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The Fundamental Rights Case
by Surendra Malik *
Cite as : (1973) 2 SCC (Jour) 32

The Fundamental Rights Case has evoked considerable interest very understandably for its significant effect on our Constitution. I venture to place some of the thoughts which occurred to me during the preparation of the headnote (1974) 3 SCC 225 which were earlier published as part of the editorial to the book Fundamental Rights Cases (1951-1973).

In Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, the Full Bench of thirteen Judges of the Supreme Court of India gave its verdict on the most prolonged and contested case on a matter of utmost importance to the Nation. Though the issue to start with related to the validity of the 24th, 25th, 26th and 29th Amendments to the Constitution, the debate widened to cover political issues of the kind of polity the country was destined to have; if the basic framework of Sovereign Democratic Republic was immutable; the extent of abrogation of Fundamental Rights possible; Directive Principles if to override Fundamental Rights, and if sovereignty lay in Parliament and not the people of India and so Parliament could within its right decide the future course of the country without any inherent or implied limitations.

To these vexed questions the most eminent members of our Bar addressed arguments for sixty-nine days from October 31, 1972 to March 23, 1973 and would have continued if not impelled to conclude owing to the impending retirement of the Chief Justice. They spared no ingenuity in framing the arguments and no effort in research work, and cases, treatises, articles and references, both Indian and foreign were cited in abundance.

The Constitutional Bench of thirteen Judges responded with eleven judgments. Only Justices Shelat & Mukherjea and Justices Hegde and Grover teamed up in writing combined judgments.

Though the case primarily involved the validity of the Constitution Amendments and should have been so popularly named, the name 'Fundamental Rights Case' was popularised by the daily newspapers apparently because Kesavananda Bharati was a sequel to Golak Nath which had held Fundamental Rights unamendable.

The Fundamental Rights Case has deprived the Fundamental Rights of their exclusive fundamental character in that there are other features of the Constitution which also form the basic structure or framework of the Constitution and are beyond the amending power. At the same time this case conceded that all the Fundamental Rights can be abridged, though the essence or core of Fundamental Rights cannot be abrogated or taken away as it relates to the basic structure of the Constitution. This must necessarily follow as the essence of the freedoms of speech and expression (including the freedom of the Press) and assembly and association and of movement and residence throughout India and the freedom to choose one's vocation, which form the very foundation of our Democratic Republic structure and ensure the unity of the country cannot be taken away. Nor can the Nation afford to discard its secular character, the protection of the minorities and depressed classes and the very Rule of Law embodied in the principle of equality and safeguard of individual's life and personal liberty against arbitrary action. The Directive Principles are paramount in the governance of the country. That is our goal. Their implementation surely has not altogether been made impossible by the lack of abundant resources. It is the will that has been lacking. After 26 years of independence we still have not attempted a uniform civil code. To pin our failures on the Fundamental Rights being an impediment is to seek an alibi for our failings. How can our freedom to speech and expression, our freedom of assembly, association and movement, our rule of Law be an impediment unless we are contending that the Rule of Law and Democratic set up itself are impediments and a totalitarian State is the answer. We cannot justify our plea of abrogation of the essence and core of all our Fundamental Rights (including the right of essential property). Justice Jaganmohan Reddy has elaborated on the unnecessary sacrifice of Articles 14, 19 and 31 under Article 31-C for the implementation of Article 39(b) & (c). (Paras 1184-1204).

When the issue of implementation of Directive Principles particularly Article 39(b) & (c) was raised and contended that property must be redistributed, no attempt was apparently made to clarify the meaning and scope of "property". Property was assumed to mean the all-embracing concept of property and because the different kinds of property existing in society were not distinguished, the counsels on either side took extreme positions which made decision difficult and still unclear. What kinds of property are necessary for implementation of Article 39(b) & (c) and what is the kind of property for which the payment of "amount", however inadequate, is justified? Would Article 39 justify the acquisition or requisition of a man's personal belongings, his dwelling, his tools and his very means of livelihood — his essential property?

Justice Mathew perceived this situation very clearly. He has clarified this aspect by stating on p. 884:

"The root of the difficulty is that in most of the discussions the notion of private property is used too vaguely. It is necessary to distinguish at least three forms of private property: (i) property in durable and non-durable consumer's goods; (ii) property in the means of production worked by their owners; (iii) property in the means of production not worked or directly managed by their owners, especially the accumulations of masses of property of this kind in the hands of a relatively narrow class. While the first two forms of property can be justified as necessary conditions of a free and purposeful life, the third cannot. For this type of property gives power not only over things, but through things over persons."

Forthrightly he has stated: (p. 884)

"The framers of the Constitution regarded the right to acquire and hold property as a Fundamental Right for the reason that a dignified human life is impossible without it.

The exponents of natural law like Aristotle, St. Thomas Aquinas, Hobbes and even positivists are agreed that right to life and property is the presupposition of a good legal order. Property, according to Aristotle, is an instrument of the best and highest life. Property is the necessary consequence and condition of liberty. Liberty and property demand and support each other.

The doctrine of natural rights has exercised a profound influence upon the conception of private property. In its most modern form it insists that property is indispensable to man's individual development and attainment of liberty. Without dominion over things, man is a slave.

The most that we can claim, as a general principle applicable to all stages of social development, is that without some property or capacity for acquiring property, there can be no individual liberty, and that without some liberty there can be no proper development of character.

Persons without property enjoy no sense of background such as would endow their individual lives with a certain dignity. They exist on the surface; they cannot strike roots, and establish permanency.

In short, the concept of property is not an arbitrary ideal but is founded on man's natural impulse to extend his own personality. In the long run, a man cannot exist, cannot make good his right to marriage or found a family unless he is entitled to ownership through acquisition of property."

So it is only the third kind of property that needs to be acquired and it is only with regard to that kind of property that the right of property may be abridged. It is not therefore surprising that because this distinction in the concept of property was not raised that some of the Judges in their desire to deprive the third kind of property of its 'sacrosanct' character have been forced to take the extreme position of abrogation of the right of property completely and its undiscriminating disregard as an essential feature of the Constitution. It has not been emphasised that with the abrogation of the right to the first two kinds of property our society would cease to be a free society meaning a complete change in the basic structure or framework of society envisaged in the Constitution. It is against this background that one has to understand Justice Khanna who on one hand upholds the basic features of the Constitution but on the other concedes the right of property completely. It is possibly for the same reason that he held none of the Fundamental Rights as essential or relating to the basic structure and therefore beyond the amendatory power. The query put by Mr Palkhivala was formidable. How can you save the other freedoms without saving the right of property. His examples of acquisition of the printing plant and building of a publisher, of the professional assets of the professionals, of the funds of trade unions and of religious denominations resulting in making the other rights hollow and deprived of all vitality put a strong jacket around the whole right of property and prevented any distinction of kinds of property perceived by Justice Mathew. It is submitted that if the kind of distinction referred above is made, Mr Palkhivala's situation could be accommodated since these kinds of property would fall in the second category of Mathew, J., and be wholly protected. So our freedoms, including the right to practice any profession can be eternally enjoyed on the basis of the first two kinds of property and be saved from Parliament's amending power.

Seen from this angle one can understand the apparent contradiction in the stand taken by some of the prominent leaders including Jawaharlal Nehru. On one side they have been cited extensively for their impassioned plea for basic freedoms in free India. The same spirit is seen in the Constituent Assembly during the framing of the Articles on Fundamental Rights. (Paras 84, 178, 482-89, 535-535-A, 645, 651, 1114 and 1159-1162. On the other hand is cited their stand on Parliament's freedom to amend the Constitution with changing times and in particular great strength has been drawn for Parliament's unrestrained power to abrogate all the fundamental rights from the fact that the Constituent Assembly itself, working as Provisional Parliament, passed the First Amendment, and from the speeches made in support thereof. (Paras 882, 1276-77, 1287, 1306, 1360-65, 1393, 1480-81, 1598, 1866-68, 1889, 1910-11 and 2005-06.) It is submitted that it is not right to conclude that because the Provisional Parliament passed the First Amendment, all the Fundamental Rights can be abridged and even abrogated. The abolition of Zamindari system was as much voiced during the National Movement as the desire of a free India for the exercise of basic human rights. The reason why no one questioned Parliament's stand was because the abolition of Zamindari and the Land Reform Movement involved the third kind of property as characterised by Mathew, J. viz. the "estates", the land not worked or directly managed by the owners. The legitimacy of agrarian reform was not questioned and Article 31-A was introduced. Can we say with confidence that the reaction of the members of the Provisional Parliament would have been the same if a move was then made to empower Parliament to abrogate all the fundamental rights as is now sought to be achieved? Can we conclude that the Provisional Parliament would have also permitted the State to take over the other two kinds of property and all the other fundamental rights, which they themselves labelled as fundamental?

It is humbly submitted that the whole problem arose because the third kind of property, agrarian, industrial and capital reserves, which were not being worked or directly managed by their owners, was clubbed with the other two kinds of property viz. private property in durable and non-durable consumer goods and property in the means of production worked by their owners — the essential property, and placed in Article 31 under Fundamental Rights. It is the author's opinion that it is for this reason that Hidayatullah, C.J., has characterised the right of property as the weakest of all the Fundamental Rights. Divide the concept of property as done by Mathew, J. and separate out the third kind of property leaving the first two — the right of essential property, then the Fundamental Right of property becomes as strong as any other, in fact, the mainstay of all the other Fundamental Rights.

The Directive in Article 39(b) and (c) is solely aimed at the third kind of property and it evades logical reasoning as to why the other fundamental rights should be abridged, what to say of abrogation. Thus seen there is no conflict between the Directive Principles and the Fundamental Rights. Both have been placed after much deliberation by the Constituent Assembly and none can be made redundant. The plea that Fundamental Rights are an impediment to the implementation of Directive Principles is deceptive and mischievous and intended to cover our failings.

Article 39(b) calls for distribution of ownership and control which mean that private ownership and control will be expanded and therefore nationalisation of private industry cannot be read into distribution. 'Distribute' does not mean deprive. To "distribute" according to Webster's New World Dictionary means, "to divide and give out in shares; allot" and according to Concise Oxford Dictionary it means, "Deal out, give share of to each of a number;". So distribution does not exclude the original owner. He is only to be deprived of the part which he does not work. So it is the third kind of property which has been referred to in Article 39(c) while talking of concentration of wealth and means of production.

To contend that capital or land or machinery or such means of production as are producing should be taken away is to cut the very roots of our economic system. No amount of slogans and solemn declarations can make the dream of Directive Principles true if the very act of production at all levels, individual or corporate is struck with the axe of nationalisation.

It is in the author's opinion that the way the concept of property was considered as one indistinguishable whole again explains the position taken that distribution includes nationalisation. In the attempt to take control over the third kind of property the first two kinds have also been denied their status of Fundamental Right and so mode of distribution by State was not seriously considered. It may also be emphasized that though support for validation of Article 31-C has been sought from Article 31-A by calling it a measure corresponding in the industrial field to agrarian reform, the corresponding idea of distribution has not been extended. If under agrarian reform land is to be distributed to the landless, why not distribution of the resources and means of production to the jobless engineers and the educated unemployed. Ownership and control must be distributed under Article 39(b) to the citizens themselves. The language of Article 39(b), it is humbly submitted, does not support nationalisation. Establishment of State enterprise at part and in competition with the citizen must be distinguished from establishment of State monopoly through glorified nationalisation by confiscation of citizens' properties presently used by them in the act of production of goods and services.

Let us hope that Parliament heeds the following sentiment expressed by Justice Chandrachud, (para 2141)

"We are all conscious that this vast country has vast problems and it is not easy to realise the dream of the Father of the Nation to wipe every tear from every eye. But, if despite the large powers now conceded to the Parliament, the social objectives are going to be a dustbin of sentiments, then woe betide those in whom the country has placed such massive faith."

* Editor: Supreme Court Cases. Return to Text

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