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58 JILI (2016) 189

Statement of Indian Law-Supreme Court of India through its Constitution

Bench Decisions Since 1950: A Juristic Review of its Intrinsic Value and
Juxtaposition

STATEMENT OF INDIAN LAW-SUPREME COURT OF INDIA THROUGH ITS CONSTITUTION

BENCH DECISIONS SINCE 1950: A JURISTIC REVIEW OF ITS INTRINSIC VALUE AND
JUXTAPOSITION
by
Virendra Kumar*
ABSTRACT
The juristic review of Govmd Goels work, Statement of Indian Law, through
critical analysis of its substantive subject-matter, seeks to explore its intrinsic value
and juxtaposition in the realm of constitutional system of India. This monumental
work essentially contains the collected, compiled, annotated, chronologically decade
-wise classified constitution bench decisions of the Supreme Court since its
inception. Thematically it represents a running interpretative commentary on the
Constitution. Since the critical function of the constitution bench is to resolutely
resolve and explicate the substantial questions of law as to the interpretation of the
Constitution, the Supreme Court becomes the mode and medium of providing the
requisite dynamism to the constitutional document whereby it continually keeps on
adapting itself to the changing needs of emerging society.
Without understanding the evolution of law that hitherto took place through the
contrivance of constitutional benches, the comprehension of the Constitution would
remain incomplete. In this wise, the authors work, which systematically abstracts
the propounding of the constitution benches of the Supreme Court, has all the
potential of eventually becoming the constitutional law of India.
I Introduction
THE BOOK Statement of Indian Law is a compendium of Supreme Court
1

constitution bench decisions since the inauguration of the Constitution in 1950. This
work, compiled, collated and annotated by Govind Goel was released by T.S. Thakur
CJI, at Rashtrapati Bhavan, on April 7, 2016, by presenting its first copy to the
President of India, Pranab Mukherjee.

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Speaking on the occasion, the President eulogised the role of the Supreme Court in
making the Constitution of India a living organic document keeping pace with the
changing times.2
The purpose of the present review paper is to critically examine the authors work,
which has been widely acclaimed by very many distinguished judges, jurists and
senior advocates of the Supreme Court in their pre-publication statements.3 However,
the singular focus of this review is to find out critically its intrinsic value and the
juxtaposition vis- -vis the Constitution of India and the constitutional order.
II Adoption of constitutionalism
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After attaining political independence, the first and foremost challenge was the
question of how to reconstruct the polity and restructure the system of governance. In
order to fulfil the promises that the leaders made during the freedom struggle, India
opted for the complex of constitutionalism a system of governance in which
sovereignty lies, not in any King or Queen but, in the Constitution itself. Accordingly,
We, the people of India, adopted, enacted and gave to ourselves the Constitution The
Constitution of India in the Constituent Assembly on November 26, 1949. The
Constitution was drafted with a solemn resolve to constitute India into a Sovereign,
Socialist, Secular, Democratic Republic and to secure to all its citizens: Justice, social,
economic and political; Liberty of thought, expression, belief, faith and worship;
Equality of status and of opportunity; and to promote among them all Fraternity
assunng the dignity of the individual and the unity and integrity of the Nation. This
indeed is the preamble of the Constitution based on the Objective Resolution adopted
by the Constituent Assembly on January 22, 1947.
A clear expositive-expression of the resolve as stated above is found in the body of
the Constitution. Lest the functioning of the constitutional order should fail or suffer
due to such pitfalls as uncertainty or ambiguity, the

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founding fathers of the Constitution have attempted to make the basic document of
the nation as specifically clear and articulate as possible. This resulted in making the
Constitution initially run into as many as 395 articles, divided into 22 parts, along with
12 schedules perhaps the lengthiest written Constitution of the world!

III Constitution benches repository of constitutional dynamism by resolving

substantial questions of law as to the interpretation of the Constitution
The Constitution is unarguably supreme. The three main organs of the state,
namely the legislature, executive and judiciary, with their respective demarcated
domains, operate under the Constitution, and not over and above it. However, during
the course of its operational functioning, if there arises any conflict or confusion in the
interpretation of any constitutional provision(s) involving a substantial question of law,
the issue is required to be resolved authoritatively under article 145(3) of the
Constitution by a bench of the Supreme Court consisting of at least five judges.4 Such
a bench, as it is concerned with interpretation of the Constitution, is traditionally
termed as the constitution bench or constitution bench of five or more judges. There
could, thus, be the constitution bench of seven or 11 judges.5 The largest constitution
bench hitherto constituted so far is that of 13 judges.6
Likewise, if any reference is made by the President to the Supreme Court under
article 143 of the Constitution7 for seeking its opinion on a question of law or fact that
has arisen or likely to arise and which is of such a nature and of such public
importance, that reference is required to be responded and resolved by the Supreme
Court bench of five judges or more.8

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The requisite of resolving the issue by a constitution bench is also resorted to where
the Supreme Court, in exercise of its appellate jurisdiction, hearing appeals from high
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courts in regard to, say, civil matters under article 133,9 or criminal matters under
article 134,10 other than article 132,11 consists of less than five judges and in the
course of the hearing of the appeal the court is satisfied that the appeal involves a
substantial question of law as to the interpretation of the Constitution, the
determination of which is necessary for the disposal of the appeal.12 The difference
between the principal clause of article 145(3) and the proviso to the same clause in
the context of constituting the constitution bench seems to be that in the former case
substantial question of law as to the interpretation of the Constitution arises directly,
whereas in the latter case, somewhat indirectly because the context being essentially
non-constitutional in the first instance.13

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IV Constitution benches modus operandi of resolving substantial questions of

law as to the interpretation of the Constitution
What sort of interpretation of the Constitution could be said to giving rise to a
substantial question of law as to the interpretation of the Constitution that is required
to be referred and resolved by a Constitution bench of more than five judges?
Obviously, every question of interpretation of the Constitution does not throw up the
problematic of a substantial question of law as to the interpretation of the
Constitution. Why? The simple reason is that every provision of the Constitution has
been drafted by the Constituent Assembly with due deliberation, involving open
debate, moving amendments and counter-amendments14 so that its purport is clear
and understood by every instrumentality of the state, else how could they act in
accordance with the provisions of the Constitution in their respective demarcated
domains, and that too quite independently of each other?
However, if there is some duality of interpretation, say, between two high courts,
and the same could be resolved by a two-judge bench decision of the Supreme Court
with a relative ease in the light of hitherto settled principles of law, then that would be
a case of, what we may call, conflict simpliciter, not really involving a substantial
question of law as to the interpretation of the Constitution. In case there is a conflict
of opinion, say, between two-judge bench decisions of the Supreme Court, it would
give rise to a conflict-situation which is more than a conflict simpliciter, but still less
than the one involving a substantial question of law as to the interpretation of the
Constitution if it could be answered, say, by a bench of three judges by following the
established cannons of interpretation. But in case, the three-judge bench either tends
to disagree with the interpretation taken earlier by a co-equal bench, or the issue
involved is of immense public importance, the court may recommend to the Chief
Justice of India for consideration of that issue by a constitution bench of more than
five judges as an issue involving a substantial question of law as to the interpretation
of the Constitution under article 145(3).

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V The book as a compendium of constitution bench decisions

The continuum of evolutionary-development of the Constitution that is taking place
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since its inception through the constitution benches of five or more judges has been
admirably resurrected and painstakingly stated by the author. The resurrected
statement is both in terms of constitutional foundational principles, such as equality,
freedoms, life and personal liberty, property, constitutional remedies;15 and
legislatively enacted laws premised on those very principles or that are in consonance
with them.16 In the latter case, the legislative enactments have been classified under
such broad headings as taxation law, administrative and service laws, civil law,
criminal law and international law, punctuated by decade-wise developments.17
However, it has been illustratively shown, how, in what context, and to which
extent the evolution of law has hitherto taken place through the constitution benches
of varying strengths, and determine the impact of that the evolving law on the
Constitution and the constitutional order. For doing so, one may pick up a case from
the chequered history of constitutional development that not only appeared almost at
the very inception of the Constitution, but thereafter continues to give rise to a series
of related substantial questions of law as to the interpretation of the Constitution.
Further it can be critically examined, how and in which cases the need had arisen for
making a referral to the constitution bench of five judges or more of the Supreme
Court, and then how the court moved on progressively to constitution benches of
higher strengths till it reached the largest constitution bench of 13 judges, which
culminated in propounding the classic inviolable pnnciple of basic structure of the
Constitution.
However, the process of evolution and development of the principle of basic
structure did not end-up there! It rather laid the foundation of a new beginning in the
realm of constitutional law. Successive constitutional benches through the exposition
of this principle have developed and added new dimensions that complement the
Constitution and make it truly dynamic. How all this has been accomplished through
the constitutional benches by raising successively substantial questions of law as to
the interpretation of the Constitution may be illustrated in the following paragraph for
having an

Page: 195

inside view of the evolving law leading to the classic pnnciple of basic structure of the
Constitution.

VI Constitution benches resolving substantial questions of law as to the

interpretation of the Constitution : An inside view
First substantial question of law regarding article 13(2): Whether the term law
in article 13(2) includes within its ambit amending law enacted under article
368 of the Constitution
One of the most critical problems, giving nse to a substantial questions of law as to
the interpretation of Constitution, arose almost at the very threshold of the
Constitution. It is in respect of article 13 of the Constitution, which ordains that the
state shall not make any law that is inconsistent with or is in derogation of
fundamental rights enunciated in part III of the Constitution. This stipulation applies
to both pre- and post-Constitution laws. Clause (1) of article 13 covenng pre-
Constitution laws, lays down that all laws in force in the territory of India immediately
before the commencement of this Constitution, in so far as they are inconsistent with
the provisions of this Part, shall, to the extent of such inconsistency, be void. Likewise,
clause (2) of article 13 specifically stipulates in respect of post-Constitution laws: The
State shall not make any law which takes away or abndges the nghts conferred by this
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Part and any law made in contravention of this clause shall, to the extent of
contravention, be void. Here the term law is used in the most generic sense.18
In view of this categorical constitutional prohibition, all such laws that were enacted
by the legislature with a view to bring about land reforms for abolishing Zamidan
system (which was perhaps the single most source of exploitation of the poor tillers),19
came to be challenged in the Supreme Court on the ground of violation of fundament
right to property under article 31 of the Constitution.20 In order to maintain this
movement of land reforms,

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the Parliament21 in exercise of its power under article 368 contained in part XX of the
Constitution22 was immediately prompted to amend the Constitution by introducing
two new articles 31-A23 and 31-B (along with the ninth schedule)24 through the
Constitution (First Amendment) Act, 1951 with a retrospective effect. The avowed
objective was to solely and singularly save the land reforms enactments from the
challenge on grounds of violation of fundamental right to property.

How could the Parliament do so in view of article 13(2) that clearly and categorically
prohibited the state overriding any of the fundamental rights contained in part III of
the Constitution? That instantly brought to the fore specifically a substantial questions
of law as to the interpretation of the Constitution : whether or not the amending law
falls within the ambit of law envisaged under article 13(2).
This question was answered by the constitution bench of five judges in Sri Sankari
Prasad Singh Deo v. Union of India and State of Bihar25 on October 5, 1951. Speaking
for the bench, Patanjali Sastri J held that in the absence of a clear indication to the
contrary, it is difficult to assume that fundamental rights are also immune from
constitutional amendment, and accordingly, the first amendment of the Constitution
was upheld as valid and constitutional as it did not violate the provision of article 13
(2) by virtue of falling outside the ambit of law envisaged by it.26

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This interpretation of article 13(2) makes room for the exercise of parliamentary
power under article 368 that can be exercised in respect of all the provisions of the
Constitution, and thereby avoiding the possibility of making this amending power
otiose or simply non-existent for amending fundamental rights. This, in turn, gave rise
to another cognate substantial question as to the interpretation of the Constitution.
Second substantial question of law regarding article 13(2): Whether the
amending law enacted under article 368 of the Constitution is immune from
judicial review
The issue of the ambit of law in article 13(2) came up again before the constitution
bench of five judges in Sajjan Singh v. State of Rajasthan.27 . This was in the context
of a challenge to the constitutionality of Constitution (Seventeenth Amendment) Act,
1964, whereby certain legislations were placed in the ninth schedule and, thus, taken
out of the purview of their being challenged on the ground of violation of fundamental
rights.
Gajendragadkar CJI (for himself and Wanchoo and Raghubar Dayal JJ) approving
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the view expressed earlier in Sankari Prasad, stated that on principle, it would not be
reasonable to proceed on the basis that fundamental rights enshrined in Part III were
intended to be finally and immutably settled and determined once for all and were
beyond the reach of any future amendment28 On the other hand, Hidayatullah and
Mudholkar ]] in their respective opinions though concurred with the order of
Gajendragadkar CJI as to the constitutionality of the Seventeenth Amendment Act,
1964 but seemed to disagree with the sweeping ratio of Sankari Prasad. Mudholkar J
agreeing with Hidayatullah J states that the amending law under article 368 is
eventually enacted in the exercise of legislative power.29 The provision of article 368
does not say that when Parliament makes an amendment to the Constitution it
assumes a different capacity, that of a constituent body.30 At the best, it can only be
regarded as an additional legislative power.31 Hence, amending

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Act is a law within the purview of article 13, and, therefore, subject to judicial review
like any other law. And this is the aspect which escaped the notice of Patanjali Sastri J
in Sankari Prasad.32

Having thus reasoned, Mudholkar J sangumely states that since we have chosen to
live under a wntten Constitution that accords paramount importance to the citizens of
our country, it would be of critical importance for us to know whether the basic
features of the Constitution under which we live and to which we owe allegiance are to
endure for all time, or at least for the foreseeable future, or whether the yard no more
endunng than the implemental and subordinate provisions of the Constitution.33
Thus, the majonty opinion, following the view expressed in Sankari Prasad, is
essentially premised on the proposition that fundamental nghts as enunciated in part
III of the Constitution are not eternal or immutable and, therefore, amenable to
change, and this is possible only by treating the amending law falling outside the
purview of law as envisaged by article 13(2). Against this propounding, in the minority
opinion even the amending law is squarely covered within the scope of law as
contemplated by clause (2) of article 13, inasmuch as fundamental rights enshrined in
part III are in the nature of basic features of the Constitution that could not be altered
even by resorting to the amending power under article 368 of the Constitution. This
view is reinforced by adding that the Constituent Assembly, while drafting article 13
(2) took enough care to provide the requisite resilience within the campus of
fundamental rights themselves, just as in clauses (2) to (6) of article 19.34
The closely divided opinions of the constitution bench of five judges brought once
again the problematic issue of interpretation of article 13(2) vis-a-vis article 368 to
the centre-stage of acute judicial controversy, giving rise to another set of substantial
questions of law as to the interpretation of the Constitution.

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Third substantial question of law regarding article 13(2): Whether

fundamental rights enshrined in part III of the Constitution are amenable to
amendment by the Parliament under article 368, and if so, what is the
constitutionally permitted extent of that power of amendment?
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This issue came up for consideration before the constitutional bench of 11 judges of
the Supreme Court in L.C. Golak Nath v. State of Punjab.35 In this case, the Supreme
Court considered the correctness of the view earlier taken in Sankari Prasad and Sajjan
Singh. By a majority of six to five, the court deviated from its earlier view, and held
that constitutional amendment through the amending Act is a law within the meaning
of article 13 of the Constitution and, therefore, if it takes away or abridges the rights
conferred by part III thereof, it is void. In view of the prospective operation of this
decisional-interpretation, the Parliaments hitherto unlimited amending power stood
diminished vis- -vis fundamental rights with effect from the date of decision, i.e.
February 27, 1967.
The 11-judge bench decision of the Supreme Court in Golak Nath led to the spree of
successive constitutional amendments; to wit, 24th amendment (1971),36 25th
amendment (1971),37 26th amendment (1971)38 and 29th amendment (1972).39 The
first two amendments, namely 24th and 25th directly impinge upon articles 13 and 368,
and, therefore, need special attention.
Through the Constitution (Twenty fourth Amendment) Act, 1971, the Parliament
ushered in two critical changes. On the one hand, it amended the problematic article
13 by inserting clause (4), which provides that nothing in that article shall apply to
any amendment of this Constitution made under

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article 368; on the other hand, it amended article 368 by inserting words in exercise of
its constituent power in clause (1) instead of simply amending power .40

The Constitution (Twenty-fifth Amendment) Act, 1971, likewise brought in two

major amendments.41 On the one hand, it amended the provision of article 31 dealing
with compensation for acquiring or acquisition of properties for public purpose so that
only the amount fixed by law needs to be given, and this amount could not be
challenged in court on the ground of inadequacy of the amount or it was not in cash.
On the other hand, this amendment also introduced a new article 31C, which
specifically provides for saving of laws giving effect to directive principles of state
policy contained in part IV of the Constitution:42
Notwithstanding anything contained in article 13, no law giving effect to the
policy of the State towards securing all or any of the principles laid down in Part IV
shall be deemed to be void on the ground that it is inconsistent with, or takes away
or abridges any of the rights conferred by article 14 or article 19 and no law
containing a declaration that it is for giving effect to such policy shall be called in
question in any court on the ground that it does not give effect to such policy.
However, the singular objective of the state through all such amendments was to
confer almost an unlimited power on the Parliament to impinge upon fundamental
rights of citizens. That raised another set of substantial questions of law as to the
interpretation of the Constitution.

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Fourth substantial question of law regarding article 13(2): Whether the

amending power of the Parliament under article 368 of the Constitution was
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unlimited or absolute; and whether in the exercise of that amending power,
the fundamental rights enshrined in part III could be amended adversely.
The move of the state to confer unbridled power upon itself to amend fundamental
rights through numerous constitutional amendments, as instanced above, came to be
challenged before the 13-judge bench of the Supreme Court in His Holiness
Kesavananda Bharati v. State of Kerala (1973).43 This largest 13-judge constitution
bench hitherto constituted so far sat for 68 days and produced as many as eleven
separate judgments, running into about 1000 printed pages. The result of their
exercise was that the 24th amendment was upheld as valid. So was the case with the
25th amendment, excepting of course the italicised part of article 31C as abstracted
above, which was declared unconstitutional. The validity of the 26th amendment was
left to be determined by a constitution bench of five judges. The 29th amendment was
also upheld as valid.44
The resultant cumulative effect of these formal constitutional amendments, inter
alia, was that the principle of inviolability of fundamental rights laid down in Golak
Nath was negated. Thenceforth, that is, after April 24, 1973, the Parliament shall have
the power to amend each and every part of the Constitution, including fundamental
rights, but subject only to the proviso-principle that in the exercise of such power its
basic features or structure shall not be damaged or destroyed. The basic
feature/structure of the constitution, thenceforth, has thus become the juristic
principle for effectively controlling the hitherto unlimited power of the Parliament to
amend the Constitution. In functional terms, it means that the exercise of amending
power by the Parliament under article 368 of the Constitution is subject to judicial
review by the Supreme Court on the touchstone of basic structure of the Constitution.
And this is how both the inter-related substantial questions of law as to the
interpretation of the Constitution that relate to the scope of Parliaments power to
amend any and every part of the Constitution, including part III

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inscribing fundamental rights, have been answered. The emerging answer, however,
has been provided by the sharply divided constitution bench of the Supreme Court by
the majority of 7:6 in terms of the principle of basic structure of the Constitution,
which is intended to be inexorably inviolable. This leads us to critiquing the 13-judge
constitution bench decision of the Supreme Court propounding the principle of basic
structure of the Constitution.

VII Critiquing the 13-judge constitution bench decision propounding the basic
structure principle
The propounding of the principle of basic structure of the Constitution by the 13-
judge constitution bench of the Supreme Court has been hailed as a historic decision
in the evolution and development of constitutional law in India. But, somehow or the
other, such a critical constitutional-decision-principle remained virtually non-functional
for years to come say for about more than next 30 years! For examining the intrinsic
value of this largest constitution bench decision, it would be imperative to direct the
critique on the following counts:
Why the basic structure principle remained virtually non-functional for the
next more than three decades?45
On this count, one may decipher at least three distinct and yet closely related
reasons, reflecting why such a seminal principle remained dormant for about next
more than 30 years.
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Firstly the basic structure principle remained somewhat suspect or doubtful after its
formal emergence. It was seemingly so owing to the sharp difference of opinion of the
Supreme Court in its very propounding! This is evident from the very complexion of
the deeply divided 13-judge bench in Kesavananda Bharati case six judges led by S.M.
Sikri CJ (Shelat, Grover, Hegde, Mukherjea, and Reddy JJ) on one side; another set of
six judges led by A.N. Ray J (Phalekar, Mathew, Beg, Dwivedi, and Chandrachud JJ.)
on the other. One remaining judge, namely H.R. Khanna J who hitherto remained
unattached to either of the two groups, as if by the quirk of history, eventually opted
to join the opinion held by the group of six judges led by Sikri CJI. This resulted into
the landmark opinion/judgment, albeit by a very thin-edge majority the majority of
7:6 - the opinion that resulted into, what is came

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to be known as, the principle of basic structure of the Constitution that changed the
course of constitutional history, of course prospectively.

This thin-edge majority of the Supreme Court, however, makes the judgment
somewhat suspect about its intrinsic value, as if, from within ! Sikri s CJI group of six
judges held the inviolability of the Constitution on the ground of its basic structure,
and the group of another six judges led by A.N. Ray J on the other side disputed the
very existence of such a doctrine, inasmuch as they vehemently averred that there
existed no such basic structure of the Constitution apart from the Constitution itself.
The point that needs to be noted is that such a sharp or deep division amongst the
serving judges of the Supreme Court had seriously affected the acceptability of this
principle in the years to come.
Secondly it relates to the continuing ambiguity about the basic structure doctrine.
This is primarily owing to its non-crystallisation. How to perceive, identify or
functionally define the basic structure of the Constitution remained an enigma or a
puzzle of some sort! Such an enigmatic situation is reflected, for instance, in the
observations of K.K. Mathew J in a subsequent constitution bench decision in Indira
Nehru Gandhi :46
The concept of a basic structure, as brooding omnipresence in the sky, apart
from specific provisions of the constitution, is too vague and indefinite to provide a
yardstick for the validity of an ordinary law.
In fact, this was the view of the minority court in Kesavananda Bharati. Moreover,
Mathew J himself was a member of the 13-judge bench in Kesavananda Bharati that
echoed the view of the group of six judges led by Ray J representing the minority view
It needs noticing that the same minority view finds resonance in subsequent decision,
notwithstanding the norm of judicial propriety that obliges the court judges to accept
and adopt the majority opinion both in letter and spirit even if they had entertained
and propagated the opposite view in the course of judicial decision-making However,
there was nothing un-natural about it if a judge is later found to giving vent to his
conviction without disregarding the ratio of the majority court in the eventual decision-
making!

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A similar difficulty in exploring the scope and extent of the concept of basic
structure was experienced in many other subsequent judicial decisions, often
necessitating the constitution of constitution benches. Reference, for instance, may be
made to the undernoted judicial decisions in which attempt was made to explore the
nature and content of the concept of a basic structure.47 However, no tangible or
substantial breakthrough in crystahising the concept of basis structure could be made.
Infact, way back in 1982 the present reviewer wrote a short critique, proposing a
broad perspective of the doctnne of basic structure of the Constitution.48 In that short
paper the sole concern was to point out that to identify the basic features of the
Constitution hypothetically would make the Constitution static. For example, it is not
nght to say that such and such article, say, article 14, is a part of the basic structure,
because in that respect the whole Constitution would be basic. Instead, the whole
emphasis should be to find out in each case, whether or not the particular amendment
destroys or disturbs the basic structure. This approach would make the Constitution
dynamic.
Thirdly basic structure doctrine in its very inception tends to betray its fragile
character. This becomes evident vis- -vis holding the constitutionality of the
Constitution (Twenty-ninth Amendment) Act, 1972.
The 29th amendment sought to place two land reform laws into the ninth schedule
of the Constitution by inserting entnes 65 and 66. The group of six judges led by Sikn
CJI would uphold the constitutionality of the 29th amendment but only conditionally,
by stating that it was valid only if the legislation added to the ninth schedule did not
violate the basic structure of the Constitution. On the other hand, the other group of
six judges led by Ray J upheld the constitutionality of the same amendment
unconditionally, and Khanna J joined them (who was part of the group of seven judges
led by CJI Sikn that propounded the basic structure doctnne). This created the
position of ambivalence, which was bound to generate confusion in subsequent cases
and thereby affect the natural growth or evolution of the basic structure principle.49

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For instance, Ray CJI (as he later became) in Indira Gandhi case observed that the
constitutional validity of the 29th amendment was upheld in Kesavananda Bharati
unanimously,50 whereas Bhagwati J in Minerva Mills case observed that
constitutionality was upheld by a divided court.51 Existence of this duality affected the
basic structure principle itself, for it tantamounted to saying that basic structure
principle was propounded by the majority of 7:6 in the 13-judge bench judgment in
Kesavananda Bharati, but did not apply the same principle in the concrete fact
situation presented before the same bench for determining the constitutionality of 29th
amendment of the Constitution. Seemingly this stand of obliterating the distinction
between conditional and unconditional upholding of constitutional validity gives us the
impression that the basic structure principle was aborted the moment it was
conceived!52
How the basic structure principle became functional after the nine-judge
constitution bench unanimous decision in I.R. Caelho?53
The unanimous decision of the nine-judge constitution bench of the Supreme Court
in I.R. Coelho provided a new fillip to the basic structure principle enunciated in
Kesavananda Bharati. The following four distinctive attributes of I.R. Coelho case need
our special attention, which tend to unfold the potential of this unique principle.
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First distinctive attribute

I.R Coelho puts the basic structure principle on firmer footing by revealing as many
as at least four rationale stipulating why it is imperative to hold that Parliament s
amending power is not unqualified or unlimited, and the same is liable to be tested by
the court on the touchstone of Constitution.
Firstly, it is implicit in the principle of separation of powers envisaging the strategy
of checks and balances to safeguard constitutionalism, which indeed is the foundation
of modern democratic system of government. It forbids that the authority to enact law
and to decide the constitutional validity of the same should vest in one and the same
authority, namely the legislature.54
Secondly, [t]he power of amending the Constitution is a species (kind or division)
of the law making power (constituent power), which is the genus (class).55 This is a
very significant statement depicting the true character of the amending power. Just as
murder is a species of crime, or patent law a species of intellectual property, likewise
the power to amend the constitution is only a kind or division of constituent power,
and not constituent power by itself. It is indeed a derivative power a power which is
derived from the Constitution.56 The clear implication of this exposition is that the
amending power under article 368 of the Constitution is also subject to the same
constitutional constraints or limitations as are spelled out in the Constitution for the
law making power. It is on this premise, the Supreme Court struck down clause (4) of
article 329-A in Indira Gandhi, as it made the controlled constitution uncontrolled by
overriding or eliminating the principles underlying articles 14, 19, and 21, which are
collectively described as the golden triangle57
To overcome this interpretation, the Parliament introduced the expression
constituent power into clause (1) of article 368 in place of amending power by the
42nd amendment of the Constitution, which was struck down by the Supreme Court
as unconstitutional in Minerva Mills Ltd. case. On the strength of the same reasoning,
clauses (4) and (5) inserted into article 368 by the 42nd

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amendment of the Constitution were struck down by the Supreme Court as

unconstitutional in Minerva Mills Ltd.58

Thirdly, amending power under article 368 of the Constitution carries its own
implicit rough and ready measure.59 Such a measure was deciphered by the Supreme
Court in Waman Rao60 by invoking the analogy of permissibility of an amendment of a
pleading, that is, how far the amendment of a pleading is consistent with the original.
In this respect, emphasised the apex court, you cannot by an amendment transform
the original into opposite of what it is. Obviously, for this purpose a comparison is
undertaken to match the amendment with the original. Such a comparison, counselled
the court, can yield fruitful results even in the rarified sphere of constitutional law.61
This proposition stands affirmed in I.R. Coelho case: [S]ince the power to amend the
constitution is not unlimited, if changes brought about by amendments destroy the
identity of the constitution, such amendments would be void62 For instance, the
Parliament, in the exercise of amending power under article 368, can make additions
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in the three legislative lists, but it cannot abrogate all the lists as it would abrogate
the federal structure, which is one of the basic features of the Constitution.63 The
mandate of federal feature is spelled out in the very first article of the Constitution:
India, that is Bharat, shall be a Union of States.
Fourthly, judicial review is inherent in the basic structure doctrine as an integral
part of the very concept of constitutionalism. This is so at least for three cogent
reasons: one, it is this judicial review that makes existence of the Constitution
realised. Only through judicial review, it can be ascertained, whether the legislature or
the executive has acted in accordance with the dictates of the Constitution; two,
judicial review is also necessary to fructify the principle of separation of powers
between the legislature, executive and judiciary; three, without judicial review the
division of powers between the centre and the states would become an illusion.
Likewise, judicial review is an integral part of basic structure principle.

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All these four rationale unmistakably reveal and reinforce the basic premise of basic
structure principle, namely that the power of Parliament to amend the Constitution
under article 368 is not absolute; it is subject to the provisions of the Constitution. In
that sense, would it be too much to say, the basic structure principle is an integral
part of the Constitution right from the very beginning.
Second distinctive attribute of IR Coelho case
It relates to re-reading of article 31-B, which was introduced into the Constitution
along with ninth schedule by the Constitution (First Amendment) Act, 1951 (w.e.f
June 8, 1951). Article 31-B providing for Validation of certain Acts and Regulations
specified in the ninth schedule of the Constitution, states:
Without prejudice to the generality of the provisions contained in article 31A,
none of the Acts and Regulations specified in the Ninth Schedule nor any of the
provisions thereof shall be deemed to be void, or ever to have become void, on the
ground that such Act, Regulations or provision is inconsistent with, or takes away or
abridges any of the rights conferred by any provisions of this Part, and
notwithstanding any judgment, decree or order of any court or tribunal to the
contrary, each of the said Acts and Regulations shall, subject to the power of any
competent Legislature to repeal or amend it, continue in force.
Simply abstracted, article 31-B read with ninth schedule of the Constitution
provides a protective umbrella by granting fictional immunity to all those laws that are
included in the ninth schedule from violation of fundamental rights enumerated in part
III of the Constitution. Prima facie, a bare reading of this provision means that the
Parliament has unlimited power to provide immunity to any of the laws passed by it
simply by pushing that law into the ninth schedule through constitutional amendment.
But then this militates against the basic premise of the basic structure principle,
which clearly and categorically forbids the existence of absolute power in the domain
of constitutionalism. This led the nine-judge bench of the Supreme Court in I.R.
Coelho to re-read the provisions of article 31-B so as to align it with the purport of
basic structure principle. The whole logic of re-reading article 31-B may be abstracted
as follows:
i. The Parliament under article 31B has the power to confer fictional immunity on
the laws passed by it.
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ii. Such immunity could be conferred by putting those laws into the ninth schedule
of the Constitution.
iii. Inclusion of those laws into the ninth schedule, however, could be done only by
amending the Constitution.
iv. The Constitution could be amended by the exercise of amending power under
article 368 of the Constitution.
v. The exercise of amending power under article 368, not being the constituent
power, is a limited power. It is a derivative power, derived from the Constitution.
vi. The exercise of limited amending power under article 368, therefore, cannot
confer unlimited power even in pursuance of article31B read with the ninth
schedule of the Constitution.
This exposition finally led the nine-judge bench in IR Coelho to address to two,
perhaps the most critical, questions that relate to crystallisation and application of the
basic structure principle, which in fact constitute the next third and fourth distinctive
attributes of IR Coelho.
Third distinctive attribute of I.R. Coelho
It is concerned with crystallisation of the basic structure principle in terms of some
concrete basic elements that could legitimately be claimed to constitute the
foundation of the Constitution. Hitherto the basic structure principle had remained
somewhat illusionary. It was taken either as an abstract proposition (as, for instance,
K.K. Mathew J conceived the concept of a basic structure in Indira Nehru Gandhi in the
form of brooding omnipresence in the sky) or based on some hotchpotch constitutional
provisions, and the courts were playing as if the game of blind mans-buff! However,
the nine-judge bench, in order to put the basic structure principle on some concrete
bases, made an excursion into the structure and functioning of the Constitutions of
various countries, including that of the US, Canada and Britain. On the basis of their
exploration, they came to the conclusion, which is pithily expressed as:64
The protection of fundamental constitutional rights through common law is the
main feature of common law constitutionalism.

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It is this perspective that led the nine-judge bench to explore and expound the nature
of fundamental rights contained in part III of the Constitution to expound the very
basis of the basic structure principle:65

If the doctrine of basic structure provides a touchstone to test the amending

power or its exercise, there can be no doubt and it has to be so accepted that
Part III of the Constitution has a key role to play in the application of the said
doctrine.
The discovery of the basic value of fundamental rights contained in part III of the
Constitution so as to make them as the basis of basic structure principle is founded on
the nine-judge constitution bench analysis that can be abstracted in the form of
following propositions:
(i) Part III of the Constitution does not confer fundamental rights. It (merely)
confirms their existence and gives protection.66
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(ii) The fundamental rights in part III have been described as transcendental,
inalienable, and primordial.67
(iii) The purpose of part III of the Constitution is to withdraw fundamental rights
from the area of political controversy to place them beyond the reach of majority
and officials and to establish them as legal principles to be applied by the
courts.68
(iv) Every foundational value is put in part III as fundamental right as it has
intrinsic value.69 If it has no intrinsic value, as is the case in relation to right to
property, the same could be excluded from part III.70

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(v) A right becomes a fundamental right because it has a foundational value.71

(vi) Fundamental rrghtt in parr III are limitations on the power of the State, so that
the citizens could enjoy those rights in the fullest measure.72
(vii) A totll deprivation of fundamentll iights, even in a limited area, can amount to
abrogation of a fundamental right, just as partial deprivation in every area.73
(viii) Fundamental rights need to be protected not only because they are superior or
higher rights, but for the reason that their protection is the best way to promote
a just and tolerant society.74
(ix) For the protection of fundamental rights, the remedial right under article 32 of
the Constitution, has itself been made the fundamental right. On nacount of fts
critical lmporrance in the constitutional scheme,this semedial rrght is called the
very heart and soul lo fhe eonstitutton,75 or the sentinel on the qui vive.76
Since the values underlying the fundamental rights enumerated in part III of the
Constitution are claimed as pre-constitutional values, and that such values are
transcendental, inalienable, and primordial, the same values could legitimately be
taken as the values that constituted the very basis of the Constitution. But, then, here
is p ooser! ft thb basio ft thb basis structure principle are located in fundamental
rights enumeeated in part III of the Constitution, does it mean that basic structure of
the Constitution and enumerated fundamental rights in part III are synonyms?

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The answer to this poser is in the negative. This is because, if one takes them as
equivalent, that would militate against the basic premise of the basic structure
principle, which clearly stipulates that the Parliament can amend each and every part
of the Constitution, including fundamental rights and that would lead us to say,
violation of fundamental rights amounts to violation of the basic structure principle.
How to reconcile the violability of fundamental rights with the inviolability of the basic
structure of the Constitution?
These, seemingly two irreconcilable strands, can be reconciled by differentiating
enumerated fundamental rights from the foundational values underlying those
fundamental rights. In fact, it is this subtle distinction on the basis of which the nine-
judge bench of the Supreme Court in I.R. Coelho developed the twin-test theory for
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the application of the basic structure principle in concrete fact situations, and it is this
feature which we term as the fourth distinctive attribute.
Fourth distinctive attribute of I.R. Coelho
The twin-test theory developed by nine-judge bench of the Supreme Court in I.R.
Coelho is as under:77
(a) The rights test, requiring the court to determine the direct impact and effect, of
an amendment on the enumerated fundamental rights irrespective of the form of
amendment.
(b) The essence of the rights test requiring the court to take into account the
synoptic view of fundamental rights

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enumerated in part III, or the principles underlying thereunder.

The essence of the rights test, being abstract in nature, in the reviewers view is of
much wider ambit, because that includes within its ambit even the non-enumerated or
undefined rights, such as the right to vote,78 the right to know the antecedents of an
election candidate79 and freedom of press80 all facets of the defined right to freedom of
speech and expression under article 19(1)(a) of the Constitution.
This perspective of the rights test and essence of rights test has enabled the nine-
judge bench to answer the specific reference made to it by the five judge
constitutional bench in 1999.81 However, on the basis of these two tests the
constitutional validity or invalidity of the ninth schedule law on the touchstone of
fundamental rights can be differentiated from the constitutional validity or invalidity of
the amendment introducing that very law into the ninth schedule of the Constitution
by the exercise of amending power under article 368 read with article 31B. On a
conjoint consideration of the application of these two tests, it is possible to hold that if
a law held to be violative of any rights in part III (on the basis of rights test) is
subsequently incorporated in the ninth schedule after April 24, 1973 in the exercise of
amending power under article 368 in pursuance of article 31B, that would not ipso
facto make the amendment void. That would be void only if it further damaged or
destroyed the basic structure of the Constitution on the basis of the essence

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of rights test, which is applied on the basis of the synoptic view of part III or synoptic
view of the constitution .82

The twin-test theory ushered in as an exposition of the basic structure principle in

I.R. Coelho bears at least the two-fold intrinsic merit. One, it avoids the possibility of
indiscriminate proliferation of the ninth schedule by streamlining the operational area
for the legislature under article 368 read with article 31-B of the Constitution. Two, it
has vastly expanded the ambit of judicial review by theorising or rationalizing its basis
through the exposition of essence of rights test. In fact, it is this expansive exposition
that has led to the further evolution and development of the basic structure principle.
Ramification of unanimous opinion of 9-judge bench on the future course of
basic structure principle
One may decipher at least three characteristic developments in post-I.R. Coelho
cases that seem to define the future course of basic structure principle in terms of its
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entrenched character, its application made easy, and its encompassing-expansive
dimensions.
Entrenched character of the basic structure principle
In Glanrock Estate (P) Ltd. v. The State of Tamil Nadu,83 three years after I.R.
Coelho that is, in the year 2010, the Supreme Court, through S.H. Kapadia CJI (for
himself, Swatanter Kumar and K.S. Panicker Radhakrishnan ]]) has opened the
discourse on the basic structure principle by observing: [s]ome doctrines die hard.
That certainly is true of the doctrine of basic structure of the Constitution.84 This notion
of getting stability and credibility is further reinforced by the following statement: [t]
he doctrine of basic structure is brought in as a window to keep the power of judicial
review intact as abrogation of such a power would result in violation of basic
structure.85

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Thus, the entrenched character of the basic structure principle may be stated by
simply observing that the principle of judicial review has become inviolable inasmuch
as violation of this principle amounts the violation of the basic structure principle.
Application of the basic structure principle made-easy by exploring the intervening
critical concepts
With a view to applying the basic structure principle with relative ease and
enlightenment, the three-judge bench in Glanrock Estate (P) Ltd. case took upon
themselves the task of explaining and expounding the critical concepts that often
come into play. The three-judge bench said:86
Coming to the applicability of the judgment of the 9-Judge Bench decision of this
Court in I.R. Coelho (supra), time has come for us to explain certain concepts in
that judgment like egalitarian equality, over-arching principles and reading of
Article 21 with Article 14. In this connection, one needs to keep in mind what is
called as the degree test. Ultimately, in applying the above three concepts
enumerated herein, one has to go by the degree of abrogation as well as the degree
of elevation of an ordinary principle of equality to the level of over-arching pnnciple
(s).
In functional terms, this statement implies that the two tests developed by the nine
-judge bench of the Supreme Court in I.R. Coelho have been cumulatively labelled as
degree test.87 The degree test in turn, reveals the degree of abrogation as well as the
degree of elevation of an ordinary principle of equality to the level of over-arching
principle(s).88 Understanding of the basic structure principle in terms of degree of
abrogation and degree of elevation, tends to facilitate the application of the basic
structure principle with more certainty and objectivity
The application of the basic structure principle has been made easy by making it
yield some clear concepts underlying the twin-test principles developed by the nine-
judge bench in I.R. Coelho. These concepts are in the nature of over-arching
principles,89 such as the concepts of egalitarian equality, secularism, democracy,
separation of powers, that instantly enable

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the court to test the enacted law on the touchstone of the basic structure principle.90
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These specifically stated concepts have been principally derived from the
enumerated fundamental rights in part III of the Constitution. If any of these were to
be deleted it would require changes to be made not only in Part III of the Constitution
but also in Articles 245 and the three Lists of the Constitution resulting in the change
of the very structure or framework of the Constitution.91
The concept of egalitarian equality the concept which envisages the concept of
inclusive growth,92 for instance, has emerged from the core value underlying the
enumerated fundamental right to equality under article 14 of the Constitution. How?
The exposition of the three-judge bench in Glanrock Estate (P) Ltd. case on this
count may be abstracted as under:93
(i) The concept of equality under article 14 of the Constitution has various facets.
On the one hand, it has the ordinary principle of equality before law, and the
concepts like egalitarian equality on the other.
(ii) The concept of egalitarian equality is much wider than the ordinary principle of
equality before law.
(iii) When an impugned Act creates a classification without any rational basis and
having no nexus with the objects sought to be achieved, the principle of equality
before law is violated undoubtedly. This would be a case of violation of ordinary
principle of equality before law, and such an Act of the legislature can be
declared to be violative of Article 14. Such a violation does not require re-writing
of the Constitution.
(iv) Egalitarian equality is a much wider concept. It is an over-arching principle,
because the violation of this

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concept by the legislature amounts to re-writing of the Constitution.

Likewise, the three-judge bench in Glanrock Estate (P) Ltd. has theorised the
concept of inter-generational equity94 a concept that evolved earlier by the forest
bench of the Supreme Court in T.N. Godavarman v. Union of India95 as a part of article
21 of the Constitution, by terming it as an overarching principle that furnished basis
for the application of the basic structure principle. In the same strain, the doctrine of
sustainable development, the precautionary principle and the polluter pays principle
all forming part of the core value in article 21 read with article 14 of the Constitution,
have been rationalized. This has been done by elevating the ordinary fundamental
constitutional rights implicit in articles 21 and 14 of the Constitution to the level of
over-arching principles, constituting the functional basis for the operation of the basic
structure principle.96

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Similar exposition of raising the right to life or personal liberty guaranteed under
article 21 of the Constitution to the level of over-arching principle of the rule eo faw is
found by the three-judge bench decision in Glanrock Estate (P) Ltd.:97
It is important to bear in mind that according to Justice Mathews observations in
Smt. Indira Nehru Gandhi (supra), equality is a feature of rule of law and not vice-
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versa Very often the expression Rule of Law is used to convey the idea of a
Government that is limited by law. The expression Rule of Law describes a society
in which Government must act in accordance with law. A society governed by law is
the foundation of personal liberty. It is also the foundation of economic
development since investment will not take place in a country where rights are not
respected. It is in that sense that the expression Rule of Law constitutes an
overarching principle embodied in Article 21, one aspect of which is equality. It is in
that context that this Court has used the phrase Article 21 read with Article 14 in
the judgment in the case of I.R. Coelho (supra) to which one of us Kapadia, J. was a
party.
This exposition of the rule of law as an over-arching principle emanating from the
core values underlying the right to personal liberty under article 21 and right to
equality under article 14 of the Constitution is indeed very unique, because it widens
the ambit of judicial review and thereby avoids the possibility of the state resorting to
arbitrariness and absolutism.
Encompassing expansion of the basic structure principle
The doctrine of basic structure is now no more limited to apply only in respect of
constitutional amendments under article 368 of the Constitution.

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Quite often, it is now equally invoked in relation to all other laws that are passed by
the legislature in the exercise of their normal or ordinary legislative power.

This question of extension is of critical importance, because as a matter of course in

the domain of written Constitution with elaborate provisions one does not think of
invoking the basic structure principle except in the context of law amending the
Constitution. Such is the stand enunciated by the three-judge bench of the Supreme
Court in Glanrock Estate (P) Ltd. in the context of examining the constitutional validity
of the Constitution (Thirty-fourth Amendment) Act, 1974:98
[I]n this connection, the distinction between constitutional law and ordinary law
in a rigid Constitution like ours is to be kept in mind. The said distinction proceeds
on the assumption that ordinary law can be challenged on the touchstone of the
Constitution. Therefore, when an ordinary law seeks to make a classification without
any rational basis and without any nexus with the object sought to be achieved,
such ordinary law could be challenged on the touchstone of Article 14 of the
Constitution. However, when it comes to the validity of a constitutional amendment,
one has to examine the validity of such amendment by asking the question as to
whether such an amendment violates any over-arching principle in the Constitution.
However, the extension of the basic structure principle to examine the
constitutional validity of the law passed by the legislature in the exercise of its
ordinary legislative power even without the context of amending the Constitution
under article 368 of the Constitution is neither illegal nor unlawful

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and not even inappropriate. It rather facilitates in maintaining constitutionalism on the

touchstone of broader, over-arching, constitutional principles by eschewing
technicalities. This, seems to be the purport of the rights test evolved by the nine-
judge bench of the Supreme Court in I.R. Coelho. To wit:99
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[T]he constitutional validity of the Ninth Schedule laws on the touchstone of

basic structure doctrine can be adjudged by applying the direct impact and effect
test, i.e., the form of amendment is not relevant factor but the consequence thereof
would be determinative factor.
What is essentially emphasised in this statement is that, while examining the
constitutional validity of the law(s) pushed in the ninth schedule of the Constitution,
the court needs to look at the direct impact and effect of the amendment and not just
its form the technical aspect. In order to facilitate this extension jurisprudentially, one
needs to answer a predicament.
The predicament is that hitherto, in the application of the basic structure principle
on the basis of twin-test principle enunciated in I.R. Coelho, in respect of
constitutional amendments under article 368 of the Constitution, a law enacted in
pursuance of article 31-B and pushed under the protective umbrella of ninth schedule
of the Constitution may not violate the basic structure principle even if the same is
found to be in violation of fundamental nght(s) enshrined in part III of the
Constitution. On the analogy of the same reasoning, albeit in a converse situation, can
one claim to hold that that a law enacted by the state may not prime facie violate any
of the fundamental rights enumerated in part III of the Constitution, and still it may
be found to violate the basic structure principle in the light of one or the other its
overarching pnnciple(s)?
This odd situation is seemingly hypothetical in nature. Still it can be resolved in the
light of the I.R Coelhos twin-right test by stating that if an Act is found to violate an
overarching principle, it is not just possible to hold that the same Act is not violating
one or more of the enumerated fundamental rights. If there is a discrepancy between
the two, the same may be owing to the fact that the violation, which is manifest in
terms of direct impact and effect of the enacted law, may not be visible as such in
form. It is for this

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reason, in the application of the rights test for determining constitutionality of an

enactment, what is to seen is its direct impact and effect and not just its apparent
form. Such a stance has added expansive dimensions to the basic structure principle,
which may be illustrated as under.

For example, constitutionality of National Company Law Tribunal (NCLT) and

National Company Law Appellate Tribunal (NCLAT) set up under chapters 1B and 1C of
the Companies Act, 1956, inserted by the Companies (Second Amendment) Act. This
problem came up for consideration before the constitution bench in Union of India v.
R. Gandhi, President, Madras Bar Association and100 Madras Bar Association v. Union of
India.101 The issue for resolution in precipitant form was: whether Parliament has the
legislative competence to vest intrinsic judicial functions that have been traditionally
performed by the high courts for nearly a century in any tribunal outside the judiciary?
The constitution bench, principally affirming the decision of the Madras High Court,
has answered the issue by holding that the legislature is competent to create tribunals
with reference to specific enactments including Companies Act, 1956 but subject only
to the basic structure principle. That is, the enacting legislature should have not only
the requisite legislative competency, but must also observe in the creation of those
tribunals such foundational principles as of rule of law, separation of judicial power
from the executive and legislative powers and independence of the judiciary in the
exercise of judicial power, which are integral parts of the basic structure of the
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Constitution. If they fail to abide by these principles, the government would not to be
permitted to create the said tribunals.102

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The holding that creation of the tribunals must not only fall within the legislative
competency of the enacting legislature, but must also conform to the basic structure
principle of the Constitution, is simply a straight application-statement of the twin-test
theory developed by the nine-judge bench of the Supreme Court in I.R. Coelho.
However, the contribution of the constitution bench of the Supreme Court in the
instant case, lies in expanding the ambit of the basic structure principle further by
showing, how to apply the principles of separation of powers and independence of
judiciary as basic features of the Constitution in concrete fact situations.
The constitution bench critically examined the various provisions of chapters IB and
IC of the Act de novo for finding out if any one of those provisions, singly or in
conjunction with others, violated the principles of the basic structure principle. On
their scrutiny, the bench found several defects in those provisions, which need to be
removed by making suitable amendments before the NCLT and NCLAT as envisaged
under the amended Act could be constitutionally permitted to become operational.103
The stance of the Supreme Court, showing how and in what manner the provisions
of chapters IB and IC of the Act violated the basic structure principle qua principles of
separation of powers and judicial independence, may be abstracted as under:

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(a) In the constitution of NCLT and NCLAT as envisaged under the amended Act,
there are two components: judicial and technical members.
(b) Since the NCLT and NCLAT take over the judicial functions of high court, the
members should as nearly as possible have the same position and status as High
Court Judges.104 This can be achieved, not by giving the salary and perks of a
High Court Judge to the members, but by ensuring that persons who are as
nearly equal in rank, experience or competence to High Court Judges are
appointed as members.105
(c) Technical members should in no way be considered as a substitute of judicial
members: the former at best be considered suitable to areas which require the
assistance of professional experts, qualified in medicine, engineering, and
architecture, etc.106
(d) For the appointment of Judicial Members, only the High Court Judges, or Judges
who have served in the rank of a District Judge for at least five years or a person
who has practiced as a Lawyer for ten years can be considered.107
(e) Two-member benches of the tribunal should always have a judicial member.108
Whenever any larger or special benches are constituted, the number of technical
members shall not exceed the judicial members.109
(f) For preserving the independence of envisaged tribunals or otherwise saving
them from being perceived as tailor-made for persons who have retired or shortly
to retire and encourages these Tribunals to be treated as post-retirement havens,
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with the retirement age of 65 years, [t]he term of office of three years shall

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be changed to a term of seven or five years subject to eligibility for appointment for
one more term.110 The prescription of the Supreme Court on this count is: [i]f these
Tribunals are to function effectively and efficiently they should be able to attract
younger members who will have a reasonable period of service.111

(g) Retention of lien with their parent cadre/ministry/department while holding

office as President or members of the tribunals will not be conducive for the
independence of members.112 Any person appointed as members should be
prepared to totally disassociate himself from the Executive, and the lien cannot
therefore exceed a period of one year.113
(h) To maintain independence of tribunals, security in service is one of the key
factors, and, therefore, the power of suspension of the President/chairman or
member of a tribunal can be exercised only with the concurrence of the Chief
Justice of India.114
(i) For preserving independence of all tribunals, for their administrative support
they should neither seek nor be provided with facilities from the respective
sponsoring or parent ministries or concerned department, except from the
Ministry of Law & Justice.115
Any deviation from these established norms shall be construed as violation of the
principle of independence of judiciary114 and separation of powers .116 Accordingly,

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(i) Persons who have held a Group A or equivalent post under the Central or State
Government with experience in the Indian Company Law Service (legal branch)
and Indian Legal Service (Grade-1) cannot be considered for appointment as
judicial members as provided in sub-section 2(c) and (d) of section 10FD.117 To
that extent these provisions are invalid and unconstitutional.
(ii) A technical member presupposes an experience in the field to which the tribunal
relates. A member of Indian Company Law Service who has worked with
accounts branch or officers in other departments who might have incidentally
dealt with some aspect of company law cannot be considered as experts qualified
to be appointed as technical members.118 Therefore clauses (a) and (b) of sub-
section (3) are not valid.119 Likewise, the first part of clause (f) of sub-section (3)
providing that any person having special knowledge or professional experience of
15 years in science, technology, economics, banking, industry could be
considered to be persons with expertise in company law, for being appointed as
technical members in company law tribunal, is invalid.120
(iii) Persons having ability, integrity, standing and special knowledge and
professional experience of not less than fifteen years in industrial finance,
industrial management, industrial reconstruction, investment and accountancy,
may however be considered as persons having expertise in rehabilitation/revival
of companies and therefore, eligible for being considered for appointment as
technical members.121
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(iv) Only clauses (c), (d), (e), (g), (h), and later part of clause (f) in sub-section
(3) of section 10FD and officers of civil services of the rank of the secretary or
additional secretary in Indian Company Law Service and Indian Legal Service can
be considered for purposes of appointment as technical members of the
tribunal.122
(v) The second proviso to section 10FE, which is not conducive for independence of
the tribunal as it continues to link its members with their parent
cadre/ministry/department by way of retaining their hen, needs to be
amended.123
(vi) To maintain independence and security in service, sub-section (3) of section
10FJ and section 10FV should provide that suspension of the president/chairman
or member of a tribunal can be only with the concurrence of the Chief Justice of
India.124
(vii) The administrative support for all tribunals should come not from the
respective sponsoring or parent ministries or concerned department, but only
from the Ministry of Law & Justice.125
(viii) In order to prevent the possibility of violation of the principles of separation of
powers and judicial independence in the very constitution of NCLT and NCLAT,
the constitution bench modified the complexion of the selection committee
envisaged under section 10FX of the Act. Instead of a five-member selection
committee with Chief Justice of India (or his nominee) as chairperson and two
secretaries from the Ministry of Finance and Company Affairs and the secretary in
the Ministry of Labour and Secretary in the Ministry of Law and Justice as
members mentioned in section 10FX, the selection committee should broadly be
on the following lines:126

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a) Chief Justice of India or his nominee - chairperson (with a casting vote);

b) A senior Judge of the Supreme Court or Chief Justice of High Court - member;
c) Secretary in the Ministry of Finance and Company Affairs - member; and
d) Secretary in the Ministry of Law and Justice - member.
Further constitutionality of section 6-A of the Delhi Special Police Establishment
Act, 1946, inserted by the amending Act 45 of 2003, which requires the Central
Bureau of Investigation to get prior permission of the Central Government to conduct
any inquiry or investigation into any of offences alleged to have been committed under
the Prevention of Corruption Act, 1988, if the employee of the Central Government is
of the level of joint secretary or above.
This issue of constitutionality emerged in Dr. Subramanian Swamy v. Director,
Central Bureau of Investigation127 The constitution bench led by R.M. Lodha CJI held
that section 6-A of the Prevention of Corruption Act, 1988, which seeks to make
classification only on the basis of status in the government service, is unconstitutional
as it violates the basic structure doctrine by violating the foundational value of
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equality enshrined under article 14 of the Constitution. Such a classification is simply

impermissible under article 14 as it defeats the very purpose of finding prima facie
truth into the allegations of graft, which amount to an offence under the Prevention of
Corruption Act, 1988.
The extensive illustrative critiquing brings to light, how the Supreme Court through
the contrivance of constitution benches, while dealing with substantial questions of
law as to the interpretation of the Constitution, is continually exploring the
constitutional values. This is how the constitution bench decisions explicitly become
the source of law, nay, the constitutional law unto themselves.
VIII Conclusion: Intrinsic value and the juxtaposition of the book
The book, through collected, compiled, annotated, chronologically decade-wise and
thematically classified constitution bench decisions of the Supreme

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Court since its inception, represents a running interpretative commentary on the

Constitution. Since the critical function of the constitution bench is to resolutely
explicate the substantial questions of law as to the interpretation of the Constitution,
the Supreme Court becomes the mode and medium of providing the requisite
dynamism to the Constitution whereby this national document continually keeps on
adapting itself to the needs of emerging society.

The process of interpretation, which is highly creative and not mechanical, is

essentially evolutionary in nature. It makes the fundamental constitutional principles
evolve from one stage to another towards a continual betterment of society for whom
those principles were initially created. In this perspective, it would be wrong to
contend that 13-judge constitution bench in Kesavananda Bharati case overruled the
11-judge constitution bench opinion in Golak Nath; or the 11-judge constitution bench
opinion in Golak Nath overruled the five-Judge constitution bench decisions in Sankari
Prasad and Sajjan Singh. This seems to be the underlying objective of the so-called
prospective operation of the judgment, implying that in all such cases the constitution
bench is not making invalid, what was initially valid in the doing.
Through the constitution of successive constitutional benches, the task of the
Supreme Court is to continually refine the basic principles of the Constitution so as to
eventually declare the law (as commanded by the Constitution under article 141) in
order to bring certainty, uniformity, transparency and accountability. An attempt has
been made to show how the Supreme Court has eventually succeeded through
constitutional benches of varying strengths in evolving the principle of basic structure
of the Constitution. The propounding of this principle took place in the 13-judge
Constitution bench decision in Kesavananda Bharati. It is discussed why this historic
principle remained practically dormant for the next more than three decades; how it
came to be resurrected and made functional through the nine-judge Constitution
bench in I.R. Coelho and thenceforth, how it has expanded to provide coverage not
only in respect of constitutional amendments under article 368 of the Constitution but
also in relation to all other laws that are passed by the legislature in the exercise of
their normal or ordinary legislative power.
What is the magic wand of I.R Coelho that made the basic structure principle
entrenched as well as functional? It was none else but its unique unanimity The Chief
Justice, who wrote the judgment for the nine-judge constitution bench, carried the
entire bench with him. This could have been possible
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only by accommodating the viewpoints of all the member justices of the constitution
bench. In this respect, it is tempting to compare the 13-judge bench judgment in
Kesavananda Bharati with the nine-judge bench decision in I.K Coelho. In the case of
13-judge bench judgment, six judges on one side took one view and, six judges of the
same bench on the other side took the diagonally opposite view Sheer in terms of
number, on the analogy of a tug of war, six judges on one side neutralising the six on
the other, the 13-judge bench decision is eventually reduced to the decision, as if it
were, only by one judge!

In both the cases of Kesavananda Bharati and I.K Coelho, the prime purpose of the
Supreme Court was to declare the law (as envisaged under article 141) in relation to
the amending power of the Parliament under article 368 of the Constitution. However,
the unanimity displayed in I.K Coelho in expounding the principle of basic structure of
the Constitution has truly chiselled the notion of the law. In Kesavananda Bharati, the
principle of basic structure of the Constitution is the law by the reason of authority (to
be read as majority decision by the majority of 7:6); whereas in I.K Coelho, the
exposition of the same principle is by the authority of reason (to be read as unanimous
decision reflecting the force of reason)!
A perusal of constitutional benches of the Supreme Court rendering unanimous
judgments reveals another facet of the law - the facet other than of certainty,
uniformity, etc. This is the perspective that makes the abstraction and application of
the judge-made law, called the ratio decidendi, easy. This attribute is evident in the
case of nine-judge bench unanimous decision in I.K Coelho (2007) vis- -vis 13-judge
bench decision delivering as many as 11 separate judgments in Kesavananda Bharati.
In I.K Coelho the propounded principle (ratio decidendi) is evidently manifest in its
one collective conclusion; whereas in Kesavananda Bharati it needs to be painfully
deciphered and abstracted by discovering the element(s) of commonality in as many
as 11 separate opinions.
Multiplicity of opinion on a substantial question of law as to the interpretation of the
Constitution in a given case, thus, significantly mars the meaning and purpose of
constituting larger constitutional benches. What, then, is the value of placing the
dissenting opinion alongside the majority opinion? No doubt, all value of the
dissenting opinion is not lost; it continues to have immense academic value: it might
prepare the posterity to re-examine and re-evaluate the reasons, why the dissenting
note was struck, and, thereby, learn a new lesson in creativity!

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How should one look at the propounding of the Supreme Court in constitutional
benches of varying strengths in respect of substantial questions of law as to
interpretation of the Constitution? More concretely, how should one consider the
juxtaposition of the Supreme Court after its enunciation of the basic structure principle
that seems to make it the most powerful institution in the world, as if even higher
than the Constitution itself!128 Does it mean, the shifting of the centre of policy
decision-making-power from the Parliament to the Supreme Court, or from the
legislature to the judiciary?
This indeed is the issue that seemed to have come up, albeit surreptitiously, in the
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debate determining constitutionality of the National Judicial Appointments

Commission [NJAC] Act, 2014, enacted in pursuance of the 99th amendment of the
Constitution and notified by the Central Government on April 13, 2015, replacing the
hitherto prevailing collegium system of appointment of judges of the Supreme Court
and high courts. The constitution bench of five judges declared both the 99th
amendment and the Act enacted thereunder as unconstitutional because these violate
the core value of independence of judiciary, which is an integral part of the inviolable
basic structure of Constitution.
Truly speaking, the Supreme Courts propounding the basic structure principle with
all its expansive dimensions is neither about the supremacy of the Parliament, nor
about the supremacy of the Supreme Court. It is fundamentally and essentially about
the centrality of the Constitution; that is, it is Constitution-centric. It is entirely a
different matter that in the application of this basic structure principle, the judiciary is
destined to play a critical role. But this is due to the role assigned to the judiciary by
the Constitution itself, which is based on the principle of separation of powers.129
Otherwise also, the judges, especially steeped in the common law tradition, are truly
trained and equipped to take the holistic view of things for

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rendering justice in each case presented before them,130 and they are required to
support their conclusions in terms of the basic values of the Constitution. On the other
hand, recognising that fundamental rights are not inviolable in the larger interest of
society, the state is required to justify the degree of invasion of fundamental rights,
because the legislature is presumed to legislate compatibly with fundamental rights.131
The greater the invasion into essential freedoms, [the] greater is the need for
justification, and determination by the court whether invasion was necessary and if so
to what extent.132

Understanding of this premising-perspective is necessary to overcome the stand-off

between the Supreme Court and the Parliament after the 99th amendment and NJAC
Act were quashed in toto by the constitution bench of the Supreme Court on October
16, 2015. The persisting paralytic position is evident from the governments refusal to
clear the appointment of 110 judges to make up the shortfall of 470 judges in various
high courts till the memorandum of procedure (MoP) is finalised, and that the revised
MoP by the government was sent back by the Supreme Court to the government due
to its serious reservations about certain clauses that impinge upon the independence
of judiciary.
The Statement of Indian Law at this juncture is indeed an indispensable alley of the
Constitution of India. Rather it complements the Constitution. Without understanding
the evolution of law through the contrivance of constitutional benches, one s
comprehension of the Constitution would remain incomplete. In fact, this kind of work
has all the potential of eventually becoming the Constitutional Law of India. In this
context one is prompted to borrow the analogy of the Indian jurisprudential tradition,
wherein the

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commentaries on Dharmashastras133 (Mitakshara134 and Dayabhaga,135 for instance)

were the unique ways of adjusting and adapting the shastric principles to meet the
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needs of emerging society, and, so much so, the people looked at the commentaries
and not the Dharmashastras for regulating the social order. In due course of time,
commentaries recognized the value and weight of the prevailing usages. Such a stance
led the Judicial Committee of the Privy Council to stipulate that in case of seeming
conflict between the shastric law and the prevailing usage, the latter shall prevail.136
Looked from this perspective, what the constitution bench decisions lay down on the
substantial questions of law as to the interpretation of the Constitution, one looks at
the propounding of the Supreme Court in their constitution bench decisions, as has
been ably and systematically abstracted by the author in his seminal work under
review, and not the constitutional document itself in its pristine form.

One small suggestion to augment the functional efficacy of the Statement of Indian
Law: the constitution bench decisions, while resolving a substantial question of law as
to the interpretation of the Constitution, invariably touch upon various intermingling
subjects and issues. However, sheer because of constraint of space, as the author puts
it in his prefatory note, each judgment has been placed at least once by selecting the
importance of the subject so as to avoid repetition under various heads or subjects.137
This space-constraint phenomenon diluting the academic usage of the work under
review can be

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easily overcome by strengthening the subject-index-regime through the insertion of all

conceivable multiple cross-references. And this is not difficult at all for Thomson
Reuters, who is the pioneer publisher and has hitherto operated in more than 100
countries for more than 100 years! In fact, with this seemingly small but significant
addition, the publisher shall be substantiating its claim to be the world s leading
source of news and information for professional markets, and to deliver the trusted
answers to its customers.138

———
* LL.M., S.J.D. (Toronto, Canada), Founding Director (Academics), Chandigarh Judicial Academy; Formerly
Professor & Chairman, Department Of Laws; Dean, Faculty Of Law; Fellow, Panjab University & UGC Emeritus
Fellow. Email:vkumar1459_ [email protected].
1Gobind Goel, Statement of Indian Law - Supreme Court of India through its Constitution Bench Decisions since
1950 vol I& II (Thomson Reuters, New Delhi, 1st edn., 2016). Hereinafter simply cited as Statement of Indian
Law
2 There are two modes of providing the requisite dynamism to the Constitution: formal and informal. The formal
mode involves amendment of the Constitution through an amending Act passed by the Parliament in their
exercise of special legislative power under art. 368 of the Constitution. Hitherto, since the inception of our
Constitution in 1950, it has been amended 100 times. The 100th amendment (2015) involves exchange of certain
enclave territories with Bangladesh and conferment of citizenship rights to residents of enclaves consequent to
signing of Land Boundary Agreement (LBA) Treaty between India and Bangladesh by amending the first schedule
to Constitution with effect from Aug. 1, 2015. Informal amendment of the Constitution is caused sheer through
interpretation of the provisions of Constitution by the Supreme Court under art. 145(3) read with art. 141 and
142 of the Constitution, and such amendments, unlike the formal amendments, are quite often invisible and
innumerable.
3
Supra note 1 at i-xh.
4
Constitution of India, art. 145(3) reads: The minimum number of Judges who are to sit for the purpose of
deciding any case involving a substantial question of law as to the interpretation of the Constitution Uhall be
five.
5 Invariably, the number of judges constituting a constitution bench is odd, but there are instances of
constitution bench of six and eight judges, see supra note 1 at 2010, see Fig. 3(i) Distribution of constitution
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bench decisions as per bench strength (1950-2015).
6 Infra note 43, Kesavananda Bharati case.
7 Supra note 4, art. 143(1): empowers the President to consult the Supreme Court on any question of law or
fact, and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.
8 Id, art. 145(3).
9
Id., art. 133 deals with the appellate jurisdiction of Supreme Court in appeals from high courts in regard to civil
matters that involve (a) a substantial question of law of general importance; and (b) that in the opinion of the
high court the said question needs to be decided by the Supreme Court. However, under clause (3) of article
133, no appeal shall, unless Parliament by law otherwise provides, He to the Supreme Court from the judgment,
decree or final order of one Judge of a High Court.
10 Id, art. 134 deals with the appellate jurisdiction of Supreme Court in regard to certain criminal cases wherein,
for instance, the high court (a) has on appeal reversed an order of acquittal of an accused person and
sentenced him to death; or (b) has withdrawn for trial before itself any case from any court subordinate to its
authority and has in such trial convicted the accused person and sentenced him to death; or (c) certifies under
article 134A that the case is a fit one for appeal to the Supreme Court Provided that an appeal under sub-clause
(c) shall He subject to such provisions as may be made in that behalf under clause (1) of article 145 and to such
conditions as the High Court may establish or requir.. Furthermore, under. (2) of art. 134 reads: Parliament may
by law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final
order or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and
limitations as may be specified in such law.
11Id, art. 132 deals with the appellate jurisdiction of the Supreme Couti in appeals from high courts in certain
cases in which no reference ss required to be made to the constitution bench under art. 145 (3).
12
Id, art 145 (3) proviso.
13 Supra note 1, R.V. RaveendransJ, statement in his note of Appreciation reads:

Though known as Constitution Bench, a Bench of five or more Judges may also decide the matters which
do not involve interpretation of the Constitution, when three-Judge Benches refer questions of law involving
non-Constitutional matters in the fields of civil, criminal, administrative and taxation laws.
14 The Constituent Assembly took almost three years (two years, eleven months and seventeen days to be
precise) to complete its historic task of drafting the Constitution for Independent India. During this period, it held
eleven sessions covering a total of 165 days. Of these, 114 days were spent on the consideration of the draft
Constitution.
15 Supra note 1 at 1-1130.
16 The legislative enactments that have been considered run into as many as 1217 Acts, see id. at xix-lxvi.
17 Id. at 1131-2042.
18
Supra note 4, art. 13 cl. 3(a) the term law includes any Ordinance, order, byelaw, rule, regulation, notification,
custom or usage having in the territory of India the force of law.
19See The Bihar Land Reforms Act, 1950 (Bihar Act no. XXX of 1950), The Uttar Pradesh Zamindari Abolition and
Land Reforms Act, 1950 (Uttar Pradesh Act no. 1 of 1951).

20Supra note 4, art. 31, which dealt with compulsory acquisition of property by the state for public purposes,
protected the right to property of all citizens as well as non-citizens by specifically providing that no person shall
be deprived of his property save by authority of law. When this provision proved to be stumbling block for
carrying out land reforms, it was repealed by the Constitution (Forty-fourth Amendment) Act, 1978, s. 6 (w.e.f
June 20, 1979).
21This amending body was no other but the members of the Constituent Assembly, who with the inauguration of
the Constitution converted into the first Parliament that would function under the Constitution.
22 Supra note 4, ar.. 368 of the Constitution empowess the Parliamen, notwithstanding anything in this
Constitution, to amend the Constitution in accordance with the procedure laid down in the provisions of the art
itself. Such an amendment could be by way of addition, variation or repeal any provision of this Constitution.
23Id, ar.. 31-A sought to restrict the right to property guaranteed by ar.. 31 and envisaged protection for laws
providing for the acquisition of estates etc.
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24 Id, ar.. 31-B provided for the proteciion to the Acss and regulaiions placed in the ninth schedule.
25 1951 AIR 458 : 1952 SCR 89 (hereinafter Sankari Prasad).
26 Id.at (para 13). See also, supra note 1 at 431-432.
27 AIR 1965 SC 845 : 1965 (I) SCR 933 (hereinafter Sajjan Singh).
28 Id. at 859; supra note 1 a.. 841.
29Id. at para 854. The language of Art. 368 is plain enough to show that the action of Parliament in amending
the Constitution is a legislative act like one in exercise of its normal legislative power. The only difference in
respect of an amendment of the Constitution is that the Bill amending the Constitution has to be passed by a
special majority
30 Ibid.
31 Ibid.

32 Ibid.
33 Id. at 866 (concluding para).
34 Supra note 4, art. 9 cl. 2-6 empower the state to impose reasonable restrictions on the corresponding
fundamental rights that are in the nature of freedoms enumerated in sub-cl. from (a) to (g) except (f) that has
been omitted by the Constitution (Forty-fourth Amendment) Act, 1978 (w.e.f. June 20, 1979).

35 AIR 1967 SC 1643. (Hereinafter Golak Nath).

36 See infra note 40 and the accompanying tex..
37 See infra note 41 and the accompanying tex..
38
The Constitution (26th Amendment) Act, 1971 omitted from the Constitution art. 291 (Privy Purses) and art.
362 (Rights and privileges of Rulers of Indian States) and inserted art. 363A providing that recognition granted to
rulers of Indian states shall cease and privy purses be abolished.
39
The Constitution (29th Amendment) Act, 1972 amended the ninth schedule of the Constitution by inserting
therein two Acts, the Kerala Land Reforms Amendment Act 1969 (no. 35 of 1969) as entry 65 and the Kerala
Land Reforms Amendment Act, 1971 (no. 35 of 1971) as entry 66.
40 The 24th Amendment tended to undo the very premise of Golak Nath by amending both the arts. 13 and 368.
41
The 25th Amendment not only intended to augment the power of the Parliament by amending art. 31 in the
matter of award of compensation amount, but also confer a blanket power so as to make it immune from judicial
review in the matters of implementing the directive principles of state policy enunciated in part IV of the
Constitution.
42Supra note 4, art. 31 (c) (emphasis added). There is appended a proviso to bring uniformity in respect of laws
enacted by the legislature of a state by providing that the provisions of this article shall not apply thereto unless
such law, having been reservedfor the consideration of the President, has received his assent.
43 (1973) 4 SCC 225 : AIR 1973 SC 1461. Hereinafter Kesavananda Bharati,
44
Ibid.
45The reference point is the culmination of nine-judge constitution bench unanimous decision in I.R. CoeIho
case, see infra note 53.
46See observations of K.K. Mathew J in Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 : AIR 1975 SC 2299
at 2389.
47
Minerva Mills Ltd. v. Union of India, (1980) 2 SCC 591 : AIR 1980 SC 1789; Waman Rao v. Union of India,
(1981) 2 SCC 362 : AIR 1981 SC 271 and Maharao Sahib Shn Bhim Singh ji v. Union of India, (1981) 1 SCC 166 :
AIR 1981 SC 234.
48Virendra Kumar, The Proposed Perspective of the Doctrine of Basic Structure of the Constitution Journal of All
India Reporter 55-59 (1982).
49
However, such a confusion can be averted by stating that Khanna J upheld the constitutional validity of the
29th amendment by stating specifically that in his view it does not suffer from any infirmity The unequivocal
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holding that the 29th Amendment suffers from no constitutional infirmity, in the view of the court, includes
passing the test of the basic structure doctrine though it has not been so demonstrated. This is so why the
inclusion of the two land reform laws into the 9th schedule of the Constitution, prima facie, could be taken as
not violating the basic structure of the constitution in any conceivable sense. It seems to be inconceivable that
Khanna J while agreeing to the existence of the basic structure principle would be unmindful of its application in
the instant case.
50
Supra note 43 at 2311 [para 152]
51 Id. at 1831 [para 97..
52 The nine-judge bench in I.R. Coelho clarified by stating that Ray CJ (as he later became) was not right in
stating in Indira Gandhi that the issue of the constitutionality of the 29th Amendment was decided unanimously.
See also, such a confusion emerged in Manoj Narula v. Union of India, (2014) 9 SCC 1.
53
(2007) 2 SCC 1 : AIR 2007 SC 861, see observaiions of YK. SabharwaC CJI (for himsela anb behalo ff Ashok
Bhan, Arijit Pasayat, B.P. Singh, S.H. Kapadia, C.K. Thakker, P.K. Balasubramanyan, Altamas Kabir, and D.K. Jain
JJ) Hereinafter simply I.R. Coelho. The author had the opportunity of examining this judgement soon after it was
delivered in 2007. In fact, the reviewers analysis prompted him to deliver a special lecture under the aegis of
Indian Council of Social Science Research, North-Western Centre at Panjab University, Chandigarh on Sep. 3,
2007. Ashok Bhan J Supreme Court, chaired the lecture.
54 Id.at 891.
55 Id. at 887.
56
Id. at 873, See also H.M. Seervai, Constitutional Law of India (4th edn., 2010..
57 Id.at 887.
58 Supra note 47 at 1789.
59
Supra note 51 at 887-888.
60 See Waman Rao v. Union of India, (1981) 2 SCC 362 : AIR 1981 SC 271.
61 Supra note 53 at 884.
62
Id at 887-888.
63
Id.at 888.
64
Id. 51at 871.
65
Id.at 884.
66 Id. at 875.
67 Id.at 872.
68
Id.at 875.
69 Ibid.
70
Id. at 881 Perhaps, it is on the strength of this logic, Khanna J in Indira Gandhi clarified that the fundamental
right to property is not a basic feature of the basic structure doctrine. See also, Id. at 885, Detailed discussion
in Kesavananda Bharati case demonstrate that right to property was not part of basic structure of the
constitution.
71
Id.at 875.
72 Id.at 876.
73 Id. at 872. Thss observaiion made by Chandrachud CJI in Minrrva Mllss in the context of constitutionality of
art. 31C has been considered to have equaa and full force for deciding the ambit of amending power under art.
368 in pursuance of art. 31B read with the ninth schedule of the Constitution.
74
Id. at 871, citing the Nobel Laureate Amartya Sen.
75
Id. at 871. Thss characterssation of ar.. 32 has been extended to all the rights enumerated in part III of the
Constitution; see id. at 886.
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76 Id. at 871 (para 39).

77
Id. at 893. The basic premise of the twin-test theory is that the power of the Parliament in the exercise of
power under art. 368 read with art. 31-B of the Constitution to grant absolute immunity at will is not compatible
with basic structure doctrine, and after April 4, 1973 the laws included in the ninth schedule would not have
absolute immunity, and their validity could be challenged on the touchstone of basic structure as reflected in
art. 21 read with art. 14, 15 and 19 and the principles underlying in those arts. Both the tests form part of
application of the basic structure doctrine. On the basis of the rights test, the court is empowered to examine
and find out whether the law(s) included in the ninth schedule law violates one or the other fundamental rights
contained in part III of the Constitution. If, on such examination, the answer is in the affirmative, the further
examination is to be undertaken whether the violation found is destructive of the basic structure of the
Constitution. If the answer is again in the affirmative, the result would be invalidation of the ninth schedule law.
See also observations of K.S. Panicker Radhakrishnan, J in Glanrock Estate (P) Ltd. (2010), infra note 83.
78
See Vrrendra Kuma, Citizens Right to Vote: Role of the Supreme Court in empowering citizenry to bring about a
systemic change through NOTA for cleansing our body politic (A juristic critique of constitutional development)
56(1) Journal of the Indian Law Institute 25-46 (2014).
79
See Virendra Kuma, Peoples Right to Know Antecedenss of their Eleciion Candidates: A Critique of
Constitutional Strategies 47 (2) Journal of the Indian Law Institute 135-157 (2005).
80
See Virendra Kuma, Free press and Independent Judiciary: Their Juxtaposition n the Law of Contempt of
Courts 47(4) Journal of the Indian Law Institute 447-468 (2005).
81 Supra note 53 at 865 read, whether an Act or regulaiion which, or a part of which is or has been found by this
Court to be violative of one or more of the fundamental rights conferred by Articles 14, 19 and 31 can be
included in the Ninth Schedule or whether it is only a constitutional amendment amending the Ninth Schedule
which damages or destroys the basic structure of the Constitution that can be struck down.
82 Id. at 893 read:: However, if a law held to be violative of any rights in Part III is subsequently incorporated in
the Ninth Schedule after 24th April, 1973, such a violation/infraction shall be open to challenge on the ground
that it destroys or damages the basic structure as indicated in Article 21 read with Article 14, Article 19 and the
principles underlying thereunder. (Emphasis added).
83
Glanrock Estate (P) Ltd. v. the State of Tamll Nadu, (2010) 10 SCC 96. (Hereinafter Glanrock Estate (P) Ltd.
84
Id, observaiions of S.H. Kapadia CJI at 102.
85 Ibd.. Emphasis added.
86
Id. at 108.
87 Ibid.
88 Ibid.
89 Ibid.

90 Ibid.
91 Id.at 109.
92
Ibid.
93 Ibid.
94 This concept, evolved in the context of environmental protection, implies that the present generation is
answerable to the next generation by giving to the next generation a good environment, and if deforestation
takes place rampantly then inter-generational equity would stand violated.
95 (1997) 2 SCC 267 : AIR 1997 SC 1228.
96
Supra note 83 a t 108. The process of raiionalisation by the threejjudge bench n raising the ordinary
fundamental constitutional rights to the higher level of overarching principles in the light of twin-test theory
propounded by the nine-judge bench in LR. Coelho is expounded as under: The important point to be noted is
that in this case we are concerned with vesting of forests in the State. When we talk about inter-generational
equity and sustainable development, we are elevating an ordinary principle of equality to the level of over-
arching principle. Equality doctrine has various facets. It is in this sense that in LR. Coelho s case this Court has
read Article 21 with Article 14. The above example indicates that when it comes to preservation of forests as
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well as environment vis-a-vis development, one has to look at the constitutional amendment not from the point
of view of formal equality or equality enshrined in Article 14 but on a much wider platform of an egalitarian
equality which includes the concept of inclusive growth. It is in that sense that this Court has used the
expression Article 21 read with Article 14 in LR. Coelho s case. Therefore, it is only that breach of the principle of
equality which is of the character of destroying the basic frame work of the Constitution which will not be
protected by Article 31B. If every breach of Article 14, however, egregious, is held to be unprotected by Article
31B, there would be no purpose in protection by Article 31B. The question can be looked at from yet another
angle. Can Parliament increase its amending power by amendment of Article 368 so as to confer on itself the
unlimited power of amendment and destroy and damage the fundamentals of the Constitution? The answer is
obvious. Article 368 does not vest such a power in Parliament. It cannot lift all limitations/restrictions placed on
the amending power or free the amending power from all limitations. This is the effect of the decision in
KesavanandaBharati (supra). The point to be noted, therefore, is that when constitutional law is challenged, one
has to apply the effect test to find out the degree of abrogation. This is the degree test which has been
referred to earlier. If one finds that the constitutional amendment seeks to abrogate core values/over-arching
principles like secularism, egalitarian equality, etc. and which would warrant re-writing of the Constitution then
such constitutional law would certainly violate the basic structure. In other words, such over-arching principles
would fall out side the amendatory power under Article 368 in the sense that the said power cannot be exercised
even by the Parliament to abrogate such over-arching principles . . 97 Id. at 110.
97 Id. at 110.
98Id at 108 [emphasis added]. Even earlier, the occasion of invoking the BSD has always been in the context of
constitutional amendments; see the observations made by the Supreme Court in Waman Rao case that all
amendments to the Constitution made on or after April 24, 1973 and by which the ninth schedule to the
Constitution stood amended from time to time by inclusion of various Acts and Regulations therein were open to
challenge on the ground that they, or anyone or more of them, are beyond the constituent power of the
Parliament since they damage the basic or essential features of the Constitution or its basic structure.
Consequently, all such amendments to the Constitution made on or before April 24, 1973, by which the ninth
schedule stood amended from time to time, were held to be valid and constitutional.

99 Supra note 53 at 892.

100 (2010) 11 SCC 1.
101(2014) 10 SCC 1(Herenafter Madras Bar Association). These appeass arsse from the order on Mar. 30, 2004
of the Madras High Court in WP No. 2198/2003 filed by the President of Madras Bar Association challenging the
constitutional validity of ch.1B and 1C of the Companies Act, 1956 inserted by Companies (Second Amendment)
Act 2002 providing for the constitution of National Company Law Tribunal (NCLT) and National Company Law
Appellate Tribunal (NCLAT). Upholding the decision of the high court the constitution bench of the Supreme
Court has held that the creation of National Company Law Tribunal and National Company Law Appellate Tribunal
and vesting in them the powers and jurisdiction exercsed by the high court in regard to company law matters are
not unconstitutional. See Id. para 57(i).

102 Id, para 57(ii). Parts 1B and 1C of the Act, as presently structured, are unconstitutional inasmuch as they
violate the principle of basic structure of the Constitution. However,the provisions of these parts, may be made
operational by making suitable amendments, as per the direction of the constitution bench.
103 These defects are in addition to what the Union Government has already agreed in pursuance of the impugned
order of the high court, Supra note 101 see observations of Madras Bar Association, majority, Jagdish Singh
Khehar J (for R.M. Lodha, CJI himself, Jasti Jelameswar, A.K Sikri JJ), minority per Rohinton Fali Nariman, J.
(dissenting). The majority court held that the jurisdiction to adjudicate upon questions of law/substantial
questions of law of the high court under any ordinary law may be transferred to an appropriately constituted
tribunal. Accordingly, the Constitution (Forty-second Amendment) Act, 1976, inserting art. 323-B is
constitutional. However, National Tax Tribunal Act, 2005 that seeks to transfer power of adjudication from the
traditional courts to alternative tribunals constituted without bearing the characteristics features of the
traditional court in terms of qualifications, appointment, terms of office of chairperson and members [ss. 5, 6, 7,
8, and 13 of the NTT Act, 2005] are unconstitutional. In the absence of these principal provisions, the remaining
provisions of the Act are rendered otiose, and therefore the entire Act is set aside. On the other hand, the
minority opinion differs from the majority opinion only in respect of reasoning, but concurs in the result. Minority
reasoning is stated by observing that the power to adjudicate upon the questions of law/substantial questions of
law is the sole province of the superior courts of record, that is high courts and Supreme Court and this
jurisdiction cannot be transferred any tribunal/court. Hence NTT Act is ultra vires and unconstitutional.
104 Supra note 101 at 175.

105 Ibid.
106 Id. at 164.
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107
Id. at 186.
108 Ibid
109
IHd
110Ibid. It needs to be noticed that a Judge of the High Court retires at the age of 62 years and Sections 10FE
and 10FT fix tenure of President/Chairman and Members of NCLT and NCLAT as three years with eligibility for re-
appointment.
111Ibid. The government proposes to have minimum eligibility of 50 years for first appointment as a member of
the tribunal.
112 Ibid
113 Ibid
114
Ibid
115 Ibid.
116Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441, State of Bihar v. Bal
Mukund Shah, (2000) 4 SCC 640; Shri Kumar Padma Prasad v. Union of India, (1992) 2 SCC 428, and All India
Judges Association v. Union of India, (2002) 4 SCC 247); supra note 100 at 51.

Kesavananda Bharati, supra note 43, Indira Gandhi v. Raj Narain, 1975 Supp SCC 1, State of Bihar v. Bal
117

Mukund Shah, (2000) 4 SCC 640 and I.R. Coclho, supra note 53.
118
Supra note 100 at 51.
119
Ibid
120 Ibid
121
Id. at 176 On the analogy of requirement for appointing persons as judicial members, persons having ability,
integrity, standing and special knowledge and professional experience of not less than fifteen years in industrial
finance, industrial management, industrial reconstruction, investment and accountancy, may however be
considered as persons having expertise in rehabilitation/revival of companies and therefore, eligible for being
considered for appointment as technical members. See, id. para 56(vi). Accordingly, officers mentioned in
clauses (c), (d), (e), (g), (h), and later part of cl. (f) in sub-s. (3) of s.10FD and officers of civil services of the
rank of the secretary or additrional secretary in Indian Company Law Service and Indian Legal Service can be
considered for purposes of appointment as technical members of the tribunal. Supra note 100 at 176.
122 Id, parp 56 (vi).

123 Id, para 56 (viii)

124
Id, para 56 (xi) The high court held that the period of ien in regard to the members of NCLT should be
restricted to only one year insteao ff the entire period of service as a Member of NCLT. See, id., para 7.3.
125 Id, parp 56 (xii)

126 Id, para 56 (xiii)

127
Id, para 56 (ix).
128 (2014) 8 SCC 682.
129 M.C. Setalvad, the first Attorney General of India, while speaking at the inaugural sitting of the Supreme
Court of India on Jan. 28, 1950, is stated to have observed that the jurisdiction and powers of the Supreme
Court are wider than those exercised by the highest Court of any country in the Commonwealth or by the
Supreme Court of the United States. Setalvad read the existence of basic structure principle much earlier than
its formal propounding!
130Supra note 53 at 891, emphasizing the need for discovering the applicable standard, it is observed: … the
point to be noted is that the application of a standard is an important exercise required to be undertaken by the
court in applying the basic structure doctrine, and that has to be done by the courts and not by prescribed
authority under Article 368.
131 In the common law tradition, Parliamentary sovereignty is made to operate on the basis of common law
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constitutionalism, in which the Parliament in the exercise of sovereign powers is not permitted to oust the
principle of judicial review, which is very basis of the rule of law. See supra note 53 at 872.
132 Id. at 892.
133 Ibid.
134 Shrutis (Vedas) and Smritis, the ancient law books of Hindus, which prescribe moral laws and principles for
religious duty and righteous conduct, are conjointly considered as Dharmashastra.
135The Mit ks har is commentary on the Yajnavalkya Smriti written by Vij- ne hvara, a scholar in the Western
Chalukya court in the in the late eleventh and early twelfth century it was considered one of the main
authorities on Hindu Law from the time the British began administering laws in India and its authority ran
throughout India except Bengal region. And this law is the basis of codification of modern statutes, such as
Hindu Marriage Act, 1955; Hindu Succession Act, 1956; Hindu Minority and Guardianship Act, 1956; and Hindu
Adoptions and Maintenance Act, 1956.
136
The D yabh ga is treatise or commentary written by J”m in tav hana which primarily focuses on division of
property. It was written much later than Mitakshara and was in vogue primarily in Bengal region.
137
ILR 41 Mad 778: AIR 1918 PC 81: Under the Hindu system of law clear proof of usage will outweigh the
written text of the law.
138
Supra note 1, Preface at xii.

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