The present edited excerpt is from Justice Bhagwati’s Judgment in Minerva Mill Case
Whether there are any limits on the amending power of Parliament under Article 368 and if so, what are the limits. This question came up for consideration before a Bench of 13 Judges of this Court- the largest Bench that ever sat-and after a hearing which lasted for 68 days-the longest hearing that ever took place– eleven judgments were delivered which are reported in Keshavananda Bharti v. State of Kerala (1973).
l.C. Golaknath & Ors. v. State of Punjab
The earlier decision of this Court in l.C. Golaknath & Ors. v. State of Punjab where, by a majority of six against five, the fundamental rights were held to be unamendable by Parliament under Article 368, was over-ruled as a result of the decision in Keshavananda Bharti’s case.
But, six out of the thirteen learned Judges (Sikri, C. J. Shelat, Grover, Hegde, Reddy and Mukharjea, JJ. accepted the contention of the petitioners that though Article 368 conferred power to amend the Constitution, there were inherent or implied limitations on the power of amendment and therefore Article 368 did not confer power on Parliament to amend the Constitution so as to destroy or emasculate the essential or basic elements or features of the Constitution.
The fundamental rights, according to the view taken by these six learned Judges, constituted basic or essential features of the Constitution and they could not be, therefore, abrogated or emasculated in the exercise of the amending power conferred by Article 368, though a reasonable abridgment of those rights could be effected in the public interest.
Justice Khanna’s Judgment
Khanna, J. found it difficult in the face of the clear words of Article 368 to exclude from their operation Articles relating to fundamental rights and he held that “the word ‘amendment’ in Article 368 must carry the same meaning whether the amendment relates to taking away or abridging Fundamental rights in Part II of the Constitution or whether it pertains to some other provision outside Part III of the Constitution.”
But proceeding to consider the meaning of the word ‘amendment’, the learned Judge held that the power to amend does not include the power to abrogate the Constitution, that the word ‘amendment’ postulates that the existing Constitution must survive without loss of identity, that it must be retained though in an amended form and therefore the power of amendment does not include the power to destroy or abrogate the basic structure or framework of the Constitution.
Limitations on Amending Powers
The remaining six Judges took the view that there were no limitations of any kind on the power of amendment, though three of them seemed willing to foresee the limitation that the entire Constitution could not be abrogated, leaving behind a State without a Constitution.
The Ratio Decidendi of the Judgment
Now some scholars have expressed the view that from the welter of confusion created by eleven judgments running over a thousand pages, it is not possible to extract any ratio decidendi which could be said to be the law declared by the Supreme Court.
It is no doubt true that the six judges led by Sikri. C.J., have read a limitation on the amending power of Parliament under Article 368 and so has Khanna, J., have employed the formulations “basic features” and “essential elements” while Khanna. J. has employed the formulation “basic structure and framework” to indicate what in each view is immune from the amendatory process and it is argued that “basic features” and “essential elements” cannot be regarded as synonymous with “basic structure and framework”.
These scholars have sought to draw support for their view from the following observation of Khanna, J. at page 706 of the Report:
“It is then argued on behalf of the petitioners that essential features of the Constitution cannot be changed as a result of amendment. So far as the expression “essential features” means the basic structure or framework of the Constitution. I have already dealt with the question as to whether the power to amend the Constitution would include within itself the power to change the basic structure or framework of the Constitution. Apart from that, all provisions of the Constitution are subject to amendatory process and cannot claim exemption from that process by being described essential features.”
“Basic structure or frame work” different from “basic features” or “essential elements”
Whatever be the justification for this view on merits, I do not think that this observation can be read as meaning that in the opinion of Khanna, J. “basic structure or frame work” as contemplated by him was different from “basic features” or “essential elements” spoken of by the other six learned judges.
It was in the context of an argument urged on behalf of the petitioners that the “essential features” of the Constitution cannot be changed that this observation was made by Khanna, J. clarifying that if the “essential features” meant the “basic structure or framework” of the Constitution, the argument of the petitioners would be acceptable, but if the “essential features” did not form part of the “basic structure or framework” and went beyond it, then they would not be immune from the amendatory process.
But it does appear from this observation that the six Judges led by Sikri C.J. on the one hand and Khanna, J. on the other were not completely ad idem as regards the precise scope of the limitation on the amendatory power of Parliament. This might have raised a serious argument as to whether there, any ratio decidendi at all can be culled out from the judgments in this case in so far as the scope and ambit of the amendatory power of Parliament is concerned.
A debatable question would have arisen whether “basic and essential features” can be equated with “basic structure or framework” of the Constitution and if they cannot be, then can the narrower of these two formulations be taken to represent the common ratio.
But it is not necessary to examine this rather difficult and troublesome question, because l find that in Smt. Indira Gandhi vs. Raj Narain a Bench of five Judges of this Court accepted the majority view in Keshavananda Bharti’s case to be that the amending power conferred under Article 368, though wide in its sweep and reaching every provision of the Constitution, does not enable Parliament to alter the basic structure or framework of the Constitution.
Since this is how the judgments in Keshavananda Bharti’s case have been read and a common ratio extracted by a ‘Bench of five Judges of this Court, it is binding upon me and hence I must proceed to decide the questions arising in these cases in the light of the principle emerging from the majority decision that Article 368 does not confer power on Parliament to alter the basic structure or framework of the Constitution.
Summary of the Judgments
I may mention in the passing that the summary of the judgments given by nine out of the thirteen Judges after the delivery of the judgments also states the majority view to be that “Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.” of course, in my view this summary signed by nine Judges has no legal effect at all and cannot be regarded as law declared by the Supreme Court under Article 141. It is difficult to appreciate what jurisdiction or power these nine Judges had to give a summary setting out the legal effect of the eleven judgments delivered in the case.
Once the judgments were delivered, these nine Judges as also the remaining four became functus officio and thereafter they had no authority to cull out the ratio of the judgments or to state what, on a proper analysis of the judgments, was the view of the majority. What was the law laid down was to be found in the judgments and that task would have to be performed by the Court before whom the question would arise as to what is the law laid down in Keshavananda Bharti’s case.
The Court would then hear the arguments and dissect the judgments as was done in Smt. Indira Gandhi’s case and then decide as to what is the true ratio emerging from the judgments which is binding upon the Court as law laid down under Art. 141. But here it seems that nine judges set out in the summary what according to them was the majority view without hearing any arguments.
This was a rather unusual exercise, though well- intentioned. But quite apart from the validity of this exercise embarked upon by the nine judges, it is a little difficult to understand how a proper and accurate summary could be prepared by these judges when there was not enough time, after the conclusion of the arguments, for an exchange of draft judgments amongst the Judges and many of them did not even have the benefit of knowing fully the views of others.
I may, therefore, make it clear that I am not relying on the statement of the majority view contained in The Summary given at the end of the judgments in Keshavananda Bharti’s case, but I am proceeding on the basis of the view taken in Smt. Indira Gandhi’s case as regards the ratio of the majority decision in Keshavananda Bharti’s case.
Views on abrogation of Fundamental Rights
I may also at this stage refer to an argument advanced before it on the basis of certain observations in the judgment of Khanna, J. that he regarded fundamental rights as not forming part of the basic structure of the Constitution and therefore, according to him, they could be abrogated or takes away by Parliament by an amendment made under Article 368.
If this argument were correct, the majority holding in Keshavanda Bharti’s case would have to be taken to be that the fundamental rights could be abrogated or destroyed in exercise of the power of amendment. because Ray, J., Palekar, J., Mathew, J., Beg, J., Dwivedi, J. and Chandrachud, J. took the view that the power of amendment being unlimited, it was competent to Parliament in exercise of this power to abrogate or emasculate the Fundamental Rights and adding the view of Khanna, J., there would be 7 Judges as against 6 in holding that the Fundamental Rights could be abrogated or taken away by Parliament by a constitutionally amendment.
It is undoubtedly true that there are certain observations in the judgment of Khanna, J. at the bottom of page 688 of the Report which seem into suggest that according to the learned Judge, the fundamental rights could be abridged or taken away by an amendment under Article 368. For example, he says:
“No serious objection is taken to repeal, addition or alteration of provisions of the Constitution other than those in Part III under the power of amendment conferred by Article 368. The same approach in my opinion should hold good when we deal with amendment relating to Fundamental Rights contained in Part III of the Constitution.
It would be impermissible to differentiate between the scope and width of the power of amendment when it deals with Fundamental Rights and the scope and width of that power when it deals with provisions not concerned with Fundamental Rights.”
Then again at page 707 of the Report, the learned Judge rejects the argument that the core and essence of a Fundamental Right is immune from the amendatory process. These observations might at first blush appear to support the view that, according to Khanna, J., the amendatory power under Article 368 was sufficiently wide to comprehend not only addition or alternation but also repeal of a Fundamental Right resulting in its total abrogation.
But if we look at the judgment of Khanna, J. as a whole, we do not think this view can be sustained. It is clear that these observations were made by the learned Judge with a view to explaining the scope and width of the power of amendment under Article 368.
The learned Judge held that the amendatory power of Parliament was wide enough to reach every provision of the Constitution including the Fundamental Rights in Part Ill of the Constitution but while so holding, he proceeded to make it clear that despite all this width the amendatory power was subject to an overriding limitation namely, that it could not be exercised so as to alter the basic structure or framework of the Constitution.
The learned Judge stated in so many words at page 688 of the Report that though “the power of amendment is plenary and would include within itself, the power to add, alter or repeal the various articles including those relating lo fundamental rights”, it is “subject to the retention, or the basic structure or framework of the Constitution.”
The same reservation was repeated by the learned Judge in cl. (vii) of the summary of his conclusions given at the end of his judgment. It will, therefore, be seen that according to Khanna, J. the power of amendment can be exercised by Parliament so as even to abrogate or take away a fundamental right, so long as it does not alter the basic structure or framework of the Constitution. But if the effect of abrogating or taking away such fundamental right is to alter or affect the basic structure or framework of the Constitution, the amendment would be void as being outside the amending power of Parliament.
It is precisely for this reason that the learned Judge proceeded to consider whether the right to property could be said to appertain to the basic structure or framework of the Constitution. If the view of Khanna, J. where that no fundamental right forms part of the basic structure or framework of the Constitution and it can therefore be abrogated or taken away in exercise of the amendatory power under Article 368, it was totally unnecessary for the learned Judge to consider whether the right to property could be said to appertain to the basic structure or framework of the Constitution.
The very fact that Khanna, J. proceeded to consider this question shows beyond doubt that he did not hold that fundamental rights were not a part of the basic structure. The only limited conclusion reached by him was that the right to property did not form part of the basic structure, but so far as the other fundamental rights were concerned, he left the question open. Therefore, it was that he took pains to clarify in his judgment in Smt. Indira Gandhi’s case that what he laid down in Keshavananda Bharati’s case was
“that no Article of the Constitution is immune from the amendatory process because of the fact that it relates to fundamental right and is contained in Part III of the Constitution”, and that he did not hold in that case that “fundamental rights are not a part of the basic structure of the Constitution”.
Now if this be so, it is difficult to understand how he could hold the Constitution (Twenty-ninth Amendment) Act, 1972 unconditionally valid. Consistently with his view, he should have held that the Constitution (Twenty-ninth Amendment) Act 1972 would be valid only if the protection afforded by it to the Kerala Acts included in the 9th Schedule was not violative of the basic structure or framework of the Constitution.
Conflicting Views of Justice Khanna
But merely because the learned Judge wrongly held the Constitution (Twenty-ninth Amendment) Act, 1972 to be unconditionally valid and did not uphold its validity subject to the scrutiny of the Kerala Acts added in the 9th Schedule, it cannot follow that he regarded the fundamental rights as not forming part of the basic structure of the Constitution.
If the law was correctly laid down by him, it did not become incorrect by being wrongly applied. It is not customary to quote from the writing of a living author, but departing from that practice which, I believe, is no longer strictly adhered to or followed, I may point out that what I have said above finds support from the comment made by Mr. Seervai in the 3rd Volume of his book on Constitutional Law, where the learned author says:
“The conflict between Khanna, J.’s views on the amending power and on the unconditional validity of the Twenty Ninth Amendment is resolved by saying that he laid down the scope of the amending power correctly but misapplied that law in holding Article 31B and Schedule 9 unconditionally valid.”
I entirely agree with this perceptive remark of the learned author. The true ratio emerging from the majority decision in Keshavananda Bharati’s case being that the Parliament cannot in the exercise of its amendatory power under Article 368 alter the basic structure or framework of the Constitution.
The Basic Features
The majority decision in Keshavananda Bharati’s case no doubt evolved the doctrine of basic structure or framework but it did not lay down that any particular named features of the Constitution formed part of its basic structure or framework.
- Sikri, C.J. mentioned supremacy of the Constitution, republican and democratic form of government secular character of the Constitution, separation of powers among the legislature executive and judiciary, federalism and dignity and freedom of the individual as essential features of the Constitution.
- Shelat and Grover, JJ. added to the list two other features; justice- social, economic and political and unity and integrity of the nation.
- Hegde and Mukherjee, JJ. added sovereignty of India as a basic feature of the Constitution.
- Reddy, J. thought that sovereign democratic republic, parliamentary form of democracy and the three organs of the State formed the basic structure of the Constitution.
- Khanna, J. held that basic structure indicated the broad contours and outlines or the Constitution and since the right to property was a matter of detail, it was not a part of that structure. But he appeared to be of the view that the democratic form of government, the secular character of the State and judicial review formed part of the basic structure.
It is obvious that these were merely illustrations of what each of the six learned Judges led by Sikri. C.J. thought to be the essential features of the Constitution and they were not intended to be exhaustive. Shelat and Grover, JJ. Hegde and Mukherjea JJ. and Reddy, J. in fact said in their judgments that their list of essential features which form the basic structure of the Constitution was illustrative or incomplete.
This enumeration of the essential features by the six learned Judges had obviously no binding authority:
First, because the Judges were not required to decide as to what features or elements constituted the basic structure or framework of the Constitution and what each of them said in this connection was in the nature of obiter and could have only persuasive value;
Secondly, because the enumeration was merely by way of illustration and
Thirdly, because the opinion of six Judges that certain specified features formed part of the basic structure of the Constitution did not represent the majority opinion and hence could not be regarded as law declared by this Court under Article 141.
Therefore, in every case where the question arises as to whether a particular feature of the Constitution is a part of its basic structure, it would have to be determined on a consideration of various factors such as the place of the particular feature in the scheme of the Constitution, its object and purpose and the consequence of its denial on the integrity of the Constitution as a fundamental instrument of country’s governance.
Reference
Minerva Mills ltd. v. Union of India (1980)