Kesavananda Bharati v. State of Kerala is a landmark judgment in the Indian Constitutional Law history. This
case established the doctrine of basic structure which says that the
Constitution of India is built on a basic foundation of fundamental principles
such as liberty, freedom, democracy, sovereignty etc. and no amendment can
destroy this basic structure.
A 13 judge bench was
constituted to decide whether the Golaknath judgment was correctly decided.
However, the main question involved in this case was to determine the extent of
the amending power conferred by Article 368 of the Constitution, apart from
Article 13(2), on Parliament.
Glorious and ingenious
arguments were raised by both the sides. However, the bench decided by a thin
majority of 7-6 in favour of the petitioners. While exploring the meaning of
amendment under article 368, the court discussed various theories, tools and
case laws relating to interpretation. I will mention some of them in this
article.
1. How
to Interpret the Constitution?
2. Article
368 of the Constitution of India
3. Doctrine
of Basic Structure
4. Right
to Property
5. Golak
Nath Judgment
6. Article
32
On How to Interpret the
Constitution
Higgins J. in Attorney
General for New South Wales v. The Brewery Employees Union of New South Wales
etc. [1]
said that even though the words of a Constitution are to be interpreted on the
same principles of interpretation as are applied to any ordinary law, these
very principles of interpretation require taking into account the nature and
scope of the Act remembering that "it is a Constitution, a mechanism
under which laws are to be made and not a mere Act which declares what the law
is to be". The decision must depend on the words of the Constitution
as provisions of no two Constitutions are in identical terms.
Lord Wright in fames v.
Commonwealth of Australia [2]
said that the question, then, is one of construction and in the ultimate resort
must be determined upon the actual words used read not in a vacuo but as
occurring in a single complex instrument, in which one part may throw light on
another.
Lord Green in Bidis v.
General Accident, Fire and Life Assurance Corporation [3]
said that "it is to read the statute as a whole and ask oneself the
question. In this state, in this context, relating to this subject matter, what
is the true meaning of that word?"
On Preamble
The history of the drafting and
the ultimate adoption of the Preamble shows:
(1) that it did not "walk
before the Constitution" as is said about the preamble to the United
States Constitution;
(2) that it was adopted last as
a part of the Constitution:
(3) that the principles
embodied in it were taken mainly from the Objectives Resolution;
(4) the Drafting Committee
felt, it should incorporate in it "the essential features of the "new
State":
(5) that it embodied the
fundamental concept of sovereignty being in the people.
It was held in this case that apart
from the part of the Preamble which relates to the basic structure or framework
of the Constitution, the Preamble does not restrict the power of amendment.
On Article 368
The court held that
“The meaning of the words
"amendment of this Constitution" as used in Article 368 must be such
which accords with the true intention of the Constitution makers as
ascertainable from the historical background, the Preamble, the entire scheme
of the Constitution, its structure and framework and the intrinsic evidence in
various Articles including Article 368. It is neither possible to give it a
narrow meaning nor can such a wide meaning be given which can enable the
amending body to change substantially or entirely the structure and identity of
the Constitution. Basically, the amending power under Article 368 is neither
narrow nor unlimited.”
On Basic Structure
If the historical background,
the Preamble, the entire scheme of the Constitution, the relevant provisions
thereof including Article 368 are kept in mind there can be no difficulty in
discerning that the following can be regarded as the basic elements of the
Constitutional structure. (These cannot be catalogued but can only be
illustrated).
1. The supremacy of the
Constitution.
2. Republican and Democratic
form of Government and sovereignty of the country.
3. Secular and federal
character of the Constitution.
4. Demarcation of power between
the legislature, the executive and the judiciary.
5. 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.
6. The unity and the integrity
of the nation.
7. Justice, social, economic
and political
8. Liberty of thought, expression,
belief, faith and worship
9. Equality of status and of
opportunity.
The court further said that the
amending procedure is concerned with the statutory framework of which it forms
part itself. It may effect changes in detail, remould the legal expression of
underlying principles, adapt the system to the needs of changing conditions, be
in the words of Calhoun 'the medicatrix of the system', but should not
touch its foundations.
Carl J. Friedrich [4]
says that:
“A Constitution is a living
system. But just as in a living, organic system, such as the human body,
various organs develop and decay yet the basic structure or pattern remains the
same with each of the organs having its proper function, so also in a
Constitutional system the basic institutional pattern remains even though the
different component parts may undergo significant alterations. For it is the
characteristic of a system that it perishes when one of its essential component
parts is destroyed. The United States may retain some kind of Constitutional
government, without, say, the Congress or the federal division of powers, but
it would not be the Constitutional system now prevailing. This view is
uncontested even by many who do not work with the precise concept of a
Constitution here insisted upon.”
Sutherland in
this context states that “any change of the scope or effect of an existing
statute whether by addition, omission or substitution of provisions which does
not wholly terminate its existence whether by an Act purporting to amend,
repeal, revise or supplement or by an Act independent and original in form, is
treated as amendatory.”
The court said that it is, no
doubt, true that the effect of the above conclusion at which we have arrived is
that there would be no provision in the Constitution giving authority for
drafting a new and radically different Constitution with different basic
structure or framework.
But this fact would not show
that our Constitution has a lacuna and is not a perfect or a complete organic
instrument, for it is not necessary that a Constitution must contain a
provision for its abrogation and replacement by an entirely new and different
Constitution. The people in the final analysis are the ultimate sovereign and
if they decide to have an entirely new Constitution, they would not need the
authority of the existing Constitution for this purpose.
Finally, the court concluded by
saying that subject to the retention of the basic structure or framework of the
Constitution, 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. 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.
Provision regarding the amendment of the Constitution does not furnish a
pretence for subverting the structure of the Constitution nor can Article 368
be so construed as to embody the death wish of the Constitution or provide
sanction for what may perhaps be called its lawful harakiri. Such subversion or
destruction cannot be described to be amendment of the Constitution as
contemplated by Article 368.
On Right to Property
The court said that so far as
the question is concerned as to whether the right to property can be said to
pertain to basic structure or framework of the Constitution, the answer should plainly be in the negative.
Basic structure or framework
indicates the broad outlines of the Constitution, while the right to property
is a matter of detail. It is apparent from what has been discussed above that
the approach of the framers of the Constitution was to subordinate the
individual right to property to the social good. Property right has also been
changing from time to time.
As observed by Harold Laski in
Grammar of Politics, the historical argument is fallacious if it regards the
regime of private property as a simple and unchanging thing. The history of
private property is, above all, the record of the most varied limitations upon
the use of the powers it implies. Property in slaves was valid in Greece and
Rome; it is no longer valid today. Laski in this context has quoted the
following words of John Stuart Mill:
“The idea of property is not
some one thing identical throughout history and incapable of alteration...at
any given time it is a brief expression denoting the rights over things
conferred by the law or custom of some given society at that time; but neither
on this point, nor on any other, has the law and custom of a given time and
place, a claim to be stereotyped for ever. A proposed reform in laws or customs
is not necessarily objectionable because its adoption would imply, not the
adaptation of all human affairs to the existing idea of property, to the growth
and improvement of human affairs.”
On Golaknath Judgment
(a) The decision in Golak Nath
has become academic, for even if it be assumed that the majority judgment that
the word 'law' in Article 13(2), covered Constitutional amendments was not
correct, the result on the questions, wider than those raised in Golak Nath,
now raised before us would be just the same. “
(b) Though the power to amend
cannot be narrowly construed and extends to all the Articles it is not unlimited
so as to include the power to abrogate or change the identity of the
Constitution or its basic features;
(c) Even if the amending power
includes the power to amend Article 13(2), a question not decided in Golak
Nath, the power is not so wide so as to include the power to abrogate or take
away the fundamental freedoms.
On Article 32
Dr. Ambedkar's (Read Constituent
Assembly Debates) observations cannot be read to suggest that by an amendment
of the Constitution, Article 32 could be abrogated, for if it were so, his observations
could be in clear conflict with the express language of Clause 4 of Article 32.
The guarantee in Clause 4 of
Article 32 could be conceived of only against amending power, for no ordinary
law can suspend a right given by the Constitution unless permitted by the
Constitution itself. When Clause 4 of Article 32 does not even permit suspension
of the right under Article 32 except as otherwise provided in the Constitution,
that is, by Article 359, it is highly unthinkable that by an amendment this
right could be abrogated.
This pivotal feature of the
Fundamental Rights demonstrates that this basic structure cannot be damaged or
destroyed. When a remedy cannot be abrogated, it should follow that the
fundamental rights cannot be abrogated for the reason that the existence of a
remedy would be meaningless without the rights.
There is nothing else in the
debates which would suggest that any of the members ever entertained any notion
of abrogation of any of the fundamental rights. It was in the light of the
makeup of the members and the dedicated way in which they spoke of these rights
that these rights were cherished by the people. It could not be imagined that anyone
would have suggested anything to the contrary.
Rest of it will be dealt in my
next post. To be Continued.....
@Suyash:
ReplyDeleteOf late certain people have been attempting to show formation of Telangana after the state assembly's "rejection" of the draft bill violates "federalism". These authors base their view on the Bommai case.
I rebutted this line of thinking at my blog. I will appreciate if you can check this at your convenience.
http://jaigottimukkala.blogspot.in/2014/02/article-3-federalism-and-bommai-case.html