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The single most important judgment in India’s Constitutional Law history is undoubtedly the 13-Judge Bench Majority Judgment in Kesavananda Bharati case delivered on 24th April 1973. No study of Constitutional Law can be complete without understanding this judgment. But it is easier said than done. Reason is simple. It is an exceptionally lengthy judgment, running in 502 printed pages.
DLA has taken pains to abridge this lengthy judgment in just about 5 pages so as to spare its students from spending their time and energy in going through its 502 pages.
We present below not only the gist of the operating part of the judgment, but also the original views of most of the judges comprising the Bench.
The Supreme Court laid down the Theory of Basic Structure in this case. It was held that some of the provisions of the Constitution of India form its basic structure, which are not amendable by Parliament by exercise of its constituent power under Article 368.
Gist of the Operating Part
In this case, the validity of 24th, 25th and 29th amendments to the Constitution of India was challenged. The main question related to the nature, extent and scope of amending power of the Parliament under the Constitution. The views of the majority were as follows:
(1) L.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643 (which had held that fundamental rights were beyond the amending powers of Parliament) was overruled;
(2) The Constitution (Twenty-fourth Amendment) Act, 1971 (giving power to Parliament to amend any part of the Constitution) was valid;
(3) Article 368, as amended, was valid but it did not confer power on the Parliament to alter the basic structure or framework of the Constitution.
The court, however, did not spell out in any exhaustive manner as to what the basic structure/framework was except that some judges gave a few examples.
(4) The amendment of Article 31C containing the words “and 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 held invalid.
Original views of individual judges
S.M. Sikri C.J.
This Preamble, and indeed the Constitution, was drafted in the light and direction of the Objectives Resolution adopted on January 22, 1947.
The fundamental rights were considered of such importance that right was given to an aggrieved person to move the highest court of the land, i.e. the Supreme Court, by appropriate proceedings for the enforcement of the rights conferred by this part, and this was guaranteed. Article 32 (2) confers very wide powers on the Supreme Court, to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. Article 32(4) further provides that “the right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution”.
The learned Attorney-General said that every provision of the Constitution is essential; otherwise it would not have been put in the Constitution. This is true. But this does not place every provision of the Constitution in the same position. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the constitution remains the same.
The basic structure may be said to consist of the following features:
(1) Supremacy of the Constitution;
(2) Republican and Democratic forms 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.
The above structure is built on the basic foundation, i. e. the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed.
J.M. Shelat & A.N. Grover, JJ.
The Constitution is an organic document which must grow and it must take stock of the vast socio-economic problems, particularly, of improving the lot of the common man consistent with his dignity and the unity of the nation.
The Constitution being supreme all the organs and bodies owe their existence to it. None can claim superiority over the other and each of them has to function within the four-corners of the constitutional provisions. The Preamble embodies the great purposes, objectives and the policy underlying its provisions apart from the basic character of the State which was to come into existence, i.e. a Sovereign Democratic Republic. Parts III and IV which embody the fundamental rights and directive principles of State policy have been described as the conscience of the Constitution.
The legislative power distributed between the Union Parliament and the State Legislatures cannot be so exercised as to take away or abridge the fundamental rights contained in Part III. Powers of the Union and the States are further curtailed by conferring the right to enforce fundamental rights contained in Part III by moving the Supreme Court for a suitable relief, Article 32 itself has been constituted a fundamental right. Part IV containing the directive principles of State policy was inspired largely by similar provisions in the Constitution of the Eire Republic (1937). This part, according to B. N. Rao, is like an Instrument of Instructions from the ultimate sovereign, namely, the people of India.
The Constitution has all the essential elements of a federal structure as was the case in the Government of India Act, 1935, the essence of federalism being the distribution of powers between the federation or the Union and the States or the provinces.
All the Legislatures have plenary powers but these are controlled by the basic concepts of the Constitution itself and they function within the limits laid down in it. The Constitution has entrusted to the judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights. It is a written and controlled Constitution. It can be amended only to the extent of and in accordance with the provisions contained therein, the principal provision being Article 368.
It is the executive that has the main responsibility for formulating the governmental policy by “transmitting it into law” whenever necessary. “The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State”.
K.S. Hegde & Mukherjea, JJ.
We find it difficult to accept the contention that our Constitution-makers after making immense sacrifices for achieving certain ideals made provision in the Constitution itself for the destruction of those ideals. There is no doubt as men of experience and sound political knowledge, they must have known that social, economic and political changes are bound to come with the passage of time and the Constitution must be capable of being so adjusted as to be able to respond to those new demands. Our Constitution is not a mere political document. It is essentially a social document. It is based on a 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. In any event it cannot be destroyed from within. In other words, one cannot legally use the Constitution to destroy itself. Under Article 368 the amended Constitution must remain ‘the Constitution’ which means the original Constitution. When we speak of the ‘abrogation’ or ‘repeal’ of the Constitution, we do not refer to any form but to substance. If one or more of the basic features of the Constitution are taken away to that extent the Constitution is abrogated or repealed. If all the basic features of the Constitution are repealed and some other provisions inconsistent with those features are incorporated, it cannot still remain the Constitution referred to in Article 368. The personality of the Constitution must remain unchanged.
A ‘flexible’ constitution is one under which every law of every description (including one relating to the constitution) can legally be changed with the same ease and in the same manner by one and the same body. A ‘rigid’ constitution is one under which certain laws generally known as constitutional or fundamental laws cannot be changed in the same manner as ordinary laws.
H.R. Khanna, J.
Besides laying down the norms for the functioning of different organs a Constitution encompasses within itself the broad indications as to how the nation is to march forward in times to come. A Constitution cannot be regarded as a mere legal document. A Constitution must of necessity be the vehicle of the life of a nation. It has also to be borne in mind that a Constitution is not a gate but a road. Beneath the drafting of a Constitution is the awareness that things do not stand still but move on, that life of a progressive nation, as of an individual, is not static and stagnant but dynamic and dashful. A Constitution must therefore contain ample provision for experiment and trial in the task of administration. A Constitution, it needs to be emphasised, is not a document for fastidious dialectics but the means of ordering the life of a people. It had (sic) its roots in the past, its continuity is reflected in the present and it is intended for the unknown future.
K.K. Mathew, J.
Every well-drawn Constitution will provide for its own amendment in such a way as to forestall as is humanly possible all revolutionary upheavals. No existing Constitution has reached its final form and shape and become, as it were, a fixed thing incapable of further growth. Human societies keep changing; needs emerge, first vaguely felt and unexpressed, steadily becoming more and more exigent, generating a force which, if left unheeded and denied response, may burst forth. As Wilson said, a living Constitution must be Darwinian in structure and practice. The Constitution of a nation is the outward and visible manifestation of the life of the people and it must respond to the deep pulsation for change within. “A Constitution is an experiment as all life is an experiment”. If the experiment fails, there must be provision for making another.
Jefferson said that there is nothing sanctimonious about a Constitution and that nobody should regard it as the Ark of the Covenant, too sacred to be touched. Nor need we ascribe to men of preceding age, a wisdom more than human and suppose that what they did should be beyond amendment. A Constitution is not an end in itself, rather a means for ordering the life of a nation. The generation of yesterday might not know the needs of today, and, ‘if yesterday is not to paralyse today’, it seems best to permit each generation to take care of itself.
The sentiment expressed by Jefferson was echoed by Dr Ambedkar. How could he have said that what Jefferson said is “not merely true but absolutely true”, unless he subscribed to the view of Jefferson that “each generation is a distinct nation with a right, by the will of the majority to bind themselves but none ‘to bind the succeeding generations more than the inhabitants of another country”, and its corollary which follows as ‘the night the day’ that each generation should have the power to determine the structure of the Constitution under which they live.
And how could this be done unless the power of amendment is plenary, for it would be absurd to think that Dr Ambedkar contemplated a revolution in every generation for changing the Constitution to suit its needs and aspirations. I should have thought that if there is any implied limitation upon any power, that limitation is that the amending body should not limit the power of amendment of the future generation by exercising its power to amend the amending power.
Mr Palkhivala said that if the power of amendment of the amending power is plenary, one generation can, by exercising that power, take away the power of amendment of the Constitution from the future generations and foreclose them from ever exercising it. I think the argument is too speculative to be countenanced. It is just like the argument that if men and women are given the freedom to choose their vocations in life, they would all jump into a monastery or a nunnery, as the case may be, and prevent the birth of a new generation; or the argument of some political thinkers that if freedom of speech is allowed to those who do not believe in it, they would themselves deny it to others when they get power and, therefore, they should be denied that freedom today, in order that they might not deny it to others tomorrow.
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