The Two Judgments: Golaknath and Kesavananda Bharati*

Transcription

1 The Two Judgments: Golaknath and Kesavananda Bharati* The Two Judgments: Golaknath and Kesavananda Bharati* By K. Subba Rao (Ex-Chief Justice of India) Cite as : (1973) 2 SCC (Jour) 1 The purpose of this article is not to criticize the judgment, but to give its effect and the changes it made in the previous constitutional position of fundamental rights. Before considering the effect of the recent judgment, it would be convenient at this stage to notice the scope of Golaknath judgment for two reasons: (1) there is misapprehension as regards the scope of the said decision and (2) it would help to ascertain how far and to what extent, the fundamental freedoms of the people, as recognised by that decision, have been changed by the recent decision. In that case the landlord questioned the constitutional validity of an Act passed by the legislature taking away the fundamental rights in an estate. The Supreme Court dismissed the petition of the landlord. That is to say, contrary to the impression created by propaganda, the rich man lost the case. In effect it laid down the following propositions: (1) All the amendments made up to the date the judgment was delivered, were valid. (2) The amendment under Article 368 being law, it is subject to the provisions of Article 13 and therefore if the said law takes away or abridges the fundamental rights, except in the manner and to the extend prescribed by Part III, it will be void. (3) Parliament can, by the law of amendment or by ordinary law, abridge or restrict the fundamental rights to the extent permitted in Part III. (4) Though it cannot take away the fundamental rights, it can add to the list of fundamental rights. It will be seen from the said propositions that the Supreme Court, as wrongly represented, did not hold that Parliament has no power to amend fundamental rights. On the other hand it held that it could amend all the fundamental rights, but it could not, by the process of amendment, take away the fundamental rights or restrict them beyond that sanctioned by Part III. It follows that under the decision the Parliament can add to the list of fundamental rights or restrict them reasonably in public interest. To put it in other words, Parliament cannot by amendment take away, to use the terminology of the recent Supreme Court Judgment, the core of the fundamental rights. In that case, before the Supreme Court two alternative arguments were advanced: (1) As Article 368 is subject to Article 13, any law of amendment taking away or abridging the fundamental rights beyond that prescribed under Part III would be void, and (2) In exercise of its power of amendment, Parliament cannot destroy the basic structure of the Constitution, but it can only modify the provisions thereof within the framework of the original instrument for its better effectuation; and the fundamental rights formed part of the basic structure. The Supreme Court accepted the first argument and held that whether the law of amendment was made in exercise of the power under Article 248 or of the power implied in Article 368, it being 'law' would be void if it was made in contravention of the provisions of Article 13. On the second question the Supreme Court held that there was considerable force, but it did not express its final opinion thereon as the case before it could be decided on the first point. The criticism of the Golaknath Judgment ran on the following lines. (1) It was held in the Judgment that the Parliament has no power to amend the Constitution in order to abridge the fundamental rights. (2) It was held therein that the power to amend the Constitution was conferred on the Parliament under Articles 245, 248 and entry 97 of Schedule I, that Article 368 only prescribed the procedure and therefore any law amending the Constitution taking away or abridging the fundamental rights would be void in terms of Article 13 of the Constitution. The said legal position, it was said, was erroneous as the power to amend was a constituent power conferred on the Parliament under Article 368 and therefore any law made in exercise of that power would not be hit by Article 13 which only governed laws made in exercise of legislative power. (3) The Judgment had so entrenched the right to property that it stood in the way of the Parliament in improving the socioeconomic conditions of the country. The first ground of criticism has no basis. The Supreme Court of India in Golaknath Judgment did not say that the Parliament has no power to abridge the fundamental rights. What it said was it has no power to abridge the fundamental rights except in the manner and to the extent prescribed in Part III of the Constitution. To put in other words, as the amendment is "law" within the meaning of Part III of the Constitution, Parliament can restrict the fundamental rights in

2 accordance with the relevant provisions of Part III. In effect it said Parliament cannot by amendment take away the core of the fundamental rights. The broad sweep of the power of the Parliament to restrict or limit the fundamental rights in order to implement the directive principles will be apparent if the relevant provisions of Part III are scrutinised. The fundamental right to equality is subject to the law of acquisition; the right to admission to colleges and employment is subject to the law making special provision for backward communities and scheduled castes; the right to seven freedoms is subject to the laws of reasonable restrictions in public interest; the right to life and personal liberty is subject to procedure prescribed by law; the right to property is subject to the law of deprivation, acquisition and taxation; the right against exploitation is subject to the law of imposing compulsory services for public purpose; the right to freedom of religion is subject to laws of public order, morality and health and also the law regulating or restricting economic, financial, political or other secular activity or provisions for social welfare and reform; the right to manage religious affairs is subject to the law of public order, morality; and the right to administer the property of religious institutions is subject to law. The fundamental rights can also be modified by Parliament by law in their application to armed forces and the forces charged with the maintenance of the public order. They may also be restricted by Parliament by law while martial law is in force and when the proclamation of emergency is issued during the continuance of which, Article 19 is suspended and the President by special order can suspend other rights. A scrutiny of the said provisions discloses that the Parliament has ample power to make laws in public interest to restrict the said rights. To put it in other words, while the Parliament has the necessary power to make laws restricting the said fundamental rights reasonably in public interest, the Constitution has provided for a minimal judicial check against the autocratic exercise of that power. This minimal check on autocracy is irksome to men in power. The second criticism is also not sound. It is true that five of the six judges who formed the majority held that amendment is law within the meaning of Article 248 of the Constitution and that Article 368 only lays down the procedure. But the sixth judge found that power in Article 368 itself. It is immaterial whether the power to amend the Constitution is found in one provision or other, for it is a power under the Constitution. It is also immaterial whether the said power is called legislative power, amending power or constituent power, so long the amendment made in exercise of the said power is law. If it is law, Article 13 is automatically attracted. That apart, the criticism mixes up the two concepts of amending power and constituent power. It may be that the amending power is carved out of the constituent power. It may also be that the amending power may loosely be described as constituent power. But the distinction between the two is real. One is a power outside the Constitution and inherent in the people. The other is a power under the Constitution which vests in the Parliament. Therefore, any amendment made in exercise of the power under the Constitution is "law" within the wide meaning of the definition of Article 13. The result of the said decision, whatever may be the reasoning thereunder, was that the Parliament by amendment cannot take away the fundamental rights but can abridge them within the limits laid down by Part III. It can even add other fundamental rights to the list. The third ground is an alibi for incompetence or neglect of duty. To appreciate the scope of the judgment in the context of its effect on the right to property, it would be necessary to know the scope of the said right as it existed before the said judgment. The then constitutional position of the right to property may be briefly stated thus: 1. Every citizen has a fundamental right to acquire, hold and dispose of property; 2. The State can make a law imposing reasonable restrictions on the said right in public interest. The said restrictions, under certain circumstances, may amount even to deprivation of the said right; 3. Whether a restriction imposed by law on a fundamental right is reasonable and in public interest or not is a justiciable issue; 4. The State can, by law, deprive a person of his property if the said law of deprivation amounts to a reasonable restriction in public interest within the meaning of Article 19(5); 5. The State can acquire or requisition the property of a person for a public purpose after paying compensation; 6. The adequacy of the compensation is not justiciable; 7. If the compensation fixed by law is illusory or is contrary to the principles relevant to the fixation of compensation, it would be a fraud on power and, therefore, the validity of such a law becomes justiciable; and 8. Laws of agrarian reform depriving or restricting the rights in an estate â the said expression has been defined to include practically every land in a village â cannot be questioned on the ground that they have infringed fundamental rights; 9. The State has powers to impose taxes on all types of property and incomes. The result is that in India the State has ample power to make laws to bring about all agrarian reforms unhampered by

3 fundamental rights. The State had now become the final authority in the shaping of land tenures. Even on industrial and business front the Constitution has conferred large powers on the State to regulate it, to prevent concentration of wealth and exploitation and even to nationalise an industry or business in public interest. Briefly stated, before the Golaknath judgment there was practically no fundamental right to property in regard to an estate, which by definition includes almost all the land in rural area. In regard to other property the State can tax it. If acquired, it has to pay compensation to its owner on relevant principles, and which is not illusory. The slogan which, by repetition has become a conviction in the uninformed mind that under the Indian Constitution the property right has become entrenched, has therefore no foundation in fact. What the judgment in effect saved were other fundamental rights such as right to equality, seven freedoms, right against exploitation, right to life and liberty, etc. from total extinction. The Parliament passed the 24th Amendment with the object of overruling the effect of Golaknath judgment and to assert the Parliament's power to take away the fundamental rights. The 25th, 26th and 29th Amendments to the Constitution were made abridging the fundamental rights in certain areas or in respect of certain laws. The question of the validity of the said Amendments was the subject-matter of the recent Supreme Court judgment in Kesavananda Bharat v. State of Kerala, (1973) 4 SCC 225. It was heard by 13 Judges. All the Judges unanimously held that the 24th Amendment is valid and in exercise of its power conferred thereunder Parliament can amend any Article of the Constitution including the fundamental rights. But seven of the Judges held that the Parliament by amendment of the Constitution cannot affect the basic structure of the Constitution. There is conflict on the question of the content of the structure and whether and to what extent and in what circumstances the fundamental rights form part of the said structure. The effect of the judgment depends upon the content of the expression 'basic structure of the Constitution'. The basic structure of the Constitution takes in, not only the institutions but also the fundamental principles or the objectives of the Constitution. If the latter are ignored, the former will become a body without a soul, for the structure is so designed as to implement the philosophy of the Constitution. Indeed, the philosophy and the institutional devices are so mixed up that if they are separated it becomes a different Constitution. The Constitution in sonorous terms resolved to constitute India as a Sovereign Democratic Republic and to secure to all its citizens Justice, Liberty, Equality and Fraternity. The Preamble is not a platitude. It is the condensed version of its philosophy. It is sought to be implemented through the provisions of the Constitution. The basic structure of the Constitution is made up of the following concepts: 1. Republic: Republic is an independent, sovereign power or State. It is distinguished from monarchy or oligarchy. The power vests in the people. It is a State in which the supremacy of the people is formally acknowledged. It is a Government for the protection of the citizens against the exercise of arbitrary and unjust power. 2. Democracy: Democracy is a form of Government where people exercise their power to take political decisions through their representatives selected by the process of free election. It is a representative and responsible Government. The fundamentals of democracy are free elections and freedoms. Both go together; one cannot exist without the other. If people are deprived of their freedoms, there cannot be free elections. The Government so elected, in order to perpetuate itself, will supress the freedoms of the people. So the basis of democracy is freedoms. They are preserved and protected by conventions in highly-developed democracies, where there are no written Constitutions; they are embodied and protected under written Constitutions in their Democracies; they are described as Bill or rights in some Constitutions and as fundamental rights in others. Another aspect of the concept of freedom is the equality of all men, for democratic freedom necessarily means freedom for all people, which means the abolition of glaring inequalities. There may be additions or restrictions or even suspension of fundamental rights, having regard to time, place and circumstances, but without them democracy will be a caricature or empty shell. 3. Constitutional Democracy: It is an evolved device to control the tremendous economic and political power the executive, over the years, has gathered into its hands. The essence of Constitutional Democracy is the existence of an effective restraint upon political and governmental action. By definition it is a limited Government or a Government that is subject to restraints. In Constitutional Democracy the Constitution is supreme and all the institutions created thereunder shall function within the limits laid down therein. The existence of rights is an important substantive check on the Government; judicial review makes the check real, for it is the machinery to enforce the rights. Indeed, the means is a part of the right and therefore the judicial review is itself made a fundamental right. 4. Federation: Federation is a form of Government wherein the sovereign power is divided between the Centre and the States. 5. Welfare State: Welfare State is a compromise between capitalism and communism. It has taken the good points of both and avoided their defects. In a Welfare State the people have freedoms. But the said freedoms are regulated by the State through laws and the arbitrary power of the State is controlled by judiciary. Part III and Part IV represent the core of the Indian Constitutional philosophy. Part III enshrines the fundamental rights and Part IV declares the directive

4 principles. The combined effect of the two parts is described from the following different perspectives: (1) Political, social and economic. (2) Physical, intellectual and spiritual. (3) Liberty, equality and security. (4) Human or fundamental rights and directive principles. (5) Rights and duties of man. (6) Means and end. (7) Directive principles giving content to fundamental rights. However they are described, both are fundamental for the governance of the country. Both constitute an integrated scheme. As the social goal is an elastic one, by the continuous interaction of the fundamental rights and the directive principles through the medium of judicial process, the Constitution envisaged an organic growth of socio-economic justice in a free society. Indeed, the main objective of the directive principles is to give a practical content to the fundamental rights and enlarge their content in the interest of society. This should be done by a process of harmonisation and not by creating a conflict between the two, for the permissible formulae of reconciliation are wide and elastic enough to implement the directive principles without unreasonably abridging or taking away the fundamental rights. Both together constitute the ideals of a democratic welfare State and indeed its conscience. The Constitution advisedly reserved the minimum rights for the people and kept them beyond the unreasonable reach of Parliament. Looked at from a different standpoint, they constitute the necessary checks on the arbitrary and unconstitutional exercise of legislative and executive power. 6. Rule of Law: In the Twentieth Century rule of law has acquired a rich content. It takes in the concepts of law and order, liberty, equality and security. It has become a potent instrument of socio-economic justice. Judicial review is an integral part of the rule of law. 7. Judiciary: Indian judiciary has an important role to play. In the working of the Constitution there will be conflicts between the Centre and the States, the States, the Parliament and the legislatures, the Citizens, the State and the Citizens, the majority and the minority interests, and parties who believe in democracy and those who do not believe in it. There is also tendency for power to degenerate into autocracy and despotism. The judiciary is constituted as an umpire to resolve these conflicts. The main functions of the judiciary are (1) it is a balancing wheel of the federation; (2) it keeps equilibrium between fundamental rights and principles of social justice; (3) it keeps all the authorities functioning in India within bounds; (4) it controls the administrative tribunals; (5) it decides disputes between people and between State and the people. Judicial review is an integral part of rule of law, for without that power it is not possible for the judiciary to discharge the said onerous duties. 8. Parliament: This is a very important institution of the Constitution. The Constitution minutely defines its powers and limitations. Notwithstanding its wide powers it is not supreme, for it must function within its bounds laid down in the Constitution. Broadly stated, it must function with Constitutional competence and without infringing fundamental rights. The said two conditions are the limitations on the power of the Parliament. 9. Executive: The executive is responsible to the Parliament. But in developing countries like India the executive has gathered into its hands tremendous power, practically free from the wellknown checks that are found in developed democracies. In the absence of strong opposition, enlightened public opinion and abiding conventions the judiciary is the only check on the executive. 10. President: India is a republic. The President is the constitutional head of the State and he shall function within the limits laid down by the Constitution and protect and preserve it. Briefly stated, the following are the concepts of the basic structure of the Constitution: (1) Republic. (2) Federation. (3) Constitutional Democracy with its division and limitation of powers. (4) Representative Government.

5 (5) Responsible Government through Parliamentary executive. (6) Welfare State i.e. a State where there will be prosperity, gainful employment, freedoms, equality and social justice. Fundamental rights and directive principles are the fundamentals to the governance of the country and constitute the philosophy and objectives of the Indian Democracy. (7) The high concept of Rule of Law in which socio-economic justice and freedoms are integrated, and judicial review is an integral part of it. It is manifest that the Indian Constitution has definitely rejected the authoritarian form of Government and directed the State to bring about an egalitarian social order through the Rule of Law. It has imposed judicial check on the executive and legislative power in order the keep them within the bounds laid down by the Constitution. Under such a constitutional scheme the end and the means are equally important; together they form one philosophy. The observations made by some of the judges in regard to the basic structure or the basic or fundamental features of the Indian Constitution will, to some extent, help to clarify the position. Chief Justice Sikri said on page 366 (paras 292 and 293) that: "The basic structure may be said to consist of the following features â (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. The above structure is built on the basic foundation i.e. dignity and the freedoms of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed." According to the Chief Justice the freedoms of the individual are the foundation of the structure itself. Shelat and Grover, JJ., speak of the structure on page 454 (para 582) thus: "The basic structure of the Constitution is not a vague concept â The following can be regarded as the basic elements of the Constitutional structure. (These cannot be catalogued but can only be illustrated): (1) The Supremacy of the Constitution; (2) The Republican and Democratic form of Government and Sovereignty of the country. (3) Secular and federal character of the Constitution. (4) Demarcation of power between the legislature, the Executive and the Judiciary. (5) The dignity of the individual secured by the various freedoms and basic rights in Part III and the mandate to build a welfare State contained in Part IV. (6) The unity and the integrity of the nation." The learned Judges treat the fundamental rights and directive principles as part of the basic structure of the Constitution. Hegde and Mukherjee, JJ., enumerate the basic features thus on page 486 (para 666): "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 sovereignty of India, the democratic character of our polity, the unity of the country, the essential features of the individual freedoms secured to the citizens. Nor has the Parliament power to revoke the mandate to build a Welfare State and egalitarian Society. These limitations are only illustrative and not exhaustive." Earlier they said,

6 "When we speak of the 'abrogation' or 'repeal' of the Constitution we do not refer to any form but to substance. If one or more basic features of the Constitution are taken away to that extent the Constitution is abrogated or repealed. If all the basic features of the Constitution are repealed and some other provisions inconsistent with those features are incorporated, it cannot still remain the Constitution referred to in Article 368. The personality of the Constitution must remain unchanged." (page 481, para 651). Mr Justice Ray, who accepted the unrestricted power of the Parliament to repeal every part of the Constitution, had to concede that the amendment should leave "an organic instrument which provides for the making, interpretation and implementation of law" (page 557, para 917-A). To put in it other words, the Parliament by amendment, according to the learned Judge, can take away every one of the provisions of the Constitution provided it keeps a bare mechanism of Government. Perhaps the learned Judge's definition of 'amendment' would enable the Parliament to take away all the provisions of the Constitution except 53(1), with an additional section providing that the President or some other dignitary shall be the President for life, with a power to nominate his successor. For Section 53, so amended, leaves a machine for the governance. The President's word would be law, it would be interpreted and implemented by his subordinates. In this view, a Parliament elected for five years on a minority vote, if it gets two-thirds majority can rewrite the Constitution and change democracy into a totalitarian form of Government, depriving its people of all their freedoms. But, the majority of the learned Judges did not agree with this view. Jaganmohan Reddy on pp (para 1159) dealt with the subject of basic or essential features of the structure of the Constitution. He observed: "The elements and the basic structure are indicated in the preamble and translated in the various provisions of the Constitution. The edifice of our Constitution is built upon and stands on several props, remove any of them, the Constitution collapses. These are: (1) Sovereign Democratic Republic; (2) Justice â social, economic and political; (3) Liberty of thought, expression, belief, faith and worship; (4) Equality of status and opportunity. Each one of these is important and collectively they ensure a way of life to the people of India which the Constitution guarantees. To withdraw any of the above elements, the structure will not survive and it will not be the same Constitution, or this Constitution, nor can it maintain its identity if something quite different is substituted in its place, which the sovereign will of the people alone can do.... What then are the essential features or the basic elements comprising the structure of our Constitution need not be considered in detail as that will fall for consideration in any concrete case, where they are said to have been abrogated and made non-existent. The fact that a complete list of these essential elements constituting the basic structure are not enumerated is no ground for denying that these exists.... A sovereign democratic republic, Parliamentary democracy, the three organs of the State, certainly in my view, constitute the basic structure. But do the fundamental rights in Part III and the directive principles in Part IV constitute essential elements of our basic structure of Constitution in that the Constitution will be a Constitution without them? In other words, if Parts III and IV or either of them are totally abrogated, can it be said that the structure of the Constitution as an organic instrument establishing sovereign democratic republic as envisaged in the preamble remains the same? In the sense as I understand the sovereign democratic republic, it cannot; without either fundamental rights or directive principles, what can such a Government be if it does not enforce political, economic or social justice?" The learned Judge, though he has not given an exhaustive list of the essential features of the structure of the Constitution, has clearly expressed his views on certain aspects, particularly in regard to the fundamental rights and directive principles. The core of the said rights and principles constitutes the Indian Constitutional philosophy and permeate the entire structure of the Constitution and therefore forms part of its structure. Palekar, J., on page 699 (para 1281), has given some of the essential features of the Constitution that were enumerated by the Advocate for the Petitioners. The learned Judge, after noticing the wide sweep of the argument, stated that in the ultimate result the case really boiled down to whether the core of the fundamental right to property had been damaged or destroyed principally by the 25th Amendment and if so whether there were any implied or inherent limitations on the amending power which prohibited its amendment (para 1286). He observed that the several essential features listed by Shri Palkhivala, did not come into the picture in the present case and that since it was not the practice of the court to decide the questions which were not of immediate controversy, it would not be proper to pronounce whether this or that particularly so-called essential features could or could not be damaged or destroyed by amendment. Having said that, instead of confining his observations to the right to property, he said that, since it was argued on behalf of the State that there could be no limitations on the amending power except those expressly provided in the Constitution and since that would affect the decision on the validity of the 25th Amendment, he would have to deal briefly with the question of implied and inherent limitations with special reference to fundamental rights including property rights (para 1286). Then the learned Judge after considering the question at some length again stated (para 1299): "Having regard to the rules of construction relating to power referred to, we have to see if either a provision relating to fundamental rights to property or any related provisions of the Constitution contain words of prohibition or limitation on the amending power." On that basis he proceeds to consider the question and he comes to the following conclusion (page 720, para 1318):

7 "On a consideration, therefore, of the nature of the amending power, the unqualified manner in which it is given in Article 368 of the Constitution it is impossible to imply any limitations on the power to amend rights. Since there are no limitations expressed or implied on the amending power it must be conceded that all the Amendments in question here must be deemed to be valid." Though his finding applies to all fundamental rights, because of his earlier observations, there is some hope that in future he will consider the question more deeply if and when other fundamental rights such as the seven freedoms, right to equality, etc., are taken away by amendment, and come to a definite conclusion whether they form the basic structure of the Constitution and could not be taken away. But for the present it may be stated that the tentative view of Palekar, J., is that all the fundamental rights could be taken away by amendment of the Constitution, whether they form part of the structure or not. As the judgment of Khanna, J., appears to tilt the balance on the one side or the other, it is necessary to consider it in some detail. In regard to the scope of the amending power, the learned Judge said at page 768 (para 1430): "In my opinion, the minimum required is that which relates to the basic structure or framework of the Constitution. If the basic structure is retained, the old Constitution would be considered to continue even though other provisions have undergone change. On the contrary, if the basic structure is changed, mere retention of some articles of the existing Constitution would not warrant a conclusion that the existing Constitution continues or survives." Dealing with the power to amend fundamental rights the learned Judge says at page 769 (para 1434): "Subject to the retention of the basic structure or framework of the Constitution, I have no doubt that the power of amendment is plenary and would include within itself the power to add, alter or repeal the various Articles including those relating to fundamental rights." The learned Judge further made it clear that: "It would be impermissible to differentiate between the scope and width of powers of amendment when it deals with fundamental rights and the scope and width of that power when it deals with provisions not connected with fundamental rights." (para 1435) The learned Judge negatived the contention against amendability of the fundamental rights on the grounds of "essential features", "core", "natural rights", "human rights" and "preamble" and concluded his discussion at page 806 (para 1508) thus: "Fundamental rights contained in Part III of the Constitution can, in my opinion, be abridged or taken away in compliance with the procedure prescribed in Article 368, as long as the basic structure of the Constitution remains unaffected." This conclusion has two aspects: (1) Fundamental rights can be taken away or abridged by amendment of the Constitution; (2) If the amendment of the fundamental rights taking away or abridging singly or wholly or by various combinations affects the basic structure of the Constitution it would be void. The question, therefore, is what is in the opinion of the Judge the basic structure of the Constitution and in what circumstances the amendment of the fundamental rights affects the basic structure. To ascertain the views of the learned Judge on this question, it would be useful to notice his approach to the problem of the amendment of the Constitution. He said at pp. 770 and 771 (para 1437): "(A) Constitution provides for the framework of the different organs of the State, namely, the executive, the legislature and the judiciary. A Constitution also reflects the hopes and aspirations of a people. Besides laying down the norms for the functioning of different organs, a Constitution encompasses within itself the broad indications as to how the nation is to march forward in times to come.... A Constitution must of necessity be the vehicle of the life of a nation... it is not a document for fastidious dialectics, but the means for ordering the life of a people." From these observations it is clear that Parts III and IV of the Constitution, which give the broad indications how the nation is to "march forward" and "a means of ordering the life of people" are important and integral parts of the Constitution. The Constitutional means to the "forward march" of the nation's life is certainly reflected in Parts III and IV of the Constitution. The scheme for the new social order cannot but be a part of the structure of the Constitution. In dealing with this aspect the learned Judge, while recognising that some Articles singly or in combination may form the basic structure, did not finally decide on all aspects. His analysis may be grouped under three heads: (1) Articles which do not form the basic structure; (2) those which form the basic structure; and (3) those left for future decisions. Under the first group, he puts the right to property. He gives, three reasons for it at page 794 (para 1483): (1) The right to property is a matter of detail; (2) the said right changes from time to time and (3) the approach of the framers of the Constitution was to subordinate the individual's right to property to the social good. Under the second group the learned Judge said

8 that the following amendments, though the list is not exhaustive, affect the basic structure of the Constitution: (1) changing the democratic Government into dictatorship or hereditary monarchy; (2) abolishing the Lok Sabha or Rajya Sabha; (3) changing the secular character of the State, according to which the State shall not discriminate against any citizen on the ground of religion. This indicates that in the learned Judge's view taking away one or two fundamental rights might affect the structure; (4) the amendment which "excludes judicial review regarding the validity of a statute, which might be enacted by the legislature in the future in respect of a specified subject, but also excludes judicial review for finding whether a statute enacted by the legislature is in respect of a subject for which judicial review has been excluded". (para 1533) The said list is not exhaustive but only illustrative. Under the third group the learned Judge posed many questions and left them unanswered. On the question of the abuse of emergency powers under Article 352, the extension of the life of the Parliament under Article 83, the amendment of the Constitution under Article 368, so as to make it unamendable, he declined to give a definite answer, though he expressed the hope that such amendments would not be made. Briefly stated, according to the learned Judge, barring the right to property, an amendment of other fundamental rights, singly, wholly or in combination with other provisions of the Constitution may under certain circumstances affect the basic structure of the Constitution. An amendment may repeal Part IV or Part III or both Part III and IV; it may keep all the fundamental rights but repeal Article 32; it may repeal Article 19 which embodies the seven freedoms, without which democracy cannot survive; it may remove the doctrine of equality which is the cherished value of democracy; it may repeal the provisions in Part III which preserve the doctrine of the tolerance of religious diversity; it may repeal the provisions which protect the exploited people and minorities. All the amendments and such others will have to be scrutinised in the view of the learned Judge on the touchstone of the "basic structure" of the Constitution. Even in regard to the right to property it would still be an open question whether, if the amendment takes away generally without confining it to a particular subject not only Article 31 and 19(1)(f) but also other rights in Article 14 and other clauses of Article 19(1), it would not affect the basic structure of the Constitution. Suppose the effect of an amendment is that not only the right to property but also other rights of the people such as freedom of speech, association, equality, judicial review to the extent directly, indirectly or remotely connected with the right to property are repealed, can it be said that such an amendment does not affect the democratic structure of the Constitution. No doubt the learned Judge held that the first part of Article 31-C was good but he held so because that part related only to a particular subject-matter covered by Article 39(b) and (c) and that as Part II of 31-C was held void, the judicial review in respect of the laws mentioned in Part I was retained. It may therefore be said that Khanna, J., agreed with the other six Judges, who preserved the freedoms except in regard to right to property, though his conclusion was based not on principle of "core" but on that of "basic structure". Mathew, J., on this aspect has to say this: On page 880 (para 1714) dealing with fundamental rights the learned Judge observed: "I think these are rights which inher in human beings, because they are human beings â whether you call them natural rights or by some other appellation is immaterial. As the preamble indicates, it was to secure the basic human rights like liberty and equality, that the people gave unto themselves the Constitution and these basic rights are essential features of the Constitution; the Constitution was also enacted by the people to secure justice, political, social and economic. Therefore, the moral rights embodied in Part IV of the Constitution are equally essential features of it, the only difference being that the moral rights embodied in Part IV are not specifically enforceable as against the State by a citizen in a court of law in case the State fails to implement the duty. But they are fundamental to the governance of the country, and all organs of the State including the judiciary are bound to enforce those directives." Further he proceeded to state that: "the responsibility of the Parliament in taking away or abridging a fundamental right is an awesome one and whenever a question of Constitutional amendment which will have the above effect comes up for consideration, Parliament must be aware that they are guardians of rights and principles of the people in greater degree than courts, as the courts go into the validity of the amendment on any substantive ground." Adverting particularly to the right to property the learned Judge says at page 884 (paras 1725 & 1727): "The most that we can claim, as general principle applicable to all the stages of social development, is that without some property or capacity for acquiring property, there can be no individual liberty, and that without some liberty there can be no proper development of character. In short, the concept of property is not an arbitrary ideal but is founded on man's natural impulse to extend his own personality. In the long run, a man cannot exist, cannot make good his right to marriage or found a family unless he is entitled to ownership through the acquisition of property." He came to the following conclusion at page 885 (para 1731): "The framers of our Constitution made the right to acquire, hold and dispose of property a fundamental right thinking that every citizen in this country would have an opportunity to come by a modicum of that right."

9 No doubt the learned Judge dealt with the three different types of property, the different stages of the development of the right to property and also the liability of the said right being controlled or modified by law. He also accepted the argument that Parliament through the amending process can take away the right. But what I am emphasising now is that even Mathew, J., who conceded the unrestricted power to Parliament to take away the fundamental rights by the amending process holds that the fundamental rights including right to property, subject to the laws of social control along with the directive principles are the essential features of the Constitution. The expression "essential features" is not different from the expression "basic structure". Beg., J., though held that Parliament, through the amending process, could take away all the provisions of the Constitution without abrogating the Constitution or creating a vacuum, said about the status of fundamental rights in the Indian Constitution in the following words at page 901 (paras 1800 and 1801): "The voice of the people speaking through the Constituent Assembly constituted a new 'Republic' which was both 'Sovereign and Democratic'. It no doubt sought to secure the noble objectives laid down in the preamble primarily through both fundamental rights found in Part III and the Directive Principles of the State Policy found in Part IV of the Constitution â If any distinction between Fundamental Rights and Directive Principles on the basis of the difference between ends or means were really to be attempted, it would be more proper, in my opinion, to view fundamental rights as the ends of the endeavours of the Indian people for which Directive Principles provided the guidelines. It would be still better to view both Fundamental rights and the 'fundamental' Directive Principles as guidelines." He proceeded to describe graphically the position of fundamental rights in the Constitution thus (p. 902, para 1802): "Perhaps, the best way of describing the relationship between the two would be to look upon the directive principles as laying down the path of the country's progress towards allied objectives and aims stated in the preamble, with fundamental rights as the limits of that path, like the banks of the flowing river, which could be amended or mended by displacements, replacement or curtailments or enlargements of any part according to the needs of those who had to use the path. In other words the requirements of the path itself are more important." At page 909 (para 1823) the learned Judge stated the Constitutional function of the judiciary thus: "(It) is to see that the chosen vehicle does not leave the chartered course or path or transgress the limits prescribed by the Constitution at a particular time. The fundamental rights as I have said earlier may be viewed as such limits. The power of amendment, in a Constitution such as ours, must include the power to change these limitations to suit the needs of each age and generation." Briefly put, the learned Judge, while conceding the plenary power of the amending process, described the fundamental rights as the banks of a "flowing river". If the metaphor is pursued to the logical end, it follows that just like the bunds of a river, to use the terminology of the learned Judge, they could be amended by displacements, replacements or curtailments or enlargements, but cannot be destroyed. To use the phraseology of some of the learned Judges, if the core of the bund is removed the entire river loses its direction and submerges the land on all sides. So too the destruction of the core of the fundamental rights destroys the structure of the democratic polity. This indicates the importance of the fundamental rights as a basic feature of the structure of the Indian Constitution. No doubt, the learned Judge observed that there was no distinction between the more or the less basic parts of the Constitution except in the more difficult procedure prescribed for the amendment of some Articles, and concluded that no parts of the Constitution were sacrosanct and beyond the reach of Article 368. The only limitation he placed upon the amending process was that it could not abrogate the Constitution or create a vacuum, though at the same time he said that it could be done step by step by the bodies empowered to amend if they so desired and followed the appropriate procedure. (Para 1836) This conclusion meant that according to the learned Judge every provision, whether it is basic to the structure of the Constitution or not, could be repealed. Dwivedi, J., who gave the widest interpretation to the amending power distinguishing the essential features from the nonessential features of the Constitution said at page 942 (paras ) thus: "Every provision of the Constitution which may be amended only by the procedure prescribed in Article 368 is an essential feature of the Constitution, for it is more set than legislative laws.... Thus the provisions specified in the proviso to Article 368 are more essential than the rights in Part III. It has already been shown earlier that the fundamental rights, even though an essential feature of the Constitution, are within the sway of the amending power in Article 368." The learned Judge, therefore, accepted the position that the fundamental rights are comparatively an essential feature of the Constitution, and the test of essentiality he found in Article 368 of the Constitution. Chandrachud, J., who also endowed Article 368 with the plenary power of amendment said of fundamental rights thus (p. 985, para 2076):

10 "Fundamental rights undoubtedly occupy a unique place in the civilized societies whether you call them 'transcendental', 'inalienable', 'inviolable' or as Lieber called 'primordial'. There is no magic in these words for the strength and importance of these rights is implicit in their very description of them as 'fundamental'." On page 999 (para 2120) the learned Judge reaffirmed his earlier view thus: "I have stated in the earlier part of my judgment that the Constitution accords a place of pride to fundamental rights and a place of permanence to the directive principles. I stand by what I have said, Fundamental Rights which are conferred and guaranteed by Part III of the Constitution undoubtedly constitute the ark of the Constitution and without them a man's reach will not exceed his grasp." But the learned Judge held that Article 368 conferred a plenary power on the Parliament to repeal every provision of the Constitution. To sum up: (1) All the Judges agreed that the 24th Amendment, amending Article 368 of the Constitution was valid and under the amended section, all the Articles of the Constitution including those enshrining fundamental rights could be amended. (2) Seven of the Judges â Sikri, C.J., Shelat, Hegde, Grover, Jaganmohan Reddy, Khanna and Mukherjea, JJ., held that the provisions, including those providing for fundamental rights could not be amended, if they affected the basic structure of the Constitution. (3) Six of the said seven, excluding Khanna, J., held that the 'core' of the fundamental rights, formed part of the basic structure of the Constitution. Four Judges â Mathew, Beg, Dwivedi and Chandrachud, JJ., held that the fundamental rights were the basic features of the Constitution, though they held that the said fact did not keep them beyond the reach of the amendatory process. (4) Khanna, J., held that the right to property was not a part of the basic structure of the Constitution. In his view the validity of the amendment of the other fundamental rights would depend upon the fact, whether the nature of the amendment of such a right or rights affects the basic structure of the Constitution. (5) Six Judges â Ray, Palekar, Mathew, Beg, Dwivedi, Chandrachud, JJ., did not accept his limitation on the plenary power of the Parliament to amend the Constitution. But there of them, Ray, Mathew and Beg, JJ., held that the said power could not enable the Parliament to destroy the Constitution without retaining a bare mechanism of Government. The result is that the Supreme Court by majority declared that the Parliament under the Indian Constitution is not supreme, in that it cannot change the basic structure of the Constitution. It also declared by majority that under certain circumstances, the amendment of the fundamental rights other than the right to property would affect the basic structure and therefore would be void. The question whether the amendment of the fundamental right to property would under some circumstances affect the basic structure of the Constitution is not free from doubt; the answer depends upon the view the Supreme Court takes hereafter of the impact of the opinion of Mathew, Beg, Dwivedi and Chandrachud, JJ.â the fundamental rights are the basic features of the Constitution â on the opinion of the six Judges, who held that the core of the fundamental rights is part of the basic structure of the Constitution. One possible view is that together they form a clear majority on the content of the basic structure; another possible view is that their opinion should be read along with their finding that the entire Constitution, except perhaps the bare machine of Government, could be repealed by amendment. Prima facie I am inclined to agree with the first view, as the two questions can be separated, but as the point is argued, final decision could be given only by the Supreme Court. In Kshavananda Bharati case, the judgment is drawn on a larger canvass. In one sense it went beyond the Golaknath judgment. As the Golaknath judgment was overruled, all the previous amendments, which were held to be valid by Golaknath judgment are now open to be reviewed, though they can be sustained on the ground that they do not affect the basic structure of the Constitution or on the ground that they are reasonable restrictions on the fundamental rights in public interest. Except as regards the right to property, the practical effect of the judgment is the same as that of Golaknath judgment in regard to fundamental rights other than the right to property. Under the Golaknath judgment, an amendment can be supported on the basis of the laws of social control in terms of Part III, under the present judgment on the ground that it does not affect the basic structure of the Constitution. Indeed, the present judgment goes further and restricts the Parliament's power to amend any other Article, if it affects the basic structure of the Constitution. In regard to the right to property the people have practically lost that right even before Golaknath judgment; under the present judgment according to one view the fundamental right to property is not a part of the basic structure and therefore can be taken away by amendment and according to another view the validity of the previous amendments and the future ones taking away the fundamental right to property could be tested on the touchstone of the concept of "basic structure". Be it as it may, we must accept the recent judgment as final. I hope and trust that instead of again building up pressures around the judgment the Supreme Court will be allowed to evolve the Constitutional law of our country to suit the fast-changing needs of our Society in terms of Parts III and IV of the Constitution.