The problem that we faced during the commencement of the Constitution was that on the one hand we had the directive principles of state policy (hereinafter mentioned as DPSPs) and on the other we had the fundamental rights. Under Article 37 of the Indian constitution, it is very clearly provided that DPSPs are not enforceable in any court of law but are fundamental in the governance of the country and the state shall implement DPSPs in the making of their laws.

For example: Article 39(b)&(c) particularly aims at securing that that the ownership and control of the material resources of the community are so distributed as best to sub serve the common good; that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.

It means that if the state had to implement Article 39(b) & (c) and other DPSPs which is the duty of the state as per Article 37, the state had to encroach upon the rights to property of the citizens. The reason being that at the time of the commencement of the Constitution the prime focus was on building infrastructure and for that we needed land which were largely in the hands of zamindars.

Therefore, several land reforms Acts were passed. One of them was the Bihar Land Reforms Act, 1950 to abolish zamindari system which was subsequently challenged before the court of law. [Kameshwar Prasad singh v. state of Bihar (AIR 1951 Pat 246)]It was held to be unconstitutional as it was violative of Article 19(1) (f) and Article 14 read with Article 13(2).

The problem before the state was that as per Article 37 it was mandatory for it to implement DPSPs by making laws and as per the DPSPs the laws for acquisition of land and abolition of zamindari and princely state system was essential particularly in the light of Article 39(b) & (c). Any such law would involve the acquisition of property and on the other hand the right to property was a fundamental right.

Hence according to Article 19(1) (f) and Article 14 read with Article 13(2) any law which violates the right to equality and right to property would be unconstitutional. Also, the fundamental rights could be enforced directly through Article 32 or 226 whereas the DPSPs were declared to unenforceable under Article 37. Thus to overcome this issue the first amendment to the Constitution was brought about to create saving clauses in the form of Article 31A and 31B read with the 9th schedule.

The effect was that if a land reform act was made for the purpose of acquisition of land, it will be valid despite Article 14, 19(1)(f) and 13(2) and it would be saved under Article 31A. If that law is put in the 9th schedule then the law will be protected from any judicial review as it goes beyond the scope of judicial review as per Article 31B.

However the first amendment itself was challenged in Shankari Prasad singh Deo v. Union of India (1951 AIR 458) and it was contended that the word law as used in Article 13(2) includes not only ordinary legislations rather it also includes the law of amendment i.e. any law by which Constitution is amended will also be hit by the prohibition of Article 13(2). Thus the contention was that the fundamental rights can't be taken away or abridged even by an amendment of the Constitution.

The court held that the word law under Article 13(2) doesn't include the law of amendment rather it includes only the ordinary legislation i.e. if the state makes an amendment and thereby it takes away or abridges the fundamental rights or it enables itself to do so then such amendment will not be unconstitutional. The first amendment was held to be constitutional and thus the Land reforms Act were held to be valid.

Post this, several land reforms Acts were made and land acquisition was done. By 17th Amendment, around 44 land reforms Acts were inserted in the 9th schedule. Again, 17th amendment and the first amendment were challenged in Sajjan singh v. State of Rajasthan (1965 AIR 845) where the court reiterated the same view that Article 13(2) doesn't include the law of amendment and thus constitutional validity of both the amendments was upheld.

However the court in Golaknath v. State of Punjab (1967 AIR 1643) overruled the earlier ruling and held that the word law in Article 13(2) includes law of amendment as well. In fact Article 31A & B along with 9th schedule were declared to be unconstitutional. However in the light of grave consequences of any retrospective application of this judgement, the court applied the doctrine of prospective over ruling i.e. Article 31A & B and 9th schedule would be void only from the date of judgement in Golaknath case and whatever has been done earlier will remain as it is.

What is the basis of this judgement?

The court observed that the power of amendment is not provided in Article 368, it is only the procedure of amendment therefore the power of amendment has to be located somewhere. The court examined the Constitution and found that the words power of amendment is not found explicitly anywhere in the Constitution not even in any of the entries expressly or impliedly in the 7th schedule.

Thus, the court inferred that the topic amendment would lie in Entry 97 of List I of schedule 7 read with Article 245. The court held that the source of law making power is Article 245 and therefore the source of amending power also is Article 245 read with Entry 97, List I. Article 245 is declared expressly to be subject to the provisions of the Constitution and therefore the amending power also as it is derived from Article 245 itself will be subject to the provisions of the Constitution. Article 13(2) is one such provision of the Constitution; therefore the amending power also is subject to Article 13(2).

Thus, as per Article 13(2), the state can't make laws (not even the laws of amendment) to take away or abridge the fundamental rights.

While the Supreme Court on one hand held Article 31A & B as unconstitutional, on the other hand in Madhav Rao Scindia v. Union of India (1971 AIR 530) popularly known as Privy purses case and RC Cooper v. Union of India (1970 AIR 564) popularly known as Bank Nationalization Case, the court held that compensation to be given by the state upon acquisition of land has to be a just, fair and reasonable compensation.

Thereafter, the Parliament in order to set the controversy at rest brought about the 84th amendment whereby clause 4 was added to Article 13 and Article 368 was amended wherein the first clause was inserted and clause 3 was added and the word power was added in the marginal heading.

At last what needs a special mention is the historic case His holiness Kesavananda Bharti sripadagalvaru v. State of Kerala (1973) 4 SCC 225.

Shri Raghunath Rao Ganpat Rao NH Nawab Mohammad Iftikhar Ali Khan v. Union of India; Shethia Mining & Manufacturing Corporation limited etc. v. Union of India; Oriental Goal Co. Ltd. V. Union of India were consolidated with Keshavnanda Bharti case.

The following aspects were considered:

• What should be the rule of interpretation?

  It should be purposive interpretation and the mischief rule.
  
  

• What is the source of amending power?

  Earlier also Article 368 only was the source of amending power and now after the 24th amendment also, Article368 itself is the source of amending power. What was implicit in Article 368 before the 24th amendment has been made explicit by the said amendment.
  
  

• What is the meaning of word amend or amendment? Are there any limitations upon it?

  The court held that the society through the freedom struggle had aimed at the larger socio-economic revolution which was the ultimate goal of the Indian society. The Indian Constitution is first and foremost a social document and political independence was only one step towards a larger socio-economic revolution. The said socio-economic revolution would be based upon certain basic principles which are integral to the Indian society.
  
  These principles are indispensable and the entire vision of the Constitution was based upon these principles. The word amend has an implied limitation by the process of amendment. The very essence of the vision of the Constitution can't be taken away as these principles form the basic structure of the Indian Constitution and can't be taken away in any circumstances as long as the Constitution and the society exists.
  
  

• What is meant by constituent power?

  The Parliament's amending power also is constituent power. Constituent power means the power to create or to alter. Even the Constituent Assembly which created the Constitution did so in the exercise of its constituent powers. The constituent powers of the Constituent Assembly was derived directly from the society whereas the constituent powers of the Parliament; the Parliament being a derivative body, is derived from the Constitution and therefore it will be limited by the essential principles of the Constitution. The Parliament can't rise above the Constitution and thus can't take away or abridge the basic structure of the Constitution.
  
  

• Does Article 13(2) control Article 368?

  Justice Sikri did not reply to this question but J. Hegde and J. Mukherjee held that Article 13(2) refers to ordinary legislation and Article 368 refers to constituent powers of Parliament to amend the Constitution and thus, Article 13(2) does not control Article 368.
  
  

• Are fundamental rights/DPSPs amendable?

  They are amendable but only to the extent that basic structure is not violated.
  
  

• Does the doctrine of implied limitation apply upon Indian constitution?

  Yes there are limitations in the form of basic structure of the Constitution.
  
  

• What is the scope of judicial review in reference to Article 368?

  Judicial review can be done of the procedure of amendment as well as in a substantive form as to whether the basic structure has been violated or not.
  
  

• What is the scope and extent of amending powers of Parliament?

  Parliament can't extend Article 368 so as to make the procedure of amendment extremely flexible or to make it extremely rigid. At the same time, it can't amend the Constitution so as to acquire for itself unlimited powers of amendment. The word Notwithstanding in Article 368 has to be given a restricted application. It is always subject to the basic structure of the Constitution.

Is not the concept of basic structure a vague concept?

The Supreme Court will decide a case only upon the issues raised before it only in that particular case. Any other issue which was not raised but was decided will be obiter dicta and will not have any precedent value.

In the Keshavnanda Bharti case the issue was not as to what are the elements of basic structure rather the issue was as to what are the limitations upon the amending powers of the Parliament. Thus, any enumeration of all the elements of basic structure would have been a futile exercise. Moreover, it is not possible to enumerate all the elements in once case.
Simply because a rigid definition can't be given, the doctrine of basic structure doesn't become a vague doctrine. There are certain concepts like natural justice, negligence which also can't be rigidly defined but they are principles of law which are effectively applicable.

The court laid down a test for the elements of basic structure. It held that the ultimate goal of Constitution is to promote fraternity and thereby to assure dignity of an individual and also even the unity and integrity of the nation. The court held that the test for element to be a part of basic structure is as to what will be the consequence if that element is removed from the Constitution.

If the effect is that fraternity will be lost and consequently, the unity and integrity of the nation and dignity of an individual will be materially affected then that element would be a part of the basic structure however if upon removing that concept, the above effect is not found then it can't be a part of the basic structure. For instance: removal of social justice or secularism would certainly affect fraternity whereas removal of right to property would not. Hence, the former would be a part of the basic structure whereas the latter would be.

Removal of socialism and secularism would result into a loss of faith of the people in the Constitution and therefore a loss of fraternity whereas removal of right to property will not result into any such apathy in the society. Hence, right to property would not be a part of the basic structure.
Other important rulings on this subject are M. Nagaraj v. Union of India (2006 SC) and IR Coelho (dead) by LRs v. State of Tamil Nadu (2007 SC).

In the former case, the court made the following important observations:

1. Amending power of Parliament is subject to both substantive and procedural limitations.
    
2. Doctrine of Basic structure relates to constitutional identity and continuance of constitutional identity as well as the supremacy of the Constitution.
    
3. Theory of basic structure is about theory of overarching principles. There are certain systematic principles which cut across the various express provisions of the Constitution and which bind the various provisions with each other and provide vitality and coherence to the Constitution. These principles provide utility and value to the express provisions of the Constitution.
    
4. The real test for any rights is not the right test rather it is the essence of the right test.

In, IR Coelho case, the court held that it is not only the essence of right test rather it is the essence of the rights test. The examination of violation of any right or the essence of that right shall be done not only by examining that particular provision rather the entire provision has to be examined as a whole.

A synoptic view of all the fundamental rights and DPSPs has to be taken and all the principles shall be examined as a whole in order to see whether that particular right or any other right has been violated or not.

Another important point that was observed in the said case was that the law put under the 9th schedule is beyond the scope of judicial review but if a bad law is put in the 9th schedule then the amendment by which law was put in the 9th schedule can always be challenged on the ground of violating basic structure. Once the law is found to be violative of basic structure, the amendment will become unconstitutional and law will thus be brought out of the protection of the 9th schedule and law automatically in the same case will be declared to be unconstitutional.

However, this judgement will not be applicable on the amendments brought about before 24th April, 1973 as basic structure doctrine applies from that date. As and when, a case is brought before the court, that particular amendment will be examined.

Written by: Komal Chauhan
Research Scholar at GGSIPU, Delhi