Defend Constitution against predatory politicians

ADDRESSING the 83rd Presiding Officers’ Conference in Jaipur last month, Vice-President and Rajya Sabha Chairman Jagdeep Dhankhar said the legislature’s autonomy could not be encroached either by the judiciary or the executive. And it is in this context that he questioned the ‘basic structure’ doctrine that the Supreme Court had expounded in the 1973 Kesavananda Bharati case.

Without offending the constitutional status that he holds as the Chairman of the Rajya Sabha, it seems that Dhankhar has misunderstood the intent and purport of the Kesavananda Bharati case, which spelt the ‘basic structure’ of the Constitution principle, and sought to make it into a criterion for reviewing the constitutional amendments passed by Parliament. It is not about the courts coming in the way of legislature and restricting the scope of the legislatures to enact laws. It is not about Parliament pitted against the judiciary or the other way round. It might sound like a doctrine, but it is not one. It is a thumb rule evolved by the Supreme Court for purposes of judicial review.

The Kesavananda Bharati case also did not set out a new principle of interpretation. It was following the distinctions made in the earlier pronouncements of the Supreme Court in the cases of Sankari Prasad Deo vs Union of India and State of Bihar (1952), Sajjan Singh vs State of Rajasthan (1965), and the definitive direction laid down in the IC Golaknath vs State of Punjab (1965) case. The issue was whether Parliament can amend the fundamental rights of Part III of the Constitution. There were no unanimous answers from the court. While some of the judges felt that that powers of Parliament to amend the Constitution given in Article 368 were unrestricted, and that Parliament can abridge, and even abrogate, fundamental rights, there were others who felt that the fundamental rights should remain inviolable.

It is necessary to remember that all these cases arose from challenges to the land reforms legislation in different states, and these laws were passed by the state legislatures, and these were protected by the constitutional amendments brought in by Parliament.

Article 31, which was about the right to property, and which was part of Part III or fundamental rights, was removed from the section through the 44th Amendment of the Constitution in 1978, but the questions that came up before the court in the above cases were related to the ‘right to property’. The courts discussed it in terms of fundamental rights and not specifically about the right to property.

In the Sajjan Singh case of 1965, then Chief Justice PB Gajendragadkar, who wrote the majority judgment, said: “The power conferred by Article 368 includes the power to take away the fundamental rights guaranteed by Part III…The fundamental rights guaranteed by Part III could not have been intended to be eternal, inviolate and beyond the reach of Article 368 for, even if the powers to amend the fundamental rights were not included in the Article, Parliament can by a suitable amendment of the Article take those powers.” It would seem that Gajendragadkar and the court were concerned about the social and economic challenges faced by a government in a developing country, and the view was that necessary social and economic reforms should not be obstructed by taking shelter behind fundamental rights. It was a dangerous position that the Gajendragadkar court had adopted. Fundamental rights were not just about the right to property.

It is in the Golaknath case that the court of Chief Justice Koka Subba Rao took a firm position on the issue of fundamental rights, or was it confined to the issue of the right to property? The majority statement delivered by Subba Rao is crystal clear on the issue: “Our Constitution accepted the theory that the right to property is a fundamental right though perhaps it was an error to do so if socialisation was desired. It treated property rights as inviolable except through law for public good and payment of compensation….As there is apprehension that the erosion of right to property may be practised against other fundamental rights, it is necessary to call a halt. An attempt to abridge or take away fundamental rights by a constituted Parliament even through an amendment of the Constitution can be declared void. The court has the power and the jurisdiction to do so. The opposite view expressed in the Sajjan Singh’s case is wrong.”

In the Kesavananda Bharati case, Chief Justice Sikri reiterated the essential point of the Golaknath case that fundamental rights are important and though Parliament has extensive powers to amend the Constitution, it cannot encroach upon the fundamental rights of the people. Sikri delivering the majority judgment wrote: “On a careful consideration of the various aspects of the case, we are convinced that Parliament has no power to abrogate or emasculate the basic elements or fundamental features of the Constitution such as the sovereignty of India, the democratic character of our polity, the unity of the country and the essential features of the individual freedoms secured to the citizens. Nor has Parliament the power to revoke the mandate to build a welfare state and egalitarian society. These limitations are only illustrative and not exhaustive.”

Between Golaknath and Kesavananda Bharati judgments, it is the Golaknath judgment that underscores fundamental rights as the raison d’etre of a democratic polity in an unambiguous language. Indians will have to choose between Gajendragadkar who had argued that fundamental rights are not eternal and not inviolable on the one side, and Subba Rao and Sikri on the other who had underlined the importance of democratic rights of people against the potential political tyranny of parliamentary majorities.

The issue of the ‘basic structure’ of the Constitution is a fight about the fundamental rights included in Part III of the Constitution. The Kesavananda Bharati case also shows that there is no conflict between the fundamental rights of Part III and the directive principles of state policy of Part IV, and that fundamental rights do not have to give way to create an egalitarian polity. The Preamble eloquently states the ideals of justice, liberty, equality and fraternity. The legal hair-splitting over the status of the Preamble, whether it is part of the Constitution or not seems unnecessary. The Constitution has served as a torchbearer of democratic freedoms in the last 72 years, and it is necessary to defend the Constitution against predatory politicians.