule IX laws. The court further held that the constitutional validity of the Schedule IX laws on the touchstone of basic structure doctrine can be adjudged by applying the “direct impact and effect test” i.e. rights test, which means the form of an amendment is not the relevant factor, but the consequence thereof would be the determinative factor. This test may provide guidelines for the future courts and may have binding effect as a precedent. The majority judgment in Kesavananda Bharati read with Indira Nehru Gandhi, requires the validity of each new constitutional amendment

to be

judged on its own merits. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account for determining whether or not it destroys basic structure. The impact test would determine the validity of the challenge. The court in /.R. Coelho emphasised that justification for conferring protection, not blanket protection, on the laws included in the Ninth Schedule by Constitutional Amendments shall be a matter of Constitutional adjudication by examining the nature and extent of infraction of a Fundamental Right by a statute, sought to be Constitutionally protected, and on the touchstone of the basic structure doctrine as reflected in Article 21 read with Article 14 and Article 19 by application of the ‘rights test’ and the ‘essence of the right’ test taking the synoptic view of the Articles in Part III as held in /ndira Nehru Gandhi. Applying the above tests to the Ninth Schedule laws, if the infraction affects the basic structure then such a law(s) will not get the protection of the Ninth Schedule.

Given the progressive orientation of the Supreme Court, its creative role under Article 141, and the creative elements implicit in the process of determining ratio decidendi, it is not surprising that the judicial process has not been crippled in the discharge of its duty to keep the law abreast of the times by the traditionalist theory of stare decisis. However, from the point of view of legal theory, our judicial decisions suffer from insufficient perceptions of the rich jurisprudential insights which have been brought to bear upon classic analysis of the notion of ratio decidendi in mature juristic writings. Kesavananda Bharati and the decisions that have followed as its aftermath demonstrate the central importance of the judicial process and the institutionalisation of the political character of that function to the preservation of the constitutional roots of our democratic process which are to be found in the broad concept of basic structure and features as expounded in those cases. Born and brought up in the Austinian positivistic tradition, the Indian Supreme Court in the initial years did not question parliamentary supremacy. However, during the mid-1960s, the Supreme Court embarked on a

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confrontationist course mainly due to the prevalent political instability. The confrontation then continued till the decision in Kesavananda Bharati, which is a hallmark for judicial accommodation of parliamentary power, though the Election case was an instance where the judiciary had to take it to the apotheosis primarily to control the naked power of a brute and blind majority in Parliament. From then on, it is a story of mutual accommodation and judicial restraintivism which have characterised the relationship between judiciary and legislature. However, Chandra Kumar has reiterated on the one hand, limited legislative power as a basic feature and on the other hand, unlimited judicial power as part of the basic structure. Thus, recent trends are ominous portents of megalomaniacal assumption of power by the judiciary. In conclusion, it may be emphasised that the fundamental principles of equity and fair play, which Constitution enshrined and supported, will serve as counsels of moderation. In the society so riven that the spirit flourishes, no court need save; that a society which evades its responsibility by thrusting upon the court the nurture of that spirit, that spirit in the end will perish. The fundamental freedoms must be written in the hearts and minds of men and women of the country. The tendency to cling to jurisdiction and expand the scope of judicial power must be resisted by the judiciary itself.

20

Basic structure and basic human rights A RELOOK

AT “KESAVANANDA

BHARATI’’*

Dr. R. Venkata Rao**

It would not be an overstatement if I assert that both Mr H.M. Seervai and Mr N.A. Palkhivala were the architects of present human rights jurisprudence, which is at present a powerful tool in the hands of courts and civil society to combat governmental lawlessness and abuse of power on the part of authorities. As a teacher of Human Rights and International Law, I therefore, find it apt to contribute a Chapter on human rights dimension of Kesavananda Bharati v. State of Kerala’ (Kesavananda Bharati) and pay my respects to their profound scholarship. There are times in the life of a nation when events overtake it. Kesavananda Bharati is undoubtedly such a moment for India. Indeed, much has been said

about this decision, and many adjectives have been coined in an inadequate attempt to fully grasp the magnitude of its contribution to Indian democracy. Much has been written about the role its progenitor, Mr Palkhivala, played in the episode. I do not propose to revisit these, important as they are, for there is one feature of Kesavananda Bharati that has gone curiously unnoticed—its contribution to human rights. The average observer of Indian law and politics would not associate Kesavananda Bharati with human rights in the manner he would with Maneka Gandhi v. Union of India’. The reason perhaps is that human rights flow from the basic structure doctrine, but did not create it. In other words, it is not solely

the concern of protecting human rights that moved the court to evolve the basic structure doctrine. However, this cannot detract from the importance of the connection between the doctrine and what has unquestionably emerged as the most important branch of public law in the 21st century—human rights. Today, I propose to discuss this contribution in three senses: firstly, the events that culminated in Kesavananda Bharati. Secondly, I will briefly revisit the decision in Kesavananda Bharati itself, and suggest that it contains * Presented at the Seminar on “Rearguing Kesavananda Bharati”, organised by the Centre for Public Law, Pune, held on 16-1-2010.

** Vice Chancellor, NLSIU, Bangalore. Email: [email protected]. 1. (1973) 4 SCC 225. 2. (1978) 1 SCC 248.

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188

interesting clues as to the role that human rights played in this constitutional saga. Finally, I will analyse the transition from Golak Nath v. State of Punjab? (Golak Nath) to Kesavananda Bharati to add substance to the contention that

human rights was not irrelevant to this constitutional question.

1. Judicial history—From “Shankari Prasad” to “Golak Nath” The Constitution

(Ist Amendment)

Act,

1951, which

inserted,

inter alia,

Articles 31-A and B in the Constitution was the subject-matter of decision in Shankari Prasad Singh v. Union of India* (Shankari Prasad), the first of the trilogy of cases that preceded the seminal decision in Kesavananda Bharati. The main arguments in favour of unconstitutionality revolved around whether the Amendment Act, insofar as it purports to take away or abridge the rights conferred by Part III of the Constitution, fell within the prohibition of Article 13(2). The court rejected all contentions based on the amendment procedure. In response to the contention on the scope of Article 13(2), the court opined: Although “law” must ordinarily include constitutional law, there is a clear demarcation between ordinary law, which is made in the exercise of legislative power and constitutional law, which is made in the exercise of constituent power. In the context of Article 13, “law” must be taken to mean rules or regu-

lations made in exercise of ordinary legislative power and not amendments to the Constitution made in the exercise of constituent power with the result that Article 13(2) does not affect amendments made under Article 368. The next time the issue came before the court was 13 years later in Sajjan Singh v. State of Rajasthan? (Sajjan Singh). It is interesting to note that the propriety of Shankari Prasad was not challenged in Sajjan Singh, but Gajendragadkar CJ still thought it fit to give reasons in support of the reasoning of Patanjali Sastri J in Shankari Prasad. The learned CJ thought that the power to amend in the context was a very wide power and it could not be controlled by the literal dictionary meaning of the word “amend”. He further held that when Article 368 confers on Parliament the right to amend the Constitution, it can be exercised over all the provisions of the Constitution. He thought that if the Constitution-makers had intended that any future amendment of the provisions in regard to fundamental rights should be subject to Article 13(2), they would have taken the precaution of making a clear provision in that behalf.®

He was of the view that even though the relevant provisions of Part III can be justly described as the very foundation and the cornerstone of the democratic way of life ushered in this country by the Constitution,itcannot be said that the Fundamental Rights guaranteed to the citizens are eternal and inviolate in the sense that they can never be abridged or amended. According to him, it was 3. 4. 5. 6.

(1967) 2 SCR 762. AIR 1951 SC 458. (1965) 1 SCR 933: AIR 1965 SC 845. Ibid, para 28.

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legitimate to assume that the constitution makers visualised that Parliament would be competent to make amendments in these rights so as to meet the challenge of the problems which may arise in the course of socio-economic progress and development of the country. These two cases show the approach of the court to questions of the status of Fundamental Rights and, in turn, human rights. The court rejected the contention that Fundamental Rights could not be amended, and allowed such amendment by normal amendment procedure, leaving these so-called inviolable provisions shorn of much needed protection. However, while these decisions were detrimental to fundamental human rights, that is not in itself an indictment of their reasoning and rationale. For one, much could be said for the textual interpretation of the relevant provisions by Sastri and Gajendragadkar JJ. Secondly, the court pointed out the very valid concern that the unamendability of Fundamental Rights would mean that Part III of the Constitution could not stay in step with socio-economic changes and developments. Such a static Constitution was clearly not in the best interests of the nascent Indian democracy, and could not have been intended by the drafters. Finally, a survey of decisions in this period reveals a general reluctance on the part of the court to impose competence-based restrictions on Parliament. Given that India became a Republic in the year when Shankari Prasad was decided, and was all of 14 years old at the time of Sajjan Singh, this sentiment cannot be criticised either. However, while a majority of the court interpreted the Constitution with a strong emphasis on the presumption of constitutionality of parliamentary legislation, a dissenting note was struck by Hidayatullah J which went on to lay the foundations of Golak Nath. In his words: It is true that there is no complete definition of the word ‘law’ in the article but it is significant that the definition does not seek to exclude Constitutional amendments which it would have been easy to indicate in the definition by adding ‘but shall not include an amendment of the Constitution’... The meaning of Article 13 thus depends on the sense in which the word ‘law’ in Article 13(2) is to be understood

... The Constitution gives so many assurances in Part III that it would be difficult to think that they were the play-things of a special majority. To hold this would mean prima facie that the most solemn parts of our Constitution stand on the same footing as any other provision and even on a less firm ground than one on which the articles mentioned in the proviso stand.

This dissenting view of Hidayatullah J formed the foundations on which the decision in Golak Nath was based. As observed by no less a jurist than Granville Austin, the period around the time Ms Indira Gandhi came to power was when the confrontationist stance between the court and Parliament began to emerge, and the evolution of the basic structure also possibly owes its origins to this politico-judicial situation. In Golak Nath, the petitioner urged before the court that Shankari Prasad and Sajjan Singh had been wrongly decided by this court. Subba Rao CJ, speaking for himself and four other judges, summarised the conclusions as follows:

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Basic Structure Constitutionalism

1. The power of Parliament to amend the Constitution is derived from Articles 245, 246 and 248 of the Constitution and not from Article 368

thereof, which only deals with procedure. Amendment is a legislative process. 2. Amendmentis “law” within the meaning of Article 13 of the Constitution and, therefore, if it takes away or abridges the rights conferred by Part III thereof, it is void. *

*

*

5. We declare that the Parliament will have no power from the date of this decision to amend any of the provisions of Part III of the Constitution so as to take away or abridge the Fundamental Rights enshrined therein. However, the Chief Justice refused to express an opinion on the contention that in exercise of the power of amendment, Parliament cannot destroy the fundamental structure of the Constitution but can only modify the provision thereof within the framework of the original instrument for its better effectuation. M. Hidayatullah J reaffirmed this decision, observing the following: 1. The Fundamental Rights are outside the amendatory process if the amendment seeks to abridge or take away any of the rights. 2. Sankari Prasad’s case (and Sajjan Singh’s case which followed it) conceded the power of amendment over Part III of the Constitution on an erroneous view of Articles 13(2) and 368. *

*

*

4. This court having now laid down that Fundamental Rights cannot be abridged or taken away by the exercise of amendatory process in Article 368, any further inroad into these rights as they exist today will be illegal and unconstitutional unless it complies with Part III in general and Article 13(2) in particular. 5. For abridging or taking away Fundamental Rights, a Constituent body will have to be convoked. This mapping of the judicial path traversed by the Supreme Court from 1950-1967 shows how judicial deference gave way to an activist protection of fundamental human rights over the better part of two decades. It is against this backdrop that the decision of 13 judges of the court in Kesavananda Bharati assumes great relevance. 2. “Kesavananda Bharati” —Redefining the Indian Constitution

I mentioned earlier how the dissenting opinion of Hidayatullah J in Sajjan Singh led to the decision in Golak Nath. Similarly, it was Mudholkar J’s dissent in Sajjan Singh that led to Kesavananda Bharati, and the evolution of the basic structure doctrine. Interpreting the intent behind the different provisions in the Constitution, the learned judge observed that it was meant to be a document that gave effect

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to some sacrosanct values, and had to be interpreted as such. All the efforts of

the Constituent Assembly were directed towards the founding of a nation based on these immutable values. Above all, it formulated a solemn and dignified Preamble which appears to be an epitome of the basic features of the Constitution. Can it not be said that these are indications of the intention of the Constituent Assembly to give a permanency to the basic features of the Constitution?’ Further,

It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the

purview of Article 368?®

This line of argument was taken further by the likes of M.K. Nambiar when arguing Golak Nath, but finally saw the light of day in Kesavananda Bharati. The period between 1967-1973 was one of great constitutional conflict, with the status of the right to property, and issues of the guardianship of the Constitution dominating political and judicial debates. Finally, the constitutional validity of amendments by which two State enactments were added to Schedule IX, and granted constitutional immunity, was challenged before a Full Bench of 13 judges of the Supreme Court in Kesavananda Bharati. These enactments had already been struck down as unconstitutional by the Kerala High Court in V.N. Narayanan Nair v. State of Kerala’ before the said amendment. The Supreme Court decision comprises 11 separate judgments, resulting in a veritable quagmire of judicial dicta and jurisprudential controversies. In an attempt to resolve some of these issues, nine judges signed a summary statement which records the most important conclusions reached by them in this case. However, as Granville Austin correctly points out, there are several discrepancies between the points contained in the summary signed by the judges and the opinions expressed by them in their separate judgments. However, these discrepancies aside, the decision gave birth to the seminal concept of the “basic structure”. In Kesavananda Bharati, 7 of the 13 judges, including Sikri CJ who signed the summary statement, declared that Parliament’s constituent power was subject to inherent limitations. While there was a great degree of uncertainty as to what these limitations were, a majority of the court agreed that there were some limitations. These limitations were the basic structure of the Constitution. However, one question that has troubled jurists and constitutional experts alike is, where does the basic structure originate from? Is it a set of values that the drafters of the Indian Constitution sought to protect, and which, in turn,

should influence its interpretation? Or is it a set of provisions of the Constitution, 7. Ibid, para 56. 8. Ibid, para 57. 9. AIR 1971 Ker 98.

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which were meant to be its foundations, which should be preserved at any cost? The decision in Kesavananda Bharati seems to be deeply ambiguous on this issue. The emphasis placed by some of the judges like Sikri J on the Preamble suggests that the basic structure has an extra-constitutional origin. However, Chandrachud J’s enunciation of the basic structure doctrine in the subsequent decision in Indira Nehru Gandhi v. Raj Narain" suggests otherwise. While he dissented from the majority in Kesavananda Bharati, he laid down a test that is now widely quoted as the accepted standard for a basic structure analysis: to examine in each individual case the place of the particular feature in the scheme of the 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.

This statement can be taken as very strong authority for the proposition that the search for the basic structure of the Constitution begins and ends in the Constitution. This issue is quite apart from the other raging debate of what the basic structure consists of, which essentially, is an issue of substance. This issue is one of the procedure, where one does look for the basic structure of the Constitution. As I will now elaborate, especially in the context of human rights, this debate is of immense importance. 3. “Kesavananda Bharati” and human rights Having discussed the evolution of the basic structure doctrine and its actual enunciation in Kesavananda Bharati and the cases which follow, I now move on to the final issue I shall be discussing here. One of the most interesting aspects of the relationship between Kesavananda Bharati and Golak Nath is the differing stances adopted on the sanctity of Fundamental Rights. From an entirely human rights perspective, the decision in Golak Nath seems prima facie ideal. Laying down that the Fundamental Rights are immutable and unchangeable, the decision seemed to establish beyond doubt the primary importance of the rights in the Indian Constitutional scheme. On the other hand, Kesavananda Bharati seemed to be more equivocal on this aspect. Six judges on the Bench were of the opinion that the basic structure doctrine found no place in Indian jurisprudence. Six were of the view that the basic structure doctrine was a tool available to the Indian judiciary, and that Fundamental Rights formed an essential part of this basic structure. Khanna J, whose opinion is probably the narrow thread on which Indian constitutional integrity rests, opined that while there was a basic structure to the Indian Constitution, funda-

mental rights per se did not form a part of it. In this scenario, did Kesavananda Bharati’s departure from Golak Nath signify a departure from the primacy of fundamental human rights? I think the answer to that question must be in the negative. The effect of Golak Nath was that Part III of the Constitution was rendered untouchable. 10. 1975 Supp SCC 1.

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Not only was a dilution of the rights impermissible, any modification of the rights would also not be possible. This means that in cases where the socioeconomic milieu of the country necessitated the adaptation of existing rights, or the addition of new rights to Part III, Parliament would be powerless to do so. This static Part III clearly could not have been the intent of the Constituent Assembly, which intended a Constitution for the future of India. Thus, the ri-

gidity of Golak Nath’s decision is a double-edged sword which crystallises the fundamental human rights as they existed at the time of drafting, which safe as it may be, is not in the best interests of Indian constitutional dynamism, and neither in the best interests of actual effectual human rights delivery. Kesavananda Bharati, on the other hand, laid down the broader proposition that there is some basic structure to the Constitution which is immutable and unchangeable. As long as this is preserved, the Constitution can be amended and adapted to cater to changing socio-economic and politico-legal realities. This means that Fundamental Rights in India can be amended, as long as they do not depart from what was intended as being a part of the basic structure. The decision is left to each subsequent Bench of the Supreme Court, to decide on facts before it, what comprises the basic structure. This stance, in my opinion, is more ideally suited to constitutionalism than the view adopted in Golak Nath. The only down-side to the dynamism that Kesavananda Bharati allows is the possible reluctance of future judges of the Supreme Court to be champions of civil, political, economic and social liberties. However, a survey of the Indian Supreme Court’s jurisprudence over the last three decades proves this concern to be unfounded. The Supreme Court has repeatedly shown itself to be the bulwark of these rights, adopting an activist and firm stance to accommodate social concerns in the Indian constitutional jurisprudence. With such dynamic judges on the court, concerns about the basic structure doctrine proving to be an illusory doctrine, can be laid to rest in peace. The final issue that remains to be addressed harks back to the question of origins of the doctrine. I mentioned earlier that it is unclear whether the basic structure doctrine originates from the Constitution or is extra-constitutional. The significance of this decision cannot be better explained than by looking at the decision of the Supreme Court in ADM, Jabalpur v. Shivkant Shukla"’. Widely regarded as one of the lowest ebbs in Indian constitutional history, there is much which could be said for the legal reasoning adopted by the majority. Their point was simple, the rights granted by the Indian Constitution are exhaustive, and have no place outside the Constitution. Hence, any suspension of these rights permitted by the Constitution, extinguishes the rights altogether. Khanna J, in a sole scathing minority opinion, begged to differ. In his view, Part III of the Constitution merely codifies the rights which exist outside the Constitution. Hence, even if Part III may be suspended by a constitutionally permissible procedure, the rights continue to exist. This clearly shows the 11. (1976) 2 SCC 521.

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significance of resolving whether the basic structure finds place outside or inside the constitutional document. The other importance of this debate is the possibility of borrowing from international jurisprudence, if the basic structure were considered as having a wider scope. Over the few decades, there has been an active human rights movement all over the world, which India is still lagging behind in. Taking a more expansive view of the basic structure doctrine will allow the court to guide the evolution of the Indian Constitution to be in step with international human rights developments, thus truly making it a document for eternity. In short, it is time to reassess the basic structure doctrine as a matter of some urgency. To add greater cohesion to this doctrine, it is indubitable that courts must define it more precisely than has been possible to date. While it is no doubt the case that these are terms that resist a precise definition, I have tried to demonstrate that perhaps this exercise may usefully take the direction of human rights, and fundamental rights. History will, as ever, be the ultimate witness to the success or failure of these efforts, but it is certain that 24 April 1973 will always be remembered as a day that defined India’s constitutional history.

21

India, that is, Bharat ““KESAVANANDA

BHARATI”

POSITIVIST FOUNDATION

—AN

ENQUIRY

INTO

OF THE BASIC STRUCTURE

DOCTRINE

Dr. S.L. Deshpande*

Both Mr H.M. Seervai and Mr N.A. Palkhivala invariably brought in jurisprudential principles in their discourses in leading controversies. It is, therefore, most appropriate on my part as a teacher of jurisprudence to write a Chapter exploring jurisprudential aspects of basic structure and express my gratitude towards their extraordinary eloquence in legal theory. All democracies of the world have Constitutions. It is most tried and tested means of ensuring democracy governed by rule of law. Independence of judiciary and judicial review has now acquired status of constitutional axiom.! Constitution was not perceived as law. It was only after the decision in Marbury v. Madison’ that it has been regarded as a binding law that regulates the conduct of the organs of the State inter se and the relationships of State and citizens’. As John Marshall CJ observes that “the Constitution is the supreme law of the land and, it is emphatically province and the duty of the judicial department to say what the law is.” Since then it is self evident that the interpretation of the Constitution is the function of judiciary. In a sense, the principle of supremacy of the Constitution is preserved and sustained through judicial review. At the outset, it may be observed that the recent decisions> of the Supreme

Court of India have engaged in the task of furnishing justification of the basic structure doctrine in terms of standards and principles. It is interesting to note that Prof. H.L.A. Hart, in his postscript, has explicitly acknowledged that in his concept of law, he did not pay adequate attention to principles and standards as he did to primary and secondary rules. Ronald Dworkin’s original objection * Head, Dept. of Law, RSTM University, Nagpur. 1. See, M. Nagaraj v. Union of India, (2006) 8 SCC 212. 2. 5 US (1 Cranch) 137, 2 L Ed 60 (1803). 3. Ibid. 4. See,Ronald Rotunda, Modern Constitutional Law—Cases and Notes (American Casebook Series, 4th Edn., 1993) 6. 5. LR. Coelho v. State of T.N., (2007) 2 SCC 1.

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to Prof. Hart is built around the conjunction of two premises: 1) Sometimes moral principles can be legally binding in virtue of their substantive merit; and 2) legal positivism requires pedigree or social-source criteria of legal validity. Therefore, legal positivism cannot account for the way in which moral principles figure (i.e. as binding legal sources and not as discretionary standards) in legal practice. Countenancing moral principle as legally binding, Dworkin believes undermine each of positivism’s more fundamental claims. If moral principles are legally binding, in virtue of their merits, then morality is a condition of legality (at least for some legally binding norms), and the separability thesis (the claim that morality cannot be a condition of legality) has to be abandoned. The rule of recognition must set forth a pedigree test, and some moral standards are legally binding for non-pedigree reasons. Finally, the need and opportunity for discretion is reduced as the number of legally authoritative standards is increased; in the limiting case, it evaporates altogether.°® A number of lines of response are available to the positivists. Appearances to the contrary, one might insist that moral principles are not binding legal sources, and therefore, that when judges appeal to them, they are engaged in discretionary activity—sometimes legitimately, sometimes not. It is hard to say how such an approach does anything more than reiterate a positivist’s commitments. It certainly does not defend them. A better strategy relies on the distinction Joseph Raz emphasises between legal validity and bindingness on officials. All legally valid norms are binding on Officials, but not every standard that is binding on judges is legally valid, in the sense of being part of the community’s law. The laws of foreign jurisdictions, the norms of social clubs as well as other normative systems generally can be binding on officials in certain adjudicatory contexts, though they are not part of the “host” community’s law. Judges may be authorised, even directed by otherwise, valid rules to appeal to such principles. They need not be a part of community’s law in order for judges to be required to appeal to them in the context of a particular suit. Thus, it does not follow from the fact that judges may sometimes be bound by certain moral principles that those principles are sometimes themselves part of the law or are legally valid. An alternative account advocated by Rolf E. Sartorious’ and others allow that moral standards can sometimes be valid law, but argues that their status as law depends on their pedigree or history, not on their content. All and only those moral principles identified as valid in virtue of their social source can count as a part of community’s law. In pursuing this response, the positivist abandons the moral of rules—the claim that legal standards are all rules—a position, moreover that no positivist can maintain each of the three remaining

tenets. What makes something law is its satisfying the source test set out in 6. See generally, Joseph Raz, Ethics in the Public domain: Essays in the Morality of Law and Politics, Authority, Law and Morality (Revised Edn., Clarendon Press, Oxford 1996) 210-237. 7. See generally, RolfE. Sartorious, “The Enforcement of Morality” (1972) 81 Yale LJ 891.

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the rule of recognition. Thus, both the rule of recognition and the separability thesis remain intact. Even though including moral principles within the domain of law increase available resources and narrows the scope of discretion accordingly, moral principles are often controversial and judges can disagree above their application in certain cases. Gaps narrow, but the opportunities for discretion owing to conflicting and vague standards increase.® Against this background, it is submitted that the basic structure doctrine, as a rule of recognition fulfils both the pedigree test as well as commitments to certain basic values. Acknowledgement of this fact has far-reaching implications for the theory of positivism in its application to the basic structure doctrine of Indian Constitution. It has now been recognised that the ultimate rules of recognition need not necessarily be contained neutral, in some cases, the ultimate rule may be founded on contained dependant moral standards also. Viewed in this light, the question that arises for consideration is whether the basic structure doctrine is founded on analytical positivists grounds? This Chapter attempts and answers with utmost modesty and with a view to generate debate on this question among the scholars in India and elsewhere. For this purpose, this paper is divided into the following three sections: Section 1: Pre “Kesavananda Bharati” phase,

Section 2: “Kesavananda Bharati” phase, and Section 3: Exploring positivist foundation of basic structure doctrine. 1. Section 1 1.1.

PRE “KESAVANANDA

BHARATI” PHASE

Human life is not static, it is changeful. Therefore, Constitutions lay down the procedure for its amendment. It is important to bear in mind that Constitutions being the supreme law of the land provide for the distribution of power, freedom and resources of the nation. The power to amend the Constitution provides the opportunity and procedure for the revision and redistribution of the existing arrangements. It is this revisionary authority that makes the power to amend the Constitutions vitally significant. Article 368 of the Indian Constitution provides for two different methods of procedure for amendment of the Constitutions. According to Article 368, amendment to this Constitution may be initiated only by introduction of the Bill for the purpose in either House of Parliament and when the Bill is passed in each House by the majority of the total membership of each House and two-third of the members present and voting. It shall then be presented to the President who shall give his assent and thereupon the Constitution shall stand amended in accordance with the terms of the bill. 8. See, Jules Coleman, “Incorporationism, Conventionality, and the Practical Difference Thesis” in Jules Coleman (Ed.) Hart’s Postscript, Essays on the Postscript to the Concept of Law (OUP, 2001) 123 et seq.

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In the under given five situations, the amendment requires ratification by the legislatures of not less than one half of the States: 1. Election of the President, manner of election of the President, extent of executive power of the union, extent of executive power of State, High Court of Union Territories; or 2. Union judiciary and the High Court and in the State Legislative relations; or 3. Any of the list in Schedule VII; or 4. Representation of State in Parliament; or 5. Provisions of this article.

Within the span of 60 years, the power under Article 368 has been used for more than 100 times. On certain occasions, this power has been used by Parliament to nullify the effect of the decisions of the Supreme Court.’ On other occasions, it has been used to override Fundamental Rights by giving primacy to Directive Principle of State policy and on still other occasion in order to exclude judicial review attendant upon an amendment of the Constitution. This relentless attack on Part III of the Constitution and consequently on judiciary led to an inconclusive struggle for the primacy between Parliament and judiciary (Article 31-C—42nd Amendment Act). The question of judicial review of power of Parliament under Article 368 arose in two cases: 1) Shankari Prasad Singh v. Union of India’; and 2) Sajjan Singh v. State of Rajasthan." There was an unsuccessful attempt to challenge the validity of the Ist and 7th Amendment, to the Constitution curtailing the Fundamental Right to property. In substance, the contention was that amendment to the Constitution is the law within the meaning of Article 13, therefore, the validity of amendment can be challenged on the grounds of violation of Fundamental Rights. The Supreme Court rejected this contention by observing that in the context of Article 13, law must be taken to mean rules and regulations made in the exercise of ordinary legislative powers and not amendment to the Constitution made in the exercise of constituent power with the result that Article 13(2) does not affect amendments under Article 368’. The same position was reiterated in Sajjan Singh. Characterisation of power to amend the Constitution as constituent power made the judges to conclude that constituent power is inherently illimitable. That there are no standards, which the judges can apply to determine the validity of the amendment of the Constitution made in the exercise of constituent power. However, in Golak Nath v. State of Punjab’ (Golak Nath), the majority of the judges held that there is no distinction between the legislative power and 9. State of W.B. v. Bela Banerjee, AIR 1954 SC 170. 10. 1952 SCR 68. 11. (1965) 1 SCR 933. 12. Supra, n. 10, para 12. 13. (1967) 2 SCR 762.

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constituent power. In fact, Article 368 as it then stood did not confer any power on Parliament to amend the Constitution but merely laid down the special procedure for amending the Constitution. According to the majority, the power to amend the Constitution was to be found in Article 248 i.e. residuary power and hence, there was no substantive difference between legislation and amendment to the Constitution. Following this reasoning, the court held that the amendment to the Constitution is law within the meaning of Article 13(3)(a) of the Constitution. However, the court did not overrule Shankari Prasad and Sajjan Singh and invoked the prospective overruling doctrine.'* In 1971, Parliament enacted the 24th Amendment Act so as to get rid of the judgment in Golak Nath. In order to remove difficulties created by the decision of Supreme Court in Golak Nath, Parliament enacted the 24th Amendment Act. The amendment has made the following changes: 1. It has added a new clause (4) to Article 13 which provides that nothing in this article shall apply to any amendment of this Constitution made

under Article 368. 2. It substituted a new marginal heading to Articie 368 in place of old heading “procedure for amendment of the Constitution”. The new heading is “power of Parliament to amend the Constitution and procedure” therefore. 3. Has inserted a new sub-section (1) in Article 68 which provided that notwithstanding anything in this Constitution, Parliament may in ex-

ercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with procedure laid down in this article. 4. It substituted the words “it shall be presented to the President who shall give his assent to the Bill and thereupon” for the words “it shall be presented for his assent and upon such assent being given to the Bill”. Thus, it makes obligatory for the President to give his assent to the Bill amending the Constitution. 5. It has added new clause (3) to Article 368 which provides that “nothing

in Article 13 shall apply any amendment under this article”. Thus, the 24th Amendment not only restored the amending power of Parliament but also extended the scope by adding the words “to amend by way of the addition or variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article”. 2. Section 2 2.1.

‘“SKESAVANANDA BHARATI” PHASE

The

validity

of 24th,

25th

and

29th

Amendments

was

challenged

in

Kesavananda Bharati. The court upheld the validity of the 24th Amendment 14. Ibid, para 52, justifying applicability of prospective overruling doctrine in India.

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Act and also the 29th Amendment Act, however, struck down the privative clause of the 25th Amendment Act. This case for the first time held that the power of Parliament to amend the Constitution is subject to implied limitation that there are certain essential features of the basic structure of the Constitution which are not open to amendment even in the exercise of constituent power by Parliament. Although the court overruled Golak Nath, it has reaffirmed the spirit of judgment in that the court recognises the limitations upon the exercise of power to amend the Constitution. Golak Nath laid down the theory of non-amendability of Fundamental Rights, whereas Kesavananda Bharati lays down the theory of non-amendability of basic structure of the Constitution thereby expanding upon the spirit of limited government informing the judgment in Golak Nath. However, seven of the judges, Sikri CJ, Shelat, Hegde, Grover, Jaganmohan Reddy, Khanna, and Mukherjea JJ held that the power of amendment under Article 368 is subject to certain implied and inherent limitation and that in the exercise of amending power, Parliament cannot change the basic structure or framework of the Constitution. Six of the judges (excluding Khanna J) thought that the Fundamental Rights in Part III relate to basic structure or framework of the Constitution and therefore, they are not amendable. Six judges, Ray, Palekar, Mathew, Beg, Dwivedi and Chandrachud JJ were by and large not prepared to accept any limitation on the plenary power of Parliament to amend the Constitution. Khanna J however, held that the right to property did not form the part of the basic structure or framework of the Constitution and tilted the balance in forming the majority with Ray, Palekar, Mathew, Beg, Dwivedi and Chandrachud JJ, in its conclusion. Furthermore, this case restored the faith in the distinction between the constituent power and legislative power recognised in Shankari Prasad and Sajjan Singh. But unlike these, the court in this case subjected exercise of constituent

power to implied limitations in the form of basic structure doctrine. Although the judges enumerated certain essentials of the basic structure of Kesavananda Bharati on situation but they also made it clear that they were only illustrative and not exhaustive. They will be determining on the basis of facts in each case. According to Sikri CJ, the basic structure of the Constitution consists of the

following features!>: 1. Supremacy of the Constitution.

2. Republican and democratic forms of the government. 3. Secular character of the Constitution. 4. Separation of powers between the legislature, the executive and the judiciary. 5. Federal character of the Constitution. 15. Ibid, paras 292-294,

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According to Shelat and Grover JJ, the following are the illustrations of the basic structure of the Constitution:!* 1. Supremacy of the Constitution. 2. Republican and democratic forms of the government and sovereignty of the country. >a Secular and federal character of the Constitution. 4. Demarcation of power between the legislature, the executive and the judiciary. 5. Dignity of the individual secured by the various freedoms and basic rights in Part III and the mandate to build the welfare State contained in Part IV. 6. Unity and integrity of nation. According to Hegde and Mukherjea JJ, the following are the examples of the basic structure:”” Sovereignty of India. Democratic character of our polity. Unity of the country.

Ss WN Essential

features of individual’s freedoms secured to the citizens. a Mandate to build a welfare State.

However, they said the limitations are only illustrative and not exhaustive. According to Jaganmohan Reddy J, the following constitute the basic

structure: 1. Sovereign democratic republic. 2. Parliamentary democracy. 3. Three organs of the State.

Khanna J concurred with the majority decision but delivered a separate judgment.”? Thus, it will be seen that Kesavananda Bharati lays down the foundation for judicial review of constituent power of Parliament. The question that arises for consideration is what is the jurisprudential foundation of the basic structure doctrine. From the point of view of the natural law theory, a basic structure doctrine may be perceived as the criterion of rightness, or certain immutable principles valid for all times and places. This may be the most easy explanation of jurisprudential basis of the basic structure doctrine. However, it is possible to defend the basic structure doctrine on the principles of analytical positivism. In order to answer this question, it is necessary to set out the essential features of positivism.

16. Ibid, para 582. 17. Ibid, para 666. 18. Ibid, para 1159. 19. Ibid, paras 1426, 1529.

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[Chap.

3. Section 3 EXPLORING THE POSITIVIST FOUNDATION OF THE BASIC STRUCTURE

3.1.

DOCTRINE

The positivism is essentially formal science of positive law. It has nothing to do with justice, morality and good conscience. This may be described as separation thesis. Furthermore, it has been the characteristic of positivism that all laws originate in social facts. All ultimate principles of the legal systems have a non-legal origin. For example, Austin’® seeks to find the ultimate principles in the fact of habit of obedience by bulk of the society and Prof. Kelsen”’ finds them in the system being by and large effective. It may be described as sources thesis. On this analysis, once a former foundation for law is established then all legal questions must be answered within the four corners of a positive legal system. If the legal systems do not provide authoritative legal solution then that is a matter of reform of the legal systems by the competent legislature. Besides this, the practice of analytical positivism has led the judges to formulate principle of interpretation which constitute the basic framework for rational decision making.” Every judgment must be grounded within the text of the statute or the Constitution or some past decision of the court. This also led to an array of principal of statutory interpretation that a court must be guided by the intention of the legislature which must be gathered from the reading of the statute as a whole in its context”. On this understanding, of the role of the court, court is perceived as an agency to carry out the intention of the legislature. It is suggested by some scholars that in a democracy, the role of the judge must be as unoriginal as possible.” On this analysis, it is necessary to consider, whether the basic structure doctrine could be justified on positivist ground? 3.2.

ORTHODOX POSITIVISM AND BASIC STRUCTURE DOCTRINE

Austin defines “law” as a command of sovereign which entails the duty to comply with it and its threat of sanction in the event of breach of duty.”> In his own words, the existence of law is one thing, its merit and demerit another. A law which actually exists is law though we happen to dislike it, or though 20. See generally, the excerpts from Austin, “The Province of Jurisprudence Determined, 1954”, in M.D.A. Freeman (Ed.), Llyod’s Introduction to Jurisprudence (6th Edn., Sweet & Maxwell, 1994) 252 et seq. 21. See generally, the excerpts from Kelsen, “Pure Theory of Law, 1934-35”, in M.D.A. Freeman (Ed.), Llyod’s Introduction to Jurisprudence (6th Edn., Sweet & Maxwell, 1994) 291

et seq. 22. See, Chap 15 “Theories of Adjudication” in M.D.A. Freeman (Ed.), Llyod’s Introduction to Jurisprudence (1994) 1255-1257.

23. See generally, Chap 1 “Basic Principles” in G.P. Singh, Principles of Statutory Interpretation (12th Edn., LexisNexis Butterworths: Wadhwa, Nagpur, 2010) 1-54. 24. See generally, Chap 15 “Theories of Adjudication” in M.D.A. Freeman (Ed.), Liyod’s Introduction to Jurisprudence (1994) 1268-1269.

25. Supra, n. 21.

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it may vary from the text by which we regulate our approbation or disapprobation. This means that Austin refuses to apply a moral criterion for the existence of law. Once a rule of conduct is let down by sovereign, it becomes law irrespective of his goodness or badness. Another feature of Austin’s concept of sovereignty is that for him sovereignty is indivisible and illimitable. Thus, the Constitution, on this analysis, is a system of positive morality and therefore, cannot bind the sovereign. To put it in, the constitution terms powers

to amend the Constitution conferred upon Parliament by Article 368, which are inherently unlimited. This may be understood in another way, seen that the Constitution does not expressly limit the power of Parliament in the substantive sense. It is not open to the judges to employ any limit on the power to amend the Constitution because that would amount to the following: 1. Arrogating the power of Parliament to amend the Constitution by the court. 2. To apply the amended Constitution retrospectively. A court in Shankari Prasad and Sajjan Singh drew a distinction between legislative power and constituent power. The legislative power of the legislature is subject to Fundamental Rights by virtue of provision of Article 13 and therefore, open to judicial review whereas a constituent power is a power to write in the Constitution itself and when it is exercised to amend any provision, it itself becomes a part of the Constitution and therefore, Article 13 of the Constitution does not apply to it. 3.2.1.

Kelsen’s pure theory

Unlike Austin, Kelsen describes legal system as a hierarchy of norms where the interrelationship between different norms of the same system is brought out.” In order to keep the theory of law pure, he rigorously argued for separation of his theory from other sources of sciences like sociology, economics or metaphysics. Kelsen considers legal science as a pyramid of norms with grundnorm (basic norm) at the apex. The subordinate norms are controlled by norms superior to them in hierarchical order. The basic norm, which is otherwise called grundnorm is, however, independent of any other norm being at the apex. The process of one norm deriving its power from the norm immediately superior to it, until it reaches the grundnorm, has been termed by Kelsen as concretisation of the legal system. Thus, a system of norms proceeds from downwards to up-

wards and finally it closes to the grundnorm at the top. The grundnorm is taken for granted as a norm creating organ and the creation of it cannot be scientifically demonstrated and it is not required to be validated by any other norm. For example, a statute or law is valid because it derives its authority from a norm i.e. the Constitution. As to the question from where does the Constitution 26. Ibid.

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derive its validity, there is no answer, and therefore, it is a grundnorm accord ing to the Kelsenite conception of pure theory of law. In this view, the basic norm is the result of social, economic, political and other conditions and it is supposed to be valid by itself. Kelsen’s analysis raises an important question of characterisation of status of amendment power since Article 368, as it originally stood, nearly let down the procedure for the amendment of the Constitution. According to Kelsen, the

basic norm performs the following three functions: 1. It lets down the norms describing where the legislative power resides. 2. It lets down the procedure to be followed while exercising the legislative power. 3. It laid down the limit subject to which a legislative power is to be exercised. It is submitted that Article 368, as it originally stood, performed double

functions: 1. It laid down where the sovereign power to amend the Constitution lies. 2. The procedure to be followed while exercising amending power. Thus, it can be seen that the ultimate power to amend the Constitution is limited in its very nature because the power to amend the Constitution should be rule-born and rule-bound. Therefore, the constituent power to amend the

Constitution is subject to the procedure prescribed by the norms itself.”’ That is the reason why Ray J in his dissenting opinion, recognised that the power to amend the Constitution is open to judicial review on procedural grounds while totally rejecting the majority’s theory of implied substantive limitations on the constituent power to amend the Constitution. Since, the constituent power is

limited only procedurally and not substantively in the terms of the text of the basic norms, basic structure doctrine cannot be defended on the analysis of Kelsen’s theory of law. There is an additional reason why Kelsen’s theory cannot be invoked to justify the basic structure doctrine. It is that the amendment of the Constitution is at par with the Constitution itself. The validity of the law in Kelsen’s theory of hierarchy of law depends on the application of higher laws to determine the validity of lower norms, for example, the validity of subordinate legislation can be tested by reference to the parent’s statute while its validity can be tested by the Constitution which is the basic norm. Since, in the exercise of constituent power, the amendments are made to the basic norms themselves, the amended

provision becomes part of the basic norms and the validity of one part of the basic norms cannot be tested by reference to other part of the basic norms. Furthermore, the existence and validity of the norms doesn’t depend on the content of the norms but has to be ascertained by content independent criteria of being created or authorised by an anterior of superior norms. It is a plain 27. Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651.

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fact that the existence of basic structure is knowable by reference to the content of the Constitution and also on some standard of significance or importance of that content. It is yet another ground for not justifying the basic structure by applying Kelsen’s theory of law. Thus, it may be concluded that neither Austin nor Kelsen’s theory can justify the basic structure doctrine. The question then arises that “Can modern positivist theory justify the basic structure doctrine?” 3.3.

MODERN

POSITIVISM

AND THE BASIC STRUCTURE

DOCTRINE

In this connection, reference should be made to Hart’s concept of law.”® Hart argues that a legal system is comprised of two types of rules: 1) primary rules (i.e. duty imposing rule); and 2) secondary rules (i.e. power conferring rules). The primitive communities comprise only of primary rules and suffered from the following three defects: 1. Uncertainty 2. Inefficiency 3. Instability The secondary rule cures these defects by establishing the following three types of secondary rules:

1. Rule of change—conferring power on legislature to make laws. 2. Rules of adjudication—an authoritative determination of the meaning of the rules by the court. 3. Rule of recognition—an authoritative criterion of validity of the laws of legal system. Unlike Kelsen’s basic norms, Hart’s idea of the rule of recognition is not based on any assumption; but the practice of the officials and the judges. The question to be asked is, whether a particular rule of recognition is treated by the judges and the officials as a common public standard of behaviour from an internal point of view? In the context of the basic structure doctrine, the question arises,

whether it constitutes an ultimate rule of recognition in a Hartian sense? It is trite knowledge that the Supreme Court consistently treated basic structure as a criterion of validity not only of the constituent power of Parliament to amend the Constitution but also of the legislative and executive powers.”? In addition to the above, the basic structure doctrine is also perceived as a formative context in which the provisions of the Constitution and statute are to be interpreted.*° In other words, the Supreme Court perceives the basic structure doctrine as a criterion of validity for the exercise of power. However, in order to constitute 28. See generally, Chap 6 “Modern Trends in Analytical and Normative Jurisprudence” in M.D.A. Freeman (Ed.), Llyod’s Introduction to Jurisprudence (1994) 339-355. 29. Ismail Farooqui v. Union of India, (1994) 6 SCC 360 (Legislative power); S.R. Bommai v. Union of India, (1994) 3 SCC 1 (Executive power).

30. B.R. Kapoor v. State of T.N., (2001) 7 SCC 231.

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the rule of recognition, the basic structure must also be shown to be perceived from internal point of view by the officials also. It is submitted that after the 42nd Amendment Act, there has been no serious challenge to features which were held by the court to be part of the basic structure by Parliament through the exercise of constituent power. Similarly, judges have also shown deference to the wisdom of Parliament by not addressing the issue of merits of an amendment to the Constitution. Furthermore, Parliament was put on notice about the limit of its power by the Supreme Court once in Golak Nath and again in Kesavananda Bharati (24 April 1973). These show that, barring the example of the 42nd Amendment Act, no attempt has been made to alter the basic structure of the Constitution. Therefore, it is submitted that basic structure is an ultimate rule of recognition

and has been accepted as a political practice shared by the judges and officials together. The court observed on the strength of S.R. Bommai: the power of judicial review is a constituent power that cannot be abrogated by judicial process of interpretation. It is a cardinal principle of our Constitution that no one can claim to be the sole judge of the power given under the Constitution’.

It is the duty of this court to uphold the constitutional values and enforce constitutional limitations as the ultimate interpreter of the Constitution. To the similar effect, are the observations of Kuldip Singh J in Supreme Court Advocates-on-Record Assn. v. Union of India® that the court is the guardian of constitutional values. The basic structure doctrine is an attempt to identify the constitutional values and evaluate its importance as a first step and then to find out whether a particular amendment has the consequence of destroying any of the essential elements of the basic features of the Constitution. It is this appeal to constitutional values in the formation of basic structure which constitutes the basis for “inclusive positivism” or “incorporationism’.*? When the court is engaged on the task of identification of the constitutional values it follows the approach adopted by analytical positivism, for example, S.H. Kapadia J observed in M. Nagaraj v. Union of India** (M. Nagraj) that provision in Part III of the Constitution incorporates certain fundamental values. Certain Fundamental Rights in Part III represent foundational values but its scope and extent is to be ascertained by reading the provisions of the Constitution which is the supreme positive law of the land. As Prof. J. Stone observes, the analytical jurisprudence is interested in studying not the de facto interest but the manner in which and the extent to which the de facto interest is secured by positive legal order.*> Furthermore, 31. I.R. Coelho v. State of T.N., (2007) 2 SCC 1, para 40.

32. (1993) 4 SCC 441. 33. For the purposes of this paper inclusive positivism refers to the process of identifying the contents of rule of recognition by reference to moral or ethical standards. It is in this sense that

basic structure, is content dependant criterion of validity. 34, (2006) 8 SCC 212. 35. See, Julius Stone, Legal System and Lawyers’ Reasonings (1964).

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as an inclusive positivist rule of recognition, basic structure necessarily invokes an appeal to the principles and standards. Therefore, it is necessary to consider the manner in which a court constructs principles and standards by reference to provisions of the Constitution. They are beyond the words of the particular provisions, systematic principles underline and connect provisions of the Constitution. These principles give coherence to the Constitution and make it an organic whole. These principles are part of the constitutional law even if they are not expressly stated in the form of rules, and such instance is the principle of reasonableness which connects Articles 14, 19 and 21. Some of these principles may be so important and fundamental so as to qualify as essential features, or part of the basic structure of the Constitution. That is to say, they are not open to amendment. However, it is only by linking provisions of the Constitution to such overarching principles that one would be able to distinguish essential from less essential features of the Constitution.*® A substance of the principle is gathered from reading several provisions of the Constitution together, for example, democracy is not found in any one provision of the Constitution but by reading several provisions of the Constitution together. Similarly, the principle of secularism is not to be found in a single provision of the Constitution but by reading various provisions of the Constitution together. This process according to the court brings out coherence of values and principle. The concept of coherence in the contemplation of the Supreme Court is not a formal notion but a substantive one. The liberal interpretation of Fundamental Rights provision which began in Maneka Gandhi v. Union of India*’ (Maneka Gandhi), inevitably lead to the emergence of the broader guarantee of Fundamental Rights which would otherwise not have been available. Finally, it may be observed that the court has confined the basic structure doctrine to those principles and standards which are like axioms of the Constitution, thus, the court refused to accord a status of an axiom of the Constitution to the principles of service jurisprudence. The court categorically held that The concept of catch up rule and consequential seniority are judicially evolved concepts to control the extent of preservation. The source of these concepts is in service jurisprudence. These concepts cannot be elevated to the status of an axiom like secularism and constitutional sovereignty.*®

Similarly, the court also held that an amendment of the Constitution which confers fictional immunity on the laws would be hit by the basic structure doctrine because there are no standards laid down in Article 31-B.*” Thus, it will be seen that the basic structure doctrine is a rule of recognition constituted by reference to principles and standards which are grounded in the text of the 36. 37. 38. 39.

(2006) 8 SCC 212, para 18. (1978) 1 SCC 248. I.R. Coelho v. State of T.N., (2007) 2 SCC 1, para 54. Ibid.

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Constitution and will be protected by the courts from total destruction and exclusion in the exercise of constituent power by Parliament of India. Whatever be the position, one may take with regard to general and descriptive jurisprudence, it is a well-established convention after the decision in

Maneka Gandhi“ that the criterion of validity of laws and amendment is to be found in principles, standards and doctrines, and therefore, the rule of recognition practiced in India is founded on the idea of inclusive positivism which allows the construction of rule of recognition by reference to the contents.

40. (1978) 1 SCC 248.

22

The basic structure doctrine debate:

South African Explorations Dr. Avinash Govindjee* and Dr. Rosaan Kruger**

Article 368 of the Indian Constitution specifically vests in the Indian Parliament the power to amend the Constitution.’ While the provision gives the impression that this power of amendment is absolute and encompasses any part of the Constitution,” the actual exercise of this power brought the legislature in constant conflict with the judiciary. In fact, the first 25 years of the Indian constitutional history were fraught with struggles between Parliament and the courts Over property rights and, specifically, the power of the legislature to amend these constitutionally protected rights. This period witnessed a sequence of judgments invalidating legislation aimed at social reform followed by the constitutional amendments in which Parliament attempted to overrule most of these judgments.* Several court decisions were rendered nugatory by the various amendments to the Constitution.° The court’s response to Parliament’s repeated amendments of the Constitution to circumvent judgments on property rights was the decision in Golak Nath * Associate Prof., Nelson Mandela Metropolitan University, South Africa. ** Senior Lecturer, Rhodes University, South Africa. 1. Art. 368(1) of the Constitution provides thus,

Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article. 2. See, in this respect, Shankari Prasad Singh v. Union of India, AIR 1951 SC 458; Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845 where the power to amend the rights had been upheld on the basis of Art. 368. 3. D. Davis, M. Chaskalson and J. de Waal, “Democracy and Constitutionalism: The Role of Constitutional Interpretation” in D. van Wyk, J. Dugard, B. de Villiers and D. Davis (Eds.),

Rights and Constitutionalism: The New South African Legal Order (Juta & Co. Ltd., Kenwyn

1994) 1, 37. 4. Ibid. 5. For instance, in State of Bihar v. Kameshwar Singh, AIR 1952 SC 252, the Supreme Court rejected the constitutionality of the Bihar Land Reform Act, characterising it as an Act

which authorised confiscation under the guise of acquisition of property. Parliament responded by passing the 7th Amendment to overrule this judgment. See also, Kunhikoman v. State of Kerala, AIR 1962 SC 723; Krishnaswami v. State of Madras, AIR 1964 SC 1515, which both invalidated legislation setting a ceiling on agricultural holdings.

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v. State of Punjab® (Golak Nath). In that case, the court (with a majority of 6:5) held, inter alia, that the Fundamental Rights, including the right to property, were absolutely sovereign. It held that not even a two-thirds majority of Parliament, exercising its power to amend the Constitution under Article 368, had the authority to infringe the Fundamental Rights. In other words, any constitutional amendment which purportedly repealed or restricted a Fundamental Right would be invalid in the Indian context.’ In 1973, the Supreme Court of India in Kesavananda Bharti v. State of Kerala® (Kesavananda Bharti) considered the validity of the 24th, 25th and

29th Amendments and, more basically, the correctness of the decision in Golak Nath. The court (by the slight majority of 7:6) held that although no part of the Constitution, including Fundamental Rights, was beyond the amending power of Parliament, the “basic structure” of the Constitution could not be abrogated by a constitutional amendment. According to the court, Article 368 did not empower Parliament to alter the basic structure or framework of the Constitution because a power to amend the Constitution could not be a power to destroy it.? In this way, the “basic structure” doctrine was born. This chapter considers the extent to which the basic structure doctrine may be said to have extended its reach into South African constitutional jurisprudence. The question as to whether the South African Parliament, like its Indian counterpart, is restricted from amending the Constitution in such a way as to destroy the “basic structure” is pertinently addressed. Before considering that issue directly, however, it is necessary to explain the aptness of the comparison itself.

6. AIR 1967 SC 1643: (1967) 2 SCR 762. 7. According to Subba Rao CJ in Golak Nath v. State of Punjab, supra, 1655, para 15, No authority created under the Constitution is supreme and all the authorities function under the supreme law of the land. The rule of law under the Constitution is a glorious content.... Having regard to the past history of our country, (the Constitution) could not implicitly believe the representatives of the people, for uncontrolled and unrestricted power might lead to an authoritarian State. It, therefore, preserves the natural rights against State encroachment and constitutes the higher judiciary of the State as the sentinel of the said rights ...

8. (1973) 4 SCC 225. 9. At 511 (SCC). There is no unanimity of opinions as to what constitutes the “basic structure” of the Indian Constitution. The Supreme Court has, however, found the following to be the crux of the Constitution: the supremacy of the Constitution; the rule of Jaw; the principle of separation of powers; the objectives specified in the Preamble to the Constitution; judicial review; federalism; secularism; the sovereign democratic, republican structure; freedom and dignity

of the individual; unity and integrity of the nation; the principle of equality; the “essence” of Fundamental Rights in Part III of the Constitution; the concept of social and economic justice to build a welfare State in Part IV; the balance between Fundamental Rights and Directive Principles; the parliamentary system of government; the principle of free and fair elections; limitations upon the amending power conferred by Art. 368; independence of the judiciary and

effective access to justice.

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1. Comparing Tigers and Springboks 1.1.

REASONS FOR COMPARING INDIA WITH SOUTH AFRICA

C. L'Heureux Dube provides compelling reasons for comparative studies of the nature attempted. According to her, courts around the world are often confronted by many of the same difficult issues and the judicial world is becoming a global one where judges in different jurisdictions are increasingly looking to a wide variety of sources to interpret their own constitutional provisions.!° The growing internationalisation of the judiciary has also been facilitated by the advancement of communication technology which makes it much easier to consult comparative constitutional sources in argument and in judgments." The globalisation of the judicial world in the field of human rights and constitutional interpretation is also conducive to the proposed comparison.” Despite this, it must be ensured that foreign reasoning is not imported without sufficient consideration of the context in which it is being applied as there are important reasons why solutions developed in one jurisdiction may be inappropriate in another. Political and social realities, values and traditions differ across countries.!? The economies of South Africa and India, for example, are different as is the make-up of their respective societies.’* It has also been held that whilst the Indian jurisprudence on certain subjects (such as the development of the right to life to include the imposition of positive obligations on the State in respect of the basic needs of its inhabitants) contains valuable insights, it is necessary to bear in mind that the Indian Constitution is structured differently to the South African Constitution. The South African Bill of Rights imposes certain direct positive obligations on the State and it is the court’s duty to apply the obligations as formulated in that Constitution without unnecessarily drawing inferences that would be inconsistent therewith."° Despite these misgivings, the legal comparison attempted ultimately appears to be apposite. India and South Africa are countries which share significant 10. C. L-Heureux Dube, “Human Rights: A Worldwide Dialogue” in B.N. Kirpal, A.H. Desai, G. Subramanium, R. Dhavan and R. Ramachandran (Eds.), Supreme But Not Infallible: Essays in Honour of the Supreme Court of India (OUP, New Delhi 2000) 214-215. 11. Ibid, 225. 12. M. Kachwaha, The Judiciary in India: Determinant of its Independence and Impartiality (Centre for the Independence of Judges and Lawyers, Geneva 1998) 109. For example, the drafters of the Indian Constitution enumerated most of the rights in the Universal Declaration of Human Rights. 13. C. L Heureux Dube 226. See also, Sanderson v. Attorney General, Eastern Cape, 1997

(12) BCLR 1675 (CC), para 26 per Kriegler J: “Comparative research is generally valuable and is all the more so when dealing with problems new to our jurisprudence but well developed in mature constitutional democracies. ... Nevertheless the use of foreign precedent requires circumspection and acknowledgement that transplants require careful management.” 14. C. Heyns and D. Brand, “Introduction to Socio-economic Rights in the South African Constitution” in G. Bekker (Ed.), A Compilation of Essential Documents on Economic, Social and Cultural Rights, Vol. 1 (Economic and Social Rights Series, 1999) 1, 14-15. 15. Soobramoney v. Minister of Health (KwaZulu-Natal), 1997 (12) BCLR 1696 (CC): 1998

(1) SA 765 (CC), para 15.

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historical links.'* Both still experience great inequality and large-scale poverty. Laws, policies and judgments tend, therefore, to be attuned to the economic and social realities facing the countries’ people while implementation of such laws and policies continues to be a problem.” More importantly, just as India’s drafters viewed a range of preceding Constitutions in drafting India’s historical document, South Africa’s drafters learnt lessons from India and elsewhere in drafting the Constitution. Judges in South Africa have also been impressed by the judgments of their Indian counterparts. Former South African constitutional court judge, Albie Sachs notes as follows in an academic contribution: We look to the Indian Supreme Court which had a brilliant period of judicial activism when a certain section of the Indian intelligentsia felt let down by Parliament. They were demoralised by the failure of Parliament to fulfil the promise of the constitution, by the corruption of government, by the authoritarian rule that was practiced so often at that time. Some of the judges felt the courts must do something to rescue the promise of the constitution, and through a very active and ingenious interpretation bringing different clauses together they gave millions of people the chance to feel ‘we are people in our country, we have constitutional

rights, we can approach the courts ..."8

The favourable comparison also extends to certain important aspects of the respective legal systems such as the granting of “appropriate relief’, the wide interpretations of locus standi and the importance in both jurisdictions of the foundational values of equality, human dignity and freedom. Insofar as the applicability of the basic structure doctrine in South Africa is concerned, it is important to take note of the amending provision contained in the South African Constitution. Section 74 of the Constitution reads as follows: 16. India had been in the forefront of the international community in supporting the antiapartheid struggle in South Africa ever since Mahatma Gandhi started his Satyagraha movement in South Africa a century ago. India was the first country to severe trade relations with the apartheid government in 1946, and imposed a completely diplomatic, commercial, cultural and sports embargo on South Africa. India worked consistently to put the issue of apartheid on the agenda of the UN, NAM and other multilateral organisations and for the imposition of comprehensive international sanctions against South Africa. The African National Congress (ANC)

maintained a representative office in New Delhi from 1960 onwards. Against the background of India’s consistent support to the anti-apartheid struggle, there has been a steady consolidation of ties with South Africa, both bilaterally and through the trilateral IBSA Dialogue Forum. A number of bilateral agreements have been concluded between the two countries since the as-

sumption of diplomatic relations in 1993 in diverse areas ranging from defence, culture, health, human settlements, public administration, science and technology and economic cooperation. 17. In Pathumma v. State of Kerala, AIR 1978 SC 771, 779, the court held that it was not

necessary for the Supreme Court to rely on the American Constitution for the purpose of examining the seven freedoms contained (at that stage) in Art. 19 of the Indian Constitution precisely because the social conditions and habits of Indian people were different. See also, Jagmohan Singh v. State of U.P., AIR 1973 SC 947, 952 as quoted in A.P. Datar, Datar Commentary on Constitution of India (Wadhwa and Co., Nagpur 2001) 176. 18. A. Sachs, “Making Rights Work—The South African Experience” in Penny Smith (Ed.), Making Rights Work (1999) 1, 10. See also, N. Rao “Human Rights Initiatives” in C.J. Nirmal, Human Rights in India: Historical, Social and Political Perspectives (OUP, New Delhi

2000) 53, 68.

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74. Bills amending the Constitution 1. Section 1 and this subsection may be amended by a Bill passed by— (a) the National Assembly, with a supporting vote of at least 75 per cent of its members; and (b) the National Council of Provinces, with a supporting vote of at least six provinces. 2. Chapter 2 may be amended by a Bill passed by— (a) the National Assembly, with a supporting vote of at least two thirds of its members; and (b) the National Council of Provinces, with a supporting vote of at least six provinces. 3. Any other provision of the Constitution may be amended by a Bill passed— (a) by the National Assembly, with a supporting vote of at least two thirds of its members; and (b) also by the National Council of Provinces, with a supporting vote of at least six provinces, if the amendment— (i) relates to a matter that affects the Council; (ii) alters provincial boundaries, powers, functions or institutions; or

(iii) amends a provision that deals specifically with a provincial matter.

Before analysing this provision and exploring the applicability of the basic structure doctrine in South Africa, it is necessary to provide an overview of the context within which the provision is to be considered. 2. South African Constitution in context 2.1.

TRANSITION TO CONSTITUTIONAL DEMOCRACY

The constitutional history of South Africa provides an important context for the interpretation of the Constitution. The first democratic elections held in South Africa on 27 April 1994 marked a turning point in the country’s legal, political and social history. The colonial and apartheid governmental systems were based on the Westminster Model and political rights were reserved for the white South Africans only. The combination of unrepresentative government and parliamentary sovereignty resulted in injustice for the vast majority of South Africans. The supreme Parliament legislated in the interests of the white minority and the majority of South Africans were subjected to administrative rule with no recognition of their rights as citizens.'? The common-law protection afforded to human rights was eroded by racially discriminatory legislation and the courts did not have the authority to review the substance of legislation or executive action. The system, as it existed prior to 1994, failed to protect the Fundamental Rights of South Africans adequately. In the absence of a popular mandate, the representatives of the liberation movements and apartheid government agreed in the early 1990s on a

19. See generally, M. Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton University Press, Princeton 1996).

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two-phased transition to democracy.”° This phased transition entailed, in the

first instance and immediately following the 1994 democratic elections, government in terms of the Constitution of the Republic of South Africa, Act (200 of 1993). This so-called interim Constitution was the product of the negotiations between the political stakeholders in South Africa following the unbanning of the liberation movements and the release of numerous political prisoners, including Nelson Mandela. The second phase of the transition required the elected representatives of the people, sitting as the Constitutional Assembly, to draft a constitution for the republic in accordance with 34 constitutional principles which were agreed upon during the earlier political negotiations.2! It is noteworthy that these principles were included as an unamendable part of the interim Constitution.” The second phase of the transition also required the newly established constitutional court to certify the text drafted by the Constitutional Assembly as compliant with the constitutional principles. Only if this independent court certified the Constitution as compliant, would it have force as the Constitution of the Republic of South Africa.”? Once the 20. Ex parte, Chairperson of the Constitutional Assembly, Certification of the Constitution of the RSA, re, 1996, 1996 (10) BCLR 1253 (CC): 1996 (4) SA 744 (CC), paras 13-15. 21. The constitutional principles were contained in Sch. IV of the interim Constitution. In its Certification judgment (Ex parte, Chairperson of the Constitutional Assembly, Certification of the Constitution of the RSA, re, 1996, 1996 (10) BCLR

1253 (CC): 1996 (4) SA 744 (CC),

paras 44—45), the court listed a number of “basic structures” and “premises” required by the principles with which the new text had to comply. These included: 1. constitutional democracy based on supremacy of the Constitution protected by an independent judiciary; 2. a democratic system of government based on openness, accountability and equality in which regular elections with universal adult suffrage are held; . Separation of powers with checks and balances to ensure accountability; . responsiveness and openness; . other appropriate checks on governmental power; . enjoyment of all universally accepted Fundamental Rights protected in justiciable W & Nn constitutional provisions; 7. one sovereign state structured at three levels: the national, provincial and local levels

with appropriate power at each level; 8. recognition and protection of the institution, status and role of traditional leaders;

9. a legal system that ensures equality before the law and that has provision for affirmative action measures;

10. epresentative government, a multi-party democracy, a common voter’s role and in general a system of proportional representation;

11. protection of the Constitution against amendment through special processes involving special majorities;

12. adequate provision for fiscal and financial allocation to provincial and local levels of government from nationally collected revenue; 13. the rights of employers and employees to engage in collective bargaining;

14. a non-partisan public service broadly representative of the South African community serving all the members of the public in a fair, unbiased and impartial manner; and 15. the security forces must be required to perform their services in the national interest

and must be prohibited from furthering or prejudicing party political interests. 22. S. 74 of the interim Constitution. 23. S. 71(2) of the interim Constitution.

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text of the new Constitution was certified, the constitutional principles had no further relevance in setting standards for the Constitution or further constitutional amendments.”4 The certified Constitution had to regulate its own future

amendments.” The interim Constitution introduced constitutional supremacy to South Africa*® and the constitutional principles guiding the making of the final Constitution demanded that this fundamental paradigm shift had to be reflected in the final Constitution. The break made with the past was a complete one.?’ 2.2.

IMPERATIVE TO ADVANCE TRANSFORMATION

The supreme South African Constitution does not only mark a definitive break — with the past, it is also a transformative Constitution?* that embodies the idea of transformative constitutionalism.”” Transformative constitutionalism is a long-term project of constitutional enactment, interpretation and enforcement committed (not in isolation of course, but in a historical context of conducive

political developments) to transform a country’s political and social institutions and power relationships in a democratic, participatory and egalitarian direction. Transformative constitutionalism connotes an enterprise of inducing large-scale social change through non-violent processes grounded in law.*°

The Constitution thus, provides the legal basis for social change in South Africa. Societies are dynamic and their needs change over time. The transformation that the Constitution envisions is an ongoing process which requires improvement in the daily lives of people through the provision of access to land, housing, water and food, education, social security by job creation on the one hand, and by changing the prevalent legal culture in a more egalitarian direction to reflect the constitutional commitment to democracy, participation and egalitarianism, on the other.*! This imperative to transform, requires the 24. S. 71(3) of the interim Constitution provided: A decision of the Constitutional Court in terms of sub-section (2) certifying that the

provisions of the new constitutional text comply with the Constitutional Principles, shall be final and binding, and no court of law shall have jurisdiction to enquiry into or pronounce upon the validity of such text or any provision thereof. See also, Ex parte, Chairperson of the Constitutional Assembly, Certification of the Constitution of the RSA, re, 1996, 1996 (10) BCLR 1253 (CC): 1996 (4) SA 744 (CC), para 18. 25. Constitutional Principle XV. 26. S. 4 of the interim Constitution. 27. S. v. Makwanyane,

1995 (6) BCLR 665 (CC): 1995 (3) SA 391 (CC), para 262 per

Mahomed J. 28. Lawrence Lessig, Code and other Laws of Cyberspace (Basic Books, New York 1999) 213. 29. See, K. Klare, “Legal Culture and Transformative Constitutionalism” (1998) 14 SAJHR 146. See also, P. Langa, “Transformative Constitutionalism” (2006) Stell LR 351; D. Moseneke,

“The Fourth Bram Fischer Memorial Lecture: Transformative Adjudication” (2002) 18 SAJHR 309; AJ van der Walt, “Legal History, Legal Culture and Transformation in a Constitutional Democracy” (2006) 12 Fundamina I.

30. Ibid, Klare, 150. 31. Ibid, 167.

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Constitution to be amendable so as to be responsive to the changing needs of society whilst providing a stable basis for governance. 3. Amending provision of the South African Constitution The relative easy or difficulty with which a Constitution can be amended de-

termines whether such a Constitution is classified as “flexible” or “rigid”. A flexible Constitution is an easily amended Constitution which requires a simple majority of the legislature to validate a constitutional amendment. A rigid

Constitution, on the other hand, requires special procedures and special majorities for its amendment. These procedures and majorities are referred to as entrenchment of the Constitution. A supreme Constitution is often entrenched to secure a measure of permanence for the provisions which establish and govern the State. Entrenchment places certain rules of governance beyond dayto-day politics to ensure that constitutional amendment is not used to further short-term political ends thereby damaging the legitimacy and strength of con-

stitutional democracy.® None of the provisions of the South African Constitution are unamendable,** but all the provisions of the Constitution are entrenched. Section 74 was crafted by the Constitutional Assembly after consideration of various suggestions and options; amongst others that the “most basic fundamentals of a democratic State” should be “judicially entrenched” thus, requiring the constitutional court to certify an amendment as compliant with the basic constitutional principles.* The Constitutional Assembly did not accept this proposal and the text of Section 74 that was submitted for certification required special ma-

jorities for amendment but did not place any of the Constitution’s provisions beyond amendment, nor did it require the certification of any amendments by the constitutional court. In its Certification judgment, the constitutional court held that Section 74 failed to entrench the provisions of the Constitution adequately in that it did not provide for special procedures of amendment.*° The Constitutional Assembly responded to this by amending Section 74 to include both the special majorities and special procedures: an amendment of Section 1°’ and the amending provision itself requires support of 75 per cent of 32. See, I. Currie and J. de Waal, The New Constitutional and Administrative Law, Vol. |

(Constitutional Law Juta & Co. Ltd., Landsdowne 2001) 28. 33. C. Albertyn, “Judicial Independence and the Constitution Fourteenth Amendment Bill: Current Developments” (2006) SAJHR 126, 128.

34. The interim Constitution contained unamendable provisions; S. 74 and Sch. 4 guiding the constitution-making process could not be amended at all.

35. See, “Theme Committee 2, Draft Report on Block 7, Constitutional Amendments” (August 1995), The Making of the Constitution (1997).

36. Ex parte Chairperson of the Constitutional Assembly, Certification of the Constitution of the RSA, re, 1996, 1996 (10) BCLR 1253 (CC): 1996 (4) SA 744 (CC), paras 151-159. 37. S. 1 of the Constitution sets out the values on which the South African State is founded: The Republic of South Africa is one, sovereign democratic state founded on the following values:

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the Members of the National Assembly (Lower House) and the support of six of the nine provinces in the National Council of Provinces (Upper House representing provincial interests). Provisions of the Bill of Rights may be amended with the approval of two-thirds of the Members of the National Assembly and six of the nine Provinces in the National Council of Provinces.** A Bill to amend the Constitution may not include provisions other than the proposed constitutional amendments.” The Constitution can thus, not be amended surreptitiously or by implication.*° Section 74(5) further sets out the specific procedure that must be followed—30 days before the introduction of the Bill amending the Constitution, such Bill must be published in the Government Gazette inviting public comment thereon; the Bill must also be submitted to the provincial legislatures to give these representative structures the opportunity to express their views on the proposed amendment and the Bill must be submitted to the National Council of Provinces to consider such Bill (where its assent is required) or to express a view thereon (in instances where its assent is not explicitly required). Written submissions from the public and the provincial legislatures are to be tabled in the National Assembly and National Council of Provinces (if assent of this body is required).*! A Bill to amend the Constitution may not be put to vote in the National Assembly within 30 days of its introduction if the Assembly is sitting, or 30 days after its tabling if the Assembly is in recess.” This ensures that constitutional amendments are not rushed through the Assembly and that the issues are adequately debated before a vote is taken.” The constitutional provisions regulating constitutional amendments are detailed. Processes and procedures are in place to guide constitutional amendment. The processes involved are somewhat onerous thus, deterring Capricious amendment aimed at short-term political gain. Outside these formal requirements, however, there are no stipulated restrictions on the power of Parliament to amend the Constitution. It would, thus, seem that where the

formal requirements are met, an amendment of the Constitution is competent, irrespective of the content thereof. The amendment power in Section 74 is Human dignity, the achievement of equality and the advancement of human rights and freedoms, Non-racialism and non-sexism. Supremacy of the constitution and the rule of law. Universal adult suffrage, a national common voters roll, regular elections and a multiparty system of democratic government to ensure accountability, responsiveness and openness. 38. S. 74(2). 39. S. 74(4). 40. Currie

and

De

Waal,

The

New

Constitutional

and Administrative

Law,

Vol.

1,

Waal,

The

New

Constitutional

and Administrative

Law,

Vol.

1,

Constitutional Law, 181. 41. S. 74(6). 42. S.74(7). 43. Currie

and

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Constitutional Law, 181.

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couched in an all-encompassing manner similar to that of Article 368 of the Indian Constitution. The pertinent issue which thus remains is whether the South African Parliament may amend the “basic structure” or “core values” of the Constitution. The recognition of the existence of an unamendable “basic structure” will amount to a substantive constraint on the power to amend the Constitution. Is there such a constraint in the South African context? 4. Applicability of the basic structure doctrine in South Africa 4.1.

CASE LAW

The constitutional court seems to be of the view that the South African

Constitution has a “basic structure”.** In addition to this acknowledgment, the court has furthermore made brief obiter remarks in respect of the doctrine itself in a few of its judgments. In Executive Council Western Cape v. President of the RSA*, a matter decided in terms of the interim Constitution in relation to the power of Parliament to delegate legislative authority, Sachs J remarked: There are certain fundamental features of Parliamentary democracy which are not spelt out in the Constitution but which are inherent in its very nature, design and purpose. Thus, the question has arisen in other countries as to whether there are certain features of the constitutional order so fundamental that even if Parliament followed the necessary amendment procedures, it could not change them. I doubt very much if Parliament could abolish itself, even if it followed all the framework

principles mentioned above. Nor, to mention another extreme case, could it give itself eternal life-the constant renewal of its membership is fundamental to the whole democratic constitutional order. Similarly, it could neither declare a per-

petual holiday, nor, to give a far less extreme example, could it in my view, shuffle

off the basic legislative responsibilities entrusted to it by the Constitution.“

This remark was made by Sachs J in a separate concurring judgment and provides no firm basis for a conclusion that the doctrine forms a part of the South African constitutional law. Two further judgments of the court in which the doctrine was specifically mentioned make the position no clearer. In Premier of KwaZulu-Natal v. President of the RSA*’, a matter in which amendments to the interim Constitution were challenged, Mahomed DP writing for the court, referred briefly to the basic structure doctrine as it is applied by the Indian Supreme Court. According to the learned judge, the constitutional 44. See for example, Ex parte, Chairperson of the Constitutional Assembly, Certification of the Constitution of the RSA, re, 1996, 1996 (10) BCLR

1253 (CC): 1996 (4) SA 744 (CC)

paras 44-45; Doctors for Life International v. Speaker of the National Assembly, 2006 (12) BCLR 1399 (CC): 2006 (6) SA 416 (CC), para 82; Matatiele Municipality v. President of the Republic of South Africa, 2007 (1) BCLR 47 (CC), para 28. See also, paras 29-30; Merafong Demarcation Forum v. President of the RSA, 2008 (10) BCLR 968 (CC): 2008 (5) SA 171 (CC), para 225. 45. 1995 (4) SA 877 (CC). 46. Ibid, para 204. 47. 1996 (1) SA 769 (CC).

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amendments challenged in that matter had no implication for the basic structure of the Constitution and he thus, concluded that further exploration of the

doctrine was therefore, unnecessary. In United Democratic Movement v. President of the RSA*, the constitutional court considered three arguments challenging the validity of the constitutional amendments that allowed for floor-crossing by political representatives elected in terms of a proportional electoral system. The arguments were the basic structure argument, the founding values argument and the voting rights argument.” Prior to engaging with these arguments, the unanimous court remarked as follows: Amendments to the Constitution passed in accordance with the requirements of Section 74 of the Constitution become part of the Constitution. Once part of the Constitution, they cannot be challenged on the grounds of inconsistency with other provisions of the Constitution. The Constitution, as amended, must be read as a whole and its provisions must be interpreted in harmony with one another. It follows that there is little if any scope for challenging the constitutionality of amendments that are passed in accordance with the prescribed procedures and

majorities.~©

From this dictum, it seems that there are no substantive constraints on the amending power of government. The pertinent arguments were, nevertheless, interrogated. The basic structure argument was not considered in any detail because the challenged constitutional amendments did not “in effect abrogate or destroy the Constitution”.*’ Admittedly, the court did not conclusively dismiss the argument either, thus, leaving scope for an acknowledgement of the doctrine as part of South African constitutional law. The court considered the founding values argument of the applicants in detail, thus, suggesting that the two arguments, the basic structure argument and the founding values argument, were separate arguments capable of being pursued independently of one another. In sum, the highest court in the land has not given a clear indication as to

whether this doctrine will ultimately find application in South Africa.”

48. 2002 (11) BCLR 1179 (CC). 49. Ibid, paras 14-17. The heads of argument of the applicant in that matter make it clear that the applicant did not regard the basic structure argument as a core argument, since the challenge to the amendment in this matter related to one of the founding values contained in S. 1, para 151 (court documents available at ). 50. Ibid, para 12. 51. Ibid, para 17.

52. The position may well be different in a country such as Nigeria, which has a Constitution modelled closely upon the Indian Constitution. Nigerian Provisions on Fundamental Rights and

directive principles have, for example, been lifted wholesale from the Indian Constitution. See, M. Ayo Ajomo, “The Development of Individual Rights in Nigeria’s Constitutional History” in M. Ayo Ajomo and B. Owasanoye (Eds.), Individual Rights under the 1989 Constitution (Nigerian Institute of Advanced Legal Studies, Lagos 1993) 10.

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4.2.

ACADEMIC OPINION

[Chap.

Academic commentators have divergent opinions as to the applicability and possible basis of the doctrine in the South African context. Given the lack of clarity emanating from the courts, it is useful to provide a brief overview of the different academic opinions which have been expressed. In an early contribution analysing the amending provisions of the 1996 Constitution, Andrew Butler expressed the view that the text of Section 74 precluded the application of the basic structure doctrine in the South African context.3 He lamented the fact that the constitutional principles of the 1993 Constitution were not perpetuated in some way so as to provide a basic structure for the 1996 Constitution.*4 According to Butler, the special entrenchment of Section 1 provided for in Section 74 (even though Section 1 does not embody all the basic features of the constitutional framework) indicates that the legislature, and not the judiciary, has the ultimate authority on the basic design of the Constitution.°> Andrew Henderson” similarly, opined that Section 1 does not cover all the basic features of the constitutional dispensation established by the 1996 Constitution.*” Separation of powers, judicial independence and the federal division of power are noticeably absent from the list of founding values. Henderson’s view is that purposive interpretation of Section 1 may create scope for the special entrenchment of these features as provided for in Section 74.°° But this interpretation did not lead the author to conclude that certain constitutional features are beyond the power of amendment; ultimately “we, the people” determine the content of our Constitution.” If “we” decide to change the Constitution radically, and are able to meet the procedural hurdles presented in Section 74, such amendment would be competent. The textual formulation of the amending provision similarly leads authors Iain Currie and Johan de Waal to conclude that the basic structure doctrine will not find application in South Africa.® Section 1, which according to the authors contains the basic features of constitutional design,®' is amendable and its amendment could 53. A.S. Butler, “The 1996 Constitution Bill, its Amending Power, and the Constitutional Principles” (1996) 1 HRCLJSA 24. 54. Ibid, 26-27. The Principles had a limit lifespan: Ex parte,

Chairperson

of the

Constitutional Assembly, Certification of the Constitution of the RSA, re, 1996, 1996 (10) BCLR

1253 (CC): 1996 (4) SA 744 (CC), para 18. 55. Ibid, 24-25. 56. A.J.H. Henderson, “Cry, the Beloved Constitution? Constitutional Amendment, the Vanished Imperative of the Constitutional Principles and the Controlling Values of Section 1” (1997) 114 SALJ 542. SiulDidy ook, 58. Ibid, 551-552. See also, 554, “The court would be hard pressed to hold that a ‘feature’ or ‘structure’ not listed in S. 1 was ‘essential’ or ‘basic’ to the constitutional order.” 59. Henderson 555. 60. Currie and De Waal, The New Constitutional and Administrative Law, Vol. 1 (Constitutional Law) 182-183.

61. Ibid, 182.

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thus, theoretically change the basic design of our constitutional framework. This view is also supported by Steven Budlender.” Rautenbach and Malherbe® criticised this literal reading of the amending provision in their consideration of the applicability of the basic structure doctrine in the South African context. Entrenchment, according to the authors, indicates that a provision is worthy of special protection, and the stricter the entrenchment, the more important or foundational, a provision. They are accordingly of the view that a court may interpret the entrenchment of the values in Section 1 as indicative of the importance of the democratic foundation of the Constitution, which may lead a court to conclude that values relating to democracy are possibly “completely unamendable”.™ In an earlier publication, Malherbe® put forward an argument that Section | has a radiating effect on the substantive provisions of the Constitution. This radiating effect means that an amendment of any substantive provision would require the special majorities set for the amendment of Section 1 by Section 74. Radical constitutional amendments are thus curbed indirectly through Section 1 and the special entrenchment thereof. Any amendment impacting on the structure of government, for exampie, would require support of 75 per cent of the Members of the National Assembly (Lower House) and the support of six of the nine provinces in the National Council of Provinces. This argument does not rely on an extratextual basic structure of the Constitution but reliance is placed on the text of the Constitution itself and specifically on Section 1. Devenish® points out that the significance of Constitutions lies beyond their creation of rights and obligations. A Constitution also plays a significant political and social role in and for a polity. A strict literal and legalistic reading of the South African Constitution closes the door to the application of the basic structure doctrine as is evident from the interpretations of the authors discussed above. A teleological, purposive and historical contextual approach,®’ on the other hand, may create scope for the application of the doctrine despite the wording of the constitutional text. Application of the doctrine could possibly be justified in the light of South Africa’s constitutional history which saw the adoption of a supreme Constitution embracing a justiciable Bill of Rights, and 62. S. Budlender “National Legislative Authority” in S. Woolman, T. Roux and M. Bishop (Eds.), Constitutional Law of South Africa (2nd Edn. Juta & Co., Cape Town 2006) 17-30.

63. ILM. Rautenbach

and E.F.J. Malherbe,

Constitutional

Law

(Sth Edn.

LexisNexis

Butterworths, Durban 2009) 180-181.

64. 65. Artikel 66.

Ibid, 181. E.F.J. Malherbe, “Die Wysiging van die Grondwet: die Oorspoel-imperatief van 1” (1999) TSAR 191. G.E. Devenish, “A Jurisprudential Assessment of the Process of Constitutional

Amendment

and the Basic Structure Doctrine in South African Constitutional Law” (2005)

THRHR 243. . 67. On the meaning and significance of the different interpretative approaches, see, L. du Plessis, Re-interpretation of Statutes (LexisNexis Butterworths, Durban 2002) 114-119,

246-258. See also, S. v. Mhlungu, 1995 (7) BCLR 793 (CC): 1995 (3) SA 867 (CC), para 8 per Mahomed J, para 89 per Kriegler J, paras 111-112 per Sachs J.

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a multi-party democracy in clear rejection of a past marked by discrimination and oppression facilitated through an unrepresentative supreme legislature. 5. Debating the applicability of the doctrine in South African constitutional law 5.1.

THOSE IN FAVOUR, SAY “AYE”

“Amendment” of the Constitution as envisioned in Section 74 does not mean abrogation thereof. Difficult questions which may be posed in support of the applicability of the basic structure doctrine in South Africa include the following: 1. Could Parliament propose an amendment of the Constitution which fundamentally changes the entire balance of the Constitution by circumventing, reducing or eliminating the special majorities contained in Section 74? 2. Replacing constitutional supremacy with parliamentary sovereignty or increasing executive power, ousting the jurisdiction of courts and/or establishing a one-party State instead of the multi-party system recognised in Section 1 of the Constitution. At first blush, it would appear that the amending power of Parliament is unlimited in terms of Section 74 of the Constitution,® but for those who favour the application of the doctrine, Section 74 is understood to envisage only those amendments inherently designed to strengthen the Constitution and its ideals. In other words, amendments which are likely to have the effect of undermining the constitutional ideals ought to be invalid since they undermine the basic structure of the Constitution. An amendment which proposes to transform the State from a multi-party system to a one-party State or which seeks to derogate from the supremacy of the Constitution and the rule of law, for example, is not envisaged by any true constitutional democracy—even if it is supported by the required majorities. Acceptance of the contrary approach would, according to this argument, be a move away from the prevailing constitutional democracy towards a different regime of government. The consequence of such a move 68. See, in contrast, the provision of S. 3(1) of the Constitution of the Republic of Ghana, 1992 which specifically provides: “Parliament shall have no power to enact a law establishing a one-party State.” Art. 131 of the Namibian Constitution is more explicit in this regard. It says, No repeal or amendment of any of the provisions of Chapter 3 hereof, insofar as such repeal or amendment diminishes or detracts from the Fundamental Rights and freedoms contained and defined in that Chapter, shall be permissible under this Constitution, and no such purported repeal or amendment shall be valid or have any force or effect. Art. 132(5)(a) further corroborates this as it provides: “Nothing contained in this Article: (a) shall detract in any way from the entrenchment provided for in Art. 131 hereof of the Fundamental

Rights and freedoms contained and defined in Chapter 3 hereof.” See also, Art. 132(4) which states: “No repeal or amendment of this sub-article or sub-articles (2) or (3) hereof insofar as it seeks to diminish or detract from the majorities required in Parliament or in a referendum shall be permissible under this Constitution, and no such purported repeal or amendment shall be valid or have any force or effect.

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could be catastrophic and would destroy the essence of South African society. On this argument, the constitutional court’s rejection of an amendment (meet-

ing all the formal criteria of Section 74) to assert the supremacy of the legisla-

ture or to abolish multi-party democracy would be justifiable. It would in addition be for the constitutional court as authoritative interpreter of the Constitution, to determine precisely what the basic structure of the Constitution is—an issue which the Indian court has apparently also grappled with.” In its Certification judgment, the constitutional court identified “basic structures and premises” of the constitutional principles that had to be reflected in the text of the 1996 Constitution.” But, as pointed out above, the principles have served their role and can no longer be relied upon to guide constitutional amendments. Commentators have also suggested that Section 1 may be relied upon to determine the basic structure of the Constitution. Section 1, as pointed out above, is amendable and not necessarily inclusive of all the basic features of the South African constitutional State. Application of the doctrine does not require a written list of basic constitutional features as is evident from the Indian jurisprudence. Devenish is of the view that the proper basis for the doctrine is to be found in international law” and not from Section 1 or any other written list. Thus, a court would consider the South African context, the constitutional history and the demands of transformative constitutionalism on a case-by-case basis with reference to international law so as to determine whether an amendment offends an aspect of the basic structure of the Constitution. ; If the court were to decide that the doctrine is applicable in the South African context, it would be prudent to bear in mind that the basic structure doctrine is “judge made’”” and thus, counter-majoritarian by nature.’ When judges determine the basic structure of the Constitution, they do so not on the strength of a popular mandate, but on the strength of the momentous achievement that the Constitution represents in the South African society. The doctrine should, therefore, be considered with great circumspection and should only be applied as a last resort.” Where it is applied, it goes without saying, that the court is to approach the application of the doctrine cautiously so as to strike a balance between the demands of constitutional stability and the will of the people as expressed through their elected representatives. 69. See, Devenish, 251-252. See also, B. Bekink, “Balancing Constitutional Stability and Flexibility: An Evaluation of the Constitutional Amendment Procedures” (2004) TSAR 657,

668, 672-673. 70. See, supra, n. 9.

71. Ex parte, Chairperson of the Constitutional Assembly, Certification of the Constitution of the RSA, re, 1996, 1996 (10) BCLR 1253 (CC) 1996 (4) SA 744 (CC), para 45. 72. Devenish, 251. Devenish also opines that contemporary jurisprudence of natural law may be foundational to the doctrine. 73. Bekink, 673. 74. Devenish, 251. 75. abidy252.

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5.2.

THOSE AGAINST, SAY “NAY”

[Chap.

The basic structure doctrine, as formulated by the Indian Supreme Court, holds that in spite of explicit textual indications to the contrary, certain basic features of the Constitution are beyond the power of the legislature. The text of the Indian Constitution is as clear as that of the South African Constitution—amendment of all sections of the Constitution is possible provided that the procedures set out in the Constitution are followed and the required majorities are attained. Despite this explicit provision, the Indian Supreme Court has found that basic constitutional design features can serve as a bulwark against constitutional amendments that are aimed at destroying the Constitution. A Constitution enjoys a special place in the life of any nation. It is the fundamental law that establishes the State and regulates the exercise of political power and the relationships between political entities and between the State and the people.” A Constitution is not simply a statute which mechanically defines the structures of government and the relations between the government and the governed; it is a “mirror, reflecting the national soul, the identification

of the ideals and aspirations of a nation; the articulation of the values binding its people and disciplining its government.”” In the instance of South Africa, the Constitution is, importantly, also a “transformative Constitution” commit-

ted to charting positive change in the country. It may be argued that to achieve this objective, the document itself must be open to change, thereby allowing a government who seeks to employ a new strategy to pursue its ideology by fundamentally transforming parts of the Constitution itself. This argument finds strong textual support in Section 74 of the South African Constitution.” In terms of this provision, Parliament enjoys the express power to amend any provision of the Constitution, ostensibly in order to correct such imperfections and to strengthen its provisions where necessary. A literal reading of the provision of Section 74 of the South African Constitution clearly negates the applicability of the basic structure doctrine. When coupled with the proviso which acknowledges that the Constitution is the “supreme law” of the Republic, those in favour of the applicability of the doctrine are faced with a paradox when advancing their arguments: how is it possible to justify the suggestion that an amendment of the Constitution is destroying the basic structure of that document when the Constitution itself, subject to certain conditions being fulfilled, foresees and tolerates such amendment? The process which led to the making of the Constitution also points against the applicability of the doctrine in South Africa. For example, suggestions that 76. See, J. Hatchard, M. Ndulo and P. Slinn, Comparative Constitutionalism and Good

Governance in the Commonwealth—An Eastern and Southern African Perspective (Cambridge University Press, 2004) 12.

77. Mahomed CJ in State v. Acheson, 1991 (2) SA 805 (Nm), 813 A-B. 78. Other provisions, such as S. 167, also restrict the role of the constitutional court in deciding the constitutionality of parliamentary and provincial Bills, including Bills introduced for the

purpose of amending the Constitution itself. See, Ss. 79, 121 of the Constitution.

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certain basic features of the Constitution be kept beyond amendment were deliberately rejected by the Constitutional Assembly. The text of the interim Constitution,” in contrast to the (final) Constitution, specifically provided for unamendable provisions. The Constitutional Assembly, in other words, has made a conscious decision to avoid the application of the doctrine. The potential significance of such a point was not lost on the constitutional court in S. v. Twala:*° A change in expression between the could conceivably indicate that the However, it should not necessarily be if the ianguage in its context does not

interim Constitution and the Constitution drafters intended a change in meaning. understood to convey a change in meaning require this.

It has been observed that Constitutions shape the organisation and development of a society for both the present and future generations.*! Safeguarding a Constitution against retrogressive amendments is clearly of paramount importance. Otherwise, “a constitution, which is...a device for preserving certain states of affairs, might become a device for undermining the very states of affairs it is designed to preserve.” This, together with the appreciation of the Indian position on the matter, has understandably led some to argue for an una-

mendable Constitution or, at least, basic structure of the Constitution.* This position is, of course, extremely attractive to lawyers and other proponents of the “rule of law” as it allows them to bypass the risk of a change in regime by holding that there is an invisible yet all-pervading standard that exists in relation to the Constitution (the so-called “basic structure”) which may perpetually override even the unanimous wishes of a legislature wishing to pursue a different approach. Even the constitutional court in South Africa appears to have found it tempting to remark positively on this notion of a “basic structure”. It is submitted, by contrast, that this approach overlooks the crucial fact that a Constitution, notwithstanding the establishment of rigorous procedures for its making, may still contain “imperfections” or become outdated and require improvement.* It is necessary, following this argument, that a Constitution retains some flexibility because no matter how “perfect” it may appear to be at 79. S. 74. 80. 2000 (1) BCLR 106 (CC), para 17. 81. See, Hatchard, Ndulo and Slinn, Comparative Constitutionalism and Good Governance in the Commonwealth—An

Eastern

and Southern African Perspective,

12. In this regard,

Aguda JA in Unity Dow v. Attorney General, [1992] LRC (Const) 623 at 668 held that “[t]he

Constitution is the supreme law of the land and it is meant to serve not only this generation but also generations yet unborn...” 82. See, M. Brandon, “The Original Thirteenth Amendment and the Limits to Formal Constitutional Change” in S. Levinson (Ed.), Responding to Imperfection: The Theory and Practice of Constitutional Amendment (Princeton University Press, Princeton 1995) 215 (emphasis in original). 83. See, Hatchard, Ndulo and Slinn, Comparative Constitutionalism and Good Governance in the Commonwealth—An Eastern and Southern African Perspective, 43. 84. Ibid.

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the time of its drafting, some amendments to it may become inevitable in the future. This Windeyer J recognised when he held that “some old concepts of public law are in difficulties to keep their places in this new world.”® Devising an appropriate amendment procedure is not an easy task. An overly rigid process would prevent or deter efforts to strengthen constitutional provisions, while an overly flexible amendment procedure would create the danger of the document’s wholesale amendment by an unscrupulous government intent on increasing executive power.®* Achieving the special majorities set by the Constitution is likely to be difficult. The Constitution stipulates special majorities of 75 per cent and two-thirds depending on the part of the Constitution to be amended. As a result, the likelihood of “worst case scenarios” materialising is reduced.®’ It may also be submitted that amendment of the Constitution, including its most basic structure, is inevitable in view of the evolving nature of society. No generation has a monopoly of knowledge that entitles it to bind future generations irreversibly. This principle must be true even for a generation which saw the liberation of a country from the chains of apartheid. Any Constitution that denies people the right of amendment invites an attempt at extra-legal revolutionary change.* It is impossible for the framers of any Constitution to foresee all situations likely to arise in future.” In the words of Wheare, “a constitution that will not bend will break.””° Or, as argued by Hatchard, Ndulo and Slinn, “a totally inflexible [constitutional] model could introduce serious constitutional tension.””! The situation in the life of a country may warrant that an entirely new Constitution be made or that the existing one be substantially amended or remade to reflect a new reality or to facilitate the facing of new challenges brought about by changing times. It is highly unlikely that the Constitutional Assembly in South Africa intended the Constitution to be a reactionary instrument which would be unbending against all changes in the social, economic and political conditions in the post-apartheid country.” By contrast, adaptation to new social, economic and political realities is within the spirit and philosophy of any modern Constitution. 85. Ex parte Professional Engineers’ Association (1959) 107 C.O.R 208, 276. See also, Switzman v. Elbling & Attorney General, Quebec, (1957) 7 DLR 92nd 337. 86. See, supra, nn. 44—45.

87. Having said that, however, the possibility of a government obtaining the required ma-

jorities and then reducing the amendment criteria provided for in S. 74 cannot be discounted and would be a cause for concern. 88. See, Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.

89. See, J. Narain, “Judicial Law-Making under the Constitution of India” in K.B. Agrawal and R.K. Raizada (Eds.), Comparative Constitutionalism (University Book House, Jaipur 1990) 15. 90. K.C. Wheare, Modern Constitutions (Sweet & Maxwell, London 1966) 33. 91. See, supra, n. 54. 92. See, supra, n. 21, para 89.

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What seems paramount is the sustained provision for a satisfactory amendment procedure. Once the amendment complies with the procedures and majorities laid down for such amendment, it is likely that the amendment even of the most basic structure of the Constitution is validated. 6. Conclusion

It is hoped that the type of uncomfortable impasse experienced in India as a result of the tensions between the courts and Parliament may be avoided in South Africa. A situation which results, for example, in the reduction of the

threshold for amendment contained in Section 74 is undesirable and suggests a government seeking to rewrite a Constitution which represents the culmination of a long, hard-fought struggle. Allowing or forcing (depending upon one’s perspective) the constitutional court to overrule a government’s express wish for constitutional change is, on the other hand, a risky business, bringing the very notion of democracy into question and posing the following challenges: Why should a government which overwhelmingly decides to achieve certain objectives by a change in approach be bound by a constitutional system crafted in the 1990s at the conclusion of a specific struggle? And, why can a society itself not deal with a government which selects a new course of action inimical to its desires through principles of democracy, assuming that these have been retained, by using the vote to change its mandate and restore the balance? Despite the constitutional court passing favourable remarks in respect of the doctrine, given the textual provisions of the Constitution and the deliberate change from an interim Constitution which supported the existence of unamendable constitutional provisions as well as the other arguments against the application of the doctrine, it is clear that a quantum leap of sorts would be necessary for the basic structure doctrine to be accepted as an underlying component of South African constitutional law.

23

Reading the principle of gender equality into the basic structure doctrine of the Constitution of India: Critical reflections Dr. Sanjay Jain*

At the very outset, I must mention that as a student of constitutional law, I have learned immensely from the approaches to the interpretation of Constitution resorted to by Mr H.M. Seervai and Mr N.A. Palkhivala and I dedicate this Chapter as a mark of respect to them. In this Chapter, an attempt is made to briefly examine, whether the principle of gender equality constitutes one of the essential features of basic structure of our Constitution? This question assumes greater importance after India having signed and ratified the Convention on Elimination of all forms of Discrimination Against Women (CEDAW). At a time when Indian nation claims to be on the verge of being a superpower and persevering for a permanent seat in the UN Security Council, violations of gender equality go on unabated as Jessicas and Ruchikas continue to die and voices of Kushboos are persistently subjugated’. Culprits continued to be treated very softly by our judiciary. In this somewhat paradoxical scenario, insistence on our part to treat gender equality as one of the essential features of basic structure of our Constitution is quite justified. For a systematic discussion, this Chapter is divided into four sections:

Section 1 would briefly deal with the idea of basic structure, and it would be argued that conception of basic structure has an intrinsic value and is a conglomerate of basic principles forming the foundation of the Constitution. Section 2, I would identify the textual and contextual roots of gender equality in our juridical order. I would demonstrate that the principle of gender equality is textually grounded in the Provisions of the Constitution and does constitute one of the foundational values enshrined in Part III and thereby binds the legislature, executive and the judiciary in their respective spheres. * Lecturer (Sr. grade), ILS Law College, Pune. 1. See, Sidhartha

Vashisht v. State (NCT of Delhi), (2008)

5 SCC

230; S. Khushboo

v.

T.M.T. Kanniammal Madras, decided on 30-4-2008. It is rightly overruled by the Supreme Court in S. Khushboo v. Kanniammal, (2010) 5 SCC 600.

Reading the principle of gender equality

229

Section 3 then briefly analyses three landmark judgments in which the Apex Court has sought the linkage between basic structure and gender equality. I would argue that judiciary must recognise the significance of the “conception of gender equality” as an essential feature of basic structure of Constitution. It will be demonstrated that thus far, neither the Bar nor the Bench has made any serious attempt to cement this rather important principle into the basic structure conglomerate. Section 4 grapples with the enquiry whether principle of gender equality is one of the constitutional axioms akin to rule of law, human dignity, etc. and withstands the scrutiny evolved by the Supreme Court in M. Nagraj v. Union of India* (M. Nagraj) and I.R. Coelho v. State of T.N2 (I.R. Coelho). While concluding, we would argue that in the light of obligations incurred owing to ratification of CEDAW, it is high time for Indian judiciary to not merely recognise gender equality as one of the basic principles of the Constitution; rather it should elevate its status to one of the essential features of the basic structure of the Constitution and must deploy it as a justification to insist the State to enforce the fundamental duty enshrined in the Constitution to renounce practices derogatory to the dignity of women. The principle of gender equality may also be resorted to, by the State to combat gender discrimination in horizontal relations between man and woman and also to mitigate social menace of sexual harassment of women. 1. Shift in the paradigm

At this juncture, it is equally important to note that as Constitutions lie at the core of the institutional structure and legal system of a State and define the relationships between the State and its citizens as well as among the citizens themselves, they play a huge role in codifying “gender rights” in general and “gender equality” in particular.* A careful look on the contemporary feminist literature would reveal a shift in the understanding of a role of constitutional law. Earlier the focus was on liberal individualist conceptions of Constitutions and rights, and majority of the feminists were skeptical about its efficacy. However, with the paradigmatic shift in the social perception of constitutionalism, it is recognised that the constitutional law has the potency to provide a canvass of broadly defined rights inclusive of right to gender equality and the same is very vividly illustrated by the recent constitutional developments in South Africa, Iraq, Canada, UK, etc. At the same time, it must also be borne in

the mind that recognition, protection and enforcement of principle of “gender 2. (2006) 8 SCC 212. 3. (2007) 2 SCC 1. 4. See, Georgina Waylen, “Constitutional Engineering: What opportunities for the enhancement of Gender Rights?”; Helen Irving, Gender and the Constitution—Equity and Agency in Comparative Constitutional Design (CUP, 2008); Beverley Baines and Ruth Rubio-Marin (Eds.), The Gender of Constitutional Jurisprudence (CUP, 2005).

230

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equality” during the process of “constitution making” has to be backed by a strong feminist lobbying, otherwise the whole exercise would merely degenerate into rhetorical refurbish to showcase the human rights agenda for the international audience/observers of transnational institutions and there will be little progress in its actual implementation. I assume for the purposes of this Chapter that in India there has been too much focus on the affirmative action programmes for promoting gender equality®. However, during the actual realisation of goals set out in the Constitution as well as in CEDAW, too little has been done to enhance the process of inclusion, a substantive strategy to be applied in the course of constitution making. In other words, women have been virtually excluded from the decision making processes almost at every level.® I also assume that principle of gender equality is not a parasitical right rather it is a substantive claim i.e. (to borrow the phraseology of Ronald Dworkin) right to equal respect and concern, envisaging the following: 1. General duty of gender equality in horizontal and vertical spheres to provide equality of opportunities and non-discrimination by recognising gender and sex as “protected characteristics”. 2. A set of positive responsibilities on State and non-State actors viz. providing affirmative action programme. 3. Specific duties to prevent sexual harassment, and stereotyping of jobs and avocations. 4. Socio-economic and political, sexual, and reproductive rights. 5. Redressal mechanisms in the form of commissions and inspectorates’, and special courts. 6. Proactive and implementory mechanism in the form of gender equality schemes, gender impact assessments, effective consultations with stakeholders, policy framework® at National and State level addressing empowerment of women and reporting procedures.’

All these dimensions are reflected in the provisions of the Constitution, various legislations at Central and State levels and executive and administrative actions of the governments and local authorities and other public and local 5. CEDAW committee categorically expressed its concerns about India’s failure to enact Sex Discrimination Act in order to apply the standards of convention applicable to non-State action and inaction. See, CEDAW/C/IND/2-3, para 8 available at last accessed 18-6-2010. See, Sanjay Jain, “Taking Women’s Security Seriously —Some Reflections on International Bill of Human Rights for Women” in Gautam Sen (Ed.), Impediments to National Security (NISDA, University of Pune, 2007).

6. Ibid. The CEDAW committee in its concluding observations, on second and third periodical report submitted by India for its perusal expressed dissatisfaction about not taking effective actions to enhance women’s participation in the judiciary. 7. See, National Commission for Women Act, 1990. Several States have also constituted commissions modelled on the same. 8. See, National Policy on Empowerment of Women, 2001. States have also formulated policies modelled on the same. 9. See, for an excellent illustration covering all these dimensions,

enacted by UK.

“Equality

Act, 2010”

23)

Reading the principle of gender equality

231

authorities. I also argue that our Constitution combats both “sex” and “gender” discrimination by not only outlawing the same but also by enshrining a number of women specific provisions and by explicitly referring therein’to “women”. It is also emphasised that our Constitution treats women as a heterogeneous group and gives expression to “plurality of voices” of women. Owing to space constrains, I base my Chapter on the above assumptions without making a detailed jurisprudential enquiry. In India, barring few scholars’, no one has made any serious effort to critique the Constitution and constitutionalism from the standpoint of “feminist legal theory”. I, therefore, feel that the modest effort by way of this Chapter would lead to a debate and generate constructive ideas and research. 2. Section 1 2.1.

EVOLUTION OF THE BASIC STRUCTURE PRINCIPLE

Although Kesavananda Bharati v. State of Kerala''! (Kesavananda Bharati) is said to be the source of this principle, a careful analysis of earlier judgments of Supreme Court would reveal that it had germinated much earlier, though in a latent form, in the judgment of Mudholkar J in Sajjan Singh v. State of Rajasthan" (Sajjan Singh). He had maintained: We have to bear in mind the fact that ours is a written Constitution. The Constituent Assembly which was the repository of sovereignty could have created a Sovereign Parliament on the British Model. But instead it created a written Constitution, created three organs of State erected a federal structure recognised certain rights 10. See, S.P. Sathe, Towards Gender Justice, (1993); Ratna Kapoor, Subversive SitesFeminist Engagements with Law in India, (1996); Flavia Agnes, State, Gender and Rhetoric of Law Reform (SNDT University, Bombay 1995); Nivedita Menon, Recovering SubversionFeminist Politics Beyond the Law, (2004); Sagade Jaya, Law of Maintenance—An Empirical Study (ILS, Pune 1996); Child marriage in India: Socio-legal and Human Rights Dimensions (OUP, 2005); Malini Sur, “Women’s Right to Education—A Narrative on International Law, Indian Journal of Gender Studies” (2004); P. Ishwara Bhat, “Constitutional Feminism: An Overview” (2001) 2 SCC J-1; Madhu Kishwar, “Pro Women or Anti Minority? The Shah Bano Controversy”, Vol. 2, 1986; Manushi and Ved Kumari, Gender analysis of Indian Penal

code, Essays in Honor of Lotika Sarkar; B. Sivarammaya, “Coparceners Rights to Daughters: Constitutional and Interpretational Issues” (1997) 3 SCC J-25; Dr. Upendra Baxi, “Patriarchy,

Law and State: Some Preliminary Notes” 1984, “on being a woman” in Upendra Baxi (Eds.), Membrions Helmet—Human Rights for Changing World, (1995); Kusum, “Marital status based discriminaltion” (2003) 45 JILI; Vaijayanti Joshi, “Consent in Man-Woman relations: Law and Patriarchy: Some Examples” 345 in S.P. Sathe and Sathya Narayan, Liberty, Equality and Justice—Struggle for a New Social Order (Eastern Book Company, 2003); Dr. Sanjay Jain, “Seriously: An Introspection on Law’s Engagement with the Evil of Dowry”, 114-136, in Swati Shirwadkar (Ed.), Family Violence in India—Human Rights, Taking Women Issues, Actions

and International Comparisons (Rawat Pub. Ltd., 2009); Dr. Sanjay Jain, “Taking Women Seriously—A Critical Inquiry into the Changing Parameters of Judicial Review and Perspectives

|

on Protection and Enforcement of Rights of Women with Special Reference to Constitution of India” submitted to RSTM University, Nagpur in 2008, an unpublished PhD thesis. 11. (1973) 4 SCC 225. : 12. (1965) 1 SCR 933.

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[Chap.

as fundamental and provided for their enforcement and further required the members of the higher judiciary in the States to uphold the Constitution. Above all it formulated a solemn and dignified preamble which appears to be an epitome of the basic features of the Constitution. Can it not be said that these are the indicia of the intention of the Constituent Assembly to give a permanency to the basic features of the Constitution?”

Again in Golak Nath v. State of Punjab’ (Golak Nath), majority of the judges while laying down the inviolability of Fundamental Rights tacitly contributed to the evolution of this principle’. Finally in Kesavananda Bharati, 7 out of 13 judges" ruled that even exercise of amending power is subject to the basic structure doctrine of the Constitution. Since then, the journey of this prirciple through various constitutional adjudications has been by and large smooth, barring an untimely attempt made in 1975 by Ray CJ for its review, which had to be aborted by him rather uncharacteristically."” In this section, I will briefly demonstrate how the principle of basic structure is integral to our Constitution and how the courts are using it as a parameter of judicial review. For the same, I will briefly analyse two recent judgments of the Supreme Court of India. 2.2.

“M.NAGRAS”

AND “I.R. COELHO” DISCOURSE

In the landmark case of M. Nagraj, the Supreme Court for the first time explicitly recognised that the text of the Constitution has to be interpreted alongside certain “foundational values”. Kapadia J speaking on behalf of an unanimous Bench of five judges observed: Every foundational value is put in Part III as Fundamental Right as it has intrinsic value. The converse does not apply. A right becomes a Fundamental Right because it has foundational value."

Similarly, he also emphasised on the need to juxtapose the text of the Constitution with certain principles. He observed: The concept of a basic structure giving coherence and durability to a Constitution has a certain intrinsic force .... This development is the emergence of the constitutional principles in their own right. It is not based on literal wordings ... it is important to note that the recognition of a basic structure in the context >f amendment provides an insight that there are, beyond the words of particular provisions, systematic principles underlying and connecting the provisions of the Constitution. These principles give coherence to the Constitution and make it an 13. Ibid, para 56.

14. (1967) 2 SCR 762. 15. In their dissenting opinions, Wanchoo, Bachawat and Ramaswamy JJ rejected the notion of the implied limitations with reference to the basic features of the Constitution ....

16. Sikri CJ and, Shelat, Hegde, Grover, Reddy, Khanna, Mukherjea JJ. 17. See generally, T.R. Andhyarujina, “The Untold Story of How Kesavananda Bharati and

the Basic Structure Doctrine Survived an Attempt to Reverse them by the Supreme Court” (2009) 9 SCC J-33. 18. Ibid, para 20.

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organic whole. These principles are part of Constitutional law even if they are not expressly stated in the form of rules."

The learned judge amplified the same by demonstrating how in S.R. Bommai v. Union of India*® (Bommai), the Supreme Court deployed the principle of secularism to uphold the dismissal of State Government under Article 356 read with Article 355 because the government acted against this vital principle giving coherence to a number of particular provisions i.e. Articles 14, 15 and 257. In other words, the court based its decision on “evidence of a pattern of action

directed against the principle of secularism”.” However, the learned judge also made it clear that every constitutional principle is not supposed to be the essential feature of the Constitution and evolved an evaluative standard to separate the latter from the former. In order to qualify as an essential feature, a principle is to be first established as part of the constitutional law and as such binding on the legislature. Only then, it can be examined whether it is so fundamental as to bind even the amending power of the Parliament i.e. to form part of the basic structure of the Constitution.”

Kapadia J also laid down the twin tests of “width and identity” to adjudicate the constitutional validity of the amendments. He stated that the former is to be employed to examine whether the impugned amendments obliterate the constitutional limitations mentioned in particular provisions whereas the latter is to be invoked to decide whether the alterations in existing structure of any provisions of the Constitution amount to destruction or of doing away with the over-arching principles pervading/underlying the text of our Constitution.” It is submitted that the M. Nagraj discourse along with the decision of the Supreme Court in Bommai has most certainly taken the concept of basic structure beyond a mere parameter of judicial review and has institutionalised it as a free standing conglomerate of certain constitutional principles echoing the essential features of the Constitution”. Arguably, it is therefore now possible for other branches of government, apart from judiciary, to perform their 19. 20. 21. 22.

Ibid, para 23. (1994) 3 SCC 1. (2006) 8 SCC 762, para 23. Ibid.

23. (2006) 8 SCC 762, para 25. In this connection, Kapadia J also cited with approval, the famous working test evolved by Chandrachud J in the Election case [Indira Nehru Gandhi v. Raj

Narain, (1975) Supp SCC 1] to identify essential features of the Constitution. He had observed: for determining whether a particular feature of the Constitution is a part of its basic structure, one has per force to examine in each individual case the place of the particular feature in the scheme of the 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. Ibid. Supra, n. 2, para 37. 24. (2006) 8 SCC 212, para 102. 25. These principles are unwritten and nevertheless echoed in various provisions of the Constitution. See generally, Vivek Krishnamurthy, “Colonial Cousins: Explaining India and Canada’s Unwritten Constitutional Principles” Yale J Int’] L Winter 2009.

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constitutional duties to safeguard these principles as has recently been done by Parliament of India when it expelled a number of MPs found guilty of accepting money in exchange for asking questions during sessions of Parliament.”° The Supreme Court further elaborated on the jurisprudence of basic structure and evaluative criteria to identify essential features of the Constitution in /.R. Coelho. In LR. Coelho IP’, the Supreme Court further embarked upon a more elaborate articulation of its above stance in M. Nagraj. The court provided a number of rationales viz. Principle of constitutional supremacy”*, Foundational values”®, Conscience of the Constitution®®, Interdependence of fundamental rights*', Separation of powers”, Designation of nature of power under Article 368 as amending power*, Identity of Constitution*, Judicial review*, for justifying this doctrine and in doing so, made an excursion of all the earlier judgments on this issue and by pronouncing a unanimous opinion provided a strong footing to this important yet controversial doctrine in our constitutional jurisprudence. In order to emphasise on the structural unity of these constitutional principles, the court opined that equality, rule of law, judicial review and separation of powers, though are distinct concepts, do embrace one another. The court observed: There can be no rule of law if there is no equality before the law; and rule of law and equality before the law would be empty words if their violation was not a matter of judicial scrutiny or judicial review and judicial relief and all these features would lose their significance if judicial, executive and legislative functions were united in only one authority, whose dictates had the force of law.*®

To conclude the discussion on the contemporary notion of basic structure, amending body while exercising its amending powers under Article 368, “cannot lift all restrictions placed on the amending power or free the amending power from all restrictions” like secularism, separation of power, equality, rule of law, etc.’ It is submitted that in the two cases discussed above, the Supreme Court markedly differed from its earlier approach in dealing with the notion of 26. Rajaram Pal v. Hon’ble Speaker, Lok Sabha, (2007) 3 SCC 184. 27. Coelho I was a five-Judge Bench, (1999) 7 SCC 580. It referred a matter to a larger Bench emphasising on complexity of constitutional question on scope and ambit of amending power vis-a-vis Sch. IX.

28. 29. 30. 31. 32. 33.

See, (2007) 2 SCC 1, para 48. Ibid. Ibid, para 49. Ibid, para 60. Ibid, paras 64-66. Ibid, para 121.

34. Ibid, para 124.

35. Ibid, paras 40-41. 36. Ibid. See also, (2006) 8 SCC 762, para 31. 37. Ibid. See also, (2007) 3 SCC 184, para 125.

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basic structure. The court made a conscious effort to clearly identify rationales behind the basic structure doctrine and also identified these rationales in the actual text of the Constitution. By doing so, the court attained the most difficult virtues of objectivity/neutrality**, relativity and fidelity to the text of the Constitution. It attained objectivity by demonstrating that the rationales behind the basic structure doctrine, though are identifiable in the text of the

Constitution, also enjoy a free standing identity as unwritten principles and these unwritten principles are universally prevalent. It attained relativity by demonstrating that without compromising the universality of these principles, they may be fine tuned and suitably altered to fit with a given constitutional context and therefore, it was possible for the court to countenance the position

that even the essential features forming the basic structure can be altered or amended.*? It demonstrated the fidelity to the text of the Constitution by being able to fit all these principles into the text. Thus, the court was able to choose a constitutional theory while interpreting the Constitution whose foundation was although essentially based on external criteria*°. It was also able to most vividly demonstrate the flashing reflections of the same in the text of the Constitution.*! Thus, it becomes clear from the above discussion that the notion of basic structure having attained the status of juridically enforceable constitutional values, and being within the compass of “judicially manageable standards”, it is possible to argue that it has attained legal, sociological and moral legitimacy” in India. In the next section, I would examine as to how threads of gender equality are interwoven within our juridical order. 3. Section 2 3.1.

TEXTUAL AND CONTEXTUAL ROOTS OF GENDER EQUALITY IN OUR CONSTITUTION

In this section, I would argue that basic structure review should not operate as a negative constrain merely on the exercise of amending power, rather the 38. See generally, Wechsler, “Towards Neutral Principles of Constitutional Law” (1959) 73 Harv L Rev 1.

39. Author submits that the evaluative criteria laid down in M. Nagraj and I.R. Coelho appear to have been somewhat played down by the Supreme Court in two of its important judgments subsequent to /.R. Coelho II in Glanrock Estate (P) Ltd. v. Union of India, (2010) 9 SCC 96; Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1. 40. Author submits that in past too, the Supreme Court has read the text of the Constitution

alongside well-recognised constitutional principles, axioms and values viz. reasonable classification, absence of arbitrariness, due process of law, etc. See, E.P. Royappa v. State of T.N., (1974) 4 SCC 3; Maneka Gandhi v. Union ofIndia, (1978) 1 SCC 248; State of W.B. v. Anwar Ali Sarkar, (1952) SCR 284; pervading modern constitutionalism, the court held that they are not explicitly entrenched by our Constitution, by implication, they constitute the features of its basic structure. 41. See generally, Richard Fallon Jr., “How to choose the Constitutional theory” (1999) 87 Calif L Rev 535. 42. See generally, Richard Fallon Jr. “Legitimacy and Constitution” (2005) 118 No. 6

Harv L Rev.

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doctrine must be perceived as formative context in which the provisions of the Constitution and statute are to be interpreted and to this extent, I would beg to differ with the reasoning of our Apex Court in M. Nagraj and I.R. Coelho.* On the other hand, I would demonstrate that conception of basic structure also operates as a positive framework of responsibilities“ on all organs of the States. My contention is justified if it is assumed that gender equality is one of the foundational values echoing in different Fundamental Rights guaranteed by Part III and if it is also accepted that thereby it has intrinsic value. Another justification I venture to offer is furnished by assimilation of International human rights law standards and domestic standards of gender equality in our constitutional jurisprudence**. Thus, commitments given by India to the international community at different forums for recognition, promotion, protection and enforcement of gender equality, clearly makes a case for its adoption as one of the features of the basic structure of the Constitution. It is also possible to furnish textual justifications as well, to further strengthen my aforesaid contentions. A close look on the opening words of the Preamble of the Constitution “we the people of India” indubitably demonstrate that although during the process of constitution making, women were not adequately represented in the Constituent Assembly, it makes hardly any difference normatively and as a matter of fact, they along with men are recognised as equal citizens. Again, if the conception of “justice—social, economic and political” is to have any real contents for women than its symbiotic connection with gender equality cannot be lost sight off. The Preamble also attaches great 43. Author submits that the two conflicting judgments of Supreme Court in State of Karnataka v. Union of India, (1977) 4 SCC 608 (nine-Judge Bench) and Kuldip Nayar v. Union of India, (2006) 7 SCC 1 (five-Judge Bench) on the question whether the basic structure doctrine

is applicable beyond the sphere of amending power viz. legislative, executive, administrative

were not even referred by the Supreme Court either in M. Nagraj or in I.R. Coelho, while confining its scope to the exercise of amendatory powers. The court also did not overrule its earlier decision in /smail Faruqui v. Union of India, (1994) 6 SCC 360, where the principle of basic structure was invoked by the court to regulate the exercise of legislative power. See also, B.R. Kapoor v. State of T.N., (2001) 7 SCC 231, where, while interpreting the exercise of executive power by the Governor, the court observed through Bharucha J “nothing can better demonstrate that it is permissible for the court to read limitations into the constitution based on its language

and scheme and its basic structure”. This important decision was also not even referred by the Supreme Court in M. Nagraj and I.R. Coelho while limiting the scope of the basic structure doctrine. See also, Aruna Roy v. Union of India, (2002) 7 SCC 368; P. M. Bhargava v. University Grants commission, (2004) 6 SCC 661; State of Karnataka v. Thogadia, (2004) 4 SCC 684; Indra Sawhney v. Union of India, (2000) 1 SCC 168; P. V. Narasimha Rao v. State, (1998) 4SCC

626. See also, infra, nn. 116-119 and accompanying text. 44. There is a distinction between obligation/duty and responsibility. The former along with conferring the power also stipulates the mode and the manner and the occasions of its exercise, whereas the latter while conferring the power leaves room for the discretion in designing its mode and manner and identification of occasions on which it is to be exercised creatively. 45. With the recent amendments of “Protection of Human rights Act, 1993”, the definition of human rights has undergone a change because now the scope of the term, “International cov-

enants” has been enhanced to include all the Human rights law instruments notified by Govt. of India from time to time and by recent notification, CEDAW has been notified.

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significance to the conception of dignity, which but for the promotion of gender equality cannot be attained in case of women. Turning to Part III of the Constitution, guaranteeing Fundamental Rights, there is not even a whisper of doubt that conception of gender equality is embraced by the open-textured language and the conceptions in which most of these rights are articulated. Thus, Article 12 can be interpreted to implicate horizontal violations of Fundamental Rights i.e. violation of Fundamental Rights of women by men and vice versa, in the light of it’s opening phrase “unless the context requires otherwise”.*° Article 13 inter alia imposes fetters on the powers of executive and legislature to prevent violations of Fundamental Rights guaranteed in Part III*’. Its implications for gender equality are most clearly visible in the context of personal laws. The moot question is whether the courts can strike down any personal law for being in violation of Fundamental Rights to gender equality guaranteed by Articles 14 and 15? While tackling this question, the approach of the courts is extremely complex and at times analytically flawed. With regard to codified personal laws, Supreme Court has taken a consistent view that they are subject to the scrutiny of Article 13.** On the other hand, the court is extremely reluctant to apply the yardstick of Article 13 to test the constitutional validity of uncodified personal laws*’. It is submitted that there is no analytical justification to adopt two radically different lines of reasoning to deal with codified and uncodified personal law and the same is also not in line with obligations flowing from CEDAW”. It would also not 46. The Supreme Court in number of cases held that rape amounts to violation of right to life and human dignity guaranteed by Art. 21. See, Bodhisattwa Gautam v. Subhra Chakraborty, (1996)

1 SCC 490; Railway Board v. Chandrima Das, (2000) 2 SCC 465; Delhi Domestic

Working Women’s Forum v. Union of India, (1995) 1 SCC 14; See generally, Clare McGynn, “Rape as torture? Catherine Mackinnon and Questions of Feminist Strategy” Vol. 16 No. 1, April 2008. Prof. Upendra Baxi, “The Ultimate violation of the Self: Reflections on Judicial Discourse on Attempted Rape’, (1998) 6 SCC J-1. 47. It is still an open question whether citizens can enforce violations of Fundamental Rights against judiciary. Hidayatullah J in his dissenting opinion answered this question in affirmative. See, Naresh Mirajkar v. State of Maharashtra, (1966) 3 SCR 744, paras 88-142. It appears that Supreme Court implicitly accepted this view in A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602. It is my humble contention that elimination of gender gap in judicial process would be impossible without fair representation of women in judiciary. See, supra, n. 4. See generally, special issue Dermot Feenan (Guest Ed.), “Women and Judging” Vol. 17, No. 1, April 2009, Feminist

Legal Studies. 48. See, Danial Latifi v. Union of India, (2001) 7 SCC 740; Shabana Bano v. Imran Khan,

(2010) 1 SCC 666; Shamim Ara v. State of U.P., (2002) 7 SCC 518. 49. See, State of Bombay v. Narsu Appa Mali, AIR 1952 Bom 84; Ahmedabad Women Action Group (AWAG) v. Union of India, (1997) 3 SCC 573.

50. The Committee is concerned by the State party’s reluctance to review its policy of noninterference in the personal laws of communities without their initiative and consent and to withdraw its reservations to Arts. 5(a) and 16(1) of the Convention. Supra, n. 3, para 10. See

also, Kirti Singh, Sumaiya and Maimoona, “Inching towards Equality: A Comparative Analysis of CEDAW and Muslim Personal Law In India” in Shaheen Sardar Ali (Ed.), Conceptualising Islamic Law, CEDAW and Human Rights in Plural Legal Settings: A Comparative Analysis

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code”.°' I venture to provide any incentive to the State to enact a “uniform civil g its obligation in submit that inaction of the Government of India in complyin principle of accordance with Article 44 amounts to violation of constitutional s its violation gender equality and the Supreme Court also continuously abate 13.° by not subjecting uncodified personal laws to the scrutiny of Article cGoing further, the twin principles of “equality before law and equal prote tion of law” enshrined in Article 14 are ever pregnant with ideas to promote gender equality. In my opinion, the conjoint reading of these two principles furnishes a solid justification for evolution of a model of gender equality based on substantive rather than formal/artificial equality. Articles 15 and 16, by banishing sexual discrimination from the constitutional terrain covering all spheres of life in no uncertain terms, further rearticulate the utility and efficacy of the principle of gender equality. The same is most vividly demonstrated by Article 15(3) which empowers State to make special provisions for women and children, it is to be also invoked to combat discrimination on grounds mentioned in Articles 15(1) and 16(2) and this power is without any

of Application of CEDAW Bangladesh, India and Pakistan (UNIFEM South Asia Reg. Office, 2006). 51. Of course by way of rhetoric, the Supreme Court has urged the State to enact Uniform Civil Code in accordance with Art. 44 of our Constitution. See, Sarla Mudgal v. Union of India,

(1996) SCC 3 125. Though it is possible to contest this view by invoking reservations entered on by India while ratifying CEDAW, the same may not hold the field forever and at any rate,

this reservation must be contested before the Supreme Court under Art. 32 by way of PIL for being violative of gender equality, a feature of the basic structure of Constitution. See generally,

Lakshmi Arya, “The Uniform Civil Code: The Politics of the Universal in the post colonial India”, Vol. 14, No. 3, Feminist Legal Studies (December 2006). Werner Menski, “Recent devel-

opments in the Uniform Civil Code Debates in India-Part 1 and 2” (2008) Vol. 9, No 3, German Law Journal. As a matter of fact, the court has overruled the reservation entered by India on ICCPR 1996 with regard to remedy of compensation. See, D.K Basu v. State of W.B., (1997) 1

SCC 416. 52. It is a fallacious argument to make that personal laws constitute fundamental tenets of freedom of religion guaranteed by Arts. 25-26. The said freedom is not absolute and is subject

to a number of restrictions moreover in case of an open clash between religious freedom and gender equality, the latter should be given primacy because it is a greater public good compared to former. See, Archana Parasher & Amita Dhanda (Eds.), Redefining Family Law in India (Routledge, Delhi 2008).

53. The problems with the formal approach to equality and with the similarly situated test have been widely recognised and criticised. For example, the Supreme Court of Canada in Andrews v. Law Society of British Columbia, (1989) 1 SCR 143, held:

The test as stated is seriously deficient in that it excludes any consideration of the nature of the law. If it were to be applied literally, it could be used to justify the Nuremburg laws of Adolf Hitler. Similar treatment was contemplated for all Jews.

This view is reflected in A. Laxamana Murthy v. State of A.P., AIR 1980 A.P. 293, 298, the High Court similarly observed: Hitler’s classification of all Jews into a separate category for the purposes of butch-

ering them and Naxalites classification of all landlords into a separate category for

purposes of exterminating them cannot therefore be faulted on this theory of equal protection clause.

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preconditions or qualifications*’. State has introduced quotas and other affirmative action programmes, inter alia, in the area of education® and public

employment.” Articles 19 and 21, confer certain special freedoms, and right to life and personal liberty respectively and we have to recognise the symbiOtic relationship with gender equality. Thus, freedom of speech and expression enshrined in Article 19(1)(a) guarantees “freedom to wear a particular attire” and to propound and advance literature promoting gender equality.*’ So far as the right to life with respect to women is concerned, it can be effectively realised only if they are armed with certain capabilities viz. bodily integrity, bodily health (reproductive health), protection against malnutrition, ability to enjoy sexual pleasure, ability to laugh, to play, to enjoy recreational activity, to

express emotions, etc.* Freedom against exploitation secured by Articles 23 and 24 assumes great significance with regard to women and children and at the core of it lies the notion of gender equality. Thus, she cannot be forced into human trafficking and prostitution nor can she be compelled to perform services even in her household against her wishes, in the guise of performance of obligations towards her husband.*? The same logic can be extended to correlate gender equality with 54. Arts. 15(4), 16(4), etc. empowering State to take the affirmative action are on the other hand not so plainly worded and powers under the same can be exercised only subject to certain conditions specified therein. 55. Anjali Roy v. West Bengal, AIR 1952 Cal 825. 56. See, P.B. Vijaykumar v. State of A.P., (1995) 4 SCC 520. In this celebrated case, Sujata Manohar J laid bare socio-economic aspect of gender equality and in a way reconfigured principle of gender equality by pouring in it the considerations of substantive equality. She char-

acterised affirmative action in favour of women as “soft reservations”’/preferential treatment based on their invisibility in the domain of public employment. She of course missed a unique opportunity to identify gender equality as one of the essential features of the basic structure. See,

for comparative perspective, “Employment of Equity Act 1998” South Africa, which entitles women along with coloured people and persons with different abilities as designated groups worthy of receiving affirmative action from the State. 57. Other freedoms guaranteed by Art. 19 also have threads of gender equality, e.g. freedom to carry on profession in respect of women would merely be paper tiger if they are not guaranteed freedom against sexual harassment at the workplace. See generally, Ratna Kapur, Sexcapades and the Law ‘Towards Equality’, a symposium on women, feminism and women’s movements,

seminar, September 2001, available at

last ac-

cessed 2-6-2010. 58. Martha Nussbaum is accredited with the evolution of philosophical tool of “Capabilities approach”. She argues that human rights cannot be enjoyed by any being without attainment of certain central human capabilities. See generally, Martha Nussbaum, Women and Human Development—The Capabilities Approach (CUP, 2001) 70 et seq. It is submitted that no judge of appellate courts in India has ever made any effort to incorporate this approach into the constitutional jurisprudence of gender equality. For the same, Bar can also be equally blamed. 59. It is submitted that this argument is purely based on the trajectory of language of Art. 23 and may be effectively employed by placing reliance on provisions of CEDAW to encourage active involvement of husbands as equal and responsible partners as a part of family. See, National Insurance Co. Ltd v. Minor Deepika. Ms Amy Devis conducted a survey in 77 developing countries to assess the value attached by the society to the household work of mothers and reached the most amazing conclusion that India’s rank is right at the bottom (75th). She also shows that if the

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prifreedom of religion and therefore, any argument or justification for giving macy to religious freedom of men over women is bound to fail because under our Constitution, neither men nor any religious group can exercise freedom of religion in abrogation of public order, morality, health and other freedoms guaranteed by Part III. The concepts of public order, morality and health are clearly compatible with the notion of gender equality and for the same, any number of weighty arguments can be invoked by resorting to modern political theory. It is submitted that this is the murkiest area so far as human rights of women are concerned. She is subjected to naked discrimination, torture and violence in the guise of observance of religious norms. Thus, she is made to die on the pyre of her husband (practice of Sati), and she may also die if she marries within similar gotras (practice of honour killing)®. She may be subjected to excommunication” and may also be stopped from exercising her right to worship.® household work of mothers is outsourced, its value will be a staggering $61,436 per annum (approx. ¥27 lakhs per year). Of course, love, affection and invaluable support rendered by mothers is beyond the measuring rod of money. The study is published on a website, . See, Maharashtra Times, Pune Edn. 8-5-2011. 60. Commission of Sati (Prevention) Act, 1987.

61. Not long ago, a lower court in Haryana pronounced a landmark judgment by handing down death sentence to five persons for this heinous crime. The Panchayats in Haryana have violently reacted to this verdict and putting lot of political pressure on the government to take steps to declare Sagotra marriages as illegal. The most shocking fact is to note is that these Panchayats are raising money to hire a big lawyer in the appellate court to defend these culprits. See, The Times of India, 31-3-2010, available at last accessed 17-4-2010. In one of its most recent judgments, the Apex Court through Katju J categorically held that Khap Panchayats are totally illegal and must be “ruthlessly stamped out”. See, Arumugam Servai v. State of T.N., (2011) 101 AIC 30 (SC), Bench of M. Katju and G.S. Mishra JJ. See also, Lata Singh v. State of U.P., (2006) 5 SCC 475. Government of India had given assurance to CEDAW Committee to make registration of marriage mandatory till 2010. See, for comparative perspective, Rupa Reddy, “Gender, Culture and the law: Approaches to ‘Honour crimes’ in UK”, Feminist Legal Studies, Vol. 16, No. 3 (December 2008). Supra, n. 3, paras 4, 58. The Supreme

Court has also demonstrated a craftsmanship by directing the government to ensure compulsory registration of marriages and provide protection to couples performing inter-caste marriages. See, Seema v. Ashwini Kumar, (2006) 2SCC 578,

62. Recently in the State of Haryana, one of the Panchayats issued a fatwa against a married woman asking her to abandon her marital relationship with her husband that lasted for more

than three years and regard him as her brother, henceforth or face ex-communication from the community. This fatwa was issued because the couple had married within violation of so-called

gotra restriction. See, Deccan Herald, 1-2-2010, available at

last accessed 17-4-2010. A direction was sought by way of PIL from the Supreme Court of India,

banning Sagotra marriages. The Supreme Court prompted the parties to move the High Court of Delhi on the alter of imposition of heavy costs, reprimanded the petitioner to withdraw the

litigation. See, Times of India, 14-6-2010 and 18-6-2010 (Internet Edn.). 63. See, S. Mahendran v. Travancore Devaswom Board, AIR 1993 Ker 42. It is submitted that the Kerala High Court displayed utter lack of sensitivity by denying the woman her legitimate right to enter in famous Sabrimala Temple for performing pooja. Had the court invoked the

basic structure doctrine by identifying gender equality as one of its essential features, it would

have easily struck down this outlived and discriminatory custom. Unfortunately the court upheld this custom by characterising it to be a fundamental tenet of the Hindu religion. Indian Young

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Cultural and educational rights guaranteed by Articles 29 and 30 do reflect the foundational value of gender equality. Although, the right of every community including minorities to conserve their distinct cultures is well recognised and receives constitutional protection almost universally, notion of cultural relativism” or multiculturalism® cannot be invoked to justify gender unjust norms or traditions. It is submitted that judiciary is under obligation to fine tune the cultural rights with gender equality while appreciating cultural evidence. The Supreme Court has also used its writ jurisdiction under Article 32 Lawyers Association through six female lawyers filed a PIL in Supreme Court in 2006 challenging the ban on entry of women in the age group between 10-50 in Sabrimala Temple. They also questioned Kerala Hindu Places of Public Worship (Authorization) of Entry Rules, 1965. In response to the same, the Government of Kerala filed in 2008 an affidavit to forego this practice, though it also indicated that a separate festival season may be planned for the women. The matter is still pending. The Times of India (Internet Edn.) 25-7-2007; Indian Express (Internet Edn.) 8-2-2008. 64. It is submitted that the consideration of conservation of a distinct culture cannot be employed to outweigh the equally important consideration of observance of gender equality within a given cultural community. In this connection, the views of Francis Raday are noteworthy. According to him, although the practices of patriarchal cultures are, with regard to the treatment of women, necessarily contrary to modern human rights doctrine, yet it is only when these cultures resist and raise a cultural defence that there is a normative clash. Where the patriarchal culture accepts the human rights demand for gender equality, there will be a process of interactive development and not a confrontation. See, Francis Raday, “culture, religion and gender” International journal of Constitutional Law, Vol. 1 (2003) No. 4, 663-715. 65. One of the most well-known scholars in this area is Kymlicka. His defence of multiculturalism rests on the assumption that culture is consisted of well-integrated, well-bounded, and largely self-generated entities, defined by a set of key attributes, including a shared language, history, and values. See, Kymlicka Will, Multicultural Citizenship—A Liberal Theory of Minority rights (OUP, 1995). It is not possible within the constraints of this brief Chapter to offer full critique of this view nevertheless it may be plausible to argue that Kymlicka almost completely plays down the interactive nature of culture. Moreover, it is equally doubtful to assume that cultures are distinct and largely endogenously developed wholes. See, for extensive critique, Kumkum Sangari, “Which diversity?” December 1999, Seminar Magazine online, 484 (symposium on multiculturalism), available at . See also, Bhiku Parekh, Rethinking Multiculturalism: Cultural Diversity and Political Theory (Harvard

University Press, 2000); Sarah Song, “Majority Norms, Multiculturalism and Gender Equality”, American Political Science Review, Vol. 99, No 4 (November 2005). Seyla Benhabib, “The

Claims of Culture: Equality and Diversity in Global era” (Princeton University Press 2002). “Ayelet Shachar: Multicultural Jurisdictions: Cultural Differences and Women’s Rights” (CUP 2001). Prabha Sridevan J, “Culture and Lingual Diversity: An Indian Perspective” IAWJ 2006, available at last accessed 1-6-2010. 66. A lower court in Rajasthan held that Bhanvridevi, a woman belonging to lower caste could not have been raped by men belonging to higher society. This unfortunate holding was a result of a problematic cultural stereotype. The matter is still pending in the High Court of Rajasthan for the last 15 years and it has heard the matter only once. “Tehelka 19th June 2010”, available at last accessed 20-6-2010. See also, Tukaram v. State of Maharashtra (popularly known as Mathura’s case), (1979) 2 SCC 143. For a comparative perspective, see, “Leti Volpp: Cultural Defenses in Criminal Legal System”, available at last accessed April 2010. Upendra Baxi, “An Open Letter to Chief Justice of India”, Professors Lotika Sarkar, Upendra Baxi, Vasudha Dhagammwar, Raghunath Kelkar, (1979) 4 SCC J-17.

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to strengthen the institutionalisation of gender equality in our legal system.” A close look on various provisions of Parts IV and IV-A enshrining Directive Principles of State Policy and fundamental duties, would further strengthen the textual foundation of the principle of gender equality in our Constitution. A number of strands of the conception of gender equality are addressed here, they include minimisation of inequality not only amongst individuals but also amongst groups, keeping the State institutions informed with the notion of justice—1) social, economic and political®, promotion of the welfare of the people®; 2) securing of right to livelihood equally to both men and women”; 3) distribution of ownership and control of material resources and means of production in furtherance of common good”'; 4) breaking up of concentration of wealth and means of production towards elimination of common detriment”; 5) equal pay for equal work for men and women’; 6) securing against the abuse of health and strength of men and women workers and tender age children and prevention against forcing citizens because of economic necessity to enter into avocations not suitable to their age and strength”; 7) right to development of children in a healthy manner, in conditions of freedom and dignity and securing protection to child and youth against exploitation and moral and material abandonment”; 8) to secure right to work, education and 67. See, Vishaka v. State of Rajasthan, (1997) 6 SCC 241, Delhi Domestic Working Women’s Forum, (1995) 1 SCC 14; Enforcement and Implementation for dowry Prohibition Act, 1961, In, re, (2005) 4 SCC 565; Seema v. Ashwani Kumar, (2006) 2 SCC 578, Gaurav Jain v. Union

of India, (1997) 8 SCC 114; Vishal Jeet v. Union of India, (1990) 3 SCC 318; R.D. Upadhyay v. State of A.P., (2007) 15 SCC 49: (2007) 15 SCC 337: (2007) 15 SCC 360: (2007) 15 SCC 361; Sakshi v. Union of India, (2004) 5 SCC 518; Dr. Medha Kotwal Lele v. Union of India, (2009)

16 SCC 624. 68. It is submitted that the conception of gender justice is implicit in the letter and spirit of Art. 38 and therefore in accordance with Art. 37, State is under obligation to observe the same while enacting Laws and framing policies and schemes for their implementation. 69. See, Art. 38. 70. See, Art. 39(a). 71. See, Art. 39(b). I submit that any notion of common good devoid of gender justice and

gender equality is contrary to the letter and spirit of this provision. Unfortunately this aspect of the matter has not yet been explored fully during the adjudication. 72. See, Art. 39(c). I submit that sex-marking of certain professions and occupations in favour of either man or woman leads to common detriment, if it is assumed that jobs, professions and occupations are means of production of material resources necessary to make a decent living. In this sense Art. 39(c) must be interpreted to promote gender equality and break the glass

ceiling constructed by stereotypes. As a matter of fact a conjoint reading of Art. 39(b) and (c)

has the potential for evolving a new economic order free from gender injustice, discrimination

and bias. See, Anuj Garg v. Hotel association, (2008) 3 SCC 1; Influence Lifestyle Stores (P) Ltd. v. Govt. of T.N., OA No. 249 of 2009 decided on 31-7-2009. eects Art. ee “asa eine Mackenzie Co. Ltd. v. Audrey D’costa, (1987) 2 SCC ; The cooperative (Super Bazar) ) v. Bim 7Devi [ and others Delhi | High encas ed Store Hi Court, Be nha

LPA No.

74. See, Art. 39(e). I submit that since in our country prostitution is illegal, female sex workers hardly get any counselling and are vulnerable not only to serious police abuse but also to health hazards.

75. See, Art. 39(f). I submit that in the light of obligations flowing from CEDAW, Convention on Rights of Child, International covenants on civil and political rights and Economic, social

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public assistance to the unemployed, persons with disability, sick and senior citizens and persons suffering from undeserved wants, subject to economic capacity and development”; 9) securing just and humane conditions of work and maternity benefits relief”; 10) securing of living wages and ensuring work conditions promoting a decent standard of life, enjoyment of leisure and social and cultural opportunities to workers in all spheres and promotion of cottage industry in rural areas’; 11) enactment of Uniform Civil Code”; 12) promotion

of educational and economic interests of weaker sections of the people and in particular of Scheduled Castes and Scheduled Tribes, their protection against social injustice and exploitation®; and 13) raising the level of nutrition, standard of living and improvement of public health and prohibition of consumption of intoxicating drugs and drinks.*! Similarly, a number of fundamental duties enshrined in Part IV-A have a direct bearing on the principle of “gender equality”. They include adherence

and cultural rights, this article assumes special significance and may be used to evolve development programmes specially in favour of female children and youth because they are mainly the victims of moral and material abandonment. 76. See, Art. 41. I submit that the disadvantaged categories mentioned in this article cannot be addressed effectively without cognizance of gender equality, e.g. a woman with disability is bound to suffer more compared to her male counterpart. 77. See, Art. 42. I submit that freedom against sexual harassment of women at the workplace has to be characterised as one of the foremost, just and humane conditions at work. See, Vishaka, supra, n. 67. Ibid, para 5. Although, Maternity Benefit Act has been enacted in 1961, right from Municipal Corporations to big Civil Aviation companies continue to indulge in the denial of this important privilege to their female employees and cases go right up to the Supreme Court. See, Neera Mathur v. Life Insurance India Ltd., (1992) 1 SCC 286; Municipal Corpn of Delhi v. Female Workers (muster role), (2000) 3 SCC 224; Air India v. Nargesh Meerza, (1981)

4 SCC 335. 78. See, Art. 43. I submit that objectives of this article cannot be realised without taking due cognizance of gender equality. Women working in agricultural and unorganised sectors do not get even minimum wages. 79. See, Art. 44. I submit that the issue of Uniform Civil Code is surrounded by controversy

mainly because its discussion operates in a narrow framework pitting Hindus versus Muslims and vice versa. In the light of obligations flowing from CEDAW, sooner or later, India will have to take steps to eliminate gender discrimination from personal laws. See, Mohd. Ahmed Khan v. Shah Bano, (1985) 2 SCC 556.

80. See, Art. 46. I submit that the gender dimension of this important provision is quite obvious, women as a group can certainly be characterised as weaker section of the people and vulnerability of female from Schedule Caste and Schedule Tribe sections to social injustice and exploitation is a daily reality. 81. See, Art. 47. I submit that without elimination of attitudinal barriers against women, their overall standard of living cannot be raised nor they will be properly fed. Of late, the gov-

ernment is taking steps through national rural health mission to improve public health facilities for women. In rural areas, most of the wives suffered unabated because of the drunkenness of

their husband and most of the time, the household was run solely on the income of the wives. Government of Maharashtra has issued a GR to empower a stipulated majority of women of a

village to vote for the closure of wine shops. See, K. Kumar v. Leena, RSA 544 of 2004 decided

on 7-12-2009; Suyambukanni v. State of T.N., 1989 Mad LW (Crl) 86.

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to the letter and spirit of Constitution and its ideals**, to promote harmony and the spirit of common brotherhood among all the people of India transcending all the diversities*’, to renounce practices derogatory to the dignity of women,” and to give up violence® The aforesaid discussion brings home the obvious fact that provisions of Parts III, IV and IV-A read either mutually, exclusively or conjointly, touch various aspects of gender equality. At this place, it would also be appropriate to have a look on some other provisions in the texts of the Constitution having a bearing on gender equality. A careful perusal of various subject-matters catalogued in three lists of Schedule VII under our Constitution shows that there are very few entries in the Union List® which directly or indirectly touches the notion of gender equality. Whereas, a number of other issues which may indirectly touch gender equality are incorporated in State List®’, on the other hand, issues having a direct bearing on various aspects of gender equality viz. marriage, divorce, personal laws, evidence, criminal law, etc. are predominantly placed in concurrent list, providing room for both the State and Centre to make laws®*. It is submitted that issues touching the lives of women appear to have been characterised as having a local or regional character and therefore, both Parliament and State Legislatures have the legislative competence.®? However, 82. See, Art. 51-A, sub-clause (a), obviously gender equality is one of the ideals of our Constitution. 83. See, Art. 51-A, sub clause (e), both act intra group and inter group level rights of women have to be recognised, respected and enforced. 84. See, Art. 51-A, sub-clause (e), this is a complex provision because of its fuzzy language, nevertheless certain practices like sex selection, abortion, sati, etc. are undebatably pernicious and derogatory to the dignity of women. In Vishaka, supra, n. 67, the Supreme Court characterises sexual harassment as a derogatory practice. In yet another unreported judgment popularly

known as Pati Permeshwar case the High Court of Bombay dealt with a challenge to the story line of the movie “Pati Parmeshwar’” on the ground that it perpetuated the notion of servility and subordination of women and thereby violated Art. 51-A(e). The court was deeply divided on this

aspect; ultimately 2 out of 3 judges rejected the challenge. This issue needs more attention in the light of problematic depiction of women in almost every daily soap serial on different channels

of television. See generally, Rory O’Connell, “The Role of Dignity in Equality Law Lessons from Canada and South Africa” (April 2008) 6 International Journal of Constitutional Law 267. 85. See, Art. 51, sub-clause (1) violence against women inside the four walls of their home

as well as at public places is a common phenomenon. During the Gujarat riots, violence was perpetrated against the women of the minority community as a demoralising tactic. Government of India is seriously thinking of a legal intervention to deal with communal overtones of violence. See, Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005, avail-

able at for details. This bill must cohesively address the issue of violence against women during such riots, 86. See, Entries 60, 61, 66, 69, 72, 77, 78, 81 of List I of Sch. VII to Indian Constitution. Such

small numbers of entries furnish most clinching evidence of the fact that issues affecting women are not considered to be national.

87. See, Entries 4, 5, 6, 8, 9, 14, 18, 30, 31, 33, 34, 37, 64, 65. 88. See, Entries 1-6, 12-13, 16, 20, 20-A, 22-26, 30, 40-42,

45-46,

89. See generally, Resnik Judith, Categorical Federalism: Jurisdiction, Gender and the Globe (Federalization of Family Law) Yale LJ 2001.

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it is also a stark reality that plurality in legislative responses to deal with different issues touching the lives of women, has resulted in fragmented and sometimes confused gender unjust laws.” Last but not the least, it would be appropriate to have a brief look at relevant clauses introduced by Parliament by way of 73rd and 74th Amendments. A revolutionary measure was adopted by Parliament of India in 1992 by adding 3rd tire to the federal structure of our Constitution, thereby breaking the concentration of power in the hands of Centre and the States by way of direct conferral of certain powers on local and self government. However, one of the most unique features of this entire exercise was providing political representation to women in Panchayats and in municipalities. Thus, for the first time, active agency of women as real stakeholders in the decision-making process at the very grass root level is recognised. It is constitutionally established that women are worthy of receiving affirmative action programmes at vertical level and accordingly one-third of the total seats in Panchayats and municipalities are reserved in favour of women.”! The representation of Scheduled Castes and Scheduled Tribes” has also been ensured and by employing the notion of intersectionality’, horizontal reservation” of 33 per cent is also provided for women in these categories. Similar provisions are made with regard to Chairpersons of these institutions.”> It is also made clear that these reservations must be implemented in different constituencies of Panchayats and municipalities rotationally.”® 90. For example, initially only few States including Maharashtra incorporated amendments in Hindu Succession Act for elimination of gender-based discrimination in the arena of succession of property of joint family. All these amendments had their pros and cons. See, for excellent analysis of these amendments, B. Sivaramayya, supra, n. 8. Despite the fact that gender-based discrimination is constitutionally prohibited, Parliament showed very little urgency to step in. Only in 2005, it introduced a nationwide law to prohibit gender-based discrimination among Hindus in respect of succession of joint family properties. However, till 2005, women in those States which did not introduce amendments in Hindu Succession Act were subjected to discrimination without being at any fault. 91. See, Arts. 243-D(3), 243-T(3). In many States including Maharashtra, 50 per cent seats

are reserved for women. 92. See, Arts. 243-D(1), 243-T(1). 93. When the discrimination is based on an indivisible combination of two or more social characteristics, it is commonly referred to as “Intersectional discrimination” and it arises out of the combination of various oppressions which together produce something unique and distinct from any one form of discrimination standing alone. See, K. Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics” in D.K. Weisberg (Ed.), Feminist Legal theory—Foundations (Philadelphia Temple Publication, 1993). It is submitted that the Indian Constitution takes cognizance of this important principle by explicitly incorporating the phrase “or any of them” in Arts. 15(1), 16(2), this phrase has to be invoked by both the Bench and the Bar to articulate

intersectional discrimination faced by women. Obviously, same would also promote the substantive equality-based model of gender equality. It would enable the courts to better appreciate the degree of harm. 94. See, Arts. 243-D(2), 243-T(2). It is submitted that by enacting this clause, government officially rendered plurality of voices to the notion of womanhood though in a limited manner. 95. See, second proviso to Arts. 243-D(4), 243-T(4).

96. See, supra, n. 61.

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It is submitted that Parliament took this initiative in all earnestness and did not unduly thwart implementation of these amendments by providing technicalities, e.g. although rotationality was provided, it was not made mandatory that after every election, there should be rotation, nor these reservations were

confined to any stipulated time frame. On the other hand, the recently proposed 107th Amendment to the Constitution of India (reserving one-third of the total seats in Parliament to women) introduced by the government and approved by Rajya Sabha is fraught with technicalities and based on arbitrary assumptions. Without going into greater details, I venture to say that the amendment simply wants to bring a mob of women in Parliament rather than creating women leaders. Life of 15 years provided to it by the Parliament is extremely ridiculous to say the least. The above observations on 107th proposed amendment of the Constitution very glaringly illustrates the influence of National and Local dichotomy. It is, therefore, not difficult to understand why all political parties are making noises about providing share to OBC women in these reservations, why the duration of the amendment is made so short, why it is insisted that a particular constituency should be reserved for women only once and in short, why the 107th proposed amendment so radically deviates from the pattern of 73rd and 74th Amendments?” It is submitted that if this amendment is finally passed by both the Houses of Parliament in its present form, a clear case can be made out to challenge the same before the Apex Court under Article 32 on the grounds of arbitrariness, and for being in violation of basic structure of the Constitution. Of course, this submission is based on the assumption that “gender equality” is one of the essential features of the basic structure of the Constitution, thereby enjoining

Parliament to ensure at least minimum political representation to women at the national level. In Kesavananda Bharati and Indira Nehru Gandhi v. Raj Narain”, the majority unambiguously held that democracy is one of the essential features of basic structure of the Constitution and there cannot be any gain-

saying the fact that the notion of constitutional democracy must at least ensure a reasonable representation of women at every level of the decision-making process. Equally, a case is made out for challenging the inaction of Parliament in complying with its obligations flowing from CEDAW. The above discussion clearly demonstrates that the principle of gender

equality has its firm roots in our legal order and it very vividly reflects it-

self in the text of the Constitution, legislations, executive actions and judicial

pronouncements. A number of questions therefore arise, why it has not been seriously employed to engender the basic structure of the Constitution. Is it

a fact that it does not stand to the scrutiny of tests evolved by the Supreme Court to recognise constitutional principles as parts of the basic structure of

the Constitution or is there a lack of sensitivity and activism among the Bench, 97. See, supra, n. 91. 98. 1975 Supp SCC 1.

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Bar and Academia for insisting its inclusion in the features of the basic structure. In the next two sections of this Chapter, I propose to deal with this issue briefly. I would demonstrate how effective deployment of the basic structure doctrine may prove to be a centrepiece of constitutional engineering”? and, how it may work as an incentive for Indian polity to promote the empowerment of women if, the principle of “gender equality” is identified as one of the essential features of the basic structure and as one of the foundational values underlined in Articles 14, 15, 19 and 21 of the Constitution. 4. Section3 4.1.

SUPREME COURT AND BASIC STRUCTURE

In this section, I would argue that despite the clear embedment of the notion of gender equality in our juridical order, hardly any serious attempt is made to characterise it as a part of basic structure of the Constitution. I have clearly demonstrated in the concluding discussion of preceding section how recognising gender equality as one of the essential features of basic structure in some of the actual cases would empower the women and give their aspirations constitutional expression. Let me now briefly examine the three cases in which our Apex Court’ referred to the notion of basic structure of the Constitution, while dealing with the issue of gender equality. The first landmark case’! in which the Supreme Court offered a cohesive linkage of gender equality and basic structure of the Constitution dealt with interpretation of Section 14 of Hindu Succession Act, 1956. The important issue involved there was to lay down the exact scope of Section 14(1) and to

ensure its full and effective implementation in letter and spirit. It was therefore, important for the court to clearly spell out contingencies in which sub-section 2 would prevail over sub-section 1 of Section 14. Sub-section 1 of Section 14 crystallises the limited estate of women into an absolute ownership right and makes her the sole and exclusive owner of the property inherited by her if she could establish that she had a pre-existing right on such an estate. Obviously, the object of this sub-section is to eliminate discrimination between male and female legatees. Taking into account this salutary objective, the Apex Court examined the facts and the law and decided in favour of women. In the process of laying down the legal principles, instead of confining itself to the factual aspects of the case and Section 14, the court decided to assume activist magnitude and thought it appropriate to provide the discourse on linkage of gender equality and basic structure. In other words, the court decided to use this particular case to lay down background justification 99, See generally, Symposium on “What if Anything do we know about the Constitutional Design?” (2009) Tex L Rev.

100. I have not conducted any research with regard to the High Courts. 101. C. Masilamani Mudalier v. Idol of Swaminathaswami Swaminathaswami Thirukoli, (1996) 8 SCC 525.

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injustice. The for combating and eliminating the social menace of gender court! observed: ty and digIt is seen that if after the Constitution came into force, the right to equali l Rights nity of person enshrined in the Preamble of the Constitution, Fundamenta on and Directive Principies which are a trinity intended to remove discriminati isting or disability on grounds only of social status or gender, removed the pre-ex

impediments that stood in the way of female or weaker segments of the society.’ Peaking thread from Bommai where a new dimension has already been added to the basic structure by applying it to executive action, the court went further by incorporating gender equality as one of its features and justified its cognizance during the interpretation of statutes and personal laws echoing gender equality. The court observed: The laws laws The void

basic structure permeates equality of status and opportunity. The personal conferring inferior status on women are anathema to equality. Personal are derived not from the Constitution but from the religious scriptures. laws thus derived must be consistent with the Constitution lest they became under Article 13 if they violated fundamental rights. Right to equality is a

fundamental right.'™

It is submitted that the above observations constitute a binding ratio because they strengthen the reasoning of the court in interpreting sub-section 1 of Section 14 in particular and the notion of gender equality in general. The vital question, which requires serious consideration in this context is, whether these

observations confined to the interpretation of codified personal laws or they are also applicable to the interpretation of uncodified laws? The affirmative answer to this question may give rise to controversy if given in affirmative because while referring to the religious character of personal laws, the court

did not explicitly overrule its previous decisions'™ on this aspect and even in subsequent cases'” dealing with uncodified personal laws, this case has not been relied upon by the court.

Author submits that the applicability of this wonderful judgment which has the potential to bring a constitutional revolution is by and large confined unfortunately to the interpretation of Hindu Succession Act, 1956. In fact, the

Supreme Court has itself employed the judicial process to weaken the persuasive authority of this important precedent. Second instance of reference to basic structure in the context of gender equality is furnished by the decision of the Supreme Court in Velamuri Venkata Sivaprasad v. Kothuri Venkateswarlu'”. This case involved the interpretation 102. The Bench comprised of Ramaswamy, Sagir Ahmed and Patnaik JJ. 103. (1996) 8 SCC 525, para 15. 104. Ibid.

105. See, S. Mahendran, AIR 1993 Ker 42: ; Narsu A ppa Mali Mali 1952, AIR 1952 Bom 84. 106. See, AWAG 1997, (1997) 3 SCC 573, ie

107. (2000) 2 SCC 139. The case was heard by a Constitutional Bench comprising of

Majumdar, Srinivasan and Banerjee JJ.

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of Section 14 of Hindu Succession Act, 1956 and by placing reliance on C. Masilamani Mudalier 1996, the court observed: It is now a well-settled principle of law that legislations having socio-economic perspective ought to be interpreted with widest possible connotation as otherwise, the intent of the legislature would stand frustrated. Recognition of Rights and protection thereof thus ought to be given its full play for which the particular legislation has been introduced in the Statute Book. Gender bias is being debated throughout the globe and the basic structure of the Constitution permeates equality of status and thus negates gender bias. Gender equality is one of the basic principles of our Constitution. The endeavour of the law court should thus be to give due weightage to the requirement of the Constitution in the matter of interpretation of statutes wherein specially the women folk would otherwise be involved.'

Without discussing this case at any greater length, I venture to submit that the aforesaid observations further testify my position that the basic structure doctrine must be used as a background justification by the courts while crystallising the principle of gender equality. The third instance in which the basic structure doctrine involves challenge to the constitutional validity of provisions of Hindu Minority and Guardianship Act, 1956'” and of Guardians and Wards Act, 1890!"° is Githa Hariharan v. Reserve Bank of India""’. The question which the court was required to determine, was fundamental. It has the bearing on Fundamental Rights of the mother as well as the minor children. The question was, can a mother be said to be a natural guardian during the lifetime of the father? While answering this question in affirmative, Anand CJ while writing a concurring opinion for himself and Srinivasan J'” held that the word “after” occurring in Section 6(a) should be interpreted to mean “in absence of” and the same led him to overturn the challenge to constitutional validity of Section 6. To strengthen his above finding, he also characterised gender equality as one of the basic constitutional principles.''? However, Banerjee J while writing a separate concurring opinion went a step further. He not only answered the question in affirmative but to strengthen his reasoning, he also sought linkage between gender equality and basic structure by pointing out, “we the people of this country gave ourselves a written Constitution, the basic structure of which permeates equality of status and thus, negates gender bias ...”!!4 He further added: ... gender equality is one of the basic principles of our Constitution and in the event the word ‘after’ is to be read to mean a disqualification of a mother to act 108. Ibid, para 12. 109. See, S.6, HMG Act, 1956. 110. See, S. 19(b), Guardians and Wards Act, 1890.

111. (1999) ZS€C 228; 112. He was a part of the Constitutional Bench seeking reliance on basic structure doctrine in Velamuri

Venkata Sivaprasad v. Kolhuri Venkateswarlu, (2000) 2 SCC

changed his position in the impugned case without giving any reason. 113. (1999) 2 SCC 228, paras 9-10.

114. Ibid, para 23

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as a guardian during the lifetime of the father, the same would definitely run counter to the basic requirement of the constitutional mandate and would lead to a differentiation between male and female. Normal rules of interpretation shall have to bow down to the requirement of the Constitution since the Constitution

is supreme ...''

Author submits that the approach of Banerjee J is in consonance with the law of precedent under Article 141 of our Constitution and should be followed. 4,2.

CRITICAL APPRAISAL

At this juncture, let me briefly examine two fundamental arguments stemming from analytical jurisprudence. Firstly, it may be argued that “since in all these cases, the court merely assumed but did not decide whether theory of basic structure is applicable even outside the sphere of amending power’, it would be erroneous to treat the relevant holdings as binding ratio.''® Secondly, it may be contended that the incorporation of gender equality as a part of basic structure, either during the course of interpretation of statutes and personal laws touching rights of women or as a yardstick to determine the constitutional validity of any legislation is based on mere assumption, and does not form the part of operative law/binding ratio. So far as the first argument is concerned, logically there is no justification to suppose that the constrain of basic structure is confined to test the validity of exercise of amending powers, if it is borne in mind that one of the essential purposes why it is evolved is to keep the identity of the Constitution intact. Obviously, identity of the Constitution does not remain intact merely by having a close eye on the sphere of amending power. As a matter of fact, it has to be also ensured that provisions of the Constitution are implemented for their true purposes. For example, if a law is enacted to provide immunity to the Prime Minister against criminal offences, the same will have to be declared as unconstitutional, violating the inter alia principle of rule of law (part of the basic structure) and its presence in the statute books is also bound to generate cracks in the basic structure of the Constitution. Similarly, can’t we argue that a law providing option to a Muslim husband to choose between Sections 125—128 CrPC and Muslim Personal Law", smacks arbitrariness and is antithetical to gender equality, thereby violating Articles 14, 15 and 21, the principles underlying which are considered and held to be the parts of basic structure of the

Constitution. It is also possible to contend that assumption of this fact by the court is holding the field for a long time, and the same is not seriously contested or challenged by the officials of the State and even the judges''’. Therefore, 115. 116. 117. 118.

Ibid, para 45, supra, n. 111. See, supra, n. 43 and accompanying text. See, S. 5, Muslim Women (Protection of Rights on Divorce) Act, 1986. Beg J applied basic structure outside the sphere of amending power, by holding, in

Indira Nehru Gandhi v. Raj Narain “Does the ‘basic structure’ of the Constitution test only the validity of a constitutional amendment or also ordinary laws? I think it does both because

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we may justify this assumption as a part of the binding ratio by invoking the “Hartien justification of internal point of view”.!!9 So far as second argument is concerned, it is erroneous to assume that appropriate and effective working of the process of adjudication depends upon observance of cannons of analytical jurisprudence alone. Thus, from the perspective of feminist legal theory, an equally strong argument can be proffered to the effect that since the Bench and the Bar in India predominantly have patriarchal orientation, it would be ridiculously unrealistic to expect them to deploy sophisticated arguments oriented by basic structure metrics. The issue is further compounded by the fact that women have extremely low visibility in the echelons of higher judiciary'°. To the same, we have to also add the lack of ingenuity and activism amongst feminist lobbies and lawyers. Thus, unlike the Supreme Court of Canada, our higher courts have neither referred nor employed, the ever growing vast literature of feminist legal theory. In such a challenging scenario, if some judges take onto themselves the responsibility of engendering the constitutional law by emphasising upon the recognition of gender equality as one of the basic constitutional principles and by seeking its linkage with the basic structure of the Constitution then they deserve a lot of appreciation. In fact, we have to strengthen the hands of such judges because they perform the task of adopting the best moral interpretation and combat patriarchy like Hercules. I, therefore, salute the six judges for having resorted to basic structure review to firmly embed the principle of gender equality into our “constitutional consciousness”. Last but not the least, to further expose the fallacy of both the above argu-

ments, I may also add that the process of adjudication of constitutional issues cannot be cribbed, cabined or confined to the adversarial style of argumentation, if it is assumed that judges as repositories of obligation, to uphold the Constitution, have to play a constructive role'”!. Thus, right from Marbury'” to Maneka'”?, judges have continuously asserted their power to say what the Constitution and the law is? In the light of the above, I may safely argue that the assumption of these six judges in three cases does constitute the part of ratio ordinary law-making itself cannot go beyond the range of constituent power” /bid, para 622, supra, n. 22.

119. Professor H.L.A. Hart distinguishes between “external point of view and internal point of view”, the latter is “a statement made by a member of the group who accepts and uses the Rules as a guide to conduct”. See, J.G. Riddall, Jurisprudence (2nd Edn., OUP 2005). Ibid, 40. 120. To this date, only three female judges have been elevated to the position of Supreme Court judges. The scene in the High Court is also not much different. See also, supra, n. 4. 121. P. Jaganmohan Reddy J in Kesavananda Bharati, supra, n. 1 aptly observed:

It is not always in public interest to confine the consideration of the validity of a constitutional amendment to the arguments, the parties may choose to advance, otherwise we will be constrained to interpret a Constitution only in the light of what is urged before us, not what we understand it to be is the true nature of the impugned amendment.

Ibid, para 1210. 122. 2 L Ed 60. 123. (1978) 1 SCC 248.

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parties, they because though they are not based on arguments advanced by the the are based on a principle which undoubtedly forms the part of the core of Constitution. Additionally, the said assumption crystallises the duty imposed on the judges to constantly absorb the principle of gender equality into our constitutional ethos and may also be characterised as background justification. Thus, to recap the three decisions of the Apex Court discussed above, the

following propositions have been laid down:

1. Gender equality is well recognised and textually incorporated basic principle of the Indian Constitution. 2. Itis, therefore, one of the essential features of the basic structure of our Constitution. 3. The courts must interpret statutes and personal laws in the light of basic structure doctrine of the Constitution to advance the principle of gender equality. 4, Socio-economic empowerment of women is one of the important strands of gender equality. It is a strange coincidence that the Supreme Court has hastened to seek linkage of Hindu codified personal law to basic structure of the Constitution. It is, therefore, required to be seen why the same zeal is not demonstrated by the court while dealing with the challenges to codify personal laws of non-Hindu

religious communities!”*. Thus, having established the efficacy of role of judiciary in linking gender equality with basic structure, I would strongly demonstrate in the next section as to how the former is worthy of being characterised as constitutional axiom. 5. Section 4 5.1.

JUSTIFICATORY

BASIS FOR INCORPORATION

OF GENDER

EQUALITY

IN THE

BASIC STRUCTURE

In this section, I would first establish in the light of various tests evolved by the judiciary that gender equality is part of basic structure of the Constitution. I would next argue that engendering the basic structure would not only amount to a transformation in the constitutional law but would also bring revolution in the overall political economy of lives of women as active and equal agents of India i.e. Bharat. Let me now take up the fundamental question for consideration, whether gender equality may be elevated to the status of constitutional axiom thereby making it one of the parts of basic structure of the Constitution? To answer this questign, I have to respond to host of critical questions as follows:

1. Whether character of gender equality is akin to other constitutional axioms like rule of law, separation of power, secularism, etc.? 124. See, Danial Latifi, (2001) 7 SCC 740.

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2. To put the point other way round, whether the notion of gender equality is a judicially evolved concept, so that its deletion, neglect or denial would not destroy or abrogate inter alia Articles 14, 15, 16, 19 and 21 of

3.

4.

5.

6.

our Constitution? Can it be asserted that guarantee of gender equality is part and parcel of the Fundamental Rights in Part III as a foundational value with intrinsic force? Is it plausible to contend that Fundamental Right to gender equality is conferred on women because they are the members of the human race? Can it therefore, be argued that constitutional recognition of ideal of gender equality has withdrawn the social menace of sexual discrimination, in particular, and oppression of women, in general, from the political controversy and has placed the same beyond the reach of majorities and officials? Whether gender equality is not an established legal principle to be applied by the courts?

It is submitted that howsoever, formidable these questions may be, they do not impede the smooth and cohesive process of incorporation of gender equality both as a part of basic structure of the Constitution and as one of the foundational values underlying Fundamental Rights guaranteed by Part III. I argue that gender equality contains all the properties of a legitimate constitutional principle. As a matter of fact, the notion of gender equality is not totally beyond the particular provisions of the Constitution, at the same time, it is also a systematic and structural principle underlying the various provisions of the Constitution and connecting them integrally to one another. It is, therefore, established beyond all doubts that the principle of gender equality provides coherence and structural unity to the Constitution and renders it to be an organic whole. To illustrate the above point concretely, freedom against sexual harassment of women at the workplace, is one of the important strands of gender equality, and underlying Articles 15, 16, 19 and 21 read with Article 14 and thereby

integrally connecting them as was held in Vishaka v. State of Rajasthan'”.'*° Similarly, low visibility of women in social, political and economic spheres justifies affirmative action on part of the State because of the impact of permu-

tation and combination of various provisions of Parts III, IV and IV-A. There cannot be gainsaying the fact that gender equality being one of the guaranteed Fundamental Rights through different provisions of Part ITI has the status of foundational and intrinsic value. Obviously, it echoes itself through the

notions of human dignity, non-discrimination, reasonableness, rule of law and 125. (1997) 6 SCC 241. 126. See, supra, n. 67. The court also held there that one of the logical consequences of

social menace of sexual harassment of women at the workplace (apart from direct violation of Fundamental Rights guaranteed by Arts. 14, 15, 21), is the denial of freedom guaranteed by

Art. 19(1)(g). [bid.

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equitable distribution of public resources, pervading every nook and cranny of Part III. Moreover, it is also to be noted that like several other unarticulated

rights, the court has also recognised and enforced some unenumerated dimensions of right to gender equality, a fundamental feature of the Constitution being implicit in certain enumerated guarantees contained in Part III by resorting to the principles of expansive and purposive interpretation. Moreover, since the final word about the contents of all the Fundamental Rights is that of the Supreme Court, the contents of these unenumerated dimensions of gender equality are being defined and articulated by the Apex Court from time to time. Thus, having firmly established the character of gender equality as a constitutional principle, let me now proceed further and prove that it also belongs to exclusive cluster of the principles forming the basic structure of the Indian Constitution. Clearly, it becomes obvious from the excursus into our juridical order with reference to the provisions of the Constitution, statutes and judicial pronouncements that the principle of gender equality is well established and deeplyrooted in the ethos of our constitutionalism, in general, and law, in particular. Obviously therefore, binding obligations imposed by it on the legislature requires hardly any evidence, e.g. if a legislature enacts a precariously gender unjust law not only the same will be declared as violative of expressed provisions of the Constitution but the courts would also hasten to demonstrate a pattern of action directed by the State against the principle of gender equality, a feature of the basic structure of the Constitution, giving coherence to the various provisions of the Constitution, in tune with its holding in Bommai. Again, the character of gender equality as one of the parts of the basic structure of the Constitution is reinforced from the fact that its effacement/abrogation by the State would not only subvert the structure of Articles 14, 15, 16, 19 and 21 of our Constitution but also degenerate our polity into a pseudodemocracy. It is, therefore, proved beyond all doubts that the notion of gender equality is not a judicially evolved concept akin to the notion of “catch up rule” and “consequential seniority” rather it resembles with fundamental constitutional axioms like rule of law, democracy, etc. There is, therefore, no doubt

whatsoever, to assume that gender equality constitutes one of the features of the basic structure of our Constitution. On this background, let me demonstrate that the various tests like, width test, identity test, rights test!2” and essence of rights test'?* evolved by the Apex Court to gauge the vires of the amendments are equally applicable to other actions of the State to ensure that powers are exercised to conserve the cherished principles echoed in the basic structure of our Constitution. 127. It is not the form of an amendment or law but the consequence thereof on Fundamental Rights, which would be the determinative factor in ascertaining if “basic structure” of the Constitution is at threat. 128. It requires the court to enquire whether particular amendments or laws affect periphery

or core or essence of the right. If the court comes to a latter conclusion, then the amendment would be declared as violative of basic structure of the Constitution.

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Thus, width test may be employed by the court to redress half-hearted actions of executive, legislature and other public authorities for not fully reaching the ideal of gender equality. By using this test, the court may use gender equality to inform various freedoms and rights guaranteed by Part III with social contents, e.g. proposed constitutional 107th Amendment for providing 33 per cent of reservation for women in Parliament may be scrutinised by applying this test to determine whether it can fully and effectively reach the ideal of gender equality. Similarly, identity test may be put to effective use by bringing to book the inaction on part of the State by keeping constitutional order in pace with changing time'”’, e.g. having ratified CEDAW, India is under obligation to make certain necessary changes in the Constitution. However, if over a given period of time, no action is taken to comply with the same, the court may be called upon to intervene in the matter by way of PIL, by invoking the basic structure argument. The rights test as evolved in /.R. Coelho by the Supreme Court can be applied to test the constitutional vires of uncodified personal laws. The Supreme Court and the High Courts have virtually provided immunity to them against the challenge from other Fundamental Rights on the ground that the same is integrally related to the freedom of religion. However, such an interpretation, apart from being controversial, cannot also be easily justified textually.'*° It is submitted that since this immunity is judicially evolved, the court may reconsider the same in a relevant case before it by examining whether the personal laws have any adverse or disparate impact on enjoyment of Fundamental Rights to gender equality guaranteed by various provisions of Part III. The classic example of deployment of essence of rights test is furnished by an actual decision of the Supreme Court in Javed v. State of Haryana". In this case, the court was called upon to decide constitutional validity of two child norm—according to which a woman or man will be declared disqualified from contesting elections for Panchayats and municipalities, if he/she has more than

two children after a specified date. The court upheld the constitutional validity of this outrageous provision, without taking cognizance of its adverse impact on core and essence of gender equality. The court did not notice the simple fact that women cannot unilaterally become pregnant. Thus, without stretching the discussion any further, I may argue, had the court applied the essence of rights test, it would have certainly declared the said provision to be unconstitutional

for subverting gender equality and basic structure. 129, For the same, political advocacy in form of public hearing, bringing out white papers may prove extremely effective in raising consciousness among members of civil society. 130. See generally, Archana Parashar, Women and Family Law Reform in India (Sage Publications, New Delhi 1992); Rina Verma Williams, Post Laws: Colonial legal legacies and Indian State (OUP, 2006). 131. (2003) 8 SCC 369. Although essence of rights test is Court, its traces are visible right from Kesavananda Bharati. neither the Bar nor the Bench even referred the basic structure

Colonial Politics and Personal formally attributed to M. Nagraj However, in the impugned case

doctrine.

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These tests may also be applied by the courts to expose gender unjust strategies of public authorities, e.g. marriage or pregnancy based discrimination or sex marking of jobs disguised in legal epithets like “only on the ground of sex” or “reasonable classification’.

6. Conclusion

In light of the above discussion, it may be safely concluded that linkage of gender equality with the basic structure doctrine may only be the first step towards elimination of discrimination, barriers and stereotypes against women in a predominantly patriarchal society. However, before closing, let me also very briefly discuss the advantages of invoking basic structure doctrine in the context of gender equality. Firstly, the doctrine of legislative competence may generally be used only to invalidate laws and executive actions, whereas basic structure doctrine may be invoked to seek redressal against both legislature and executive inaction, if it is assumed that it triggers positive obligation in the context of realisation of ideal of gender equality. Secondly, the court may use gender equality and basic structure to fix accountability of public institutions by issuing suo motu declaratory orders against them for practicing indirect gender discrimination. For the same, PIL may also be deployed. Thirdly, the degree of culpability attributed for violation of basic structure of the Constitution is far higher as compared to invalidation of a law or executive action on the ground of legislative incompetence or ultra vires. Fourthly, if the court seeks linkage of basic structure and gender equality and keeps on invalidating the laws or redressing the inaction on part of the State, the same would put pressure on the State to be much more vigilant because it would not like to be exposed in the eyes of the public and international community for being insensitive to the cause of empowerment of women. To sum up, I may say that with the exit of all the six judges deciding the three aforementioned cases!” and in the absence of any visible gesture from the present court of invocation of basic structure doctrine in the context of gender equality, this Chapter is the most timely call for all the academicians,

jurists and activists to rearticulate and take forward a pioneering blueprint for

solemnising the marriage of basic structure doctrine with the principle of gender equality. |

132. See, supra, nn. 101, 107.

24

The philosophical foundations of the basic structure doctrine ENTRENCHMENT

OR DEFEASIBILITY?

Shivprasad Swaminathan*

The debate about the nature of law...is at bottom a debate within the philosophy of lanlguage and metaphysics. Ronald Dworkin, The Philosophy of Law

At the very outset, I would pay my profound respect to the memory of Mr H.M. Seervai and Mr N.A. Palkhivala. Both of them apart from being stalwarts in law were also scholars of Philosophy and Jurisprudence and the same reflected in their arguments in a variety of cases. It is, therefore, befitting on my part to dedicate this Chapter in their honour. 1. Isolating the issue 1.1.

AN OVERVIEW

In an unvarnished characterisation, the basic structure doctrine has it that there are parts of the Constitution that are beyond the scope of amendment by Parliament exercising amending powers under Article 368 and that the courts have the competence to determine which parts are beyond amendment.’ The effect of the doctrine is to insulate certain constitutional provisions from any change; even a change supported by an overwhelming majority in Parliament. This essay will attempt to unpack the philosophical foundations of the basic structure doctrine. The ambition of this essay is analytical given that we have the basic structure doctrine, how best could we understand it—as it is. The * Doctoral candidate in Jurisprudence, Balliol College, University of Oxford.

1. See, Kesavananda Bharati v. Union of India, (1973) 4 SCC 225. I am mindful of some dicta from the Supreme Court hinting at the applicability of the basic structure doctrine to pri-

mary legislation. However, the position of law on the issue is uncertain. In any event, as nothing in this essay turns on the determination of that issue, I will leave it open here and for simplicity of argument treat the basic structure doctrine as applying to constitutional amendments alone.

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enquiry is not a first order one, in that the essay will have nothing to say about whether we ought to have the basic structure doctrine or do away with it. The enquiry will be a second order one, that is to say, about what courts are up to when they strike down constitutional amendments on the basis of the basic structure doctrine. The vast philosophical literature, touching upon the nature and justification of doctrines akin to that of the basic structure, portrays the issue as one where constitutionalism is pitted against democracy—where an unelected judiciary trumps the democratic will exercised by the elected representatives of the people.? While in effect this is what arguably is at stake in debates about doctrines akin to the basic structure, they are potentially misleading as they equivocate between two very different ways in which constitutionalism can come in conflict with democratic principles. This unsatisfactory state of affairs comes about because there are at least two distinct ways of conceptualising the basic structure doctrine—a distinction which is often glossed over in characterising it as a conflict between constitutionalism and democracy, tout court. The basic structure doctrine could either be seen as incorporating some idea of entrenchment or alternatively as operating on some notion of defeasibility. The difference between the two is philosophically significant and crucial. There is a noticeable tendency in literature on the subject to conflate the two, as the end result of the operation of both concepts is the same, namely, to insulate certain constitutional provisions from amendment. Yet, the routes these two concepts take to arrive at that result is vastly different, and for analytical clarity, it is indispensable that we keep them distinct and separate. Now we will, in turn consider briefly what the two concepts comprise of and how they operate. 1.2.

TWO CONCEPTS OF BASIC STRUCTURE

Richard Hare once had a guest for dinner who, on reading a book by Albert Camus, concluded in despair, “nothing matters”. Being a philosopher committed to analytical rigour, Hare asked his guest, “what is the meaning or function of the word ‘matters’?” Seeing that the guest was unable to untangle his concepts, Hare suggested, “when we say something matters or is important, what we are doing in saying this is to express our concern about that something”. Explaining the nub of his guest’s conceptual confusion, Hare explains, “My friend ... had thought that mattering was something (some activity or process) 2. The tension sets liberal constitutionalism in Opposition to majoritarian democracy. See Robert Lipkin, “Which Constitution? Who Decides? The Problem of Judicial Supremacy and the Interbranch

Solution”

(2006) 28 Cardozo

L Rev

1055,

1061; Samuel

Issacharoff,

“Constitutionalizing Democracy in Fractured Societies” (2004) 82 Tex L Rev 1861: Tames E. Fleming, Symposium, “The Missing Selves in Constitutional Self-Government” (2003) 71

Fordham L Rev 1789, 1793; Steven P. Croley, “The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law” (1995) 62 U Chi L Rev 689, 701. aaanne 3. Richard eee M. Hare, “Nothing Matters”, in Applicari pplications of Moral Philosophy (Macmillan,

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that things did”. That night over dinner, Hare had administered to his guest one of the most important lessons in philosophical method, the need to differ between the object and subject. One way of seeing the problem is that there is something inherent in the object that does the mattering, impinging, as it were, on the subject. The other, is to recognise that there is nothing inherent in the object that does the mattering but rather it is the subject that does the mattering, projecting his concern on the thing that he expresses concern about. Now, which of these two concepts we adopt in dealing with constitutional concepts, will turn out to be crucial because the two work on very different justificatory frameworks. We could enquire—lIs there something in the Constitution that makes it matter? Is “mattering” a property of the object, i.e. the Constitution? Or is “mattering” as Hare advised his friend, something that is done by the subject, i.e. judges interpreting the Constitution? This distinction that Hare points out can be employed to differentiate between the different ways in which the concepts of entrenchment and defeasibility operate. The idea of entrenchment works on the idea of object-oriented justification, whereas the idea of defeasibility works on a subject-oriented justification. At the heart of the concept of constitutional entrenchment is the notion that there is something inherent in the Constitution that affords resistance to change beyond certain limits. Perhaps, a rough analogy would help here though the link of the analogy to the issue at hand may at first appear tenuous, as we proceed, its relevance would become clearer.

A map of a territory represents what the territory actually is like. Therefore, a cartographer is not at liberty to change the map at will, so as to sunder the link between the map and the territory it purports to be a map of. To some extent, the map could be considered a representation though it does not replicate the territory down to the last specification. J.L. Austin famously expressed this idea of truncated liberty of representation by explaining that someone who says that France is hexagonal in shape, may for many purposes still be held to properly represent the geographical structure of France though serious geographers may quibble with him.’ But someone who represents France as an isosceles triangle or as two parallel lines running next to each other would surely have sundered all connection between the territory of France and the map.

Thus, there are inherent limitations on how the map could represent reality. The idea of constitutional entrenchment tracks this map analogy; it incorporates the idea that there is some moral reality in the form of inherent moral principles “out there” that the text of the Constitution purports to represent or map out, consequently, being a map of this moral terrain, there are limits to which it could be changed, so as to not sunder the connection between the

Constitution and the moral principles it purports to represent. In the next part

4. J.L. Austin, How to do Things with Words (Clarendon Press, Oxford 1962) 142-143.

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of this essay, we will be setting out and critically examining the philosophical assumptions underpinning the concept of moral entrenchment. The other way to conceptualise the doctrine is with the notion of defeasibility. Simply put, the notion of defeasibility has it that there is nothing inherent in the Constitution itself which resists amendment. Rather, one body (judiciary) overrules the decisions of another body (legislature) somewhat like exercising a veto power. One, signing up to the concept of defeasibility would argue that there is no inherently moral property adhering to the Constitution, at stake when the courts strike down constitutional amendments made by Parliament. Rather, the question of justification translates to one about the desirability or political justifiability of the courts exercising this veto power; the determination of this aspect turns on consequentialist justifications; for instance, it could be argued that it is politically justified, though not inherently required by the Constitution that the courts should exercise such a veto power because that is the only way to prevent a tyrannical Parliament from trampling on the liberty of citizens. However, note that such a consequentialist justification would be contingent on the circumstances of a peculiar constitutional culture—for it is not a logical rule that Parliaments are always bound to be tyrannical and the courts always benevolent. We could just as effortlessly imagine a situation where the situation would be reversed—we could imagine a legal system with a tyrannical Constitution, which a newly elected progressive Parliament is attempting to change, and courts packed with appointees of a former regime block all progressive reforms. Now we can imagine most lawyers, who would have supported the basic structure doctrine in the scenario of a tyrannical Parliament, would then begin to argue against it in the scenario of the tyrannical court. Such contingent nature of political justifiability of the doctrine emerges only when one operates on the concept of defeasibility. Whether it is politically justified to endorse a basic structure doctrine would then be contingent on the constitutional weather, it would be an a posteriori justification dependent on a concatenation of circum-

stances and the consequences. Quite contrary to this, the idea of entrenchment works on an a priori idea of justification. Whatever be the situation, there is something inherent about the Constitution which resists change. Thus, regardless of any consequentialist justification, there are always limits to which

the Constitution can be amended because something inherently philosophical

about the Constitution is at stake. With this preliminary survey at hand, it would be apparent that blandly portraying the issue as a conflict between constitutionalism and democratic values, tout court turns out to be rather misleading. It must be stressed that this essay does not seek to voice any opinion on the debate between constitutionalism and democratic principles on whether the court’s exercise of the powers under the label of the basic structure doctrine is indeed justified. This essay will concern itself with semantic issues that arise at a stage logically prior to that.

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In passing, we shall also touch upon the different justificatory frameworks that the rival concepts operate on. In what follows, we will explore, which of the two concepts provide a plausible framework for the basic structure doctrine. In addressing this question, we will have to engage with some fundamental issues about semantics, metaethics and the nature of truth. 2. Concept of entrenchment 2.1.

OBJECTIVITY AND TRUTH

Imagine being in an elementary school classroom where students are being taught geometry. The teacher tells them that the three angles of a triangle always add up to 180 degrees. A bright little student is not satisfied with the answer. She asks the teacher, “Why do they have to always add up to 180 degrees?” The teacher, as most elementary teachers would, replies that this happens because that is a “given” which we have to work with—it is an axiom of geometry. The little girl is not impressed so she questions the teacher, “who” made this an axiom of geometry? The teacher thinks that this is a pretty insane question. Yet, she politely replies, “Oh, no one made them child; these are ever existing and eternal like the stars and the hills.” The little girl is not impressed so she asks the teacher, “how do you say this axiom is the right one—can we not change them?” The teacher now little irritated replies, “these are correct and true and we are not free to change them whenever we like. These have always been true and will always remain true.” The little girl is perplexed, she further probes, “I can see the stars and hills, could you tell me where can I find these axioms?” The teacher has by now lost her patience, she replies, “I will show you where they are to be found, outside the classroom!”. After that life went on as usual for the little girl; she continued doing geometry assuming these axioms to be right, with the fundamental puzzle swept conveniently under the carpet. In philosophical terms, such axioms are called a priori—truths that are said

to be inherently true and possessing inherent authority. These truths, as the teacher wanted the little girl to believe, are supposed to be entrenched, sewn into the fabric of the cosmos and hence, eternal and changeless. From Plato to Russell and Wittgenstein, philosophers after search for “truth” have often started their enquiries just here, trying to investigate whether there can be such entities entrenched somewhere in the fabric of the cosmos. 2.2.

METAETHICS

Moral philosophers have pondered over such puzzles through the ages. We make moral judgments. We argue with each other: “X is right” and “Y is wrong”. But what is it that ultimately makes something right and something wrong? Is there any truth or any authority in any of these moral judgments? In

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[Chap.

the history of philosophy, this is roughly the debate between moral realists and moral anti-realists. Moral realists believe in the existence of some form of objective moral reality.> Plato was a moral realist. He believed that there are objective moral properties “out there”, sewn into the fabric of the cosmos, whose existence is quite independent of what we happen to think or feel about them. These are eternal and changeless regardless of how we perceive them.° When we make moral judgments, we state beliefs in the existence of these objective moral properties. When I say that slavery is wrong, I am expressing belief that there is an “objective moral property” out there on the basis of which slavery is wrong. Now you may want to ask Plato, “slavery was considered right in Roman times but is considered wrong now—Mr Plato, how do you account for it?” Plato would be unruffled. He will tell you, slavery was always wrong, just that people were mistaken about it in Roman times and right about it now. On the Platonist picture, moral judgments are independent of our emotions, preferences or attitudes. On the other hand, there have been moral philosophers who have opposed this moral realist picture—they are the anti-realists. According to the anti-realists, when we make moral judgments we are not trying to figure out what is objectively right, but rather we are expressing our attitudes’. In recent literature, this idea goes by the name of expressivism. On the anti-realist picture, our moral judgments are aligned to our emotions and attitudes rather than some objective moral properties existing “out there”. 2.3.

LEGAL SEMANTICS

Moral realism and anti-realism find their way into law through the semantic assumptions underpinning theorists conception of legal norms. The semantic issue about legal norms on which rival views have been taken is this—do legal norms purport to denote objective moral properties? Descriptivism yields an affirmative answer to the above question and non descriptivism yields a negative answer to it.® 5. I use the term moral reality to include any realm of objective stance independent reality. This is in line with the conventional usage of philosophers writing on metaethics. See, Russ Shafer-Landau, Moral Realism (Oxford 2008).

According to Shafer-Landau’s classification which I adopt here—moral realism, Kantian constructivism and relativism are varieties of “realist” theories as opposed to “anti-realist’ theo-

ries such as expressivist ones. Each of these “realist” theories asserts that moral sentences pur-

port to represent moral reality while they differ on what exactly constitutes moral reality. The expressivist theories, on the other hand, deny that semantic assumption. Often this distinction is marked by the cognitivism/non-cognitivism dichotomy. However, I will stick to the realism/

anti-realism dichotomy, as cognitivism and non-cognitivism are commitments stemming within realist and anti-realist theories, respectively. 6. Russ Shafer-Landau, Moral Realism (OUP, 2008). 7. M. Timmons, Morality without Foundations (OUP, 1999) 15.

8. This distinction is roughly inspired by G.H. Von Wright. Von Wright, “Is and Ought” in S.L Paulson and B.L. Paulson (Eds.), Normativity and Norms: Critical Perspectives on Kelsenian Themes (Clarendon Press, Oxford 1998) 365, 369.

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263

Descriptivism

Moral realism finds a way into law through a semantic theory called descriptivism. This is the theory that legal norms are purported maps of moral reality, just as our moral judgments are. On the descriptivist view, legal norms “purport” to represent moral reality, in that, legal terms such as obligation, duty, etc. purport to pick out or denote objective moral properties and relations that actions, persons, etc. covered by the norm may or may not possess.’ For instance, on the descriptivist account a legal norm, “X has an obligation to ©” purports to denote that “@ ing” has the property of being objectively morally required.'° On descriptivist accounts, the law is in principle capable of containing morally binding reasons for action because some legal norms, which purport to denote moral properties, could actually succeed in doing so. Some legal norms are justified in the sense that they successfully denote the moral property they purport to denote. Some on the contrary may fail to be justified. Natural lawyers, have traditionally employed the descriptivist model. This model works on a relationship between the truth-bearer, i.e. the legal norm and the truth-maker i.e. the objective moral property that the legal norms purport to denote. On the descriptivist account, constitutional concepts purport to denote some abstract moral property. For instance, when the Constitution speaks of equality, it purports to denote the abstract and true property of equality. Dworkin who works on a descriptivist theory contends that the equality clause of the American Constitution purports to denote the abstract concept of equality. The framers idea of equality was just a conception of the abstract idea of equality, thus, Dworkin argues, when courts interpret the equality clause, they must try and track the abstract and true moral property of equality that the equality clause purports to represent or stand for." 2.3.2. Non-descriptivism

Non-descriptivism holds that legal norms do not “purport” to represent moral reality, in that legal terms such as duty, obligation, etc. do not purport to denote objective moral properties.’ On a non-descriptivist account, the law is in principle incapable of containing morally binding reasons that could impinge on the subjects giving them a moral obligation to do as required by it. Unlike the 9, Raz identifies this as a semantic assumption underlying natural law theories and he himself specifically endorses it. J. Raz, Authority of Law (OUP, 1979) 155-157. 10. Strictly speaking, it is the deontic sentence which issues the norm, that purports to de-

note objective moral properties. However, for ease of reference throughout the essay, this will be expressed with the idea of norms purporting to denote objective moral properties. 11. R.M. Dworkin, “Reply to Justice Scalia” in Scalia (Ed.), (Princeton University Press, New Jersey 1998) 115-128.

A Matter of Interpretation

12. This idea has been expressed in a multitude of ways by legal philosophers. Alf Ross argues that a “legal rule is neither true nor false; it is a directive”; Alf Ross, On Law and Justice

(Stevens & Sons, London 1958) 6-8. Similarly, Coleman notes “... legal contents are directives

lacking a moral vector”; Coleman, “Beyond the Separability Thesis” (2007) 27 OJLS 581.

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descriptivist model, non-descriptivism denies a conceptual link between legal norms and objective moral properties. Bentham was probably the first to endorse non-descriptivism. He defended in it in opposition to the descriptivism of natural law theories of his day.'? Hart, following Bentham, rejected a descrip-

tivist conception of legal norms arguing that it leads to “obscure metaphysics”. The obscure metaphysics that Hart alludes to is the idea of existence of some moral properties “out there” weaved into the fabric of the cosmos. On this subject-oriented account, the picture of authority and normativity would be reversed. While on the descriptivist picture, authority, normativity and obligation arise from genuine objective moral properties that impinge on people, on the non-descriptivist picture, supplemented with expressivism, these are the result of attributes, subjects project or spread—to use Blackburn’s phrase—on to the law; authority is projected authority; normativity is projected normativity; and obligation is projected obligation." 2.4.

MORAL

SEMANTICS

OF CONSTITUTIONAL

ENTRENCHMENT

Just like moral realism and descriptivism, the idea of constitutional entrenchment works on the assumption of existence of objective moral properties. A theorist working on a descriptivist conception of norms alone could support the concept of constitutional entrenchment. The idea is that constitutional provisions are purported maps of moral reality in that they purport to denote some true objective moral properties. Being maps of moral reality, they cannot be so amended as to lose resemblance with the moral reality they purport to denote. Lycurgus, a lawmaker in ancient Greece believed that the laws he made represented what was morally just, true and eternally right. Consequently, he did not want people to change them. When he was leaving on an expedition, he extracted a promise from the people that they would not attempt changing the laws in his absence. Then, in order to preserve the eternity of his laws, he martyred himself.’ The justification of constitutional entrenchment that underlies most contemporary philosophical enterprises is not that far removed from Lycurgus’ descriptivist/moral realist convictions. This idea of moral entrenchment also ties in quite well with some other heavily moral realist notions, such as inalienability of Fundamental Rights, the idea that Fundamental Rights enshrined in the Constitution are not granted by the Constitution but are mere declarations of pre-existing objective moral or human rights. The upshot of the notion of moral entrenchment 13. K. Toh points out that Bentham’s characterisation of laws as commands lent support to his idea that laws were non-descriptivist speech acts. K. Toh, “Expressivism and Hart's Benthamite Project” (2005) Legal Theory 75. Several self-styled legal positivists such as

Austin, Hagerstrom, Kelsen, Olivecrona, Holmes, Lundsted, Ross and Hart have endorsed non-descriptivism.

:

14, S. Blackburn, Spreading the Word (Oxford, 1984) 181-223. 15. Elai Katz, “On Amending Constitutions:S: The Legali ‘ as gality and Legitso Sg Mimacy'ol Consiiulons! 4 Entrenchment” 29 Colum JI & Soc Probs 251.

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is that, as the Constitution is a map of some pre-existing objective moral virtues, they cannot be amended or altered in a way as to severe the relation of correspondence between. 2.5.

WHAT

IS WRONG

WITH THE CONCEPT OF ENTRENCHMENT?

From the preceding sections, it emerges that the concept of constitutional entrenchment operates on two fundamental assumptions—moral realism and descriptivism. The first of those is a metaethical assumption i.e. about the nature of our moral judgments, and the latter is a semantic assumption about the nature of legal norms. I find both assumptions questionable. My fundamental objection to the metaethical assumption underpinning the concept of entrenchment pertains to the ontologically ambitious idea of existence of objective moral properties. As Mackie famously expressed the objection, such objective moral properties do not constitute the furniture of the universe—he went on to dismiss the idea as involving “queer metaphysics”.'® In questioning the moral realists metaethical commitment, Hart argues, “are they [morals] immutable principles which constitute part of the fabric of the universe, not made by man, but awaiting discovery by the human intellect?” Hart’s incisive argument against this ontologically questionable metaethical assumption is worth reproducing here. In the vast literature from Plato to the present day, which is dedicated to the assertion and also to the denial of the proposition that the ways in which men ought to behave may be discovered by human reason, the disputants on the one side say to those on the other, “You are blind if you cannot see this’ only to receive in reply ‘you have been dreaming’... This outlook [the claim that there are true principles of right conduct, rationally discoverable] is in many ways antithetic to the general conception of nature which constitutes the framework of modern secular thought.

Along with Hart, many of the other prominent legal positivists of the 20th century including Kelsen, Hagerstrom and Ross, rejected outrightly the idea of existence of objective moral properties. As Bulygin points out, Kelsen adopted a “non-cognitivist conception of norms that are neither true nor false ... there are no normative facts [read: objective moral properties] that would make norms true that is there is no reality corresponding to norms”.!* Hagerstrom, a prominent Scandinavian legal philosopher made it his academic life’s mission to altogether banish the spectre of metaphysics from legal theory. Hagerstrom is known to have ended all of his jurisprudence lectures at Uppsala with the declaration, “Metaphysics ought to be destroyed”.'° Alf Ross, another 16. L. Mackie, Ethics: Inventing Right and Wrong (Penguin, 1977) 18. 17. H.L.A. Hart, The Concept of Law (2nd Edn., Oxford 1994) 168. 18. (Eds.), Oxford 19. 2004).

Bulygin, “Antinomy in Kelsen’s Pure Theory of Law” in S.L. Paulson and B.L. Paulson Normativity and Norms: Critical Perspectives on Kelsenian Themes (Clarendon Press, 1998) 297, 300. Nordin. I’ngemar Hedenius. En filosof och hans tid’ in Natur och Kultur (Stockholm

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Scandinavian legal philosopher who followed in Hagerstrom’s footsteps, dismissed the belief in metaphysical existence of objective moral properties as “a state of darkest superstition”.2° The logical positivists of the Vienna circle, such as Rudolf Carnap, Otto Neurath and Moritz Schlik, influenced by Ludwig Wittgenstein’s Tractatus raised similar objections about the idea of existence of objective moral properties; they viewed their task as that of designing philosophical tools intended to sort out useable knowledge from irrational metaphysics. Echoes of this anti-metaphysical orientation are to be found in the works of John Hart-Ely who noted that “our society does not, rightly does not, accept the notion of a discoverable and objectively valid set of moral principles ... that could plausibly serve to overturn the decisions of our elected representatives.””! In a similar vein, Joseph Story remarked that “Constitutions are not designed for metaphysical or logical subtleties ... for elaborate shades of meaning, or for the exercise of philosophical acuteness or ... extraordinary gloss.” Each of these objections calls in question to the moral realist’s construal of ethics and morality, the objection being that moral realists misconstrue the very nature of moral judgments. They belong to a tradition of moral anti-realism beginning with David Hume, that question the assumption moral judgments do not purport to denote objective moral properties. According to these anti-realists, our moral judgments are expressions of our attitudes and do not state any belief in objective moral properties.” The other related objection to the concept of entrenchment pertains to the semantic assumption underpinning it. It will be recollected that the concept of entrenchment operates on descriptivism—the semantic assumption that legal norms purport to describe or represent some moral reality. This semantic assumption, again, is questionable. The semantic assumption (descriptivism) is

symptomatic of what J.L. Austin calls the “descriptivist fallacy”.24 The descriptivist fallacy, Austin argues, is the fallacious assumption that the only purpose of linguistic speech acts is to state or describe facts. Austin argues that there can be a wholly different category of speech acts, non-descriptivist speech acts. When I say to someone, “shut the door”, I am not describing anything

but rather issuing a prescription or making a command. The descriptivists are committed to the erroneous assumption that legal speech acts are in the business of describing objective moral facts. Rather, legal speech acts are prescriptions which are not the apt truth.

This idea—that legal norms do not describe any objective moral facts —forms the core of the legal non-descriptivist’s commitment. Bentham argued “the law does not preach”. This, as Kevin Toh argues, coupled with his idea that 20. Ross, “Tu Tu” 70 (1957) Harv L Rev 812. 21. John Hart Ely, Democracy And Distrust (1980) 54.

22. Joseph Story in Melville M. Bigelow (Ed.), Commentaries on the Constitution of the

United States (Sth Edn., Little, Brown & Co. 1905) 451.

23. A. Gibbard, Wise Choices Apt Feelings (Oxford 1990) 8. 24. J.L. Austin, How to do Things with Words (Clarendon Press, Oxford 1962) passim,

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laws are commands, constituted the basis of Bentham’s non-descriptivism.”° Several legal positivists, following Bentham, have adopted this semantic assumption. Alf Ross argues that the law does not describe anything, rather it prescribes. He argued that laws are non-descriptivist speech acts and as they do not describe anything, they cannot be true or false. Dismissing descriptivist theories, Ross pithily remarked that “the Parliament is not an information bureau”.*® Consequently, Ross argued, “a legal rule is neither true nor false; it is a directive”. Similarly, Coleman notes, “... legal contents are directives lacking

a moral vector”.?” In The Path of the Law, Holmes makes a similar argument, “Nothing but confusion of thought can result from assuming ... that the rights of man in a moral sense are equally rights in the sense of the Constitution

and the law.””8 Non-descriptivism finds its greatest supporter in Hart. Following Bentham, Hart rejected a descriptivist conception of legal norms arguing that it leads to “obscure metaphysics”. He inquires, What can there be in a rule apart from regular and hence predictable punishment or reproof of those who deviate from the usual pattern of conduct, which distinguishes it from a mere group habit? Can there really be something over and above these clear ascertainable facts, some extra element, which guides the judge and justifies or gives him a reason for punishing?”

In what seems to be a criticism of descriptivist theories, Hart says, “we may be tempted to imagine that there is something external, some invisible part of the fabric of the universe guiding and controlling us in these activities’”*°. Soon after he proposes his analysis of statements of legal obligation, in articulating the position he finally settles on, Hart spells out in so many words that his analysis is an alternative to “obscure metaphysics” of descriptivist theories.*! On Hart’s account, legal norms do not state any categorical moral reasons that citizens have for action. In Essays on Bentham, Hart reiterates his commitment to non-descriptivism in no unclear terms. Hart defended this unto the very end, arguing against Raz. Hart argues that “on Raz’s ‘cognitive’ account, ‘“X has a duty to act in a certain way’ means that there is an objective reason for X to act in that way”. Disagreeing with Raz’s account, Hart argues, Of course if it were the case, as a cognitive account of duty would hold it to be, that the statement that a subject has a legal duty to act... entails the statement that 25. Kevin Toh, “Expressivism and Hart’s Benthamite Project” Legal Theory (2005) 75. 26. Alf Ross, On Law and Justice (Stevens & Sons, London 1958) 6-8.

27. Jules Coleman, “Beyond the Separability Thesis” (2007) 27 OJLS 581. 28. Oliver Wendell Holmes, “The Path of the Law” in Collected Legal Papers (1920) 167, VEL, 872.

29. H.L.A. Hart, The Concept of Law (2nd Edn., Oxford 1994) 11. ' commitmetaethical realists’ moral the to 30. Ibid, 11-12. Significantly, while referring

ments, Hart yet again uses the very same expression “immutable principles which constitute part of the fabric of the universe”. [bid, 168.

31. Ibid, 84, 186.

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difficult to deny there exist reasons which are external or objective ... it would be that legal duty is a form of moral duty. correct so Of course if Raz’s... cognitive analysis of the notion of duty were ve reason that ‘X has a duty to act in a certain way’ means that there is an objecti find little for X to act in that way, this would amount to a moral judgment... but I d reason to accept such a cognitive interpretation of legal duty ... far better adapte

to the legal case is a different non-cognitive account sg The non-descriptivist conception of legal norms, which I endorse here, stems

from an empiricist and anti-metaphysical approach to legal semantics.* On this approach, there is no scope for a metaphysically questionable concept

of entrenchment. Thus, if we assume non-descriptivism—which I believe is

the proper semantic assumption to hold, we would be constrained to admit that the basic structure doctrine operates on the concept of defeasibility and | not entrenchment. 3. Defeasibility, Sovereignty and the Supreme Court of India

The basic structure doctrine incorporates the concept of defeasibility. As argued earlier, the concept of defeasibility has it that, there is nothing inherent in the Constitution itself which resists amendment. Rather, one body (judiciary) overrules the decisions of another body (legislature) somewhat like exercise of veto power. It will be, immediately apparent how the concept of defeasibility naturally supplements non-descriptivism. A non-descriptivist, signing up to the concept of defeasibility, would argue that there is no inherent moral property adhering to the Constitution at stake when the courts strike down constitutional amendments made by Parliament on the basis of the basic structure doctrine. Rather, they overrule or veto the amendment proposed by Parliament. Acknowledging that the basic structure doctrine operates on the concept of defeasibility has some far-reaching implications on many other concepts of constitutional theory, including the concept of sovereignty. The concept of entrenchment with its array of metaphysical assumptions could locate the source of sovereignty in the Constitution itself; the argument being that the Constitution with its moral semantics is sovereign, none of the organs of the

State are sovereign because there are inherent limitations imposed on any of the organs of the State amending or altering the Constitution. But when we give up the metaphysically questionable notion of entrenchment—as we have done here, we will have to look elsewhere to locate the source of sovereignty in a legal system. Here we will attempt to draw on Hart’s insights in locating the source of sovereignty in the Indian legal system. It must be noted following Hart, the analysis here will rely on a non-descriptivist conception of norms. It will be remembered that Hart was a non-descriptivist. It will also be 32. H.L.A. Hart, Essays on Bentham (Oxford 1982) 159. 33. Alf Ross, “Validity and the Conflict between Positivism and Natural Law” in Paulson supra, n. 19, 147, 150.

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remembered that the concept of defeasibility is logically supplementary to a non-descriptivist conception of legal norms. Hart argues that law is the union of primary and secondary rules. Primary rules impose duties on people to behave in certain ways. Secondary rules, by contrast, confer powers and pertain to the primary rules. They confer public power, such as the power to legislate. Hence, they also aid the legal system of which they are a part by permitting it to solve problems that arise from the use of primary rules. Hart identifies three types of secondary rules—rule of recognition, adjudication and change. Primary rules do not themselves determine if anybody, is to enact, record, enforce, interpret, adjudicate, apply, or alter them, or by what procedures these tasks are to be performed. Primary rules do not themselves declare which versions are authoritative, what is to be done in case two or more primary rules conflict, or exactly which utterances or traditions are to count as primary rules that create obligations. Secondary rules that provide conclusive methods for ascertaining what things are primary rules and which primary rules take precedence over others, are called rules of recognition. Rules that permit and structure the process of enacting, altering, and repealing primary rules are called rules of change. And rules that empower some people to make authoritative determinations of departures and violations are called rules of adjudication. These three types exhaust the realm of secondary rules for Hart. Apart from the distinction between primary and secondary rules, Hart drew a distinction between the fundamental rule of the legal system and every other rule that falls within it. Unhappily, he also calls this the fundamental rule of recognition and oddly, he calls every other rule falling under the fundamental rule of recognition as primary rules of obligation. Because of this terminological oddity, even what we understand as the secondary rules of change, adjudication and recognition, would be termed as primary rules of obligation when viewed in relation to the fundamental rule of recognition. The fundamental rule of recognition is not some rule that “exists”, which can be acknowledged or fail to be acknowledged by the officials. Rather the acknowledgment of the officials in fact constitutes the rule of recognition, “the rule of recognition is not stated but its existence is shown in the way in which particular rules are identified either by the courts or other officials”.** [emphasis added] Just as a multiplication table is the result of the application of rules of multiplication, the existence of the fundamental rule of recognition is to be “established by reference to actual practice to the way in which courts identify what is to count a law”. Hart ties up the existence of the rule of recognition to the existence of the legal system. Where there is a rule of recognition, practiced by the officials, we have the conditions “necessary and sufficient” for the 34. The Concept of Law, 101. 35. Ibid, 108.

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mental rule of existence of a legal system.** Thus, what Hart calls the funda a legal system recognition is simply a catalogue of what laws the top officials of actually identify, apply and acknowledge. In the Indian context, it would be apparent that the Supreme Court of India holds control over all the three secondary rules and this “fact” constitutes the fundamental rule of recognition that is to say, this state of affairs is acknowledged by all organs of the State. In practical terms, this means that the Supreme Court proposes a certain set of rules of adjudication, recognition and change, and the other organs of the government acknowledge it and act according to it. “What the Supreme Court says is the law” is the extant fundamental rule of recognition in the Indian legal system. But this fundamental rule of recognition will continue only for as long as the other organs of State, acknowledge this superiority of the Supreme Court. There is no logical, conceptual or moral necessity that they do so for all times to come. If we find that some day Parliament refuses to acknowledge this as the fundamental rule of recognition, it could trigger the process of the establishment of a new fundamental rule of recognition. To be sure, a fundamental rule of recognition can be said to be established only when there is broad consensus among what Hart calls the “top officials” of the three organs of State. Consequently, there can be times when there is a struggle between the judiciary and the legislature for this position, leading to uncertainty about the exact fundamental rule of recognition. This phenomenon can be seen in an embryonic form in some of the leading cases pertaining to the law of Parliamentary Privileges. In England, such a conflict was seen in the case of the Sheriff of Middlesex (1840) where the judiciary and the Parliament were headed for a di-

rect confrontation with each defying the orders of the other. We have our very own example of such a confrontation, in the form of the Keshav Singh where

the UP State Legislature and the High Court of Allahabad defied each others orders leading to a committal of two High Court judges for breach of privilege by the State Legislature.*”7 When some broad consensus emerges, there we have

a clearly ascertainable fundamental rule of recognition. The fundamental rule of recognition that obtains as of now in India is that the word of the Supreme Court is final in matters of recognition, change and adjudication. Quite literally, the Constitution is what the courts Say it is; as

: former CJ of the Supreme Court of US, Charles Evans Hughes once said, ie are under a Constitution, but the Constitution is what the judges say it is.”°* Though the Supreme Court has the final say in respect of each of these secondary rules, the most significant of those is the rule of change. As Jeremy

Waldron argues, the rule of change trumps both the rule of recognition and the

rule of adjudication as the rule of change can alter the rule of adjudication and 36. Ibid, 116. 37. Presidential reference under Art. 143 of the Constitution, re, AIR 1965 SC 750 185 Evans Hughes, Addresses of Charles Evans Hughes (1916) 38. Charles

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the rule of recognition.*? Hence, the rule that holds the trump in a legal system is the rule of change. As the courts in India assume the power to invalidate .any constitutional amendment, it is they who exercise control over the rule of change. Consequently, this reinforces their control over all secondary rules of the system. This analysis of Hart brings us closer to a clearer characterisation of the constitutional status of the Supreme Court of India. In effect, the Supreme Court is ultimately sovereign. Space does not permit me, to give this concept, the attention it deserves. However, I will attempt to outline the concept in brief. Sovereignty, shorn of all metaphysical connotations, is the power to call the final shots in a legal system; one that overrides every other determination arising from any other organ within a legal system. J.L. Mackie, whose influence is to be found in Hart’s own ideas of sovereignty, equated the concept of sovereignty with omnipotence or in other words, the power to change any state of affairs within the legal system.*® From the point of view of accounting for sovereignty, it is the rule of change which is fundamental because the rule of change can be used to change any of the other rules of a legal system. The basic structure doctrine holds the key in the battle of supremacy over the secondary rules of a legal system because the organ of State which holds control over the rule of change, can effectively trump the rules of adjudication and recognition. As the Supreme Court of India has a firm control on the rule of change in the Indian legal system, they alone can be regarded to be sovereign. Quite understandably, few constitutional courts in the world, exercising the kind of omnipotence that the Supreme Court of India does, would be willing to openly acknowledge this, probably because it is ill behoove on part of the unelected judiciary to openly proclaim that they being sovereign, hold the ultimate power to trump the will of the elected representatives of the people. 4. Endurance and justifiability of the basic structure doctrine

We have by no means solved the issue of the justifiability of the basic structure doctrine in the context of the larger debate of constitutionalism against democracy. But we have surely pointed out how that issue ought not to be solved, that is, with the aid of the concept of entrenchment. In this section, we will map out how the justificatory framework informing the concept of defeasibility works. However, we will leave open here the question, whether the basic structure doctrine, as it obtains in India, is indeed justified.

The concept of defeasibility does not operate as the concept of entrenchment does. It will be recollected, I had argued in Section 1 that the concept of entrenchment operates on an idea of a priori justification. On the concept of entrenchment, there are inherent limitations to amend the Constitution in all 39. Jeremy Waldron, “Who Needs Rules of Recognition?” NYU School of Law, Public Law

Research Paper No. 09-21 . 40. J.L. Mackie, “Evil and Omnipotence” (1955) 64 Mind 200-212.

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ages to come, irrespective of any contingency, as there is something inherent

in the Constitution itself that resists change. This occurs because the embargo

imposed is a conceptual one. Just like there can never be a time when a map can stop representing the territory, the concept places shackles on justifiable constitutional change. On the other hand, the concept of defeasibility provides a different justificatory framework, it works on an a posteori or consequentialist justification. On the concept of defeasibility, the question of justification translates to one about the desirability or political justifiability of the courts exercising this veto power; the determination of this aspect turns on to consequentialist justifications. For instance, it could be argued that the courts should exercise such a veto power because at a given moment in constitutional history, that is the only way to prevent a tyrannical Parliament from trampling on the liberty of citizens. However, such a consequentialist justification would be contingent on the circumstances of a peculiar constitutional culture. Hence, on the concept of defeasibility, there could be periods in a nation’s constitutional history where the basic structure doctrine could thought useful and politically justified; but note that neither is this an inherent requirement of the Constitution nor is there any logical necessity that such political justification be true and applicable for all time and ages. In other words, there may come about an occasion when the basic structure doctrine outlives its desirability and justification. Thus, on the justificatory framework informing the concept of defeasibility, there, is an open, theoretical and logical possibility that the Parliament of India could, at some point of time, justifiably introduce

wholesale changes to the Constitution and in effect, transform its nature to something very different from the original Constitution, of course the Supreme Court would have to let lose their hold on the rule of change for this to happen; it is a logical and conceptual possibility, nonetheless. Whether such change is politically justified or not, as I said, would be a purely contingent matter, but the logical or conceptual permissibility of the change cannot be ruled out, as

concept of entrenchment would have it. On the concept of defeasibility, there are no inherent limitations on constitutional change, thus, we could conceive of a situation where it would be constitutionally permissible and politically justified to comprehensively amend or alter the Constitution, including the provisions that are now regarded to constitute its basic structure.

25.

Is “Golak Nath” partly correct? Amit A. Pai

As a student of constitutional law, I look upon Mr H.M. Seervai and Mr N.A. Palkhivala as the icons of the subject and therefore, I dedicate this Chapter as my tribute to their scholarship. 1. “Golak Nath” and the 24th Amendment

The first time the Supreme Court of India limited the power of Parliament to amend Fundamental Rights was in the landmark case of Golak Nath v. State of

Punjab' (Golak Nath). In that case, the five judges led by K. Subba Rao CF¥* determined two things: firstly, the power to amend the Constitution was not found in Article 368, but in Entry 97, List I of Schedule VII, as the marginal note

of Article 368 indicated, that only the procedure to amend the Constitution was found in that article; and secondly, as a consequence, any amendment to

the Constitution was “law” for the purpose of Article 13(2), and thereby, if it abridged or abrogated any of the Fundamental Rights enumerated in Part III of the Constitution, it would be void. In other words, Parliament, by virtue of its power to amend the Constitution, could not abridge, take away or abrogate any Fundamental Right that was guaranteed in Part III of the Constitution.’ This finding of Subba Rao CJ was supported by M. Hidayatullah J in a separate but concurring judgment, giving wide reasoning on the importance of Fundamental Rights in the Indian polity.* This was the law laid down by the majority in Golak Nath. The other five judges*® on the Bench took a dissenting view, giving Parliament unlimited power to amend the Constitution with regard to Fundamental Rights. Subsequently, the Constitution was amended incorporating the 24th Amendment’ to the Constitution, which was passed by Parliament with a view to do away with the limitation that was imposed on it by the court in Golak Nath.

1. 2. 3. 4.

(1967) 2 SCR 762. The other judges were J.C. Shah, S.M. Sikri, J.M. Shelat and C.A. Vaidialingam. (1967) 2 SCR 762, 813. Ibid, 902.

5. K.N. Wanchoo, R.S. Bachawat, V. Ramaswami, V. Bhargava and G.K. Mitter. JJ. 6. Constitution (24th Amendment) Act, 1971.

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It categorically excluded the operation of Article 13 on any amendment to the Constitution that was passed under Article 368.’ The finding in Golak Nath of curbing Parliament’s power to amend

Fundamental Rights, so that they are not taken away, saw its share of criticism from the legal world. Subsequently, when the question of the amending

power of Parliament was raised in Kesavananda Bharati v. State of Kerala® (Kesavananda Bharati), the first finding of the summary that was prepared

at the end of the case reads, “(1) Golak Nath’s case is overruled”? However, the author questions, whether the ratio that came out of Kesavananda Bharati

actually overruled Golak Nath in effect. 2. Case of “Kesavananda Bharati’

In Kesavananda Bharati, while dealing with the question of whether Parliament had the power to amend Fundamental Rights, such that they were abridged, taken away or abrogated, 10 of the learned judges hearing the case discussed Golak Nath at length and held that it was wrongly decided.’° However, three learned judges!’ took the view that in light of the 24th Amendment to the Constitution, the law had changed, and therefore, it was not necessary to go into the question whether Golak Nath was rightly decided. It is important to note that Sikri CJ and Shelat J were both a part of the majority led by Subba

Rao CJ in Golak Nath.'* Hence, clearly by majority, the Bench in Kesavananda Bharati held that Golak Nath was wrongly decided and had to be overruled. In other words, the court, by majority, decided that there were no limitations on Parliament amending any of the Fundamental Rights, even if they were abridged or abrogated. However, the accepted outcome of Kesavananda Bharati was that Parliament did not have the power to damage or destroy the basic structure or 7. See, Arts. 13(4), 368(3). 8. (1973) 4 SCC 225. 9. Ibid, para 1007. 10. K.S. Hegde, A.N. Ray, P. Jaganmohan Reddy, D.G. Palekar, H.R. Khanna, K.K. Mathew, M.H. Beg, A.K. Mukherjea, S.N. Dwivedi and Y.V. Chandrachud JJ. 11. S.M. Sikri CJ and, J.M. Shelat and A.N. Grover JJ. However, these judges also discussed what was decided in Golak Nath.

12. H.M. Seervai criticised these two judges for having sat on the Bench as they were party

to the majority decision of Golak Nath. See, H.M. Seervai, “The Fundamental Rights Case: At the Cross Roads” (1974) 47 Bom LR. The author wonders whether his criticism may be well

found in light of their finding on the issue of Golak Nath. What is interesting to note is that Sikri CJ does not change his stand from the case in Golak Nath, while saying that Parliament's power to amend the Constitution is restricted by implied limitations, he opined that there were

implied limitations destroying or abrogating Fundamental Rights (para 475), It is also interest-

ing to note that all these judges have signed the summary which declared that Golak Nath was overruled. The author also draws the attention of the reader to LR. Coelho v. State of T.N., (2007)

2 SCC 1 (/.R. Coelho), where the nine-Judge Bench has erroneously observed that Golak Nath was overruled by a majority of 7:6 in Kesavananda Bharati (para 21).

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basic features of the Constitution.'? The author does not propose to question the binding value of the basic structure doctrine. There were many features of the Constitution that were considered as part of the basic structure of the Constitution, as perceived by each judge on the Bench in Kesavananda Bharati. However, it was in the later cases that the actual conceptualisation of the basic structure of the Constitution has been made by the court. 3. Basic structure of the Constitution vis-a-vis Part III

The rights found in Part III are the principles of basic human rights that are to be applied by the courts in order to protect the people. In M. Nagaraj v. Union of India’ (M. Nagaraj), it was held that “Every foundational value is put in Part III as a Fundamental Right as it has intrinsic value.” The basic structure of the Constitution is considered a very vague and indefinite concept, enlarged by judicial interpretation on the basis of the need of the hour. When the question of what comprised the basic structure of the Constitution was raised, some judges found it as a reflection of the Preamble to the Constitution while others found it in concepts like the supremacy of the Constitution, the democratic and federal character of the Constitution, etc. Some of these basic features of the Constitution have been discussed below as reflected in our Constitution. 3.1.

RULE OF LAW

The supremacy of the Constitution and the rule of law were held to be a part of the basic structure in Kesavananda Bharati.'> The same was reaffirmed in Indira Nehru Gandhi v. Raj Narain'® (Indira Nehru Gandhi), where it was

held that the rule of law is an essential feature of the basic structure of the Constitution, and the law operates on all equally.” The rule of law is a concept by which no man is considered above the law. Every person is treated equally before the law and is accorded with equal protection by the law."* In other words, the law governing all persons is the same, thereby ruling out any differential treatment to any person. This concept walks hand in hand with the principles of supr2macy of the Constitution. In other words, the Constitution is above all. Article 14 of the Constitution is a clear enunciation of the principle of rule of law.

13. 14, 15. 16.

(1973) 4 SCC 225, para 1007. (2006) 8 SCC 212, para 20. See, (1973) 4 SCC 225, Sikri CJ (para 292) and, Shelat and Grover JJ (para 582). (1975) Supp SCC 1.

17. Ibid, see, Khanna J (para 205), Mathew J (para 342), Beg J (paras 391, 623) and

Chandrachud J (para 681). 18. Art. 14.

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EQUALITY

[Chap.

Equality was held to be an essential feature of the basic structure of the Constitution by the Supreme Court.’ The concept of equality is—one by which all persons are treated equally and alike, by and before the law as discussed above. There is not to be any discrimination between persons on the basis of their religion, race, caste, place of birth, language and sex, and the same cannot

operate as limitations on the people for any purpose.” Even in public employment, all persons are to be treated equally, and no discrimination must be made on the above basis for granting employment under the government.”! Thus, in public employment, appointment, matters of service conditions, salary, work hours, benefits, etc. are the same for all, irrespective

of their birth.”? This ensures that each and every person is granted an equal opportunity, and not differentiated for reasons of birth, which are beyond human control. In a caste-ridden society like India, the evil practice of untouchability is an antithesis to the principle of equality, and so, doing away with the same in

the spirit of equality was essential.” As the principle of equality perceives that all men are equal, there can be no title or designation that should be a cause for discrimination.** Religious equality is also a very important facet of this principle.” However, equality and equal treatment to all can be postulated only when all people are actually equal. In a society like India, there is a demand for “egalitarian equality”.”° Social justice and equal economic opportunities would be but paper tigers if no positive steps are taken for their proper implementation. In other words, there was a need to treat those people who are placed unequally, with inequality. For the same, special provisions were made for women

and children,”’ reservation in seats for educationally and economically backward classes in educational institutes and public employment,”8 etc. Mathew J took the view that the various facets of equality were reflected in Articles 14, 15,16; 17, 185 25; ete?” 19. See, (1973) 4 SCC 225, P. Jaganmohan Reddy J (para 1159), H.R. Khanna J (para 1473);

(1975) Supp SCC 1, Khanna J (para 209) and Mathew J (paras 341-342). See also, Indra Sawhney v. Union of India, (1992) Supp 2 SCC 217; M. Nagaraj, (2006) 8 SCC 212, paras 106-107. Also see, Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1. 20. Art. 15(1), (2). 21. Art. 16. 22. Ibid. 23; Artaly, 24. Art. 18. 25. AttiZ5:

26. See, Indra Sawhney v. Union of India, (1992) Supp 2 SCC 217; M. Nagraj, (2006) 8

SCC 2PM. 21;. Art, 13@). 28. Art. 16(4), (4-A), (4-B).

29. See, Indira Nehru Gandhi, (1975) Supp SCC 1, para 334.

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277

DEMOCRACY

The democratic setup in India has been held to be a part of the basic structure of the Constitution.” In a democracy, the government is by the people, of the people and for the people. The people have the freedom of speech and expression, the freedom to meet and assemble without arms, the freedom to associate, the freedom to move around in any part of the country, the freedom to reside and settle in any part of the country, the freedom to acquire property and the freedom to do any business.*' It may also be said that the guarantee that no person is deprived of his property at the whims and fancies of the government is an essential feature of the democratic setup.” The people perform their duties towards the democracy by paying taxes on the basis of their income and property. However, these freedoms are not unlimited and can be restricted by the government under certain circumstances in the interest of the general public

or in the national interest as a whole.** A person’s property may be taken away by the government for the general good of the people or in order to fulfil the larger goals of socialism that are enumerated in the Directive Principles of State policy; and such person, who had been deprived of his property was to be duly compensated for the same.** The same was not considered as abridging the Fundamental Right to property, but as an attempt to fulfil some wider constitutional goals and aims in the larger interests of the public. 3.4.

RIGHT TO LIFE

The right to life** has been described as one of the most basic and important human right enumerated in Part III.*° But it is not limited to Article 21. Rather, it is inclusive of the Fundamental Rights of accused persons with regard to the protection against ex post facto laws, double jeopardy and self incrimination.” The right to life also includes protection to an arrested person, like the right to be produced before a Judicial Magistrate or the right to consult a legal practitioner, with some exceptions in case of war enemies.** It also provides 30. See, (1973) 4 SCC 225, Sikri CJ (para 292) and, Shelat and Grover JJ (para 582),

Hegde and Mukherjea JJ (para 632), P. Jaganmohan Reddy J (para 1159); (1975) Supp SCC 1, Khanna J (para 198), Mathew J (para 327) and Chandrachud J (para 672); (1980) 3 SCC 625, Chandrachud CJ (para 63). See also, S.R. Bommai v. Union of India, (1994) 3 SCC 1, A.M. Ahmadi J (para 30), P.B. Sawant and Kuldip Singh JJ (with Pandian J concurring) (para 96).

31. Art. 19(1). 32. Arts. 19(1)(f), 31. See, N.A. Palkhivala,

Our Constitution

Defaced and Defiled

(Macmillan, New Delhi 1974) 35 et seq.

33. Art. 19(2)-(6). 34. Arts. 31(2), 31-A, B, C. Fey 1 OPA FA 36. See generally, Maneka I.R. Coelho, (2007) 2 SCC 1. 37 Art, 20: 38. Art. 22(1)-—(3).

Gandhi v. Union of India, (1978) 1 SCC

248. See also,

Basic Structure Constitutionalism

278

[Chap.

for safeguards to those persons who are subject to preventive detention and ar-

rest.2? The right to life, in spirit, also includes the rights against exploitation 1.e.

the prohibition in trafficking of persons and bonded labour amongst children, etc? All these Fundamental Rights are subject to restriction, but these restrictions are to be reasonable and such that the restriction does not undo the basic human right to life. 3.5.

SECULARISM

The constitution framers implicitly recognised the significance of value of secularism and the same was later recognised as a basic feature of the Constitution

by the Apex Court.*! The Indian form of secularism does not mean that the State shall not have anything to do with religion, as religion is a very diverse and sensitive issue.” In fact, it means that any person can have any faith and belief of his choice, he can follow any religion that he wishes to; however, the

State may restrict the practise of such religion in the interest of the general public. Each religious order has the freedom to manage its own affairs without any interference from any outside body, with regard to establishing and maintaining institutions for religious and charitable purposes, own and administer any property, etc.** The government cannot levy any taxes for the promotion of any religion.** The Constitution also prohibits compulsory religious instructions in those educational institutions maintained by the State, unless the same are established by any trust or endowment.” It allows any person attending

such an institution not to be forced to attend such religious instructions.” At the time of drafting the Constitution, there was a fear amongst the mi-

norities that if their rights are not specially protected, they could be wiped out by the majority, and so there were special educational and cultural rights incorporated for the protection of religious and linguistic minorities.** Therefore, the linguistic and religious minorities have been given the right to conserve their language and religion.” They have also been given the right to establish 39. Art. 22(4)-(7). 40. Arts. 23-24. 41. See, (1973) 4 SCC 225, Sikri CJ (paras 283, 292) and, Shelat and Grover JJ (para 582), P. Jaganmohan Reddy J (para 1159); (1994) 3 SCC 1, A.M. Ahmadi J (paras 29-30), P.B. Sawant and Kuldip Singh JJ (with Pandian J concurring) (para 146), Ramaswamy J (para 182), B.P. Jeevan Reddy and Agrawal JJ (para 304). See also, 7.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481. 42. See, Ramaswamy J in S.R. Bommai v. Union of India, (1994) 3 SCC 1. Ibid, para 182. 43. Art. 25. 44. Art. 26. 45. Art. 27. 46. Art. 28(1)-(2). 47. Art. 28(3). 48. See generally, 7.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481. 49. Art. 29.

25]

Is “Golak Nath” partly correct?

279

and maintain educational institutions of their choice, and the State has been prohibited from interfering in their internal matters.°° Thus, these rights are in the form of a protection to the minorities. 3.6.

JUDICIAL REVIEW

The protection offered to the people who enjoy the Fundamental Rights that are enumerated in Part III of the Constitution, is by way of power of judicial review in the Supreme Court and the High Courts. Any person, who is aggrieved by any law such that his Fundamental Rights are violated, has the Fundamental Right to move the Supreme Court to enforce his Fundamental Rights against such law.°' Such Fundamental Rights may be enforced by the courts by issuing certain orders in the nature of the writs of habeas corpus, mandamus, prohibition, certiorari and quo warranto.” These writs can be issued by the court against the State and to quash those laws™ violative of Fundamental Rights. In other words, Articles 12, 13, 32 and 226 provide a mechanism to have an

effective protection of the Fundamental Rights of the people, and hence, have been included in Part III of the Constitution, along with the other Fundamental Rights, The importance of judicial review cannot be undermined and has thus, been held to be a part of the basic structure of the Constitution.» 4. “I.R. Coelho” and the basic structure

The Supreme Court reiterated the principles of the basic structure of the Constitution latest in /.R. Coelho v. State of T.N.°° (I.R. Coelho) when faced with the question whether the laws that were included in Schedule IX were immune even if they contravened Fundamental Rights in Part III. What is 50. Art. 30. 51. Art. 32(1). A concurrent right is found in Art. 226, but the author has not dealt with the same as Art. 226 is not found in Part III. p2sArti32@2).: SaucAst, 12. 54. Art. 13. 55. See, (1973) 4 SCC 225, Khanna J (para 1529); (1975) Supp SCC 1, Khanna J (para 207), Beg J (para 521, 622). Also see, Minerva Mills v. Union of India, (1980) 3 SCC 625; Kihoto

Hollohan vy. Zachilhu, 1992 Supp (2) SCC 65; L. Chandra Kumar v. Union of India, (1997) 3 SCC 261. 56. (2007) 2 SCC 1. There are a few factual errors in the judgement of the nine-Judge Bench. Firstly, as already stated, the Bench noted that Golak Nath was overruled by a majority of 7:6 in

Kesavananda Bharati (para 21). However, 10 judges held that Golak Nath was wrongly decided, and the remaining three signed the summary declaring Golak Nath was overruled. Secondly, the judgment notes that internal emergency was proclaimed two weeks before the decision of the court in Indira Nehru Gandhi, (1975) Supp SCC 1. In reality, the internal emergency was

the imposed about two weeks before the hearing of Mrs Gandhi’s appeal against the order of judgment the High Court of Allahabad, dated 12-6-1975, invalidating her election. The matter, of five of which is reported in (1975) Supp SCC 1, was then referred to a Constitution Bench judges and finally decided in November 1975.

280

[Chap.

Basic Structure Constitutionalism

interesting to note is that the nine-Judge Bench”’ ended up with a single judgement authored by Y.K. Sabharwal CJ. The court held that the Fundamental Rights were perhaps the most significant constitutional control on the working of the government.* The Bench found that the “golden triangle”, comprising of Articles 14, 19 and 21, first enunciated in Maneka Gandhi v. Union of India*®» (Maneka Gandhi), was a part of the basic structure of the Constitution.” These three articles, along with Article 15 were held to be a part of the basic structure.” It was held that to exclude the limitation of Part III to invalidate laws included in Schedule IX would mean to destroy the basic structure.” The court held that Parliament could abridge the Fundamental Rights in Part III of the Constitution, but the same was subject to the basic structure. For this, the court relied on the “rights test” and “essence of rights test” as the determining tests, as reflected in Article 21 read with Articles 14 and 19.® It is submitted that all the Fundamental Rights in Part III revolve around these three Fundamental Rights which form the golden triangle. This submission is supported by the judgment of the court, where it was observed that the Fundamental Rights did not exist in isolated pools, but together provided a comprehensive guarantee against excesses.™ The court also held that the historical background to drafting the Constitution imposed the belief that the essence of each and every Fundamental Right is a part of the basic structure of the Constitution.© Hence, the ratio of Kesavananda Bharati by majority was that, clearly the principles behind the Fundamental Rights in Part III were a part of the basic structure. On a close examination, we find that there is no difference between the finding in /.R. Coelho and Golak Nath. As already discussed, Golak Nath restricted the exercise of Parliament’s power to amend the Constitution so as to ensure that the Fundamental Rights in Part III of the Constitution were not abridged, destroyed or abrogated. The same has been enunciated in /.R. Coelho as to restricting the power of Parliament so as not to destroy the essence of the Fundamental Rights, which is considered as a feature of the basic structure of the Constitution. The only difference is that Golak Nath did not allow an amendment to the Constitution to even abridge a Fundamental Right guaranteed by Part III, whereas, the basic structure does not permit the damage or 57. Y.K. Sabharwal CJ and, Ashok Bhan, Arijit Pasayat, B.P. Singh, S.H. Kapadia, C.K.

Thakker, P.K. Balasubramanyan, Altamas Kabir and D.K. Jain JJ. 58. See, I.R. Coelho, (2007) 2 SCC 1, para 56. 59. (1978) 1 SCC 248. 60. (2007) 2 SCC 1, para 149,

61. Ibid, para 141. 62. Ibid. 63. Ibid, para 151, conclusion (iv). 64. Ibid, para 60. 65. Ibid, para 113.

66. Ibid, para 109.

—

25]

Is “Golak Nath” partly correct?

281

destruction of these Fundamental Rights.” It is submitted that when Golak Nath was decided, the court had no other basis but Article 13 to restrict the power of Parliament with respect to abrogation of Fundamental Rights. That perhaps explains the reasons behind the manner in which the court interpreted of the power of Parliament to amend the Constitution. At the time .R. Coelho was being heard, the court could always fall back on the basic structure doctrine, which was not only enunciated but also well established and accepted.® The only bone of contention has been whether the right to property was a part of this basic structure or not. Though some judges have relied on the observations of Khanna J in Indira Nehru Gandhi to hold that the same is not a part of the basic structure, it must be examined. We have seen that the right to property forms an essential component of a democratic form of government that is envisaged by our Constitution.” As already discussed, the court in /.R. Coelho heid that the “golden triangle” which was first discovered in Maneka Gandhi was a part of the basic structure. It is submitted that when Maneka Gandhi was decided, Article 19(1)(f) was still a part of Article 19. In other words, the 44th Amendment”, by which the right to property was deleted from Part III, was not enacted at the time the “golden triangle” was discovered.”! Hence, it is submitted that when the court referred to the “golden triangle’, it necessarily includes Article 19(1)(f) and hence, includes the right to property. Hence, it is submitted that the sum effect of the ratio of the court in Golak Nath and /.R. Coelho is the same. The court has time and again expanded the basic structure doctrine to include principles which have translated into Fundamental Rights found in Part III of the Constitution. However, the basic structure doctrine is not limited to restricting the amending power of Parliament to Part III of the Constitution but its scope is over the whole of the Indian Constitution. It is submitted that Kesavananda.Bharati only enlarged the scope of the limitations and restrictions imposed on the amending power of Parliament from Part III of the Constitution to the entire Constitution. It is submitted that the Apex Court in .R. Coelho mostly reiterated what was said in Golak Nath, by using the basic structure doctrine enunciated for the first time in Kesavananda Bharati. In 67. H.M. Seervai observed the judgments of Sikri CJ and, Shelat and Grover JJ in Kesavananda Bharati which had overruled the finding in Golak Nath that Fundamental Rights could not even be abridged when they held that Parliament could not abrogate Fundamental Rights by an amendment to the Constitution. It is submitted that the same effect remains today when the test for amendments to the Constitution is basic structure. See, H.M. Seervai,

Constitutional Law of India, Vol. 3 (4th Edn., 2010) 3114. 68. The author submits that this is probably the reason why there was one judgment, while compared to the rest of the cases dealing with constitutional amendments having more . than one opinion. 69. See, N.A. Palkhivala, Our Constitution Defaced and Defiled (Macmillan, New Delhi 1974) 35 et seq. 70. Constitution (44th Amendment) Act, 1978.

71, Maneka Gandhi judgment was delivered on 25-1-1978 whereas, the 44th Amendment

came into effect on 20-6-1979, more than a year after the landmark judgment.

282

Basic Structure Constitutionalism

effect, even today, if a Fundamental Right is abrogated or taken away by any amendment to the Constitution, the same is void. The reason for this is the basic structure doctrine and not the operation of Article 13; however, the effect of both is the same. Hence, the author submits that it is completely incorrect

for one to say that Kesavananda Bharati overruled Golak Nath. In the ultimate analysis of the effect of all the judgments of the court, the stand taken by Subba Rao CJ is vindicated, and Golak Nath is partly correct.

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Property” (1978) 2 SCC (J) 63. N.A. Palkhivala, “Fundamental Rights Case: Comment” (1973) 4 SCC (J) 57.

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Upendra Baxi, “The Little Done the Vast Undone—Some Reflections on Reading Granville Austin’s Indian Constitution” (1969) 9 JILI 322.

V.G. Ramachandran, “Summary of Arguments in the Fundamental Rights Case” (1973) 4 SCC (J) 35.

Subject Index

Ackerman, Bruce,

27

Ambedkar, B.R., 78, 83

Amending Power, Implied Limitations on Beg, 96 Chandrachud, 108 Dwivedi, i01 Hegde and Mukherjea, 37 Khanna J, 76 Mathew, 86 Palekar J, 68 Ray, 50 Reddy, 58 Shelat and Grover, 30 Sikri CJ, 15 Amending Power, Scope of Beg, 95 Chandrachud, 106 Dwivedi, 99

Hegde and Mukherjea, 36 Khanna, 72 K.K. Mathew, Palekar, 67 Ray, 48

82

Reddy, 56 Shelat and Grover, 28 siker@J,/12 Amendment, meaning of Beg J, 96 Dwivedi J, 99 Hegde and Mukherjea JJ, 36 Khanna J, 72 Mathew J, 84 Palekar J, 66 Ray J, 48 Reddy J, 59

Amendment, meaning of (contd.) Shelat and Grover JJ, 26 Sikri CJ, 14

Andhyarujina, R, 133 Andhyarujina, T.R., XIX, 3, 133, 145, 154, 232 Articleds,. X4-5,8; 123.133 145-16, 17618; 20, 22, 36, 37, 43, 44, 45, 46, 47, 48, 52, 56, 57, 58, 61, 66, 68, 70, 74, 84, 88, 92, 93, 94, 96, 102, 107, 148, 176, 188, 189, 190, 198, 199, 203, 237, 238, 248, 273, 274, 281, 282 Article 14, 11, 22, 34, 54, 63, 64, 103, 166, 170; 174, 185; 238, 253; 275 Article 15, 181, 238, 276, 280 Article 16, 166, 276 Article 19, IX, 22, 23, 33, 34, 53, 54, 61, 62, 64, 65, 110, 184, 185, 212, 239, 253, 277, 281 Article 21, 136, 177, 178, 184, 185, 277, 280 Article 31, 9, 22, 23, 24, 25, 33, 34, 41, 42, 43, 44, 52, 53, 54, 55, 61, 62, 63, 64, 65, 70, 71, 76, 78, 79, 80, 81, 92, 93, 94, 103, 104, 105, 110, 111,412, 150;'165)178; 182, 198 Article 32, 6, 78, 165, 238, 241, 246, 279

Article 37, 16, 67, 75, 80, 89, 98, 110, 242 Article 38, 75, 242 Article 39, 23, 53, 54, 61, 64, 65, 70, 75, 16, 78, 79, 80, 91, 92, 93, 103, 104, 111, 178, 242 Article 245, 66, 74, 108

288

Basic Structure Constitutionalism

Article 248, 20, 199

Article 329-A,

136, 137, 163, 176, 184

Article 368, X, XVI, 3, 4, 5, 6, 7, 8, 9, 12, 13, 14, 15, 17, 18, 19, 20, 21; 22,24, 25, 36, 37, 40, 43, 44, 46, 47, 48, 49, 50, 51, 52, 56, 57, 58, 59, 60, 61, 62, 63, 66, 67, 68, 69, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 86, 87, 91, 92, 93, 95, 96, 97, 98, 99, 100, 101, 102, 104, 106, 107, 108, 111, 134, 148, 151, 160, 161, 162, 164, 171, 174, 176, 179, 182, 183, 184, 188, 190, 191, 197, 198, 199, 200, 203, 204, 234, 257, 273, 274 Atkin, LJ, 43, 169, 171

Comparative Perspective (contd.) Elements of Beg J, 97 Chandrachud J, 109 Hegde and Mukherjea, 39 Khanna, 77 Mathew J, 86 Reddy, 60 Shelat and Grover, 31 Sikri CJ, 18 Evolution of, 11, 247-250 Jurisprudential foundations of, 19-20, 201-208, 252-256, 257-272 Conrad, D., 21, 29, 85, 146, 147

Bachawat, RS, 6, 37, 232, 273

Constituent Power, 4, 5, 9, 18, 20, 21, 26, 27, 29, 32, 33, 35, 37, 40, 47, 48, 58, 67-71, 73, 74, 77, 84, 95-98, 99, 100, 104, 107, 162, 164, 172, 176, 183, 184, 188, 191, 198, 199, 200, 201, 203, 204, 205-208, 209, 251 Constitutional Comity, 51, 68, 102, 104 Constitution First Amendment, 5, 49

Barak, Aharon, VIII

Constitution Forty First Amendment,

Basic structure

Constitution Forty Fourth Amendment, X, 281

Austin, Granville, 4, 16, 61, 139, 154, 189, 191 Austin, JL, 259, 266 Austin, John, 90, 162, 185, 202, 203, 205, 264

Applicability of, 166-167, 235 Baxi, Upendra, 4, 10, 16, 21, 82, 85, 86, 88, 89, 90, 103, 104, 107, 112, 174, 175, 231, 237, 241 Bentham, Jeremy, 110, 264, 267, 268

Constitution Forty Second Amendment, 15, 164, 171, 178, 198, 206 Constitution Fourth Amendments,

Constitution Seventeenth Amendment Act, 148

Bhagwati, P.N., 11, 138, 141, 143, 177, 178, 183

Constitution Seventy Fourth

Bhushan, Prashant, Bhushan, Shanthi,

139, 141 136

Blackshield, A.R., 16, 62, 89 B.N. Rau, 16 Bobbitt, Phillip C, 21, 25

Chagla, MC, 117, 118, 120, 146 Churchill, Winston, 120, 128, 129, 154 Comparative Perspective, 228-256 Criticisms Dwivedi J, 101 Palekar J, 68 Ray J, 51

Amendment,

9,

52

Bhagwati, N.H., 117

Bhargava, Vashisht, 5, 273

139

245, 246

Constitution Seventy Third Amendment, 245, 246 Constitution Thirty Ninth Amendment, 136, 137, 138, 162, 163, 176

47,

Constitution Thirty Second Amendment Act, 140, 142 Constitution Twenty Fifth Amendment, 21, 22, 23, 24, 34, 40, 41, 52, 53, 55, 61, 62, 63, 64, 69, 79, 81, 92, 103, 105, 111, 112, 200 Constitution Twenty Fourth

Amendment, 6, 8, 19, 20, 21, 23, 24, 25, 26, 27, 33, 37, 40, 44, 45, 50, 52, 56, 57, 58, 67, 69, 72, 73, 79, 80, 81, 83, 91, 92, 100, 102, 104, 106, 108, 176, 182, 199, 273, 274

Subject Index Constitution Twenty Ninth Amendment Act, 6, 23, 24, 25, 34, 44, 55, 65, 70, 81, 93, 104, 105, 110, 111, 112, 183, 184, 200 Dadachandji, J.B., 146, 149

289

Hitler, Adolf, 146, 155, 238 Holmes, Oliver Wendell, 158, 264, 267

VIII, 59, 83, 153,

Dayal, Raghubhar, 5, 13

illustrative document conception, 21 Indian Independence Act, 9, 16, 26, 77, 86 Islam, Baharul, 178

Delegation, 34, 79, 80, 93, 104

Iyer, Krishna,

Daphtary, C.K., 148, 149

Democracy, VIII, X, 25, 28, 73, 82, 87, 88, 109; 209; 2155258; 266: 277

De, Niren, 7, 137, 145, 149, 150, 151, 155 Dhavan, Rajeev, 4, 18, 22, 30, 59, 85, 107, 139, 211 due process, 22, 88, 161, 235 Dworkin, Ronald, 196, 230, 257

Emergency,

VII, 24, 79, 104, 195,

15, 51, 88, 118, 163, 279

federalism, X, 68, 147, 166, 179, 210, 244 feminist legal theory, 231, 251 Freedom of Expression, 23, 60, 160, 239, 277 Religion, 163, 167, 180, 238, 255, 276, 278

135, 138, 141, 143, 183

Jacob, Alice, 4, 85, 107 judicial activism, 212

judicial process, 3, 7, 78, 90, 109, 153, 163, 168, 183, 185, 206, 237, 248 judicial review, VII, VIII, IX, 3, 4, 7, 8, 10, 19, 23, 24, 25, 28, 33, 34, 39, 41, 45, 53, 54, 55, 65, 78, 79, 80, 81, 89, 92, 93, 94, 96, 101, 102, 103, 104, 105, 112, 155, 163, 164, 165, 167, 171, 174, 177, 178, 182, 183, 195, 198, 201, 203, 204, 206, 210, 232, 233, 234, 279 Kania, Hiralal,

84

Kelsen, Hans, 90, 93, 107, 162, 202, 203, 204, 205

Kennedy, Anthony,

157

Krishnaswamy, Sudhir, XI, 25, 28, 73 Gallie, Walter B, 15

Gandhi, Indira, 9, 24, 72, 76, 78, 85, 87, 97, 98, 108, 110, 135, 136, 137, 138, 139, 143, 151, 162, 163, 166, 170, 171, 172, 176, 177, 183, 184, 185, 189, 192, 233, 246, 250, 275, 276, 279, 281 Gandhi, Mahatma,

212

Gender Equality, XVI, 228, 235, 236, 252

Gokhale, H.R., 135, 149, 150, 154 Goodhart, A.L., 57, 170 Goswami, P.K., 138

19, 82, 83

Marshall, John, 155, 156, 157, 195 Mitter, G.K..,. 5,273 moral choices, 45 moral rights, 51, 89

multi provisional model,

19, 81

natural rights, 7, 16, 51, 74, 85, 88, 91, 106, 210 Noorani, A.G., 147

Habermas, Jurgen, IX

Hart, HLA, 195, 196, 197, 205, 251, 264, 265, 266, 267, 268, 269, 270, 271 161, 189, 190, 237, 273

living Constitution,

Nambyar, M.K., 147

grundnorm, 203

Hidayatullah, Mohammed,

Legislative Field, 55, 62, 92

5, 13, 37, 74,

O’Connor, Sandra, 157 organic interpretation, 19

290

Basic Structure Constitutionalism

Palkhivala, V, VII, XV, XIX, 6, 7, 15,23, 30, 37, 52, 115, 116, 120, 122, 125, 136, 138, 139, 140, 141, 142, 143, 145, 146, 147, 148, 149, 150, 151, 152, 153, 159, 160,

168, 187, 195, 228, 257, 273, 277, 281 Posner, Richard, 3, 156 Precedent, 156, 168-173, 174-176, 183,

185, 248, 250

Scott, Walter, 121, 126, 128, 130 Seervai, H.M., V, VII, XV, XIX, 7, 10, 12, 16, 33, 44, 48, 50, 51, 73, 88, 126, 128, 136, 145, 149, 150, 151, 153, 159, 168,

174, 175: 183; 187993228) 25 2a 274, 281 Sen, Ashok,

136

Separation of powers, 18, 160, 200, 220 Shah; .C-75,.273

Ramaswami, V., 5, 273

Sorabjee, Soli J, 19, 145, 149, 179

Rao, Subba, 5, 13, 37, 147, 189, 210, 273,

Stone, Julius, 168, 170, 206 Summary of Kesavananda Bharati,

274, 282

Ratio, 10, 32, 33, 46, 56, 66, 72, 151, 168-176, 182-186, 248, 251-252, 274, 280-282

Reddy, O Chinnappa, 178 ; Representation of the People Act, 1951, 135, 136 Salmond,

Swaminathan, Govind,

140

Theory of Consequences,

28

Theory of pith and substance, 64 Theory of popular sovereignty, 29 Theory of Structural Unity,

162

10,

134, 139, 174-176, 191, 274

19

Sastri, MPatanjali, 5, 13, 14, 50, 67,153, 188, 189

‘*pathi, PK., 13, 16, 18, 73, 101, 112, 162

Sathe, S.P., X, XIII, 3, 231

Untwalia, N.L., 138, 141.

Scalia, Anton, 156, 263

Scheduled Castes, 243, 245 Scheduled tribes, 245

Vaidialingam, C.A., 5, 13, 273 Venkataramiah, E.S., 178

Schedule IX, IX, 5, 24, 65, 182, 183, 184, 185, 191, 279, 280 Schedule V, 27, 43, 48, 58, 84 Schedule VI, 27, 43, 48 Schedule VII, 75, 93, 244, 273 Schedule X, 165, 179

| Wanchoo, K.N., 5, 13, 37, 232, 273 Wednesbury principles, 10 Weimar Constitution, 155 William O. Douglas, 155 Willoughby, 85

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