Constitutional Law-II 2011

CONSTITUTIONAL LAW- II 2011

FINAL DRAFT

HIS HOLINESS KESAVANANDA BHARATI SRIPADAGALVARU V. STATE OF KERALA

A.I.R 1973 SC 1461

On behalf of the petitioners

SUBMITTED TO : MR. Kumar Kartikeya

SUBMITTED BY : NEHA TRIPATHI(982041)

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Table of Contents

TABLE OF CONTENTS Table of Authorities...4 Facts5 Issues..6 Arguments Advanced.6-12 Conclusion.12-18

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Table of Authorities CasesA. K. Gopalan v. State of Madras(1950)7 Sri Sankari Prasad Singh Deo v. Union of India(1951)....10 Sajjan Singh v. State of Rajasthan(1965)8 I.C.Golak Nath v. State of Punjab(1967)...15 Marbury v. Madison(1803).7 I.R.Coelho v. State of Tamil Nadu(2007)......18 Rajasthan State Electricity Board v. Mohanlal and Other(1967).8 Bribery Commission v. Ranasinghe(1965)..9 McCawley v. The King(1920).........9 Madhav Rao Scindia v. Union of India(1971)9 In re Delhi Laws(1951)......12 In Re: The Berubari Union and Exchange of Enclaves Reference Under Article 143(1) of The Constitution of India(1960)12

Other AuthoritiesConstituent Assembly Debates,Vol III and Vol IX10,11

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FACTS
The petitioner filed a writ petition on March 21, 1970 under Article 32 of the Constitution for enforcement of his fundamental rights under Articles 25, 26, 14, 19(1)(f) and 31 of the Constitution. He prayed that the provisions of the Kerala Land Reforms Act, as amended by the Kerala Land Reforms (Amendment) Act 1969 be declared unconstitutional, ultra vires and void. He further prayed for an appropriate writ or order to issue during the pendency of the petition. The Supreme Court issued rule nisi on March 25, 1970.During the pendency of the writ petition, the Kerala Land Reforms (Amendment) Act 1971 was passed which received the assent of the President on August 7, 1971. The petitioner filed an application for permission to urge additional grounds and to impugn the Constitutional validity of the Kerala Land Reforms (Amendment) Act 1971. In the meantime, the Supreme Court by its judgment dated April 26, 1971 in Kunjukutty Sahib v. State of Kerala [1972] S.C.C. 364 (Civil Appeals Nos. 143, 203-242, 274 & 309 of 1971). Judgment dated April 26, 1971 upheld the majority judgment of the Kerala High Court in V.N. Narayanan Nair v. State of Kerala AIR1971Ker98 whereby certain, sections of the Act were struck down.The Constitution (Twenty-fifth Amendment) Act came into force on November 5, 1971, the Constitution (Twenty-fifth Amendment) Act came into force on April 20, 1972 and the Constitution (Twenty-ninth Amendment) Act came into force on June 9, 1972. The effect of the Twenty-ninth Amendment of the Constitution was that it inserted the following Acts in the Ninth Schedule to the Constitution: y y The Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 of 1969). The Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of 1971).

The petitioner then moved an application for urging additional grounds and for amendment of the writ petition in order to challenge the above Constitutional amendments. The Court accepted the appeal and referred the matter to a larger constitutional bench.

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Issues :
The two broad issues which would be dealt with in the draft relates to y y Construction of Article 13 as it stood before 24th Amendment Validity of the 9th Schedule

Arguments Advanced :
A. Construction of Article 13 as it stood before 24th Amendment i. Constitutional amendment whether under Article 368 or otherwise, was law within Article 13(2) and was void to the extent it contravened Fundamental Rights; ii. Article 368 did not prevail over or override Article 13

1. It is a misconceived argument that Art 13(1) and (2) is redundant and, therefore, the question whether Parliament can abridge Fundamental right by constitutional amendment should be decided without reference to Art 13(2). The observations of Kania,C.J. in A. K. Gopalan v. State of Madras1 (same has been asserted by Marshall, C.J. in Marbury v. Madinson2 the fact that there is a written Constitution means there is the power of judicial review with the Courts) "... the inclusion of article 13 (1) and (2) in the Constitution appears to be a matter of abundant caution. Even in their absence, if any of the fundamental rights was infringed by any legislative enactment, the Court has always the power to declare the enactment, to the extent it transgresses the limits invalid", has been stated by Hidayatullah, J. in Sajjan Singh v. State of Rajasthan3 as not clear in its meaning, to explain the same he said

A.I.R 1950 SC 88 at p. 100 1 Cranch 137, 5 U.S. 137, 1803 WL 893 (U.S.Dist.Col.), 2 L.Ed. 60

A.I.R. 1965 SC 845,para 44 at p. 861

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To hold that Art.13 is framed merely by way of abundant caution, and serves no additional or intrinsic function of its own, might, by analogy persuade us to say the same of Art. 32(1) because this Court would do its duty under Art.32(2) even in the absence of the guarantee. Instead of being redundant it serves the most useful purpose of dealing clearly and comprehensively with the four dimensions of the bar it imposesy y y y the authorities against whom the bar is imposed the category of law to which it applies the law in point of time which it covers the effect of the bar

The four aspects are dealt by Article 13 as follows:  The bar imposed is against the State, i.e., totality of all forces of the State including statutory corporations and autonomous authorities [See Rajasthan State Electricity Board v. Mohanlal & others4]  All categories of law are covered by the bar from the highest ( constitutional amendments) to the humblest (bye-laws); and all executive orders and notifications  All laws in force under Article 372 and all laws to be brought into force at any future date are brought within the scope of the bar  The effect is to render the law void. 2. The preamble makes it clear that the object of the Constitution is to secure the basic human freedoms, and this security or guarantee would be meaningless if the legislature against whom the guarantee operate is itself at liberty to abrogate the guarantee. 3. The decisions of the Privy Council in McCawley v. The King5, and The Bribery Commissioner v. Ranasinghe6, established that constitutional amendment is a law, whether it is a sovereign Legislature under an uncontrolled Constitution (legislature can amend by law-making procedure any part of the Constitution as if it were a statute).

(1967) 3 SCR 377, p. 385 1920 AC 691 6 1965 AC 172

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4. The forms of oath in the Third Schedule refer to Constitution as by law established. These words postulates That the Constitution itself was originally established by law  That every amendment thereto has likewise to be established by law in order that it may take effect. This necessarily involves and implies that every Amending Act under Article 368 is a law. 5. Art 13(1) covers Constitutional Law : The Privy Purse Case Madhav Rao Scindia v. Union of India7 establishes that the Covenants and the Merger Agreements entered into by the rulers with the Dominion of India were Constitutional law; in fact they have been called in the aforesaid case Constitutions in little, so Art 13(2) must also cover Constitutional Law and as amendments are part of Constitutional Law so law under Art 13(3) must include Constitutional Amendment. 6. The argument that the word law in Article 13(2) excludes constitutional law or constitutional amendment, is inconsistent with the scheme of the Constitution. The Parliament has power under Article 4 and 169, and Para 7 of Schedule V and Para 21 of Schedule VI, to make amendments to the Constitution by a bare majority and without following the procedure laid down in Article 368. If the word law in Article 13(2) does not cover constitutional amendment ex hypothesi it would not cover constitutional amendments made under the aforesaid provisions of the Constitution by a bare majority. The consequences of this view are so startling as to be patently unacceptable:  If Article 13(2) does not operate as a bar, then under Article 4 read with Article 2 or 3 Parliament would have the power to create new state and amend the fourth schedule so as to give the new states no representation which is indisputably unfair and which denies to the inhabitants of that State equality before the law as compared to the inhabitants of other States. The Indian Constitution is a controlled Constitution. To say that under a controlled Constitution a law prohibited by constitutional limitations can yet be passed as a constitutional amendment
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(1971) 3 SCR 9

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because a particular political dispensation, which has a brute majority to do so, is a contradiction in terms. 7. As stated by the Patanjali Sastri, J. in Sri Sankari Prasad Singh Deo v. Union of India8 and State of Bihar Although "law" must ordinarily include constitutional law So, any Amendment to the Constitution which is done through Amendment Act must also be law because amendment as stated above becomes the part of the Constitutional Law and thereby any amendment to the Constitution must be subject to Art 13(3). The proceedings before the Constituent Assembly support the Petitioners viewpoint:  On April 29, 1947, an interim report on Fundamental Right was placed before the Constituent Assembly and there was a debate on that interim report (See Constituent Assembly Debates9, Vol. III, pp. 399 to 436). On April 29, 1947, Shri K. Santhanam moved an amendment in Clause 2 which corresponded to the present Article 13 as follows: I move that in Clause 2 for the words nor shall the Union or any unit make any law taking away or abridging any such right, the following be substituted: Nor shall any such right be taken away or abridged except by an amendment of the Constitution10 The only reason is that if the clause stands as it is then even by an amendment of the Constitution we shall not be able to change any of these rights if found unsatisfactory or inconvenient. In some Constitutions they have provided that some parts of the Constitution may be changed by future constitutional amendment and some other parts may not be changed. In order to avoid such doubts I move such an amendment.

A.I.R. 1951 SC 458, para 13 at p. 463 See Constituent Assembly Debates, Vol. III, pp. 399 to 436 10 Ibid at p. 416

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In the draft prepared by the Constitutional Advisor in October 1947, Clause 9(2) corresponding to the present Article 13(2) was so worded as to exclude constitutional amendments from being rendered void under that article: (2) Nothing in this Constitution shall be taken to empower the State to make any law which curtails or takes away or which has the effect of curtailing or taking away any of the rights conferred by Chapter II of this Part except by way of amendment of this Constitution and any law made in contravention of this sub-section shall, to the extent of the contravention, be void. But the Drafting Committee omitted the words excluding constitutional amendment, and in the draft Constitution as settled by the Drafting Committee, constitutional amendments were not excluded from the bar of Clause 8(2) corresponding to the present Article 13(2).  Pt. Jawaharlal Nehru referred to Fundamental Rights as something that you want to make permanent in the Constitution and Dr. Ambedkar referred to them as being excluded from the ambit of Article 36811  All the living members of the Committee of the Constituent Assembly, entrusted with task of drafting the Chapter on Fundamental Rights were unanimously of the view that they intended the Fundamental Rights to be beyond the reach of parliamentary majorities12. This clearly shows that even the Constitution makers intended to subject Constitutional Amendments to Constitutional limitations provided for in the Constitution, in other words, State shall not take away or abridge any of the fundamental rights of the people. B. Ninth Schedule itself is unconstitutional or alternatively it must be read down i.e. confined only to the property laws.  Constitution is supreme law of the land or say the paramount law, all other laws and the organs of the State being its creation must adhere to the Constitution. Supremacy of the Constitution has been long back asserted by Marshall, C.J. in Marbury v. Madison13 (1803) and in India it was asserted in A.K. Gopalan v.
See Constituent Assembly Debates, Vol III, pp. 465-66 and Constituent Assembly Debates, Vol. IX, p. 1661 Writ Petitions No. 135 of 1970, Vol. II, pp. 99-100 13 Supra n. 2
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State of Madras14; In re Delhi Laws15; In Re: The Berubari Union and Exchange of Enclaves Reference Under Article 143(1) of The Constitution of India 16(1960) and many other subsequent cases.  You cannot create a repository of laws which are in violation of fundamental rights and thereby validate them by providing them with the protection of the ninth schedule.  Law making power is given to the Parliament under the Constitution, Parliament is the creation of the Constitution, it cannot be over and above its creator, so Parliament which has been denied power under Art 13 (2) to take away or abridge Fundamental Right cannot create such a repository where all laws which do not adhere to the Constitution or are invalid due to the Constitutional limitations are protected and validated.  It is against the very idea of Constitutionalism, whereby a limitation is put upon the powers of a State. The very idea of introducing Fundamental Rights in the Constitution is for the purpose of putting a limitation on the powers of the State. The history dates back to the introduction of Bill of Rights in the American Constitution when the two fold separation of power, horizontal as well as vertical, which was incorporated with the view of putting a limitation on the power of a State, was found not to be an effective check. This was as a result of the experience the American Constitution drafters had, looking at the working of the British Parliament in whose hands, the people thought their civil liberties to be safe, but which started acting tyrannical and came up with discriminatory legislation.  It is unconstitutional also because the first amendment which sought to introduce ninth schedule was unnecessary.  On submission above, since law includes amendment, and an amendment, to the Constitution, will itself be subject to Art 13(2), therefore, any attempt (like the

14 15

Supra n. 1 AIR 1951 SC 332 16 A.I.R 1960 SC 845

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ninth schedule) to immunize laws from being tested on the touchstone of fundamental rights, is invalid and unconstitutional. Alternatively,  Constitutional provisions are not read in isolation, Marshall, C.J. in Marbury v. Madison
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stated it is the Constitution which we are interpreting gentlemen and not any ordinary

law, Art 31 B must be read keeping in view Art 31 A and Art 31 C. Art 31 A , Art 31 B and Art 31 C are provided for under the heading Saving of Certain Laws and Art 31 A and newly inserted Art 31 C by the 25th Amendment clearly deals with property laws (alone), so there is no reason why Art 31 B must not be confined only to the property laws. It cannot be looked upon as a generalized provision.  Article 31 B starts with without prejudice to the generality of the provisions contained in Article 31 A and with without prejudice to the generality of the provisions contained in Part III, this means there is reasonable relation or nexus between the two provisions and in relation to this Article 31 B must be read down.

Conclusion :

Don't interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties Abraham Lincoln

As early as in 1951, Patanjali, J. in Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar18 held that the Constitution (First Amendment) Act19 which sought to introduce Art 31 A, Art 31 B and the Ninth Schedule are valid and constitutional. Again in 1964 when the constitutional validity of the Constitution (Seventeenth Amendment) Act20 was challenged in

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Supra n.2 Supra n.8 19 Constitution (First Amendment) Act, 1951 20 Constitution (Seventeenth Amendment) Act,1964

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Sajjan Singh v. State of Rajasthan21, Gajendragadkar, J. speaking for the majority held the impugned Act as valid and Constitutional and abstained from looking at the correctness of the decision of the Supreme Court in Shankari Prasads case. But, Hidyatullah, J. and Mudholkar, J. found it difficult to agree with the majority in all terms and expressed their own opinion or rather say concern regarding the amending power of the Parliament. Hidyatullah, J. expressed his concern stating The Constitution gives so many assurances in Part III that it would be difficult to think that they were the play things of a special majority. To hold this would mean prima facie that the most solemn parts of our Constitution stand on the same footing as any other provision and even on a less firm ground than one on which the article mentioned in the proviso stand.
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Even, Mudholkar, J. in his judgment expressing doubts regarding the amending power stated

Before I part with this case I wish to make it clear that what I have said in this judgment is not an expression of my final opinion but only an expression of certain doubts which have assailed me regarding a question of paramount importance to the citizens of our country : to know whether the basic features of the Constitution under which we live and to which we owe allegiance are to endure for all time - or at least for the forseeable future - or whether they are no more enduring than the implemental and subordinate provisions of the Constitution.Both the judges however, clearly mentioned in the case that their opinion should not be considered to be the final opinion on the question. Subsequently, in the year 1967 when a writ petition was filed in the Supreme Court under Art.32 of the Constitution for a direction that the Constitution (First Amendment)23 Act, Constitution (Fourth Amendment) Act24, Constitution (Seventeenth Amendment) Act25, insofar as they affected their fundamental rights were unconstitutional and inoperative, in I. C. Golak Nath and Ors. v. State of Punjab26, Subba Rao, C.J. speaking for himself and four other judges (Shah, J., Sikri, J., Shelat, J. and Vaidilingam,J.) stated that
"Fundamental rights" are the modern name for what have been traditionally known as "natural

rights" and held that fundamental rights cannot be amended, but this holds to be erroneous because fundamental right cannot be equated with any other right be it legal right, moral right or for that matter human right. The basic idea for having fundamental rights in any Constitution is
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Supra n. 3 Supra n. 3 , para 47, p. 862 23 Supra n. 19 24 Constitution (Fourth Amendment) Act, 1955 25 Supra n. 20 26 A.I.R. 1967 SC 1643

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to have a limitation on the power of the State to prohibit it to act in an arbitrary and tyrannical manner. Hidayatullah, J. following the opinion expressed by him in Sajjan Singhs case delivered a separate concurring judgment, Wanchoo,J. delivered a minority judgment on behalf of

himself, Bhargava,J. and Mitter,J..Bachawat.J.and Ramaswami,J. concurred by their separate judgment with the view expressed in the leading minority judgment. It would be necessary to bring into light at this point that however the Court would have not upheld the validity of the Constitution (First Amendment) Act itself in Sankari Prasads27 case because of these reasonsy Constitution (First Amendment) Act itself was not necessary because Art 31 A, Art 31 B as well as the Ninth Schedule would have been justified in terms of the provisions of original Article 31, clauses (4) and (6) because most of the acts which were saved in 1951 by Art.31B and the Ninth Schedule were in fact expressly saved by Art. 31,clauses (4) and (6). y Harmonious Construction applied is not based on a firm ground, the Court does not states clearly at what ground and how they are harmonizing Art 13(2) and Art 368. y Court states that Although "law" must ordinarily include constitutional law but still they keep Constitutional amendment outside the purview of law as defined under Art 13(3). Moreover the words used here are very ambiguous in nature. In Sajjan Singh28 the Court refrained from considering the correctness of the decision in Sankari Prasads case29, this was where the second folly of the Court laid because the number of unconstitutional laws which were sought to be protected by the Ninth Schedule increased from 13 to 57 and this shows that Court did a mistake while upholding the validity of the Ninth Schedule in Sankari Prasad30 itself because of the number of reasons provided for above and most importantly because it was against the Constitutional scheme, this is where the argument that under a controlled Constitution a law prohibited by constitutional limitations can yet be passed as a constitutional amendment because a particular political dispensation, which has a
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Supra n. 8 Supra n. 3 29 Supra n. 8 30 Supra n. 8

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brute majority to do so, is a contradiction in terms becomes important, the laws which are protected by the Ninth Schedule are unconstitutional laws i.e. they are subject to constitutional limitations then the question which needs to be addressed here is can those laws which are prohibited due to the bar imposed in terms of Art 13(2) be allowed in form of Constitutional amendment, will this not rob the bar imposed under Art 13(2) of its very purpose and importance for which it has been provided for in the Constitution. Hidyatullah, J. in Golak Naths Case quoted lines from American Jurisprudence (Vol 12, Section 25 pp. 629 -630) An attempt by the majority to change the fundamental law in violation of self-imposed restrictions is unconstitutional and revolutionary31. It is submitted that fundamental rights can be amended because a Constitution is a living document and it needs to be endured for ages, but an amendment which is aimed at taking away or abridging fundamental rights is not appreciable because it goes against the very scheme of the Constitution and the guarantees it provides to its citizens. Golak Naths case
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further emerged as a departure from the view taken by the

Supreme Court in the earlier decisions discussed above. The Courts in the earlier two cases however stated that the fundamental rights can be amended but did not come out clearly as to the scope and extent . It is evident from the judgments delivered by Patanjali, J. and Gajendragadkar, J. that their decision was based keeping in mind the socio-economic situation prevalent in the country. This becomes important here to bring to notice that Art 19 (1) (f) provided for right to property and there was reasonable restriction provided in cases of public interest, any law made abolishing zamindari laws would have easily been justified in terms of this reasonable restriction read with Art 31(1) and Art 39 (b) and (c) but the Constitution (First Amendment) Act33 became necessary due to the interpretation of the word compensation as just compensation by the Supreme Court34, the Parliament refrained from doing so because of the economic condition of the country at that point of time and as it is well known and was also pointed out by Hidayatullah, J. in Golak Naths35 case In our country amendments so far have been made only with the object of negativing the Supreme Court decisions. These judgments of the Supreme Court where the laws were struck down because they did not provide for just
Supra n. 26 Supra n. 26 33 Supra n. 19 34 State of West Bengal v. Mrs. Bela Banerjee and Others [1954] S.C.R. 678 35 Supra n. 26
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compensation needed to be protected to achieve socio- economic development, so to nullify those decisions and to protect the future laws the Parliament came up with the Constitution (First Amendment) Act36. This is where what Ronald Dworkin said comes to the fore that the judiciary must not enter the policy question or else they will abstain from legal reasoning, determining compensation is not the work of the judiciary, it is question of policy making and therefore the work of the legislature which reflects the true will of the people. This is also a violation of separation of power. It is very suprising to note that the Supreme Court had already established the Supremacy of the Constitution in the year 1950 in A.K.Gopalan v. State of Madras37, so how can they uphold the validity of Art 31 B in Sankari Prasads38 case as it expressly excludes judicial review, thereby denudating the Supremacy of the Constitution(a written Constitution implies that a Constitution is supreme i.e. it will prevail over everything), as it has been long back stated in Marbury v. Madison39 (1803), judicial review exists by the fact that there is a written Constitution, Indian Supreme Court is very fast in importing American cases and doctrine even in cases where they are not required moreover Marbury v. Madison40 has been cited in bulk of Indian cases, then how did the Court forgot to look into this aspect of exclusion of judicial review. These fallacies in the judgment of the Supreme Court in the first case itself has a long lasting detrimental effect because it became easier for the Parliament subsequently to increase the number of legislation in the Ninth Schedule i.e. more number of laws were provided with the protection of the Ninth Schedule by just bringing a Constitutional Amendment Act. Even conceding to the fact that Supreme Court committed a mistake who stopped them to declare Ninth Schedule invalid and unconstitutional or for that matter confine it to the property laws only, this was also not done in Kesavananda Bharatis case, when the Supreme Court had substantial evidence of how was Ninth Schedule being misused as repository of all unconstitutional laws. During the time of Emergency, three laws Representation of Peoples Act, Internal Securities Act and Prevention of Publication of Objectionable Matter Act were provided with the protection of Ninth Schedule and who does not knows that it was to benefit

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Supra n. 19 Supra n. 1 38 Supra n. 8 39 Supra n. 2 40 Supra n. 2

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Mrs. Gandhi but subsequently Constitution (Forty-Fourth Amendment) Act41 omitted these laws from the Ninth Schedule , this postulates two things, firstly, any party who has a majority may use this to his/her benefit, a day may come when the Parliament may send a preventive detention law violating Art 21 to the Ninth Schedule thereby validating it, what can be a more fraud to the Constitution than this, the very illustration is scary..secondly, the Parliament is itself aware that Ninth Schedule is meant for property laws for omitting of these laws by the Constitution (FortyFourth Amendment) Act clearly points out at this. The Supreme Court however has realized the same in I. R. Coelho v. State of Tamil Nadu42 but here also they have refrained to struck down the Ninth Schedule or reduce its ambit to property laws itself. It is to address the believers in BASIC STRUCTURE DOCTRINE that the Supreme Court has declared judicial review to be the basic structure43 then what now stops the judiciary from striking down Art 31 B as well the Ninth Schedule. These are the actions of the same Supreme Court who have asserted that they are the centinal qui vive, the guardian and the protector of the Constitution, the final interpreter of the Constitution, who can cause more damage to the Constitution than the judiciary itself. However, in Keshavanada Bharati v. State of Kerala44the Court held the Constitutonal (TwentyNinth) Amendment Act45 which sought to introduce Kerala The Kerala Land Reforms (Amendment) Act, 1969 and The Kerala Land Reforms (Amendment) Act, 1971 to the Ninth Schedule as valid and constitutional.

The inclusion of amendment within definition of word law provided for in the Art 13 (3) will put a check on the Parliament so that they cannot affect the supremacy of the Constitution in any manner be it through Constitutional Amendment itself and Ninth Schedule be struck down and if not then clear pronouncement be made that it is confined to property laws itself.

Constitution (Forty-Fourth Amendment) Act, 1978 A.I.R 2007 SC 28 43 Kesavananda Bharati v. State of Kerala, A.I.R. 1973 SC 1461 44 ibid 45 Constitution (Twenty-Ninth) Amendment Act, 1972
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