This article has been written by Harshita Varshney, from Faculty of Law, Aligarh Muslim University. The author has tried to analyse the Waman Rao’s case which has been regarded as one of the landmark cases of the Supreme Court. It is also an important case related to the doctrine of the basic structure and the agrarian reforms led by the Congress government.
The Constitution of India did not emerge naturally. It has been developed time by time while adapting the social-legal changes. It is a never-ending process of evolution and that’s why many jurists have called it a living document. The changes are required to be met according to the need of the society to keep it young, alive and energetic. If it fails to serve its purpose then it will be of no use. It is always regarded that ‘a constitution is the vehicle of a Nation’s progress’. In the case of the Government of A.P. v. P.L. Devi (2008), the Court called the constitution of India as the Grundnorm in India. It is the supreme law of the land and sources of all other laws enforced in the country. Therefore, to keep it fresh and alive changes should be made according to the social and economic need of the country and this has been done by the Indian Judiciary. The Indian judiciary has given various landmark judgements to the Indian Constitutional Law. One of such cases is Waman Rao v. Union of India (1980).
Doctrine of the basic structure
The doctrine of basic structure is a very important judicial principle. It has not been defined in the constitution as it was evolved in Kesavananda Bharati’s case. Before the evolution of this case, the amending procedure of the constitution by the parliament was easy because there were no limitations exposed on the government due to which people of India have witnessed many events where the government has misused its amending power and has caused injustice.
As the Indian constitution is regarded as the living document because it requires changes from time to time and the power to make such changes in the constitution are conferred on the Parliament under Article 368 of the Indian Constitution. According to this article, the parliament has the power to amend any provision of the constitution by way of addition, variation or repeal, with following the procedure laid down under this provision.
Whereas Article 13 of the constitution is regarded as the ‘protector of Fundamental Rights’ because every law has to pass through this article to gain its constitutional validity. Article 13(2) has clearly laid down that law which violates any of the fundamental rights enshrined under Part III of the constitution, then it will not be called as a constitutionally valid law.
Therefore, the two most important articles related to the doctrine of the basic structure are Article 13 and Article 368. So, when these two provisions clash with each other various important questions arise like can the constitution be amended by the parliament, can the preamble be amended under Article 368, can the fundamental rights be amended by the parliament and whether the power exercised by the parliament under Article 368 is absolute. These questions were discussed in the series of the cases and in the end, it was observed that there was a tussle of powers between the Supreme Court of India and Parliament of India.
Evolution of the doctrine through a series of events
The doctrine of basic structure has evolved from the series of some cases in which the scope of Article 13 and 368 was deeply discussed and due to which a cold war was started in between the Supreme Court and the Parliament that among them who is supreme.
Shankari Prasad v. Union of India (1951)
The first case of the series is Shankari Prasad v. Union Of India. In this case the Constitution (First Amendment) Act, 1951 was challenged. This amendment had abolished the Zamindari System and certain laws related to the agrarian reforms were added which were curtaining the right to property and to protect those laws from judicial review Article 31A and Article 31B was added. These laws were looked upon as an attack on the fundamental right, Right to Property. The question raised in this case was whether the parliament can amend the fundamental rights by way of amendments. The court held that the word ‘law’ in Article 13(2) should be understood in its ordinary sense and does not include a constitutional amendment and also under Article 368 the parliament has the power to amend the fundamental rights. The Court also made a distinction between legislative power and constituent power.
Sajjan Singh v. State of Rajasthan (1965)
This is the second case of the series related to the evolution of the doctrine of the basic structure. In this case, the Constitution (Seventeenth Amendment) Act, 1964 again amended Article 31A and Article 44 new acts were included in the Ninth Schedule and were challenged as it was restricting the powers of the High Court. The bench of this case consisted of the P. B. Gajendragadkar C.J., Wanchoo, Raghubar Dayal, Hidayatullah and Mudholkar JJ. The judgment was given in 3:2 ratio and the majority of the bench took a view of the earlier case i.e. the Shankari Prasad’s case and held that the meaning of the words ‘Amendment of this Constitution’ meant an amendment of any part of the constitution including Fundamental Rights. They also observed that even if Article 368 didn’t confer the power on the parliament to amend the fundamental rights. The parliament can any time amend the constitution and include those powers.
However, J. Hidayatullah and J. Mudholkar were having difficulty in accepting the view of the Shankari Prasad’s case that ‘the fundamental rights are nothing fundamental to the constitution and even they can be amended by way of the amendments like other parts of the constitution’. J. Hidayatullah observed that he requires firm reasons to accept the view that the fundamental rights were not really fundamental but were intended to be as common with other parts of the constitution which can be amended by the parliament and J. Madholkar observed that the word ‘law’ in Article 13(2) includes the constitutional amendment. Therefore, according to the decision of the majority the Constitution (Seventeenth Amendment) Act, 1964 was declared constitutional valid and it was also settled that the parliament can amend any part of the constitution including the Fundamental Rights.
Golak Nath v. State of Punjab (1967)
In this case, the Constitution (Seventeenth Amendment) Act, 1964 was again challenged before the court of law and the question was raised whether the power of parliament to amend the Fundamental Rights are limited or unlimited. A bench of 11 judges was constituted for the first time for this case. The bench consists of Rao, K. Subba (CJ), Wanchoo K.N, Hidayatullah. M, Shah J.C, Sikri S.M, Bachawat R.S, Ramaswami V, Shelat, J.M, Bhargava, Vashishth, Mitter, G.K, Vaidyalingam C.A. The judgement was delivered in a 5:6 ratio and the majority wrote the opinion.
The court reversed the settled situation of previous cases and held the power of the parliament to amend the constitution is not an unlimited power it is subject to limitations of ‘judicial review’. Until now it was settled that the parliament had unlimited power to amend the constitution that even Article 13 couldn’t stop it. But this settled situation was reversed in this case as these powers of parliament were subject to some limitations.
Further, the Supreme Court went ahead and observed that the parliament can not amend or abridge the Fundamental Rights by way of constitutional amendments. The court also discussed the scope of Article 13(2) and observed that the word ‘law’ under the said provision includes constitutional amendment and if any amendment is in deterioration with the fundamental rights then it would be declared as unconstitutional. Therefore, the power of parliament to amend the constitution under Article 368 is subject to some limitations imposed by Article 13(2).
Constitution (Twenty-Fourth Amendment) Act, 1971
From the arguments made by the state and the judgement made by the Supreme Court, an inference can be drawn that there was a tussle of power between the Supreme Court and the parliament regarding who has more power. Until the Shankari Prasad’s case and the Sajjan Singh’s case, it was settled that the parliament had unlimited powers to amend the whole constitution by way of amendments. But in the Golak Nath’s case, the Supreme Court held that the parliament has limited power under Article 368 and it cannot amend the fundamental rights.
The parliamentarians couldn’t digest what happened in the Golaknath’s case so they came up with the Constitution (Twenty-Fourth Amendment) Act, 1971 which made the major changes in Article 13 and 368.
Through this amendment, clause (4) was added in Article 13 which said that ‘nothing in Article 13 would be applied to Article 368’, which means any amendment could be made by the parliament under Article 368 and it would not be subject to the judicial review under Article 13.
Under Article 368, the marginal heading of the provision was changed from ‘Procedure for amending the constitution’ to ‘Power of Parliament to amend the Constitution and Procedure thereof’. Further, clause (3) was added to Article 368 which said that ‘nothing in Article 13 would be applied to Article 368’. The main aim of this amendment was to prevent the powers of parliament under Article 368 from the ambit of judicial review under Article 13. Simply, they want to exclude the applicability of Article 13 on Article 368. Therefore, after this amendment, the judgment passed in the Golaknath’s case holds no value.
Kesavananda Bharati v. State of Kerala (1973)
The judgement pronounced, in this case, is regarded as the most important decision delivered by the Supreme Court of India as it saved the Indian Democracy. In this particular case, the doctrine of basic structure was evolved. A bench of 13 judges was constituted for this case and the judgment was given in 7:6 ratio. The majority judgement in the case was pronounced by S.M.Sikri C. J., Hegde J, Mukherjea J, Shehlat J, Grover J, Jaganmohan Reddy J, Khanna J, and was dissented by Ray J, Palekar J, Mathew J, Beg J, Dwivedi J and Chandrachud J. Finally, through the judgement of this case, the tussle between the parliament and the judiciary was ended. After hearing the case for sixty-eight long days, a huge judgement of 703 pages was pronounced on 24th April 1973.
The Kerala government passed the Land Reforms Amendment Act in 1969 according to which, the government could take possession of some of the lands in the Mutt, a religious institution. Under the said Act, the Kerala government acquired the land of the petitioner, Swami H.H. Sri. Kesavananda Bharati, Senior Head of Edneer Mutt. For this, he moved to the Supreme Court challenging the validity of the said act as it violates the fundamental rights. Along with this Act, the 24th and 25th Constitutional Amendment Act was also challenged. According to the Constitution (Twenty-Fourth Amendment) Act, 1971, the parliament can amend any part of the constitution including the Fundamental Rights and the Constitution (Twenty-Fifth Amendment) Act, 1971 gave power to the parliament for acquiring the properties and the word ‘compensation’ under Article 31(2) was replaced by the ‘amount’, which was decided by the government itself. Also, the question related to the scope of power of parliament to amend the constitution was raised before the Supreme Court.
The Supreme Court overruled the Golak Nath’s judgement and gave a very balanced judgement and said that the power of parliament to amend the constitution was already implicit in the Constitution. The Constitution (Twenty-Fourth Amendment) Act, 1971 merely makes it implicit or declaratory. Simply, this means that the parliament can amend any part of the constitution including Fundamental Rights but the basic structure of the constitution can not be amended. Further, the Supreme Court observed that the old constitution can be amended to form a new constitution but it should survive through its basic or fundamental features which also means that the parliament cannot amend the basic structure of our constitution. There are some implied limitations for amending the constitution by the parliament. While discussing the scope and ambit of Article 368 the Supreme Court held that it was not the intention of the constitutional maker to use the word ‘amendment’ in its wider sense. It was their intention and belief that the fundamental rights and fundamental features of the constitution would always survive in the welfare state and would never destroy the fundamentals of the Indian Constitution. The Powers of the parliament to amend under Article 368 should be such that it should neither lay to the total destruction of the powers nor freeing from all the reasonable restrictions. Simply, the increase and decrease of power of parliament to amend the constitution under Article 368 should not authorize the parliament to destroy the basic structure of the constitution. The Supreme Court also held that the Constitution (Twenty-Fourth Amendment) Act, 1971 was entirely valid. But it found the first part of the Constitution (Twenty-Fifth Amendment) Act, 1971 to be intra vires and the second part of the same ultra vires.
Post Kesavananda Bharati’s cases
After the evolution of the doctrine of the basic structure, the Supreme Court has invoked this doctrine in many cases. Since the court has not provided an exhaustive list of what will fall under the domain of the basic structure. However, in Kesavnanda Bharts’s case, Sikri, C.J. explained that the concept of the basic structure included supremacy of the Constitution, republican and democratic form of government, secular character of the Constitution, separation of powers between the legislature, executive and the judiciary and federal character of the Constitution. Furthermore was added by the Shelat, J. and Grover, J, the mandate to build a welfare state contained in the Directive Principles of State Policy, unity and integrity of the nation and sovereignty of the country. Since after this list has kept on increasing by the court as it has been deduced by courts in various cases. The first case in which this doctrine was invoked was Indira Nehru Gandhi v. Raj Narain (1975).
Indira Nehru Gandhi v. Raj Narain (1975)
In this case, popularly known as, Election Case, Mrs Indira Nehru Gandhi won in a constituency in 1971 Lok Sabha’s election and the Congress party won the elections with full majority. Raj Narain, a politician from opposition contested before the Allahabad High Court by filing a petition that Mrs Gandhi had used unfair means to win the election. The High Court found her guilty of misusing government machinery under Section 123(7) of Representative of Peoples Act, 1951. Further, the court held that she cannot hold the post of Prime Minister of India and also barred her from contesting election for another six months. Mrs Gandhi filed an appeal in the Supreme Court against this order. However, the Court was not in session but it granted a conditional stay. Discontented by the decision of the High Court, the then government, imposed the emergency on the grounds of internal disturbance after obtaining the assent of the then President Fakhrudeen Ali Ahmad.
While the matter was pending before the Supreme Court, the parliament passed the Constitution (Thirty-Ninth Amendment) Act, 1975, which added a new provision, Article 329A and 38 new laws were also added to the ninth schedule. This new provision declared that all courts of India including the Supreme Court don’t have any jurisdiction over the disputes regarding the elections of the Speaker of the Lok Sabha, President and the Prime Minister. This amendment also nullified the effect of the Allahabad High Court’s judgement.
So, in this case, the constitutional validity of the Constitution (Thirty-Ninth Amendment) Act, 1975 was challenged. The Supreme Court unanimously held that the impugned amendment is not constitutionally valid as it violates the basic structure of the constitution. Also, in this case, four features were also recognised as the basic features and these were Judicial review, free & fair elections, Rule of law and Right to equality.
Constitution (Forty-Second Amendment) Act, 1976
The government could not digest the judgement of the previous case. Therefore, the parliament passed the Constitution (Forty-Second Amendment) Act, 1976, which added the clause (4) & (5) in Article 368. According to the clause (4) “No constitutional amendment (including the provision of Part III) or purporting to have been made under Article 368 whether before or after the commencement of the Constitution (42nd Amendment) Act, 1976 shall be called in any court on any ground”, which means any constitutional amendment cannot be challenged in any court of law which gives immense power to the parliament for amending any part of the Constitution. Clause (5) of Article 368 reads as “there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal of the provisions of the Constitution under this Article”. This also means that the amending power of the parliament is unlimited and it is not even subjected to the judicial review.
Minerva Mills v. Union of India (1980)
Minerva Mills was a textile industry, producing a mass amount of silk clothes and provided a market to the general public in the State of Karnataka. This textile company was nationalized by the Central Government. Its control was taken over by the Central Government under the Sick Textile Undertakings (Nationalisation) Act, 1974, which was added to the Ninth Schedule by the Constitution (Thirty-Ninth Amendment) Act, 1975. Therefore, in this case, the constitutional validity of the Constitution (Forty-Second Amendment) Act, 1976 as well as the Clause (4) & (5) of Article 368 added by the said amendment was challenged in this case.
The Supreme Court held the Clause (4) & (5) of Article 368 as unconstitutional as the alleged provisions were attacking the Basic Structure of the Constitution. These clauses were destroying the feature of ‘judicial review’, one of the important basic features of the Indian Constitution.
After this case, it was finally settled that neither the Parliament nor the Supreme Court is supreme. However, the Constitution is supreme as it is the supreme law of the land and sources of all other laws enforced in the country and the parliament can not exercise unlimited powers to amend the supreme law of the land. Further, the court observed that our constitution is a prestigious heritage and no one can destroy its identity.
Waman Rao v. Union of India, 1980
The Waman Rao v. Union of India is regarded as one of the important cases of the constitutional law of India. It was decided on 13th November 1980 in 4:1 ratio.
On 26th January 1962, a ceiling on agricultural holdings was imposed in Maharashtra by the Maharashtra government through a law named Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 27 of 1961. The ceiling was fixed by this act and later on, it was further lowered and various amendments were made to it from time to time. According to this act, a limit was created on how much land can be held by an individual. The Bombay High Court received more than 2660 petitions which challenged the validity of the act and amendments made to it.
In the case of Vithalrao Udhaorao Uttarwar And v. The State Of Maharashtra (1976), the Nagpur bench of Maharashtra High Court held that the said provisions are not open to judicial review on the ground that they abridge or violate any right contained in Part III of the Indian Constitution. The Court held that the said laws are placed in the ninth schedule of the constitution, added by the Constitution (Seventeenth Amendment) Act, 1964, which are protected from judicial scrutiny as per Article 31B. Further, the court also observed that during the promulgation of an emergency the fundamental rights remain suspended. Therefore, Article 14 and Article 19 couldn’t be enforced by the court of law. The High Court rejected the plea also on the grounds that said provisions formed a part of an integral scheme of agrarian reforms under which large agricultural holdings had to be reduced and the surplus land distributed amongst the landless and others.
On 27th January 1977, in the case of Dattatraya Govind Mahajan & Ors. v. State Of Maharashtra & Anr the review petition was filed in the Supreme Court against the decision of Bombay High Court in Vithalrao’s case. As the judgement of this appeal was passed during the proclamation of emergency the court rejected the appeal and held that it was entirely left on the legislature to decide which policy to adopt for the purpose of improving the agrarian system of the country and the Court could not question such police and assume the role of an economic adviser for deciding upon the insight of the said policy.
When the emergency was revoked, the petitions were again filed in the Supreme Court against the decision passed in Dattatraya’s case. Therefore, the present case i.e. Waman Rao v. Union of India (1980) is the review of the Dattatraya’s case.
In this case, the constitutional validity of the three provisions was challenged. These three provisions are:
These provisions were challenged on the ground that they have attacked certain provisions of the Indian Constitution. It was also contended by the petitioners that the above-mentioned provisions have also violated the Basic Structure of the Constitution, which was evolved in Kesavananda Bharati’s case. The petitioners also pointed out that such laws were passed during a period when the tenure of the parliament was extended.
Provisions related to the case
In this case, the constitutional validity of the three provisions related to the rights of property was challenged in the court, namely Article 31A, Article 31B, and Unamended Article 31C, which are discussed below:
At that time, the then Congress government was planning to promote the development of the country by providing loans to the farmers and small businesses. To achieve this, the Congress government decided to nationalize all the private banks and this decision of the government was challenged in the court in the case of RC Cooper v. Union of India (1970), on the ground, that although the government had compensated for the bank the banks are not paid for their reputations. To this, the Supreme Court held that the government can not arbitrarily compensate the parties.
To this, the parliament introduced a new amendment, the Constitution (Twenty-Fifth Amendment) Act, 1971 which changed the word ‘compensation’ to ‘amount’ due to which the government can now pay that amount as desired by them.
Article 31A was added by the Constitution (First Amendment) Act, 1951. According to it the government can acquire or purchase the property of the people and this would not violate the rights mentioned under Article 14 and Article 19. Basically, this provision was immuned because it could not be challenged in the Court of law on the ground of violation of Article 14 and Article 19.
Article 31B was also added by the Constitution (First Amendment) Act, 1951. This provision was related to the laws contained in the ninth schedule of the Indian Constitution. It states that the provisions mentioned in Article 31A and laws mentioned under ninth schedule cannot be declared as void on the ground that they might violate the fundamental rights mentioned in Part III of the Indian Constitution. It means that these laws were provided immunity from judicial scrutiny and they can not be challenged in the court of law on the grounds of violation of fundamental rights.
Unamended Article 31C
This provision was added by the Constitution (Twenty-Fifth Amendment) Act, 1971. Unamended Article 31C means Article 31C prior to the Constitution (Forty-Second Amendment) Act, 1976. Through this provision, the government tried to give priority to some Directive Principles of State Policy over the Fundamental Rights. According to it, any law which is made in order to put into practice Article 39(b) and Article 39(c) of Indian Constitution will avoid the scrutiny of courts even if it violates Article 14 and Article 19 of the Indian Constitution. The Courts would not have any jurisdiction to decide whether the enacted law has really promoted the principles mentioned in Article 39(b) and 39(c) of the Indian Constitution.
Later, this article was amended in 1976 by the Constitution (Forty-Second Amendment) Act, which extended the scope of this provision to all the principles contained in Part-IV.
The judgement of the case was given in the 4:1 majority. The bench was composed of Y Chandrachud C.J, A. Sen, P. Bhagwati, V. Tulzapurkar, V K Iyer. The majority judgement was pronounced by Chandrachud C.J. on behalf of V K Iyer, V. Tulzapurkar and A. Sen whereas the dissenting view was presented by Justice P Bhagwati.
- The court held the alleged laws as constitutionally valid. The court pointed out that the main aim of the Parliament behind the said provisions was to reduce the inequalities and economic gap in the society for the development of the country. The court also held that the court stated that the doctrine can only be applied to the law protected by the article and not on the articles itself.
- The court also clarified the confusion which was created by the Kesavananda Bharati’s case by saying that all the acts and regulations placed under ninth schedule before the date of Kesavananda Bharati’s judgement can not be challenged in the court of law on the ground of violation of Fundamental Rights mentioned under Part III of the Indian Constitution. However, the court also observed that all the acts and regulations placed under the ninth schedule after the date of Kesavananda Bharati’s judgement would be constitutionally valid if they pass the basic structure of the constitution.
- The court also found the extended tenure of the Lok Sabha valid as the evidence provided was not enough and also it was secured under the provision of Article 352(3). Since the tenure of the Lok Sabha was declared valid then the alleged amendments could not be declared valid on the ground of extension of tenure of the Lok Sabha.
The constitution of India did not emerge naturally. It has been developed time by time while adapting the social-legal changes. It is a never-ending process of evolution and that’s why many jurists have called it a living document. Therefore, to keep it fresh and alive changes should be made according to the social and economic need of the country and this has been done by the Indian Judiciary. The Indian judiciary has given various landmark judgements to the Indian Constitutional Law. One of such cases is Waman Rao’s case. The court, in this case, cleared the confusion which was created by the Kesavananda Bharati’s case by creating a line between the laws and regulations enacted before and after the Kesavananda Bharati’s case.
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