Back to Golaknath – Cosmic journey of the Basic Structure doctrine.

 

S.Basavaraj, Senior Advocate, Bengaluru. 

The Karnataka Government has taken a decision on 8:10:2022 to increase the quota for Scheduled Castes and the Scheduled Tribes from existing 15% and 3% to 17% and 7%. It also proposes to include the legislation in the 9th schedule of the Constitution of India. The article deals with challenge that can be made to a legislation on the doctrine of basic structure and the development of the doctrine. 

Overture: With the Supreme Court recognising Articles 14, 19 and 21 golden triangle as part of the basic structure of the Constitution of India in I.R. Coelho v. State of T.N., (2007) 2 SCC 1, challenge to amendment of the Constitution on the anvil of Article 13(2) as enunciated in Golak Nath v. State of Punjab, AIR 1967 SC 1643 has finally reached its original destination at least to a quintessential level.
Article 13 which occurs in Part III Fundamental Rights, as it originally enacted in 1950, read thus;
13. Laws inconsistent with or in derogation of the fundamental rights.—(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
(3) In this article, unless the context otherwise requires,—
“law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
“laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
Article 13(1) declares that the laws that existed as on 26 January 1950 as void to the extent of their inconsistency with Part III.
The sub-article that paved the way for prolonged constitutional scrutiny is Article 13(2) which mandates the State not to make any law which takes away the rights conferred in Part III. It also declares as void any law made in contravention of clause 13(2) to the extent of the contravention.
Political tête-à-tête. One of the major steps undertaken by Pandit Nehru government to bring socialistic reforms in the Indian rural economy was land reforms. This resulted in the enactment of various land reforms legislations known as Zemindary Abolition Acts in Bihar, Uttar Pradesh and Madhya Pradesh. There was immediate challenge to these legislations. The High Court at Patna held that the Act passed in Bihar was unconstitutional while the High Courts at Allahabad and Nagpur upheld the validity of the corresponding legislation in Uttar Pradesh and Madhya Pradesh respectively. Needless to say, declaration of unconstitutionality led to political goals reaching their dead-end. There was immediate need to insulate land reform legislations from constitutional impingement. The result was the very first amendment to Constitution in 1951.
Inbuilt insulation of land reform laws: The first amendment to the Constitution introduced Article 31A and 31B with effect from 18 June 1951. While Article 31A saved laws providing for acquisition of estates, Article 31B validated certain Acts and Regulations. Unlike the present day lengthy version, Article 31A (before 1955 amendment) had only two paragraphs which read thus;
31A (1) Notwithstanding anything in the foregoing provisions of this Part, no law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment or modification of any such rights 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, any provisions of this Part:
Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.
Introduction of Article 31A was in direct confrontation with Article 13(2) to a limited extent i.e. mainly saving laws providing for acquisition of estate and rights thereon.
Article 31B provided a unique constitutional insulation to certain legislations by creating Schedule IX and validating the laws inserted therein notwithstanding their inroad into Part III or they being contrary to any judgment, decree or order of any court or tribunal.
Article 13(2) vs Article 368. The first amendment which diluted Article 13(2) to a certain extent was met with stern opposition. The Supreme Court Sankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458, had to deal with one of the powerful arguments that the Amendment Act, in so far as it purports to take away or abridge the rights conferred by Part III of the Constitution, falls within the prohibition of article 13(2). The Court conceded that “law” must ordinarily include constitutional law. However, the Court said there is a clear demarcation between ordinary law, which is made in exercise of legislative power, and constitutional law, which is made in exercise of constituent power. The Court opined that in the context of article 13 “law” must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power, with the result that article 13(2) does not affect amendments made under article 368.
A second formidable challenge to the amending power of the Parliament touching fundamental rights was made in Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845. The challenge was to the 17th amendment which sought to, inter alia, amend the definition of “estate” in article 31A of the Constitution by including therein, lands held under ryotwari settlement and also other lands in respect of which provisions are normally made in land reform enactments. Many more agrarian reform legislations were added to Schedule IX from entry 21 to 64.
Though the argument based on Article 13(2), along with another argument based on power of High Courts under Article 226 (Article 368, first proviso) were repelled, the foundation for the Basic Structure doctrine was laid by his lordship Justice J.R. Mudholkar by posing the following question “Whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Article 368?”
Parliamentary emasculation: The confrontation reached its crescendo when eleven judge bench of the Supreme Court declared in Golaknath v. State of Punjab, AIR 1967 SC 1643 that – Amendment is ‘law’ within the meaning of Article 13 of the Constitution and, therefore, if it takes away or abridges the rights conferred by Part III thereof, it is void. The Supreme Court declared that the Parliament had no power from the date of the decision to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights enshrined therein.
However, Golaknath did not accept the ‘basic feature’ test which was suggested in Sajjan Singh. Their lordship opined that if such an implied limitation were to be put on the power of amendment contained in Article 368, it would only be the courts which would have the power to decide what are basic features of the Constitution and then to declare whether a particular amendment is valid or not on the ground that it amends a particular basic feature or not and that the result would be that ‘every amendment made in the Constitution would provide a harvest of legal wrangles so much so that Parliament may never know what provisions can be amended and what cannot’. (paragraph 90 scc).
Parliament’s reaction to Golaknath: The parliament, as expected, amended the Constitution by 24th amendment with effect from 5 November 1971. Articles 13 and 368 were amended firstly to declare that nothing in Article 13 would apply to any amendment of the Constitution made under article 368 and secondly to achieve parliamentary supremacy in the matter of amendment of the constitution.
Finest moment in Indian Constitutional Law. Article 31C was inserted by 25th amendment with effect from 24th April 1972. The object was to save laws which gave effect to Articles 39B and 39C. The primacy of these two Articles, which are in Part IV Directive Principles of State Policy, over fundamental rights was to see that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; (Art.39B) and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment (Art.39(C). However, what prompted challenge to this amendment was the 29th Amendment which inserted the Kerala Land Reforms (Amendment) Act, 1969 and the Kerala Land Reforms (Amendment) Act, 1971 as entries 65 and 66 in IX Schedule. All three amendments i.e. 24th, 25th and 29th amendments were challenged in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
It may be noted that when the aforesaid challenges were made, right to property was still a fundamental right under Article 19(1)(f).
Thirteen Hon’ble Judges in Keshavanand Bharati by majority declared that Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution. The majority view reflected in the judgment is as follows;
1. Golak Nath case is overruled;
2. Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution;
3. The Constitution (Twenty-fourth Amendment) Act, 1971, is valid;
4. Section 2(a) and 2(b) of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid;
5. The first part of Section 3 of the Constitution (Twenty-fifth Amendment) Act, 1971, is valid. The second part, namely, “and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy” is invalid;
6. The Constitution (Twenty-ninth Amendment) Act, 1971 is valid.
The Parliament was at it again. As noticed earlier, primacy of Articles 39(b) and 39(C) over Articles 14, 19 and 31, was upheld in Keshavananda Bharti. By the 42nd amendment with effect from 3 January 1977, primacy of entire Part IV was given over Articles 14 and 19. (Art 31 was already omitted by then). Article 368 was amended to give almost unbridled power to Parliament to amend the Constitution. These offending portions were declared as unconstitutional by the Supreme Court in Minerva Mills Ltd. and Others Vs. Union of India and Others (1980) 2 S.C.C. 591.
Whether fundamental rights are basic features? In my view, Waman Rao v. Union of India, (1981) 2 SCC 362 is a case of ‘touch and go’. The Supreme Court came close to declaring fundamental rights as basic features of the constitution. However the Court only added that every case in which the protection of a fundamental right is withdrawn will not necessarily result in damaging or destroying the basic structure of the Constitution and that the question as to whether the basic structure is damaged or destroyed in any given case would depend upon which particular Article of Part III is in issue and whether what is withdrawn is quintessential to the basic structure of the Constitution.
Back to Golaknath. When I say ‘back to Golaknath’, it is not that the original test of Article 13(2) to decide validity of constitutional amendment is restored. But the declaration of law by nine Hon’ble judges of the Supreme Court in I.R. Coelho v. State of T.N., (2007) 2 SCC 1 to the effect that the golden triangle of Article 14, 19 and 21 is the basic feature of the Constitution, is a clear acceptance of the law declared in Golaknath that infringement of fundamental rights is a ground to invalidate constitutional amendments.
Waman Rao says whether the basic structure is damaged or destroyed in any given case would depend upon which particular Article of Part III is in issue and whether what is withdrawn is ‘quintessential’ to the basic structure of the Constitution. Coelho identifies the golden triangle of Articles 14, 19 and 21 as quintessential to the basic structure. Coelho is criticized for confining only to three articles.
In conclusion The Constitutional law and its evolution into to a perfect shape underwent many confrontations and contradictions. The judgment in Keshavananda Bharti lit the beacon of light for generations to follow. The law declared in Coelho might be expanded to include all the articles of Part III thus doing complete justice to the judgment in Golaknath.