Op EdsOP. ED.

Almost half a century ago, on 23-4-1973, the legal fraternity in India and perhaps the world over, rejoiced as the largest ever Bench constituted by the Supreme Court of India gave birth to the Basic Structure Doctrine vide its verdict in His Holiness Keshavananda Bharati Sripadagalvaru v. State of Kerala[1] (‘Keshavananda Bharati’), thereby forever circumscribing the amendment powers of Parliament. Objectively viewed, one cannot overstate the impact and influence that the Doctrine has had on Indian constitutionalism. In fact for those looking to redeem the Indian Constitution from the onslaught of incessant amendments during that era, it is akin to a ‘re-birth’ thereof; altering the scope and sphere of Article 368 for possibly all times to come. Inherent, therefore, to the study of Kesavananda Bharati[2] verdict is an examination of how the Constituent Assembly eventually arrived at Part XX of the Constitution of India. 

The task of drafting the ‘amending procedure’ for the Constitution came up before the Union Constitution Committee (UCC) sometime around early June 1947. From the very beginning, the members of the UCC were divided into two camps – those favouring a stricter amendment process and those in favour of a more facile one. Notably, stalwarts such as Nehru and B.N. Rau (and to an extent even Ambedkar) always remained in favour of the latter such that ‘a Constituent Assembly, not elected by adult suffrage, can draft a Constitution by simple majority, but a Parliament elected by adult suffrage cannot amend it except by special majorities’ [3].

In fact, between June 1947 when the UCC began its meetings and February 1948 when the Draft Constitution was laid out before the Constituent Assembly, the amending procedure began to shape-up in the manner in which it would appear vide Article 368. Nevertheless, all throughout that period, an un-alterable ‘basic structure’ such as to render certain parts/chapters of the ensuing Constitution beyond the pale of Parliament’s amendment powers was never the cynosure of any debate. In fact, the Union Constitution Committee was rather preoccupied with internal squabbles over constitutional amendment by ‘simple majority’ or by way of a ‘special procedure’ involving 2/3rd majority as well as the State Legislatures. As has been enunciated above, Nehru and Rau (perhaps to an extent even Ambedkar) always remained in favour of a ‘pliant’ Constitution such that it could be moulded by future Parliaments towards the social and economic exigencies likely to be faced by the newly formed Republic of India. In fact, Nehru remained steadfast in his demand for amendment by a simple majority and though eventually Part XX of the Constitution did not incorporate the same, many provisions of the Constitution carry that legacy, most notable being the power vested in Parliament to alter State borders without their consent and without having to adopt the procedure laid out i.e. requiring a majority of not less than two-thirds of the members of that house present and voting.

B.N. Rau presented his Draft Constitution just a month after independence in September of 1947 and though the amendment clause therein favoured the flexible approach based on simple majority, for the first time perhaps there was enunciation of an express prohibition against amending the provisions for reservation of seats for minorities in the legislatures[4]. However, the Drafting Committee was at odds with the same and the Draft Constitution, 1948 as was presented to the President of the Constituent Assembly was more in the nature of Part XX as appears in the Constitution of India.

What piques one’s curiosity, however, is that in consonance with Rau’s draft, Part XVI of the Draft Constitution also included a prohibition on amendment of reservation of seats for Muslims, Scheduled Castes, Scheduled Tribes or Indian Christians in Parliament and State Legislatures[5]. Some may embark on the misadventure of citing this as a primitive form of the Basic Structure Doctrine, however, that would be disingenuous to say the least. During the intervening years of 1947 and 1949, records clearly point to a preoccupation of the Constituent Assembly, as also others involved with the framing of the Constitution, with the ‘how’ rather than ‘whether’. In fact, as Granville Austin has lucidly encapsulated in his work, the Constituent Assembly was very much conscious of the fact that their efforts were prone to error and thus did not look favourably upon an uncompromising procedure[6]. At this juncture several doubts were raised as to the representative character of the Constituent Assembly[7].

Yet Ambedkar, despite being in favour of the importance of an amending process in the Constitution of a federal republic, was never tolerant of any insinuation that strayed towards impugning the representative character of the Constituent Assembly. It was thus in the above background that he eventually, about a couple of months before adoption of the Constitution on 26 November 1949, introduced Amendment No. 118 to Article 304 of the Draft Constitution, thus finally giving shape to the amendment procedure as would thereafter be contained in Article 368 (Part XX) of our Constitution.

Perusal of the Constituent Assembly Debates of 17 September 1949[8] would bring out that despite the widespread support for Nehru’s views in favour of a pliant and flexible approach towards amendment of the Constitution and Article 305 of the Draft Constitution, the final version was wholly devoid of any such entrenched provisions. Thus, before concluding this discussion, two conspicuous omissions on part of the Framers of our Constitution must be evinced. Firstly, vide Article 305 of the Draft Constitution, though certain subjects were put beyond the pale of constitutional amendment for a period of 10 years, surprisingly very little thought was given to entrenching the portion containing Fundamental Rights. Secondly, when Ambedkar moved his Amendment No. 118 as above, Article 305 was done away in its entirety as an express exception to the amendment procedure of the Constitution.

Evidently thus, without going into a merit based discussion on the Basic Structure Doctrine, perhaps to the Constituent Assembly the Constitution was a constantly evolving document in line with the social and economic realities and towards that the Framers were at ease to not entrench any part thereof. The happenings of early 1970s in all probability forced the hand of the Supreme Court in superimposing the embargo of basic structure. It thus becomes absolutely necessary that the Indian Republic be willing to expunge and efface it in line with the evolution of times as may present in the future.

*Author,  Practising in Supreme Court of India

[1] (1973) 4 SCC 225 

[2] Ibid

[3] Austin, The Indian Constitution, Oxford University Press; p. 325

[4] Vide Clause 232 of B.N. Rau’s Draft Constitution

[5] See Article 305, Part XVI, Draft Constitution of India, 1948, available at https://www.constitutionofindia.net/historical_constitutions/draft_constitution_of_india__1948_21st%20February%201948

[6] Austin, The Indian Constitution, Oxford University Press; p. 328

[7] Constituent Assembly of India Debates (Proceedings), Vol. IX (17 September 1949)

[8] Id

Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of P.R. Ramachandra Menon and Devan Ramachandran, JJ. seized of a rather bewildering appeal primarily challenging collegium recommendations, dismissed the same for being unsubstantiated with any document or evidence.

The present writ appeal was filed challenging the order dismissing appellant’s writ petition filed challenging the recommendation for elevation of certain practicing advocates as judges of this Court for reason of their proximity to some Judges, former Judges and the Advocate General. The appellant contended that the said collegium recommendations would infringe their fundamental rights.

Among the many baffling averments, the petitioner contended that the collegium system is illegal; that the judgments of Supreme Court in First, Second and Third Judges cases do not lay down the correct law and were thus being unworthy of being followed as precedents; that the basic structure theory, as postulated by the Apex Court, was a myth; and that Public Interest Litigation was being now misused. 

Baffled to see the pleadings and averments on record, the Court noted that the appellant’s pleadings were unsubstantiated by any evidence or details and as such it was an attempt to cast aspersions on the Collegium of Judges. 

Thus, the appeal was dismissed and exemplary costs were imposed on the appellant for approaching the Court asserting eligibility to be appointed as a Judge of a High Court, without even disclosing the rudimentary details as to when he was enrolled or his standing at the Bar.[C.J. Joveson v. Chief Justice of Kerala High Court, 2018 SCC OnLine Ker 4947,decided on 16-11-2018]