The Two Judgments: Golaknath and Kesavananda Bharati*

by K. Subba Rao (Ex-Chief Justice of India)

Cite as : (1973) 2 SCC (Jour) 1

The purpose of this article is not to criticize the judgment, but to give its effect and the
changes it made in the previous constitutional position of fundamental rights.

Before considering the effect of the recent judgment, it would be convenient at this stage
to notice the scope of Golaknath judgment for two reasons: (1) there is misapprehension
as regards the scope of the said decision and (2) it would help to ascertain how far and to
what extent, the fundamental freedoms of the people, as recognised by that decision, have
been changed by the recent decision.

In that case the landlord questioned the constitutional validity of an Act passed by the
legislature taking away the fundamental rights in an estate. The Supreme Court dismissed
the petition of the landlord. That is to say, contrary to the impression created by
propaganda, the rich man lost the case. In effect it laid down the following propositions:

(1) All the amendments made up to the date the judgment was delivered, were valid.

(2) The amendment under Article 368 being law, it is subject to the provisions of Article
13 and therefore if the said law takes away or abridges the fundamental rights, except in
the manner and to the extend prescribed by Part III, it will be void.

(3) Parliament can, by the law of amendment or by ordinary law, abridge or restrict the
fundamental rights to the extent permitted in Part III.

(4) Though it cannot take away the fundamental rights, it can add to the list of
fundamental rights.

It will be seen from the said propositions that the Supreme Court, as wrongly represented,
did not hold that Parliament has no power to amend fundamental rights. On the other
hand it held that it could amend all the fundamental rights, but it could not, by the process
of amendment, take away the fundamental rights or restrict them beyond that sanctioned
by Part III. It follows that under the decision the Parliament can add to the list of
fundamental rights or restrict them reasonably in public interest. To put it in other words,
Parliament cannot by amendment take away, to use the terminology of the recent
Supreme Court Judgment, the core of the fundamental rights.

In that case, before the Supreme Court two alternative arguments were advanced: (1) As
Article 368 is subject to Article 13, any law of amendment taking away or abridging the
fundamental rights beyond that prescribed under Part III would be void, and (2) In
exercise of its power of amendment, Parliament cannot destroy the basic structure of the
Constitution, but it can only modify the provisions thereof within the framework of the
original instrument for its better effectuation; and the fundamental rights formed part of
the basic structure. The Supreme Court accepted the first argument and held that whether
the law of amendment was made in exercise of the power under Article 248 or of the
power implied in Article 368, it being 'law' would be void if it was made in contravention
of the provisions of Article 13. On the second question the Supreme Court held that there
was considerable force, but it did not express its final opinion thereon as the case before
it could be decided on the first point.

The criticism of the Golaknath Judgment ran on the following lines.

(1) It was held in the Judgment that the Parliament has no power to amend the
Constitution in order to abridge the fundamental rights.

(2) It was held therein that the power to amend the Constitution was conferred on the
Parliament under Articles 245, 248 and entry 97 of Schedule I, that Article 368 only
prescribed the procedure and therefore any law amending the Constitution taking away or
abridging the fundamental rights would be void in terms of Article 13 of the Constitution.
The said legal position, it was said, was erroneous as the power to amend was a
constituent power conferred on the Parliament under Article 368 and therefore any law
made in exercise of that power would not be hit by Article 13 which only governed laws
made in exercise of legislative power.

(3) The Judgment had so entrenched the right to property that it stood in the way of the
Parliament in improving the socio-economic conditions of the country.

The first ground of criticism has no basis. The Supreme Court of India in Golaknath
Judgment did not say that the Parliament has no power to abridge the fundamental rights.
What it said was it has no power to abridge the fundamental rights except in the manner
and to the extent prescribed in Part III of the Constitution. To put in other words, as the
amendment is "law" within the meaning of Part III of the Constitution, Parliament can
restrict the fundamental rights in accordance with the relevant provisions of Part III. In
effect it said Parliament cannot by amendment take away the core of the fundamental
rights.

The broad sweep of the power of the Parliament to restrict or limit the fundamental rights
in order to implement the directive principles will be apparent if the relevant provisions
of Part III are scrutinised. The fundamental right to equality is subject to the law of
acquisition; the right to admission to colleges and employment is subject to the law
making special provision for backward communities and scheduled castes; the right to
seven freedoms is subject to the laws of reasonable restrictions in public interest; the right
to life and personal liberty is subject to procedure prescribed by law; the right to property
is subject to the law of deprivation, acquisition and taxation; the right against exploitation
is subject to the law of imposing compulsory services for public purpose; the right to
freedom of religion is subject to laws of public order, morality and health and also the
law regulating or restricting economic, financial, political or other secular activity or
provisions for social welfare and reform; the right to manage religious affairs is subject to
the law of public order, morality; and the right to administer the property of religious
institutions is subject to law. The fundamental rights can also be modified by Parliament
by law in their application to armed forces and the forces charged with the maintenance
of the public order. They may also be restricted by Parliament by law while martial law is
in force and when the proclamation of emergency is issued during the continuance of
which, Article 19 is suspended and the President by special order can suspend other
rights. A scrutiny of the said provisions discloses that the Parliament has ample power to
make laws in public interest to restrict the said rights. To put it in other words, while the
Parliament has the necessary power to make laws restricting the said fundamental rights
reasonably in public interest, the Constitution has provided for a minimal judicial check
against the autocratic exercise of that power. This minimal check on autocracy is irksome
to men in power.

The second criticism is also not sound. It is true that five of the six judges who formed
the majority held that amendment is law within the meaning of Article 248 of the
Constitution and that Article 368 only lays down the procedure. But the sixth judge found
that power in Article 368 itself. It is immaterial whether the power to amend the
Constitution is found in one provision or other, for it is a power under the Constitution. It
is also immaterial whether the said power is called legislative power, amending power or
constituent power, so long the amendment made in exercise of the said power is law. If it
is law, Article 13 is automatically attracted. That apart, the criticism mixes up the two
concepts of amending power and constituent power. It may be that the amending power is
carved out of the constituent power. It may also be that the amending power may loosely
be described as constituent power. But the distinction between the two is real. One is a
power outside the Constitution and inherent in the people. The other is a power under the
Constitution which vests in the Parliament. Therefore, any amendment made in exercise
of the power under the Constitution is "law" within the wide meaning of the definition of
Article 13. The result of the said decision, whatever may be the reasoning thereunder,
was that the Parliament by amendment cannot take away the fundamental rights but can
abridge them within the limits laid down by Part III. It can even add ot her fundamental
rights to the list.

The third ground is an alibi for incompetence or neglect of duty. To appreciate the scope
of the judgment in the context of its effect on the right to property, it would be necessary
to know the scope of the said right as it existed before the said judgment.

The then constitutional position of the right to property may be briefly stated thus:

1. Every citizen has a fundamental right to acquire, hold and dispose of property;

2. The State can make a law imposing reasonable restrictions on the said right in public
interest. The said restrictions, under certain circumstances, may amount even to
deprivation of the said right;
3. Whether a restriction imposed by law on a fundamental right is reasonable and in
public interest or not is a justiciable issue;

4. The State can, by law, deprive a person of his property if the said law of deprivation
amounts to a reasonable restriction in public interest within the meaning of Article 19(5);

5. The State can acquire or requisition the property of a person for a public purpose after
paying compensation;

6. The adequacy of the compensation is not justiciable;

7. If the compensation fixed by law is illusory or is contrary to the principles relevant to

the fixation of compensation, it would be a fraud on power and, therefore, the validity of
such a law becomes justiciable; and

8. Laws of agrarian reform depriving or restricting the rights in an estate — the said
expression has been defined to include practically every land in a village — cannot be
questioned on the ground that they have infringed fundamental rights;

9. The State has powers to impose taxes on all types of property and incomes.

The result is that in India the State has ample power to make laws to bring about all
agrarian reforms unhampered by fundamental rights. The State had now become the final
authority in the shaping of land tenures.

Even on industrial and business front the Constitution has conferred large powers on the
State to regulate it, to prevent concentration of wealth and exploitation and even to
nationalise an industry or business in public interest.

Briefly stated, before the Golaknath judgment there was practically no fundamental right
to property in regard to an estate, which by definition includes almost all the land in rural
area. In regard to other property the State can tax it. If acquired, it has to pay
compensation to its owner on relevant principles, and which is not illusory. The slogan
which, by repetition has become a conviction in the uninformed mind that under the
Indian Constitution the property right has become entrenched, has therefore no
foundation in fact. What the judgment in effect saved were other fundamental rights such
as right to equality, seven freedoms, right against exploitation, right to life and liberty,
etc. from total extinction.

The Parliament passed the 24th Amendment with the object of overruling the effect of
Golaknath judgment and to assert the Parliament's power to take away the fundamental
rights. The 25th, 26th and 29th Amendments to the Constitution were made abridging the
fundamental rights in certain areas or in respect of certain laws. The question of the
validity of the said Amendments was the subject-matter of the recent Supreme Court
judgment in Kesavananda Bharat v. State of Kerala, (1973) 4 SCC 225. It was heard by
13 Judges. All the Judges unanimously held that the 24th Amendment is valid and in
exercise of its power conferred thereunder Parliament can amend any Article of the
Constitution including the fundamental rights. But seven of the Judges held that the
Parliament by amendment of the Constitution cannot affect the basic structure of the
Constitution. There is conflict on the question of the content of the structure and whether
and to what extent and in what circumstances the fundamental rights form part of the said
structure.

The effect of the judgment depends upon the content of the expression 'basic structure of
the Constitution'. The basic structure of the Constitution takes in, not only the institutions
but also the fundamental principles or the objectives of the Constitution. If the latter are
ignored, the former will become a body without a soul, for the structure is so designed as
to implement the philosophy of the Constitution. Indeed, the philosophy and the
institutional devices are so mixed up that if they are separated it becomes a different
Constitution. The Constitution in sonorous terms resolved to constitute India as a
Sovereign Democratic Republic and to secure to all its citizens Justice, Liberty, Equality
and Fraternity. The Preamble is not a platitude. It is the condensed version of its
philosophy. It is sought to be implemented through the provisions of the Constitution.

The basic structure of the Constitution is made up of the following concepts:

1. Republic: Republic is an independent, sovereign power or State. It is distinguished

from monarchy or oligarchy. The power vests in the people. It is a State in which the
supremacy of the people is formally acknowledged. It is a Government for the protection
of the citizens against the exercise of arbitrary and unjust power.

2. Democracy: Democracy is a form of Government where people exercise their power to

take political decisions through their representatives selected by the process of free
election. It is a representative and responsible Government. The fundamentals of
democracy are free elections and freedoms. Both go together; one cannot exist without
the other. If people are deprived of their freedoms, there cannot be free elections. The
Government so elected, in order to perpetuate itself, will supress the freedoms of the
people. So the basis of democracy is freedoms. They are preserved and protected by
conventions in highly-developed democracies, where there are no written Constitutions;
they are embodied and protected under written Constitutions in their Democracies; they
are described as Bill or rights in some Constitutions and as fundamental rights in others.
Another aspect of the concept of freedom is the equality of all men, for democratic
freedom necessarily means freedom for all people, which means the abolition of glaring
inequalities. There may be additions or restrictions or even suspension of fundamental
rights, having regard to time, place and circumstances, but without them democracy will
be a caricature or empty shell.

3. Constitutional Democracy: It is an evolved device to control the tremendous economic

and political power the executive, over the years, has gathered into its hands. The essence
of Constitutional Democracy is the existence of an effective restraint upon political and
governmental action. By definition it is a limited Government or a Government that is
subject to restraints. In Constitutional Democracy the Constitution is supreme and all the
institutions created thereunder shall function within the limits laid down therein. The
existence of rights is an important substantive check on the Government; judicial review
makes the check real, for it is the machinery to enforce the rights. Indeed, the means is a
part of the right and therefore the judicial review is itself made a fundamental right.

4. Federation: Federation is a form of Government wherein the sovereign power is

divided between the Centre and the States.

5. Welfare State: Welfare State is a compromise between capitalism and communism. It

has taken the good points of both and avoided their defects. In a Welfare State the people
have freedoms. But the said freedoms are regulated by the State through laws and the
arbitrary power of the State is controlled by judiciary. Part III and Part IV represent the
core of the Indian Constitutional philosophy. Part III enshrines the fundamental rights
and Part IV declares the directive principles. The combined effect of the two parts is
described from the following different perspectives:

(1) Political, social and economic.

(2) Physical, intellectual and spiritual.

(3) Liberty, equality and security.

(4) Human or fundamental rights and directive principles.

(5) Rights and duties of man.

(6) Means and end.

(7) Directive principles giving content to fundamental rights.

However they are described, both are fundamental for the governance of the country.
Both constitute an integrated scheme. As the social goal is an elastic one, by the
continuous interaction of the fundamental rights and the directive principles through the
medium of judicial process, the Constitution envisaged an organic growth of socio-
economic justice in a free society. Indeed, the main objective of the directive principles is
to give a practical content to the fundamental rights and enlarge their content in the
interest of society. This should be done by a process of harmonisation and not by creating
a conflict between the two, for the permissible formulae of reconciliation are wide and
elastic enough to implement the directive principles without unreasonably abridging or
taking away the fundamental rights. Both together constitute the ideals of a democratic
welfare State and indeed its conscience. The Constitution advisedly reserved the
minimum rights for the people and kept them beyond the unreasonable reach of
Parliament. Looked at from a different standpoint, they constitute the necessary checks
on the arbitrary and unconstitutional exercise of legislative and executive power.
6. Rule of Law: In the Twentieth Century rule of law has acquired a rich content. It takes
in the concepts of law and order, liberty, equality and security. It has become a potent
instrument of socio-economic justice. Judicial review is an integral part of the rule of law.

7. Judiciary: Indian judiciary has an important role to play. In the working of the
Constitution there will be conflicts between the Centre and the States, the States, the
Parliament and the legislatures, the Citizens, the State and the Citizens, the majority and
the minority interests, and parties who believe in democracy and those who do not
believe in it. There is also tendency for power to degenerate into autocracy and
despotism. The judiciary is constituted as an umpire to resolve these conflicts. The main
functions of the judiciary are (1) it is a balancing wheel of the federation; (2) it keeps
equilibrium between fundamental rights and principles of social justice; (3) it keeps all
the authorities functioning in India within bounds; (4) it controls the administrative
tribunals; (5) it decides disputes between people and between State and the people.
Judicial review is an integral part of rule of law, for without that power it is not possible
for the judiciary to discharge the said onerous duties.

8. Parliament: This is a very important institution of the Constitution. The Constitution

minutely defines its powers and limitations. Notwithstanding its wide powers it is not
supreme, for it must function within its bounds laid down in the Constitution. Broadly
stated, it must function with Constitutional competence and without infringing
fundamental rights. The said two conditions are the limitations on the power of the
Parliament.

9. Executive: The executive is responsible to the Parliament. But in developing countries

like India the executive has gathered into its hands tremendous power, practically free
from the wellknown checks that are found in developed democracies. In the absence of
strong opposition, enlightened public opinion and abiding conventions the judiciary is the
only check on the executive.

10. President: India is a republic. The President is the constitutional head of the State and
he shall function within the limits laid down by the Constitution and protect and preserve
it.

Briefly stated, the following are the concepts of the basic structure of the Constitution:

(1) Republic.

(2) Federation.

(3) Constitutional Democracy with its division and limitation of powers.

(4) Representative Government.

(5) Responsible Government through Parliamentary executive.

(6) Welfare State i.e. a State where there will be prosperity, gainful employment,
freedoms, equality and social justice. Fundamental rights and directive principles are the
fundamentals to the governance of the country and constitute the philosophy and
objectives of the Indian Democracy.

(7) The high concept of Rule of Law in which socio-economic justice and freedoms are
integrated, and judicial review is an integral part of it.

It is manifest that the Indian Constitution has definitely rejected the authoritarian form of
Government and directed the State to bring about an egalitarian social order through the
Rule of Law. It has imposed judicial check on the executive and legislative power in
order the keep them within the bounds laid down by the Constitution. Under such a
constitutional scheme the end and the means are equally important; together they form
one philosophy.

The observations made by some of the judges in regard to the basic structure or the basic
or fundamental features of the Indian Constitution will, to some extent, help to clarify the
position. Chief Justice Sikri said on page 366 (paras 292 and 293) that:

"The basic structure may be said to consist of the following features —

(1) Supremacy of the Constitution,

(2) Republican and Democratic form of Government;

(3) Secular character of the Constitution;

(4) Separation of powers between the legislature, the executive and the judiciary;

(5) Federal character of the Constitution.

The above structure is built on the basic foundation i.e. dignity and the freedoms of the
individual. This is of supreme importance. This cannot by any form of amendment be
destroyed."

According to the Chief Justice the freedoms of the individual are the foundation of the
structure itself.

Shelat and Grover, JJ., speak of the structure on page 454 (para 582) thus:

"The basic structure of the Constitution is not a vague concept — The following can be
regarded as the basic elements of the Constitutional structure. (These cannot be
catalogued but can only be illustrated):

(1) The Supremacy of the Constitution;

(2) The Republican and Democratic form of Government and Sovereignty of the country.

(3) Secular and federal character of the Constitution.

(4) Demarcation of power between the legislature, the Executive and the Judiciary.

(5) The dignity of the individual secured by the various freedoms and basic rights in Part
III and the mandate to build a welfare State contained in Part IV.

(6) The unity and the integrity of the nation."

The learned Judges treat the fundamental rights and directive principles as part of the
basic structure of the Constitution.

Hegde and Mukherjee, JJ., enumerate the basic features thus on page 486 (para 666):

"On a careful consideration of the various aspects of the case, we are convinced that
Parliament has no power to abrogate or emasculate the basic elements or fundamental
features of the Constitution such as sovereignty of India, the democratic character of our
polity, the unity of the country, the essential features of the individual freedoms secured
to the citizens. Nor has the Parliament power to revoke the mandate to build a Welfare
State and egalitarian Society. These limitations are only illustrative and not exhaustive."

Earlier they said,

"When we speak of the 'abrogation' or 'repeal' of the Constitution we do not refer to any
form but to substance. If one or more basic features of the Constitution are taken away to
that extent the Constitution is abrogated or repealed. If all the basic features of the
Constitution are repealed and some other provisions inconsistent with those features are
incorporated, it cannot still remain the Constitution referred to in Article 368. The
personality of the Constitution must remain unchanged." (page 481, para 651).

Mr Justice Ray, who accepted the unrestricted power of the Parliament to repeal every
part of the Constitution, had to concede that the amendment should leave "an organic
instrument which provides for the making, interpretation and implementation of law"
(page 557, para 917-A). To put in it other words, the Parliament by amendment,
according to the learned Judge, can take away every one of the provisions of the
Constitution provided it keeps a bare mechanism of Government. Perhaps the learned
Judge's definition of 'amendment' would enable the Parliament to take away all the
provisions of the Constitution except 53(1), with an additional section providing that the
President or some other dignitary shall be the President for life, with a power to nominate
his successor. For Section 53, so amended, leaves a machine for the governance. The
President's word would be law, it would be interpreted and implemented by his
subordinates. In this view, a Parliament elected for five years on a minority vote, if it gets
two-thirds majority can rewrite the Constitution and change democracy into a totalitarian
form of Government, depriving its people of all their freedoms. But, the majority of the
learned Judges did not agree with this view.

Jaganmohan Reddy on pp. 637-638 (para 1159) dealt with the subject of basic or
essential features of the structure of the Constitution. He observed:

"The elements and the basic structure are indicated in the preamble and translated in the
various provisions of the Constitution. The edifice of our Constitution is built upon and
stands on several props, remove any of them, the Constitution collapses. These are: (1)
Sovereign Democratic Republic; (2) Justice — social, economic and political; (3) Liberty
of thought, expression, belief, faith and worship; (4) Equality of status and opportunity.
Each one of these is important and collectively they ensure a way of life to the people of
India which the Constitution guarantees. To withdraw any of the above elements, the
structure will not survive and it will not be the same Constitution, or this Constitution,
nor can it maintain its identity if something quite different is substituted in its place,
which the sovereign will of the people alone can do. . . . What then are the essential
features or the basic elements comprising the structure of our Constitution need not be
considered in detail as that will fall for consideration in any concrete case, where they are
said to have been abrogated and made non-existent. The fact that a complete list of these
essential elements constituting the basic structure are not enumerated is no ground for
denying that these exists . . . . A sovereign democratic republic, Parliamentary
democracy, the three organs of the State, certainly in my view, constitute the basic
structure. But do the fundamental rights in Part III and the directive principles in Part IV
constitute essential elements of our basic structure of Constitution in that the Constitution
will be a Constitution without them? In other words, if Parts III and IV or either of them
are totally abrogated, can it be said that the structure of the Constitution as an organic
instrument establishing sovereign democratic republic as envisaged in the preamble
remains the same? In the sense as I understand the sovereign democratic republic, it
cannot; without either fundamental rights or directive principles, what can such a
Government be if it does not enforce political, economic or social justice?"

The learned Judge, though he has not given an exhaustive list of the essential features of
the structure of the Constitution, has clearly expressed his views on certain aspects,
particularly in regard to the fundamental rights and directive principles. The core of the
said rights and principles constitutes the Indian Constitutional philosophy and permeate
the entire structure of the Constitution and therefore forms part of its structure.

Palekar, J., on page 699 (para 1281), has given some of the essential features of the
Constitution that were enumerated by the Advocate for the Petitioners. The learned
Judge, after noticing the wide sweep of the argument, stated that in the ultimate result the
case really boiled down to whether the core of the fundamental right to property had been
damaged or destroyed principally by the 25th Amendment and if so whether there were
any implied or inherent limitations on the amending power which prohibited its
amendment (para 1286). He observed that the several essential features listed by Shri
Palkhivala, did not come into the picture in the present case and that since it was not the
practice of the court to decide the questions which were not of immediate controversy, it
would not be proper to pronounce whether this or that particularly so-called essential
features could or could not be damaged or destroyed by amendment. Having said that,
instead of confining his observations to the right to property, he said that, since it was
argued on behalf of the State that there could be no limitations on the amending power
except those expressly provided in the Constitution and since that would affect the
decision on the validity of the 25th Amendment, he would have to deal briefly with the
question of implied and inherent limitations with special reference to fundamental rights
including property rights (para 1286). Then the learned Judge after considering the
question at some length again stated (para 1299):

"Having regard to the rules of construction relating to power referred to, we have to see if
either a provision relating to fundamental rights to property or any related provisions of
the Constitution contain words of prohibition or limitation on the amending power."

On that basis he proceeds to consider the question and he comes to the following
conclusion (page 720, para 1318):

"On a consideration, therefore, of the nature of the amending power, the unqualified
manner in which it is given in Article 368 of the Constitution it is impossible to imply
any limitations on the power to amend rights. Since there are no limitations expressed or
implied on the amending power it must be conceded that all the Amendments in question
here must be deemed to be valid."

Though his finding applies to all fundamental rights, because of his earlier observations,
there is some hope that in future he will consider the question more deeply if and when
other fundamental rights such as the seven freedoms, right to equality, etc., are taken
away by amendment, and come to a definite conclusion whether they form the basic
structure of the Constitution and could not be taken away. But for the present it may be
stated that the tentative view of Palekar, J., is that all the fundamental rights could be
taken away by amendment of the Constitution, whether they form part of the structure or
not.

As the judgment of Khanna, J., appears to tilt the balance on the one side or the other, it
is necessary to consider it in some detail. In regard to the scope of the amending power,
the learned Judge said at page 768 (para 1430):

"In my opinion, the minimum required is that which relates to the basic structure or
framework of the Constitution. If the basic structure is retained, the old Constitution
would be considered to continue even though other provisions have undergone change.
On the contrary, if the basic structure is changed, mere retention of some articles of the
existing Constitution would not warrant a conclusion that the existing Constitution
continues or survives."

Dealing with the power to amend fundamental rights the learned Judge says at page 769
(para 1434):
"Subject to the retention of the basic structure or framework of the Constitution, I have
no doubt that the power of amendment is plenary and would include within itself the
power to add, alter or repeal the various Articles including those relating to fundamental
rights."

The learned Judge further made it clear that:

"It would be impermissible to differentiate between the scope and width of powers of
amendment when it deals with fundamental rights and the scope and width of that power
when it deals with provisions not connected with fundamental rights." (para 1435)

The learned Judge negatived the contention against amendability of the fundamental
rights on the grounds of "essential features", "core", "natural rights", "human rights" and
"preamble" and concluded his discussion at page 806 (para 1508) thus:

"Fundamental rights contained in Part III of the Constitution can, in my opinion, be

abridged or taken away in compliance with the procedure prescribed in Article 368, as
long as the basic structure of the Constitution remains unaffected."

This conclusion has two aspects: (1) Fundamental rights can be taken away or abridged
by amendment of the Constitution; (2) If the amendment of the fundamental rights taking
away or abridging singly or wholly or by various combinations affects the basic structure
of the Constitution it would be void. The question, therefore, is what is in the opinion of
the Judge the basic structure of the Constitution and in what circumstances the
amendment of the fundamental rights affects the basic structure.

To ascertain the views of the learned Judge on this question, it would be useful to notice
his approach to the problem of the amendment of the Constitution. He said at pp. 770 and
771 (para 1437):

"(A) Constitution provides for the framework of the different organs of the State, namely,
the executive, the legislature and the judiciary. A Constitution also reflects the hopes and
aspirations of a people. Besides laying down the norms for the functioning of different
organs, a Constitution encompasses within itself the broad indications as to how the
nation is to march forward in times to come . . . . A Constitution must of necessity be the
vehicle of the life of a nation . . . it is not a document for fastidious dialectics, but the
means for ordering the life of a people."

From these observations it is clear that Parts III and IV of the Constitution, which give
the broad indications how the nation is to "march forward" and "a means of ordering the
life of people" are important and integral parts of the Constitution. The Constitutional
means to the "forward march" of the nation's life is certainly reflected in Parts III and IV
of the Constitution. The scheme for the new social order cannot but be a part of the
structure of the Constitution.
In dealing with this aspect the learned Judge, while recognising that some Articles singly
or in combination may form the basic structure, did not finally decide on all aspects. His
analysis may be grouped under three heads: (1) Articles which do not form the basic
structure; (2) those which form the basic structure; and (3) those left for future decisions.
Under the first group, he puts the right to property. He gives, three reasons for it at page
794 (para 1483): (1) The right to property is a matter of detail; (2) the said right changes
from time to time and (3) the approach of the framers of the Constitution was to
subordinate the individual's right to property to the social good. Under the second group
the learned Judge said that the following amendments, though the list is not exhaustive,
affect the basic structure of the Constitution: (1) changing the democratic Government
into dictatorship or hereditary monarchy; (2) abolishing the Lok Sabha or Rajya Sabha;
(3) changing the secular character of the State, according to which the State shall not
discriminate against any citizen on the ground of religion. This indicates that in the
learned Judge's view taking away one or two fundamental rights might affect the
structure; (4) the amendment which "excludes judicial review regarding the validity of a
statute, which might be enacted by the legislature in the future in respect of a specified
subject, but also excludes judicial review for finding whether a statute enacted by the
legislature is in respect of a subject for which judicial review has been excluded". (para
1533) The said list is not exhaustive but only illustrative. Under the third group the
learned Judge posed many questions and left them unanswered. On the question of the
abuse of emergency powers under Article 352, the extension of the life of the Parliament
under Article 83, the amendment of the Constitution under Article 368, so as to make it
unamendable, he declined to give a definite answer, though he expressed the hope that
such amendments would not be made.

Briefly stated, according to the learned Judge, barring the right to property, an
amendment of other fundamental rights, singly, wholly or in combination with other
provisions of the Constitution may under certain circumstances affect the basic structure
of the Constitution. An amendment may repeal Part IV or Part III or both Part III and IV;
it may keep all the fundamental rights but repeal Article 32; it may repeal Article 19
which embodies the seven freedoms, without which democracy cannot survive; it may
remove the doctrine of equality which is the cherished value of democracy; it may repeal
the provisions in Part III which preserve the doctrine of the tolerance of religious
diversity; it may repeal the provisions which protect the exploited people and minorities.
All the amendments and such others will have to be scrutinised in the view of the learned
Judge on the touchstone of the "basic structure" of the Constitution.

Even in regard to the right to property it would still be an open question whether, if the
amendment takes away generally without confining it to a particular subject not only
Article 31 and 19(1)(f) but also other rights in Article 14 and other clauses of Article
19(1), it would not affect the basic structure of the Constitution. Suppose the effect of an
amendment is that not only the right to property but also other rights of the people such
as freedom of speech, association, equality, judicial review to the extent directly,
indirectly or remotely connected with the right to property are repealed, can it be said that
such an amendment does not affect the democratic structure of the Constitution. No doubt
the learned Judge held that the first part of Article 31-C was good but he held so because
that part related only to a particular subject-matter covered by Article 39(b) and (c) and
that as Part II of 31-C was held void, the judicial review in respect of the laws mentioned
in Part I was retained. It may therefore be said that Khanna, J., agreed with the other six
Judges, who preserved the freedoms except in regard to right to property, though his
conclusion was based not on principle of "core" but on that of "basic structure".

Mathew, J., on this aspect has to say this: On page 880 (para 1714) dealing with
fundamental rights the learned Judge observed:

"I think these are rights which inher in human beings, because they are human beings —
whether you call them natural rights or by some other appellation is immaterial. As the
preamble indicates, it was to secure the basic human rights like liberty and equality, that
the people gave unto themselves the Constitution and these basic rights are essential
features of the Constitution; the Constitution was also enacted by the people to secure
justice, political, social and economic. Therefore, the moral rights embodied in Part IV of
the Constitution are equally essential features of it, the only difference being that the
moral rights embodied in Part IV are not specifically enforceable as against the State by a
citizen in a court of law in case the State fails to implement the duty. But they are
fundamental to the governance of the country, and all organs of the State including the
judiciary are bound to enforce those directives."

Further he proceeded to state that:

"the responsibility of the Parliament in taking away or abridging a fundamental right is an

awesome one and whenever a question of Constitutional amendment which will have the
above effect comes up for consideration, Parliament must be aware that they are
guardians of rights and principles of the people in greater degree than courts, as the courts
go into the validity of the amendment on any substantive ground."

Adverting particularly to the right to property the learned Judge says at page 884 (paras
1725 & 1727):

"The most that we can claim, as general principle applicable to all the stages of social
development, is that without some property or capacity for acquiring property, there can
be no individual liberty, and that without some liberty there can be no proper
development of character. In short, the concept of property is not an arbitrary ideal but is
founded on man's natural impulse to extend his own personality. In the long run, a man
cannot exist, cannot make good his right to marriage or found a family unless he is
entitled to ownership through the acquisition of property."

He came to the following conclusion at page 885 (para 1731):

"The framers of our Constitution made the right to acquire, hold and dispose of property
a fundamental right thinking that every citizen in this country would have an opportunity
to come by a modicum of that right."
No doubt the learned Judge dealt with the three different types of property, the different
stages of the development of the right to property and also the liability of the said right
being controlled or modified by law. He also accepted the argument that Parliament
through the amending process can take away the right. But what I am emphasising now is
that even Mathew, J., who conceded the unrestricted power to Parliament to take away
the fundamental rights by the amending process holds that the fundamental rights
including right to property, subject to the laws of social control along with the directive
principles are the essential features of the Constitution. The expression "essential
features" is not different from the expression "basic structure".

Beg., J., though held that Parliament, through the amending process, could take away all
the provisions of the Constitution without abrogating the Constitution or creating a
vacuum, said about the status of fundamental rights in the Indian Constitution in the
following words at page 901 (paras 1800 and 1801):

"The voice of the people speaking through the Constituent Assembly constituted a new
'Republic' which was both 'Sovereign and Democratic'. It no doubt sought to secure the
noble objectives laid down in the preamble primarily through both fundamental rights
found in Part III and the Directive Principles of the State Policy found in Part IV of the
Constitution — If any distinction between Fundamental Rights and Directive Principles
on the basis of the difference between ends or means were really to be attempted, it
would be more proper, in my opinion, to view fundamental rights as the ends of the
endeavours of the Indian people for which Directive Principles provided the guidelines. It
would be still better to view both Fundamental rights and the 'fundamental' Directive
Principles as guidelines."

He proceeded to describe graphically the position of fundamental rights in the

Constitution thus (p. 902, para 1802):

"Perhaps, the best way of describing the relationship between the two would be to look
upon the directive principles as laying down the path of the country's progress towards
allied objectives and aims stated in the preamble, with fundamental rights as the limits of
that path, like the banks of the flowing river, which could be amended or mended by
displacements, replacement or curtailments or enlargements of any part according to the
needs of those who had to use the path. In other words the requirements of the path itself
are more important."

At page 909 (para 1823) the learned Judge stated the Constitutional function of the
judiciary thus:

"(It) is to see that the chosen vehicle does not leave the chartered course or path or
transgress the limits prescribed by the Constitution at a particular time. The fundamental
rights as I have said earlier may be viewed as such limits. The power of amendment, in a
Constitution such as ours, must include the power to change these limitations to suit the
needs of each age and generation."
Briefly put, the learned Judge, while conceding the plenary power of the amending
process, described the fundamental rights as the banks of a "flowing river". If the
metaphor is pursued to the logical end, it follows that just like the bunds of a river, to use
the terminology of the learned Judge, they could be amended by displacements,
replacements or curtailments or enlargements, but cannot be destroyed. To use the
phraseology of some of the learned Judges, if the core of the bund is removed the entire
river loses its direction and submerges the land on all sides. So too the destruction of the
core of the fundamental rights destroys the structure of the democratic polity. This
indicates the importance of the fundamental rights as a basic feature of the structure of
the Indian Constitution. No doubt, the learned Judge observed that there was no
distinction between the more or the less basic parts of the Constitution except in the more
difficult procedure prescribed for the amendment of some Articles, and concluded that no
parts of the Constitution were sacrosanct and beyond the reach of Article 368. The only
limitation he placed upon the amending process was that it could not abrogate the
Constitution or create a vacuum, though at the same time he said that it could be done
step by step by the bodies empowered to amend if they so desired and followed the
appropriate procedure. (Para 1836) This conclusion meant that according to the learned
Judge every provision, whether it is basic to the structure of the Constitution or not, could
be repealed.

Dwivedi, J., who gave the widest interpretation to the amending power distinguishing the
essential features from the non-essential features of the Constitution said at page 942
(paras 1930-31) thus:

"Every provision of the Constitution which may be amended only by the procedure
prescribed in Article 368 is an essential feature of the Constitution, for it is more set than
legislative laws . . . . Thus the provisions specified in the proviso to Article 368 are more
essential than the rights in Part III. It has already been shown earlier that the fundamental
rights, even though an essential feature of the Constitution, are within the sway of the
amending power in Article 368."

The learned Judge, therefore, accepted the position that the fundamental rights are
comparatively an essential feature of the Constitution, and the test of essentiality he
found in Article 368 of the Constitution.

Chandrachud, J., who also endowed Article 368 with the plenary power of amendment
said of fundamental rights thus (p. 985, para 2076):

"Fundamental rights undoubtedly occupy a unique place in the civilized societies whether
you call them 'transcendental', 'inalienable', 'inviolable' or as Lieber called 'primordial'.
There is no magic in these words for the strength and importance of these rights is
implicit in their very description of them as 'fundamental'."

On page 999 (para 2120) the learned Judge reaffirmed his earlier view thus:
"I have stated in the earlier part of my judgment that the Constitution accords a place of
pride to fundamental rights and a place of permanence to the directive principles. I stand
by what I have said, Fundamental Rights which are conferred and guaranteed by Part III
of the Constitution undoubtedly constitute the ark of the Constitution and without them a
man's reach will not exceed his grasp."

But the learned Judge held that Article 368 conferred a plenary power on the Parliament
to repeal every provision of the Constitution.

To sum up:

(1) All the Judges agreed that the 24th Amendment, amending Article 368 of the
Constitution was valid and under the amended section, all the Articles of the Constitution
including those enshrining fundamental rights could be amended.

(2) Seven of the Judges — Sikri, C.J., Shelat, Hegde, Grover, Jaganmohan Reddy,
Khanna and Mukherjea, JJ., held that the provisions, including those providing for
fundamental rights could not be amended, if they affected the basic structure of the
Constitution.

(3) Six of the said seven, excluding Khanna, J., held that the 'core' of the fundamental
rights, formed part of the basic structure of the Constitution. Four Judges — Mathew,
Beg, Dwivedi and Chandrachud, JJ., held that the fundamental rights were the basic
features of the Constitution, though they held that the said fact did not keep them beyond
the reach of the amendatory process.

(4) Khanna, J., held that the right to property was not a part of the basic structure of the
Constitution. In his view the validity of the amendment of the other fundamental rights
would depend upon the fact, whether the nature of the amendment of such a right or
rights affects the basic structure of the Constitution.

(5) Six Judges — Ray, Palekar, Mathew, Beg, Dwivedi, Chandrachud, JJ., did not accept
his limitation on the plenary power of the Parliament to amend the Constitution. But there
of them, Ray, Mathew and Beg, JJ., held that the said power could not enable the
Parliament to destroy the Constitution without retaining a bare mechanism of
Government.

The result is that the Supreme Court by majority declared that the Parliament under the
Indian Constitution is not supreme, in that it cannot change the basic structure of the
Constitution. It also declared by majority that under certain circumstances, the
amendment of the fundamental rights other than the right to property would affect the
basic structure and therefore would be void. The question whether the amendment of the
fundamental right to property would under some circumstances affect the basic structure
of the Constitution is not free from doubt; the answer depends upon the view the
Supreme Court takes hereafter of the impact of the opinion of Mathew, Beg, Dwivedi and
Chandrachud, JJ.—the fundamental rights are the basic features of the Constitution — on
the opinion of the six Judges, who held that the core of the fundamental rights is part of
the basic structure of the Constitution. One possible view is that together they form a
clear majority on the content of the basic structure; another possible view is that their
opinion should be read along with their finding that the entire Constitution, except
perhaps the bare machine of Government, could be repealed by amendment. Prima facie I
am inclined to agree with the first view, as the two questions can be separated, but as the
point is argued, final decision could be given only by the Supreme Court.

In Kshavananda Bharati case, the judgment is drawn on a larger canvass. In one sense it
went beyond the Golaknath judgment. As the Golaknath judgment was overruled, all the
previous amendments, which were held to be valid by Golaknath judgment are now open
to be reviewed, though they can be sustained on the ground that they do not affect the
basic structure of the Constitution or on the ground that they are reasonable restrictions
on the fundamental rights in public interest. Except as regards the right to property, the
practical effect of the judgment is the same as that of Golaknath judgment in regard to
fundamental rights other than the right to property. Under the Golaknath judgment, an
amendment can be supported on the basis of the laws of social control in terms of Part III,
under the present judgment on the ground that it does not affect the basic structure of the
Constitution. Indeed, the present judgment goes further and restricts the Parliament's
power to amend any other Article, if it affects the basic structure of the Constitution. In
regard to the right to property the people have practically lost that right even before
Golaknath judgment; under the present judgment according to one view the fundamental
right to property is not a part of the basic structure and therefore can be taken away by
amendment and according to another view the validity of the previous amendments and
the future ones taking away the fundamental right to property could be tested on the
touchstone of the concept of "basic structure". Be it as it may, we must accept the recent
judgment as final. I hope and trust that instead of again building up pressures around the
judgment the Supreme Court will be allowed to evolve the Constitutional law of our
country to suit the fast-changing needs of our Society in terms of Parts III and IV of the
Constitution.

The Supreme Court also considered the question of the validity of the 25th Amendment.
The 25th Amendment has made certain changes in Article 31(2) of the Constitution and
also inserted Article 31-C. It made the following changes in Article 31(2):

1. It has amended Article 31(2) in two respects

(a) It substituted the word "amount" for the word "compensation" for property acquired
or requisitioned.

(b) It has provided that the law for the purpose of acquisition or requisition shall not be
called in question on the ground that the whole or any part of the amount is to be given
otherwise than in cash.
2. It has provided that the fundamental rights to acquire, hold and dispose of property
under Article 19(1)(f) cannot be invoked in respect of any such law as is referred to in
Article 31(2).

3. It has inserted 31-C which makes the fundamental rights conferred by Articles 14, 19
and 31 inapplicable to certain categories of laws passed by Parliament or by any State
legislature.

4. It also added a proviso that a statutory declaration in the said law that it is to
implement the directive principles in Article 39(b) and (c) of the Constitution is binding
on the court.

On the question of the construction of Article 31(2) of the Constitution as it now stands
after the 25th Amendment, the majority view is clear. I shall briefly quote the views of
different judges on the subject before making my comments.

Sikri, C.J., held that the substitution of the word "amount" for "compensation" would
mean that the person whose property is acquired can no longer claim full compensation,
or just compensation, but he can still claim that the law should lay down the principles to
determine the amount which he is to get and those principles must have rational relation
to the property sought to be acquired. In this view he held that the Parliament cannot
empower the legislature to fix an arbitrary or illusory amount or an amount that virtually
amounts to confiscation and the same considerations should apply to the manner of
payment (p. 390). He also held that clause (2-B) in Article 31 which makes Article 19(1)
(f), inapplicable is not an unreasonable abridgement of rights under Article 19(1)(f), and
if the procedure for the determination of the amount is arbitrary the relevant provision of
law may be struck down under Article 14. (p. 392, para 413).

Shelat and Grover, JJ., construed the amended Article 31(2) in an attempt to rationalise it.
They observed that the court would have to be satisfied that the amount had reasonable
relationship with the value of the property acquired or requisitioned and one or more of
the relevant principles had been applied and further, the amount awarded was neither
illusory nor had it been fixed arbitrarily, nor was it such a figure that it amounted to
virtual deprivation of the right. (p. 457).

Hegde and Mukherjea, JJ., said much to the same effect on page 500 (para 707).

"If you bear in mind that the amount in question is to be made in lieu of the property
taken, then it follows that it must have a reasonable relationship with the value of the
property taken. It may not be the market value of the property taken. The market value of
the property is a result of interaction of various forces."

They concluded:

"It (court) can only go into the question whether the amount was arbitrarily fixed or
illusory or whether the principles laid down for the purpose of determining the amount
payable have reasonable relationship with the value of the property acquired or
requisitioned."

Ray, J., felt that the adequacy of the amount fixed or the principles as specified could not
be a subject-matter for judicial review. (p. 582, para 1019)

Jaganmohan Reddy, J., in dealing with the amendment to Article 31(2) observed that the
pre-existing law on the question of fixing the amount for the property acquired has not
been affected by the amendment by merely substituting the word "amount" for
"compensation". In regard to that aspect he came to the following conclusion (p. 643,
para 1166):

"Once it is satisfied that the challenge on the ground that the amount or the manner of its
payment is neither arbitrary nor illusory or where the principles upon which it was fixed
were found to bear reasonable relationship to the value of the property acquired, the
court cannot go into the question of the adequacy of the amount so fixed on the basis of
such principles."

In his view the effect of the amendment is only that the law now need not provide for
giving compensation in the sense of equivalent in value or just equivalent to the value of
the property acquired, but the amount should have reasonable relation to the value of the
property acquired. Dealing with the amendment disconnecting Article 19(1)(f) with
Article 31(2) he reads down the relevant amendment and on the application of the
principle of severability he holds that Section 2(b) of the 25th Amendment should be
restricted to the abridgement of Article 19(1)(f) and not to its abrogation (para 1168). On
that construction he concludes that the aggrieved party whose property is acquired should
have reasonable opportunity to establish his case (paras 1169-70).

Palekar, J., dealing with the amendment to Article 31(2) which substituted the word
"amount" for compensation, and while holding that the amendment was good, made the
following observations (page 721, para 1319):

"Whether a particular law fixed an amount which is illusory or otherwise a fraud on

power denying fundamental right to receive an amount specially conferred by clause (2)
will depend upon the law when made on the basis of clause (2). One cannot anticipate
any such matters and strike down an amendment which, in all conscience, does not
preclude a fair amount being fixed for payment in the circumstances of a particular
acquisition or requisition. The possibility of abusing power given under the amendment
of the Constitution is not determinative of the merit of the amendment."

From this observation it is clear that the learned Judge is inclined towards the view that if
a law of acquisition fixes an illusory amount or amounts, which is fraud on power and
thus denies the fundamental right to receive the amount, it may be liable to be set aside.
Khanna, J., held that Article 31(2), as amended, was valid but did not express any view
on the construction of the amended article for, in his view, whatever might be the
construction of the word "amount", the amendment was valid (para 1613).

Mathew, J., said that fixation of the amount or the principle for determining the amount is
a matter within the absolute discretion on Parliament and the State legislature, and the
court cannot question the fixation of that amount. He has left open the question whether a
law, fixing an amount which is illusory or which is fraud on the Constitution, can be
struck down by court (pp. 888-891).

Beg, J., agreed with the view expressed by Ray, Palekar, Mathew and Dwivedi, JJ., (para
1856).

Dwivedi, J., held that Article 31(2) is good and that if a court fixed an amount it cannot
be questioned on the ground that it is arbitrary, illusory or fraudulent (p. 953, paras 1970-
71).

Chandrachud, J., asserted the court's jurisdiction to question a law passed under the
amendment, if the power of compulsory acquisition or requisition was exercised for a
collateral purpose or it offended the principles of the Constitution or if it was in the
nature of fraud on the Constitution. He further opined that the court would have the
power to question the law if the amount fixed was illusory or the principles for
determining the amount were wholly irrelevant for fixation of the amount (pp. 1000-01).
The learned Judge observed at page 1000 (para 2123) thus:

"But to say that an amount does not bear reasonable relationship with the market value is
a different thing from saying that it bears no relationship at all, none whatsoever. In the
latter case the payment becomes illusory and may come within the ambit of permissible
challenge."

Though the learned Judge did not discuss the question fully he concluded thus (p. 1000,
para 2124):

"(T)hough it is not open to the court to question a law under Article 31(2) on the ground
that the amount fixed or determined is not adequate, courts would have the power to
question such a law, if the amount fixed thereunder is illusory; if the principles of any are
stated, for determining the question are wholly irrelevant for fixation of the amount; if the
power of compulsory acquisition or requisition are exercised for a collateral purpose; if
the law offends constitutional safeguards other than that contained in Article 19(1)(f) or if
the law is in the nature of fraud on the Constitution". He added that "if the amount is
shown to depend upon principles bearing on social good, it may not be possible to say
that the principles are irrelevant."

The Court therefore unanimously held that the 25th Amendment, insofar as it introduced
the changes in Article 31(2), is valid. But the majority of judges held, in effect, that the
amount fixed by law or the principles laid down thereunder for fixing the amount must be
reasonable and relevant to the property acquired and the amount fixed shall not be
illusory or in fraud of power (Sikri, C.J., Shelat, Hegde, Grover, Jaganmohan Reddy,
Mukherjea and Chandrachud, JJ.). Out of the remaining judges, Palekar, J., was inclined
to hold that the law would be bad if the amount fixed was illusory or in fraud of power.
Mathew, J., left open the question and Khanna, J., did not express any view on the
construction of the amended Article. Broadly stated, the doctrine of "reasonableness" is
substituted for that of "just equivalent". It is therefore clear from the said Judgment that
the majority of judges in effect held that the fixation of the amount by the Parliament can
be questioned by the court if the amount so fixed is unreasonable or illusory or if the
principles laid down are irrelevant or in fraud of power.

The fixation of compensation for a property acquired is not an exact science. The
principles evolved up to now are not a closed book. The principles can be improved or
new ones evolved having regard to the changes in the socio-economic structure of the
country. Even when the concept of "just equivalent" governed the situation Jurists could
have made a research and evolved new principles which would be "just equivalent" to the
property acquired having regard to the said changed conditions. But unfortunately
valuable time was wasted on criticising the judgments of the Supreme Court instead of
helping to implement the law laid down by the said court. "Just equivalent" does not
mean any "market value". It may represent an amount which is just recompense for the
property acquired having regard to the obligations of the owner to the Society. I had
hoped, when the Supreme Court delivered the judgment in Vajravelu case (1965) 1 SCR
614, the Jurists and the legislatures would help to evolve relevant principles in terms of
the said judgment. Instead the court's decision was used to build up pressures through
mass media and seminars. Now the Supreme Court has substituted the words "reasonable
amount" for "just equivalent". It is hoped, instead of again building up pressures on that
decision as a step to remove altogether Article 31, the men in power will appoint a high
power committee of eminent lawyers to evolve principles for evolving "reasonable
amount" for the land acquired. Otherwise there will be instability in the county because
of uncertainty and amiguity in the domain of property law. So long democracy continues
to exist in our country, so long the State has not become the owner of all property,
definiteness and certainty in law of property is essential for the stability of the State.

I shall now briefly consider the views of the various Judges on the validity of 25th
Amendment introducing Article 31-C in the Constitution.

Sikri, C.J., held that as Parliament could not under Article 368 abrogate fundamental
rights, it could not equally enable the legislatures to abrogate them and therefore the said
provision was void. He also rejected the plea that Article 31-C was an implied
amendment of Article 368 and, even if it was so, he held that it was beyond the powers of
Parliament under Article 368. (pp. 395-402)

Shelat and Grover, JJ., held that Article 31-C was bad on two counts: (1) It enabled total
abrogation of fundamental rights contained in Articles 14, 19 and 31, and (2) the power
of amendment contained in Article 368 was of a special nature which had been
exclusively conferred on the Parliament and it could be exercised only in the manner laid
down in the article and it could not be delegated to any other legislature. (page 461, para
604)

Hegde and Mukherjea, JJ., held that Article 31-C gave power to the Parliament and the
State legislatures not only to abridge but even to take away the rights guaranteed under
Articles 14, 19 and 31 by ordinary law contrary to the expressed provisions of Article 368
and therefore was void. They negatived the contention of the State that Article 31-C only
lifted the ban placed on the State legislatures and the Parliament under Articles 14, 19
and 31, on the ground that the laws permitted to be made under Article 31-C enabled the
State legislatures to take away the fundamental features of the Constitution and were also
void under Article 13 and therefore could not be equated with the Articles which only
lifted the ban and which did not take away such fundamental features of the Constitution.
The argument based on the analogy of the Article 31-A was also rejected for the reason
that though Article 31-C bore some analogy to Article 31-A, the former Article went far
beyond the permissible limits of encroachment of fundamental rights and therefore was
constitutionally void. The contention that Article 31-C merely delegated the amending
power to the legislatures was not accepted on the ground that Parliament could not create
a new power inconsistent with Article 368 of the Constitution. The argument that Article
31-C was an amendment of Article 368 was held to be untenable as the said Article did
not purport to be so. With the result that the learned Judges came to the conclusion that
Article 31-C permitted the destruction of some of the basic features of the Constitution
and consequently was void (pp. 503-509).

Ray.J., accepted all the arguments rejected by Hegde and Mukherjea, JJ., and held that
Article 31-C was good. But the learned Judge held that in order to decide whether a
statute was within Article 31-C the court might examine the nature and character of the
legislation and the matter dealt with as to whether there was nexus between the law and
the principles mentioned in Article 39(b) and (c) and that if it appeared that there was no
such nexus the said law would not be within the protective umbrella.

If there was such nexus in his view the court was precluded from questioning the validity
of any law passed in exercise of the power conferred thereunder. (pp. 591-592, paras
1056-57)

In construing Article 31-C, Jaganmohan Reddy, J., rejected the main arguments advanced
by the State. He held by the application of the doctrine of severance that the said Article
was valid. The said Article as held by him to be valid after deletion of some terms reads
thus: 'Notwithstanding anything contained in Article 13, no law giving effect to the
policy of the State towards securing the principles specified in clause (b) or (c) of Article
39 shall be deemed to be void on the ground that it abridges any of the rights conferred
by Articles 14, 19 or 31.' (para 1210).

In coming to the conclusion the learned Judge held that the Parliament by amendment
could not confer a power on the legislatures to exclude the operation of Article 14 or the
provisions of Article 19 other than Article 19(1)(f) and (g), for other clauses relate to
freedoms other than right to property. The learned Judge also held that the finality to the
statutory declaration given under Article 31-C was bad. The learned Judge came to the
conclusion that if the said words were deleted, the fundamental right to property would
not be destroyed or emasculated and therefore the remaining Article would be good. (pp.
645-665)

Mr Justice Palekar accepted all the contentions advanced by the State and held that
Article 31-C was valid. But accepting the concession made by the Union, he ruled that if
the court came to the conclusion that the declaration was merely a pretence and the real
object was discrimination or something other than the objects specified in Article 39(b)
and (c), Article 31-C would not be attracted. (pp. 724-725)

Khanna, J., struck down the second part of Article 31-C of the Constitution on the
following grounds (page 822, para 1535-A):

"(1) It gives a carte blanche to the legislature to make any law violative of Articles 19, 14
and 31 and make it immune from attack by inserting the requisite declaration. Article 31-
C taken along with the second part gives in effect the power to the legislature, including a
State legislature, to amend the Constitution.

(2) The legislature has been made the final authority to decide as to whether the law made
by it is for the objects mentioned in Article 31-C. The vice of the second part of Article
31-C lies in the fact that even if the law enacted is not for the objects mentioned in
Article 31-C, the declaration made by the legislature precludes a party from showing that
the law is not for that object and prevents the court from going into the question as to
whether the law enacted is really for that object. The exclusion by the legislature,
including a State legislature, of even that limited judicial review strikes at the basic
structure of the Constitution. The second part of Article 31-C goes beyond the
permissible limits of what constitutes amendment under Article 368."

To put it in other words, the learned Judge has said that under Article 368 the Parliament
cannot amend the Constitution so as to confer on the legislature the power to make any
law violative of fundamental rights, or a power to decide finally whether a particular law
is in enforcement of the directive principles. The former is the delegation of its amending
power and therefore void and the later is the exclusion of judicial review affecting the
basic structure and therefore void.

Mathew, J., held that the first part of Article 31-C is similar to Article 31-A. Regarding
the scope of the declaration he said (page 896, paras 1778 & 1779):

"It is only a law for giving effect to the policy of the State towards securing the principles
specified in clauses (b) and (c) of Article 39 that can contain a declaration . . . . The
declaration can never oust the jurisdiction of the court to see whether the law is one for
giving effect to such a policy, as the jurisdiction of the legislature to incorporate the
declaration is founded on the law being one to give effect to the policy of the State
towards securing these principles.
In order to decide whether a law gives effect to the policy of the State towards securing
the Directive Principles specified in Article 39(b) or (c), a court will have to examine the
pith and substance, the true nature and character of the law as also its design and the
subject-matter dealt with by it together with its object and scope. If the Court comes to
the conclusion that the declaration was merely a pretence and that the real purpose of the
law is the accomplishment of some object other than to give effect to the policy of the
State towards securing the Directive Principles in Article 39(b) and (c), the declaration
would not be a bar to the Court from striking down any provision therein which violates
Article 14, 19 or 31. In other words, if a law passed ostensibly to give effect to the policy
of the State is, in truth and substance, one for accomplishing an unauthorised object, the
Court would be entitled to tear the veil created by the declaration and decide according to
the real nature of the law."

Beg, J., held that the Section 31-C was valid, but it did not preclude a judicial
examination of the nexus between Article 39(b) and (c) and the law and the courts could
still determine whether the law passed was really one covered by the field carved out by
Article 31-C or merely pretended to be so protected under the cover of the declaration. (p.
918)

Dwivedi, J., also held that Article 31-C was good, but the court could go into the question
of the relevancy of the law to the subject-matter of Article 39(b) and (c). (p. 956)

Chandrachud, J., held that Article 31-C was good as it only identified the class of
legislation and exempted it from the operation of Articles 14, 19 and 31. The field of
legislation was not created by Article 31-C. The power to legislate existed apart from it.
In the learned Judge's view, the second part was also good, as the finality of the
declaration did not preclude the court from deciding whether there was reasonable nexus
between the law and directive principles. (p. 1002)

The aforesaid discussion leads to this position: Sikri, C.J., Shelat, Hegde, Grover and
Mukherjea, JJ., held that entire Article 31-C was void; Jaganmohan Reddy, J., deleted
certain portions from the first part of Article 31-C and held the rest valid and the second
part void. Khanna, J., held the second part void. The other five Judges expressed the view
that the entire Article 31-C was good, though in effect they held that the Article did not
preclude the court from going into the question whether there was a nexus between the
law made by the legislature and the principles embodied in Article 39(b) and (c) of the
Constitution. The result is the Supreme Court by majority held that the first part of
Article 31-C was valid and the second part invalid. The effect of the decision is that the
Supreme Court preserved its power of judicial review on the question whether a law by
the legislature has in fact implemented the principles laid down in Article 39(b) and (c) of
the Constitution. Even the Judges, who gave their approval to the second part reserved
the power of the Supreme Court to review, though it was only confirmed to the narrow
question of 'nexus'. Though the scope of judicial review is considerably narrowed in
regard to laws enforcing the principles of Article 39(b) and (c) in the context of its impact
on fundamental right to property, the fact that it is still preserved is a guarantee against
perverse legislative action.
To sum up, the 25th Amendment, as interpreted by the Supreme Court, made the
fundamental right to property more attenuated than it had already become. The judicial
review is now confined only in respect of a law affecting that right to the following
questions:

(1) Whether the legislature has constitutional competence in respect of the subject?

(2) Whether the acquisition is for a public purpose?

(3) Whether the amount paid for acquisition or the principles laid down in regard thereto
have any reasonable relation to the property acquired? and

(4) Whether the law made affecting the fundamental right to property, in order to enforce
the principles under Article 39(b) and (c), has in fact been made to enforce them.

It is hoped that the men in power will accept the judgment. The present attenuated
fundamental rights to property cannot possibly obstruct the ushering in all reasonable
socio-economic reforms and indeed the existence of a remote judicial control may only
act as a brake against hasty and unreasonable legislative and executive action and as a
form of guarantee to the public against instability. The stability of the Constitution
stabilises the State.

* (1973) 4 SCC 225.