Constitution in the Making

The demand that India’s political landscape be destined by the Indian’s themselves had been put forward by Mahatma Gandhi as early as in 1922. The history of the making of the Constitution of India can be traced back to the demand for Swaraj. The demand for the Constitution was emancipated by the failure of the Round Table Conference and the formation of the Statutory Commission which led to the enactment of the Government of India Act, 1935. This particular demand of the Constitution was officially asserted by the Indian National Congress as well in the year 1935.

In 1938, Pandit Nehru said in the constituent assembly in one of his speeches as:

The National Congress stands for independence and democratic state. It has proposed that the constitution of free India must be framed, without outside interference, by a constituent assembly elected on the basis of adult franchise.

This particular statement was also reiterated by the Working Committee of the Congress in 1939.

For the very first time, it was the coalition Government in Britain that recognised the importance of the Constitution for the people of India and that particular Constitution should be framed by the people of the country themselves. But, at that time, the Japanese were at the borders of the country and for not escalating the condition, the British Government sent Sir Stafford Cripps, a member of their cabinet, with a draft declaration in his hand.

The introduction of the federal principle into Indian Constitutional Law was brought by the Government of India Act, 1935. There was also a provision of a separate Federal Court for the disputes which are unconstitutional in nature. The appeals from the Federal Court were heard by the Judicial Committee. The Supreme Court under the Constitution of India, 1950 and preceding Indian legislation succeeded the jurisdiction of the Federal Court and the Judicial Committee.

The Supreme Court of India has indeed been responsive to the changes in the Indian Society if we see the historical viewpoint of the Court and if we trace the path taken by the judiciary in general. The Constitution of India, including the Part III (Fundamental Rights) and the Directive Principles along with the federal system acted as all new obligation on the Indian judiciary. There is a Latin maxim, boni judicis est ampliare jurisdictionem which means that it is the duty of a good judge to extend the jurisdiction. The Indian judiciary has acted upon this maxim quite extensively in cases where protection of fundamental rights or basic human rights is concerned.

The Judicial Journey of Basic Structure

The judicial journey and development of the ‘Basic Structure’ doctrine has been covered from Shankari Prasad v. Union of India (1951) in Part III, Sajjan Singh v. State of Rajasthan(1965) in Part IV, I. C. Golakhnath v. State of Punjab (1967) in Part V and finally the Keshavananda Bharati v. State of Kerala (1973) in Part VI.

Shankari Prasad v Union of India

In the case, the Constitution (First Amendment) Act, 1951, curtailing the right to property guaranteed by Article 31 was challenged. The basic argument was that Article 13 prohibits the enactment of a law abrogating the Fundamental Rights.

Justice Mudholkar in the judgement dissented with the opinion –

It is also a matter for consideration 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 Article 368?

Sajjan Singh v State of Rajasthan

For the next 13 years following Shankari Prasad, the question of amenability of the fundamental rights remained dormant.

In the case of Sajjan Singh v State of Rajasthan the validity of the Constitution (Seventeenth Amendment) Act, 1964 was called in question. This amendment again adversely affected the right to property. Taking the help of this amendment, a number of statutes affecting the property rights were placed in the ninth schedule and were thus out of reach of the purview of any court of law.

Justice Mudholkar was quite reluctant in this case, “to express a definite opinion in the question whether the word ‘law’ in Article 13(2) of the Constitution excludes an Act of Parliament amending the Constitution and also whether it is competent for Parliament to make any amendment at all to Part III of the Constitution.” This argument of Justice Mudholkar was set in a much broader frame. One of the most basic arguments of his was that every constitution has certain fundamental features which cannot be altered.

IC Golak Nath v State of Punjab

The question that any of the Fundamental Rights could be abridged or taken away by any act of Parliament under Article 368 was raised in Golak Nath in 1967. Again the constitutional validity of the Constitution (Seventeenth Amendment) Act was challenged in a very vigorous manner. Eleven judges participated in the judgement and delivered the judgement in the ratio of 6:5.

The viewpoint of the majority of the judges in the particular case was that the Fundamental Rights occupy a “transcendental” position in the Constitution so that no authority functioning under the Constitution including the Parliament cannot abrogate any Fundamental Rights guaranteed in Part III of the Constitution under Article 368.

When No Part of the Constitution was Amendable

As the word ‘fundamental’ proposes, under a few constitutions, fundamental rights are immune from constitutional amendment; at the end of the day, they are conferred with uncommon holiness as contrasted with other parts of the Constitution. Be that as it may, this rule has been dismissed by the Indian Constitution, as it stands deciphered by amendments of the Constitution themselves and judicial decisions.

Obviously, no piece of the Constitution of India can be changed by a conventional legislation except if so approved by the Constitution itself (e.g., Article 14 ); however all parts of the constitution can be amended by an amendment act passed under  Article 368, including the fundamental rights.

In the case of The State of West Bengal vs. Subodh Gopal Bose and Others  (1953), Mandakolathur Patanjali Sastri, who was the 2nd Chief Justice of India, advanced the theory that Article 19(1)(f)  is supposed to be dealing only with the natural rights innate to a citizen to acquire, hold, dispose of property in the abstract without any allusion to any property in particular; that Article 19(1)(f)  talks only about the abstract right and capacity to hold, acquire and dispose of property and had no association to concrete property rights. In other words, the article precludes the state to deny to particular individuals, or classes of individuals, the right to own property but did not protect a citizen’s interest in a particular piece of property or business from state interference”. Jagannadha Das J contested this view. He opinions that, “to construe Article 19(1)(f)  as not referring to concrete property rights would enable the legislature to impose unreasonable restrictions on the enjoyment of concrete property interests”. It was clarified by the Supreme Court in the case that the constitutional obligation of paying compensation emerged just when the State activity brought about the substantial deprivation of the person’s private property. It was additionally proposed that clauses (1) and (2) of Article 31 are not totally unrelated in extension and substance but rather ought to be read together and comprehended as dealing a similar subject, to be specific, the protection of the right to property. The limitations envisaged on the power of the State to take away property is similar when incorporated into clauses 1 and 2 of Article 31.

Further the words “taking of . . . possession”, in Article 31(2) and the words ‘acquisition or requisitioning’ in Entry 33 of List I  and Entry 36 of List II as likewise the words ‘acquired or requisitioned’ in Entry 42 of List III are distinctive articulations hinting a similar idea and occurrences of various types of deprivation of property inside the importance of Article 31(1) of the Constitution.

This particular decision of the Supreme Court was superseded by the Government by Constitution (4th Amendment Act), 1955. This particular Act amended articles 31, 31A and 305 and the 9th Schedule of the Constitution.

Furthermore, in the case of Shankari Prasad Vs. Union of India 1951 the Supreme Court held that the parliament’s amending power under Article 368  also includes the power to amend the fundamental rights guaranteed in Part III of the Constitution. Further, it said that a constitutional amendment act enacted to abridge or take away the fundamental rights is not void under Article 13(2). Therefore, the Court upheld the validity of the 1st Amendment Act (1951), which curtailed the right to properly by inserting Articles 31 A and 31 B. In addition to this the Supreme Court reiterated its judgment in the case mentioned above in the case of Sajjan Singh vs. State of Rajasthan (1965).

The legitimacy of the 17th Amendment Act, 1964  (which changed the meaning of an estate given in article 31A  of the Constitution in order to incorporate in those lands held under ryotwari settlement notwithstanding different grounds in regard of which arrangements are ordinarily made in land reform enactments. The Amendment likewise included 44 extra State enactments identifying with land changes to the Ninth Schedule to the Constitution with the end goal to anchor their constitutional validity and keep them from being tested before the judiciary on the ground that they are conflicting with any of the provisions of Part III of the Constitution identifying with Fundamental Rights. This was tested on the ground that one of the acts inserted by the amendment in the 9th Schedule influenced the applicant on the premise that the amendment fell inside the domain of Art. 368.

Supreme Court approved the judgment in Shankari Prasad case and held that on Article 13 (2)  the case was rightly decided. The amendment includes an amendment to all provisions of the Constitution.

In this manner, the Supreme Court had been holding that no part of our Constitution was unamendable and that Parliament may, by passing a Constitution Amendment Act, inconsistency with the prerequisites of Art. 368 amend any provision or act of the Constitution, including the Fundamental Rights and Art. 368 itself.

As per this prior view, hence, the Courts could go about as the guardian of the fundamental rights just inasmuch as they were not amended by the Parliament of India by the required majority of votes. Indeed, a portion of the amendments of the Constitution so far made were influenced with a view to overriding legal proclamations which had refuted social or financial enactment on the ground of negation of fundamental rights.

Then they Amended the Constitution

Amendment denotes adjustment, amelioration, betterment, change, elaboration, emanation enhancement, improvement, notification and refinement etc.  Indian Constitution can be amended by way of addition, variation or repel. The constitution prescribes three types of the amendment. First which can be affected by a bare majority; like the majority required in the passing of any ordinary law. These amendments are contemplated in article 4, 169 and 240. The second type being the amendments lay down in article 368. Any constitutional amendments except for ones in the above-mentioned article require special majority and are only amended through the procedure mentioned in article 368. Special majority means support of more than fifty percent of the members in each house and more than two-third members present and voting. The third kind of amendment is for the articles or part mentioned in the proviso of article 368. In addition to the special majority, it also requires rectification of more than half the states to amend them. First amendment to the Indian Constitution was brought up in 1951. Prominent changes were the addition of article 31A, 31B. Changes were made so that the menace of Zameendari system can be curbed. The basic idea behind the addition of article 31A and 31B was to protect the land reform laws from judicial review. Article 31A provided power to state to acquire any state.

It further saves laws related to the acquisition of property from invalidation. Schedule 9 was added to the constitution in correspondence to article 31B. Article 31B saves the legislation from judicial review. From the very date, legislation is added to the ninth schedule, it cannot be held null and void by the judiciary even if it is in contravention with fundamental rights. The potential power this amendment incurred in the hands of parliament is too wide. Initially, the ninth schedule had only 13 laws present but now the number has gone up to 284  laws thus providing the reputation of ‘constitutional dustbin’ to the ninth schedule. The ninth schedule was Nehru’s vessel to protect agrarian reforms which later became a constitution dustbin for Indra Gandhi and later governments. The main difference between 31A and 31B is that while the former only protects the laws related to the acquisition of property the later serves multiple purposes providing immunity to any kind of legislation. In the authority of IR Coelho v State of Tamil Nadu, the immunity of schedule 9 was subjected to limitations making the laws in ninth schedule go through a check if they are consistent with the basic structure. The decision of IR Coelho was upheld in the case of Glenrock Estate (P) Ltd v The State of Tamil Nadu. In this case, principles laid in IR Coelho were applied and the disputed Janmam act was struck down from the ninth schedule because it damages the basic structure of the constitution. The first amendment was challenged in the case of Sri Shankari Prasad Deo v Union of India and State of Bihar. The challenge was to the validity of article 31A and 31B. This amendment was challenged on the basis that it is in contravention to fundamental rights. According to article 13(3); any law made by the state in derogation with fundamental rights shall be void. Thus it was argued that the constitutional amendment shall also count as law. Also, that parliament is a part of the state, and therefore the first amendment shall be declared void. Justice M Patanjali Sastri brought up the doctrine of harmonious construction to resolve this issue. The dispute was between Article 368 and Article 13(2). Article 368 lay down the procedure to amend the constitution. Justice Sastri was of the opinion that the term law under article 13 only covers ordinary laws while the amendments made under article 368 are made using the constituent power of the parliament. Thus the amendments are out of the purview of article 13. The appeal was thus dismissed.