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Harish Salve, Queen’s Counsel and Senior Advocate today delivered a lecture on basic structure of constitution and an analysis of landmark decisions such as Minerva Mills, I.R.Cohelo and Kesvananda Bharti. The lecture was organised by Supreme Court Advocates on Record Association (SCOARA).  Here are some excerpts from his lecture.

Salve began his lecture by speaking of the peculiarity of the doctrine of basic structure mentioning that it marks the beginning of an academic debate. He said that the debate among constitutional pundits has always been between a rigid constitution and a flexible constitution. He noted that countries like the United States of America (USA) and India have a rigid constitution where the constitution has power over the parliament. Whereas countries like the United Kingdom, which does not have a written constitution is rather flexible because the parliament in itself is supreme and sovereign.

Speaking of basic structure he said it is a third dimension which says the parliament can amend the constitution but cannot touch the basic structure thereby leaving some areas unaltered. The initial round of constitutional battles according Salve were fought around the right to property. It concerned the challenge to land reform laws when the constitution was amended for this purpose.

The Supreme Court, he said did not find any limitation in Articles 368 and 13. Under Article 13, any law that was inconsistent with part 3 of the Constitution was held void, this position was altered in Shankari Prasad Singh Deo Vs Union of India (1951 AIR 458) and Sajjan Singh Vs State of Rajasthan (1965 AIR 845).

Salve then recollects that it is in these circumstances that we realise that we are in a situation where for all practical purposes our constitution has become a flexible one. If it merely takes 2/3rd of the parliament to vote for an amendment without any checks or limitations, it becomes a numbers game. It is this ideological conundrum that kept haunting the Supreme Court that culminated to Golaknath Vs State of Punjab (1967 AIR 1643).

The net effect of Golaknath was that no amendment could be made to any fundamental rights. Subsequently Article 31C was inserted in the constitution to give primacy to the Directive Principles of the State Policy, this was when Kesavananda Bharti came up.

He said “Constitution is always the alpha point of any system of rule of law. There are some countries that follow referendum principles, our constitution does not provide for it. We just have Article 368 and a procedure laid down under it.”

Salve recollects that the a question then arose as to whether we should stay Golaknath principle or Shankari Prasad principle? Another question that arose was can the parliament with one sentence under Article 368 repeal the entire constitution! He then says if this could be done, then 368 has to have some limitations. These are implied limitation, Justice Khanna was the first to use implied limitations, he used the word basic feature but he did not go too far.

Kesavananda Bharti was subject to heavy criticism says Salve. However it lasted only for 2 years before it came handy. The constitution was amended in 1975 (39th Amendment) to say that the Prime Minister was above the law, this (Indira Gandhi Vs Raj Narain (1975) AIR 865) was the first instance where the Supreme Court used the basic structure doctrine to strike down the amendment.

Salve said “First there was 31C and then it was  expanded into Article 368(2) just tot get rid of the basic structure doctrine. This was challenged in the Minerva Mills case.” The Supreme Court in Minerva Mills VS Union of India (1980 AIR 1789)  acknowledged that 31C went a step too far.

He said in Minerva Mills case, they demonstrated that fundamental rights as strong as ours are available in totalitarian societies as well. However these rights were not enforceable in other societies, rights that cannot be enforced are no rights.

Salve further said that the DPSP steers the government laying down wise principles as to how it should function, every law must correlate to it.  According to Salve the important thing about Minerva mills is that it was the  first time the court spoke of trilogy of rights in Article 14,19 and 21.

Speaking of I.R.Coelho Vs State of Tamil Nadu Salve said Fali Nariman argued that Article 14,19 and 21 cannot be amended, this according to him will take us back to opening Kesavananda Bharti which Mr.Palkivala was dead against.

The supreme court in I.R.Coelho importantly laid down essence of rights test and rights test corresponding to the distinction between the foundational value behind an express right and an express right provided in the constitution itself.

In conclusion Salve noted that if there is a substantial violation in the trilogy (Articles 14,19 and 21)  the actual effect and impact will determine whether it is violative of constitution and not its packaging.