Legal Notes by Arvind Datar: Seeds of Basic Structure first sown by Justice JR Mudholkar

One of the most important and perhaps the most forgotten dissents is that of Justice Mudholkar in Sajjan Singh v. State of Rajasthan.

Agrarian reforms and Zamindari abolition were amongst the most important goals that ruling Congress Party was committed to. Laws that acquired zamindari property were soon struck down mainly on the ground that they violated Article 31 as the compensation was inadequate. The controversy was fuelled mainly by the refusal to pay reasonable compensation to landlords whose property was taken away. Indeed, it was this refusal to pay reasonable compensation that led to a series of cases wherein several enactments were struck down which, in turn, led to constitutional amendments.

Fearing that the policy of agrarian reforms could get derailed, the device of inserting Article 31B and the Ninth Schedule, was resorted to. The net result was that laws relating to agrarian reforms, which were inserted in the Ninth Schedule, could not be challenged on the ground that they violated any of the rights mentioned in Part-III of the Constitution. This was a unique provision that enabled agrarian reform laws to enjoy complete immunity from judicial review.

In its first 15 years, our Constitution was amended 17 times and the 17th amendment inserted as many as 44 agrarian laws in the Ninth Schedule thus, making over 60 enactments that could not be challenged at all.

The vexed question that faced the Supreme Court was the ambit and extent of the power to amend the Constitution under Article 368. In 1951, the Supreme Court held that the power to amend the Constitution was untrammeled and Article 13(2) would apply only to ordinary laws and not to constitutional amendments which, the court held, were in exercise of constituent power. Thus, a constitutional amendment could never be unconstitutional because it would not come within the ambit of Article 13(2). (Sankari Prasad v. Union of India)

The 17th amendment was challenged before the Supreme Court in the Sajjan Singh’s case. There was a sense of disquiet at the frequent constitutional amendments and the tendency to insert laws into the Ninth Schedule and exclude judicial review.

A bench of five-judges heard this challenge and Chief Justice Gajendragadkar reiterated the untrammeled power of Parliament under Article 368 and reaffirmed the view in Sankari Prasad’s case made 14 years earlier.

At the same time, Chief justice Gajendragadkar expressed the hope that the power to amend or take away fundamental rights in Part-III should be subject to a further check and suggested that amending Part-III should require ratification by half of the State Legislatures under the proviso to Article 368(1). However, he did not go beyond this suggestion and upheld the 17th amendment.

Two judges, Hidayatullah and Mudholkar JJ. expressed reservations on giving untrammeled power to Parliament. Justice Hidayatullah pointed out the ease with which fundamental rights could be taken away by a simple two-third majority. Basic rights such as right to equality or right to freedom of speech could simply be taken away without ratification by the States. He pointed out the paradox whereby Article 32 could be deleted by a two-third majority whereas Article 226 could not be deleted unless it had the ratification of more than half the States.

In a memorable passage, he questioned whether fundamental rights could be treated as a “plaything of the majority”? He concluded by upholding the 17th amendment but sounding a note of caution that unchecked power of Parliament may have to be examined once again.

Even more important is the judgment of Justice JR Mudholkar. He too upheld the 17th amendment but expressed his concern even more eloquently. He pointed out that Article 368 was to amend the constitution. To what extent could such power be exercised? He pointed out if the basic rights such as equality or the right to life and liberty or the right to free speech was taken away, are we amending the Constitution or substituting a brand new constitution?

For the first time in India’s constitutional history, he used the words “basic features” and questioned whether these could be taken away. Very significantly Justice Mudholkar pointed out that our Constitution’s Preamble was drafted with deep deliberation and was marked by precision.

The basic features of the Constitution were indicated in the Preamble and included liberty, equality, justice - values which had to endure for all time to come. Could these be taken away under Article 368? It is interesting that Justice Mudholkar referred to a decision of Supreme Court of Pakistan in Fazlul Quader Choudhary v. Mohd. Abdul Haque which held that certain essential features of the Constitution could not be taken away.

In my view, Justice Mudholkar’s judgment deserves to be carefully read for it shows a deep understanding of constitutional principles and values. The judgment goes beyond the immediate effect of a particular amendment and looks at enduring values that must be preserved and protected. Contrary to popular belief, the words “basic features” were not first used by Dieter Conrad in his lecture in Benaras but was first used by Justice Mudholkar in Sajjan Singh case.

This was the seed that eventually blossomed into the basic structure doctrine that was evolved and made part of our Constitution in the Kesavananda Bharti case.

We owe a deep sense of gratitude to Justice Mudholkar.