Judicial Activism - Imposing Restrictions On The Constituent Power

Author: LawSphereX

Category: General Law

Published: 2026-08-23T20:24:40.571318+00:00

Updated: 2026-08-26T17:10:57.011+00:00

JUDICIAL ACTIVISM: IMPOSING RESTRICTIONS ON THE

CONSTITUENT POWER

Rounak Kumar Mishra, BBA LLB (H), Amity University Uttar Pradesh, Lucknow

POWER OF CONSTITUTIONAL AMENDMENTS

In every written constitution, there must be a provision for its amendment. This power of amendment is typically entrusted to a popular, representative body. Such authority is crucial to prevent a constitution from becoming stagnant. Without the ability to change, a constitution may become inadequate in meeting the evolving needs of society. The process of amending a constitution is fundamentally counter-majoritarian, aiming to prevent hasty and ill-considered alterations while also safeguarding certain entrenched provisions from easy modification. 1 A constitutional amendment necessitates a special majority, typically requiring two-thirds or three-fourths support to pass. This means that even a minority group whose size surpasses onethird or one-fourth of the total legislative body can block an amendment.

The power of constitutional amendment is considered sui juris, meaning it has inherent validity and does not require validation against a higher norm. Consequently, the results of such amendments are generally not subject to judicial review, except when the prescribed constitutional amendment procedures have not been correctly followed. Article 368 of the Indian Constitution outlines the procedure for its amendment. Parliament can amend the Constitution by passing a bill in both houses with the support of two-thirds of the members present and voting, as well as an absolute majority of the total membership of each house. However, amendments that affect the federal structure require ratification by at least half of the state legislatures after being passed in Parliament. The framers of the Constitution designed a flexible amendment process because of the document's detailed nature.

Any change to the Constitution necessitates an amendment, leading to eighty-one amendments in the past fifty years. Some of the most contentious amendments limited judicial review concerning the right to property. This led to challenges by property 1 Article V of the US Constitution, for example, provides that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

interests, arguing that such amendments infringed upon fundamental rights as defined by the original Constitution. The question arises: Can Parliament use its amendment power to revoke the fundamental rights granted by the Indian people? The preamble, speaking in the name of the Indian people, raises political concerns about altering or abolishing a bill of rights established through extensive negotiations and consensus in the Constituent Assembly. Article 13 of the Indian Constitution establishes the legal framework for fundamental rights. It declares that any law in force in India before the Constitution's commencement that contradicts fundamental rights shall be void from the Constitution's effective date. Additionally, it prohibits the State from making laws that infringe upon fundamental rights.

The term 'law' is defined in clause (3)(a), while 'laws in force' is defined in clause (3)(b) of article 13. Notably, the definition of 'law' does not explicitly mention constitutional amendments, although it includes other types of laws like ordinances, orders, by-laws, rules, regulations, notifications, customs, or usages. In the case of Shankari Prasad v. Union of India,2 it was argued whether a constitutional amendment fell under the definition of 'law' in Article 13 and thus had to adhere to fundamental rights. Chief Justice Patanjali Sastri, representing a unanimous bench of five judges, rejected this argument, stating that a constitutional amendment was not encompassed by the term 'law' in Article 13. This interpretation remained unchallenged for over a decade. During Nehru's tenure, the Constitution underwent seventeen amendments.

The Seventeenth Amendment, which included ryotwari estates in the definition of 'estate' under Article 31(A), stirred controversy. However, it was after Nehru's death that challenges to Parliament's constituent power resurfaced. In Sajjan Singh v. Rajasthan,3 a divided Court debated whether a constitutional amendment was subject to Article 13(2)'s prohibition. While the majority, led by Chief Justice Gajendragadkar, ruled that constitutional amendments were not covered, dissenting judges Justices Mudholkar and Hidayatullah expressed reservations. Justice Hidayatullah argued that fundamental rights should not be subject to a special majority's whims. 4 These dissents paved the way for future attempts to subject constitutional amendments to judicial review.

However, the majority of justices upheld the previous ruling due to concerns about jeopardizing land reforms, economic programs, and property relations if the Court

2 AIR 1951 SC 458.

3 AIR 1965 SC 845.

4 Ibid., p. 862.

reversed its stance. Professor A. R. Blackshield suggested a prospective overruling to change legal positions without upsetting previously enacted constitutional amendments. 5 In 1967, the Supreme Court ruled in Golaknath v. Punjab6 that an amendment made according to the procedure outlined in Article 368 was considered 'law' under Article 13(2) of the Constitution. The Court, with a majority of six judges against five, determined that Parliament lacked the authority to enact amendments that would diminish or eliminate any fundamental rights guaranteed by the Constitution. The petitioner challenged the validity of the First, Fourth, and Seventeenth Amendment Acts, which restricted judicial review of property-related laws. Chief Justice K.

Subba Rao, speaking on behalf of five judges, applied the doctrine of prospective overruling to uphold the existing constitutional amendments (First, Fourth, and Seventeenth) while instructing Parliament not to pass any future amendments that would infringe upon fundamental rights. He also assured that the Court would interpret fundamental rights liberally to avoid hindering the implementation of directive principles of state policy. In a separate concurring judgment, Justice Hidayatullah arrived at the same conclusion but through a different reasoning. Instead of prospective overruling, he proposed the principle of acquiescence to validate the first, fourth, and seventeenth amendments. According to this view, since the Court had previously accepted the validity of these Amendment Acts, it was estopped from deeming them invalid.

The doctrine of acquiescence essentially acted as a form of estoppel against the Court itself. This concept of estoppel originates from equity, preventing a person from going back on a promise if doing so would cause severe harm to the other party who relied on that promise. The Golaknath case exemplified judicial activism during the late 1960s. This decision, seen as shocking by legal professionals steeped in the British tradition of legal positivism, elicited strong reactions from constitutional experts. However, the judges employed interpretational methods that were both traditional and positivist to support their policy premise that Parliament's power to amend the Constitution needed oversight.

For instance, interpreting a constitutional amendment as 'law' under Article 13 or asserting that Article 368, which outlines the amendment procedure, did not grant the power of amendment 5 A. R. Blackshield, ‘Fundamental Rights and the Institutional Validity of the Indian Supreme Court’, 8 JILI p.

139 (1966).

6 AIR 1967 SC 1643.

but merely outlined the procedure, with the actual power residing in Parliament's plenary legislative authority as per the residuary clause (Article 248 and Entry 97 of List 1 of the Seventh Schedule), were expressions of legal positivism. In the context of the Court-Parliament conflict over property rights, the Golaknath ruling seemed like a judicial assertion of superiority to establish the court's decisions as final. This stance contradicted the theory that a constitution, as the grundnorm (highest norm), did not require validation; its validity was inherent (sui juris). 7 The distinction between regular legislation and constitutional legislation, central to the original concept of judicial review as seen in Marbury v. Madison,8 it formed the basis of this debate. In the Golaknath case, there was a disagreement about the scope of judicial review.

The judges took a political stance for the first time. They believed that Parliament's power to amend the Constitution should not be unlimited and that the fundamental rights should not be dependent on the special majority of members of Parliament required for constitutional amendment. This decision marked a significant change in the Supreme Court of India's evolution from a positivist Court to an activist Court. Before Golaknath, the Court had always maintained judicial neutrality, but its decisions on property rights were a negation of what Parliament stood for. However, the Golaknath decision was a bold assertion by the Court of its role as the protector and preserver of the Constitution. The majority judgement of Chief Justice K.

Subba Rao expressed concern about what would happen if fundamental rights were made entirely dependent upon the legislative majority, and the natural law concept was introduced to understand the position of fundamental rights in the Constitution. The judges held that fundamental rights were inalienable rights of the people, and that the Constitution should be interpreted not only as it was, but also from the vantage point of what it should be. This decision had political implications because it changed the distribution of power between the Court and the Parliament. The word 'political' is used here to mean part of the structure of governance, and not in the commonly used pejorative sense. Following the decision in the Golaknath case, Chief Justice K. Subba Rao resigned from his position and ran for the office of President of India with the support of the Opposition but was unsuccessful.

This further politicized the Court. Later, the Supreme Court invalidated the

7 P.K. Tripathi, ‘Golalnath: A Critique’ in Some Insight into Fundamental Rights, p. 1 (1972).

8 1 Cranch (5 U.S.) 137 (1803).

government's Ordinance that nationalized fourteen banks9 and the executive order that sought to abolish the privy purses given to the Indian princes as consideration for the accession of their state to India. 10 These decisions came at a time when the Congress Party had split and Mrs Indira Gandhi's government had survived with the outside support of the Communist Party of India. The Court's decisions appeared to support Mrs Gandhi's opponents, who were mainly the old guard in the Congress Party and right-wing parties such as the Swatantra and the Jan Sangh. As a result, the Court was identified as an ally of the anti-Indira Gandhi lobby. The nationalization of fourteen major banks and the de-recognition of princes with the intention of abolishing the privy purses of the former rulers of Indian states that had merged into the Indian Union had radicalized politics.

This was comparable to the situation that existed under President Roosevelt in the United States, where the US Supreme Court had opposed President Roosevelt's New Deal legislative programme, and the President had contemplated packing the Court after getting elected for a second term. Mrs Indira Gandhi re-enacted that history by casting herself in the role of Roosevelt. In 1971, during the Lok Sabha elections, the Congress Party promised to change the Constitution if they were elected. Mrs Gandhi's Congress won by a considerable margin, securing over two-thirds of the seats in Lok Sabha, which could be considered a mandate to amend the Constitution. As a result, the government introduced the Constitution (Twenty- Fourth Amendment) Act, 1971, with the aim of restoring Parliament's unrestricted power to amend the Constitution, which it had lost due to the Court's decision in Golaknath.

11 Parliament passed two amendments - the Twenty-Fifth and the Twenty-Sixth. The Twenty-Fifth Amendment further limited the right to property, while the Twenty-Sixth abolished privy purses. These amendments, along with the Twenty-Fourth, were challenged in the Supreme Court. The Golaknath case raised the question of whether Parliament could amend the Constitution to take away or limit fundamental rights. However, if this was not possible, how could Parliament empower itself to do so through a constitutional amendment? This question was addressed in the Kesavananda Bharati v. Kerala12 case. Thirteen judges sat on the bench to hear this case, two more than the number of judges who decided the Golaknath case.

9 R.C. Cooper v. India AIR 1970 SC 564.

10 Madhavrao Scinida v. Inida AIR 1971 SC 530.

11 S.P. Aiyar and S. V. Raju (ed.), Fundamental Rights and the Citizen, pp. 126-38 (Academic Book Ltd., 1972).

12 AIR 1973 SC 1461.

The Attorney General and Advocate Generals of most states, including Mr H. M. Seervai, who was the Advocate General of Maharashtra, argued on behalf of the State. They contended that Parliament's power to amend the Constitution was unlimited. However, when the judges asked if this power could be used to change India from a democracy to a dictatorship or from a secular state to a theocratic state, the answer had to be in the affirmative. Chief Justice Sikri summarized those arguments as follows:13 The respondents the Attorney General and the Advocate Generals who represented the Union of India, on the other hand, claim that Parliament can abrogate fundamental rights such as freedom of speech and expression, freedom to form associations or unions, and freedom of religion. They claim that democracy can even be replaced and one-party rule established.

Indeed short of total repeal of the Constitution, any form of Government with no freedom to the citizen can be set up by Parliament by exercising its powers under article 368. Justice Shelat also reproduced those arguments in his Judgment as follows:14 The respondents, on the other hand, claim an unlimited power for the amending body... It is claimed that democracy can be replaced by any other form of government which may be wholly undemocratic, the federal structure can be replaced by a unitary system and the right to judicial review can be completely taken away. The argument made in court was akin to Dicey's assertion that the Parliament of England was so supreme that it could declare all men to be women or order the massacre of all blue-eyed babies.

This argument was hypothetical and intended to convince the Court that there should be no legal restrictions on the constituent power of Parliament. However, it had an adverse effect on the judges, with all judges except Chief Justice Sikri and Justice Shelat holding that the previous decision in Golaknath had been wrongly decided. Chief Justice Sikri believed that it was unnecessary to decide whether Golaknath had been rightly decided. According to Justice Shelat, the Golaknath decision had become academic, and even if it was not correct, the result of the current case would be the same. 15 Both Chief Justice Sikri and Justice Shelat had been part of the Golaknath majority, so they might have refrained from saying that it was wrong. The Supreme Court ruled by a majority of seven judges against six that the power of

13 AIR 1973 SC 1461, P. 1490.

14 Ibid., p. 1566.

15 Ibid.

amendment was not unlimited, while Golaknath was overruled. Seven out of thirteen judges held that Parliament's constituent power under Article 368 was constrained by the inviolability of the basic structure of the Constitution, on the basic features of the Constitution. A constitutional amendment could not destroy or alter beyond recognition the basic structure or basic features of the Constitution. These seven judges were Chief Justice Sikri and Justices Shelat, Hegde, Grover, Mukherjee, Jaganmohan Reddy, and Khanna. Six judges, Justices Ray, Mathew, Beg, Dwivedi, Palekar, and Chandrachud, held that Parliament had unlimited power of constitutional amendment.16

REACTIONS TO KESHAVANAND BHARTI

The Kesavananda Bharati decision was an attempt by the Supreme Court to change the Constitution. This was a unique move as such limitations on the constituent power were unheard of until that point. Professor P. K. Tripathi saw it as an attempt by the Court to gain control and asked, 'Who wins? ’17 Seervai, who had argued in favour of the supremacy of Parliament, reacted critically and said that there was no clear reasoning in that decision. 18 In no democratic country could the court say that the Constitution itself could not be amended so as to alter its basic structure, when there was no such statement in the Constitution. What was considered the basic structure was unknown and had to be articulated by the Court from time to time. It meant that the Court would decide which constitutional amendment was destructive of the basic structure and what constituted the basic structure.

The former Additional Solicitor General Mr. T. R. Andhyarujina said that the 'exercise of such power by the judiciary is not only anti-majoritarian but also inconsistent with constitutional democracy. ’19 Professor Tripathi observed that the function of the courts in democratic countries was to ensure that all subordinate legal action complied with the law. They can interpret the highest law in accordance with which all legislative and executive acts must be done. But can they decide what should be the highest law? In his opinion, 'That determination must be left with the freely elected representatives of the people. '20 The basic structure doctrine seemed unsustainable in

1973 when it was laid down in Kesavananda Bharati.

16 S. P. Sathe, ‘Judicial Review in India: Limits and Policy’, Ohio State Law Journal, pp. 870-84 (1974).

17 P. K. Tripathi, ‘Keshavanand Bharti v. State of Kerela- Who Wins’ (1974).

18 H. M. Seervai, ‘The Fundamental Rights Case at the Cross Roads’, pp. 47-48 (1973).

19 T. R. Andhyarujina, Judicial Activism and Constitutional Democracy in India, p. 10 (1992).

20 P. K. Tripathi, ‘Rule of Law, Democracy, and Frontiers of Judicial Activism’, pp. 17, 23 (1975).

During the Golaknath case, some scholars expressed disagreement with the court's ruling and advocated for the basic structure doctrine. Professor A. R. Blackshield's article critiqued the flaws in the Golaknath judgment and proposed a more adaptable approach to safeguard the fundamental framework of the Constitution from being dismantled.21 This article laid the groundwork for the basic structure doctrine, which gained prominence in the Kesavananda Bharati case. Another scholar, Professor Upendra Baxi, published an article after the Kesavananda Bharati case, arguing that the power to amend the Constitution was a shared responsibility between Parliament and the Supreme Court.22 While these views were initially not widely accepted, subsequent events have validated their correctness.

SUPERSESSION OF THE JUDGES: POLITICIZATION OF THE JUDICIARY

During the Kesavananda Bharati case, India's political landscape had shifted significantly from the time of the Golaknath case in 1967. The Golaknath decision came just before the announcement of results for the Fourth Lok Sabha elections, showing a decrease in the Congress party's strength at the Centre. This political scenario made constitutional amendments appear challenging. Barrister Nath Pai, a Socialist MP, had introduced a bill to amend the Constitution and restore unlimited power to Parliament for amendments. However, due to uncertainty about garnering sufficient support, the bill did not progress much. There was hope that the Court would interpret the Constitution more dynamically in the future, eliminating the need to amend it to curtail fundamental rights. The writer suggested deferring the Nath Pai Bill until the Supreme Court clarified its stance in subsequent cases.

However, with decisions like bank nationalization and privy purse abolition, where the Court took a legalistic approach regarding property rights, that hope diminished. These decisions indicated that the Court would not permit Parliament to amend the Constitution nor interpret fundamental rights provisions to accommodate aspirations outlined in the directive principles of state policy. During the Kesavananda Bharati case, the Congress Party, under Mrs. Indira Gandhi's leadership, held a commanding majority in the new Parliament. Mrs. Gandhi was highly popular at that time, and her party was keen on implementing substantial changes to the Constitution. This context likely made the judges wary of potential sweeping changes. What may have seemed like a speculative fear in 1967 became more pressing. The majority justices 21 A. R.

Blackshield, ‘Fundamental Rights and the Economic Viablity of the Indian Institution’. (1968).

22 Upendra Baxi, ‘Some Reflection on the Nature of the Constituent Power’ in Jacob Dhavan (ed.).

aimed to curb Parliament from further altering the Constitution significantly, seeking to ensure its stability. As the Indian Constitution neared its first twenty-five years, this milestone was significant, especially considering that many newly independent nations after World War II had either abandoned democratic governance or revised their constitutions. However, the ruling party viewed the Kesavananda Bharati decision as a judicial attempt to usurp supremacy from Parliament. Consequently, the government responded forcefully, starting with efforts to dismantle the majority supporting the Kesavananda Bharati judgment. Shortly before Chief Justice Sikri's scheduled retirement, the landmark Kesavananda Bharati case was decided. Traditionally, the most senior judge of the Supreme Court would become the Chief Justice upon the incumbent's retirement.

Following this convention, Justice Shelat was expected to succeed Sikri, albeit for a short tenure before Justice Hegde took over. However, the government's decision to appoint Justice A. N. Ray as Chief Justice, bypassing three senior judges—Shelat, Hegde, and Grover—came as a surprise. In response, these three judges resigned from their positions in protest. This move reduced the majority supporting the basic structure doctrine in the Kesavananda case by four judges. Subsequently, Justice Mukherjee passed away, and Justice Reddy was set to retire soon, leaving only Justice Khanna as the remaining supporter of the doctrine among the original seven judges.

EMERGENCY OF 1975 AND THE BASIC STRUCTURE DOCTRINE

During the 1975 emergency, declared by the President under Article 352 of the Constitution, significant constitutional amendments were enacted. This period highlighted the crucial role of judicial review as a counter-majoritarian force. Initially, the basic structure doctrine, established in the Kesavananda case, was viewed as elitist and anti-majoritarian. However, during the emergency, the government leveraged its captive majority to pass amendments without the presence of opposition members who were imprisoned. These amendments aimed to weaken the constitutional checks and balances. This situation transformed the perception of the basic structure doctrine. It became a focal point for those advocating the preservation of the Constitution's core principles.

Critics who had previously labelled the Constitution as alien, elitist, or anti-people came to recognize its strength, including the protective framework

provided by the basic structure doctrine, during anti-establishment movements.23 The doctrine faced a crucial test when the Constitution Thirty-Ninth Amendment Act was challenged in the Supreme Court, alleging a violation of the Constitution's basic structure.

INDIRA GANDHI V. RAJ NARAIN: THE PRIME MINISTER ELECTION CASE

The 1975 emergency in India was indirectly triggered by the Allahabad High Court's decision to nullify Mrs Indira Gandhi's election to the Lok Sabha, citing corrupt practices under Election Law. Mrs Gandhi appealed this decision to the Supreme Court, which temporarily suspended the High Court's ruling with certain conditions. 24 However, before the final appeal, the Proclamation of Emergency was issued on June 25, 1975, preventing Mrs Gandhi's lawyer, Mr. Nani Palkhivala, from representing her. This emergency was declared under Article 352 of the Constitution in response to perceived internal disorder threats. During the emergency, numerous opposition party members of Parliament were detained, and Parliament enacted several constitutional amendments.

Notably, the Thirty-Ninth Amendment stipulated that disputes concerning the election of the Prime Minister and the Speaker of Parliament would be referred to a body appointed by Parliament, even for cases previously adjudicated by the courts. Additionally, Clause (4) of Article 329-A, introduced by the Thirty- Ninth Amendment, specified that pre-amendment laws made by Parliament wouldn't apply to Prime Minister or Speaker elections, and these elections wouldn't be invalidated on grounds that could have nullified them under earlier legislation. The clause further said that: notwithstanding any order made by any court before such commencement, declaring such election to be void, such election shall continue to be valid in all respects and any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no effect.

The Thirty-Ninth Amendment was hastily passed to shield Mrs Indira Gandhi's Lok Sabha election from scrutiny. This amendment exempted her from the normal election laws, ensuring her election would remain valid even if she had violated any election rules. It also declared that her election couldn't be invalidated by any court decision. Although Mrs Gandhi had appealed the Allahabad High Court's ruling and the Supreme Court had temporarily halted the decision, the government opted to eliminate any potential risks. Rather than waiting for the Supreme 23 S. P. Sathe, ‘People and Law: Towards Legitimation of the Constitution: A Review’, pp. 22-36 (1998).

24 Indira Gandhi v. Raj Narain AIR 1975 SC 1590.

Court's final verdict, the government swiftly passed the Thirty-Ninth Amendment to nullify the entire High Court decision. The urgency with which the bill was pushed through reflected the government's apprehension. It was introduced in the Lok Sabha on August 7 and passed the same day. The Rajya Sabha approved it on August 8, state legislatures ratified it by August 9, and it received the President's assent on August 10. Mrs Gandhi's appeal was scheduled for a Supreme Court hearing on August 11. 25 During Mrs Gandhi's appeal before the Supreme Court, the Attorney General contended that the Court lacked jurisdiction as the Thirty-Ninth Amendment had nullified the original decision. In response, Mr Shanti Bhushan, representing the respondent, challenged the Amendment's validity, arguing it violated the Constitution's basic structure. In the case of Indira Gandhi v.

Raj Narain,26 the Supreme Court was tasked with assessing the Amendment's validity in light of the constraints on constitutional amendments set by the basic structure doctrine. In the Prime Minister Election case, a bench of five judges presided over the proceedings. This bench comprised Chief Justice Ray and Justices Khanna, Beg, Mathew, and Chandrachud. All judges except Justice Khanna had previously ruled in the Kesavananda Bharati case that there were no restrictions on the power of constitutional amendment. Only Justice Khanna had endorsed the basic structure doctrine. Given the composition of the bench, there might have been expectations that either the basic structure doctrine would be disregarded as non-binding (merely obiter dictum), or the challenged provision would be deemed non-infringing on the basic structure of the Constitution.

The Court had the authority to determine what constituted the basic structure, and it could have effectively nullified the basic structure doctrine by affirming any constitutional amendment as not violating the Constitution's basic structure. However, these expectations were not met, and the outcome disappointed those who had hoped for such a decision. Chief Justice Ray and Justice Mathew rejected the impugned amendment because they believed that the constituent power couldn't be used to exercise judicial authority. Justice Beg employed a traditional English law technique, often used to circumvent clauses that attempt to exclude judicial review, by arguing that judicial review on appeal against the Allahabad judgment wasn't excluded. On the other hand, Justices Mathew, Khanna, and Chandrachud deemed the

25 H. M. Seervai, Constitutional Law of India, vol. 2, p. 1519 (2nd ed., 1976).

26 AIR 1975 SC 2299.

impugned amendment invalid due to its inconsistency with the basic structure of the Constitution. While the Court unanimously ruled that the amendment was unconstitutional and void, only three judges explicitly stated that it infringed upon the basic structure of the Constitution. Professor Upendra Baxi has critically analyzed the Supreme Court's decision in his book *The Indian Supreme Court and Politics*. According to him, the Court faced three options: (1) Upholding the amendment and thereby affirming Mrs Gandhi's election without scrutinizing its merits; (2) Striking down the amendment and declaring Mrs Gandhi's election void; and (3) Invalidating the amendment but examining the election's validity on its merits and ultimately upholding it.

Baxi argues that the first option, which involved challenging Mrs Gandhi's election and nullifying the amendment, would have damaged the Court's prestige and social standing. The second option, which involved striking down the amendment while upholding the election, risked destabilizing the Court itself, especially given the executive's power to appoint judges and its history of superseding senior judges who ruled against the government in the Kesavananda Bharati case. This fear of self-preservation likely influenced the judges' decision to pursue the third alternative: upholding the election while rejecting the amendment. This choice allowed the Court to assert its judicial review authority over Parliament's constituent power without directly confronting the political establishment.

The ruling elite welcomed the Court's validation of Mrs Gandhi's election on its merits, as it provided greater moral legitimacy compared to relying solely on the immunity granted by the Thirty-Ninth Amendment. However, the decision to review constitutional amendments was an undesirable aspect of the Court's ruling, which the ruling elite tacitly accepted due to the euphoria surrounding the election's validation. During the emergency, the Supreme Court's decision in the Prime Minister Election case was hailed by Seervai as its "finest hour. "27 This decision, in the writer's view, conferred social legitimacy upon the basic structure doctrine. When the doctrine was established in Kesavananda Bharati, it was seen in the context of the ongoing Court-Parliament competition for final authority, tracing back to the Golaknath case.

However, the Prime Minister Election case presented a different narrative. The Thirty-Ninth Amendment, akin to a bill of attainder in

27 H. M. Seervai, The Emergency, Future Safeguard and the Habeas Corpus Case, p.4 (Tripathi, 1978).

English constitutional history, raised concerns about autocratic arbitrariness. A bill of attainder punished individuals through legislative means, reflecting a high degree of arbitrary power. The Amendment's passage provided tangible evidence of how unchecked parliamentary authority could lead to the erosion of the rule of law due to majoritarian biases. This underscored the importance of the basic structure doctrine, which imposed limits on Parliament's constituent power and gained legitimacy as a safeguard against potential abuses of power.28

BASIC STRUCTURE DOCTRINE ACQUIRE ACCEPTANCE AMONG JURISTS

Even H. M. Seervai, a staunch critic of the Golaknath decision, eventually came to support the basic structure doctrine in the second edition of his renowned book *Constitutional Law of India*. 29 He maintained that while Golaknath should be overruled due to its public mischiefs, he agreed that the power of constitutional amendment under Article 368 did not include the authority to dismantle the basic structure of the Constitution. Seervai's evolution reflected the dilemma faced by many lawyers trained in the English positivist tradition. Both the Golaknath and Kesavananda decisions were grounded in the concept of a broader role for a constitutional court. They both rejected the notion that unlimited constitutional amendment power should rest solely with a parliamentary majority.

In essence, the basic structure doctrine articulated in Kesavananda was an extension of the unamendability doctrine concerning fundamental rights proposed in Golaknath. Seervai's shift highlighted the interconnectedness of these doctrines, suggesting that if one was valid, so was the other. The basic structure doctrine represents an improvement over the Golaknath doctrine because it is not confined to a specific provision like Article 13(2). This makes it challenging for Parliament to override through another constitutional amendment. As it is ingrained in the fundamental structure of the Constitution, the Court has greater latitude to apply it in a politically nuanced manner. Both Golaknath and Kesavananda were based on the premise that Parliament's constituent power under Article 368 should not be as unrestricted as the original power of the Constituent Assembly.

While rejecting Golaknath's majority view that Article 13(2) limited Article 368's power, the Kesavananda majority freed itself from the implied constraints associated with specific provisions. However, it found legal justification for the 28 S. P. Sathe, ‘Limitation on Constitutional Amendment: ‘Basic Structure’ Principle Re- Examined’ in Jacob Dhavan (ed. ), (1978).

29 Seervai, Constitutional Law of India (2nd ed. 1976), supra n. 29.

basic structure doctrine in Article 368 itself, which states that after an amendment, "the Constitution shall stand amended. " This implies that while amendments can be made, they cannot fundamentally alter or dismantle the Constitution; it must retain its basic structure. This conclusion required a teleological interpretation of the Constitution. Even with significant changes, a constitution would still fulfill its purpose under the amendment clause. When the Kesavananda majority asserted that for the Constitution to stand amended, it must maintain a distinct identity, embodied in its basic structure, Justices Shelat and Grover concurred in their joint judgment by stating that while the power to amend is broad and covers all articles, it does not extend to abolishing or altering the Constitution's identity or essential features.

30 Justice Jaganmohan Reddy expressed that the term "amendment" implies the preservation of the old constitution's identity even after changes have been made, ensuring that it continues to exist albeit in an altered state. This indicates that the old constitution cannot be dismantled or eliminated; instead, it is maintained albeit in an amended form. Therefore, retaining the old constitution entails preserving its basic structure or framework. 31 The concept of basic structure would be further defined through subsequent Court decisions, a weighty responsibility imposed by the Kesavananda judgment.

Another distinction between Golaknath and Kesavananda was Chief Justice Subba Rao's application of prospective overruling in Golaknath, which saved constitutional amendments enacted before the case, such as the First, Fourth, and Seventh Amendments, despite imposing restrictions on fundamental rights guaranteed by Articles 14 and 31. Justice Hidayatullah arrived at a similar conclusion, arguing that the Court had implicitly accepted the validity of these amendments through previous decisions. In contrast, Kesavananda did not employ such a doctrine to uphold previously enacted amendments. Instead, the Court evaluated these amendments based on the basic structure doctrine. Regarding Article 31-B, the Court deemed all amendments adding new Acts to the Ninth Schedule before Kesavananda as valid.

32 However, it announced its intent to scrutinize post-Kesavananda amendments adding Acts to the Ninth Schedule against the basic structure doctrine. In 1973, when Kesavananda was decided, there was little support for the judgment. Some viewed it as audacious for judges to claim the authority to determine future constitutional

30 AIR 1973 SC 1461, 1609.

31 Ibid., 1860.

32 Waman Rao v. India AIR 1981 SC 271; see Sathe, Constitutional Amendments, pp. 80-1.

changes, a responsibility they believed should rest with a democratically elected body, not appointed judges. This reflected the conflict between democracy and judicial review, as judicial review inherently counters majority decisions. While democracy entails majority rule, it must also ensure just governance. Justice is an intrinsic value, not merely a means to an end. Even utilitarian arguments, such as improved crime investigation through police torture, cannot justify unjust actions. Human rights, according to Rawlsian and Dworkinian perspectives, are counter-majoritarian and crucially protect minority or unpopular rights. In contrast, British constitutional law emphasizes Parliamentary supremacy, relying on democracy to safeguard individual liberties.

However, this differs from the idea of rights as understood by Dworkin, emphasizing liberty as a right rather than a mere legal concept. Liberty, distinct from rights, refers to the freedom to act as one wishes as long as it does not infringe upon the law or the freedom of others. For example, I have the liberty to drive on the left side of the road, but I do not have the right to do so because it endangers other drivers or pedestrians. The correlative of liberty is the absence of rights on the part of others, meaning others do not have the right to interfere with my liberty unless it obstructs their own freedom. In contrast, rights are positive concepts that impose duties on others to fulfill those rights. When I have the right to freedom of speech as granted by the Constitution, the State is obligated not

to unreasonably restrict that right. Additionally, the State has a duty to protect my freedom of speech by preventing others from unlawfully restricting it. According to Dworkin's understanding of rights, they serve to limit the power of the majority. In Hohfeldian terms, power refers to the capacity to create rights or obligations for others. Rights are thus accompanied by duties, and fundamental rights restrain the power of the State. In countries like England, where Parliament holds supreme authority, people have liberties but not rights in the strict sense. However, in nations with written constitutions containing a bill of rights, individuals possess rights that constrain the legislative majority from infringing upon their freedoms. These rights may include freedom of speech or freedom of religion. Certain rights are inherently oppositional to the majority's views.

For instance, the Constitution abolishes untouchability, even if a significant number of people believe in its validity or the merit of racial segregation. Despite potentially popular opinions, such practices must be prohibited because they contravene the principle of equal protection under the law. This

underscores the counter-majoritarian nature of human rights, which have consistently challenged majority opinions worldwide. During times of crisis, even established democracies have leaned towards majoritarianism. In cases like Liversidge v. Anderson,33 where executive powers were used to curtail individual liberties in the name of national security, some justices were willing to prioritize security over rights. Similarly, the U. S. Supreme Court's handling of Japanese American internment during World War II showcased a majoritarian approach. However, under Chief Justice Warren's leadership post-WWII, the Court adopted a counter-majoritarian stance through judicial review. This jurisprudence notably protected three types of minorities: political dissenters like communists, socially stigmatized individuals such as accused criminals, and racial minorities like Black Americans.

Judicial review, therefore, serves as a counter-majoritarian mechanism aimed at safeguarding the rights of unpopular or minority groups. In the case of West Virginia State Board of Education v. Barnette, Justice Jackson articulated a foundational idea regarding a bill of rights as follows:34 The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of the majorities and officials and to establish them as legal principles to be applied by courts. One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote, they depend upon the outcome of no elections.

In countries like England, where strong traditions of individual liberty exist, judicial review of legislation may not have been deemed necessary historically. However, this statement requires qualification due to England's acceptance of the European Convention on Human Rights and the jurisdiction of the European Court of Human Rights. In contrast, in the United States, judicial review played a pivotal role in fostering robust traditions of individual liberty. In India, during the 1950s, the Court maintained a subdued role influenced by the British model of parliamentary democracy, which was idealized by both the political elite and the judiciary. Therefore, there was little emphasis on counter-majoritarian restrictions on Parliament's constituent power. However, as the aura of sacrifice from the National Movement waned in the

33 (1942) AC 206: (1941) All E.R. vol. 2, p. 612.

34 319 U.S. 624, 638: 87 L. Ed. 1628, 1638.

late 1960s, and professional politicians emerged, the need for judicial review of parliamentary actions became apparent. The debate surrounding the legitimacy of judicial review has persisted since the landmark Marbury v. Madison decision by the US Supreme Court. Critics argue that judicial review undermines democracy by entrusting a non-elected judiciary with the power to assess the validity of laws passed by elected representatives. The doctrine of judicial self-restraint was developed to reconcile judicial review with democratic principles. In recent times, doubts have arisen regarding the assumption that the legislature represents the people's will accurately. In India's first-past-the-post electoral system, it's common for a political party to secure a majority of seats despite receiving a minority of votes.

With only around half of the electorate voting and the majority party often garnering less than 40% of the votes cast, concerns arise about whether such a minority should be empowered to make constitutional changes affecting its basic structure. In Kesavananda Bharati, Justice Hegde had raised this question. He said: 35 Two-thirds of the members of the two Houses of Parliament need not necessarily represent even the majority of the people of this country. Our electoral system is such that even a minority of voters can elect more than two-thirds of the members of ... either House of Parliament. The idea of protecting the basic structure as a constraint on Parliament's constituent power has resonated in other countries as well. For instance, the Indian perspective on this matter was brought to the attention of the South African Supreme Court.

It was argued that a provisional Parliament's constituent power should not extend to making changes in the Constitution that contradict its foundational spirit. The South African Supreme Court, however, left this question open as the bench had differing opinions on the issue. The basic structure doctrine represents a non-textual norm of constitutionality. In legal positivism, constitutional law typically derives solely from the Constitution's text. However, interpreting the Constitution beyond its literal words is crucial to uncovering unwritten constitutional principles. This process allows a court to supplement the written law with unwritten constitutional norms, enhancing the completeness of constitutional law. Balancing the basic structure doctrine with democracy requires cooperation between the Court and Parliament.

One proposed approach is to assign matters of policy to Parliament and matters

35 AIR 1973 SC 1461, 1624.

of principle to the Supreme Court. Ronald Dworkin has advocated for a clear division of responsibilities between judicial review and legislative supremacy. He suggests that judicial review should focus on upholding constitutional principles and fundamental rights, while the legislature should handle policy decisions. For instance, courts typically refrain from interfering in budgetary policies, tax rates, or exemptions unless these policies infringe upon fundamental rights or the basic structure of the Constitution. Protective discrimination for marginalized groups, as outlined in the Constitution, is viewed as supportive of the right to equality.

However, if policies related to reservations overlook their impact on equality rights or solely base reservations on caste considerations, the Court intervenes not due to disagreement with the policy itself but because it violates constitutional rights. This nuanced approach aims to ensure that democratic policies align with constitutional principles and individual rights. The 'policy-principle dichotomy' can guide the application of the basic structure doctrine. The Court would refrain from interfering in matters of policy but would intervene if there is a change in the fundamental structure of the Constitution. For example, if Parliament wishes to amend the anti-defection law or switch to a presidential system, these changes may not violate the basic structure as long as they don't alter the democratic framework.

In other countries like Australia and Canada, referendums have been used to gauge public opinion on constitutional matters. However, in India, there's no provision for referendums on basic structure alterations. Introducing such a provision through a constitutional amendment might enhance democracy, although it currently faces challenges in garnering the required special majority under Article

368. Until then, the Supreme Court must use the basic structure doctrine to ensure checks on

legislative power. Maintaining the basic structure doctrine without undermining democracy requires the Court to exercise maximum deference to legislative decisions. The doctrine serves as a countermajoritarian tool to uphold the liberal and democratic essence of the Constitution, acting as a guardian of the people's interests against the ruling elite. The Court must strike a balance between activism and passivity, avoiding overreach while also not neglecting its responsibility to uphold constitutional values. Judicial review, in this context, transcends mere legal interpretation and involves considerations of propriety, vision, and societal dynamics. Ultimately, the use of the basic structure doctrine will test the Court's statesmanship and its ability to navigate complex legal and political landscapes.

ATTEMPTS TO BURY THE BASIC STRUCTURE DOCTRINE

Supersession of the Judges The government tried various tactics to overturn the basic structure doctrine. One strategy was to intimidate judges by manipulating the composition of the Court. As previously mentioned, this was evident when three judges were superseded after Chief Justice Sikri's retirement, leading to their resignation in protest during the Kesavananda Bharati case. Additionally, even dissenting judges in Kesavananda upheld the basic structure doctrine by striking down a clause in the Constitution (Thirty-Ninth Amendment) Act, 1976, during the Prime Minister Election case. Following these events, there was another attempt to persuade the Court to reverse the basic structure doctrine internally. Basic Structure Doctrine Reconsidered by the Court Chief Justice Ray formed a special bench comprising thirteen judges to review the majority decision in Kesavananda Bharati.

This new bench included Ray himself and Justices Khanna, Beg, Mathew, Chandrachud, Bhagwati, Krishna Iyer, Sarkaria, Goswami, Gupta, Singhal, Fazl Ali, and Untwalia. Among them, only Justice Khanna had previously supported the basic structure doctrine, while the others were not committed to it. Chief Justice Ray likely hoped to gather at least seven judges to overturn the basic structure doctrine, given that a larger number of judges had previously voted against it. In earlier cases like Shankari Prasad, Sajjan Singh, and Golaknath, the majority had favored an unrestricted power for Parliament to amend the Constitution under Article 368. However, when the Court asked the Attorney General to provide evidence that the basic structure doctrine hindered social progress, no satisfactory proof was presented.

Consequently, Chief Justice Ray had to dissolve the special bench36 as it failed to establish a case for overturning the basic structure doctrine. Constitutional Amendment The executive attempted to undermine the basic structure doctrine through a constitutional amendment, the Constitution (Forty-Second Amendment) Act, 1976, which introduced clauses

36 H. M. Seervai, Constitutional Law of India, vol. 2, p. 1672 (3rd ed., Tripathi, 1984).

(4) and (5) to article 368 of the Constitution: (4) No amendment of the Constitution (including the provisions of Part III) made or purported to have been made under this article [whether before or after the commencement of section 55 of the Constitution (Forty-Second Amendment) Act, 1976] shall be called into question in any court on any ground. (5) For the removal of doubts, it is hereby declared that there shall be no limitation whatsoever on the constituent power of Parliament to amend by way of addition, variation, or repeal the provisions of this Constitution under this article. The validity of these clauses was contested before the Supreme Court in Minerva Mills v. India.

37 The Court, consisting of Chief Justice Chandrachud and Justices Bhagwati (at that time), Gupta, Untwalia, and Kailasam, unanimously ruled that clause (4) violated the basic structure of the Constitution and was therefore void. The Court interpreted clause (5) to mean that Parliament's constituent power was unlimited as long as it did not infringe upon the basic structure of the Constitution. 38 Article 31-C was introduced by the Constitution (Twenty-Fifth Amendment) Act, 1971 to grant immunity to laws enacted to fulfill the directive principles of state policy outlined in clauses (b) or (c) of article 39.

However, the last proviso of that article, which stated that the President's certificate on a law's alignment with these principles would be final and not subject to judicial review, was deemed unconstitutional in Kesavananda Bharati as it violated the basic structure of the Constitution. The Forty-Second Amendment Act, 1976, further amended article 31-C, stating that no law enacted to fulfill directive principles could be challenged for violating rights guaranteed by articles 14, 19, or 31. In Minerva Mills, this amendment's validity was contested. The majority of the Supreme Court ruled that the amendment undermined the basic structure of the Constitution. However, Justice Bhagwati dissented,39 arguing that the prioritization of directive principles over fundamental rights, as per the amended article, was a fundamental aspect of the

37 AIR 1980 SC 1789.

38 S. P. Sathe, Constitutional Amendments 1950- 1988: Law and Politics, pp. 68-95 (Tripathi, 1989).

39 Ibid., pp. 75-80.

Constitution's basic structure.40

JUDICIAL RESTRAINT OF THE BASIC STRUCTURE DOCTRINE

Since the Minerva Mills case in 1980, the Supreme Court has been very cautious in applying the basic structure doctrine to challenge constitutional amendments. There have been no attempts by the government to directly overturn the basic structure doctrine since then. The Court has also shown reluctance in using the basic structure doctrine to strike down constitutional amendments that added new Acts to the Ninth Schedule. Despite reviewing these amendments, it has not invalidated any additions to the Ninth Schedule. Prior to the Kesavananda Bharati case, the Ninth Schedule contained only 64 Acts. However, this number has significantly increased to 257-A since then.

Notably, three entries (Entry 87 concerning The Representation of the People Act, 1951 and its amendments, Entry 92 concerning The Maintenance of Internal Security Act, 1971, and Entry 130 concerning The Prevention of Publication of Objectionable Matter Act, 1976) were removed from the Ninth Schedule by the Constitution (Forty-Fourth Amendment) Act, 1978. In the past seventeen years, the Supreme Court has invalidated constitutional amendments on only two occasions. One instance was the striking down of clause (5) of article 371-D, added by the Constitution (Thirty-Second Amendment) Act, 1973. This clause mandated that orders of an administrative tribunal, established to handle disputes in certain matters, would only take effect after confirmation by the state government.

Since the tribunal's jurisdiction covered all disputes related to services and excluded the High Court's jurisdiction, the Court ruled that unless the tribunal was as independent as the High Court, it would undermine the basic structure of the Constitution. This was seen in the case of P. Sambamurthy v. Andhra Pradesh. 41 In S. P. Sampath Kumar v. Union of India,42 the Supreme Court had initially upheld articles 323-A and 323-B, added by the Constitution (Forty-Second Amendment) Act, 1976. These articles empowered Parliament to enact laws establishing tribunals for specific matters and to exclude the jurisdiction of High Courts over these matters. The Court acknowledged that such specialized tribunals could ease the burden on High Courts and provide efficient alternative

40 For a critisim of Justice Bhagwati’s viewpoint, see Sathe, Constituional Amendments, pp. 79-81.

41 AIR 1987 SC 663: (1987) 1 SCC 362.

42 AIR 1987 SCC 386: (1987) 1 SCC 124.

avenues for dispute resolution. However, it stressed that these tribunals must possess similar independence and expertise as the High Courts since they were intended to be their substitutes. The Court scrutinized the Administrative Tribunals Act under article 323-A, which created administrative tribunals for service matters. It raised concerns about the appointment procedures for tribunal members and chairs. The Court provided detailed suggestions, including consultation with the Chief Justice of India for appointments. The Act was subsequently amended to align with these suggestions. However, doubts emerged about the tribunals' ability to fully substitute for High Courts. Experience showed that since tribunal decisions were final, with only an appeal to the Supreme Court, redressal of grievances became costly and time-consuming.

The Act's provision for appeals only to the Supreme Court posed challenges, particularly for government employees litigating service matters. In a subsequent case, L. Chandra Kumar v. India,43 the Supreme Court revisited the issue and reversed its earlier decision in S. P. Sampath Kumar v. India. It held that article 323-A(2)(d) of the Constitution, which allowed Parliament to exclude the jurisdiction of the High Court under article 226 over administrative tribunals, violated the basic structure of the Constitution. The Court emphasized that administrative tribunals could never replace a High Court in terms of authority and competence. The power of the High Court under article 226 was deemed an integral part of the Constitution's basic structure.

Consequently, the Court ruled that an aggrieved party should have the right to approach a High Court under article 226 to challenge decisions made by a tribunal. This decision reaffirmed the significance of the High Court's jurisdiction and upheld the principle of judicial review as a crucial aspect of the Indian constitutional framework. The Court observed:44 We, therefore, hold that the power of judicial review over legislative action vested in the High Court under Article 226 and in this Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, consti- tuting part of its basic structure. Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislation can never be ousted or excluded.

43 (1997) 3 SCC 261.

44 Ibid., p. 301 (para. 261)

Since its establishment in 1973 through the Kesavananda Bharati case, the basic structure doctrine has been effectively utilized in only five instances to invalidate specific provisions of constitutional amendments. These include:

1. The last segment of article 31-C introduced by section 3 of the Constitution (Twenty-Fifth

Amendment) Act, 1972 (Kesavananda Bharati v. Kerala).

2. The final part of clause (4) of article 329-A added by section 4(4) of the Constitution (Thirty-

Ninth Amendment) Act, 1975 (Indira Gandhi v. Raj Narain).

3. Article 31-C as modified by section 4 of the Constitution (Forty-Second Amendment) Act,

1976, and section 55 of the same Act (Minerva Mills v. India).

4. Clause (5) of article 371-D inserted by section 3 of the Constitution (Thirty-Second

Amendment) Act, 1973 (P. Sambamurthy v. A. P.).

5. Clause (2)(d) of article 323-A included by section 46 of the Constitution (Forty-Second

Amendment) Act, 1976 (L. Chandra Kumar v. India). These cases demonstrate instances where the basic structure doctrine was invoked successfully to challenge and nullify specific constitutional provisions deemed incompatible with the fundamental principles and framework of the Constitution. KIHOTA HOLLOHON v. ZACHILHU AND OTHERS In Kihota Hollohon v. Zachilhu and Others,45 the Supreme Court exhibited considerable judicial restraint while assessing the constitutional validity of the Constitution (Fifty-Second Amendment) Act, 1985, which introduced the Tenth Schedule aimed at preventing defection of legislators. The Schedule outlined stringent consequences for defection, including disqualification of members who change parties or vote contrary to their party's directions.

The challenge centered on whether clause 2(1)(d) of the Tenth Schedule infringed upon the freedom of speech of legislators, which is guaranteed under Article 105(1) for Parliament and Article 194(1) for state legislatures. The argument posited that the right to vote was inherent to free speech, thus curtailing this right through the Tenth Schedule violated the basic structure of

45 (1992) 1 SCC 309.

the Constitution. While these objections were significant, the Court, comprising a bench of five judges, did not find them compelling enough to invalidate the amendment. It refrained from directly addressing the validity of provisions restricting members' freedom of expression in the House. However, it noted that the restrictions on the right to vote imposed by the Tenth Schedule were particularly contentious. The Court highlighted that freedom of speech and immunity from legal actions arising from legislative duties are crucial aspects of a legislator's role in a democracy. Limiting a member's voting freedom within the House to deter defections was seen as a drastic measure that compromised essential democratic principles. In another case, P. V. Narasimha Rao v.

State (CBI/SPE),46 the Court acknowledged that freedom of speech within the legislature formed part of the Constitution's basic structure. This observation arose while deliberating on whether a legislator could be prosecuted for accepting bribes related to voting behaviors. The majority decision in this case, according to the author, was contested, arguing that freedom given to legislators is not for personal gain but to serve the interests of those they represent. Prosecution for bribery, it was argued, does not infringe on freedom but upholds the integrity of the legislative process. Overall, the argument presented is that provisions in the Tenth Schedule of the Constitution, which penalize voting against party directions, are contrary to the basic structure of the Constitution, particularly in terms of legislators' freedom of speech and expression within the legislative domain.

The judges in Kihota Hollohon v. Zachilhu and Others appeared more concerned about provisions granting finality to the Speaker's or Chairman's decisions and excluding judicial review. Paragraph 7 of the Tenth Schedule explicitly stated that no court would have jurisdiction over matters related to a legislator's disqualification under the Schedule. Additionally, Paragraph 6 granted conclusive authority to the Speaker or Chairman regarding disqualifications due to defection as defined in the Schedule. Both these paragraphs faced challenges for allegedly violating the basic structure of the Constitution. Regarding Paragraph 6, the Court applied an administrative law approach to interpret the ouster clauses.

It ruled that despite the finality clause, decisions of the Speaker or Chairman could be subject to judicial review if they exceeded their jurisdiction or were based on a mistaken interpretation of the law. However, Paragraph 7 faced a different fate. The Court didn't strike it down for violating the basic structure but rather on procedural grounds. It pointed out that since

46 (1998) 4 SCC 626.

Paragraph 7 affected provisions mentioned in the proviso to clause (2) of Article 368, it needed ratification by at least half the state legislatures. As this ratification hadn't occurred, Paragraph

7 was deemed invalid.

The majority judges, including Justices M. N. Venkatachallaih, K. Jayachandra Reddy, and Agarwal, opted to sever Paragraph 7 from the rest of the Schedule, preserving the validity of the remaining provisions. Severability is a legal principle applied when a law's valid part can be separated from the invalid part, allowing the valid part to stand on its own. However, the minority judges, Justices Sharma and Verma, argued that the entire Schedule was constitutionally flawed and couldn't be saved by severability. It's noteworthy that the majority judges refrained from striking down the amendment based on basic structure concerns. Instead, they chose to invalidate Paragraph 7 due to procedural lapses. This decision was criticized for applying the doctrine of severability inappropriately.

The basic structure doctrine, which safeguards fundamental constitutional principles, was seen as a more fitting ground for challenge. However, the majority's preference for judicial restraint limited the use of the basic structure doctrine in this case, which some argue was a missed opportunity to uphold constitutional integrity. The Supreme Court has been cautious in applying the basic structure doctrine, reserving it for amendments that significantly impact fundamental aspects of the Constitution. Determining what qualifies as a vital aspect is subjective and can be influenced by judges' perspectives and values, making it a political judgment. Excessive or insufficient use of the doctrine risks undermining its legitimacy. The Court must avoid appearing as a legislative body or trivializing the doctrine, instead acting as a guardian of the Constitution's enduring values.

Invalidating a constitutional amendment based on basic structure violation should be rare to maintain the doctrine's credibility. Overreaching by defining too many provisions as part of the basic structure could erode judicial review's legitimacy. While the Court has discussed various aspects as part of the basic structure, these are often expressions of opinion rather than binding decisions. Suggestions for enumerating the basic structure could be made through policy statements, allowing the Court to provide guidance without overly restricting constitutional flexibility. Clarifying what constitutes the basic structure can be beneficial, but it should be approached cautiously to prevent excessive rigidity in constitutional interpretation. In L.

Chandra Kumar v. Union of India, Chief Justice Ahamdi said: 47 The doctrine of basic structure was evolved in the Kesavananda Bharati case. However, as already mentioned, that case did not lay down that the specific and particular features mentioned in that judgment alone would constitute the basic structure of the Constitution. Indeed, in the judgements of Shelat and Grover JJ, Hegde and Mukherjea JJ and Jaganmohan Reddy J. , there are specific observations to the effect that their list of essential features comprising the basic structure of the Constitution are illustrative and are not intended to be exhaustive. In Indira Gandhi case, Chandrachud J.

held that the proper approach for a judge who is confronted with the question whether a particular facet of the Constitution is part of the basic structure, is to examine, in each individual case, the place of the particular feature in the Scheme of our Constitution, its object and purpose, and the consequence of its denial on the integrity of our Constitution as a fundamental instrument for the governance of the country. Conclusion This suggests that going forward, the Supreme Court may exercise utmost restraint in applying the basic structure doctrine to assess the validity of a challenged constitutional amendment. However, the doctrine could still be employed to evaluate executive actions under articles such as 356, 359, or 352 of the Constitution.

While its scope may widen to encompass both legislative and executive acts, its use in constitutional amendment cases may become less frequent. The basic structure doctrine represents the pinnacle of judicial activism, a power unique to the Indian Supreme Court and also claimed by the Supreme Court of Bangladesh. This power places a significant responsibility on the Court. It must allow legitimate changes in the Constitution while safeguarding the enduring values essential to constitutionalism. Justice Jackson's famous quote about the Court's finality underscores its authority, tempered by the understanding that its decisions can be corrected and are not a result of bias or lack of objectivity. The issue of the Supreme Court's accountability and the mechanisms reinforcing such accountability become even more critical in this context.

47 (1997) 3 SCC 261 at 300.

REFERENCES

1. Books:

"Judicial Activism in India: Transgressing Borders and Enforcing Limits" by S.P. Sathe. - "The Judiciary and Governance in India: Judicial Activism and its Critics" edited by S.K. Verma and Ritwik Shukla. - "The Indian Constitution: Cornerstone of a Nation" by Granville Austin (for historical context and understanding of constitutional principles)

2. Articles and Journals:

"Judicial Activism in India: Origins, Meaning, and Implications" by Upendra Baxi (from the Harvard Law Review). - "Judicial Activism: A Study of the Indian Experience" by Rajeev Dhavan (published in the Journal of the Indian Law Institute). - "Constitutionalism and the Courts: Judicial Activism in India" by Arghya Sengupta (from the Columbia Law Review). - "Judicial Activism in India: A Study of Judicial Interpretation of Socio-economic Rights" by Faizan Mustafa (published in the National Law School of India Review).

3. Reports and Government Documents:

Reports from the Law Commission of India regarding judicial reforms and activism. - Judgments from significant cases that have shaped the discourse on judicial activism in India, such as Kesavananda Bharati v. State of Kerala, Indira Gandhi v. Raj Narain, and Maneka Gandhi v. Union of India.