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The basic features

A FIVE-JUDGE Bench of the Supreme Court in the Sankari Prasad case (AIR 1951 SC 458) unanimously held within a year of the commencement of the Constitution that Parliament had unfettered power to amend the Constitution. This position was reiterated by majority in the Sajjan Singh Case (AIR 1965 SC 845) 15 years later though a minority view doubted the amendability of Fundamental Rights.

The settled law on Parliament's power to amend any part of the Constitution was reversed in the 11-judge Bench decision in the Golaknath Case (AIR 1967 SC 1643) by a narrow majority of 6 to 5. Chief Justice Subha Rao in effect ruled that Fundamental Rights cannot be abrogated even by an amendment of the Constitution because amendments are also laws within the meaning of Article 13. The shift in the Court's perception can be understood only in terms of the socio-political developments of the times.

The repeated judicial interventions against abolition of zamindari and land reform laws based on inadequacy of compensation under the right to property guarantee did create distrust between Parliament and Judiciary, each claiming to interpret constitutional intent in opposing fashion. Parliament ultimately won, though in the process people lost a valuable right originally guaranteed as a fundamental right under the Constitution. (Right to Property (Article 31) deleted from Part III by Constitution (Forty Fourth Amendment) Act, 1978).

`Cannot be altered'

The birth of the basic feature doctrine happened in the Keshavananda Bharati Case (AIR 1973 SC 1461). Thirteen judges by a majority of 7 to 6 overruled the decision in the Golaknath case to declare that the Constitution has certain "basic features" that cannot be altered or destroyed at all through the amending process. To the extent Fundamental Rights are part of the "basic features" they are unamendable. It is difficult to explain how and where the majority of judges in the Kesavananda Bharati Case discovered this unique doctrine to curtail parliamentary power of amendment, which the Court itself repeatedly said before was unfettered. Does the Court have such a power as part of the judicial review or in its inherent jurisdiction? Interpretation of which provision of the Constitution can lead to such a result? Can such a thin majority of just one judge re-write the constitutional text to make a substantial dent in distribution of powers and erosion of parliamentary authority in legislative business?

While these and related questions were debated again and again, the basic structure doctrine has been acted upon by the court thereby establishing judicial supremacy on matters of constitutional principles and policies. Dr. Ambedkar, Chairman of the Drafting Committee, expressed himself against such a claim by the Supreme Court. So did Jawaharlal Nehru. Both felt that such a situation would not emerge given the clarity of the text of Article 368. In fact, it is pertinent to point out the Parliamentary political system was chosen for India because of a desire to have a strong executive government in the context of the political situation arising out of Partition and the integration of States. Parliamentary sovereignty, an associated legal paradigm of strong executive government, became a powerful institutional fact in the working of the Constitution.

Lurking fear

However, lawyers and judges brought up in the legacy of the Common Law culture projected the argument that Parliament is only a creature of the Constitution and therefore primacy is with the Constitution. This logic paved the way for the acceptance of the law declared by judges having priority over all enacted law including constitutional amendments. In all these, there was a lurking fear of Parliament not respecting Fundamental Rights to the same degree as the judges thought the Constitution demanded. The "basic structure" doctrine, which the minority judges (Mudholkar J. and Hidayatulla J.) hinted at in the Sajan Singh Case (AIR 1965 SC 845), came in as a solid shield against claim of Parliamentary supremacy in the matter of amendments even in the face of the explicit language of Article 368.

The question is not whether such an ingenious interpretation blocking unfettered discretion to Parliament on amending the Constitution has done some good against the uncertainties of majoritarian politics or whether the Constitution is safe in the hands of the Court rather than of Parliament. The question is whether the people operating through a representative parliament are helpless to determine the structure and quality of governance and whether a small, often divided, set of appointed judges can replace democratic judgment on "basic features," whatever it means.

One cannot forget that the judgment in the ADM Jabalpur Case (AIR 1976 SC 1207) also came from the very same court where it unhesitatingly approved the suspension of the right to life and liberty under Emergency laws. The difficulty arises because of the uncertainty of so-called "basic features" and the inclination of the court to change its interpretation by narrow majorities from time to time.

Discomforting questions

Secularism was declared a basic feature in the S.R. Bommai Case (AIR 1994 SC 1918). Presumably, socialism as interpreted by the Supreme Court in the nationalisation era is also a basic feature. If so, it may raise several questions for policy-planners now involved in disinvestment and privatisation, which the court alone can clarify. Judicial review and judicial independence are considered part of "basic features." When the court claims exclusive jurisdiction in deciding judicial appointments to superior courts, interpreting the written text that way, and limits power expressly given to the Executive by the Constitution, it is legitimate to ask whether we are heading for an arrangement contrary to the spirit of parliamentary democracy and concentration of unfettered power in one institution which, incidentally, is not an elected body. Can one proceed on the assumption that judges cannot go wrong and what they decide would always be in the best interests of the people? Or is it that people themselves do not know their interests and they need to be told by an expert body? These are discomforting questions that loom large in the whenever controversial decisions on popular issues are rendered by the court.

N.R.M.M.

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