Document Fragment View

Matching Fragments

Whatever be the justification for this view on merits, I do not think that this observation can be read as" meaning that in the opinion of Khanna, J. "basic structure or framework" as contemplated by him was different from "basic features" or "essential elements" spoken of by the other six learned Judges. It was in the context of an argument urged on behalf of the petitioners that the "essential features' of the Constitution cannot be changed that this observation was made by Khanna, ). clarifying that if the "essential features" meant the "basic structure or framework' of the Constitution, the argument of the petitioners would be acceptable, but if the "essential features" did not form part of the "basic structure or framework" and went beyond it, then they would not be immune from the amendatory process. But it does appear from this observation that the six Judges led by Sikri. C. J. on the one hand and Khanna, J. on the other were not completely ad idem as regards the precise scope of the limitation on the amendatory power of Parliament. This might have raised a serious argument as to whether there, any ratio decidendi at all can be culled out from the judgments in this case in so far as the scope and ambit of the amendatory power of Parliament is concerned. A debatable question would have arisen whether "basic and essential features" can be equated with "basic structure of framework" of the Constitution and if they cannot be, then can the narrower of these two formulations be taken to represent the common ratio. But it is not necessary to examine this rather difficult and troublesome question, because, I find that in Smt. Indira Gandhi v. Raj Narain a Bench of five Judges of 'this Court accepted the majority view in Kesavananda Bharati's case to be that the arnendfne power conferred under Article 368, though wide in its sweep and reaching every provision of the Constitution, does not enable Parliament to alter the basic structure or framework of the Constitution; Since this is how the judgments in Kesavananda Bharati's case have been read and a common ratio extracted by a Bench of five Judges of this Court, it is binding upon me and hence I must proceed to decide the questions arising in these cases in the light of the principle emerging from the majority decision that Article 368 does not confer power on Parliament to alter the basic structure or framework of the Constitution. I may mention in the passing that the summary of the judgments given by nine out of the thirteen Judges after the delivery of the judgments also states the majority view to be that "Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.' of course, in my view this summary signed by nine. Judges has no legal effect at all and cannot be regarded as law declared by the Supreme Court under Article 141. It is difficult to appreciate what jurisdiction or power these nine Judges had to give a summary setting out the legal effect of the eleven judgments delivered in the case. Once the judgments were delivered these nine Judges as also the remaining four became I'm ictus officio and thereafter they had no authority to cull out the ratio of the judgments or to state what, on a proper analysis of the judgments, was the view of the majority. What was the law laid down was to be found in the judgments and that task would have to be performed by the Court before whom- the question would arise as to what is the law laid down in Kesavananda Bharati's case. The/ Court would then hear the arguments and dissect the judgments as was done in Smt. Indira Gandhi's case (supra) and then decide as to what is the true ratio emerging from the judgments which is binding upon the Court as law * laid down under Article 141. But here it seems that the nine Judges set out in the summary what according to them was the majority view without hearing any arguments. This was a rather unusual exercise, though well-intentioned. But quite apart from the validity of this exercise embarked upon by the nine Judges, it is a little difficult to understand how a proper and accurate summary could be prepared by these judges when there was not enough time, after the conclusion of the arguments, for an exchange of draft judgments amongst the Judges and many of them did not even have the benefit of knowing fully the views of others. 1 may, therefore, make it clear that I am not relying on the statement of the majority view contained in the summary given at the end of the judgments in Kesavananda Bharati's case, but I am proceeding on the basis of the view taken in Smt. Indira Gandhi's case as regards the ratio of the majority decision in Kesavananda Bharati's case.
Then again at page 707 of the Report, the learned fudge rejects the argument that the core and essence of a Fundamental Hight is immune from the amendatory process. These observations might at first blush appear to support the view that, according to Khanna. J., the amendatory power under Article 368 was sufficiently wide to comprehend not only addition or alteration but also repeal of a Fundamental Right resulting in its total abrogation. But if we look at the judgment of Khanna, J. as a whole, we do not think this argument can be sustained. It is clear that these observations were made by the learned Judge with a view to explaining the scope and width of the power of amendment under Article 38. The learned Judge held that the amendatory power of Parliament was wide enough to reach every provision of the Constitution including the Fundamental Rights in Part III of the Constitution, but while so holding, he proceeded to make it dear that despite all this width, the amendatory power was subject to an overriding limitation, namely, that it could not be exercised so as to alter the basic structure or framework of the Constitution. The learned Judge stated in so many words at page 688 of the Report that though "the power of amendment is plenary and would include within itself, the power to add, alter or repeal the various articles including those 'relating to fundamental rights", it is "subject to the retention of the basic structure or framework of the Constitution." The same reservation was repeated by the learned Judge in Clause (vii) of the summary of his conclusions given at the end of his judgment. It will, therefore, be seen mat according to Khanna, J. the power of amendment can be exercised by Parliament so as even to abrogate or take away a fundamental right, so long as it does not alter the basic structure or framework of the Constitution. But if the effect of abrogating or taking away such fundamental right is to alter or affect the basic structure or frame-work of the Constitution, the amendment would be void as being outside the amending power of Parliament. It is precisely for this reason that the learned Judge proceeded to consider whether the right to property could be said to appertain to the basic structure or framework of the Constitution. If the view of Khanna, J, were that no fundamental right forms part of the basic structure or framework of the Constitution and it can therefore be abrogated or taken away in exercise of the amendatory power under Article 368, it was totally unnecessary for the learned Judge to consider whether the right. to property could be said to appertain to the basic structure or framework of the Constitution. The very fact that Khanna, J. proceeded to consider this question shows beyond doubt that he did not hold that fundamental rights were not a part of the basic structure. The only limited conclusion reached by him was that the right to property did not form part of the basic structure, but so far as the other fundamental rights were concerned, he left the question open. Therefore, it was that he took pains to clarify in his judgment in Smt. Indira Gandhi's case (supra) that what he laid down in Kesavananda Bharati's case was "that no Article of the Constitution is immune from the amendatory process because of the fact that it relates to fundamental tight and Is contained in Part III of the Constitution," and that he did not hold in that case that "fundamental rights are not a part of the basic structure of the Constitution". Now if this be so, it is difficult to understand how he could hold the Constitution (Twenty-ninth Amendment) Act, 1972 unconditionally valid. Consistently with his view, he should have held that the Constitution (Twenty-ninth Amendment) Act, 1972 would be valid only if the protection afforded by it to the Kerala Acts included in the 9th Schedule was not violative of the basic structure or framework of the Constitution, But merely because the learned Judge wrongly held the Constitution (Twenty-ninth Amendment) Act, 1972 to be unconditionally valid and did not uphold its validity subject to the scrutiny of the Kerala Acts added in the 9th Schedule, it cannot follow that he regarded the fundamental rights as not forming part of the basic structure of the Constitution, If the law was correctly laid down by him, it did not become incorrect by being wrongly applied. It is not customary to quote from the writing of a living author, but departing from that practice which, I believe, is no longer strictly adhered to or followed, I may point out that what 1 have said above finds support from the comment made by Mr. Seervai in the 3rd Volume of his book on Constitutional Law, where the learned author says:
The conflict between Khanna, J.'s views on the amending power and on the unconditional validity of the Twenty-ninth Amendment is resolved by saying that he laid down the scope of the amending power correctly, but misapplied that law in holding Article 31B and Schedule 9 unconditionally valid.
I entirely agree with this perceptive remark of the learned author.

88. The true ratio emerging from the majority decision in Kesavananda Bharati's case being that the Parliament tan-not in the exercise of its amendatory power under Article 368 alter the basic structure or framework of the Constitution, I must proceed to consider whether Article 31A, Article 31B read with 9th Schedule, Article 31C as it stood prior to its amendment and the amended Article 31C are violative of the basic structure or framework of the Constitution, for if they are. they would be unconstitutional and void. Now what are the features or elements which constitute the basic structure or framework of the Constitution or which, if damaged or destroyed, would rob the Constitution of its identity so that it would cease to be the existing Constitution but would become a different Constitution. The majority decision in Kesavananda Bharati's case no doubt evolved the doctrine of basic structure or framework but it did not lay down that any particular named features of the Constitution formed part of its basic structure or framework. Sikri, C. J. mentioned supremacy of the Constitution, republican and democratic form of Government, secular character of the Constitution, separation of powers among the legislators, executive and judiciary, federalism and dignity and freedom of the individual as essential features of the Constitution, Shelat and Grover. JJ. added to the list two other features; justice --social, economic and political and unity and integrity of the Nation. Hegde and Mukherjea, JT. added sovereignty of India as a basic feature of the Constitution. Reddy, J, thought that sovereign democratic republic, parliamentary torm of democracy and the three organs of the State formed the basic structure of the Constitution. Khanna, J. held that basic structure indicated the broad contours and outlines of the Constitution and since the right to property was a matter of detail, it was not a part of that structure. But he appeared to be of the view that the democratic form of government, the secular character of the State and judicial review formed part of the basic structure. It is obvious that these were merely illustrations of what each of the six learned Judges led by Sikri, C. J. thought to be the essential features of the Constitution and they were not intended to be exhaustive. Shelat and Grover, JJ. Hedge and Mukherjea, JJ. and Reddy, J. in fact said in their judgments that their list of essential features which form the basic structure of the Constitution was illustrative or incomplete. This enumeration of the essential features by the six learned Judges had obviously no binding authority; first, because the Judges were not required to decide as to what features or elements constituted the basic structure or framework of the Constitution and what each of them said in this connection was in the nature of obiter and could have only persuasive value; secondly, because the enumeration was merely by way of illustration and thirdly, because the opinion of six Judges that certain specified features formed part of the , basic structure of the Constitution did not represent the majority opinion and hence could not be regarded as law declared by this Court under Article 141. Therefore, in every case where the question arises as to whether a particular feature of the Constitution is a part of its basic structure, it would have to be determined on a consideration of various factors such as the place of the particular feature in the scheme of the Constitution, its object and purpose and the consequence of its denial on the integrity of the Constitution as a fundamental instrument of country's governance. Vide the observations of Chandrachud, T. (as he then was) in Smt. Indira Gandhis case at p. 658 of the Report.

"It is not with any great satisfaction or pleasure that we have produced this long Schedule. We do not wish to add to it for two reasons. One is that the Schedule consists of a particular type of legislation, generally speaking, and another type should not come ...." (emphasis supplied]. Articles 31A and Clause 31B were thus intended to serve the same purpose of protecting legislation falling within a certain category. It was a double barrelled protection which was intended to be provided to this category of legislation, sine it was designed to carry out agrarian reform which was so essential for bringing about a revolution in the socio-economic structure of the country. This was followed by the Constitution (Fourth Amendment) Act, 1955 by which the categories of legislation covered by Article 31A were sought to be expanded by adding certain new Clauses after Clause (a). Originally, in the draft bill in addition to these Clause s, there was one more Clause , namely, Clause (d) which sought to give protection to a law providing for the acquisition or requisitioning of any immovable property for the rehabilitation of displaced persons and, as a corollary to the proposed amendment of Article 31A it was proposed in Clause (5) of the Bill to add In the 9th Schedule two more State Acts and four Central Acts which fell within the scope of Clause (d) and (f) of the revised Article 31A. Vide Clause (4) of the Statement ' of Objects and Reasons. The two State Acts which were proposed to be included in the 9th Schedule were the Biliar Displaced Persons Rehabilitation (Acquisition of Land) Act, 1950 and the United Provinces Land Acquisition (Rehabilitation of Refugees) Act, 1948 Fhe West Bengal Land Development and Planning Act, 1948, which was struck down by this Court in State of West Bengal v. Bela Banerjee and the invalidity of which really started the entire exercise of the Constitution (Fourth Amendment) Act, 1955, was however, left-out of the 9th Schedule in the draft Bill because it included certain purposes of acquisition which fell outside the proposed Clause (d) of Article 31A. But while the Constitution (Fourth Amendment) Act, 1955 was being debated, an Ordinance was issued by the Governor of West Bengal omitting with retrospective effect all the items in the definition of "public purpose' except the settlemerit of displaced persons who had migrated into the State of West Bengal, with the result that the West Bengal Act as amended by the Ordinance came within the category of legislation specified in the proposed Clause (d) of Article 31A, In view of this amendment, the West Bengal Act was included to the 9th Schedule by way of amendment of the draft Bill. It is significant to note that a similar Orissa Statute which provided for acquisition of land for purposes going beyond the proposed Clause, (d) of Article 31A and which was not amended in the same manner as the West Bengal Act, was not included in the 9th Schedule. A Central Act, namely, the Resettlement of Displaced Persons (Land Acquisition) Act, 1948 fell within the proposed Clause (d) of Article 31A and it was therefore included in the 9th Schedule in the draft Bill. The link betweenArticles 31A and 31B was thus maintained in the draft Bill, but when the draft Bill went before the Joint Committee, the proposed Clause (d) of Article 31A was deleted and the Bihar, U. P. and West Bengal Acts as also the above-mentioned Central Act which were originally intended to be within the scope and ambit of Article 31A, became unrelated to that Article. Even so, barring these four Acts, all the other statutes included in the 9tb Schedule fell within one or the other Clause of the amended Article 31A. Subsequent to this amendment, several other statutes dealing with agrarian reform were included in the 9th Schedule by the Constitution (Seventeenth Amendment) Act, 1964 and no complaint can be made in regard to such addition, because all these statutes partook of the character of agrarian reform legislation and were covered by Clause (a) of Article 31A in view of the extended definition of "estate" substituted by the same amending Act The validity of the Constitution (Seventeenth Amendment) Act, 1964 was challenged before this Court in Golak Nath's case (supra) and though the Court by a majority of six against five took the view that Parliament has no power to amend any fundamental right, it held that this decision would not affect the validity of the Constitution (Seventeenth Amendment) Act, 1964 and other earlier amendments to the Constitution and thus recognised the validity of the various constitutional amendments which included statutes in the 9th Schedule from time to time up to that date. Then came the Constitution (Twenty-ninth Amendment) Act 1972 by which two Kerala agrarian reform statutes were included in the 9th Schedule. The validity of the Twenty-ninth Amendment Act was challenged in Kesavananda Bharati's case but by a majority consisting of Khanna, J. and the six learned Judges led by Ray, C. J., it was held to be valid. Since all the earlier constitutional amendments were held valid on the basis of unlimited amending power of Parliament recognised in Shankari Prasad's case and Sajian Singh's case and were accepted as valid in Golak Nath's case and the Twenty Ninth Amendment Act was also held valid in Kesavananda Bharati's case, though not on the application of the basic structure test, and these constitutional amendments have been recognised as valid over a number of years and moreover, the statutes intended to be protected by them are all falling within Article 31A with the possible exception of only four Acts referred to above, I do not think, we would be justified in re-open ing the question of validity of these constitutional amendments and hence wa hold them to be valid. But, all constitutional amendments made after the decision in Kesavananda Bharati's case would) have to be tested by reference to the basic structure doctrine, for Parliament would then have no excuse for saying that it did not know the limitation on its amending power. It may be pointed out that quite a large number of statutes have been included in the 9th Schedule by the subsequent constitutional amendments and strangely enough, we find for the first time that statutes have been included which have no connection at all with Article 31A or 31C and this device of Article 31B which was originally adopted only as a means of giving a morei definite and assured protection to legislation already protected under Article 31A, has been utilised for the totally different purpose of excluding the applicability of j Fundamental Rights to all kinds of statutes which have nothing to dp with agrarian reform or Directive Principles., This is rather a disturbing phenomenon. Now out of the statutes which are or may in future be included in the 9th Schedule by subsequent constitutional amendments, if there are any which fall within a category covered by Article 31A or 31C they would be protected from challenge under Articles 14 and 19 and it would not be necessary to consider whether their inclusion in the 9th Schedule is constitutionally valid, except in those rare cases where protection may be claimed for them against violation of any other fundamental rights. This question would primarily arise only in regard to statutes not covered by Article 31A or 31C and in case of such statutes, the Court would have to consider whether the constitutional amendments including such statutes in the 9th Schedule violate the basic structure of the Constitution in granting them immunity from challenge of the fundamental rights. It is possible that in a given case, even an abridgement of a fundamental right may involve violation of the basic structure. It would all depend on the nature of the fundamental right, the extent and depth of the infringement, the purpose for which the infringement is made and its impact on the basic value of the Constitution. Take for example, right to life and personal liberty enshrined in Article 21. This stands on an altogether different footing from other fundamental rights. I do not wish to express any definite opinion, but I may point out that if this fundamental right is violated by any legislation, it may be difficult to sustain a constitutional amendment which seeks to protect such legislation against challenge under Article 21. So also where a legislation which has nothing to do with agrarian reform or any Directive Principles infringes the equality Clause contained in Article 14 and such legislation is sought to be protected by a constitutional amendment by including it in the 9th Schedule, it may be possible to contend that such constitutional amendment is violative of the egalitarian principle which forms part of the basic structure. But these are only examples which I am giving by way of illustration, for other situations may arise where infraction of a fundamental right by a statute, if sought to be constitutionally protected, might affect the basic structure of the Constitution. In every case, therefore, where a constitutional amendment includes a statute or statutes in the 9th Schedule, its constitutional validity would have to be considered by reference to the basic structure doctrine and such constitutional amendment would be liable to be declared invalid to the extent to which it damages or destroys the basic structure of the Constitution by according protection against violation of any particular fundamental right.