The Supreme Court Advocates On Record Association (SCAORA) on Saturday organised an Academy e-lecture series on the Constitution, specifically on the Basic Structure and Analysis of Landmark Decisions of Minerva Mills, I.R. Coelho and Kesavananda Bharti.
Senior Advocate Harish N. Salve started the lecture series with his observations on various types of Constitution, including the flexible and inflexible. He said the American constitution is inflexible as in parliament cannot create a law to bypass it, whereas in India, Parliament has much larger scope. Barring the basic structure, secularism and free, fair elections.
One exception that remains, he said, “When we draft a petition, we say it’s illegal ultra vires and violative of basic structure, Conceptually there is problem, if you are challenging an entry in 9th schedule. But if it is not in 9th schedule legislation, the question of basic structure doesn’t come in. Because you realise when you talk about basic structure, you are narrowing your challenge And ordinary legislation must face the full brunt of 14,19,21. So when you are drafting one has to be careful about.
“Not the rights test is applied but the right itself is available, the notion of basic structure comes out of 368 and 368 applies to Constitutional amendment. So an ordinary law violating the basic structure is an inaccurate expression. It has gained currency because if you violate 14,19,21 you say it violates basic structure but conceptually that’s a wrong articulation of principles.
“A law which violates 14, violates 14. law which violates 14 and 19 violates 14 and 19. law which violates 14, 19 and 21 violates the whole thing. But an amendment of Constitution which seeks to impair 14, 19 and 21 applying the rights test violates the structure. It’s a narrower tunnel you have through which you can pass. If you can pass through that your challenge succeed.
“But merely because a parliamentary ordinary legislation violates 14,19,21 doesn’t mean it violates the basic structure but it’s a manner of expression. More like a powerful colloquial expression. So this is the history of development of basic structure. If you understand all these judgment, it becomes far more comprehensive.
Here’s the text of his lecture:
“It is a wonderful endeavour, the e-lectures. One of the most interesting areas of Indian Constitutional Law is the area of basic structure. The basic structure doctrine is peculiar to the Indian Constitution and to some extent marks a third dimension to the academic debate about the nature of constitution.”
“Let us start with a high level approach of problem. The basic structure doctrine is unknown to constitutional law because the debate amongst the constitutional funding. We thinker of constitutional law has always been between or rather related to the divide between a rigid and a flexible constitution.
“A rigid constitution like the American constitution to an extent like the Indian Constitution, which in plain language only means that Parliament cannot by legislation side step constitution. If you look at the UK and the jurors of UK always remind you, the UK doesn’t have a constitution, it has an unwritten constitution. But in UK, it acknowledge that Parliament is supreme and sovereign. So, there is no Constitutional Principle that stands against Parliamentary legislation.
“I am not getting into area where there was a overhang of the treaty where till time the UK was part of Europe and how that worked and impacted is not necessary today. The important distinction always was been between the two positions. A flexible constitution and a rigid constitution. The basic structure doctrine evolves a third dimension and that third dimension was sort of a halfway house that Parliament could amend the Constitution, but not the basic structure.
Purely from a jurisprudence point of view, it is a paradigm shift in the thinking of constitutions and instead of having a binary divide between a rigid and flexible constitution. We now have a greater area where constitutions are in certain areas and… coming down to a degree of granularity, let us see how it began, and how it has reached… As you know, the initial constitutional battles were fought around the right to property.
The first amendment which brought in article 31A and 31B were challenged, when land reforms were put in place. The feudal land owners challenged the land reforms laws. That was the battle ground initially.
Article 368 originally had a marginal note, which said procedure for amending the constitution. It provided that it has to be by 2/3rd present in majority. Shankari Prasad Singh Deo vs Union of India, Sajan Kumar, the first battle before supreme court did not find any limitation in Article 368. The SC also did not find article 13 to be an impediment. In Shankari Prasad Singh Deo vs Union of India (AIR. 1951 SC 458), the Supreme Court unanimously held, “The terms of article 368 are perfectly general and empower Parliament to amend the Constitution without any exception whatever. The argument was that under article 13, any law which has been inconsistent with part 3 is void.
A constitutional amendment is a law, and if it violates part 3, it is void, which therefore leads to the conclusion that Fundamental Rights can never be amended. This was rejected in two cases, Shankari Prasad and Sajan Kumar. By Supreme Court saying that a constitutional amendment needs a constitutional amendment, Article 13 did not apply. This was Parliament exercising constituent power vs parliament exercising legislate part under the two lists. (List 1 and 3) On that principal therefore, SC decline to read any limitation on parliament’s power of amendment.
If we pause here for a moment we realise that we are in a situation where for all practical purposes our constitution becomes what is called a flexible constitution. Ultimately what does article 368 requires, it requires parliament 2/3rd vote, and if it’s 2/3 without any limitation then we are in a situation where really there it is down to numbers gain. There was this ideological conundrum which kept haunting the court, that is what lead to SC revisitng the whole construct, that happened in golakhnath case.
Majority lead by Justice Subba Rao in Golakhnath went back on the Shankari Prasad, Sajankumar formulation and set 368 as only a procedure. If the power of Indian constitution doesn’t spring from 368 and if 368 is only a procedure then where do we find the power to amend the constitution. The majority answered that, that power is found in entry 97 of list 1. The residuary list. Now the result of this line of reasoning is, that if it is entry 97 list 1 with article 250…246 etc. the ordinary legislative power of parliament, and if those provisions apply as they apply to any other law made by Parliament… then article 13 stands in the way of any Constitutional amendment that doesn’t or rather that seems to be inconsistent with constitutional rights.
Now it is obvious that an amendment which says a constitutional right shall be amended or shall be inapplicable is inconsistent with constitutional rights because it purports to amend the right. The net effect of golakhnath was that no amendments could be made to any Fundamental Rights. But Golakhnath was faced to the prospect was what do we do with the first amendment & all the land reforms & entry list which has gone by and started growing. So Golakhnath came up with a philosophy of prospective overruling. And they said herein after this shall be the position.
This was not satisfactory but continued till first 31C was inserted in the constitution through the 25th amendment act of 1971. through which the government tried to give primacy to some Directive Principles of State Policy over the Fundamental Rights. That’s when Kesvanand was called upon to revisit Golakh Nath. Mr. Palkiwala was clearly certain that SC will not accept the Golakhnath philosophy because it went too far.
He started working on an alternative hypothesis and found a lot of international material. This solve the hypothesis of Implied legislation.
SCAORA President Shivaji Jadhav said, “We could not have find a better speaker then Salve, who is a senior advocate and a former Solicitor General. I am hopeful that the present series will help people.