Phantom of Basic Structure of the Constitution

PHANTOM OF BASIC STRUCTURE OF THE CONSTITUTION
Author(s): Ramesh D. Garg

Source: Journal of the Indian Law Institute , April-June 1974, Vol. 16, No. 2 (April-
June 1974), pp. 243-269
Published by: Indian Law Institute
Stable URL: https://www.jstor.org/stable/43950358
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PHANTOM OF BASIC STRUCTURE OF THE CONSTITUTION
A critical appraisal of the Kesavananda case
Ramesh D. G arg*
I. Introduction
AMENDABILITY OF fundamental rights and the scope of Parliament's

amending power are the questions which have haunted the minds of consti-
tutionalists in India since the GolakNath case1 in 1967. It was hoped that the
Kesavananda case2 would bring clarity and certainty in the answers to these
questions, but the questions, which were only controversial, have become
somewhat mysterious by the introduction of a phantom of basic structure
into the arena of controversy. What is the content of the basic structure
of the Indian Constitution and to what extent it limits the Parliament's
power of amendment is a matter of great doubt and uncertainty. It was
thought and believed by Palkhivala that the trained judicial perception3 can
identify the elements and define the contours of the basic structure but,
despite the long and skilled arguments of the petitioner's counsel and the
numerous detailed judgments of the Supreme Court, the essential elements
of the so-called basic structure defy clear identification. Even the judges
who support the theory of basic structure define it in different ways. Even
if one is able to see the vague outlines of the basic structure, the element
of permanence which is supposed to be its bed-rock is far from certain.
Whether there are certain unencroachable limits of the basic structure or
not, it is very clear to this author that there are certain limits of judicial
review which the judiciary should refrain from transgressing. These con-
troversies have come into being and persisted despite endless discussion due
to certain inherent difficulties in constitutional interpretation which we
will try to resolve,
* B.Sc., LL.M. (London), Associate Research Professor, Indian Law Institute.

1. Golak Nath v. State of Punjab, A.I.R. 1967 S.C. 1643; (1967) 2 S.C.R. 762.
2. Kesavananda v. State of Kerala , A.I.R. 1973 S.C. 1461 (hereinafter referred to
as Kesavananda).
3. See the observation of Dwivedi, J., in Kesavananda at 1986, while summarizing
the arguments of Palkhivala. Ray, J., also makes reference to Palkhivala's contention that
appreciation of the trained judicial mind is the only way to find out what essential features
are, see Kesavananda at 1684. Mathew, J., does not think that the essential features of the
Constitution and the core of a fundamental right are too elusive for judicial perception, but
the question will still remain, even when the core or the essence of a fundamental right is
found, whether the amending body has the power to amend it in such a way as to destroy
or damage the core. He observed (at p. 1947) :
[TJhat considerations of justice, of the common good, or "the general
welfare ina democratic society" might require abridging or taking away
of the fundamental rights.

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244 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 16 : 2
Most of the statements of law are susceptible to more than one

logically valid and legally tenable interpretation. Choice of one interpreta-
tion or the other is a difficult one. When this problem of interpretation
arises in the context of ordinary law, the difficulty is not so great as
constitutional norms are there to guide in testing the validity and making a
choice but when the problem is posed in constitutional law the difficulty
is two-fold. Since, there is no system of super-constitutional norms to test
the validity of a constitutional provision the question of validity remains
outside the legal prccess. Validity of a constitution lies in the social
acceptance of it. In case of constitutional amendments the only test
of validity is their conformity to the prescribed procedure. There is no
substantive criterion to test the validity of their content.4 The second
aspect of the problem is the choice between two possible constructions.
Since constitutional questions are often inseparably linked up with vital
social, economic and political questions, the choice is not always purely
and simply a legal one. It may involve a choice in the light of broad
considerations of justice, social values, public policy and sometimes of
technical information outside the knowledge of a lawyer. Such choices
tend to be conditioned by what Justice Holmes called inarticulate major
premise, that is, the judge's view of justice. In order to avoid the influence
of subjective bias in choosing an interpretation, it is useful to articulate
the notion of justice and formulate the criteria of judgment.
Justice in the formal sense is to render everyone his due according to law.
But, when there is a doubt about the content of law or the justness of it,
one has to look for some other standards. Roscoe Pound presented his
theory of interests and formulated certain jural postulates as a guide in
determining the legitimacy and priority of interests with a view to giving
them due legal recognition. According to him:
4. H. Kelsen, General Theory of Law and State 116 (1961). Ray, J., discusses
the criterion of validity. See Kesavananda at 1654. He rightly points out that :
[A]n amendment being the Constitution itself can never be invalid. It is self
validating. An amendment is made if the procedure is complied with.
Once the procedure is complied with it is a part of the Constitution.
Mathew, J., discusses Kelsen's view of the criterion of validity. He says:
The validity of the Constitution generally lies in the social fact of its teing
accepted by the community and for the reason that its norms have become
efficacious. Its validity is meta-legal.
(Id. at 1911). See also P.K. Tripathi, Some Insights into Fundamental Rights ch. 1 (1972).
Also see P.K. Tripathi, Kesavananda Bharati v. The State of Kerala Who Wins?
1 S.C.C.J. 3 (1974). He states:
The distincton between law and Constitution lay in the criterion of
validity; i.e., whereas an ordinary law depended on a higher law for estab-
lighing its own validity, a provision of the Constitution did not depend on
another law and, instead, generated its own validity.
Tripathi has elaborated this idea in his book referred to above.

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1974] PHANTOM OF BASIC STRUCTURE OF THE CONSTITUTION :45
The twentieth-century juristic thinking is taking two directions

....Indeed, two new jural postulates seem to be appearing:
(1) Everyone is entitled to assume that the burdens incident to
life in society will be borne by society.
(2) Everyone is entitled to assume that at least a standard
human life will be assured him; not merely equal opportu-
nities of providing or attaining it, but immediate material
satisfaction.5
This is an attempt to bring correspondence between the demands

made by men in a given society at a given time and its law at that time.
Explaining the theory of interests in the context of India Mathew,
J., stated:
The scheme of interests, like the jural postulates, is a device for
presenting to the mind of the legislator a rough picture of the
actual claims made by men in a given society at a given time,
to which justice requires them to give effect so far as possible.6
Mathew, J., further observed :
And, what are the de facto claims crying aloud for recognition
as interests for the millions of people of this country? That can
probably admit of only one answer, by those who have eyes to
see and ears to hear. By and large, the rough picture of the
actual claims made by the millions of people in this country and
which demand recognition as interests protected by law is sketched
in Part IV of the Constitution. A judgment of justice is called
for when these claims which call for recognition in law as in-
terest conflict with other rights and interests. That judgment
has to be made by the dominant opinion in the community.
For a Judge, to serve as a communal mentor, as Learned Hand
said, appears to be a very dubious addition to his duties and
one apt to interfere with their proper discharge. The court is
not the organ intended or expected to light the way to a saner
world, for, in a democracy, that choice is the province of the
political branch i.e. of the representatives of the people, striving
however blindly or inarticulately, towards their own conception
of the Good Life.7
The scheme of interests will have to be on the basis of an order of
priorities. The determination of the conflict of interests in society will, in
most cases, involve balancing, harmonising and adjustments of various
interests but in some cases it may involve sacrificing the interest of a lower
order to an interest of higher order. This is an inevitable part of the
5. Roscoe Pound, I Jurisprudence 528 (1959).
6. Julius Stone, Human Law and Human Justice 269-270 referred to by
Mathew, J., in Kesavananda at 1952.
7. Kesavananda at 1952.

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resolution of social conflicts and the maintenance of social progress. Such

determination of conflicts calls for the criteria of judgment. The scheme
of interests or the order of their priorities change from society to society
and from time to time. But the claims of social justice are becoming the
universal cry of our times. Provision for the minimum material conditions
for a civilized human existence has become the order of the day. They
are necessary for enlisting the minimum social support for a legal order.
Without such support no legal order can exist. Thus, they are the foun-
dations of the rule of law. Unless such foundations are stable no legal
order can last. These conditions also signify the basic rules of preserva-
tion of the individual and the social order. These rules also form the core
of natural law. In this core the fundamental individual interests and social
interests converge. Therefore, they have to be given top priority in the
order of interests. These interests find expression in the chapter on direc-
tive principles of state policy and they are rightly called the principles
fundamental in the governance of the country. These fundamental
principles call for recognition as legal interests. They represent the ad hoc
claims of the majority of the people. They express the will and the aspi-
rations of the people. Their recognition is necessary in order to seek
necessary support of the people for the legal order. If in recognising such
socially vital interests some individual interests have to be subordinated, it
has got to be done as a matter of unavoidable necessity. In former times,
inequitable legal orders were imposed on the people by the ruling classes
with the help of a system of religious and other irrational beliefs. Inequi-
ties of the order were rationalized through such beliefs. People did not
question them out of fear, ignorance or faith. Now these beliefs and
fears are going as a result of the revolutionary changes in the technology
and economy and the resultant scientific consciousness. People have
become conscious of their rights and are demanding their recognition.
The will to fight for their rights is developing. The only way to maintain
the legal order is to recognise these essential rights and claims to social
justice and at the same time educate people to make them conscious of
their corresponding duties. Education is a socio-psychological process
which affects the individual's emotional and moral disposition. It incul-
cates certain attitudes and values. It can impart the right kind of con-
sciousness and develop the character and personality of the individual
fully.8 Therefore, it can be effectively used to develop among people
proper attitudes towards law. Provision for free and compulsory education
up to secondary level is one of the directive principles which needs to be
given the earliest legal recognition. It is an essential condition for the
development of human personality and the maintenance of the rule of
law. If, in doing so, the right to property is curtailed unavoidably, it
must be done even if it amounts to adridgment or taking away of an indi-
8. John Dewey, Democracy and Education (1916). R.D. Garg, Education and
Social Problems (1 965).

106.76.78.61 on Thu, 24 Nov 2022 14:27:40 UTC
1974] PHANTOM OF BASIC STR UCTURE OF THE CONSTITUTION 247
vidual right contained in the fundamental rights chapter. It is the neces

price of the legal order, a price which must be paid in the interest of
society as a whole.
II. The scope of amending power
Fundamental rights, together with the directive principles contain

in the Indian Constitution, constitute the basic human rights and condit
essential for a civilized human existence and embody the conscienc
the Constitution.9 Historically, both fundamental rights and direc
principles have roots "in the doctrine of natural rights, Magna Ca
ßeclaration of the Rights of Man after the French Revolution, freedo
contained in the Bill of Rights of the American Constitution, idea
equality and social justice which inspired the Russian Revolution a
found expression in the establishment of a socialist state, Indian indepe
dence movement led by Mahatma Gandhi, U.N. Charter and the De
ration of Human Rights by the General Assembly of the United Natio
in 1948.
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248 JOVŘŇAL OF THE INDIAN LAW INSTITUTE (Vol. 16 : 2
Fundamental rights, no doubt, are very important and constitute

the bed-rock of civilization. But society keeps on changing with the
changes in the socio-economic conditions. The limits of these rights may
need constant re-definition. Even their essential content may undergo a
radical transformation. To enable necessary adjustments in the legal
relationships and to bring them in harmony with social realities, an amend-
ing power is provided in all constitutions. The easier the mode of amend-
ment, the more flexible the constitution is. In the absence of some
amending provision, a constitution will fail to contain the social changes
and is bound to break down. It is a necessary safety valve to allow radical
changes through constitutional processes. If the necessary changes cannot
be brought through constitutional means, revolution becomes a necessity.
Thus, an unlimited amending power and a simple procedure of amendment
is an effective means to bring about social revolution through law. The
British Constitution offers a very good example of a flexible constitution
with an easy procedure of simple majority vote to bring about any changes
in law including constitutional law. Perhaps, this aspect of constitutional
law and strong democratic traditions in Britain prompted even Marx to
say that probably Britain is the only country where revolution may be
brought about through peaceful and democratic means.10 Thus, to have
wide amending power and easy procedure of amendment is not to under-
value fundamental rights, nor is it an invitation to abolish them but is a
means to preserve them through necessary adaptations in harmony with
the changed social realities. Stability of fundamental rights lies not in the
absence of legal power to remove them but in the social and political
support for them.
The state is bound under article 14 of the Constitution to ensure
equality before law and equal protection of law within the territory of
India. Article 19 guarantees seven freedoms - the freedom of speech and
expression; right to assemble peaceably without arms; to form associations
or unions; to move freely throughout the territory of India; to reside and
settle in any part of India; to acquire, hold and dispose of property; and
to practise any profession, or to carry on any occupation, trade or
business. These rights are subject to reasonable restrictions in thè public
interest classified under various heads like public order, morality, territorial
integrity, etc. Article 21 guarantees protection of life and personal liberty.
10. Friedrich Engels (ed.) KÄfl Marx, Capital , (1952. 50 Britannic Great
Book Series). In the editor's preface tó the first English edition (published on Nov. 5,
1886) he recalls Karl Marx's hope of such a peaceful revolution. He said :
[S]urely, at such moment, the voice ought to be heard of a man (referring

to Karl Marx) whose whole theory is the result of a life-long study of the
economic history and condition of England, and whom that study led to
the conclusion that, at least in Europe, England is the only country where
the inevitable social revolution might be effected entirely by peaceful and
legal means. (P. 3).

106.76.78.61 on Thu, 24 Nov 2022 14:27:40 UTC
1974] PH A NTOM OF BASIC STR UCTURE OF THE CONSTITUTION 249
Article 22 guarantees certain procedural safeguards against detention.

Article 25 guarantees freedom of conscience and religion. Article 32
guarantees certain constitutional remedies through the Supreme Court for
the enforcement of fundamental rights. These are the most important
rights contained in the fundamental rights chapter. Article 13 declares
all laws in force, in so far as they are inconsistent with the provisions of
part III of the Constitution, void to the extent of inconsistency and it also
forbids the state from making any such law. Thus, fundamental rights
are given special sanctity by being kept beyond the reach of ordinary legis-
lative process.
Article 368 of the Constitution provides for the power and procedure
to amend the Constitution. It is a constituent power sui generis in nature
and its validity cannot be questioned as there is no higher law to test it.
The Constitution being the basic norm, is valid in itself. If the prescribed
procedure is followed in passing an amending Bill, the Constitution shall
stand amended in accordance with the terms of the Bill. It prescribes a
special majority for passing constitutional amendments. An amendment
Bill under article 368 must be passed in each House by a majority of the
total membership of that House and a majority of not less than two-thirds
of the members of that House present and voting. If the Bill concerns
state matters, as detailed in the proviso, it must be ratified by at least half
of the states legislatures before it is sent for assent to the President.
The question of Parliament's power to amend the fundamental
rights and whether there are any limits, express or implied, to this power
other than the requirements of following the prescribed procedure, has been
agitating legal minds in India for a number of years. This question first
arose in the Sankari Prasad case11 in 1951 in which the validity of the first
constitutional amendment was challenged. This amendment made
certain changes in the fundamental rights. The challenge was based on
the ground that the amendment in question is liable to be tested under
article 13 (2) and, since it violates fundamental rights, it is invalid.
The Supreme Court unanimously upheld the validity of the amendment
holding that article 13 does not govern constitutional amendments as the
word 'law' in that article refers to ordinary law and not to constituent
law. It may be useful to remember that the provisional Parliament which
passed the first amendment was the Constituent Assembly converted into
Parliament retaining the same composition.
The second case in which this question arose was Sajjan Singh v.
State of Punjab.12 In this case the Seventeenth Amendment made in 1964
was challenged on the same ground. This time the court by a majority of
3 to 2 held, as before, that the amending power conferred by article 368 is
a wide power and included the power to take fundamental rights guaran-
teed by part III and could not be controlled by article 13. This question
1 1 . Sankari Prasad Singh v. Union of India , AJ.R. 1951 S.C. 458.

12. A.I.R. 1965 S.C. 845.

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250 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 16 : 2
came up again in the famous Golak Nath case13 in which the Supreme Co
reversed the trend. It decided by a majority of six to five that the wo
'law' in article 13 (2) included constitutional law and therefore controll
and limited the amending power under article 368. It denied power
the Parliament to amend any of the provisions of part III so as to t
away or abridge the fundamental rights enshrined therein. The wh
controversy had been brought to a climax in the recent Kesavananda ca
decided by the court in April 1973. In this case the validity of the Twent
fourth, Twenty-fifth and Twenty-ninth Amendments was challeng
mainly on the ground that it was beyond the power of the Parliament
pass amendments which abridge or take away fundamental rights. T
Twenty-fourth amendment makes certain changes in article 13 and artic
368. This makes it explicit that the word 'law' in article 13 (2) does not i
clude constitutional amendments. It makes it clear that article 368 conta
both the power and procedure to amend, by way of addition, variation o
repeal, any provision of the Constitution. It also makes it obligatory on
the part of the President to give his assent to an amending Bill when it
presented to him for this purpose after being duly passed by both the
Houses. It was also asserted by the petitioners that even if Parliament ha
the power to amend fundamental rights there are certain inherent and
implied limitations on its amending power which precluded it fr
changing the basic structure or essential features of the Constitution.
the first question the court came to the conclusion that Parliament did
have the power of amending fundamental rights under article 368 as it w
a constitutent power and the word 'law' in article 13 did not includ
constituent law and therefore could not control the amending pow
The Twenty-fourth Amendment was upheld. On the question of the sc
of amending power and the implied limitations on this power there w
differences. Seven judges against six thought that the basic structure of t
Constitution cannot be altered under the amending power although th
was no agreement among themselves about the meaning and content of
the so-called basic structure.
Sikri, C. J., observed:
The expression "amendment of this Constitution" does not
enable Parliament to abrogate or take away fundamental rights
or to completely change the fundamental features of the Consti-
tution so as to destroy its identity. Within these limits Parlia-
ment can amend every article.14
Shelat and Grover, JJ., said on the scope of amending power unde
article 368 as follows:
Though the power to amend cannot be narrowly construed and
extends to all the articles it is not unlimited so as to include the
13. Supra note 1.


106.76.78.61 on Thu, 24 Nov 2022 14:27:40 1976 12:34:56 UTC
power to abrogate or change the identity of the Constitution or

its basic features.15
Hegde and Mukherjea, JJ., expressed the same opinion. They said:
[Tļhough the power to amend the Constitution under Article
368 is a very wide power, it does not yet include the power to
destroy or emasculate the basic elements or the fundamental
features of the Constitution.16
Reddy, J., was of the same opinion.17 Khanna, J., held that the
amending power of Parliament is very wide under article 368, but he
also imposed certain limitations on the amending power in the name of
basic structure of the Constitution. He said:
rat is permissible under the power of amendment to effect

changes, howsoever important, and to adapt the system to the
requirements of changing conditions, it is not permissible to
touch the foundation or to alter the basic institutional pattern.
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.18
He further said 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 amend the various
articles of the Constitution.... The power of amendment would
also include within itself the power to add, alter or repeal the
various articles.19
Thus, it is very clear that the sense in which Khanna, J., uses the
expression 'basic structure or framework of the Constitution' is very
different from the sense in which six judges led by Sikri, J., use the
expression 'essential features or basic features' of the Constitution. Funda-
mental rights can be abrogated by the use of the amending power according
to Khanna, J., but not so according to six judges led by Sikri, C.J.
Ray, J., rejected the idea of any implied limitations on the amending
power and thought that the power to amend is wide and unlimited.
He said that:
There can be or is no distinction between essential and inessen-

tial features of the Constitution to raise any impediment to
amendment of alleged essential features.20
15. Id. at 1609-10.

16. Id. at 1648.
17. Id. at 1776.
18. /¿/.at 1860.
19. Id. at 1903-04.
20. Id. at 1718.

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252 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 16 : 2
This opinion was also shared by Palekar, Mathew, Beg, Dwivedi and
Chandrachud, JJ.
According to the widely accepted principles of constitutional inter-
pretion, the provisions of a constitution should be construed in the
widest possible manner. Constitutional law is the basic law. It is meant
for people of different opinions. It should be workable by people of
different ideologies and at different times. Since it provides a framework
for the organisation and working of a state in a society which keeps on
changing, it is couched in elastic terms and, therefore, it has to be inter-
preted broadly. No generation has a right to bind future generations by
its own beliefs and values. Each generation has to choose for itself the
ways of life and social organisation. Constitution should be so adaptable
that each generation may be able to make use of it to realise its aspirations
and ideals. An amending clause is specifically provided to adapt the Consti-
tution according to the needs of the society and the times. In view of
this, no implied limitation can be imposed on the amending power. To
do so would be to defeat the very purpose of it. The Constitution-makers
had before them the Constitutions of the United States, Australia, Canada,
Ireland, South Africa and Germany which they were constantly referring
to while discussing and drafting the amending provision. In all these
Constitutions the word 'amendment' is used in the widest possible sense.
Therefore, our Constitution-makers may be presumed to have used this
word in the same broad sense in the absence of any express limitations.21
Dwivedi, J., said about the scope of amending power as follows :
Article 368 is shaped by the philosophy that every generation
should be free to adapt the constitution to the social, economic
and political conditions of its time. Most of the Constitution-
makers were freedom-fighters. It is difficult to believe that
those who had fought for freedom to change the social and
political organisation of their time would deny the identical
freedom to their descendants to change the social, economic
and political organisation of their times. The denial of power
to make radical changes in the Constitution to the future genera-
tion would invite the danger of extra constitutional changes of
the Constitution.
The State without the means of some change is without means

of its conservation. Without such means it might even risk the
loss of that part of the Constitution which it wished the most
religiously to preserve.22
21. B.N. Rau, Table of Amending Process, Constitutional Precedents, 1st Series
(1947) cf. Hari Chand, Amending Process in the Indian Constitution 96 (1972).
The Constitution-makers were conscious of the need to put express limitation
if such limitations were intended. This is evident from the fact that certain limitations
were imposed on the amending power in art. 305 of the Draft Constitution, namely, that
the reservaton of seats for certain minorities should not be amended for a period of ten
years.
22. Kesavananda at 1994-95, See also Burke, Recollections on the Revolution in

rrmnce and other Writings 23 (1958),

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1974] PHANTOM OF BASIC STRUCTURE OF THE CONSTITbTION Í5Í
The whole constitution is basic law. It is not easy to distinguish

which part is more basic than the other as there is no objective test to
distinguish.23 Since, there are no objective criteria to distinguish, there are
bound to be subjective preferences and choices in deciding what constitutes
this so-called basic structure. Even, if it were possible to distinguish
essential features from non-essential features it is not possible to assert that
the essential features are necessarily eternal and immutable.24 Judging
from past history one may doubt if any feature of law and society is
unchangeable. What was considered fundamental by one society at one
time was abandoned later as an outmoded impediment. History shows
that necessity had been felt by people from time to time to bring changes
in the very basic and fundamental laws, giving birth to revolutions if
changes could not be brought about through constitutional means. It was
contended on behalf of the petitioners that Parliament's power to amend
fundamental rights is limited as they merely embody and express the
natural and inherent rights of man which he is born with. The doctrine of
natural rights have undoubtedly contributed to the recognition and
upholding of these basic rights but it is not possible to assert their primacy
over positive law in case of the conflict nor is it possible to seek enforce-
ment of such rights by legal institutions unless they are recognised by
positive law. Historically speaking, the content and scope of fundamental
rights have been changing from society to society and from age to age.
Sociologically it is not possible to conceive of individual legal rights with-
out a socail order to recognise and protect them. There is no recognition
of the doctrine of natural rights in the Indian Constitution. Article 19
gives certain fundamental rights to citizens only. Even these rights to
citizen are subject to reasonable restrictions in the public interest. These
rights can be suspended in emergency. The expression 'due process of
law' was put in the original draft of artical 21 but was replaced by the
expression "procedure established by law" with a yiew to avoiding intro-
duction of the doctrines of natural law by the judges in the name of
'due process of law'. Therefore, there is strong evidence to infer that the
doctrine of natural rights is not only not accepted but deliberately exçluded
from the Indian Constitution.25 One can demand their enforcement only to
the extent they axe positively recognised. Therefore, the doctrine of implied
limitations on the amending power based on natural rights cannot be
accepted.
The theory of implied limitations is also supported by its protagonists
by interpreting the word 'amendment' in a restricted way. It is said that
certain limits are inherent and implicit in the very meaning of the word.
23. Ray, J., in Kesavananda at 1675, 1682, 1684,

24. Mathew, J., in Kesavananda at 1947.
25. H.M. Seervai, Constitutional Law in India 300-301 (1967).
See also H.M. Seervai, The Fundamental Rights Case at thę Cross Roads, (1973)
Bom. L.R. ( Jn .) 47 at 58.

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254 JO U RN AL OF THE INDIAN LA W INSTITUTE [Vol. 16 : 2
ït is argued by them that amendment means improvement or change

within the scheme or framework of the Constitution. It cannot include
within its purview the power to change the basic structure of the Consti-
tution so as to alter its very personality or identity. They draw their
inference from the expressions "amendment of this Constitution" and
"the Constitution shall stand amended" in article 368. It is argued that
'this Constitution' shall continue even after the amendment by which is
meant the essential features or the basic structure of the Constitution.
'Amendment' is a word of wide connotation and includes changes by
way of alteration, variation or repeal of each and every provision of the
Constitution in accordance with the procedure in the Constitution. The
theory of basic structure and its corollary, the theory of implied limitations,
have introduced new elements of uncertainty and ambiguity in the process
of constitutional interpretation. Even the judges who have propounded
this theory do not seem to be certain about what constitutes this basic
structure of the Constitution and they certainly do not agree on the
various elements which constitute it. The Constitution nowhere defines it or
indicates what will constitute the essential features of the Constitution which
may be considered beyond the scope of amending power. Fundamental
rights are at least identifiable but the so-called basic features are not.
Having examined the nature and scope of the amending power we
propose to examine in detail the basis of the basic structure theory; how
it had been used to clog the amending power of the Parliament; and how
it reflects the working of the judicial mind.
III. Phantom of basic structure: the judiciary's brainchild
The heated controversy on the amendability of the fundamental

rights and the scope of amending power under the Indian Constitution,
reflect two conflicting attitudes of mind on the basic problems of society.
One may be called the approach of transcendentalism and the other of
scientific empiricism. The first approach assumes that there are certain
eternal, immutable and transcendental values which ought to be preserved
at any cost. It is prepared to accept changes within the chosen framework
but not to question the basic assumptions and premises of its framework.
It is also prepared to make necessary adjustments in its techniques and
methods to realise its goals and to repair its frequently leaking set-up but
it is not ready to demolish the old framework, howsoever unsuitable it
might have become in the new situation it is placed in. The question of
creating a new order through some kind of revolutionary transformation
is simply outside its concept and frame of reference. Even when trans-
cendentalists talk of revolution they do not mean it in the same sense as
scientific empiricists mean. More often, the word devolution' and similar
radical phrases, which have acquired respectability in the modern intellec-
tual dialogues are used as cloaks to conceal the deep-seated conservatism
of their attitude.

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1974] PHANTOM ÕF BÀSIC STR U ČTU RE ÕF THE CONSTITUTION 25.5
The Supreme Court characterised the fundamental rights as para-

mount in the A. K. Gopalan case,26 as sacrosanct in the State of Madras v.
Smt . Champakam,27 as inalienable and inviolable in Smt. Ujjam Bài v.
State of U.P.,2S as natural and inherent in State of West Bengal v. Subodh
Gopal ,29 and as transcendental in several other cases.30 This attitude is
very clearly reflected in the judgment of Hegde and Mukherjea, JJ., in the
Kesavananda case in the following words:
Our Constitution is not a mere political document. . It is essen-
tially a social document. It is based on a social philosophy and
every social philosophy like every religion has two main features,
namely, basic and circumstantial. The former remains constant
but the latter is subject to change. The core of a religion always
remains constant but the practices associated with it may
change. Likewise, a Constitution like ours contains certain
features which are so essential that they cannot be changed or
destroyed. In any event it cannot be destroyed from within.
In other words, one cannot legally use the Constitution to
destroy itself. Under Article 368 the amended Constitution
must remain 'the Constitution' which means the original Consti-
tution. When we speak of the 'abrogation' or 'repeal' of the
Constitution, we do not refer to any form but to substance. If
one or more of the basic features of the Constitution are taken
away to that extent the Constitution is abrogated or repealed.
If all the basic features of the Constitution are repealed and
some other provision inconsistent with those features are
incorporated, it cannot still remain the Constitution referred to
in Article 368. The personality of the Constitution must
remain unchanged.31
The analogy with religion is significant and revealing. The other
judges sharing this approach might not have used the language of religion
but essentially they mean the same thing. An elusive concept of 'core'
is introduced to add confusion in the process of constitutional interpreta-
tion. What is this core of religion or Constitution which always remains
constant? What are these basic features which are supposed to be eternal
and unchangeable in contradistinction from the circumstantial? Is this
proposition not a mere religious belief or has it got some scientific basis?
Judges, as other people, are certainly free to have any beliefs howsoever
irrational they may be as far as their personal life is concerned, but so
26. A . K. Gopalan v. State of Madras , A.I.R. 1950 S.C. 27.
27. A.I.R. 1951 S.C. 126.
28. A.I.R. 1962 S.C. 1621.
29. A.I.R. 1954 S.C. 92.
30. See Hegde and Mukherjea, JJ., in Kesavananda at 1617. Sikri, C.J., also refer
to many such cases in which fundamental rights are called sacrosanct, etc., see id
1536,1537.
31. Id, at 1624.

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far as such beliefs have any bearing on social issues we cannot he

examining them. The only plane on which we can examine them meanin
fully and communicate intelligibly is the scientific plane. Let us test t
basic proposition of immutability and transcendentalism on this plane.
Despite great discoveries of science in almost all spheres of natur
phenomenon, no scientist has been able to discover anything which rema
immutable and unchangeable. The only eternal thing seems to be the la
of change. Darwin in the field of biology, Einstein in the field of physi
and Marx in social sciences convincingly proved that everything in natu
is undergoing a constant change. Anthropologists and historians ha
proved by then* discoveries that societies in different parts of the world and
during different periods of history have differed so much even in the
fundamental beliefs, values and institutions that it is not possible to sa
that any of these basic structures had any permanent character of valu
Not only our social institutions bjit even our consciousness changes fro
period to period. Our knowledge and valuations of things are very muc
conditioned by our modes of existence which keep on changing. This h
been shown by Marx and further elaborated by Karl Mannheim in h
• Ideology and Utopia** Even our fundamental legel concept of propert
has undergone radical changes in its real content as has been shown
Karl Renner in his Institutions of Private Law and their Social Functions
In view of the changing nature of everything in life and relativity of o
perceptions, reflections and valuations, the dogmatic assertions of t
immutability of certain basic features of the Constitution are nò more
than the projections of our wish for a permanent existence. Such wishf
thinking has no basis in reality and it is likely to colour our perception
it. When everything is changing what right one generation has to fett
the future generations by its beliefs and values. What we consider
fundamental may be considered as unimportant by the coming generation
Eveťy generation has the right to decide for itself what is best for it an
how it should achieve that. The truth of this idea had been realized
even by our ancient law givers Manu and Parashara when they said:
The fundamental laws (imposing fundamental duties or con-
ferring fundamental rights) differ from age to age, they are
different in the age known as krita from those in the dvaapara
age; the fundamental laws of the kali age are different from all
prèvious ages; the laws of each age conform to the distinctive
character of that age (yuga roopaan usaaratah) . . . ,34
In other words, even our ancient jurists recognised the principles
that "one generation has no right to tie down future générations to its own
views or laws even on fundamentals."35
32. Karl Mannheim, Ideology and Utopia (I960),

33. Karl Renner, Institutions of Private Law änd their Social Functions (1947).
34. Quoted by Beg , J., in Kesavananda at 1976.
35. Ibid.

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The same views have been expressed by Jefferson, the famous American
statesman. Ridiculing the idea of permanence of legal institutes he
said:
Yet our lawyers and priests generally inculcate this doctrine

and suppose that preceding generations held the earth more
freely than we do, had a right to impose laws on us, unalterable
by ourselves, and that we, in the like manner, can make laws
and impose burderns on future generations, which they will
have no right to alter; in fine that the earth belongs to the dead
and not the living.36
Thomas Paine also gave expression to this idea in forceful language.

He said:
There never did, there never will, and there never can, exist a
Parliament, or any description of men, or any generation of
men, in any country, possessed of the right or the power of
binding and controlling posterity to the 'end of time', or of
commanding forever how the world shall be governed, or who
shall govern it, and therefore all such clauses, acts or declara-
tions by which the makers of them attempt to do what they
have neither the right nor the power to do, nor take power to
execute, are in themselves null and void. Every age and genera-
tion must be as free to act for itself in all cases as the ages and
generations which preceded it....37
One of the chief architects of modern India and the framers of the
Constitution, Jawahar Lai Nehru, beautifully expressed a natural humanly
wish for permanence of things we love and at the same time the necessity
for change as one of the compulsions of existence. He said in his speech
to the Constituent Assembly :
And remember this, that while we want this Constitution to be

as solid and as permanent a structure as we can make it, never-
theless there is no permanence in Constitutions. There should
be a certain flexibility. If you make anything rigid and perma-
nent, you stop a nation's growth, the growth of living vital
organic people. Therefore it has to be flexible.38
This living organic element of life in all social institutions makes it

impossible to cast them in rigid moulds and yet retain their life.
Adaptability to change is a necessary condition for the preservation and
growth of life. In face of such overwhelming evidence for the law of
36. Quoted by Khanna, J., in Kesavananda at 1850; Mathew, J., also quotes
Ambedkar and Jefferson in Kesavananda , id. at 1909; see also X C.A.D. 975.
37. Quoted by Khanna, J., in Kesavananda at 1850.
38. Ibid.

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258 JOURNAL OF TtìE INDIAN LAW INSTITUTE [Vol. 16: 2
change as an all pervading law of nature the transcendentalists still assert

the immutability of certain basic features of the Constitution as if the
law exists in vacuum unaffected by the conditions of life. This ostrich like
attitude of shunning reality out of fear does not help in facing the real
dangers to the cherished freedoms which we all seek to preserve.
Justice Learned Hand rightly warned against putting too much
faith in law. He wondered:
[WJhether we do not rest our hopes too much upon constitut-

ions, upon laws and upon Courts. These are false hopes;
believe me, these are false hopes. Liberty lies in the hearts of
men and women; when it dies there, no constitution, no law,
no Court can save it; no constitution, no law, no Court can
even do much to help it.39
Once we realise the limitations of law and its dependence on a
number of economic and social factors, we will do well in creating the
right kind of economic and social relationships which are conducive to the
preservation of liberty. Unless the right kind of social order exists which
ensures the realisation of the ideals of liberty, equality, fraternity and
justice, the mere embodiment of these goals in the Constitution will not
materialise them.
A profound awareness of this reality is necessary to appreciate the
true nature and function of law. To say that everything in the Consti-
tution is amendable is not to say that nothing in the Constitution is of
fundamental importance and worth preserving. It is only an acceptance
of realism which refuses to pin too much hope in law and seeks solace in
the good sense of the people and their representatives.
Let us see what are these essential features which constitute the basic
structure. Even Khanna, J., who took a broader view of the amending
power could not get over the charms of the transcendentalism. He said:
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 Rajya Sabha. The secular character cf 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....40
He further said that :
[T]he exclusion by the Legislature, including a State Legislature,

of even a limited judicial review strikes at the basic structure of
the Constitution.41
39. See Irving Dilliard, (ed.), Spirit of Justice 189-190. Quoted by Khanna, J.,
in Kesavananda at 1857.
40. Kesavananda at 1902, 1904.
41. U. at 1904.

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1974] PHANTOM OF BASIC STRUCTURE OF THE CONSTITUTION 259
He expressly said that the right "to property does not pertain to basic
structure or frame work of the Constitution."42
According to Hegde and Mukherjea, J J., the basic elements or

fundamental features of the Constitution are the sovereignty of India, the
democratic character of our polity, the unity of the country and the essen-
tial features of the individual freedoms secured to the citizens. They also
said that the Parliament does not have the power to revoke the mandate
to build a welfare state and egalitarian society. It is said further that
these limitations are only illustrative and not exhaustive.43 According to
Sikri, C.J., the basic structure consists of the supremacy of Constitution,
republican and democratic form of government, secular character of the
Constitution, separation of powers between the legislature, the executive
and the judiciary and the federal character of the Constitution.44 So we
find that the list of the so-called basic features varies from judge to judge
and it is not exhaustive according to some of them. Jaganmohan Reddy, J.,
has thrown even a wider net. According to him the elements of basic
structure are indicated in % the preamble and translated in the various
provisions of the Constitution. The edifice of our Constitution is built upon
and stands on several propositions, remove any of them, the Constitution
collapses. These propositions are:
(/) sovereign democratic republic;

(ii) justice, social, economic and political;
(///) liberty of thought, expression, belief, faith and worship;
(iv) equality of status and of opportunity.
Each one of them is important and collectively they assure a way of

life to the people of India which the Constitution guarantees.
He says further that sovereign democratic republic, parliamentary democracy,
the three organs of the state, fundamental rights and the directive princi-
ples of state policy, constitute elements of the basic structure. He also
says that this list is not exhaustive.45 What important features remain
worth amending? Shelat and Grover, JJ., add fundamental rights, directive
principles and the unity and integrity of the nation in the list of the basic
features stated by Sikri, C.J. Even this long list is only illustrative accord-
ing to them.46 In view of the inexhaustive list of these uņamendable basic
elements Parliament's wide power of amendment is curtailed to very narrow
limits by this theory of implied limitations. If there had been more judges
the list might have been longer and the erosion of amending power greater.
Apart from the limits, one great difficulty is to discover what these basic
42. Ibid.
43. Id. at 1628.
44. Id. at 1535.
45. Id. at 1753, 1754.
46. Id . at 1603.

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features are and how to find them. Palkhivala thought that it w

possible through trained judicial perception. He did not fully rea
variety of these perceptions and the resultant uncertainty about t
of amending power. This way of interpreting article 368 has almost de
the very purpose of it. Need for constitutional amendments aris
in connection with the important and essential features. If they
be amended what is the purpose of having amending power.
Civil wars are fought, not on peripheral questions, but, on qu
relating to the basic structure of the society and the constitutio
amending power has any role to play as a safety valve against revo
upheavals and breakdowns it can do so only if it can reach
every provision of a constitution whether basic or otherwise
provision of a constitution is basic. The distinction made between
types of provisions on the ground of their being basic or not is s
artificial and without any definite criterion of distinction. Judicia
obsession to preserve fundamental rights and other basic features h
trapped into verbal jargons and is interpreting the Constitution in
so as to make it unworkable and rigid. Rigidity of the constituti
factor which contributes more to the collapse of a constitution,
its permanance while flexibility gives it strength and life. The exa
the frequent collapses of the French Constitutions due to their r
and the longevity of the British Constitution due to its flexibility are
to remember.
Deriving limitations from the meaning of the word 'amendment' is
barren conceptualism. Words have no intrinsic meanings. These are
mere usages historically associated with words and they change from time
to time and from context to context. We have to discover the true meaning
of words particularly in law not from the dictionary but from the
study of the functions of institutions which such words symbolize. Justice
Khanna fell victim to the arid conceptualism in discovering certain
limitations on the amending power as implicit in the very meaning of the
word. He thought that amendment by definition cannot be abrogation or
destruction and that too of the basic features. Alteration of the personality
or identity of the Constitution is beyond the meaning of the term 'amend-
ment'. Since, almost every important word is used in different senses and
has different meanings the only way to discover their real meaning is to
understand them with reference to their functions and historical context.
Amendment' understood in this way will clearly show that imposing
any implied limitations in the name of the basic structure will defeat
the very purpose of it. Justice Khanna rejecting the implied limitations
theory and having marshalled weighty evidence and arguments in
favour of a broader view of the amending power, dynamic nature of the
society, need for changes of laws from generation to generation and age to
age suddenly made a somersault at the last stage and conjured up the
basic structure theory to limit the amending po Wei of Parliament as if
he found it a bit too much to trust the elected representatives for the usç

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of this immense power. There are always dangers of abuse of any power
but that cannot be a reason to deny such power. He negatived all what
he said in support of the wide amplitude of the amending power in the
last phase of his judgment where he develops this basic structure theory
perhaps without fully realising its implications.
Republican form of government has been considered a basic feature
by most of the judges upholding the theory of basic structure. But can
this form of government be considered unalterable? Mathew, J., observed:
Has mankind, after its wandering through history, made a final

and unalterable verdict that it is the best form of government?
Does not history show that mankind has changed its opinion
from generation to generation as to the best form of govern-
ment? Have not great philosophers and thinkers throughout the
ages expressed different views on the subject? Did not Plato
prefer the rule by the Guardians? And was the sapient Aristotle
misled when he showed his proclivity for a mixed form of
government. If there was no consensus yesterday, why expect
one tomorrow?47
In view of the changing opinions of the people in the course of

history, even on matters fundamental, it seems unwise to impose our own
view of life on the future generations.
Affirmation of the ideals of justice, equality, freedom and fraternity
and upholding of democracy should not end at verbal formulations.
Unless the necessary conditions are created to realise the idèals they remain
only pious hopes and do not acquire the Character of institutions capable or
worthy of being defended. If the list of thè basic features had included
only ideals enshrined in the preamble there might not have been too great
a difficulty in adapting the Constitution to the changing needs of times in
order to translate these ideals into reality but the basic features, as stated
by the majority in Kesavananda , contain many elements which are bound to
change such as the federal character, form of democracy, relationship and
allocation of powers among the three organs of the state, and the property
relationships. These are mere instrumentalities and power arrangements to
achieve the ideals affirmed in the preamble. There is nothing sacrosanct
and transcendental about them. Means have to change in relation to the
needs of the ends and the circumstances in which such ends have to
be realised. So far as the formulations of the ideals in the langua
of the preamble are concerned, they are vacuous concepts which c
be filled with varying content and there is nothing definite and static ab
their real substance. Holmes', J., in Towne v. Eisner 48 gave expression
this idea in his inimitable, style. He said:
47. Id. at 1948.

48. 245 U.S. 418 (1917).

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2 61 JOURNAL ÔF THE INDIAN LAW INSTITUTE (Vol. 16 : 1
A word is not a crystal, transparent and unchanged; it is the

skin of living thought and may vary greatly in colour and con-
tent according to the circumstances and the time in which it is
used.49
If a party comes into power which sincerely believes in the need for
complete restructuring of the economy, education and administration o
socialist lines in order to achieve the ideals of the Constitution effectively
it will not be possible to do so according to the majority view of th
amending power under article 368 since such restructuring is bound to
affect the basic features as stated by the Supreme Court in this case. Thi
will leave no alternative to such a party but to transform the Constitutio
or overthrow it in case such transformation is not possible. Justice Holm
rightly said that a constitution is made for people of different opinions an
ideologies and for different times. It is not intended to embody a particul
economic theory.50 If it is made rigid in the name of some basic feature
it is bound to break down, if is to be worked by people who do not belie
in those basic features. Law and constitution cannot regulate for all
time the operation of economic and political forces which provide the
dynamics of the constitution. Constitution merely provides the channels
through which the political power may flow. It cannot control and shape
the character of that power. Constitution is merely an instrument. It
must be subservient to the will of the people. It had always been in the
past history subservient to the will of the dominent section in the society.
Hope to control this will through constitutional checks, is the pursuit of
a mirage. The only remedy is the enlightened and organised public
opinion. Justice Learned Hand rightly said that the liberty lies in the heart
of the people and its protection depends upon their will to defend it.
IV. Validity of the Twenty-fifth Amendment
The Twenty-fifth Amendment has introduced three main changes.

Firstly, it substitutes the word 'amount' for 'compensation' in article 31(2)
of the Constitution. The law referred to in clause 2 is exempted from the
operation or effect of 19 (1) (/). Secondly, it adds article 3 1C to give
power to the state to implement the directive principles contained in article
39 ( b ) and (c) and saves a law made to give effect to such policy from
voidability if it is inconsistent with articles 14, 19 or 31 of the Constitution.
Thirdly, if a declaration is included in a law that it is made to give effect to
such policy it shall not be called in question in any court on the ground
that it does not give effect to such policy.
Sikri, C. J., said about the first question relating to amount that :
The person whose property has been acquired shall be given an
49, Id . at 425. Quoted by Sikri, C.J., in Kesavananda at 1497.

50. See the observation of Khanna, J., in Kesavananda at 1902.

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amount in lieu thereof, which as, I have already said, is not

arbitrary, illusory or shocking to the judicial conscience or the
conscience of mankind.61
This view was shared by five other judges in Kesavananda. Khanna, J.,
and six other judges fully upheld this part of the amendment. This amend-
ment was necessitated by the interpretation given to the Fourth Amendment
by the Supreme Court in the Vajravelu case52 and R. C. Cooper v. Union of
India 53 which virtually frustrated the object of the amendment to keep the
questions of adequacy of compensation outside the purview of courts. By
giving the meaning to the word 'compensation' as to necessarily imply the
idea of 'just equivalent' it brought back the question of adequacy by the
back door which was taken out of judicial review by Parliament. This
meaning was given earlier in the Bela Banerjee case54 decided before the
Fourth Amendment and was reaffirmed in Vajravelu . In the R. C. Cooper
case the idea of relevancy of the principles for the determination of
compensation was used by the majority judgment delivered by Shah, J., to
compel the government to give compensation which was even more than
the market value. This attitude of the Supreme Court made it impossible
to implement the directive principles as contained in article 39. If full
compensation has tp be given for any acquisition of property by the state
for public purpose it will only change the character of the property rather
than prevent the concentration of property or bring about social and
economic justice as envisaged by article 39.
Article 31C reads as follows:
Notwithstanding anything contained in article 13, no law giving
effect to the policy of the State towards securing the principles
specified in clause (b) or clause (c) of article 39 shall be deemed
to be void on the ground that it is inconsistent with, or takes
away or abridges any of the rights conferred by article 14,
article 19 or article 31; and no law containing a declaration
that it is for giving effect to such policy shall be called in
any court on the ground that it does not give effect to such
policy;
Provided that where such law is made by the legislature of a
State, the provisions of thiś article shall not apply thereto unless
such law, having been reserved for the consideration of the
President, has recieved his assent.
The relevant portion of article 39 is as follows:
The State shall, in particular, direct its policy towards securing
(*) ■-
51. Id. at 1554.
52. Vajravelu Mudaliar v. Spl. Deputy Collector , A.I.R. 1965 S.C. 1017.
53. A.I.R. 1970 S.C. 564.
54. State of West Bengal v. Bela Banerjee, A.I.R. 1954 S.C. 170.

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( b ) that the ownership and control of the material resources of

community are so distributed as best to subserve the commo
good;
(c) that the operation of the economic system does not res
in the concentration of wealth and means of production to t
common detriment....
The real controversy has been centred around article 3 1C as it gives

power to the state to bring about certain fundamental changes in the
economic system. Since it curtails property rights and limits the scope of
judicial review it was regarded as destructive of the basic structure of the
Constitution by the court.
Article 31C seeks to give power to the state to bring about an
equitable distribution of the material resources of the community for the
common good as directed by article 39 (b) and (c). It gives direction to
the state to make necessary laws to materialise the ideals of social justice
which has become a universal cry of modern times as people have become
conscious of their legitimate claims and rights. Article 39(c) specifically
directs the state to prevent concentration of wealth and means of produc-
tion in few hands to the common detriment. Such concentration of
economic power is not only contrary to the ideals of equality and justice
but even destructive of individual freedom.
Article 37 declares directive principles to be fundamental in the govern-
ance of the country. They are not enforceable by the courts, not because
they are less important or they lack the character of law, but, because it is
not practicable to enforce them through courts as they involve difficult
technical and policy questions. Article 38 directs the state to promote the
welfare of the people and secure a social order in which justice, social,
economic and political shall inform all the institutions of the national life.
Article 39 specifies a path to achieve these fundamental objectives. Beg, J.,
in his dissenting judgment expressed the relation between the funda-
mental rights and directive principles in a picturesque way. The directive
principles, according to him, represent the path like a river and the funda-
mental rights are the limits like the banks of a flowing river and the
preamble represents the objects, the destination where the path leads to.55
55. Beg, J., in the Kesavananda case says :

Perhaps, the best way of describing the relationship between the fundamen-
tal rights of individual citizehs, which impose corresponding obligations
upon the State and the Directive Principles would be to look upon the
Directive Principles as laying down the path of the country's progress
towards the allied objectives and aims stated in the Preamble, with funda-
mental-rights as the limits of that path like the banks of a flowing river,
which could be mended or amended by displacements replacements or
curtailments or enlargements of any part according to the needs of those who
had to use the path. ( Supra note 1 at 1970).

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In order to reach the destination, the land of freedom, equality, justice and
fraternity and in accordance with the requirements of the path, the limits,
the bank, have to be changed from time to time. Both have to be construed
in a harmonious manner. Directive principles represent the social goals
»od ideals. Fundamental rights, which represent the individual rights have
to be harmonised with social interest and in case of irreconcilable conflict
hąve to yield to the higher interests of society. How can the provisions of
article 31C which seek to achieve the basic objectives of the Constitution as
contained in the preamble as well as articles 38 and 39 ( b ) and (c) be des-
tructive of the basic structure of the Constitution as the petitioner's tried to
maļce out? The reason for exempting its provisions from the operation of
articles 14, 19 and 31 is to prevent the claims of social justice from being
defeated by the individual rights whenever they conflict with the paramount
social interest. In the clash of these interests social interest has to prevail.
Salus populai suprema ¡ex. Sikri, C. J.,68 Hegde, Shelat, Grover,
Mukherjea and Reddy, JJ., held that article 31C takes away and destroys the
fundamental rights contained in articles 14, 19 and 31 and, thus, destroys
the essential features of the Constitution. Therefore it is void. Ray,57
Palekar, Mathew, Beg, Dwivedi and Chandrachud, JJ., upheld the validity
of article 31 C. Khanna, J., held only the declaration portion of article
31C as invalid since it takes away even the minimum of judicial review on
questions of vital importance in a very wide area. This exclusion of
judicial review he considered destructive of the basic structure of the
Constitution. Article 31C seeks to do vfith reference to industry, what
has been done by articles 31A and 31B with reference to agriculture. The
principles involved, i. e., the prevention of the concentration of wealth
to the common detriment and its equitable distribution for the common
good are the same. Only the fields and the scope are different. Even the
technique of carving a legislative field68 and exempting it by way of
exception from the operation of certain fundamental rights is the same.
Once the validity of articles 31 A and 31B is admitted, the validity of article
31C naturally follows. The reason for incorporating the declaration
clause which takes away the judicial review on the question of 'giving effect
to such policy is to avoid unnecessary delay in the implementation of
policy which may be caused by litigation. What is being taken away from
the scope of judicial review is the implementational aspects of the law
in question. The questions relating to 'giving effect to such policy' are
bound to involve detailed consideration of economic resources, financial
feasability and other technical and policy matters which courts are not
fitted to examine. Laws for 'giving effect to such policy' can also be
understood as purporting to give effect to such policy. In this sense one
56. Id. at 1552-59.

57. Id. at 1706-18,
58. U. at 1713,

106.76.78.61 on Thu, 24 Nov 2022 14:27:40 UTC
266 JO URN AL OF THE INDIAN LA W INSTITUTE [Vol. 1 6 : 2
has to inquire into the nexus between the law in question and the objective
contained in article 32 ( b ) and (c) which the law seeks to achieve. In thi
aspect of the question the court can certainly go into and to this extent
judicial review has not been taken away. This has been clearly pointed out
by Justice Palekar.59 This was also conceded by the Attorney General and
Seervai on behalf of the state. Apart from this, if a state passes a law
which has no connection with the objectives in question and uses th
declaration clause contained in article 31C, just to avoid judicial review, th
law can always be challenged on the ground of fraud on the Constitution.
In view of this, judicial review to the extent it is inherent and necessary
under the Constitution is not taken away under this article. Curtailmen
of judicial review with a view to expediting implementation of certain soci
objectives enshrined in the Constitution cannot destroy the basic structur
In fact, this article seeks to strengthen the basic structure and make funda
mental rights available to all which are today the possession of the
privileged few. Until the material conditions are created which enable the
people to have the cherished fundamental rights, they will remain only
formal promises.
In India where the old structure with its system of values is breaking
and the new structure is in the process of emerging and still far from being
crystallized, there is a great uncertainty about the standards of right ari
wrong since everything is in a state of flux and there are no definite criteria
to judge. If the determination of a legal controversy necessarily involves
political question the court should be guided by the will of Parliament;
Making of political choices should be left to the political institutions con-
cerned as they are better fitted to examine and decide such questions an
they have the necessary mandate from the people to do so.60
Law should lend its help as a lubricant and pacifier in the rough and
bitter transformation process. During the period of rapid change there is
constant danger to the stability of the social order because of the frequen
59. Id. at 1827.

60. Seervai rightly affirms that the principles ot constitutional interpretation
were settled as early as 1878 by the Privy Council in Queen v. Bwra/f, L.R. (1878) 5 I.A. 178
at 193-194. Lord Selborne said in this case as follows:
The established Courts of Justice, when a question arises whether the
prescribed limits have been exceeded, must of necessity determine
that question; and the only way in which they can properly do so, is by
looking to the terms of the instrument by which, affirmatively, the legisla-
tive powers were created, and by which, negatively, they are restricted. If
what has been donéis legislation, within the general scope of the affirmative
words which give the power, and if it violates no express condition or
restriction by which that power is limited (in which category would, of
course, be included any Act of the Imperial Parliament at Variance with
it), it is not for any Court of Justice to inquire further, or to enlarge cons-
tructively those conditions and restrictions.
cf. H.M. Seervai, The Fundamental Rights Case at the Cross Roads, supra
note 25.

106.76.78.61 on Thfff:ffff on Thu, 01 Jan 1976 12:34:56 UTC
conflicts and imbalances in the working of the various components of

society. Law% as an instrument for the resolution of conflicts and the balanc-
ing of interests can be an important factor in the preservation of social
order. If judges show an understanding of the needs of the changing society
and move with the spirit of the time, they can contribute significantly to
its peaceful transformation by shaping, and adapting law to meet the
requirements of justice and liberty. Dwivedi, J., in Kesavananda high-
lighted the role of the judiciary in the following:
The Court is not chosen by the people and is not responsible to

them in the sense in which the House of the people is. However,
it, will win for itself a permanent place in the hearts of the
people and thereby augment its moral authority if it can shift the
focus of judicial review from the unmerical concept of minority
protection to the humanitarian concept of protection of the
weaker sections of the people.
It is really the poor, straved and mindless millions who need the
Courts' protection for securing to themselves the enjoyment of
human rights.61
V. Postscript
This postscript is prompted on reading the stimulating article of
Upendra Baxi,62 which was published after sending this article for publica-
tion. Since it was not easy to rewrite the whole piece, reflections on Baxi' s
article are expressed here. He makes a novel suggestion in this article. He
says ;63
I further maintain that Kesavananda has not surrendered judicial

review over the exercise of constituent power. The Supreme
Court of India simply cannot surrender it because under the
Constitution the court is also endowed with constituent power
like Parliament ,
He elaborates this point as follows :64

The power of judicial review over amendments to the Consti-
tution is, analytically, akin to amending power, Thus, contrary
to the proclaimed intentions of Parliament, the word "compen-
sation" in Article 31 (2) was interpreted by the court to mean
just equivalent. Analytically, the Court can be said to have
thereby amended the Fourth Amendment. A similar destiny may
well await the term "amount" in the new Article 31 (2). If we
call amending power a "Constituent" power, both Parliament
62. The Constitutional Quicksands of 1(ęsavananda Lharati and the Twenty-fifth
Amendment, 1 S.C.C. (Jour.) 54 (1974).
63. Id. at 47-48.
64. Id. at 48.

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268 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol 16 : 2
and the Supreme Court share it. It is conceivable indeed that

if major guarantees of Part III were sought to be abrogated by
virtue of the Twenty-fourth Amendment, the court might consi-
der, and even depart from whatever Kesavananda might be read
to have held by way of recognizing unlimited power of Parlia-
ment to amend the Constitution. A similar result is equally
conceivable if the whole of Part IV of the Constitution were
sought to be repealed. The Supreme Court and the Parliament
are co-ordinate authorities in respect of Constitution making.
In the name of interpretation courts sometimes do give a new content

to wide and vague terms of the Constitution. This process of unfold-
ment and elaboration of the meanings of the words of the Constitution
may be in a sense called law creating process, but this creative process
through construction of the terms of the Constitution has necessarily to
take place within the framework of the Constitution. This process is to
make meanings explicit which may be implicit, to state and articulate what
might have been thought or intended vaguely by the framers of the Consti-
tution. This interpretation process cannot import meanings which are
beyond the framework or contrary to it. But there is no such limit on the
amending process. It can and often does go beyond and contrary to the
existing framework. Therefore, to call judicial review power of the court
as constituent power is quite mistaken. In fact, the exapiple given by Baxi of
such constituent process through judicial interpretation reveals the dangers
in his line of reasoning. The Supreme Court by interpreting the word 'com-
pensation' so as to include the idea of "just equivalent" in the Vajravelu
case68 decided after the Fourth Amendment did defeat the intentions of
Parliament and, thus, in a way amended the Fourth Amendment. But was
it justified? It was a clear case of usurpation of the constituent power of the
Parliament and exceeding the limits of judicial review. If we allow such a
power to the court, the Constitution will become what the court makes it
and it will mean transferring the political power of the people to the court.
Wheare rightly says as follows :
It is well to ask first just what is meant by saying that judicial

interpretation and decision can change a Constitution. Courts,
it must be emphasised, cannot amend a Constitution. They
cannot change the words. They must accept the words, and so
far as they introduce change, it can come only through their
interpretation of the meaning of the words.8®
Hari Chand67 also supports Wheare by saying that "the essence of
65. Supra note 52.

66. R.C. Wheare, Modern Constitutions 153 (1960).
67. The Amending Process in the Indian Constitution 126 (1972).

106.76.78.61 on Thu, 24 Nov 2022 14:27:40 UTC
an amendment of the Constitution lies in the fact that it alters the text of
the Constitution". Such farfetched extension of the power of the judicial
review making it a constituent power, as Baxi would have it, is either going
to create a government by judges or prolong the confrontation and the
tussle between Parliament and the Supreme Court. Such a clash between
the two major institutions of the state is obviously not good for the coun-
try. It was to avoid such futile struggle for supremacy that the Twenty-
fourth and Twenty-fifth Amendments of the Constitution have been
passed.

106.76.78.61 on Thu, 24 Nov 2022 14:27:40 UTC

Phantom of Basic Structure of the Constitution

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PHANTOM OF BASIC STRUCTURE OF THE CONSTITUTION

Author(s): Ramesh D. Garg

Stable URL: https://www.jstor.org/stable/43950358

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A critical appraisal of the Kesavananda case

AMENDABILITY OF fundamental rights and the scope of Parliament's

* B.Sc., LL.M. (London), Associate Research Professor, Indian Law Institute.

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Most of the statements of law are susceptible to more than one

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The twentieth-century juristic thinking is taking two directions

This is an attempt to bring correspondence between the demands

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resolution of social conflicts and the maintenance of social progress. Such

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vidual right contained in the fundamental rights chapter. It is the neces

II. The scope of amending power

Fundamental rights, together with the directive principles contain

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Fundamental rights, no doubt, are very important and constitute

[S]urely, at such moment, the voice ought to be heard of a man (referring

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Article 22 guarantees certain procedural safeguards against detention.

1 1 . Sankari Prasad Singh v. Union of India , AJ.R. 1951 S.C. 458.

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13. Supra note 1.

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power to abrogate or change the identity of the Constitution or

rat is permissible under the power of amendment to effect

There can be or is no distinction between essential and inessen-

15. Id. at 1609-10.

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The State without the means of some change is without means

22. Kesavananda at 1994-95, See also Burke, Recollections on the Revolution in

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The whole constitution is basic law. It is not easy to distinguish

23. Ray, J., in Kesavananda at 1675, 1682, 1684,

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ït is argued by them that amendment means improvement or change

III. Phantom of basic structure: the judiciary's brainchild

The heated controversy on the amendability of the fundamental

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The Supreme Court characterised the fundamental rights as para-

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far as such beliefs have any bearing on social issues we cannot he

32. Karl Mannheim, Ideology and Utopia (I960),

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Yet our lawyers and priests generally inculcate this doctrine

Thomas Paine also gave expression to this idea in forceful language.

And remember this, that while we want this Constitution to be

This living organic element of life in all social institutions makes it

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change as an all pervading law of nature the transcendentalists still assert

[WJhether we do not rest our hopes too much upon constitut-

[T]he exclusion by the Legislature, including a State Legislature,

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According to Hegde and Mukherjea, J J., the basic elements or

(/) sovereign democratic republic;

Each one of them is important and collectively they assure a way of

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