CONSTITUTIONAL LAW

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Basic Features of the Constitution*
by P.P. Rao**

Cite as : (2000) 2 SCC (Jour) 1

I have selected a topic which I doubt whether Sir Alladi would have comprehended during his lifetime. Almost two decades after his demise, the Supreme Court declared in Kesavananda Bharati v. State of Kerala1 that Article 368 did not enable Parliament to alter the basic structure or framework of the Constitution. This decision is not just a landmark in the evolution of constitutional law, but a turning point in constitutional history. No other court in the world had taken this position. Subsequently, the Supreme Court of Bangladesh2 adopted the doctrine of basic structure relying on Kesavananda Bharati1. In Pakistan the Lahore High Court3 and the Baluchistan High Court4 took the same view but not the Supreme Court5. The new Constitution of Nepal (1990) contains some provisions which cannot be amended at all. The power of amendment is subject to the restriction that its exercise shall not cause prejudice to the spirit reflected in the Preamble of the Constitution. The Preamble refers to basic human rights of every citizen of Nepal, adult franchise, parliamentary system of Government, constitutional monarchy, multi-party democracy, etc. It also speaks of an independent and competent system of justice and the rule of law.6

The theory of basic structure has a background rooted in the right to property. The Congress Party was committed to land reforms long before independence. The Constitution-makers in their enthusiasm to guarantee fundamental rights to the people incorporated provisions similar to Section 299 of the Government of India Act, 1935, in Article 31 conferring the right to property in an unqualified manner. After the dawn of independence, the State Legislatures lost no time in enacting land reforms. The Patna High Court struck the first blow when it declared the Bihar Land Reforms Act, 1950 arbitrary and violative of Article 14. The slab system of compensation provided for the affected zamindars was found to be discriminatory.7 It came as a rude shock to the framers of the Constitution whose mindset was different. Speaking on the Draft Constitution, Jawaharlal Nehru had said in the Constituent Assembly on 10-9-1949:

"The policy of the abolition of big estates is not a new policy but one that was laid down by the National Congress years ago. So far as we are concerned, we, who are connected with the Congress, shall, naturally, give effect to that pledge completely - one hundred per cent - and no legal subtlety, no change, is going to come in our way. That is quite clear. We will honour our pledges. Within limits, no Judge and no Supreme Court will be allowed to constitute themselves into a third chamber. No Supreme Court and no judiciary will sit in judgment over the sovereign will of Parliament which represents the will of the entire community. If we go wrong here and there, they can point it out; but in the ultimate analysis, where the future of the community is concerned, no judiciary must come in the way. Ultimately, the whole Constitution is a creature of Parliament."8

Parliament could not remain complacent after the judgment of the Patna High Court. The Constitution (First Amendment) Act, 1951 was the legislative response to the legalistic interpretation of fundamental rights by the judiciary. Moving the amendment, Jawaharlal Nehru said:

"Even in the last three years or so, some very important measures passed by the State Assemblies have been held up. No doubt, as I said, the interpretation of the courts must be accepted as right but in the meantime you, I and the country have to face social and economic upheavals. How are we to meet this challenge of the times? ... Therefore, we have to think of big changes and that is why we thought of amending Article 31."9

The Fourth Amendment Act, 1955 and the Seventeenth Amendment Act, 1964 were likewise necessitated by the interpretation of the right to property by the Supreme Court10. Successive amendments not only made changes in the provisions relating to the right to property, but also enlarged the Ninth Schedule by including a large number of Acts. The Seventeenth Amendment was challenged in I.C. Golaknath v. State of Punjab11 on the ground that the impugned amendment was "law" within the meaning of Article 13 and it violated the right to property conferred by Article 31. Two Constitution Benches of the Court had already repelled a similar contention, first in Sankari Prasad Singh Deo v. Union of India12 and then in Sajjan Singh v. State of Rajasthan13. While the decision in Sankari Prasad12 was unanimous, in Sajjan Singh13 it was by a majority of 3:2. M. Hidayatullah and J.R. Mudholkar, JJ. doubted the correctness of the law declared in Sankari Prasad12.14 In Golaknath11, a Bench of 11 Judges by a slender majority of 6:5 declared that an amendment of the Constitution was "law" within the meaning of Article 13(2) and was therefore subject to Part III of the Constitution. The Court overruled the decisions in Sankari Prasad12 and Sajjan Singh13. Chief Justice Subba Rao invoked the doctrine of prospective overruling in order to save the amendments already made including, strangely, the impugned amendment as well. In effect, Golaknath11 amounted to a warning to Parliament not to amend the Constitution in future so as to abridge or take away any of the fundamental rights enshrined in Part III as interpreted by the Court. The ruling placed a serious fetter on the amending power of Parliament which Parliament was however not prepared to accept. By the 24th Amendment, Article 368 was amended to get over Golaknath case11. The amended Article 368 enabled Parliament, in exercise of its constituent power, to amend by way of addition, variation or repeal any provision of the Constitution in accordance with the procedure laid down therein. Further, it declared that nothing in Article 13 shall apply to any amendment made under Article 368. Parliament asserted itself once again by enacting the Constitution (Twenty-fifth) Amendment Act, 1971 substituting the word "amount" for the word "compensation" in Article 31(2) in order to avoid judicial review of "compensation". Clause (2-B) was inserted in Article 31 declaring that nothing in Article 19(1)(f) shall affect any such law as was referred to in Article 31(2) as amended. Article 31-C was added to insulate the laws giving effect to the directive principles specified in Article 39(b) or (c) from challenge on the ground of violation of Articles 14, 19 and 31. It also provided that no law containing a declaration that it is for giving effect to these directive principles shall be called in question in any court on the ground that it does not give effect to these directive principles. The 29th Amendment included in Schedule IX the Kerala Land Reforms (Amendment) Acts, 1969 and 1971 making them immune from attack on the ground of violation of fundamental rights.

The validity of the Twenty-fifth Amendment was challenged in Kesavananda Bharati v. State of Kerala1 along with the Twenty-fourth and Twenty-ninth Amendments. As the correctness of the law declared in Golaknath11 was in issue, a Bench of 13 Judges was constituted to hear the case. While upholding the validity of the 24th and the 29th Amendment Acts and Section 2(a) and (b) and the first part of Section 3 of the 25th Amendment Act, 1971, the Court by a majority of 7:6 struck down the second part of Section 3 which made the declaration that the law was immune from judicial review as it was made for giving effect to the directive principles of the State policy final. The Court overruled Golaknath11 and declared that Article 368 did not enable Parliament to alter the basic structure or framework of the Constitution. The Judges made no attempt to define the basic structure of the Constitution in clear terms. S.M. Sikri, C.J. mentioned five basic features:

1. Supremacy of the Constitution.

2. Republican and democratic form of 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.

He observed that these basic features are easily discernible not only from the Preamble but also from the whole scheme of the Constitution. He added that the structure was built on the basic foundation of dignity and freedom of the individual which could not by any form of amendment be destroyed.

J.M. Shelat and A.N. Gover, JJ. added three more basic features to the above list:

1. Sovereignty of the country.

2. The 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.

3. The unity and the integrity of the nation.

K.S. Hegde and A.K. Mukherjea, JJ. mentioned among other basic features, the mandate to build a welfare State and egalitarian society. They clarified that these are only illustrative and not exhaustive of all the limitations on the power of amendment of the Constitution. P. Jaganmohan Reddy, J., while observing that the elements of the basic structure are indicated in the Preamble and translated in the various provisions of the Constitution listed the following features: (1) sovereign democratic republic; (2) justice - social, economic and political; (3) liberty of thought, expression, belief, faith and worship; and (4) equality of status and the opportunity. He asserted that in a sovereign democratic republic, parliamentary democracy, the three organs of the State, certainly constitute the basic structure. He too realised the difficulty in enumerating all the basic features of the Constitution and observed that the fact that a complete list of these essential elements constituting the basic structure are not enumerated, is no ground for denying that these exist. H.R. Khanna, J., in his tilting judgment simply observed that the words "amendment of the Constitution" with all their wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure or framework of the Constitution. It would not be competent under the garb of amendment, for instance, to change the democratic government into dictatorship or hereditary monarchy nor would it be permissible to abolish the Lok Sabha and the Rajya Sabha. The secular character of the State according to which the State shall not discriminate against any citizen on the ground of religion only cannot likewise be done away with.

Thus, while 7 out of the 13 Judges boldly declared that the basic structure or the framework of the Constitution could not be altered by Parliament by amending the Constitution under Article 368, there was no consensus among these Judges as to the precise content of the basic structure or framework of the Constitution. Therefore, "basic structure" remains a vague and undefined concept, at least as vague as most of the basic features illustrated by the seven Judges. This is the weakness of the doctrine. At the same time in the folds of vagueness of basic structure lies limitless judicial power. This single decision has deflected the balance of power decisively in favour of the judiciary at the cost of Parliament and cast a cloud of uncertainty over the amending power. Previously Parliament had the last word in law-making and amending the Constitution. Now the Supreme Court has the final say. Amendments to the Constitution are made amenable to judicial review. This far-reaching decision pronounced on 24-4-1973 had its immediate repercussions. Within two days, the Union Government retaliated by superseding the three seniormost puisne Judges, J.M. Shelat, K.S. Hegde and A.N. Grover and appointing the fourth A.N. Ray, J. as the C.J. to succeed Chief Justice S.M. Sikri who retired on 25-4-1973. All the three Judges resigned immediately, two of them with effect from the afternoon of 30-4-1973 and the third with effect from 31-5-1973. Almost the entire Bar of India rose in protest against the supersession.15

Former Chief Justice K. Subba Rao in an article on the two judgments Golaknath11 and Kesavananda Bharati1, expressed the view:

"The existence of a remote judicial control may only act as a brake against hasty and unreasonable legislative and executive action and as a form of guarantee to the public against instability. The stability of the Constitution stabilises the State."16

Scholars like Prof. P.K. Tripathi and Prof. Upendra Baxi strongly criticised the judgment.17 Commenting on Kesavananda Bharati1, Justice S. Ranganathan in "Dr Alladi Memorial Lecture on Four Decades of the Indian Constitution" delivered in 1988 observed:

"It does not seem likely that the Constitution-makers intended to repose in the judiciary the power to pronounce even on the validity of a constitutional amendment (otherwise than on the ground of its not having been made in accordance with the procedure outlined in the Constitution). Time alone can tell whether the present interpretation that the 'basic structure' is beyond amendment, will endure after the 42nd Amendment or whether any future situations would arise necessitating a revision of the concepts as enunciated in the judicial decisions till today."18

A common feature of the decisions in Golaknath11 and Kesavananda Bharati1 is the wafer-thin majority. It shows that two views are possible on the issues involved. It also shows that the dividing line between constitutional law and constitutional politics is very thin indeed. Even in Golaknath11, the Judges who were in a minority strongly felt that an unamendable Constitution would not be conducive to progress. For instance, R.S. Bachawat, J. expressed the unhappy situation thus:

"A static system of laws is the worst tyranny that any Constitution can impose upon a country. An unamendable Constitution means that all reform and progress are at a standstill. If Parliament cannot amend Part III of the Constitution even by recourse to Article 368, no other power can do so."19

The constitutional limitation in the form of basic structure came to be appreciated better when Parliament enacted the 39th Amendment which inserted Article 329-A placing a dispute regarding the election of a person holding the office of Prime Minister or Speaker beyond the purview of judicial review. The sole object of the exercise was to save Indira Gandhi's election, after it was set aside by J.M.L. Sinha, J. of the Allahabad High Court. In Indira Nehru Gandhi v. Raj Narain20, a Constitution Bench of the Supreme Court analysed the various judgments delivered in Kesavananda Bharati1 in order to ascertain the content of the basic structure for judging the validity of the impugned amendment. The amendment was made brushing aside the opinion of Attorney General Niren De. He felt it was sheer madness. The Constitution Bench comprised H.R. Khanna, J. and four of the dissenting Judges in Kesavananda Bharati1. Following the ratio of Kesavananda Bharati1, the Court declared that the 39th Amendment violated the basic structure of the Constitution, but the Judges differed in their perception of the basic structure and its application to the case on hand. While some Judges including Ray, C.J. held that the 39th Amendment violated the rule of law, H.R. Khanna, J. held that it was subversive of the principle of free and fair election which is an essential postulate and basic structure of the Constitution. K.K. Mathew, J. held that it was outside the scope of the constituent power.

The difficulty in applying the law declared in Kesavananda Bharati1 to specific cases was once again noticed in Minerva Mills Ltd. v. Union of India21 wherein the validity of clauses (4) and (5) of Article 368 as inserted by the 42nd Amendment was challenged. Section 55 of the 42nd Amendment Act, 1976 insulated Constitution amendments made under Article 368 before or after the commencement of Section 55 from judicial review. Clause (5) clarified 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 the Constitution under Article 368. The Court declared that Parliament cannot in exercise of the limited power of amendment contained in Article 368 enlarge that very power into an absolute power. On the question of validity of Section 4 of the 42nd Amendment Act, which enlarged the scope of Article 31-C by substituting the clause "all or any of the principles laid down in Part IV" for the clause "the principles specified in clause (b) or (c) of Article 39" Bhagwati, J. disagreed with the majority. Article 31-C as inserted by the 25th Amendment saved laws giving effect to the directive principles contained in clauses (b) and (c) of Article 39 only on the ground of violation of Article 14 or Article 19. The 42nd Amendment enlarged the scope of Article 31-C to save laws giving effect to all or any of the directive principles of State policy. While the majority declared Section 4 of the Amendment Act unconstitutional on the ground that it circumvented Article 32 by withdrawing totally the protection of Articles 14 and 19 which confer rights essential for the proper and effective functioning of a democracy in respect of a large category of laws, P.N. Bhagwati, J., declared that Section 4 by giving primacy to the directive principles over fundamental rights in case of conflict between them, did not damage or destroy the basic structure of the Constitution and the amended Article 31-C was valid. In Waman Rao v. Union of India22 the Supreme Court applied the doctrine of prospective overruling to the law declared in Kesavananda Bharati1 by holding that all amendments to the Constitution which were made before 24-4-1973 were valid and the amendments made on or after that date were open to challenge on the ground that all or any of them were beyond the constituent power of Parliament being violative of the basic structure of the Constitution.

In Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd.23 another Constitution Bench declared that the majority view in Minerva Mills case21 on the validity of Article 31-C as amended by the 42nd Amendment Act was obiter. The Bench was of the view that Kesavananda Bharati1 having upheld Article 31-C as inserted by the 25th Amendment Act, 1971, when its scope was confined to laws giving effect to clauses (b) and (c) of Article 39, by parity of reasoning, the 42nd Amendment which enlarged the scope of Article 31-C covering laws giving effect to all or any of the directive principles of State policy could not be held to be unconstitutional. Chinnappa Reddy, J. speaking for the Court observed that the dialectics, the logic and the rationale involved in upholding the validity of Article 31-C when it confined its protection to laws enacted to further Article 39(b) or (c) should, uncompromisingly lead to the same resolute conclusion that Article 31-C with its extended protection is also constitutionally valid. In the early fifties when Parliament was keen to push through radical socio-economic reforms, the judiciary put speed breakers on the way. In the late seventies and early eighties when the court was in a mood to give a fillip to the directive principles, Parliament and the State Legislatures did not take full advantage of the situation. The result is obvious. The directive principles of State policy still remain a distant dream for "We, the people of India".

Let us now turn to a few individual basic features:

A. Rule of law

The rule of law is a magnetic and multi-dimensional concept. In expounding the rule of law as a characteristic of the English Constitution, Prof. A.V. Dicey confined its scope to three kindred conceptions. In the first place, the rule of law meant absence of arbitrary power on the part of the Government. Next it meant that no man is above the law and every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals, i.e. equality before the law or the equal subjection of all classes to the ordinary law of the land, administered by the ordinary law courts. The third meaning given by Dicey is that the law of the Constitution is not the source but the consequence of rights of individuals, as defined and enforced by the courts. This last meaning is out of place in India. Sir Ivor Jennings in his book The Law and the Constitution, critically examined the three meanings of the rule of law given by Prof. Dicey. He commented that Dicey was imagining a Constitution dominated by the doctrine of laissez-faire. According to Jennings, "the truth is that the rule of law is apt to be rather an unruly horse". It implies many notions which are imprecise: a State regulated by law, law and order, separation of powers, since the fusion of powers in one authority is dictatorship or absolutism. He adds:

"It contains also the notion of equality, a notion whose scope however is as imprecise as the notion of the rule of law itself. It assumes that among equals the laws should be equal and should be equally administered, that like should be treated alike."24

In S.G. Jaisinghani v. Union of India25 the Supreme Court relying on Dicey observed:

"It is important to emphasise that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions ... should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law."26

In State of Orissa v. Dr Binapani Dei27 the Court held:

"If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case."28

In State of M.P. v. Thakur Bharat Singh29 the Court reiterated:

"We have adopted under our Constitution not the continental system but the British system under which the rule of law prevails. Every act done by the Government or by its officers must, if it is to operate to the prejudice of any person, be supported by some legislative authority."30

In Bachan Singh v. State of Punjab31 the Court further explained:

"Necessary element of the rule of law is that the law must not be arbitrary or irrational and it must satisfy the test of reason and the democratic form of polity seeks to ensure this element by making the framers of the law accountable to the people."32

In Indira Nehru Gandhi v. Raj Narain20 K.K. Mathew, J. considered the concept or rule of law as part of the basic structure of the Constitution as evident from his observation:

"If rule of law is to be a basic structure of the Constitution, one must find specific provisions in the Constitution embodying the constituent elements of the concept. I cannot conceive of rule of law as a twinkling star up above the Constitution. To be a basic structure, it must be a terrestrial concept having its habitat within the four corners of the Constitution. The provisions of the Constitution were enacted with a view to ensure the rule of law. Even if I assume that rule of law is a basic structure, it seems to me that the meaning and the constituent elements of the concept must be gathered from the enacting provisions of the Constitution. The equality aspect of the rule of law and of democratic republicanism is provided in Article 14. ... If, according to the majority in Bharati case1 Article 14 does not pertain to basic structure of the Constitution, which is the other principle of equality incorporated in the Constitution ... or an essential feature of democracy or rule of law?"33

B. Democracy

To Abraham Lincoln, democracy meant a Government of the people, by the people and for the people. Justice Mathew in the First Tej Bahadur Sapru Memorial Lecture said that democracy means the rule of majority. Sir Ivor Jennings' understanding is that in a democracy political power rests in free elections. Referring to "democracy", Sir Henry Sumner Maine in his book on Popular Government (1918) observed that "there is no word about which a denser mist of vague language and a larger heap of loose metaphors, has collected". The form of government is always regarded as an essential feature of a Constitution. Prof. K.C. Wheare in his oft-quoted work Modern Constitutions dealing with classification of Constitutions points out that most systems of government fall into one or other of the categories of the parliamentary or the non-parliamentary executive. By "non-parliamentary executive" he means the presidential form of government as in the USA. India has deliberately opted for a parliamentary federal Constitution as rightly pointed out by Prof. Granville Austin thus:

"The Constituent Assembly's decision to give India a parliamentary, federal Constitution was not made in a day. The process took two and a half years from the first meeting of the Congress Experts' Committee on the Constituent Assembly, held in July 1946, to the debate on the Draft Constitution in November 1948."34

While the majority of the Judges in Kesavananda1 treated democracy as a basic feature of the Constitution, Jaganmohan Reddy, J. explicitly considered parliamentary democracy as part of the basic structure. Chief Justice Subba Rao also in his article (supra) reiterated that "responsible government through parliamentary executive" is part of the basic structure of the Constitution. More recently in P.V. Narasimha Rao v. State (CBI)35, S.C. Agrawal, J. who presided over the Constitution Bench was categoric that "parliamentary democracy is a part of the basic structure of the Constitution". Whenever one comes across with the passionate plea for switching over to the presidential form of government, one wonders whether the protagonists are aware of the fact that parliamentary executive is a basic feature of the Constitution which cannot be altered. So long as the doctrine of basic structure holds the field, substituting the presidential form of government for the parliamentary form of government is not possible. Improvement of the present system alone is permissible.

Assuming the changeover to the presidential system is legally feasible, is it desirable? It is strongly felt that the well-considered decision of the framers that the American system is not suitable having regard to the constitutional history and needs of India is correct. The awesome concentration of powers in the hands of a single functionary and the frequent deadlocks witnessed with respect to legislation proposed by the US President on account of resistance by the American Congress should serve as a caution. Enlightened public opinion in the USA itself is exercised about the concentration of too much power in the hands of the President. The books and writings on the functioning of the American Presidential system give the general impression that the system is not functioning without difficulties and that the USA is moving towards the direction of becoming a parliamentary system.36 India cannot afford to trust any single person with vast discretionary powers without ensuring accountability. It is not known why some of our thinkers and leaders are advocating adoption of the American system. The British model is basically sound and best suited for us provided we realise even at this distance of time how to work it successfully making minimal changes in the provisions relating to elections and Ministers.

C. Secularism

The leaders who fought for independence under the guidance of Mahatma Gandhi were opposed to communal politics. They stood for a secular India. During the debates in the Constituent Assembly, Prime Minister Nehru declared that secularism was an ideal to be achieved and that establishment of a secular State was an act of faith. He explained his vision thus:

"By secular State, as I understand, the State is not going to make any discrimination whatsoever on the ground of religion or community against any person professing any particular form of religious faith. This means in essence that no particular religion in the State will receive any State patronage whatsoever. The State is not going to establish, patronize or endow any particular religion to the exclusion of or in preference to others and that no citizen in the State will have any preferential treatment or will be discriminated against simply on the ground that he professed a particular form of religion .... At the same time we must be very careful to see that in this land of ours we do not deny to anybody the right not only to profess or practise but also propagate any particular religion."37

Although there was no express declaration in the original Constitution that it was secular, the provisions incorporated in Part III such as Articles 14, 15(1)(2), 16(1)(2), 25, 26, 27, 28 revealed the secular character of Indian democracy. In M.R. Balaji v. State of Mysore38 the Supreme Court spoke of "the noble ideal of a secular welfare State set up by the Constitution". In Kesavananda Bharati1, the Court declared that the secular character of the Constitution was part of the basic structure. By the 42nd Amendment to the Constitution, the words "socialist" and "secular" were inserted in the preamble qualifying the words "democratic republic". In S.R. Bommai v. Union of India39 a Bench of nine Judges expounded the basic feature of secularism at great length. It was pointed out that the concept of secularism was very much embedded in our constitutional philosophy. By the 42nd Amendment what was implicit was made explicit. The judgments delivered by A.M. Ahmadi, P.B. Sawant, K. Ramaswami and B.P. Jeevan Reddy, JJ., dealt with the concept of secularism in the context of validity of the proclamations issued under Article 356 soon after the demolition of the Babri Masjid imposing President's Rule in the four BJP-ruled States, viz. Himachal Pradesh, Uttar Pradesh, Rajasthan and Madhya Pradesh. The proclamations were upheld on the ground that any State Government which pursues unsecular policies or unsecular course of action acts contrary to the constitutional mandate and renders itself amenable to action under Article 356. Some of the Judges referred not only to the provisions of the Constitution which reflected its secular character but also to the provisions of law including those of the Representation of the People Act, 1951 and in particular Section 123(3) and (3-A) which make appeals in the name of religion, race or caste to vote or to refrain from voting a corrupt practice. However, a Bench of three Judges in Manohar Joshi v. Nitin Bhaurao40 took the view that the statement of a candidate in the course of his election speech that "the first Hindu State will be established in Maharashtra" did not amount to a corrupt practice. The Court held:

"In our opinion, a mere statement that the first Hindu State will be established in Maharashtra is by itself not an appeal for votes on the ground of his religion but the expression, at best, of such a hope. However despicable be such a statement, it cannot be said to amount to an appeal for votes on the ground of his religion. Assuming that the making of such a statement in the speech of the appellant at that meeting is proved, we cannot hold that it constitutes the corrupt practice either under sub-section (3) or sub-section (3-A) of Section 123, even though we would express our disdain at the entertaining of such a thought or such a stance in a political leader of any shade in the country."41

Although the counsel for the election petitioner had heavily relied on the nine-Judge Bench decision in S.R. Bommai39, J.S. Verma, J., who wrote the judgment in Manohar Joshi40 did not refer to it. The judgment received a lot of adverse criticism not only from leading members of the Bar, but also from the media and public men. Subsequently, in Mohd. Aslam v. Union of India42 the same Bench declined to reconsider the decision in Manohar Joshi40 observing that the decision in S.R. Bommai39 did not relate to the construction and determination of the scope of sub-sections (3) and (3-A) of Section 123 of the RP Act, 1951 and was of no assistance. On merits, the Bench justified its finding stating that the standard of proof required for proving a corrupt practice had not been satisfied in view of the absence of legal evidence in the case. If that be the case, it is not understood as to why the Court ruled that the objectionable statement did not amount to an appeal in the name of religion. Obviously, the perceptions of secularism vary from Bench to Bench. Manohar Joshi40 deserves to be overruled. Secularism is too fundamental to be compromised.

D. Judicial review

In Indira Nehru Gandhi v. Raj Narain20 a Constitution Bench held that judicial review in the election disputes was not a compulsion and therefore not part of the basic structure of the Constitution. In S.P. Sampath Kumar v. Union of India43, P.N. Bhagwati, C.J., relying on Minerva Mills Ltd.21 declared that it was well settled that judicial review was a basic and essential feature of the Constitution. If the power of judicial review was absolutely taken away, the Constitution would cease to be what it was. In Sampath Kumar43 the Court further declared that if a law made under Article 323-A(1) were to exclude the jurisdiction of the High Court under Articles 226 and 227 without setting up an effective alternative institutional mechanism or arrangement for judicial review, it would be violative of the basic structure and hence outside the constituent power of Parliament. The Court concluded by holding that the same independence from executive pressure or influence must be ensured to the Chairman, Vice-Chairman and Members of the Administrative Tribunal or else the Administrative Tribunal would cease to be an equally effective and efficacious substitute for the High Court and the provisions of the impugned Act would be rendered invalid. The Court did not strike down the Administrative Tribunals Act, 1985, but while making the judgment prospective gave an opportunity to the Central Government to amend the Act suitably within the stipulated time to remove the difficulties found in the Act. In Kihoto Hollohan v. Zachillhu44 another Constitution Bench, while examining the validity of para 7 of the Tenth Schedule to the Constitution which excluded judicial review of the decision of the Speaker/Chairman on the question of disqualification of MLAs and MPs, observed that it was unnecessary to pronounce on the contention whether judicial review is a basic feature of the Constitution and para 7 of the Tenth Schedule violated such basic structure. Subsequently, in L. Chandra Kumar v. Union of India45 a larger Bench of seven Judges unequivocally declared (at SCC p. 301, para 78)

"that the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure".

A reading of this judgment reveals how difficult it is to identify the basic features of the Constitution, in the light of the decisions from Kesavananda Bharati1 onwards. As a sequel to its finding that power of judicial review conferred by Articles 226 and 32 was part of the basic structure, the Court declared that clause (2)(d) of Article 323-A and clause (3)(d) of Article 323-B to the extent they excluded the jurisdiction of the High Courts and the Supreme Court under Articles 226, 227 and 32, were unconstitutional. The Court also struck down Section 28 of the Administrative Tribunals Act, 1985, to the extent it excluded the said jurisdiction of the High Courts and the Supreme Court. Not stopping at that, the Court proceeded to restructure Articles 226 and 227. The Court clarified:

"In the view that we have taken no appeal from the decision of a Tribunal will directly lie before the Supreme Court under Article 136 of the Constitution; but instead, the aggrieved party will be entitled to move the High Court under Articles 226/227 of the Constitution and from the decision of the Division Bench of the High Court the aggrieved party could move this Court under Article 136 of the Constitution. ... The Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned."46

This part of the judgment barring the litigants from directly approaching the High Courts under Articles 226 and 227 for relief and approaching the Supreme Court under Article 136 for leave to appeal from the decision of the Tribunal is difficult to appreciate. It may be open to the High Courts under Article 226 or 227 and likewise for the Supreme Court under Article 136 to decline to entertain a petition on the ground of availability of alternative remedy. Is it open to the Supreme Court to rewrite the jurisdiction of the High Court under Articles 226 and 227 after reviving it on the ground of basic structure? Basic structure being unalterable, how could the Court fetter the power of judicial review of High Courts? These questions still remain to be answered.

Conclusion

"The basic structure of the Constitution" is an imprecise and elastic concept. There was no unanimity among the Judges regarding the components of the basic structure of the Constitution. The basic features illustrated in the five judgments delivered by the majority of Judges in Kesavananda1 do not tally. If we go by the common denominator, very few of them can be regarded as basic features acceptable to all the seven Judges. They are to some extent overlapping. Each one of them is vague by itself. The task of identifying the basic features is tough and time-consuming. Neither is the court is a position to identify all the components of the basic framework of the Constitution once and for all, nor has Parliament any clear idea about the scope of its amending power as of now. As a result of this situation, the judiciary has emerged as the most powerful wing of the "State" in comparison to the legislature and the executive.

The basic structure doctrine has served the country well during turbulent times when Parliament was in a mood to resort to Article 368 recklessly, as it did by enacting the 39th Amendment for saving Indira Gandhi's election. Although the Supreme Court has succeeded in emphasising the enduring nature of the foundations of the Constitution, the validity of the doctrine will remain an open question. Adoption of the doctrine sometimes results in inconsistencies as in Kesavananda Bharati1 where the Court while declaring separation of powers a basic feature of the Constitution, has disturbed the checks and balances envisaged by the Constitution between the executive, the legislature and the judiciary.

Independent of the theory of unalterable basic structure invented in Kesavananda1 the Court using its power of interpretation of the Constitution, in Supreme Court Advocates-on-Record Assn. v. Union of India47 has virtually taken over the entire power of judicial appointments and transfers, overruling S.P. Gupta v. Union of India48. In this Second Judges' case47, the Supreme Court mandated the Chief Justice of India to associate at least two of his seniormost colleagues in the process of selection of candidates for appointment as Judges. In Special Reference No. 1 of 1998, Re49 the Court opined that the Chief Justice of India should associate at least four of his seniormost colleagues instead of two in the matter of appointment of Judges. Justice Michael Kirby, President of the Court of Appeal of New South Wales (now a Judge of the High Court of Australia) referring to the Second Judges' case47 observed:

"It is not my province to comment upon the bold decision. As the minority opinions in the Supreme Court indicate, strong views can be expressed on both sides of the arguments. The decision, however, reflects the appreciation which exists in India, as well as in Australia and other countries of our legal tradition concerning the vital importance of maintaining the independence of judicial officers and assuring their capacity effectively to fulfil the duties which they assume upon their appointment."50

This judgment delivered in 1993, shifting the power from the executive to the judiciary, aroused hopes that henceforth the quality of appointments would be very high and there would be no delays in making appointments to the High Courts and the Supreme Court. Have the appointments made during the last six years matched these expectations? In May 1999, addressing the Advocate General's Conference at Shimla, Mr Justice S.P. Bharucha frankly stated that "the quality of our Judges has regrettably fallen". Accumulation of unlimited power is one thing; exercising it with circumspection and self-restraint is an altogether different thing. Unless the dam is strong, the reservoir cannot retain water. We need extremely capable, honest and independent Judges, nay statesmen, to handle this enormous power of judicial review in the interests of the people of India. There are a large number of vacancies remaining unfilled in different High Courts. The Government seems to be sitting tight over the proposals forwarded by the Chief Justice of India. Stalemate in appointments is affecting the institution. Hence the need for a properly constituted National Judicial Commission with a preponderant representation to the judiciary.

*   This is an abridged version of Dr Alladi Krishnaswamy Ayyar Memorial Lecture, 1999 delivered by the author. Return to Text

**   Senior Advocate, Supreme Court of India Return to Text

1. (1973) 4 SCC 225 Return to Text
2. Anwar Hossain Chowdhury v. Bangladesh, 41 DLR 1989 App Div 165 Return to Text
3. Darwesh Anbey v. Federation of Pakistan, PLD 1980 Lah 206 Return to Text
4. Suleman v. President, Special Military Cant., NLR 1980 Cir. Quota 873 Return to Text
5. Dieter Conrad's article on Basic Structure published in Law & Justice Journal of United Lawyers' Association, Vol. 3, Nos. 1-4 (1996), p. 99 at p. 103. Return to Text
6. Ibid at p. 105. Return to Text
7. Kameshwar Singh v. State of Bihar, AIR 1951 Pat 91 Return to Text
8. Jawaharlal Nehru's Speeches (1949-1953), the Publications Division, Government of India, Second Impression, p. 485. Return to Text
9. Ibid, p. 503. Return to Text
10. Dwarkadas Shrinivas v. Sholapur Spg. & Wvg. Co. Ltd. 1954 SCR 674 : AIR 1954 SC 119; State of W.B. v. Subodh Gopal Bose, AIR 1954 SC 92 : 1954 SCR 587; State of W.B. v. Bella Banerjee, AIR 1954 SC 170 : 1954 SCR 558; Karimbil Kunhikoman v. State of Kerala, AIR 1962 SC 723 : 1962 Supp (1) SCR 829; A.P. Krishnaswami Naidu v. State of Madras, AIR 1964 SC 1515 : (1964) 7 SCR 82 Return to Text
11. (1967) 2 SCR 762 : AIR 1967 SC 1643 Return to Text
12. 1952 SCR 89 : AIR 1951 SC 458 Return to Text
13. (1965) 1 SCR 933 : AIR 1965 SC 845 Return to Text
14. It was Mudholkar, J. who raised the question: "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 Art. 368." (SCR p. 966) Return to Text
15. It was just a coincidence that on May 31, the day Justice Grover's resignation took effect, Mohan Kumarmangalam, the then Minister for Steel & Mines, who was believed to be mainly responsible for the supersession of Judges, died in an air crash. He was a brilliant lawyer and a bold Minister. Return to Text
16. (1973) 2 SCC (Journal), p. 1 at p. 27 Return to Text
17. (1974) 1 SCC (Journal), pp. 3-44 and pp. 45-67 Return to Text
18. (1989) 1 Law Weekly (Journal), p. 2, at p. 19. Return to Text
19. Supra note 11 at SCR p. 918 Return to Text
20. 1975 Supp SCC 1 Return to Text
21. (1980) 3 SCC 625 Return to Text
22. (1981) 2 SCC 362 Return to Text
23. (1983) 1 SCC 147 Return to Text
24. Sir Ivor Jennings: Law and the Constitution, 5th Edn., pp. 49-50. Return to Text
25. (1967) 2 SCR 703 : AIR 1967 SC 1427 Return to Text
26. Ibid at SCR p. 718 Return to Text
27. (1967) 2 SCR 625 : AIR 1967 SC 1269 Return to Text
28. Ibid at SCR p. 629 Return to Text
29. (1967) 2 SCR 454 : AIR 1967 SC 1170 Return to Text
30. Ibid at SCR p. 460 Return to Text
31. (1982) 3 SCC 24 Return to Text
32. Ibid at SCC p. 51. Return to Text
33. Supra note 20 at SCC p. 342; See also Bhim Singhji v. Union of India, (1981) 1 SCC 166 Return to Text
34. Prof. G. Austin: The Indian Constitution - Cornerstone of a Nation (1966), Reprint 1991, at p. 32. Return to Text
35. (1998) 4 SCC 626, 673 para 47. Return to Text
36. See John H. Ferguson and Dean E. McHenry: American Federal Government (1971), 11th Edn., p. 366; Joseph E. Kallenbach: The American Chief Executive - The Presidency and the Governorship (1966) (pp. 574-75); Prof. Arthur S. Miller: Presidential Power in a Nutshell (1977), pp. 29, 60, 281 and 67. The possibilities for abuse of power by the President in the US have also been highlighted by Prof. Moolchand Sharma in his article in 1998 Indian Bar Review, Vol. XXV(3), at p. 32. Return to Text
37. Constituent Assembly Debates, Vol. VII, p. 831. Return to Text
38. 1963 Supp (1) SCR 439, 473 : AIR 1963 SC 649 Return to Text
39. (1994) 3 SCC 1 Return to Text
40. (1996) 1 SCC 169 Return to Text
41. Ibid at p. 204, para 62. Return to Text
42. (1996) 2 SCC 749 Return to Text
43. (1987) 1 SCC 124, 128 Return to Text
44. 1992 Supp (2) SCC 651, 715, para 120 Return to Text
45. (1997) 3 SCC 261 Return to Text
46. Ibid at p. 308, para 92 and p. 311, para 99. Return to Text
47. (1993) 4 SCC 441 Return to Text
48. 1981 Supp SCC 87 Return to Text
49. (1998) 7 SCC 739 Return to Text
50. Law & Justice (1994), Vol. 1, p. 101 at p. 102. Return to Text