In countries with a written Constitution, constitutional law gets made in court cases through continuing interaction between the Advocate and the Judge.
In the United States (with one of the modern world’s shortest written Constitution) this interaction has been ongoing for more than 200 years; in independent India (with one of the modern world’s longest Constitution), the interaction between Bench and Bar — has now been on for 65 years.
In order to be a good advocate in constitutional law one must have the aspiration to be one. It is also advisable to read Granville Austin’s first book on India’s Constitution titled Cornerstone of a Nation, published by OUP in 1966. Granville Austin, popularly known as Red Austin, also wrote a paper titled “The Supreme Court and Struggle for Custody of the Constitution”.
It was in this struggle for the custody of the Constitution between Parliament and the Court — that the true art of superlative advocacy — has been witnessed. The struggle ultimately resulted in the establishment of the supremacy, neither of Parliament nor of the Court, but of the Constitution itself. This was the innovative doctrine, now known as the basic structure of the constitution.
The struggle for supremacy has been a long one. In the first few years after 1950, as India’s first Prime Minister Jawaharlal Nehru and his Government began working the Constitution it became clear that reconciling absolute judicial independence and Parliament’s claim to be the keeper of the Constitution when legislating for social reform, was not going to be an easy task.
And, the first test over “custody” of the Constitution was not about personal liberty but about property—abolition of zamindari and the taking of private properties for public purpose. It was the interpretation by the Supreme Court of the word “compensation” in Article 31 (in its orthodox and classical meaning of “fair equivalent value for property taken”) that the battle-lines between Parliament and the Court were drawn. And there were innumerable skirmishes.
The great question that emerged as a result of these clashes was whether courts were empowered to adjudicate upon and to invalidate constitutional amendments passed strictly in accordance with the procedure prescribed in Article 368. On this great question the written Constitution was, and is, silent. The Supreme Court grappled for several years with the vexed problem that this question had posed — first, in Shankari Prasad (1951) when adjudicating on the validity of the Constitution (First Amendment) Act, 1951, which introduced Article 31-B in the Ninth Schedule (which was an anachronism in a Fundamental Rights Chapter!). In this first constitutional case of vital importance argued by distinguished constitutional Advocate P.R. Das of Patna (who is no more), assisted then by Mr B. Sen, who is fortunately still with us — not “batting”, but “in the pavilion” keeping up his interest in Law at the age of 90. The arguments challenging the First Amendment were ingenious—but they were rejected in toto by a Constitution Bench of five Judges. This was a little before India’s first general election in 1952.
In the elections of 1952, 364 seats out of 489 seats were won by the single largest party in India—Congress Party. And in the two subsequent general elections of 1957 and 1962 there was a similar landslide victory for Congress Party. Inspired by its popularity at three general elections since 1952, Congress Party, with more than two-thirds of the seats in Parliament, was emboldened to pass, the Constitution (Fourth Amendment) Act, 1955 by expanding the Ninth Schedule—included in it was a new list of forty-four Acts, three or four of them having nothing to do with land reforms; since they were placed in the Ninth Schedule they were beyond challenge for violation of one or the other provision in the Fundamental Rights Chapter! Patanjali Sastri, J. speaking for the Constitution Bench in Shankari Prasad2 (1951) — a Bench presided over by India’s first Chief Justice — declared Article 31-B as valid in a single imperial sentence:
To make a law which contravenes the Constitution constitutionally valid is a matter of constitutional amendment, and as such it falls within the exclusive power of Parliament.
Many years later (in 2007) [Read more…]
* Speech delivered at a Seminar on “Continuing Legal Education for Professional Development” organised by the Supreme Court Bar Association at the Indian Law Institute on 15-8-2015.
** This Article was first published in Supreme Court Cases (2015) 8 SCC J-41 . It has been reproduced with the kind permission of Eastern Book Company.
*** Senior Advocate, Supreme Court.
Picture Credits: DNA India
 Its content was later reproduced in Granville Austin’s weighty second book, published by OUP in 1999: Working of India’s Democratic Constitution; it is India’s constitutional history in the making.