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Judicial Review of Supreme Court Judgment on IX schedule of the Constitution

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Judicial Review of Legislative Action on the Touchstone of "Basic structure" of the Constitution - Supreme Court in I R Coelho (Dead) by LRs case.
Recent Judgement of Supreme Court dated 11.01.2007 rendered in the case in I R Coelho (Dead) by LRs Vs. State of Tamil Nadu and Others is a master stroke of the judiciary. Prima facie, it is laudable for the reason, that it is a unanimous judgement of Nine judge Constitution Bench of the Supreme Court, unlike fractured earlier judgements on the point. In Keshavananda Bharati Vs. State of Kerala (AIR 1973 SC 1461) which is said to have first propounded the Doctrine of Basic Structure of the Constitution, the Hon'ble 13 Judge Constitution Bench of Supreme Court delivered 11 truncated / fractured judgements. Since 24th April 1973, the date of the judgment of the Keshavananda Bharati case, the debate is, what is the ratio decidendi, viz., the point of law laid down in the said judgment. Fortunately, the present judgment of Supreme Court by providing unanimous verdict saved the Nation from such turmoil of searching for the ratio decidendi with magnified glasses. Fractured Judgements pains the Nation a lot to understand what is the Law and much time and energy of legal fraternity is spent on debating, interpreting and searching laws from such truncated judgments. The whole of the present judgement is devoted to understand and lot of pains have been taken to impress that Doctrine of Basic Structure was propounded in Keshvananda Bharathi case. Much effort is made to highlight and explain Justice Khanna's views in Keshavananada Bharathi's case and as clarified by Justice Khanna in Indira Gandhi case, since Justice Khanna's vote in favour of Basic Structure Doctrine will give the much needed majority in its favour in Keshavananda Bharathi's case. However the propriety and validity of the clarifications provided by Justice Khanna in Indira Gandhi case, whether the same clarification can be read into Keshavananada Bharathi case, is a question to be answered. Now a days, it is a welcome feature that most of the landmark judgments are unanimous.

An invisible amendment to the Constitution:

The present judgement of the Supreme Court has made historical analysis since A K Gopalan case up to this date and has brought out the development of judicial construction of the Constitution and the Doctrine of Basic Structure. 24th April 1973, the date of Judgement of Keshavananda Bharati is made the cutoff date to test the legislative action on the touch stone of Basic Structure Theory. All Laws passed, even if they are kept in IX Schedule of the Constitution has to pass through the Basic Structure Doctrine. By making 24th April 1973 as the cut off date, the Supreme Court has admitted that they have propounded the said Doctrine of Basic Structure from the said date. Its impact and its repercussions are very serious to the Nation and it tells a lot on the amending powers of the Constitution by the Judiciary itself. We find no written letters Basic Structure in the whole of the Constitution and it is undoubtedly a judicial invention.

Article 32 of the Constitution confers the power on the Supreme Court, for the enforcement of any of the rights conferred by this part viz. Part III of the Constitution and not beyond the same. No doubt, the said power is apart from the powers conferred under Part V, chapter IV of the Constitution. If there is a violation of fundamental rights in state action, including legislative action, the same can be struck down under Article 32 of the Constitution. The touchstone could only be the Constitution and more specifically Part III of the same. Fundamental rights are enshrined in the Constitution at the time of its adoption itself. By making 24th April 1973 as cutoff date, judiciary admits introduction of a new Chapter called Basic Structure to the Constitution, to be a touchstone, to test the state action and it is in the nature of an invisible amendment without inserting any letter to the Constitution. Certainly, judiciary does not have powers to amend the Constitution, but by propounding the Basic Structure doctrine as touchstone to test the legislative actions and by evolving the same from Keshavananda Bharati case to the present case and making the same as an enforceable doctrine, the judiciary had exceeded its delineated powers. While holding on one hand that the Parliament, while exercising constitutional amending power under Article 368, cannot amend the Basic structure of the Constitution, the judiciary has exactly done the same by usurping to amend the Constitution by inserting the Basic Structure Doctrine in the Constitutional Arena, without having even semblance of power to amend the Constitution.

Basic Structure Doctrine is certainly an invisible amendment to the Constitution or otherwise the date 24th April 1973 is irrelevant. The Judiciary can have the Constitution as touchstone and not the doctrines, theories, propounded later by the judiciary. The doctrines and theories can only serve as tools to understand/ interpret the constitution. But they themselves cannot be touchstones and replace the constitution. The judiciary possibly, unconsciously made a theory, laid it as a touchstone and put a cut off date, everything without introducing a word in the constitution. Again, the big question is who can review the power of judiciary to make such invisible amendments to the constitution. There is no provision or mechanism spelt out in the Constitution to review the judicial action by any independent organ, similar to judicial review of legislative action read into Article 32 of the Constitution. At times, legislature and the executive could only be helpless spectators of judicial action. If the Supreme Court in the present case does not restrict the date as 24th April 1973 things could have been possibly different. The Supreme Court should have continued to have part III of the Constitution as touchstone and not beyond.

Supreme Court in the present case has proclaimed at para 78 that ?this Court being bound by all the provisions of the Constitution and also by the Basic Structure doctrine has necessarily to scrutinize the Ninth Schedule Laws? (emphasis added). By such assertion, the Supreme Court openly admitted that they are bound by not only provisions of the Constitution but also Basic Structure Doctrine and it evidences that Basic Structure Doctrine is apart from the Constitution and not part of the Constitution. Whether Article 32 of the Constitution from where Supreme Court derives power, jurisdiction to enforce fundamental rights gives such power to propound binding doctrines/ theories such as Basic Structure and thereby introduce invisible amendments to the Constitution is a matter to be debated further.

Interpretation of the constitution:

Another curious aspect of the Judgement is that theory of construction propounded in para 59 of the Judgement which reads the constitution is a living document, its interpretations may change as the time and circumstances change to keep pace with it. The present judgement has traced as to how the theory of interpretation / construction has undergone metamorphosis from A K Gopalan case up to date. What applies to interpretation of Constitutional Law equally applies to other Laws. That means the constitutional law whose interpretation depends upon the change of time, circumstances and other Laws, also remain in constant change mode and is susceptible for change of meaning. But the dichotomy is as to whether the legislature has to wait for the interpretation of the Constitutional law by the judiciary and then pass legislation accordingly inspite of change of times and circumstances or whether the legislature has to presume the meaning and content of constitutional law due to change of time and circumstances and enact laws and wait for the judiciary to authenticate the same.

Theory of Checks and Balances:

Theory of checks and balances are referred to at paragraphs 24 and 75 of the Judgment and Separation of powers are referred to at Paragraph 35. It is also stated that Separation of powers is also one of the component of Basic structure. As against Executive power, checks and balances are exercised by the Judiciary as well as the Legislature. As against the Legislature, it is exercised by the Judiciary. Above all, the Executive and Legislative actions are amenable to severe public criticism and their actions may be a doom's day and incur public wrath resulting in overthrowing them out of power. The Legislature is also accountable for the actions of the Executive, since virtually the party in power controls the Executive. But there are no Checks and Balance on the Judiciary and the theory of Checks and Balance does not cover equally vital wing. No doubt, the Higher Judiciary may be amenable for impeachment which is seldom resorted. Unlike Executive and Legislative actions, the Judicial action is not amenable for criticism of such tone and tenor, in view of contempt of court laws.

Having submitted the above, when we consider in the broader perspective as to whether the Judiciary is right in going beyond the constitution and the answer could only be in the Positive. It is for the simple reason that the Constitution is not all pervasive and it cannot encompass all eventualities.

Furthermore, the Constitution is only declaratory of what was already inherent in the society. Prior to the constitution and even before the advent of the English and Western theories, no one can say that there was lawlessness and laws came only with the English.

Dominating Western ideologies:

It is unfortunate to note that there was no reference to the cultural ethos of this country in the above judgment and reference and inspiration is sought only from Western ideologies. The whole friction arises out of the Separation of Powers enshrined in the constitution based on Western theories which are not in tune with Indian politico-legal systems. As per Indian genesis, the Executive and the Judiciary goes together and vests in the same Institution and the Legislature was independent institution unconnected with the power structure. The Legislature was mainly taken care of by the noble and the learned.
Another aspect of the judgment is repeatedly telling that the constitution is a living document and it was made out of extensive deliberations. This assertion is questionable. The draft constitution was prepared by Shri B N Rau, within a month's time referring to Irish, Canadian and other Western Constitutions. Virtually there was no deliberation before or after drafting the constitution and the nature of the Polity and the institutions the country has to adopt. The native genius institution of Panchayat Raj was not even discussed. Democracy, Parliamentary form of Government and adult franchise were taken for granted without any deliberations. The present constitution was admittedly adopted out of expediency. The philosophy and ideology was provided by the Objective Resolution which was again pushed through.

The temporary feature of the Constitution then evolved, is borne out by the words of Jawaharlal Nehru himself in the Book Jawaharlal Nehru's speeches 1946 - 1949 Second edition Reprinted Oct 1963 - Page 23,24).

The relevant portion is extracted hereunder:

we shall frame the constitution and I hope it will be a good constitution, but does anyone in this house imagine that when a free India emerges it will be bound down by anything that even this House may lay down for it? A free India will see the bursting forth of the energy of a mighty nation...but I do know that it will not consent to be bound down by anything. Some people imagine that what we do now may not be touched for ten years or twenty years; that if we do not do it today, we shall not be able to do it later. That seems to me a complete misapprehension.... It may be that the Constitution this House frames may not satisfy an India that is free. This House cannot bind down the next generation or the people who will duly succeed in this task. Therefore, let us not trouble ourselves too much about petty details of what we do; these details will not survive for long, if they are achieved in conflict.
Mahatma Gandhi, in his Hind Swaraj - .Edition , Page commented contemptuously against the British parliament and similarly against the legal system. None of the native thoughts are given consideration while adopting the polity and the Institutions. For whatever we opposed the English, we simply copied the same and continue to glorify the same

To cap it all, an observation made by Jawaharlal Nehru in his Discovery of India go on to establish that what vision he propagated in his writings turned topsy-turvy in his implementation. In Discovery of India by Jawaharlal Nehru Ninth Edition 1989 page 302, Nehru has expressed that until the advent of British, India had retained socio-political and economic roots intact. In his words;

"....She had never lost her independence, never been enslaved. That is to say, she had never been drawn into a political and economic system whose centre of gravity lay outside her soil, never been subjected to a ruling class which was and which remained, permanently alien in origin and character. Every previous ruling class, whether it had originally come from outside or was indigenous, had accepted the structural unity of India's social and economic life and fitted into it."

The Nehru of this ideology, who considered British Socio-political and economic system alien ha d gone to adopt the very same system when it was in his hands to frame the Constitution,. What an Irony!

The malady lies elsewhere and we have not turned our eyes towards the said right direction, for the cure. The present constitution could only lead to pitfalls and not solutions and guidance.

Agrarian Reforms purpose served

The present judgment is with reference to Ninth Schedule of the constitution. Ninth Schedule was created to safeguard populist and self centered laws. It was originally intended for Agrarian reforms and the Judiciary has upheld the same since the Agrarian reforms were taken for granted as the socialist thought was permeating the English educated. The result of Agrarian reforms is that agrarian society is virtually killed. Large tracks of land are lying unproductive and it has resulted in massive urbanization and concentration of wealth in the urban centres, which remains un-addressed, even after years of its introduction. The poor became still poorer. The agriculturist is called the Landlord but they were made victims of vicious propaganda. The word agriculturist became synonymous with illiterate, innocent, helpless, poor creatures who are looked down. The result is, no one is prepared to be an agriculturist or the landlord and people are in run to urban centres at the first opportunity. In fact as per our Indian culture and institutions, one used to have right to possess and enjoy the property and does not have absolute right to alienate and to speculate. .With the introduction of Ryotwari system, during Munroe's period by the English, the property was made a marketable commodity, which is creating havoc. This again is evidenced in Jawaharlal Nehru's discovery of India in page 303 wherein he has stated.

A more direct blow came from the introduction of the landlord system, changing the whole conception of ownership of land ... the British Governors, themselves representing the English landlord class , introduced something resembling the English system in India. ...the village community was deprived of all control over land and its produce; ...this led to break down of joint life and corporate character of the community.

It is a pity that what Nehru could visualize as an outsider, he failed to implement when he was given the authority to do. In fact he played right into the hands of British by copying their system and allowing the evil to continue. Or possibly it could have been with the fond hope that independent India which he expected to be mighty and energetic will come out of its own indigenous and better road map. This hope is yet to be seen as reality. In fact we do not even see rays of it still.

Concluding thoughts:

The Ninth schedule has become vote catching device and with such intentions the Legislature misused the same. Then the Judiciary invented the device of Basic Structure. Doctrine to scuttle the designs of the Legislature. Such real issues has to be addressed by the society with open mind. The real issue lies in political system, which necessitates constant appeasing of vote banks and unless the same is addressed, the political clan will continue to upload Ninth schedule or find such other ways and means to outwit.

Basic Structure Doctrine is the reply to the dubious steps adopted to misuse the Ninth Schedule and the judgment as a whole is laudable.

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