Constitutional Law - I

CONSTITUTIONAL LAW-1
(POLITICAL AND CIVIL RIGHTS)

V. S. Desbpande*
Revised by Jyoti D. Sood''"'1'
The Setting
Constitution is a product of its times and circumstances. The rule of law, the
landmark of a liberal democracy, was the cherished ideal of the world after
the Second World War. This principle had long sustained in England by the
strong tradition of liberty which was not threatened by the supremacy of
Parliament. Liberties of the people suffered owing to unjust legislation
which had to be accepted as law in the 18th century in the United States and
in the 20 th century in Nazi Germany, Fascist Italy and always in colonial
countries as also in British India. Need was, therefore felt that the liberties
of the people must be secured with some permanency. An early model of
constitution making to achieve this end was the Constitution of the United
States. World opinion was reflected in the mid-20tl1 century in the Universal
Declaration of Human Rights soon after the formation of the United
Nations Organizations. This declaration served, however, only as a pious
declaration of sentiment. When the question of providing machinery for the
enforcement of these human rights arose, it was found that what were called
political and civil rights only were readily enforceable through courts of law.
These rights belong to the individual and all that the state had to do was to
promise not to interfere with them without reason and to limit the
interference to a reasonable justification. But there were rights which were
economic, social and cultural which required to be brought into existence by
positive state action. The difference between the two may be illustrated by
the concept of liberty. The political and civil liberty of an individual was a
political and civil right which the individual could exercise if the state would
not unduly restrict it. But what may be called economic liberty was not the
right possessed by every individual. It is only a welfare state which would
guarantee equality of opportunity and would take steps to bring about
economic equality which would create such a right of economic liberty in
the individual. The United Nations, therefore, divided the rights which were
Formerly Chief Justice, High Court of Delhi.

Asst. Research professor, Indian Law Institute, N e w Delhi.
CONSTITUTIONAL LAW-I 23
included in the Declaration of Human rights into two parts. Each of these
two parts was made the subject-matter of a covenant. The covenant of
political and civil rights embodied those rights which were enforceable by
the individual through a court of law. The state had only to refrain from
infringing these rights. The state could impose only reasonable restrictions
on them. The covenant of social, economic and cultural rights, on the other
hand, embodied such rights as would have to be created for the benefit of
the citizens by a welfare state. The positive assistance of the state, not only
its negative abstention from interference, was required to help the individual
to enjoy these rights.
Constitution-making in India
Following the Universal Declaration of H u m a n Rights of the United

Nations,the Objectives Resolution adopted by the Constituent Assembly on
22 January, 1947 decided to draw up a Constitution which shall guarantee
and secure to the people of India "justice, social, economic and political,
equality of status, of opportunity and before the law: freedom of thought,
expression, belief, faith, worship, vocation, association and action, subject to
law and public morality'', etc. The Sub-committee on Fundamental Rights,
however, accepted the proposal of the constitutional adviser, B. N . Rau, to
divide fundamental rights into two classes, namely, (1) justiciable and (2)
non-justiciable. Ultimately, the former became Part III of the Constitution
headed as "Fundamental Rights" and the latter became "The Directive
Principles of State Policy" forming Part IV of the Constitution.
Parts III and IV of the Constitution form one whole
The only reason why the original fundamental rights had to be divided into
two parts was that some of them were enforceable through a court of law
while others had to be brought into existence by appropriate legislation and
state action. Otherwise, the Constitution attached equal importance to both
these kinds of rights. This equality of the two would be apparent by the
following considerations. Firstly, the preamble of the Constitution is the key
to its understanding. It sets out not only the enforceable rights of liberty of
t h o u g h t , expression, belief, faith and worship and the equality of
opportunity, but also the non-enforceable rights of equality of status and
justice in the social, economic and political field—the last two depending
upon appropriate legislation to be undertaken by the state to give effect to
the directive principles embodied in Part IV. Secondly, the fundamental
rights embodied in Part III of the Constitution are subject to reasonable
restrictions. For instance, the right of equality before the law guaranteed by
article 14 is subject to the restriction of reasonable classification. Similarly,
the civil freedom of free speech, assembly, association, m o v e m e n t ,
24 INDIAN LEGAL SYSTEM
residence, property 1 and business guaranteed by clause (1) of article 19 are

also subject to reasonable restrictions being placed on them by legislation.
The freedom of religion guaranteed by article 25 is also subject to public
order, morality and health.
What is a reasonable restriction imposed by legislation or administrative
action is to be decided having regard to the scheme of the Constitution
which sets out its objects in the preamble, in Part III and in Part IV all of
which have to be read together. It would follow, therefore, that legislation
or administrative action which genuinely seeks to implement a directive
principle of state policy enunciated in Part IV of the Constitution will be
regarded as a reasonable restriction on a fundamental right whenever there
is an apparent conflict between such legislation and a fundamental right.
In interpreting this scheme of the Constitution, the following analogy
would be helpful. A statute often contains a section authorizing framing of
rules to give effect to the provisions of the statute. If a rule is framed for
this purpose, then it would have to be regarded as harmonious with the
provisions of the statute. It is only when a rule travels beyond the section
giving the rule-making power that it could become ultra vires the statute. The
section authorizing the making of rules is not enforceable by itself. It is only
the rules made thereunder which are enforceable. This does not mean that
the section authorizing the making of rules is of less importance than the
other provisions of the statute. O n the same reasoning, Part IV of the
Constitution would have to be regarded as having the same authority and
importance as Part III.
The appeal of the foregoing argument is strengthened by the experience
of the European Economic C o m m u n i t y . The community consists of
countries which have joined it by signing the Treaty of Rome. The European
Community Treaties are the supreme law of the community which prevails
over the national laws of the member countries. In Van Duyn v. Home Office2
which incidentally was the first case to be referred to the Court of the
European Communities under article 177 of the E.E.C Treaty by an English
court, the petitioner was prevented under the British immigration laws from
entering the United Kingdom. Article 48 of the treaty was pleaded by the
British immigration authorities as enabling them to restrict immigration on
grounds of public policy, public security or public health. But the petitioner
in reply invoked a directive of the Council of Ministers of Europe, which
1. By the Constitution (44th Amendment) Act, 1978, Sub Cl. (f) has been omitted from
article 19 (1). As a result, a citizen of India shall have no constitutionally guaranteed
right to acquire, hold and dispose off property (except that under article 300 A which
is not fundamental right) and the courts shall have no power to strike down any law
as unconstitutional owing to violation of any fundamental right to property.
2. 1974 ECR 1337: 1975 Ch. 358.
stated that the measures taken on public policy or public security shall be
based exclusively on the personal conduct of the individual concerned. The
question, therefore, directly arose whether a directive which was authorized
by the treaty could prevail over the national laws of a member country. This
situation was similar to the directive principles of state policy embodied in
Part IV of the Constitution of India or a law made thereunder vis-a-vis other
parts of the Constitution including the fundamental rights embodied in Part
III of the Constitution. The Court of the European Communities held that
it would be incompatible with the binding effect attributed to a directive by
article 189 of the treaty if the petitioner were to be prevented from relying
upon it in the court of a member country and if the court were prevented
from taking the directive into consideration as an element of community
law.3
Thirdly, even Part III contains certain fundamental rights which are
non-enforceable and in that respect, are more analogous to the directive
principles contained in Part rV rather than the other fundamental rights in
Part III. Examples are abolition of untouchability by article 17, prohibition
of traffic in human beings and forced labor by article 23 and prohibition of
employment of children in factories by article 24. The existence of such
provisions in Part III shows that there was no intention to draw a sharp
distinction between Part III and Part IV of the Constitution and that they
remained two parts of one whole not only in the original intention but also
in their actual formulation.
Avoidable conflict between the two
A constitution lives not only by the words written into it but also by the
spirit which animates those words. The object p r o c l a i m e d by the
Constitution was two-fold, namely, (a) democracy and (b) socialism. The
rights of the individual are the essence of democracy. These are stated in
Pan III. But the Indian democracy like the western democracies was initially
elite democracy. The intellectuals and the more affluent classes were the
leaders of democratic thought and action. Though the participation of the
people was secured by giving them adult franchise, such participation was
restricted only to the periodical elections when the people could exercise
their right to elect members of the legislatures. But the preamble of the
Constitution was a reminder that it is the people who have given the
Constitution to themselves and Part IV of the Constitution set out the
objects of uplifting the people and gradually transforming an elite
democracy into a mass democracy. The judiciary is not only a product of its
times but is also an upholder of the tradition inherited by it. The Indian
3. The same view is expressed by J. P. Warner, Advocate-General, Court of Justice of

European Communities, 93 Law Quarterly Review, 1977, p. 349 at 359.
judiciary was trained in the British legal tradition and also had known only
elite democracy. The judges were recruited from the elite of the society.
They were, therefore, imbued more with the spirit of liberal democracy than
with that of socialism. In the first flush of the interpretation of the
Constitution by the Supreme Court, therefore, the view prevailed that the
fundamental rights would prevail over the directive principles whenever the
two would conflict. The first example was provided by the decision of the
Supreme Court in State of Madras v. Champakam."' Article 46 of the directive
principles requires the state to promote with special care the educational and
economic interests of the weaker sections of the people and, in particular, of
the scheduled castes and the scheduled tribes. The Communal Government
O r d e r issued by the Government of Madras reserved certain seats in
educational institutions for backward classes classified according to caste
and religion apparently to give effect to the policy underlying article 46.
Such reservation, however, would result in the denial of admission to such
educational institutions of their candidates on grounds only of religion and
caste-contrary to the fundamental right guaranteed by article 29(2) of the
Constitution. The solution of the apparent conflict was to strike an equitable
balance between the two considerations and to evolve a workable formula
w h i c h w o u l d reconcile the policy of admission to the educational
institutions on merit with suitable reservation for the backward classes. The
Advocate-General in support of the Communal Government Order pointed
out that article 37 of the Constitution required the state to apply the
directive principles in making laws and Communal Government Order was
a law made under article 46. He even contented that the provisions of article
46 would override the provisions of article 29(2). The Supreme Court,
however, held that
The Chapter of Fundamental Rights is sacrosanct and not liable
to be abridged by any Legislative or Executive act or order,
except to the extent provided in the appropriate article in Part
III. The Directive Principles of State Policy have to conform to
and run as subsidiary to the Chapter of Fundamental Rights. In
our opinion, that is the correct way in which the provisions
found in Parts III and IV have to be understood.
The durability of a judicial decision depends on its general acceptance
by the people. The meaning of the C o n s t i t u t i o n itself reflects the
overwhelming popular opinion of an abiding nature as distinguished from
mob psychology which is transient. The overwhelming majority of the
Indian population consists of backward classes. The Constitution is made by
the people for the people. Its meaning in this respect would, therefore, be
such as would be in consonance with the sentiments of the vast majority of
4. (1951) SCR 525.

the population. The view of the Supreme Court expressed in the decision of
State of Madras v. Champakam was apparently not in accordance with the
overwhelming popular opinion. The Constitution had, therefore, to be
amended by the addition of clause (4) to article 15 by the Constitution (First
Amendment) Act, 1951 to make it clear that nothing in articles 15 and 29 (2)
shall p r e v e n t the state from making any special provision for the
advancement of any socially and educationally backward classes of citizens.
Pure meritocracy which is cherished by liberal democratic sentiment had,
thus, to yield to protective discrimination in favour of the weaker sections
of the people, a principle favoured by socialism. The constitutional
interpretation of the Supreme Court could be said to be democratic, but the
amendment of the Constitution may be said to be a modification of
democracy by socialism in case of conflict. The development of the
Constitution is tending to show that the balance between democracy and
socialism which was perhaps in favour of democracy at the beginning of the
Constitution gradually tended to tilt towards socialism as the policies of the
directive principles came to be implemented by the state. This is why the
Supreme Court later showed a better appreciation of the principle of
protective discrimination and held that even the concept of caste explained
to a great extent the backwardness of some classes of people even though
discrimination on the ground of caste alone was forbidden. 5 The welcome
broadening of the view of the court on this subject was also reflected in
their decision in the State ofAndhra Pradesh v. Bahrain1* in which the Report
of the Backward Classes Commission was referred to. The facts stated in the
report were in the nature of legislative facts on which the law of protective
discrimination was based. The court took notice of these facts in upholding
the law of protective discrimination to a certain extent. The new approach
of the court was in marked contrast to its approach in the past in the State of
Madras v. Champakam.
Equality of opportunity versus equality of results
Negative protection to the right of equality before law is given by the first
part of article 14 which says that the state shall not deny to any person
equality before law as also by clauses (1) and (2) of article 15 and clauses (1)
and (2) of article 16. But the preamble to the Constitution proclaims its
object t o be "equality of status and of o p p o r t u n i t y " showing that
opportunity is incomplete without the necessary status. The state was,
therefore, given a positive role to bring about affirmative equality by the
second part of article 14 stating that the state shall not deny the equal
5. Rajendran v. State ofMadras (1968) 2 SCR 786 and Peería Karuppan v. State of Tamil
Nadu (1971) 2 SCR 430.
6. AIR 1972 SC 1375.
protection of the laws within the territory of India. 7 N o less a person than
Earn Warren, former Chief Justice of the U n i t e d States has made a
distinction between equality before law which merely prevents the state
from practicing discrimination and equal protection of the laws which
requires the state to legislate affirmatively to equalize the protection of law
given to every one. 8 As the equal treatment to unequals would be anything
but inequality and violative of article 14 the Constitution. 9 Clause (4) of
article 15 and clause (4) of article 16 served the purpose of enabling the state
to bring about equality of results and status by practicing protective
discrimination in favour of backward classes of citizens and the scheduled
castes and tribes. Since the first parts of articles 15 and 16 expressly prohibit
discrimination based on caste, the fourth clauses of each of these articles
deliberately excluded caste as the basis for protective discrimination by the
reservation of admissions to educational institutions and of jobs under the
state. The concept of backwardness of a class is difficult to work out in
India because of the existence of castes. Social mobility is prevented by
caste which is based on heredity. In the lower strata of society castes as a
whole tend to be backward and, therefore, overlap the concept of backward
class. But backwardness is comparative. In the higher strata of society also
there are classes backward—socially and educationally—but not equally so
economically. Reservations made for the benefit of backward classes tend to
benefit mainly the elite among the backward classes leaving large masses of
others untouched and encourage such elite to refuse to merge in the more
advanced classes of society thereby putting a premium on belonging to a
backward class.10 Hence in Indira Sawhney v. Union qflndia,n it was held that
the 'creamy layer' in the backward class is to be treated 'on par' with the
forward classes and is not entitled to benefits of reservation. If the 'creamy
layer' is not excluded, it will result in discrimination and violation of articles
14 and 16(1) in as much as equals (forwards and creamy layer of backward
classes) cannot be treated unequally.
7. The equality clause enshrined in article 14 is of wide import and guarantees equality
before law or the equal protection of laws within the territory of India. The
restriction imposed by reason of a statute, however, can be upheld in the event it be
held that the person to whom the same applies, forms a separate and distinct class
and such classification is a reasonable one based on intelligible differentia having
nexus with the object sought to be achieved. See, John Vallamattun v. Union ofIndia
AIR 2003 SC 2902.
8. B. Schwartz (ed.), The Fourteenth Amendment, pp. 221-22.
9. Onkar Lai Bajaj v. Union ofIndia AIR 2003 SC 2562.
10. Per V. K. Krishna Iyer, J , in State ofKerala v. N.M. Thomas AIR 1979 SC 490 at 531
referring to the research conducted by A. N. Sinha, Institute of Social Studies, Patna,
on the effects of such reservations.
11. AIR 2000 SC 498.
Liberty or equality?
The controversy between equality of opportunity and equality of status or

between liberty and equality is more apparent than real. The preamble to the
Constitution has itself resolved the controversy by putting "justice, social,
economic and political" above liberty and equality. Further, the only liberty
which finds a place in the preamble is liberty of thought, expression, belief,
faith and worship. These liberties are beyond the domain of the state and
are the essential rights of the individual. They are not concerned with rights
to do business or enter into contract, etc., which deserve an equal
opportunity, but which may have to be regulated in the interest of equality
of status. John Rawls in his widely discussed and most important study has
also shown that there is no real conflict between equality and liberty if we
put justice in society above all other values. The two principles of justice
which underlie this theory of justice are (1) each person is to have an equal
right to the most extensive basic liberty compatible with a similar liberty for
others, and (2) social and economic inequalities are to be arranged to that
they are both (a) reasonably expected to be to everyone's advantage and (b)
attached to positions and offices open to all.12 After defining liberty itself in
terms of equality the question of conflict between the two does not arise at
all.
It is interesting to note that the controversy between equality of
opportunity and equality of status has also flared up in the United States in
the case of The Regents of the University of California v. Allan Bakke.n A
reservation of 16% admissions to the Medical School in favour of the
qualified members of racial minorities has been challenged. Mc George
Bundy, President of the Ford Foundation, in a powerful defense of the
reservation observed:
What we really face here is conflicting values which have to be
compared in weight.... N o one can deny that special admissions
programs, even at all their best, have costs and dangers; the
grievances of Allan Bakke and others may be overstated and
even misdirected, but they are deeply felt. Racial preference can
12. John Rawls, A Theory of Justice, 1972, p. 60.

13. 438 US 265 (1978). Powell J announcing the judgment of the court held that "the
defendant's program reserving a fixed number of seats in each class solely on the
basis of race, whereas the admission programs of other universities properly took
race into account as only one of the factors for consideration in achieving
educational diversity through programs involving individual competitive comparison
of all applicants and thus the defendants special admission program violated the
fourteenth amendment, the California Supreme Court's judgment being proper as to
its invalidation of the program and its ordering the admission of the plaintiff, but
being improper insofar as it enjoined the defendant from ever giving any
consideration to race in its admission process."
arouse racial antagonism, and the general rule that judgment

should be based on personal merit alone has its high claims. Still,
it seems clear that to take race into account today is better than
to let doors swing almost shut because of the head start of
others. We must hope and believe that in the long run our effort
for equal opportunity will put the need for special programs
behind us. In that deep sense there is no conflict between special
admissions and every o t h e r form of action t o help t h e
disadvantaged, white and nonwhite alike. But what special
admission and only special admissions, can do today is to make
access to the learned professions a reality for nonwhites. To get
past racism, we must here take account of race. There is no other
present way. In the words of Alexander Heard of Vanderbilt,
"To treat our black student equally, we have to treat them
differently.14
Alan M. Katz, with the background of his stay at the Indian Law
Institute has compared the decision of the Supreme Court in State of Kerala
v. N. M. Thomas,15 with the issue raised before the United States Supreme
court in Bakke's case in an interesting comparison and contrast between the
constitutional provisions and attitudes on the subject in India and the
United States of America. 16
The issue between unfettered competition based on equality of
opportunity and the necessity of raising the status of the weaker sections of
the society to make the equality of opportunity real and to bring about an
equality of results is of world-wide importance, particularly in societies
which are presently plagued by disparity among classes and which aspire
towards an egalitarian form of society.
Harmonizing Parts III and IV
The new spirit of harmonious interpretation was reflected in the decisions

of the Supreme Court relating to prohibition. Article 47 requires the state to
endeavor to bring about prohibition of the consumption of liquor. Initially
a Full Bench of the Bombay High Court presided over by Chagla, C. J., in F.
N. Balsara v. State of Bombay0 was out of sympathy within article 47. It held
a number of material provisions of the Bombay Prohibition Act, 1949 to be
void merely because the definition of "liquor" therein included not only
"intoxicating liquors" but all liquors. Reference made by counsel for the
14. The Atlantic, November 1977, p. 41 at 49 and 54.

15. AIR 1976 SC 490.
16. Benign Preference: "An Indian Decision & the Bakke Case 24," The American Journal
of Comparative Law, 1977 p.611.
17. AIR 1951 Bom. 210.
state to articles 37 and 47 of the Constitution made no impression on the

court. But when the case went in appeal to the Supreme Court in State of
Bombay v. F. N. Balsara,18 the court expressly recognized that in judging the
reasonableness of the restriction imposed by the impugned Act on the
fundamental right guaranteed by article 19(l)(g), the directive principles of
state policy set forth in article 47 had to be borne in mind. Article 47 was
again harmonized with article 19(1) (g) by the Supreme Court in Cooverjeev.
Excise Commissioner,1** State ofAssam v. A. N. Kidwai,20 K. N. Narula v. State
ofJ&K21 and A. C. Chakarborty v. Collector ofExcise.22
Similarly, the directive principle embodied in article 48 requiring the
state to organize agriculture and animal husbandry on modern and scientific
lines was harmonized with the fundamental right of carrying on occupation,
trade or business guaranteed by article 19(1) (g) mMohd. Hanif Quareshi v.
State of Bihar.,23 The total ban imposed on the slaughter of cattle by the Bihar
statute was, therefore, held to be excessive and only partially valid.
The implementation of the policy embodied in article 43 (to provide a
living wage, etc., for workers) was harmonized with the fundamental right
guaranteed by article 19 (1) (g) in construing the reasonableness of the
provisions of the Minimum Wages Act in Bijoy Cotton Mills v. State of
Ajmer.2* In Regent Weaving Mills v. Union ofIndia25 also the Supreme Court
held that the classification between the goods p r o d u c e d in big
establishments and similar goods produced by small power loom weavers
for the purpose of exempting the latter from payment of excise duty was
valid and in furtherance of objectives mentioned in article 43.
There is no conflict between the Fundamental Rights and the Directive
Principles. They complement one another. Granule Austin 26 has described
the fundamental rights and the directive principles as the "conscience of our
Constitution". The true relation between the t w o is reflected in the
observation in Keshavanand Bharati's case:27
Fundamental Rights and the Directive Principles are meant to
supplement one another. It can well be said that the directive
principles prescribed the goal to be attained and the fundamental
18. (1951) SCR 682.

19. (1954) SCR 873.
20. (1957) SCR 295.
21. (1967) 3 SCR 50.
22. (1972) 2 SCR 442.
23. (1959) SCR 629.
24. (1955) 1 SCR 752.
25. (1962) Supp. 3 SCR 481.
26. Granville Austin, Cornerstone ofa Nation (Indian Constitution), p. 75.
27. Keshavanand Bharti v. State ofKerala AIR 1973 SC 1461.
rights lay down the means by which that goals was to be

achieved.
The courts have time and again reiterated that the Constitution is
founded on the bedrock of the balance between Parts III and IV. To give
absolute primacy to one over the other is to disturb the harmony of the
Constitution which is the essential feature of the basic structure. 28 Further
in Unnikrishnan v. State o/Andhra Pradesh,29 Jeevan Reddy, J., said that the
Fundamental Rights and Directive Principles are supplementary and
complimentary to each other, and not exclusionary of each other, and that
the Fundamental Rights are but a means to achieve the goals indicated in the
Directive Principles. 30
Inter se evaluation of fundamental rights
Why are these rights fundamental? For, they are based on certain permanent
values which are put beyond the day to day controversies by the
C o n s t i t u t i o n . But the weight to be attached to each of the values is
constantly in question when competing values assert themselves. Even
though, therefore, all the fundamental rights guaranteed in Part III of the
Constitution are equally enforceable by article 13 of the Constitution against
any inconsistent law or administrative action, all these rights cannot be said
to be equal, because the values on which they are based cannot be regarded
as being always of the same weight. The United States Supreme Court had
to recognize the difference in the weight to be attached to property and
economic rights, on the one hand, and liberty and cultural rights, on the
other hand, when from 1937 onwards the court retreated from activism in
the protection of property and business and concentrated on the protection
of liberties and cultural rights. For, the regulation of the vested rights in
property and business is a question of policy for the state in which judiciary
cannot have much role to play. On the contrary, freedom of expression and
other cultural freedoms are essential for the development of personality of
each individual and in the sphere of public life there can be little occasion
for the state to impose controls on these liberties. This is called the doctrine
of "preferred freedoms" or "double standard".
In a rare reference to this subject, Hidayatullah, J., observed that the
doctrine of "preferred freedom" was not known to our Constitution. 3 1
28. See, Minerva Mills v. Union ofIndia AIR 1980 SC 173. Also see, State of Tamil Nadu v.
L. Abu KavurBai AIR 1984 SC 326.
29. AIR 1993 SC 2178.
30. See also, Bandhva Mukti Morcba v. Union ofIndia AIR 1984 SC 802; Subhash Kumar v.
State ofBihar AIR 1991 SC 420; Consumer Education and Research Centre v. Unionoflndia
AIR 1995 SC 922 and Chameli Singh v. State of Uttar Pradesh AIR 1996 SC 1051.
31. Madhu Limaye v. Sub-Divisional Magistrate, Monghyr AIR 1971 SC 2486.
While it is true that the Supreme Court has not expressly adopted this
doctrine it would appear that there is a definite scale of graded values
underlying the different fundamental rights in our Constitution. In order of
the degree of protection received by them, the fundamental rights may be
graded into two classes in a descending order. The first grade would consist
of the right to equality guaranteed by article 14 and the first three freedoms
guaranteed by article 19(1), namely, freedom of speech and expression, right
to assemble peacefully and without arms, and the right to form associations
or unions. The right to equality is worded absolutely though reasonable
classification is implied in it. The primacy given to the first three freedoms
in article 19 (1) is shown by the strictly limited nature of the restrictions
which can be imposed on them under clauses (2), (3) and (4) of article 19.
The right to freedom of religion and the cultural and educational rights
guaranteed by articles 25 to 30 may also be placed in the first grade because
they are mostly invoked by the minorities and the legislatures as well as the
courts act on the theory that the test of a civilization is its solicitude for their
welfare.
The second grade would comprise the last three freedoms guaranteed
by article 19 (1), namely, right to move freely throughout the territory of
India, the right to reside and settle in any part of the territory of India, and
the right to practice any profession, or to carry on any occupation, trade or
business. The reason why they are less protected is that "reasonable
restrictions in the interest of the general public" may be placed on them
under clauses (5) and (6) of article 19. The word "reasonable" is flexible. In
construing it, the legislators and the courts would be entitled to vary the
degree of restrictions of these rights in accordance with the importance to
be attached to competing values which require these rights to be restricted.
Formerly, the right to life and personal liberty guaranteed by article 21 had
a somewhat precarious protection because it depended on "the procedure
established by law". 32
Motilal Setalvad, the then Attorney-General, who appeared for the
Government in Gopalan's case before the Supreme Court, referred to the
substitution of the expression "according to the procedure established by
law" in place of the expression "due process of law" in article 21 by B. N .
Rau on the advice of Justice Frankfurter of the United States Supreme Court
as an argument in favour of the narrow construction of these words as
contrasted with the wide construction of the due process of law in the
United States Constitution. But the learned counsel noted that the sharp
intellect of Justice Patanjali Shastri did not fail to perceive the fallacy
underlying the argument advanced by the counsel. If 'law' was to mean law
enacted by the legislature, how was the citizen's personal liberty to be
32. A.K. Gopalanv. State ofMadras (1950) SCR 88.

safeguarded against arbitrary inroads by the legislature?33 Fortunately, the

Supreme Court has managed to hold that the 'procedure' and the 'law'
referred to in article 21 must be such as not to contravene provisions of
articles 14 and 19 of the Constitution.
A fourfold justification of the validity of "preferred freedoms" or
"double standard" as applied to the fundamental rights u n d e r o u r
Constitution may be attempted. Firstly, the Constitution itself places the
right to liberty and equality as combined to produce social and economic
justice at the forefront in the preamble. The liberty of thought, expression,
belief, faith and worship only is chosen for this place of pride. The other
liberties are not m e n t i o n e d in the preamble. The i n t e n t i o n of the
Constitution-makers was to regard justice combining these liberties and
equality as the keystone of the Constitution. Secondly, the distinction is
based on the difference in the language in which these rights are defined in
Part III of the Constitution. Thirdly, activism of the judiciary in performing
their function of judicial review is more appropriate in protecting these
liberties and equality because they are not vested rights. Lastly, the questions
of economic policy and regulation of business require study of statistics and
data which are possessed by the Government, but not by the courts with the
result that the intervention of the courts in protecting business rights would
have to be comparatively reduced.
The higher value or 'preferred' position accorded to freedom of speech
under article 19(1) (a) as compared to the rights to business under article 19
(1) (g) was shown when restrictions which would have been reasonable in
respect of the latter were held to be unconstitutional when they infringed
the former. The object of these 'laws' was primarily to regulate the business
aspect of newspaper publishing but they inevitably had incidental adverse
effects on the circulation of the bigger newspapers, which were thereby
controlled in the interests of the business of the smaller newspapers.
Though this control was to bring about positively a greater measure of
equality, in effect it had even indirect control of freedom of speech and
freedom of the press which in turn includes the freedom of circulation. 34
Categories of freedom not limited
There are two possible approaches to the interpretation of the Constitution

in regard to its provisions dealing with the liberties of the citizen. There is a
literal interpretation that has the effect of restricting the right to the
language in which it is defined. The majority of the Supreme Court Bench in
33. Setalvad, My Life, Law and Other Things, 1970, p. 157.

34. Sakal Papers (P) Lea v. Union ofIndia AIR 1962 SC 305 and Bennet Coleman & Co. Ltd.
v. Union ofIndia AIR 1973 SC 106.
A. K. Gopalan v. State of Madras^ refused to extend the right to personal

liberty in article 21 by invoking article 19. In another decision the right to
form associations and unions in article 19 (1) (c) was held not to include the
right of a union to achieve the objects for which it was formed. It was
observed that
While the right to form a union is guaranteed by sub-cl. (c), the right of
the members of the association to meet would be guaranteed by sub-cl. (b),
their right to move from place to place within India by sub-cl. (d), their right
to discuss their problems and to propagate their views by sub-cl. (a), each of
these freedoms being subject to such restrictions as might properly be
imposed by els. (2) to (6) of article 19 as might be appropriate in the
context. It is one thing to interpret each of the freedoms guaranteed by the
several articles in Part III in a fair and liberal sense, it is quite another to
read each guaranteed right as involving or including concomitant rights
necessary to achieve the object which might be supposed to underlie the
grant of each of those rights, for that construction would, by a series of ever
expanding concentric circles in the shape of rights c o n c o m i t a n t to
concomitant rights and so on, lead to an almost grotesque result. 36
The majority of the Constitution Bench of the Supreme Court in
A.D.M. Jabalpur v. Shiv Kant ShuklaF was hamstrung by this approach and
felt constrained to uphold draconic restriction of personal liberty under
article 21. 3 8
The other approach is based on the reason why the Constitution
particularly in its preamble and in Parts III and IV dealing with fundamental
rights and directive principles uses wide language enunciating principles and
broad rules. The obvious intention is to give a wider law-making role to the
judiciary. Before the commencement of the Constitution the judges in India
could not be expected to play such a role. In contrast with the greater scope
in law-making available to the English judges in the 19 th century in dealing
with common law, which was full of principles, the role of English judges in
20 th century tended to become very restricted in interpreting statutes. The
report of the Renton Committee on the Preparation of Legislation (1975) in
England, therefore, expressly recommends that "encouragement should be
given to the use of statements of principles, that is to say, the formulation of
broad general rules" in parliamentary legislation (paras 10-13). The
realization which was shown by the Renton Committee only recently in the
35. (1950) SCR 88.

36. All India Bank Employees Association v. National Industrial Tnhunal & others (1962) 3
SCR 269 at 290.
37. (1976) 2 SCC 521.
38. For a detailed criticism of the majority decision which does not seem to bring out
the above reason for the decision, see Seervai, Emergency, Future Safeguards and the
Habeas Corpus Case, 1978.
field of private law had come to the framers of the Indian Constitution
much earlier in the field of public law. The entry of the United Kingdom
into the European Economic Community and ratification by her of the
European Convention of Human Rights confronted the British Judges with
the task of construing the Treaty of Rome and the European Convention of
Human Rights in the same way as the judges in India were to construe the
Constitution of India. This approach envisaging a broad construction of
constitutional provisions was emphasized by Lord Denning, M. R. in the
following words:
They must follow the European pattern. N o longer must they
examine the words in meticulous detail. N o longer must they
argue about the precise grammatical sense. They must look to
the purpose or intent. To quote the words of the European
Court...they must deduce "from the wording and the spirit of
the Treaty the meaning of the community rules".... They must
divine the spirit of the Treaty and gain inspiration from it. If they
find a gap, they must fill it as best they can. They must do what
the framers of the instrument would have done if they had
t h o u g h t about it. So we must do the same. Those are the
principles, as I understand it, on which the European court
acts. 39
This approach at times results in the development of what has been
called "Constitutional Common Law" drawing inspiration from but not
'required' by the Constitution. 40
Just as the United States Supreme Court invokes the general and wide
words of the American Declaration of Independence and of the Fourteenth
Amendment and the French Conseil Constitutionnel invoked the Declaration of
the Rights of Man and Citizen (1789) in a decision given on 16 July 1971 to
uphold democracy, liberty and equality 41 the Supreme Court of India was
inspired to base its decisions on the so-called non-enforceable provisions of
the Contitutiton in Bharati v. State ofKerah*2 and Smt. Indira Nehru Gandhi
v. Raj Narain.n The decision of the majority in the former case that there
are certain basic features or the structure of the Constitution which are
necessary to preserve the identity of the Constitution and which are not
amenable to amendment under article 368 of the C o n s t i t u t i o n was
supported by reference, inter alia, to the preamble of the Constitution. The
39. H.P.BulmerLtdv.J.BollingerS.A. (1974) Ch. 401, 426 (CA).

40. H. P. Mohaghan, 89 Harvard Law Review, 1975-76, pp. 1 and 3.
41. J. C. Vanezia, "The Protection of Equality in French Public Law" in T. Koopmans
(ed.) Constitutional Protection of Equality—A Study ofFive Constitutions, U. S. A., Canada,
West Germany, France and U.S.S.R, 1975, pp. 139, 141,142 and 151.
42. (1973) 4 SCC 225.
43. AIR 1975 SC 2299.
preamble and certain other parts of the Constitution embodied the basic
features of the essential structure of the Constitution. The majority holding
that these basic features or the basic structure cannot be changed by
resorting to constitutional amendment virtually means that an amendment
contrary to these basic features would be unconstitutional. If so, a fortiori an
ordinary law contrary to these basic features ought to be unconstitutional. If
these basic features of the Constitution can be relied upon to invalidate even
a constitutional amendment and certainly an ordinarily law, it is no longer
open to say that unlike the fundamental rights the preamble of the
Constitutional is not enforceable. Similarly, clause (4) of the article 329 A
introduced by the Constitution (Forty second Amendment) Act, 1976 was
also held t o be u n c o n s t i t u t i o n a l by the unanimous decision of the
Constitution Bench in the latter case. Only one learned judge, H . R.
Khanna, supported this holding by reference to the basic features of the
Constitution. The other learned judges having been averse to the doctrine of
basic structure or basic features did not give that reason for that holding.
They relied, inter alia, on the abstract conceptions such as democracy, rule of
law, and separation of powers to support their holding. If such broad
interpretation of non-enforceable provisions and the abstract concepts
underlying the Constitution could help the upholding of the basic features,
the essential liberties or other rights and liberties, it would not be surprising
if the fundamental rights themselves which are enforceable are construed
broadly with a view to expanding the scope of the enumerated rights and to
spell out from them other liberties even though they may not be apparent in
the language in which the rights are defined but may still emanate from the
spirit with which these rights are invested.
Article 21 is more general in its terms than the articles, relating to other
fundamental rights in Part III. It, however, suffers from the lacuna that the
protection given by it varies according to the procedure established by law.
T h e Supreme C o u r t decisions have, therefore, expanded and
strengthened 'personal liberty' in article 21 in two ways—firstly, by spelling
out un-enumerated liberties from it and secondly, by giving it the support of
other articles such as articles 19 and 14.
Expansion of 'personal liberty'
In K. K. Kochuni v. State ofMadras and Kerala^ Subba Rao, J., observed that
the views of the learned judges in A. K. Gopalan's case may be broadly
summarized under three heads, namely:
(1) To invoke article 19(1) a law shall be made directly infringing that
right,
44. (1960) SCR 887 at 914.

(2) Articles 21 and 22 constitute a self-contained code,

(3) The freedoms in article 19 postulate a free man.
In State. ofMaharastra v. Prabbakar Pandurang Sangagin,45 Subba Rao, J.,
again considered the inter-relation between articles 19 and 21 in the
following words:
There are five distinct lines of t h o u g h t in the m a t t e r of
reconciling Art. 21 with Art. 19, namely, (1) if one loses his
freedom by detention, he loses all the other attributes of freedom
enshrined in A n . 19 ; (2) personal liberty in Art. 21 is the residue
of personal liberty after excluding the attributes of that liberty
embodied in Art. 19; (3) the personal liberty included in Art. 21
is wide enough to include some or all of the freedoms mentioned
in Art. 19 but they are two distinct fundamental rights—a law to
be valid shall not infringe both the rights; (4) the expression
"law" in Art. 21 means a valid law and, therefore, even if a
person's liberty is deprived by law of detention the said law shall
not infringe Art. 19; and (5) Art. 21 applies to procedural law,
whereas Art. 19 to substantive law relating to personal liberty.
In Kharak Singh v. The State ofU. P. 46 in the majority judgment by
Ayyanagar, J., the following observations were made:
It is true that in Art. 21 as contrasted with the 5 t h and 14 th
Amendments in the U. S. the word 'Liberty' is qualified by the
word 'personal' and therefore its content is narrower. But the
qualifying adjective has been employed in order to avoid
overlapping between those elements or incidents of 'liberty' like
freedom of speech or freedom of movement etc., already dealt
within Art. 19 (1) and the 'liberty' guaranteed by Art. 21
We...consider that "personal liberty" is used in the Article as
compendious term to include within itself all the varieties of
rights which go to make up the "personal liberties" of man other
than those dealt with in the several clauses of Art. 19 (1). In
other words, while Art. 19 (1) deals with particular species or
attributes of that freedom, "personal liberty" in Art. 21 takes in
and comprises the residue.
The view expressed therein that article 19 (1) deals with particular
species or attributes of freedom while the rest of "personal liberty" is
embodied in article 21 was adopted by the majority speaking through Subba
Rao, C.J., in Satwant Singh Sawhney's case.47 The result of the development of
45. (1966) 1 SCR 782.

46. (1964) 1 SCR 332 at 345 and 347.
47. AIR 1967 SC 1836.
these views has now culminated in the majority decision of the seven-judge
Bench of the Supreme Court in Maneka Gandhi's** case. This view is best
summarized in Satwant Singh Sawhney's case in para (28) in the following
words: 49
[L]iberty in our Constitution bears the same comprehensive
meaning as is given to the expression 'liberty' by the 5 th and 14th
A m e n d m e n t s to the U.S. Constitution and the expression
'personal liberty' in Art. 21 only excludes the ingredients of
liberty enshrined in Art. 19 of the Constitution. In other words,
the expression 'personal liberty' in Art. 21 takes in the right of
l o c o m o t i o n and t o travel abroad, but the right to move
throughout the territories of India is not covered by it inasmuch
as it is specially provided in Art. 19.
Since Maneka Gandhi's case, article 21 has been on its way to emerge as
the Indian version of the American concept of due process. Article 21 has
now become a repository of many substantive rights and procedural
safeguards. Both "life" and "personal liberty" have been given a very
expansive interpretation. In P. Rathinam v. Union of India50 the Supreme
Court has interpreted "life" as follows:
"The right to live with human dignity and the same does not
connote continued drudgery. It takes within its fold some of the
fine graces of civilization which makes life worth living and that
the expanded concept of life would mean the tradition, culture
and heritage of the person concerned".
The expression "personal liberty" has also been given expansive
interpretation and does not refer merely to the liberty of body, i.e., freedom
from physical restraint or freedom from confinement within the bounds of
a prison but is used as a compendious term to include within it a variety of
rights of a person which go to make u p the personal liberty of an
individual.51
Strengthening 'Personal Liberty'
A continuous trend is discernible in the Supreme Court decisions not only

to free the concept of "personal liberty" from the constricting effect of the
48. Smt. Maneka Gandhi v. Union ofIndia (1978) 1 SCC 248.

49. AIR 1967 SC 1836 at 1844.
50. (1994) 3 SCC 394: AIR 1994 SC 1844.
51. See Kharak Singh v. State ofU.P. (1964) 1 SCR 332; State of West Bengal v. Ashok Dey
(1972) 1 SCC 199; Haradban Saha v. State of West Bengal (1975) 3 SCC 198; John Martin
v. State of West Bengal (1975) 3 SCC 836, Francis Coralie v. Union Territory of Delhi
(1981) 1 SCC 608; Salwant Singh v. A.P.O. (1967) 2 SCR 526; Shantisar Builders v.
Narayan Khimalal Totame (1990) 1 SCC 520 and Olga Tellis v. Bombay; Municipal
Corporation (1985) 2 SCC 545.
decision of the majority in A. K. Gopalan's case52 but also to strengthen the

right to personal liberty in article 21 by reading it with articles 19 and 14
whenever necessary with a view to strengthen the right to personal liberty
and to overcome the weakness of the guarantee of "procedure established
by law" embodied in it. In R. C. Cooper v. Union o/Indian 53 Shah, J., speaking
for the majority observed as follows:
In our judgment, the assumption in A. K. Gopalan's case, 1950
SCR 88: (AIR 1950 S.C. 27) that certain articles in the
Constitution exclusively deal with specific matters and in
determining whether there is infringement of the individual's
guaranteed rights, the object and the form of the State action
alone need be considered, and effect of the laws on fundamental
rights of the individuals in general will be ignored cannot be
accepted as correct.
Apparently building on this statement, the Constitution Bench observed
in Haradhan Saha v. The State of West Bengal and others54 as follows:
We may proceed on the assumption that the Act (Maintenance)
of Internal Security Act, 1971 which is for preventive detention
may be tested with regard to its reasonableness with reference to
Article 19.
In Maneka Gandhi v. Union ofIndia,55 a seven-judge Bench has held that
the fundamental rights embodied in Part III of the Constitution are not to
be viewed as distinct and mutually exclusive. O n the other hand, each of
them has different dimensions and merely because the limits of interference
with freedom are satisfied, the law is not freed from the necessity to meet
the challenge of other guaranteed freedoms. Therefore, the law affecting
personal liberty under article 21 will also have to satisfy tests of article 19
and 14. Bhagwati, J., points out in paragraph 6 of the report how even the
learned Attorney-General himself did not dispute this new fortification of
the concept of personal liberty. This liberalization in the attitude of the state
towards personal liberty is a notable improvement over the stand taken by
the Advocate-General of Maharastra in Kesavanand Bharti v. State ofKeraL·,^
seeking to justify restrictions on the right to freedom of speech and freedom
of movement imposed by article 31C which would be referred to later in
dealing with the doctrine of basic structure of Constitution which is also a
judicial innovation to expand and strengthen the fundamental liberties and
democratic rights embodied in the Constitution. Bhagwati, J., refers to the
52. (1950) SCR 88.

53. R.C. Cooper v. Union ofIndia (1970) 3 SCR 564 at 597.
54. AIR 1974 SC 2154 at 2158.
55. (1978) 1 SCC 248.
56. (1973) 4 SCC 225, paras 1194 to 1200.
decisions in Haradhan Saha v. The State of West Bengal, Shambhu Nath Sarkar v.
State of West Bengal,57 and R. C. Cooper v. Union of India to show that even
though a law prescribing a procedure for depriving a person of "personal
liberty" may not infringe article 21, it will have to stand the challenge of
article 19 insofar as it abridges or affects any of the fundamental rights
guaranteed by article 19. Bhagwati, J., also points out that the Supreme
Court also applied Article 14 to test the validity of a law which affected
personal liberty by prescribing a special procedure for the trial of specified
offences. In the State of West Bengal v. Anwar Ali Sarkar?% the law was struck
down while in Kathi Raning Rawat v. The State ofSaurashtra,59 the law was
upheld. But in both the cases it was held that the procedure established by
the special law must not be violative of the equality clause.
The actual infringement of the fundamental right and not the object
of the legislation causing it to be considered
Though in R. C. Cooper's60 case the majority of the eleven-judge Bench was

concerned only with showing that the extension of the separateness of
fundamental rights theory enunciated in Gopalan's case to the right to
property was wrong. Shah, J., made the following important observations of
general application: 61
We have carefully considered the weighty pronouncements of
the eminent Judges who gave shape to the concept that the
extent of protection of important guarantees, such as the liberty
of person, and right to property, depends upon the form and
object of the State action, and not upon its direct operation upon
the individual's freedom. But it is not the object of the authority
making the law impairing the right of a citizen, nor the form of
action that determines the protection he can claim; it is the effect
of the law and of the action upon the right which attract the
jurisdiction of the Court to grant relief. If this be the true view,
and we think it is, in determining the impact of State action upon
constitutional guarantees which are fundamental, it follows that
the extent of protection against impairment of a fundamental
right is determined not by the object of the legislature nor by the
form of the action, but by its direct operation u p o n the
individual's right.
57. (1973) 1 SCC 856.

58. 1952 SCR 284.
59. 1952 SCR 435.
60. (1970) 3 SCR 530.
61. Id., at 576.
REPRESENTATIVE D E M O C R A C Y
Based on election by adult suffrage
In addition to the rights contained in Parts III and IV of the Constitution,

the right of the people to elect their representative to Parliament and the
state legislatures on the basis of adult suffrage is also a political civil right
which is as fundamental as any right which is called "fundamental" because
it is a part of the basic structure of the Constitution. More broadly speaking
the Constitution, as a whole is fundamental law because framing of the
Constitution was political act of the sovereign people. Its fundamental
nature is distinguished from ordinary laws and state administrative action
because the legislatures and the executives are creations of the Constitution.
Their actions, cannot, therefore, be put on the same level as the act of their
creator, namely, the Constitution made by the Constituent Assembly. The
basis of the power of judicial review of the validity of legislation and
administrative acts by the courts is not, therefore, article 13 but more truly
articles 372 (1) and 245 (1) of the Constitution. 62 A failure to keep this in
mind has resulted in the right of election on the basis of adult suffrage being
not formally treated as a fundamental right. Since the preamble to the
Constitution says that India is a democratic republic and since Chapters I
and II of Part V of the Constitution and Chapter III of Part VI of the
Constitution contemplate that the President, Parliament and the state
legislatures shall be chosen on the basis of election, the right of election
becomes the very basis of the Indian democracy. Since there can be no
representative democracy except on the basis of election the right of
election contained in article 356 of the Constitution is not only fundamental
but is a part of the basic structure of the Constitution. The Constitution
cannot exist without a representative democracy which itself cannot come
into being without the exercise of the right of election by the people. A
majority of the thirteen-judge Bench of the Supreme Court in Kesavananda
Bharti v. State ofKerahbi have held that there is a basic structure or there are
certain basic features of the Constitution which are its core and cannot be
amended through the ordinary process.64 Without them the identity of the
Constitution would be lost. Since democracy is such a basic feature of the
Constitution the election of the representatives of the people to constitute
the representative democracy would also be a basic feature of the
Constitution. Talking in terms of the preamble of the Constitution we may
say that liberty, equality and fraternity assuring the dignity of the individual
are essential to the functioning of political democracy while justice-social,
62. See V.S. Deshpznde, Judicial Review ofLegislation, pp. 51-57.

63. (1973) 4 SCC 225.
64. Some agreed basic features may even expressly be inserted in the Constitution by a
Constitution Amendment Bill if the major parties agree.
economic and political-is essential for the functioning of economic

democracy. The political aspects of the democracy predominates in Part III
and in the provisions relating to the elections to Parliament and the state
legislatures while the economic aspects predominate in Part IV of the
Constitution. Since political rights and economic welfare of the people are
both equally necessary for the success of democracy it cannot be said that
one is more important than the other. It is essential, therefore, that political
as well as economic rights must be fully enjoyed by the people if the
Constitution is to fulfil the vision of its makers. Let us, therefore, survey the
development and the enjoyment of these political and economic rights
under the Constitution by the people.
Potential threats to these rights
Unlike certain provisions in the Federal Constitutions of the United States

and West Germany no provision of the Indian Constitution has been made
expressly unamendable. The theoretical powers to amend any part of the
Constitution have been given to the members of Parliament and state
legislatures by article 368 subject to the procedure prescribed in it. The
power to amend the Constitution may be called a "constituent power" to
distinguish it from the legislative power. It must be recognized, however,
that this power is not constituent in the sense that it is a power to make a
new Constitution. O n the contrary it is only a power to amend the existing
Constitution. In that sense, though it is distinct from the ordinary legislative
power, it is also distinguished from the power of an original constituent
assembly to make a new Constitution. It is, properly speaking, a power to
amend the Constitution and may be called a constituent amending power. It
is not, therefore, unlimited like the power of an original constituent
assembly. It is a derived power limited by the languages of article 368.
However widely the word "amend" is construed it does not mean that total
abrogation of the Constitution but implies that the existing Constitution is
to remain and cannot be amended out of recognition so as to destroy the
identity of the existing Constitution. The power to amend, therefore, cannot
destroy the basic features of the Constitution which form its identity and the
destruction of any of which is not contemplated by the exercise of the
power of amendment.
In Kesavananda Bharati v. State ofKeraL· the Supreme Court over ruled its
previous decision in Golak Nath v. State of Punjab65 which had held that an
amendment of the Constitution made under article 368 was a "law" within
the meaning of article 13 and such a law, therefore, could not abridge or
take away the fundamental rights contained in Part ΠΙ of the Constitution.
This position had to be abandoned in Kesavananda Bharati v. State of Kerala
65. (1967) 2 SCR 762.

which recognized that the amendment under article 368 is not a "law"
within the meanings of article 13 but the question was approached from a
different viewpoint. Right to property being a vested interest could be
abridged or even abrogated if it stood in the way of effect being given to the
directive principles of the state policy contained in Part IV of the
Constitution. The statutes, the validity of which was under consideration
both in Golak Nath and Kesavananda related to the right to property. In that
context the right to property was held not to be a basic feature of the
Constitution. Six judges of the thirteen-judge Bench in Kesavananda held that
the fundamental rights being part of the essential elements or basic features
of the Constitution could not be abrogated or emasculated by the exercise
of the power of amendment under article 368. Six other judges on the other
hand held that there was no limitation or restriction of a substantive nature
on the power to amend the fundamental rights. Khanna, J., took up a middle
position and his judgment, therefore, became decisive on this question. He
held that the right to property could be abrogated by amendment. Since only
the right to property was in question in that case it is Khanna, J.'s opinion of
that particular fundamental right which constitutes the majority decision in
that case. The other fundamental rights were not directly the subject matter
for decision in that case. The observation of Khanna, J., that no part of a
fundamental right can claim immunity from the amending process in respect
of other fundamental rights would have, therefore, to be regarded as obiter.
In a subsequent decision Smt. Indira Nehru Gandhi v. Raj Narain^ Khanna, J.,
has further explained himself and in the light of his subsequent observations
it would appear that he did not mean to hold that fundamental rights other
than the right to property were not a part of the basic structure of the
C o n s t i t u t i o n . It would appear, therefore, that the amending p o w e r
exercisable under article 368 is not such a threat as to endanger the
continuance of the fundamental rights other than the right to property in the
Constitution subject to such reasonable restrictions as may be placed upon
them under the existing provisions of Part III of the Constitution. 67
The other potential threat to the operation of the fundamental rights is
the emergency provisions contained in Part XVIII of the Constitution.
Under article 352 as originally enacted a state of emergency could be
declared by the President if he was satisfied that (1) the security of India or
of any part of its territory is threatened, whether by war or external
aggression or (2) it is so threatened by internal disturbance. The provision in
(2) above was in contrast with the concept of emergency in the United
66. AIR 1975 SC 2299.

67. See, Minerva Mills v. Union ofIndia AIR 1980 SC 1789: (1980) 3 SCC 625; Wamaa Rao
v. Union ofIndia AIR 1981 SC 271; RaghunathRao v. Union ofIndia AIR 1993 SC 1267
and 1287: 1933 (1) JT 374 and Kihota Hollohan v. Zachillu AIR 1993 SC 412: 1992
Supp (2) SCC 651.
could not be extended to the destruction of the Constitution. They held,

t h e r e f o r e , that an amendment could be made o n l y of the existing
Constitution. If the identity of the Constitution itself were to be destroyed
then this would be something beyond amendment. This could n o t ,
therefore, be done by the exercise of the amending power.
Justification of the new doctrine
The new doctrine propounded by the majority of the thirteen-judge Bench

in the Kesavananda case was open to the criticism that the plenary power of
amendment available to Parliament under article 368 was thereby limited
without legal justification. It could also be argued that moral reasons,
namely, that the essence of the Constitution should not be allowed to be
destroyed by amendment were not sufficient to justify the enunciation of
this new doctrine. Protagonists of the power of Parliament could argue that
ultimately it is a political question as to whether Parliament should or should
not have the fullest power to change the Constitution in any manner it likes.
If the people have given this power to their representatives in Parliament, it
is not for the court to deny this power of Parliament for extra-legal
considerations. While there is much force in the above argument, the
question requires deeper consideration. After all, what is the function of the
judges? It is to give effect to the object of the legislation and not so much to
its language. As judge Learned Hand felicitously describes it the function of
the judges is to "proliferate the purpose" of the legislation. N o w what is the
purpose of the Constitution? It is very happily described in the preamble.
Briefly, the Constitution seeks to fulfill both the political and economic well
being of the people since both are necessary for the success of democracy.
It is further clear that excepting the right to compensation for acquisition of
property given by article 31, there is no conflict between the provisions of
Part III and Part IV of the Constitution. A harmonious interpretation of
legislation undertaken under Part IV with the maintenance of the
fundamental rights in Part III is entirely possible and desirable. If so, what
justifications can there be for abridging or abrogating the fundamental rights
such as freedom of speech and freedom of movement? Those who argue in
favour of parliamentary sovereignty acting under article 368 would regard
that what is law has to be decided with reference to the source of its
authority. If Parliament has the authority to make law under article 368
judges cannot disregard it.
The authority of Parliament acting under article 368 to amend the
Constitution has to be considered in its overall context and not merely by a
literal interpretation of the language of article 368 as amended. Firstly, like
the American Constitution, our Constitution also is based on the theory that
it is the people of India who have given this Constitution to themselves. The
objects which the people of India want to achieve by this Constitution are
concentration of wealth and means of production in the hands of the few to

the detriment of the many then an equitable distribution of land becomes
necessary. In India two systems of land tenure came to be adopted in
different states by historical accidents. The ryotwan system gave full rights in
the land to the tiller who directly paid land revenue to the state and was
entitled to the full produce of the land. On the other hand, zamindari system
in some states deprived the tiller of the soil of the ownership of the land and
made him a tenant of the landlord. The tiller of the soil did not get the full
benefit by the cultivation of the land but had to pay a part of his earned
income from the land to the landlord who became merely the receiver of
such unearned income. This injustice was sought to be remedied by
abolition of zamindari legislation in those states in which zamindari system
was prevalent. The method adopted was that the state acquired the lands of
the zamindars and legislature fixed payment of certain compensation to the
zamindars for such acquisition. This compensation was nowhere equal to
the market value of the lands so acquired. The landlords challenged the
validity of such legislation. To prevent the legislation from being invalidated,
Constitution amendment Acts were passed from 1951 to 1964 clarifying that
the right to compensation given by article 31 was not justiciable in a court of
law and that the quantum of compensation as fixed by the legislature was
final. It is well known that like any constitution the fundamental rights could
be developed either by amendments of the Constitution or by judicial
decisions. Unfortunately, these two agencies of development pulled in
different directions in respect of the right to property. While judicial
decisions treated the right to property as being as good as any other
fundamental right, the Constitution-amending Acts singled out that right as
being the only one which stood in the way of economic reform. The courts
held that the word "compensation" in article 31 meant a just equivalent of
the p r o p e r t y acquired, i.e., a market value compensation while the
amendments of article 31 tried to clarify that it is the legislature and not the
courts which had the final say as to what the compensation should be and
that article 31 did not guarantee full market value compensation for
acquisition. The conflict between these two contrary pulls came to an end in
Golak Nath v. State of Punjab. The reason for that decision appears to be that
the majority of the eleven-judge Bench of the Supreme Court in that case
was weighed with the consideration that the right to property being then
placed in Part ΠΙ of the Constitution had to be treated as being on the same
level as the other fundamental rights. Since Hidayatullah, J., clearly
recognized that the right t o p r o p e r t y should not have been made a
fundamental right, the majority of the Bench could have taken the view that
the right to property could be abridged but the other fundamental rights
could not be abridged. The result of the Golak Nath decision was that the
land reform legislation which was for the benefit of the common man was
foiled. The popular opinion was, therefore, overwhelmingly against the
decision and the inviolability of the right to property which it propounded.

This led to the Constitution (Twenty-Fourth Amendment) Act, 1971 which
amended article 368 to make it clear that the power to amend could extend
to any policy of the Constitution (including the fundamental rights). This
was followed by the Constitution, (Twenty fifth Amendment) Act, 1971
which omitted the word "compensation" from article 31 (2) and substituted
it by the word "amount" to make it clear that what would be paid for
acquisition of land would not be a just equivalent but merely some amount
as may be fixed in its discretion by the legislature. It then enacted article
31C. This embodied two distinct provisions. Firstly, it was legitimately
enacted that a law giving effect to the policy of the state towards securing
the principles specified in clauses (b) and (c) of article 39 shall not be
deemed to be void on the ground that it takes away or abridges the right to
compensation for acquisition of property conferred by article 31. This
provision also could be justified because it had been almost provoked by the
decisions of the Supreme Court in Golak Nath v. State of Punjab6* R. C.
Cooper v. Union of India,69 and H. H. Madhavrao Sindbia v. Union of India.70 In
all these three decisions it was the right to property which was in dispute
and which was being upheld by the Supreme Court against socialistic
measures enacted by Parliament.
But article 31 C went further, without any apparent provocation, and
provided that a law implementing the policy of article 39 (b) and (c) would
prevail not only against any infringement of article 31 but also against any
infringement of article 14 and article 19. Article 14 guaranteed the right to
equality before law while article 19 guaranteed several freedoms which had
nothing to do with the right to property and though it also guaranteed the
right to acquire, hold and dispose of property, this right comprised the right
of the c o m m o n man t o hold his p r o p e r t y for the p u r p o s e of his
consumption. If such property were to be acquired by the state full
compensation equivalent to its market value would be payable under the
Land Acquisition Act, 1897.
While h a r m o n i o u s i n t e r p r e t a t i o n of articles 39 and 31 of the
Constitution was certainly possible71 one could understand that Parliament
was justified in enacting article 31 C because such harmonious interpretation
did not then come from the Supreme Court in any of the three decisions
mentioned before and certain other decisions preceding them. 7 2 But the
other provisions of Part III were not at all in conflict with any of the
68. (1967) 2 SCR 762.

69. (1970) 3 SCR 530.
70. (1971) 1 SCC 85.
71. As shown in MA Mahabir Metal Works(P)Ltd. v. Union of India AIR 1974 Delhi 73.
72. V.R. Krishna Iyer, J., has then done it in State ofKarnataka v. Ranganatb (1977) 4 SCC
471.
provisions of Part IV of the Constitution. The economic welfare of the

individual which was the aim of the directive principles contained in Part Γν
could be very well brought about by adhering to the means which are
contained in Part III of the Constitution. The liberties of the individual are
not opposed to the economic betterment of the individual. It is only the
holding of large p r o p e r t y by some persons and their claiming full
compensation for their acquisition by the state which conflicted with the
implementation of article 39 (b) and (c) of the Constitution. Since the
conflict was not resolved by harmonious interpretation, article 31C could be
justified to the extent that it gave primacy to article 39 (b) and (c) over
article 31 and resolved the conflict in favour of the end as against the means.
But this reason did not explain why article 31C could have given primacy to
article 39 (b) and (c) over articles 14 and 19.
The above discussion is primarily of historical value n o w . The
Constitution (forty fourth) Amendment Act, 1978, constituted a watershed
in the evolution of fundamental right to property in so far as it put an end to
this right. Articles 19(1) (f) and 31 dealing with right to property were
repealed by this constitutional amendment which left private property
defenseless against legislative onslaught. The present position is that in the
scheme of the Constitution four provisions deal with the area of property
relations, viz., articles 31A, 31 B, 31 C and 300 A. Though articles 31A, 31B
and 31C find a mention in the chapter on fundamental rights but they
cannot be described as fundamental rights to property since they do not
confer any right but instead seek to impose drastic restrictions on the right
to property. They confer immunity on various types of laws curtailing
property rights. Though article 300 A does confer some protection on
private property, but it does not enjoy the status of fundamental right.
Emergence of the doctrine of basic structure or features of the

Constitution
When the validity of article 31 C was attacked before the thirteen-judge

Bench of the Supreme Court in Kesavananda Bharati v. State ofKeraL· the court
was apparently satisfied that article 39 (b) and (c) could prevail over article
31 and it overruled its previous decision in Golak Nath but the court wanted
to know what antithesis existed between articles 39(b) and (c) on the one
hand and articles 14 and 19 on the other before it could agree with the
validity of the rest of article 31C. Paragraphs 1194 to 1200 of the judgment
of Reddy, J., deal with this question. When the then Advocate-General of
Maharastra, H. M. Seervai, was asked by one of the judges as to why the
existing restrictions on the right to freedom of speech and freedom of
movement contained in Part III were not sufficient and why article 31C has
to impose a further restriction on them, Seervai answered that the social
content of the existing restrictions to which the fundamental rights
contained in sub-clauses (a) to (g) of article 19 (1) are subject is narrower

than all relevant social considerations to which the fundamental rights could
be made subject. He said that the social content of the directive principles
was wider than the social content of the permissible restrictions on these
fundamental rights. The only relevant illustration he gave was that of the
press which has a dual function. It is entitled to freedom of speech in
publishing and circulating copies of the newspapers but it is also enjoying a
right of p r o p e r t y in so far as it owns the printing press in which the
newspaper is printed. If legislation is undertaken to regulate the number of
pages of newspapers and their prices or the quantity of newsprint supplied
to the newspapers, the legislation may be beyond challenge under article 19
(1) (g) but could be challenged as indirectly infringing article 19(1)(a)
because undue restriction of freedom to print and sell would deprive the
newspaper of its right to freedom of speech and expression inasmuch as the
newspaper cannot be freely printed and published and circulated with such
a restriction.73 During the course of the argument the Attorney-General was
asked as to which programme of economic reform was obstructed by any of
the fundamental rights other than the right to compensation conferred by
article 31 of the Constitution, the Attorney-General could not point out any
such instance. The majority of the thirteen-judge Bench, therefore, came to
the conclusion that the fundamental rights other than the right to property
were not in conflict with the implementation of the directive principles of
state policy and that there was no justification for their being allowed to be
destroyed by any amendments of the Constitution. On the one hand they
could not deny that Parliament had the power to amend the Constitution
within the meaning of article 368 of the Constitution; on the other hand,
they were overcome with the feeling they the very object of the Constitution
being a fundamental law will be destroyed if Parliament were to be allowed
to destroy the basic features of the Constitution. A need was felt to identify
the basic features of the Constitution which are non-amendable under
Article 368. N o exhaustive list has yet emerged but the courts decide from
case to case whether a constitutional feature can be characterized as basic or
not. 74 They were, therefore, driven to evolve the new doctrine, namely, that
the power to "amend" under article 368 had to be construed as being
limited only to what may be regarded as amendment proper and that it
73. See Sakal Newspapers Pvt. Ltd. v. U.O.I (1962) 2 SCR 842 and Bennett Coleman & Co.
Ltd. v. Union of India AIR 1973 SC 106 already referred to above.
74. See, Kesavananda v. State o/KeraL· (1973) 4 SCC 225; State ofBihar v. Bal Mukund Shah
AIR 2000 SC 1296: (2000) 4 SCC 640; Raghunath Rao v. Union ofIndia AIR 1993 SC
1267; AIR 1973 SC at 1535,1603,1628 and 1860; Jilubhai Nanbhai Khachar v. State of
Gujarat AIR 1995 SC 154; Waman Rao v. Union ofIndia AIR 1981 SC 271; Kihoto
Holiobon v. lachillu AIR 1993 SC 412; Indira Gandhi v. RajNarain AIR 1975 SC
2299; Minerva Mills v. Union of India AIR 1980 SC 1789 and S. P. Sampatb Kumar v.
Union of India (1987) 1 SCC 124: AIR 1987 SC 386 etc.
could not be extended to the destruction of the Constitution. They held,

t h e r e f o r e , that an amendment could be made o n l y of the existing
Constitution. If the identity of the Constitution itself were to be destroyed
then this would be something beyond amendment. This could n o t ,
therefore, be done by the exercise of the amending power.
Justification of the new doctrine
The new doctrine propounded by the majority of the thirteen-judge Bench

in the Kesavananda case was open to the criticism that the plenary power of
amendment available to Parliament under article 368 was thereby limited
without legal justification. It could also be argued that moral reasons,
namely, that the essence of the Constitution should not be allowed to be
destroyed by amendment were not sufficient to justify the enunciation of
this new doctrine. Protagonists of the power of Parliament could argue that
ultimately it is a political question as to whether Parliament should or should
not have the fullest power to change the Constitution in any manner it likes.
If the people have given this power to their representatives in Parliament, it
is not for the court to deny this power of Parliament for extra-legal
considerations. While there is much force in the above argument, the
question requires deeper consideration. After all, what is the function of the
judges? It is to give effect to the object of the legislation and not so much to
its language. As judge Learned Hand felicitously describes it the function of
the judges is to "proliferate the purpose" of the legislation. N o w what is the
purpose of the Constitution? It is very happily described in the preamble.
Briefly, the Constitution seeks to fulfill both the political and economic well
being of the people since both are necessary for the success of democracy.
It is further clear that excepting the right to compensation for acquisition of
property given by article 31, there is no conflict between the provisions of
Part III and Part IV of the Constitution. A harmonious interpretation of
legislation undertaken under Part IV with the maintenance of the
fundamental rights in Part III is entirely possible and desirable. If so, what
justifications can there be for abridging or abrogating the fundamental rights
such as freedom of speech and freedom of movement? Those who argue in
favour of parliamentary sovereignty acting under article 368 would regard
that what is law has to be decided with reference to the source of its
authority. If Parliament has the authority to make law under article 368
judges cannot disregard it.
The authority of Parliament acting under article 368 to amend the
Constitution has to be considered in its overall context and not merely by a
literal interpretation of the language of article 368 as amended. Firstly, like
the American Constitution, our Constitution also is based on the theory that
it is the people of India who have given this Constitution to themselves. The
objects which the people of India want to achieve by this Constitution are
set out in the preamble. It is well known that the preamble is the key to the
interpretation of the Constitution. If so, the whole of the Constitution must
be read to mean that the ultimate power of amending the Constitution
beyond the power given to Parliament by article 368 is with the people.
Shanti Bhushan (the former Minister for Law and Justice), had perhaps this
in m i n d w h e n he had suggested the following happy c o m p r o m i s e .
According to him, amendment which does not affect the basic structure or
basic features of the Constitution could be made under Article 368 by
Parliament. If, however, the amendment is to go further and affect the basic
structure of the Constitution, then it should be effected only be means of a
referendum to the people. 7 5 Shanti Bhushan's interpretation that the
absolute sovereignty to change the basic structure of the Constitution rests
only with the people and that this is to be distinguished from the amending
power given to Parliament by article 368 can be supported by the preamble
which makes the people of India the ultimate repository of the power to
make and unmake the Constitution. The power of amendment given to
Parliament by article 368 is only a part and not the whole of this power.
Secondly, a written Constitution like ours, postulates a separation of
powers. This implies that Parliament is not sovereign in the same sense as
the people are sovereign. It also implies that not only Parliament but also
the executive meaning the President and the independent civil service as also
the independent judiciary are all different kinds of representative institutions
inasmuch as t h e y represent the will of the people in framing the
Constitution and in giving them separate powers and functions. The three
great branches of the government, namely, the legislature, the executive, and
the judiciary, are not to quarrel with each other but are to co-operate
conscientiously performing their separate functions without encroaching on
each other's functions. As observed by Edward H . Levi, former Attorney-
General of the U.S.A., "each branch, in its own way, is the people's agent,
its fiduciary for certain purpose." 76
The meaning of law and judicial function

The Austinian theory of law in its refined form is the present positivist
theory of law. Its best exposition is found in The Concept of Law by H.L. A.
Hart (1961). The elements of the legal system according to Hart have been
analyzed as below:
(1) Law is a set of rules distinguished from other rules by institutional
pedigrees traceable to the rule of recognition.
75. 16 The Indian Advocate, 1976, pp. 21-22.

76. E. H. Levi, "Some Aspects of Separation of Powers", 76 Columbia Law Review, 1976,
p. 371 at 385.
(2) The rule of recognition is accepted by the officials of the system as a

common standard for the determination of which rules are to be treated
as law.
(3) Rules have open texture requiring judges to choose among
interpretations which the rules may reasonably bear.
(4) Judges also exercise more explicitly legislative or creative function of
altering established rules and formulating new ones.
(5) The exercise of these discretions is informed by, inter alia, standards
generally reflected in the legal system and the perceived aims and
purposes of the rules in question; judges exercise choice not license.77
What is the function of the judiciary in administering the law defined by
Hart as above? Even Hart recognizes that rules have an open texture which
enables judges to choose from among various interpretations. Such a choice
is made in accordance with the aims and purposes of the rules in question. If
the aims and purposes of the Constitution as set out in the preamble have to
govern the judicial interpretation of the Constitution, would it not be
legitimate for the judges to think that the very object of the Constitution is
to confer political, social, cultural, civil and economic rights on the people
and to protect them? For, the enjoyment of these rights is necessary for the
dignity of the individual which the Constitution seeks to promote. A
reasonable restriction of these rights may be necessary for giving effect to
certain objectives of the Constitution so as to harmonize the different rights.
But a change in the basic structure or features of the Constitution including
these basic rights would be contrary to the objectives set out in the
preamble. Any constitutional amendment or legislative measure which
conflicts with the objectives of the Constitution to which effect has to be
given by the judges in interpreting the impugned amendment or the
legislation would, therefore, be subject to the judicial p o w e r of
interpretation of the Constitution. Such interpretation may give more
importance to the framework of the objectives set out in the preamble than
to the language of the amendment of the legislation. Such interpretation may
justify the doctrine that the power of amendment given by article 368 to
Parliament could not have contemplated the destruction of the basic
structure of the Constitution inasmuch as this would go against the basic
objectives of the Constitution set out in the preamble.
Critics of the positivists' school of law have a basic disagreement with
the concept of law as being restricted t o the legal system of rules
propounded among others by Hart. For instance, Ronald M. Dworkin has
argued that law consists not only of rules but also of policies and principles.
77. Joseph M. Steiner. "Judicial Discretion and the Concept of Law," 35 Cambridge Law
Journal, 1976, p. 135 at 139.
CONSTITUTIONAL L A W - I 53
They enable the judges to consider materials other than rules which alone
are valid according to the positivists. Judges do justice, apart from
administering law, by the application of these principles or policies. For
instance, the principle that no man can benefit himself by his own wrong,
would enable the judges to refuse to grant relief to a person who has
murdered another person from claiming to inherit the property of the
person whom he has murdered, even though according to the letter of the
law, he may be entitled to inherit such property.
In "Is Law a System of Rules)" by Ronald M. Dworkin 78 concept of the
judicial function has been explained. Perhaps it can be urged to explain how
the majority of the thirteen-judge Bench in Kesavananda's case came to
advance the view that the amending p o w e r given by article 368 to
Parliament does not extend to the destruction of the basic structure of the
Constitution. 79
In one sense, the doctrines which envisage judicial function as being not
restricted to the literal interpretation of the Constitution or legislation but
requiring the judges to give effect to the objectives of the Constitution or
law have been the reason for re-thinking by the jurists. Many of them
formerly believed that it is not for the judges to go beyond the language of
the Constitution or the law as questions of policy inhering them must be left
to the legislators. But with a decline of the power of Parliament, the
Executive at a particular point of time is able to bring about a constitutional
or legal change which may not reflect lasting public opinion. Gustav
Radbruch was formerly a positivist, but the perversion of parliamentary
sovereignty under the Nazi regime in Germany made him change his views.
He has at the end of his life driven to embrace a natural law philosophy after
abandoning positivism. 80
H. M. Seervai who supported the power of plenary amendment under
article 368 when he argued for the government in Kesavananda Bharati v. State
of Kerala, had subsequently to change his view when he realized the danger
to the Constitution arising form the argument for the appellant in Smt. Indira
Nehru Gandhi v. Raj Narain*1 that the power of amendment conferred by
article 368 was a constituent power which was an amalgam of legislative,
executive and judicial powers. Seervai could not subscribe to the view that a
judicial dispute could be decided in the garb of amending the Constitution.
When this kind of amendment contained in clause (4) of article 329A of the
Constitution was held invalid by the unanimous decision of the Supreme
78. R. M. Dworkin, "Is Law a System of Rules?" in R. S. Summers (ed.) Essays in Legal
Philosophy, pp. 25-60.
79. Hughes, "Rules, Policy and Decision-Making," 77 Yale Law Journal, 1968, p. 411.
80. Lon Fuller has translated this revised thinking of Radbruch in his Supplementary
Readings in Jurisprudence, 1951-52.
81. AIR 1975 SC 2299.
Court in Smt. Indira Nehru Gandhi's case, the reasoning of the court could not
have been supportable according to the positivist view of law. It is only
when law is viewed not only as rules but also principles and policies which
have to be developed by the judges to do justice that the decision can be
understood. Seervai has come round also to the view that the doctrine
propounded by the majority of the thirteen-judge Bench in Kesavananda's
case that the amending power cannot extend to the destruction of the basic
structure of the Constitution is after all supportable. 82 As I have indicated
above, such support can be found in the wider view of the concept of law
which is particularly suitable in the interpretation of a Constitution because
the Constitution is not merely a legal document but is also a charter of
social, economic, cultural and political values and rights of the people.
Constitution (Forty fourth Amendment) Act, 1978
The 42 n d Amendment was passed in a bid to eradicate the new doctrine

propounded by the majority of the thirteen Judge Bench in Kesavananda's
case. It had a number of obnoxious features, and had introduced a number
of distortions in the Constitution. It was an attempt to institutionalise
emergency in the country forever. Their was wide spread resentment
regarding these amendments. The 43 rd and 44 th amendments were made to
undo the ill effects of the 42 nd Amendment.
The most redeeming feature of the 44 th Amendment was ensuring that
fundamental rights were not restricted or taken away by a transient majority
in Parliament. Right to property was made an ordinary legal right, article 352
was amended so that it was not used for personal or partisan ends. Articles
20 and 21 were declared inviolate even in times of emergency and that the
basic features of the constitution were not to be tampered with under the
guise of constitutional amendment.
Harmonizing democracy with socialism
The prime purpose of the Constitution is to harmonise democracy with

socialism. Democratic socialism aims to end poverty, ignorance, disease and
inequality of opportunity. The preamble, Part III and Part IV of the
Constitution must, therefore, be harmoniously construed. The main
objectives of the party forming the government and the party in opposition
are substantially the same. They should, therefore, sit together and retain
those original features as well as the amendments in the Constitution which
implement the objectives in the Preamble and Part IV of the Constitution
through the means contained in Part III of the Constitution. Perhaps the
only "means" contained in Part III which conflicts with the implementation
82. See Seervai, II Constitutional Law ofIndia, 2nd ed., 1975-76.

of the "end" contained in Part IV of the Constitution was the undue

emphasis on protection of property and business which stands amended
after the act could amend. The then Prime Minister Morarji Desai had taken
a balanced stand on human rights in an interview which he had given to the
TimeP He stated as follows:
Fundamental rights should never be touched, whether there is an
emergency or not. They must be maintained as stated under the
Constitution. But we want to remove property rights from the
Constitution. When property rights are mixed with personal
liberty and freedom of speech, there is a t e m p t a t i o n for
G o v e r n m e n t to attack fundamental rights in the name of
property rights. We will remove the property right from the
fundamental rights but we will make it a legal right, assessable
and judged by the Court. We do not want to carry out land
reform in a dictatorial manner. Why should it not see the
scrutiny of the Court?
Morarji's stand is vindicated by the fact that right to property, as
mentioned earlier, is no more a fundamental right. Articles 31A, 31B, 31C
dealing w i t h p r o p e r t y rights although included in the chapter on
fundamental rights, but their effect is to impose drastic conditions on the
right to property. The purpose of these three provisions is to confer
immunity on various types of law curtailing property rights. Article 300 A
was enacted to provide protection on private property. As envisioned by
Morarji, now, it is a legal right, assessable and judged by the court.
Suggested readings
1. A.V. Dicey, Introduction to the study of Law of the Constitution, 8 th ed.,
Maimillan, London, 1951.
2. Alan Gledhill, Fundamental Rights in India, Stevens, London, 1956.
3. B. Shiva Rao, The Framing ofIndia's Constitution. Universal Law Pub. Co.,
Delhi, 2004.
4. D. D. Basu, Commentary on the Constitution of India, 7 th ed., Kamal Law
House, Culcutta, 1997.
5. H. M. Seervai, Constitutional Law of India, 14th ed., Universal Law Pub.
Co., New Delhi, 2005.
6. H. M. Seervai, 77?e Emergency, Future Safeguards and the Habeas Corpus Case,
Tripathi, Bombay, 1978.
7. Joseph Minattur, Freedom of the Press in India, Martinus Mijhoft, Hague,
1961.
8. Lord Lloyd of Hampstead, Introduction to Jurisprudence.
9. P. B. Mukharji, Civil Liberties, Tripathi, Bombay, 1968.
10. V. S. Deshpande, Judicial Review of Legislation, Eastern Book Co.,
Lucknow, 1975.
11. Constituent Assembly Debates.
83. Time, 4 April 1977, p. 13.

Constitutional Law - I

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Constitutional Law - I

Uploaded by

Copyright:

Available Formats

CONSTITUTIONAL LAW-1

(POLITICAL AND CIVIL RIGHTS)

Formerly Chief Justice, High Court of Delhi.

Following the Universal Declaration of H u m a n Rights of the United

Parts III and IV of the Constitution form one whole

residence, property 1 and business guaranteed by clause (1) of article 19 are

Avoidable conflict between the two

3. The same view is expressed by J. P. Warner, Advocate-General, Court of Justice of

4. (1951) SCR 525.

Equality of opportunity versus equality of results

The controversy between equality of opportunity and equality of status or

12. John Rawls, A Theory of Justice, 1972, p. 60.

arouse racial antagonism, and the general rule that judgment

Harmonizing Parts III and IV

The new spirit of harmonious interpretation was reflected in the decisions

14. The Atlantic, November 1977, p. 41 at 49 and 54.

state to articles 37 and 47 of the Constitution made no impression on the

18. (1951) SCR 682.

rights lay down the means by which that goals was to be

Inter se evaluation of fundamental rights

32. A.K. Gopalanv. State ofMadras (1950) SCR 88.

safeguarded against arbitrary inroads by the legislature?33 Fortunately, the

Categories of freedom not limited

There are two possible approaches to the interpretation of the Constitution

33. Setalvad, My Life, Law and Other Things, 1970, p. 157.

A. K. Gopalan v. State of Madras^ refused to extend the right to personal

35. (1950) SCR 88.

39. H.P.BulmerLtdv.J.BollingerS.A. (1974) Ch. 401, 426 (CA).

Expansion of 'personal liberty'

44. (1960) SCR 887 at 914.

(2) Articles 21 and 22 constitute a self-contained code,

45. (1966) 1 SCR 782.

Strengthening 'Personal Liberty'

A continuous trend is discernible in the Supreme Court decisions not only

48. Smt. Maneka Gandhi v. Union ofIndia (1978) 1 SCC 248.

decision of the majority in A. K. Gopalan's case52 but also to strengthen the

52. (1950) SCR 88.

Though in R. C. Cooper's60 case the majority of the eleven-judge Bench was

57. (1973) 1 SCC 856.

Based on election by adult suffrage

In addition to the rights contained in Parts III and IV of the Constitution,

62. See V.S. Deshpznde, Judicial Review ofLegislation, pp. 51-57.

economic and political-is essential for the functioning of economic

Potential threats to these rights

Unlike certain provisions in the Federal Constitutions of the United States

65. (1967) 2 SCR 762.

66. AIR 1975 SC 2299.

could not be extended to the destruction of the Constitution. They held,

Justification of the new doctrine

The new doctrine propounded by the majority of the thirteen-judge Bench

concentration of wealth and means of production in the hands of the few to

decision and the inviolability of the right to property which it propounded.

68. (1967) 2 SCR 762.

provisions of Part IV of the Constitution. The economic welfare of the

Emergence of the doctrine of basic structure or features of the

When the validity of article 31 C was attacked before the thirteen-judge

contained in sub-clauses (a) to (g) of article 19 (1) are subject is narrower

could not be extended to the destruction of the Constitution. They held,

Justification of the new doctrine

The new doctrine propounded by the majority of the thirteen-judge Bench

The meaning of law and judicial function

75. 16 The Indian Advocate, 1976, pp. 21-22.

(2) The rule of recognition is accepted by the officials of the system as a