Editor’s note: On April 24, 1973, the Supreme Court of India ruled by a majority of 7-6, that Article 368 of the Constitution means that Parliament cannot alter the basic structure or framework of the Indian Constitution. The counsel for the petitioner was Mr. Nani Palkhivala. The article below provides excerpts from the judgements written by Chief Justice Sikri and Justice A N Ray. The full judgement is attached as a pdf file.
Chief Justice Sikri: No, the basic structure cannot be amended
4 The Constitution (Twenty-fourth Amendment) Act came into force on 5.11.1971, the Constitution (Twenty-fifth Amendment) Act came into force on 20.04.1972 and the Constitution (Twenty-ninth Amendment) Act came into force on 9.06.1972.
10 The larger bench was accordingly constituted. It was then felt that it would be necessary to decide whether I. C. Golak Nath V/s. State of Punjab was rightly decided or not. However, as I see it, the question whether Golak Nath's case (supra), was rightly decided or not does not matter because the real issue is different and of much greater importance, the issue being: what is the extent of the amending power conferred by Article 368 of the Constitution, apart from Art. 13(2) on Parliament?
11 The respondents claim that Parliament can abrogate fundamental rights such as freedom of speech and expression, freedom to form associations or unions, and freedom of religion. They claim that democracy can even be replaced and one party rule established. Indeed, short of repeal of the Constitution, any form of government with no freedom to the citizens can be set up by Parliament by exercising its powers under Art. 368.
12 On the side of the petitioners it is urged that the power of Parliament is much more limited. The petitioners say that the Constitution gave the Indian citizens freedoms which were to subsist for ever and the Constitution was drafted to free the nation from any future tyranny of the representatives of the people. It is this freedom from tyranny which, according to the petitioners, has been taken away by the impugned Art. 31-C which has been inserted by the Twenty-fifth Amendment. If Art. 31-C is valid, they say, hereafter Parliament and State Legislatures and not the Constitution, will determine how much freedom is good for the citizens.
13 These cases raise grave issues. But however grave the issues may be, the answer must depend on the interpretation of the words in Art. 368, read in accordance with the principles of interpretation which are applied to the interpretation of a Constitution given by the people to themselves.
14 I must interpret Art. 368 in the setting of our Constitution, in the background of our history and in the light of our aspirations and hopes, and other relevant circumstances. No other constitution in the world is like ours. No other constitution combines under its wings such diverse peoples, numbering now more than 550 million, with different languages and religions and in different stages of economic development, into one nation, and no other nation is faced with such vast socio-economic problems.
15 I need hardly observe that I am not interpreting an ordinary statute, but a Constitution which apart from setting up a machinery for government, has a noble and grand vision. The vision was put in words in the Preamble and carried out in part by conferring fundamental rights on the people. The vision was directed to be further carried out by the application of directive principles.
Part III-Interpretation of Art. 368
"An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill:
Provided that if such amendment seeks to make any change in-
(a) Article 54, Article 55, Article 73, Art. 162 or Art. 241, or
(b) Ch. IV of Part V, Ch. V of Part VI or Ch. I of Part XI, or
(c) any of the lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article, the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States specified in Parts A and B of the first Schedule by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent."
89 Therefore, in order to appreciate the real content of the expression "amendment of this Constitution", in Art. 368 I must look at the whole structure of the Constitution. The Constitution opens with a preamble which reads:
"WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure to all its citizens;
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all;
FRATERNITY assuring the dignity of the individual and the unity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this Twenty-sixth day of November, 1949 do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION."
121 It seems to me that the Preamble of our Constitution is of extreme importance and the Constitution should be read and interpreted in the light of the grand and noble vision expressed in the Preamble.
125 The fundamental rights conferred by the Constitution include right to equality before the law, (Article 14) prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, (Article 15) equality of opportunity in matters of public employment, (Article 16), right to freedom of speech and expression to assemble peaceably and without arms, to form association or unions, to move freely throughout the territory of India, to reside and settle in any part of the territory of India, to acquire, hold and dispose of property; and to practice any profession or to carry on any occupation, trade or business. (Article 19). Reasonable restrictions can be imposed on the rights under Art. 19 in respect of various matters.
132 Art. 30 gives further rights to minorities whether based on religion or language to. establish and administer educational institution of their choice. Art. 30(2) prohibits the State from discriminating against any educational institution, in granting aid to educational institutions, on the ground that it is under the management of a minority, whether based on religion or language.
135 The fundamental rights were considered of such importance that right was given to an aggrieved person to move the highest court of the land, i.e., the Supreme Court, by appropriate proceedings for the enforcement of the rights conferred by this part, and this was guaranteed. Art. 32(2) confers very wide powers on the Supreme Court, to issue directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. Art. 32(4) further provides that "the right guaranteed by this shall not be suspended except as otherwise provided for by this Constitution".
297 For the aforesaid reasons, I am driven to the conclusion that the expression "amendment of this Constitution" in Art. 368 means any addition or change in any of the provisions of the Constitution within the broad contours of the Preamble and the Constitution to carry out the objectives in the Preamble and the Directive Principles. Applied to fundamental rights, it would mean that while fundamental rights cannot be abrogated reasonable abridgments of fundamental rights can be effected in the public interest.
302 The learned Attorney-General said that every provision of the Constitution is essential; otherwise it would not have been put in the Constitution. This is true. But this does not place every provision of the Constitution in the same position. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the constitution remains the same. The basic structure may be said to consist of the following features:
(1) Supremacy of the Constitution;
(2) Republican and Democratic form of government;
(3) Secular character of the Constitution;
(4) Separation of powers between the legislature, the executive and the judiciary;
(5) Federal character of the Constitution.
(a) Golak Nath's case declared that a constitutional amendment would be bad if it infringed Art. 13(2), as this applied not only to ordinary legislation but also to an amendment of the Constitution.
(b) Golak Nath's cast (supra) did not decide whether Art. 13(2) can be amended under Art. 368 or determine the exact meaning of the expression "amendment of this Constitution" in Art. 368.
(c) 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 Constitution so as to destroy its identity. Within these limits Parliament can amend every article.
(d) The Constitution (Twenty-fourth Amendment) Act, 1971, as interpreted by me, has been validly enacted.
(e) Art. 368 does not enable Parliament in its constituent capacity to delegate, its function of amending the Constitution to another Legislature or to itself in its ordinary Legislative capacity.
(f) sec. 2 of the Constitution (Twenty-fifth Amendment) Act, 1971, as interpreted by me, is valid.
(g) sec. 3 of the Constitution (Twenty-fifth Amendment) Act, 1971, is void as it delegates power to Legislatures to amend the Constitution.
(h) The Constitution (Twenty-Ninth Amendment) Act, 1971 is ineffective to protect the impugned Acts if they abrogate or take away fundamental rights. The Constitution bench will decide whether the impugned Acts take away fundamental rights or only abridge them, and in the latter case whether they effect reasonable abridgments in the public interest.
Justice Ray: All parts of the Constitution can be amended
762 The principal question which falls for determination is whether the power to amend is under any express limitation of Art. 13(2). Another question is whether there are implied and inherent limitations on the power of amendment. Can there be any implied or inherent limitations in the face of any express power of amendment without any exception? Questions have been raised that essential features of the Constitution cannot be amended. Does the Constitution admit of distinction between essential and non-essential features? Who is to determine what the essential features are? Who is the authority to pronounce as to what features are essential? The pre-eminent question is whether the power of amendment is to be curtailed or restricted, though the Constitution does not contain any exception to the power of amendment. The people gave the Constitution to the people. The people gave the power of amendment to Parliament. Democracy proceeds on the faith and capacity of the people to elect their representatives and faith in the representatives to represent the people. Throughout the history of mankind if any motive power has been more potent than another it is that of faith in themselves. The ideal of faith in ourself is of the greatest help to us. Grote, the historian of Greece said that the diffusion of constitutional morality, not merely among the majority of any community but throughout the whole, is the indispensable condition of a government at once free and peaceable. By constitutional morality Grote meant a paramount reverence for the forms of the Constitution, with a perfect confidence in the bosom of every citizen amidst the bitterness of party contest that the forms of the Constitution will not be less sacred in the eyes of opponents than in his own. The question is '"He that planted the ear, shall he nor hear? or he that made the eye, shall he no see".
763 The real question is whether there is any power to amend the Constitution and if so whether there is any limitation on the power. The answer to this question depends on these considerations. First, what is the correct ratio and effect of the decision in I. C. Golak Nath & Ors. V/s. State of Punjab & Anr. Second, should that ratio be upheld. Third, is there any limitation on the power to amend the Constitution. Fourth, was the 24th Amendment validly enacted. If it was, is there any inherent and implied limitation on that power under Art. 368 as amended.
867 An unamendable Constitution is said to be the worst tyranny of time. Jefferson said in 1789 that each generation has a right to determine a law under which it lives. The earth belongs in usufruct to the living; the dead have neither powers nor rights over it. The machinery of amendment is like a safety valve. It should not be used with too great facility nor should be too difficult. That will explode and erode the Constitution.
882 The following features emerge. First, the Constituent Assembly made no distinction between essential and non-essential features. Secondly, no one in the Constituent Assembly said that fundamental rights could not be amended. The framers of the Constitution did not have any debate on that. Thirdly, even in the First Constitution Amendment debate no one doubted change of amendment of fundamental rights. At no stage it appeared that fundamental rights are absolute. While a Constitution should be made sound and basic it should be flexible and for a period it should be possible to make necessary changes with relative facility.
891 Mr. Palkhivala submits that the principle of inherent or implied limitations on power to amend the controlled Constitution stems from three basic features. First, the ultimate legal sovereignty resides in the people. Second, Parliament is only a creature of the Constitution. Third, power to amend the Constitution or destroy the essential features of the Constitution is an application of ultimate legal sovereignty.
892 Mr. Palkhivala enumerated 12 essential features. These were as follows: (1) The supremacy of the Constitution. (2) The sovereignty of India. (3) The integrity of the country. (4) The democratic way of life. (5) The republican form of government. (6) The guarantee of basic human rights elaborated in Part III of the Constitution. (7) A secular State. (8) A free and independent judiciary (9) The dual structure of the Union and the States. (10) The balance between the Legislature, the executive and the judiciary. (11) A Parliamentary form of government as distinct from the presidential form of government. (12) Art. 368 can be amended but cannot be amended to empower Parliament to alter or destroy any of the essential features of the Constitution, make the Constitution literally or practically unamendable, make it generally amendable by a bare majority in Parliament, confer the power of amendment either expressly or in effect on the State Legislatures and delete the proviso and deprive the States of the power of ratification which is today available to them in certain broad areas.
914 It was said that the essential features could be amended by way of improvement but could not be damaged or destroyed. It was said India could not be converted into a totalitarian dictatorship. The entire approach of the petitioner to the power of amendment contained in Art. 368 ignores the fact that the object of the Constitution is to provide for the organs of State like the judicature, legislature and the executive for the governance of the country. Apart from the essential functions of defence against external aggression and of maintenance of internal order a modern State is organised to secure the welfare of the people. India is a sovereign democratic republic which means that Parliament and State legislatures are elected on adult universal suffrage. The country is governed by the Cabinet system of government with ministries responsible to the House of the People and to the Legislative Assemblies respectively. In a democracy the determination of policies to be pursued can only be determined by a majority vote cast at election and then by a majority of the elected representatives in the legislature. Holmes, J., said "In a democracy the people have the right to embody their opinion in law".
922 To find out essential or non-essential features is an exercise in imponderables. When the Constitution does not make any distinction between essential and non-essential features it is incomprehensible as to how such a distinction can be made. Again, the question arises as to who will make such a distinction. Both aspects expose the egregious character of inherent and implied limitations as to essential features or core of essential features of the Constitution being unamendable. Who is to judge what the essential features are? On what touchstone are the essential features to be measured? Is there any yardstick by which it can be gauged? How much is essential and how much is not essential? How can the essential features or the core of the essential features be determined? If there are no indications in the Constitution as to what the essential features are the task of amendment of the Constitution becomes an unpredictable and indeterminate task. There must be an objective data and standard by which it can be predicated as to what is essential and what is not essential. If Parliament cannot judge these features Parliament cannot amend the Constitution. If, on the other hand, amendments are carried out by Parliament the petitioner contends that eventually court will find out as to whether the amendment violates or abridges essential features or the core of essential features. In the ultimate analysis it is the court which will pronounce on the amendment as to whether it is permissible or not. This construction will have the effect of robbing Parliament of the power of amendment and reposing the final power of expressing validity of amendment in the courts.
923 Mr. Palkhivala said that though the essential features could be amended the core of essential features could not be amended. He said that there was no esoteric test to find out what is essential and what is not essential and if no precise definition could be given that was no reason to hold that the essential features and the core of essential features could be amended. It was said that the appreciation of the trained judicial mind is the only way to find out "what essential features are.
924 Mr. Seervai rightly contended that there is no foundation for the analogy that just as Judges test reasonableness in law, similarly the judicial mind will find out the essential features on the test of reasonableness. Reasonableness in law is treated as an objective criterion because reason inheres in man as rational being. The citizen whose rights are affected applies reason and when he assails a law he possesses a standard by which he can persuade the court that the law is unreasonable. The legislature which makes a law has the standard of reasonableness and has the further qualification to apply the standard because of familiarity with the needs, desires and the wants of the people whom the legislature represents. As regards the Judge not only does he share the reasonableness of the reasonable man but his gained mind enables him to see certain aspects clearly. The process of judicial review of legislation as laid down by courts is that the Court will start with the presumption that laws enacted are reasonable. The objective standard is reasonableness. That is why in the law of contract reasonable price is to be ascertained by the courts. In the law of torts the courts find out what reasonable care is. In the law of property reasonable conduct is found out by the courts to avoid evil consequences. Reasonableness is to be judged with reference to the right which is restricted when Art. 19 is considered.
928 Mr. Palkhivala contends that the Constitution 24th Amendment Act, is unconstitutional because Parliament cannot exceed the alleged implied and inherent limitations on the amending power as it stood before the 24th Amendment. The 24th Amendment has substituted the marginal note "Power of Parliament to amend the Constitution and procedure therefor" for the original note "procedure for amendment of the Constitution". This change is due to the fact that according to the leading majority Judgement in Golak Nath's case (supra) the unamended Article dealt only with the procedure for amendment and that the power of amendment was in the residuary power of legislation. The 24th Amendment has declared that the power to amend the Constitution is in Art. 368. That was the view of this court in earlier decisions. That was the minority view in Golak Nath's case (supra.). By amendment that view has become the constitutional mandate.
942 Mr. Palkhivala contended that the people reserved the power to themselves to amend the essential features of the Constitution and if any such amendment were to be made it should be referred to the people by referendum. It was said that the Constitution-makers did not intend that essential features should be damaged or destroyed even by the people, and therefore, the Constitution did not provide for referendum. The other contention on behalf of the petitioner was that referendum was not provided for because it might have been difficult to have the Constitution accepted on those terms. The second view would not eliminate the introduction of referendum as a method of amendment. If a referendum were introduced by an amendment people would have complete power to deal with essential features. The other question would be as to whether the Preamble and the fundamental rights would be a limitation on the power of the people. On behalf of the petitioner it was said that it was not necessary to decide the questions. Both the Attorney-General and Mr. Seervai correctly said that the submissions made on behalf of the petitioner indicated that if essential features could be amended by the people the very fact that the Constituent Assembly did not include referendum as one of the methods of amendment and that the Constitution-makers excluded no part of the Constitution from amendment established that the amendment of a written Constitution can be legally done only by the method prescribed by the Constitution, If the method of referendum be adopted for purpose of amendment as suggested by Mr. Palkhivala that would be extra-constitutional or revolutionary. The amending body to amend the Constitution represents the will of the people.