by
Datta.
India and Pakistan are slowly reintegrating their economies,
through
and investment. Will we stop at sterile commercial transactions, or
can there be more to the engagement of the two countries? Most of us
in India think of Pakistan as a country with serious governance
problems; we think that India has little to learn from Pakistan. A
careful reading of history will surprise most of us.
One of the most important developments in the history of the Indian
Constitution was the rise of the `basic structure' doctrine, which
limits the extent to which a powerful political configuration can
amend the Constitution. What is not widely known is the intellectual
links that led up to this. A judge of the Supreme Court of India
created what was possibly the first constructive jurisprudential
connection between India and Pakistan: he imported the concept of
basic structure into Indian jurisprudence from a decision of the
Supreme Court of Pakistan. This is not to say that the basic structure
doctrine was not discussed before by myriad scholars and applied in
other countries, but merely to celebrate an old acquaintance that not
too many of us recall today.
The authors of the Constitution of India saw the necessity of
having a mechanism for amending the Constitution: Art. 368 of the
Indian Constitution. However, one question that has time and again
caught the attention of the Indian Supreme Court is the extent of this
amending power. For example, can Parliament amend the Constitution and
make India an autocracy? If not, then is there any implied
restrictions to the power of amendment? And if such restictions do
exist, what is the scope of judicial review of an amendment passed by
a super majority of the elected representatives of the country?
There appear to be three critical milestones in India's path to the
basic structure doctrine.
Justice Mudholkar in the case of
(AIR 1965 SC 845), for the first time (para 63) used the
phrase `basic feature' of the Constitution to argue that there
are certain features of the Constitution that cannot be amended
by the Parliament through its amending powers under Art. 368 of
the Constitution. This judgment was a seperate concurrent opinion
and not the majority view of the Court. Justice Mudholkar drew
upon the Pakistan Supreme Court's decision in Fazlul Quader
Chowdhry v. Mohd Abdul Haque, 1963 PLC 486, which had used the
basic structure doctrine already.
The phrase `basic structure' or `basic feature' of the Indian
Constitution has arisen in some decisions before Mudholkar, J. pointed
it out in 1964. For example, in re: Beruberi Union case (AIR 1960 SC
845) and State of West Bengal v. Union Of India (AIR 1963 SC 1241)
used the phrase but in a much looser sense and not squarely in the
context of implied limitations to the amending power under
Art. 368. It is, then, fair to say that Justice Mudholkar was the
first important introduction of this concept into Indian
jurisprudence.
The decision of Sajjan Singh came up for reconsideration by the
Supreme Court in IC
Golak Nath's case (AIR 1967 SC 1643). Justice Wanchoo after
opining in para 113 that `the power to amend includes the power to
add any provision to the Constitution, to alter any provision and
substitute any other provision in its place and to delete any
provision', went on to discuss in para 115 if there are any
implied limitations on the power of amendment under Art. 368. In this
context he referred to the doctrine of basic structure as was
highlighted for the first time in India in the separate opinion of
Justice Mudholkar. However, Justice Wanchoo ultimately opined that no
limitations can be and should be implied upon the power of amendment
under Art. 368 but did not go into the question as to whether Art. 368
can be used to repeal the present constitution and come up with a
completely new one. Justice Wanchoo was however speaking only for
himself and two other judges amongst the 11 who were on the
bench. Finally, 6 judges held that Fundamental Rights cannot be taken
away by an amendment while 5 judges held that Fundamental Rights can
be taken away by an amendment. However, the line of argument taken up
by Mudholkar and Wanchoo, that there are implied restrictions to the
power to amendment under Art. 368, was still a fringe argument.
This implied restriction or basic structure argument gained
prominence for the first time in Kesavananda's judgment (AIR 1973 SC
1461) where a 13 judge bench of the Supreme Court deliberated on this
issue. In spite of the length and complexity of the judgment, the one
ratio that emerges out of it is that the amending power under the
constitution cannot be used in a manner so as to interfere with the
basic structure of the Indian constitution. Reference to Mudholkar's
views in Sajjan Singh (which in turn was the view of the Supreme Court
of Pakistan) was made in para 681.
It is in this context, we should recognise the immense contribution
of the Supreme Court of Pakistan to the constitutional jurisprudence
of India. And Justice Mudholkar needs to be credited for at least
trying to make possibly the first jurisprudential connection between
the two neighbours back in 1964.
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