The Constitution 24th Amendment Act And 25th Amendment Bill
by V.G. Ramachandran,
Cite as : (1971) 2 SCC (Jour) 11
Momentous changes are sought to be effected by what has been called the Constitution 24th and 25th Amendments. We seek to discuss it mainly because they affect:
(i) The rights, liberties and immunities of citizen of India;
(ii) The extent of the judicial power that can go to the aid of the citizen in the assertion of his natural and fundamental rights as against State action;
(iii) The supreme sovereignty of the Constitution of India over the three limbs of Government, namely the legislature, the Judiciary and the Executive;
(iv) The extent of legislative power visualised in the Constitution of India of 1950.
If a new stand is taken that the Constitution of India is not supreme and that Parliament has superior powers to change any provision of the Constitution, then it follows that the Judiciary and the Executive are but subordinate to the will of Parliament as expressed in any legislative measure. All informed jurists and men of public affairs were hitherto under the impression that each of the three wings of Government, the legislature, Judiciary and the Executive were sovereign only within the spheres allotted to each one of them under the Constitution; that the heads of three wings were asked to swear only to uphold the Constitution and work it; that each wing had to be a check on the other was considered healthy; the Judiciary to interpret Laws and strike down such of them as violate the Constitutional Provision; the legislature to entertain impeachment resolution against Judges guilty of gross misbehaviour or incapacity duly proved and to remove them if the resolution secured two-thirds majority. These salutory checks merely indicated that the Constitution is supreme and it will veto any law as ultra vires through courts of law, and that it will remove irremovable Judges on the ground of proved misbehaviour or incapacity through the machinery of the legislature. Thus it was stated by Patanjali Sastri, C.J., in V.G. Row case, that it was not a pleasant task for the Court to strike down a legislation passed by Parliament and that it had to do so only as it was a solemn duty cast on the Court as the sentinel on the quivive when a citizen's basic rights guaranteed in Part III of the Constitution were violated by State action.
It was in the Golaknath case that the majority view expressed that Parliament's power to curtail the rights in Part III of the Constitution was violative of Article 13, read with Article 368 of the Constitution. This decision appears to have disturbed many politicians who hitherto had banked on such a power as expressed in Sankariprasad case in 1951. The First, Fourth and Seventeenth Amendments were passed and the Supreme Court had affirmed the amendments under the Sankari Prasad doctrine. So Golaknath case in 1967 came as a shock treatment to the power so far erroneously exercised by Parliament. If the Court had said the same in the very beginning the position would not have been so disconcerting.
But what is the correct position? Is it a matter only of the power of the Judiciary and the power of Parliament or does it also concern basically the rights of the citizen? If it is a mere race for power, not only of Parliament or the Judiciary, the Army may also have a hand in it if the executive so wish it or not. In a democracy based on a written Constitution where basic rights are guaranteed to the citizen, assuring him also of the remedies therefor, are those rights not so natural and fundamental as not to brook any interference by Legislative action? What then is the import of the famous Nehru Report on Fundamental Rights when it declared "our first care should be to have our Fundamental Rights guaranteed in a manner which will not permit their withdrawal under any circumstances".(Emphasis added)
These words remind us also of the sacred promise of Shri Jawaharlal Nehru himself as the chief architect of another report on Fundamental Rights in 1947. Therefore it was that our founding fathers formulated in Article 368 the amending process so as not to affect Part III of the Constitution. Chief Justice Subbarao and Hidayatullah, J., were right when they opined in the Golaknath case that only constituent power and not constitutional power can interfere with the rights in Part III. They declared that Parliament a creature of the 1950 Constitution possessed only the constitutional power under Article 368 and that the constituent power went back to the people as soon as the Constituent Assembly was dissolved. This is to say Parliament cannot claim any power other than that what has been expressly given under the Constitution. The rest (that is, the powers not given, e.g. constituent power) goes back only to the people. This is constitutional jurisprudence acknowledged all the world over. Do our Legislators propound that such constituent power also resides in Parliament? The analogy of British Parliament is no good since Parliament is supreme in the United Kingdom and courts cannot declare any law of that Parliament as ultra vires.
It follows that if Golaknath case is not the last word, the Government should get a clarification or a modification of the doctrine only at the hands of the Supreme Court. But there has been an endemic disease in the exercise of legislative power from 1950 to 1970, in that whenever a court verdict went against the State as to the vires of a particular law, the legislature never cared to wait for any reversal of judicial opinion. They always resorted to rectification by another law which would have as its preamble 'notwithstanding any decision of courts to the contrary' or words to that effect. The late Mr M.R. Jayakar questioned this as early as in 1951-1952 when the First Amendment to the Constitution was passed. He advised that to 'tinker' with the Constitution is very bad. Since 1952 several amendments have been passed. We wonder if the present series of amendments are the last! These two amendments are not 'tinkering' with the Constitution. It is a veritable slaughter of the Constitution.
We are sorry to use the word 'slaughter'. We are tempted to feel very sad indeed for this unhappy slaughter unhappy in the sense it portends no good for anybody, the people or the Government. It lowers the prestige of the legislature as well as the Judiciary. When our founding fathers forged this Constitution they were well aware of the social and economic urges in the country. But they were anxious that the progress must be gradual and stable and not revolutionary. That is why they envisaged the rights to be fundamental in Part III subject to reasonable restrictions in public interest. They further enunciated in Part IV the Directive Principles of State Policy which may be translated into reasonable restrictions of the rights in Part III by law from time as conditions justified them. Changes made overnight during national poverty only increase poverty when there is no corresponding effort at production and increase of wealth. It is equally true that social and economic conditions cannot be improved merely by legislation. It would appear that the people who looked for a Utopia are being fed by a spate of legislation conferring legislative Power. For whose benefit is this? Is it for the political party in power or for the people?
Viewed in this light it may be satisfying to the political party commending majority in Parliament to push forward these amendments (24th and 25th). The protagonists of these amendments declare that they are meant to bypass the effects of Golaknath doctrine and to assert the supremacy of Parliament which they feel is badly damaged by the Golaknath decision.
We pause to ask if the public purpose involved in the amendments is merely to assert the supremacy of Parliament? Do the people's rights and difficulties come anywhere in the picture? What matters to the people if Parliament assumes more Power? What really matters to the common man is how Parliament is going to protect him in the matter of safeguarding his rights in Part III of the Constitution. The common man had been assured that the rights in Part III are sacrosanct. The Preamble to the Constitution assures the individual of social and economic justice, liberty and dignity of the individual. This assurance is carved out in Part III and he is given a remedy therefor under Articles 32 and 226. The basic structure of the Constitution is this assurance to the individual of his rights in Part III, as also: the separation of powers envisaged in the Constitution, the role to be played by the Judiciary, legislature and the Executive under the supremacy of the Constitution and lastly the promise implicit in Part IV by the Executive to carry out the directives of social and economic welfare of society as a whole but not so as to oust the individual's rights in Part III altogether. If Part III vanishes, Part IV will be the national charter based on unalloyed communism. But our founding fathers envisaged a Parliamentary Cabinet system in a federal democracy of a republican character. So there is no scope for revolutionary ideas changing the very basic structure of the Constitution. We regret to say the provisions of the 24th and 25th amendments do change this very basic structure.
Can Parliament do so? That is the question and the political party in majority answers it by saying that Parliament can. The 24th Amendment itself proclaims that Parliament now exercises its 'constituent power' in amending Article 368, that Article 368 provides for amendment of any provision in the Constitution as well as the procedure therefor; that Article 13 is also amended to make it inapplicable to any amendment of the Constitution under Article 368. We would venture to ask as to where was this 'Constituent Power' when Article 368 was originally framed? If it did not reside in Parliament, then, how can it come in now; if it had that power even then in 1948-50, how was it that Article 368 did not expressly say so?
We cannot help stating that the constituent power went back to the people who are the ultimate repository of the real sovereign power. They can confer such power on a New Constituent Assembly or even in the Parliament on a specific referendum on the question. It is argued if under Entry 97 of List I, Parliament envisages a machinery for evolving a New Constituent Assembly, will that not be a creature of Parliament? If the creature of Parliament can exercise the constituent power, cannot Parliament itself wield or exercise it?
We beg to submit such an assumption is erroneous. Once Parliament enacts a Law by which a Constitution Assembly is formed, the present Parliament is deemed to be dissolved. The Constituent Assembly may be composed of many members of Lok Sabha, Rajya Sabha, State legislature, and varied special interests as commerce, trade, labour, the learned professions, etc. Such an assembly on its formation becomes fully the people's representatives met to modify the basic structure of the present Constitution. In such an event the sovereign constituent power goes from the people to this Assembly of the People. If such an assembly says 'Part III must go and Part IV should be fully exercised and enforceable in Courts of Law' there is nothing to prevent it. The individual's rights may then be subordinated wholly to the State on the pattern of the socialistic countries as U.S.S.R., Yugoslavia, etc. Once such a new Constitution is passed and it also provides for a People's legislature, then a New Parliament has to be ushered in. This is what Chief Justice Subbarao meant. All this will take some time since Parliament is to create the Assembly, dissolve itself and then come into being after the people's verdict is known as to the future Constitution of the land. It may be this may take from two to three years or even less. An interim Government with Rashtrapathi as the Head with advisers at the Centre and Governor with advisers at State level will be the natural sequence.
All this obviously is not to the taste of the political parties in power. Ergo by a kind of silent legislative revolution, the 24th Amendment has been passed. The 25th Amendment also is likely to be passed possibly with a few changes. But the question remains, is this proper and legal? Will the Supreme Court uphold the constitutionality of the 24th Amendment? Will Golaknath be reversed? So much has been stated bringing down the prestige of the Judiciary and we wonder if in this atmosphere surcharged with emotions, there will be a fair deal so far as the individual citizen is concerned. It is not a question of the supremacy of the Judicial or Legislative Power. It is a question of survival of the basic natural rights of the Citizen. Would heavens have fallen if only the party in power had either
(i) Waited for some more time a year or two to see if the Supreme Court by itself will review the Golaknath doctrine;
(ii) Or had sought a specific mandate from the people by a referendum on the sole question 'that Parliament may claim the power to amend or alter any provision in Part III of the Constitution';
(iii) Or (if they could wait for some more time) to call for a fresh Constituent Assembly to forge a new Constitution?
But the legal advisers to the Government and the political leaders appear to be averse to any of the above alternatives. They have proceeded on the clear footing that Parliament is supreme even over the Constitution. It remains to see whether the Courts will uphold this stand of the legislature. If they also uphold the amendments, will it be justifiable to call the present Constitution as amended by the 24th and 25th Amendments as the Constitution of India? Will it not be more appropriate to call it, The Government of India Act, 1971?
We regret to say that wisdom is solely claimed by the Legislators in matters of legal and constitutional jurisprudence. Surely they must consider the views of well-known jurists of acknowledged merit in India and elsewhere. If such consultation is not to be had at all, then, it would appear that legal sanction for the usurpation of the constituent power in Parliament is greatly open to question. The Press in India (the majority of them) have largely in their editorials, characterised the 24th Amendment as too sweeping in its ambit and of dubious legality. One Editor dubbed Part III as 'unfundamental rights'! It will be better if Part III is openly erased and Part IV completely adopted. That will be a straightforward way of ushering in communism instead of by the colourable exercise of non-existing Legislative Power. The 'Hindu' characteristically pointed out in its editorial on 6th August, 1971, "All change and growth whether political or biological, have to conform to the basic laws of their province, or otherwise such growth would soon be found to be cancerous and self destructive. And even if certain urgently needed socio-economic changes call for a cribbling and cabining of the right property, the sweeping power conferred on Parliament by the 24th Amendment to tamper with all the rights, including the right to freedom of association and of religion, are such that it is not surprising that some leaders of minorities and some 'committed' socialists have been alarmed over the grim possibilities."
It is a tragedy that the prevailing view among Legislators is that they effectively represent public opinion on all issues not specifically focussed in their election manifesto. If only public opinion is gauged by a referendum on the specific issues as raised in the 24th and 25th Amendments, we will know that our political bosses are living in a dream-land of their own. The power and strength they command by majority appear to give them this assurance, whether the people like the reform or not. The political parties, if they act as trustees of the people will be eager to go into such an enquiry and referendum. But they act not as trustees, but as masters of the people who by their very nature are passive spectators. And that is the real trouble. There are a few vociferous in legal gentry who are prepared to cite bad jurisprudence in support of the amendments. It is a pity in democracy the vociferous few have the upper hand over the mute multitude, who are bereft of real leadership in their ranks. Renowned jurists as Shri M.C. Chagla, Shri K. Santhanam, Shri Palkhiwala and all the surviving members of the Constituent Assembly as M/s Shivarao, Frank Anthony, etc., are all against the retrogade measure the 24th Amendment. They are equally so against the 25th Amendment. MrM.C. Setalvad, however, would support the 24th Amendment since according to him Golaknath was wrongly decided. Even MrM.C. Setalvad opposes the 25th Amendment.
The 25th Amendment is very drastic in as much as the word 'compensation' in Article 31 is to be replaced by the word 'payment'. Further the new clause (2) of Article 31 would say that acquisition laws should not be questioned in a court of law for the payments being made partly or wholly in a non-cash form. A new Article 31(c) immunises legislation undertaken to fulfil two directive principles in Article 38(b) and (c) from challenge in a court of law for any infringement of the rights guaranteed under Articles 14, 19 and 31. The Presidential assent is hereafter a 'shall', to such Bill. He can no longer remit it back to the House for reconsideration. All this smacks of totalitarianism and hurry to achieve socialism instantly overnight! Socialistic doctrines cannot be implemented by mere legislation. There must be a prior development in economic and social spheres as also an awareness in the people for the need of such changes. What is good for the public, the people know better than the politicians.
So, if the 25th Amendment also is passed as an Act, then what remains of the Judicial Power is the okaying of public purpose for any acquisition law. It must be stated that in this sphere the Judiciary had not exercised that care and diligence which it ought to have. It was satisfied even if there was a whisper of public purpose in the preamble of the Act or in the objects and reasons. Even if it was not expressly mentioned the Judges accepted governmental declarations as prima facie acceptable. If this leniency as to good intentions is the rule, then the confiscatory power of the State can be lawfully put to good use to liquidate all private rights of the citizens. When Courts cannot question acquisition laws except in regard to public purpose, compensation being no longer any impediment to the Governmental craze for acquisition. Where does all this lead to in Indian democracy? It yet remains to be seen if the rest of the Indian Constitutional fabric will survive after the main onslaught committed by the aforesaid two amendments. We only hope that the better informed politicians, jurists and publicists will yet evolve some way to solve these constitutional riddles. The Judiciary and the legislature must be helped in these directions. The basic freedoms of the individual so loudly proclaimed in the Preamble of the Constitution, should not be allowed to disappear into 'nothing'. We plead for a deep consideration of all these aspects in public interest. Those in power who have pledged to safeguard the Constitution should show their allegiance by practice than by way of colourable user of precept.