In countries with a written Constitution, constitutional law gets made in court cases through continuing interaction between the Advocate and the Judge.
In the United States (with one of the modern world’s shortest written Constitution) this interaction has been ongoing for more than 200 years; in independent India (with one of the modern world’s longest Constitution), the interaction between Bench and Bar — has now been on for 65 years.
In order to be a good advocate in constitutional law one must have the aspiration to be one. It is also advisable to read Granville Austin’s first book on India’s Constitution titled Cornerstone of a Nation, published by OUP in 1966. Granville Austin, popularly known as Red Austin, also wrote a paper titled “The Supreme Court and Struggle for Custody of the Constitution”.
It was in this struggle for the custody of the Constitution between Parliament and the Court — that the true art of superlative advocacy — has been witnessed. The struggle ultimately resulted in the establishment of the supremacy, neither of Parliament nor of the Court, but of the Constitution itself. This was the innovative doctrine, now known as the basic structure of the constitution.
The struggle for supremacy has been a long one. In the first few years after 1950, as India’s first Prime Minister Jawaharlal Nehru and his Government began working the Constitution it became clear that reconciling absolute judicial independence and Parliament’s claim to be the keeper of the Constitution when legislating for social reform, was not going to be an easy task.
And, the first test over “custody” of the Constitution was not about personal liberty but about property—abolition of zamindari and the taking of private properties for public purpose. It was the interpretation by the Supreme Court of the word “compensation” in Article 31 (in its orthodox and classical meaning of “fair equivalent value for property taken”) that the battle-lines between Parliament and the Court were drawn. And there were innumerable skirmishes.
The great question that emerged as a result of these clashes was whether courts were empowered to adjudicate upon and to invalidate constitutional amendments passed strictly in accordance with the procedure prescribed in Article 368. On this great question the written Constitution was, and is, silent. The Supreme Court grappled for several years with the vexed problem that this question had posed — first, in Shankari Prasad (1951) when adjudicating on the validity of the Constitution (First Amendment) Act, 1951, which introduced Article 31-B in the Ninth Schedule (which was an anachronism in a Fundamental Rights Chapter!). In this first constitutional case of vital importance argued by distinguished constitutional Advocate P.R. Das of Patna (who is no more), assisted then by Mr B. Sen, who is fortunately still with us — not “batting”, but “in the pavilion” keeping up his interest in Law at the age of 90. The arguments challenging the First Amendment were ingenious—but they were rejected in toto by a Constitution Bench of five Judges. This was a little before India’s first general election in 1952.
In the elections of 1952, 364 seats out of 489 seats were won by the single largest party in India—Congress Party. And in the two subsequent general elections of 1957 and 1962 there was a similar landslide victory for Congress Party. Inspired by its popularity at three general elections since 1952, Congress Party, with more than two-thirds of the seats in Parliament, was emboldened to pass, the Constitution (Fourth Amendment) Act, 1955 by expanding the Ninth Schedule—included in it was a new list of forty-four Acts, three or four of them having nothing to do with land reforms; since they were placed in the Ninth Schedule they were beyond challenge for violation of one or the other provision in the Fundamental Rights Chapter! Patanjali Sastri, J. speaking for the Constitution Bench in Shankari Prasad2 (1951) — a Bench presided over by India’s first Chief Justice — declared Article 31-B as valid in a single imperial sentence:
To make a law which contravenes the Constitution constitutionally valid is a matter of constitutional amendment, and as such it falls within the exclusive power of Parliament.
Many years later (in 2007) when I argued Coelho case before a Bench of nine Judges presided over by Chief Justice Sabharwal those cryptic words were to stick in the throat of all lawyers who argued the case and the Judges who heard it. Although the basic structure doctrine was enthusiastically reaffirmed by the Bench of nine Judges in Coelho4; Article 31-B remained untouched, only because of that ex cathedra statement of Justice Patanjali Sastri (in 1952). No Judge of the Supreme Court has ever been able to read down or read out this pontifical one-line statement.
Now came the second great constitutional challenge—before a Constitution Bench of the Court consisting of a new set of Judges in Sajjan Singh v. State of Rajasthan (in October 1964) — the challenge was again rejected though not unanimously as in the first case of Shankari Prasad2 (1951), Hidayatullah and Mudholkar, JJ. though not dissenting, said they were not comfortable with the idea that each and every part of the Constitution could be amended or repealed.
A galaxy of Senior Advocates led by Motilal Setalvad, who had by then stepped down as Attorney General, assisted by G.S. Pathak (father of R.S. Pathak, later Chief Justice of India), led the attack to the Constitution (Fourth Amendment) Act, 1955, and it fell to the lot of India’s second Attorney General Mr C.K. Daphtary, to defend it.
Then, a few years later, the Constitution (Seventeenth Amendment) Act, 1964 got passed in Parliament, when an additional 43 States Acts were placed in the Ninth Schedule — which brought to the fore the third great decision on the Constitution — Golak Nath (1967), before a (then) Full Court of eleven Judges.
Golak Nath6 (1967) was an important turning point in my own professional career. I had the opportunity and privilege of appearing as junior counsel, not as arguing counsel, but assisting Senior Counsel A.K. Sen and N.A. Palkhivala, who argued the case for the petitioners. The ruling party had retained more than a two-thirds majority in each of the two Houses of Parliament. And yet, Chief Justice Subba Rao who presided over the Bench in Golak Nath6 managed to forge (with his rare qualities of judicial statesmanship) a narrow majority (6:5) for the view that none of the fundamental rights were amendable under the amending power (in Article 368 of the Constitution) — because a constitutional amendment was also “law” under Article 13(2), and therefore a constitutional amendment abridging or taking away fundamental rights was absolutely void.
The battle then was over property rights [Article 19(1)(f) and Article 31], and many Members of Parliament were disturbed by the decision of the narrow majority of the Court that fundamental rights, particularly the fundamental right to property, could not be adversely affected by constitutional amendment passed by more than a two-thirds majority of each of the two Houses of Parliament. So, in defiance, Parliament went ahead and enacted more constitutional amendments.
It was in Golak Nath6 that I got to witness constitutional advocacy — nearly at its best. There was on the one side the accomplished Mr M.K. Nambiar of A.K. Gopalan fame (1950) (he was the father of our own well-known Senior Advocate K.K. Venugopal). There was also Mr A.K. Sen, a consummate and innovative advocate — as Law Minister in Nehru’s Government it was he who had piloted the Bill that emerged as the Constitution (Seventeenth Amendment) Act, 1964 and he now appeared as the counsel for the petitioners challenging it. The counsel for the Union of India never let him forget this embarrassment; in their arguments they constantly reminded him of this act of hara-kiri. Then there was the brilliant young Nani Palkhivala (my part-time Professor in Government Law College, Bombay in 1949); his eloquence as always matched his erudition.
On the other side in Golak Nath6 for the Union of India there was Niren De, the then Additional Solicitor General of India (the third Law Officer of Government) and there was also Kanhaiya Lal Mishra, Attorney General of U.P. It was Niren De who stood up to Chief Justice Subba Rao by refusing to argue whether the American doctrine of “prospective overruling” (introduced into the debate by Chief Justice Subba Rao himself) applied at all in India. Niren De had just come over from Calcutta and been appointed Additional Solicitor General. In order to save the Constitution First (1951), Fourth (1955) and Seventeenth (1964) Amendments from being declared invalid it was necessary to introduce in India the then new American doctrine of “prospective overruling” (according to Subba Rao). So when Subba Rao asked Niren De (appearing for the Union of India) to enlighten the Court on whether this doctrine (of prospective overruling) could be applied in India, it surprised him when Niren De stood up and said in clipped English “I refuse to argue prospective overruling”. This unsettled the Chief Justice quite a bit, and it was also something of a shock to me as well. But it was also an eye-opener as to what a brave advocate can do who is not willing to be brow?beaten or “trapped” by the Court into accepting a presiding Judge’s favourite point.
I had to admire the other lawyer on the Union’s side as well — Kanhaiya Lal Mishra — a great advocate from Eastern India. I had never seen or known anybody — no one — neither Judge nor lawyer — ever poking fun at Nani Palkhivala’s arguments — but this was dared by Kanhaiya Lal Mishra in Golak Nath6. He was (as I said) appearing as Advocate General for his State of Uttar Pradesh, supporting the Union’s case that there were no express or implied limitations on Parliament’s power to amend the Constitution.
In his opening argument, Palkhivala had very eloquently advocated the theory of “implied limitations” (which was to find favour only later in Kesavananda). Palkhivala relied upon the relevant part of Article 368(2) which said that a Bill to amend the Constitution shall be presented to the President who shall give his assent to the Bill, and thereupon the Constitution “shall stand amended” in accordance with the terms of the Bill. This must mean, Palkhivala argued, that at the end of the procedure for amendment, the Constitution must stand i.e. it must remain as a Constitution. Hence, Palkhivala argued, a wholesale amendment repealing the provisions of the Constitution, was simply unthinkable; hence the necessity to read, implied limitations into Article 368 itself. Palkhivala emphasised the words “shall stand amended” in Article 368(2) not once but several times — in words and in gestures as well. As was customary with him, when he was agitated he used both his hands to emphasise the point.
The suave Kanhaiya Lal Misra got up to reply. He submitted that there were no implied limitations to the amending power. Misra made his submissions in low-key. Unlike Palkhivala he was not agitated. And after he stated his point, he poked fun at Palkhivala’s emphasis on the words “shall stand amended” in Article 368. “What should it have said, My Lords?” he asked, in mock surprise. “Should the clause have said that the Constitution shall sit amended?” He then went on, “No-no — My Lords. Plain English cannot be subverted to suit any particular point of view.” Kanhaiya Lal’s English was impeccable. One could perhaps outsmart him occasionally on law but never on the English language.
Six years later in 1973, a still larger Bench of 13 Judges of the Supreme Court was constituted, presided over by Chief Justice S.M. Sikri to consider the validity of some of the later amendments enacted despite the majority view (6:5) in Golak Nath6 viz.
(a) the Constitution (Twenty-fourth Amendment) Act, 1971, which recast Article 368 to make it clear that any provision in the Constitution could be amended, added to or repealed;
(b) the Constitution (Twenty-fifth Amendment Act, 1971, which introduced Article 31?C, brain child of a leftist member of the Congress party, and a Minister, Mr Raghunath Reddy. Article 31?C expressly saved laws from being declared ultra vires when enacted to give effect to “Articles 39(b) and (c) in the Chapter on Directive Principles of State Policy”; Parliament had only to so declare it; and
(c) the Constitution (Twenty-ninth Amendment) Act, 1972, which added two more Acts of the State Legislature of Kerala in the Ninth Schedule.
The Bench of 13 Judges was also to consider the correctness of the decision in Golak Nath6 (1967). But Golak Nath6 was the very first victim in the larger Bench decision of Kesavananda9 (1973). It was overruled almost straightaway by 12 out of the 13 Judges who sat in Kesavananda9 — only the first out of the 13 Judges (Chief Justice Sikri) a member of the Bench in Golak Nath6; stuck to his view, affirming Golak Nath6 to be good law.
A year before Kesavananda9 (1973) was heard, I had been appointed Additional Solicitor General of India, and since I had appeared as counsel for the petitioners in Golak Nath6, I could not (and did not) appear for the Union of India in Kesavananda9. But nonetheless I received a blow-by-blow description of what went on every single day in the case because the lead counsel for the Union of India, H.M. Seervai, a great constitutional lawyer of his time, used to lunch with me in my Chambers on the first floor of the Supreme Court building. H.M. Seervai was not only a great constitutional lawyer, he was also a compulsive talker — when having lunch with me in my Chamber every afternoon he would describe to me (woefully) in great detail the goings-on in the Great case. He was then firmly of the view that there were no basic features in the Constitution that could not be amended by Parliament. Later (much later), because of the Internal Emergency of June 1975 and because of the first suppression of Judges [when C.J. Ray fourth in line was appointed Chief Justice of India ignoring the three seniormost Judges then on the Court (Shelat, Hegde or Grover, who resigned in protest)] Seervai changed his views, a 180° change, as now recorded in his book Constitutional Law of India. The Constitution does mean different things to different people (and sometimes to the same people) at different times! This has happened before. In A.K. Gopalan7 (1950) for instance a Constitution Bench of the Court had interpreted Article 21 to mean that a person could be deprived of “life” or “liberty” so long as there was enacted law to support this — as simple as that. But later—much later—after the experience of the Internal Emergency of June 1975 the Court changed its view — 180°. Such law, it now said, must not be either discriminatory or arbitrary, it must comply with the rigours of Article 14. As Justice Cardozo (of the US Supreme Court) had proclaimed: “the hydraulic pressure of great events do not idly pass Judges by” (for “Judges” read “lawyers” as well).
In Kesavananda9 (1973) the Court held (by a narrow majority of 7:6) that although no part of the Constitution, including fundamental rights, was beyond the amending power (Golak Nath6 was overruled 12:1), one thing was certain viz. that the basic features of the Constitution, a phrase initially mentioned by Justice Mudholkar in his judgment in Sajjan Singh5 (October 1964), could not be abrogated, even by a constitutional amendment.
I have mentioned elsewhere that it was Justice H.R. Khanna, the author of the doctrine of “basic features” who had frankly acknowledged (after retirement) that the phrase originated with Justice J.R. Mudholkar; he had first used it in Sajjan Singh case5 (judgment dated October 1964), when he (Mudholkar, J.) had expressed doubts about the correctness of the initial view taken by the Supreme Court in Shankari Prasad2, (1951) and he in turn (that is, Justice Mudholkar) said that he got the idea of “basic features” from a judgment of Chief Justice Cornelius of the Pakistan Supreme Court in Fazlul Quader Chowdhry v. Mohd. Abdul Haque — it took the view that the Pakistan President under the 1956 Constitution of Pakistan though empowered to “remove difficulties” had no power to remove a fundamental feature of the Constitution. Such transmigration of ideas in the field of constitutional law now goes by the name of Comparative Constitutional Advocacy. If you want to call yourself a good constitutional advocate you must get familiar with some of the major Constitutions of the world and how they have been interpreted: they will (sometimes) help you to put forward in Court an interpretation of an abstruse provision of our own Constitution.
After Kesavananda9 (1973) came the most significant judgment—the judgment of a Bench of five Judges in Indira Nehru Gandhi Election case on 7?11?1975 when the “basic structure” theory got sealed. In Indira Nehru Gandhi Election case15 those Judges on the Bench who were initially of the contrary view (the minority view in Kesavananda Bharati9), in the case of Indira Nehru Gandhi v. Raj Narain15 nonetheless followed the majority view, in conformity with judicial discipline, they struck down the Constitution (Thirty-ninth Amendment Act), 1975 which had virtually negated the judgment of the Allahabad High Court setting aside the election of Mrs Indira Gandhi, even though her appeal was pending in the Supreme Court!
Justice Ray who had become Chief Justice in 1973 after superseding 3 seniormost Judges of the Supreme Court of India (Justices Shelat, Hegde and Grover) was not only grateful; he was (since then) always more-loyal-than-the-King, (as the phrase goes). Even before. In fact Justice Ray was the only dissenting Judge in Bank Nationalisation case — when a Bench of 11 Justices (10:1) struck down the Bank Nationalisation Acts to the chagrin of India’s Prime Minister Mrs Indira Gandhi. C.K. Daphtary, former Attorney General, then a nominated Member of Parliament, had described in the Rajya Sabha, the first supersession of Judge, in these trenchant words:
“The boy who wrote the best essay got the first prize.”
“The boy” was Justice Ray, the best essay was his sole dissenting judgment in Bank Nationalisation case17 and the “prize” was his being ultimately appointed as Chief Justice of India superseding the three Justices who were senior to him — Shelat, Hegde and Grover. All of this summed up in just eleven hard-hitting words: Only Daphtary, another great master of the English language could have conjured it up.
What came after Kesavananda9 (1973) and Indira Nehru Gandhi15 (1975) was even more significant. (It has been crucial to the survival, and the subsequent repeated re-affirmation of the doctrine.) Three days after the Supreme Court reaffirmed the basic structure theory on 7-11-1975 in Indira Nehru Gandhi Election case15 (a decision, as I said, of a five-Judge Bench), Chief Justice Ray on his own (suo motu) convened a special Bench of 13 Judges (once again) to overturn the majority view in Kesavananda9. There is no record of this hearing in the annals of the Court, but in India’s constitutional history it is this incident that has proved to be the real turning point for the Apex Court.
This new Bench of 13 Judges had been constituted by Chief Justice Ray to overturn the decision in Kesavananda9 — it consisted of the then existing 13 seniormost Judges on the Court. But the hearing in that case did not last more than two days. And lawyers who were fortunate to do so were able to witness the finest solo performance ever seen in any court in India. After Nani Palkhivala presented his arguments for a full day and a half, all — all 12 out of the 13 sitting Judges were convinced (i.e. all except Chief Justice Ray) that the basic structure theory propounded in Kesavananda9 was constitutionally correct and sound and could not be overruled. But this is not stated in any reported decision because before the Judges could say so in a speaking order, the Chief Justice rose from his seat saying:
“This Special Bench is now dissolved.”
And with this the proceedings came to an inglorious end. That is why there is no report of this in the records of the Court, it is remembered (fortunately) only because it has been mentioned in Seervai’s book Constitutional Law of India [4th Edn. (1993) Vol. 2, p. 1957] and one cannot find it in the law reports. It was by not overruling the majority decision in Kesavananda9 that the Court retained to itself the custody and control of the Constitution which in the 1970s was in grave danger of being taken over by a Parliament dominated by the members of the single largest political party in Parliament.
The most handsome tribute that was ever paid to Palkhivala’s skill as a constitutional advocate par excellence on those two fateful days in November 1975 was by Justice H.R. Khanna. Justice Khanna who was the moving spirit, who helped to create the majority 7:6 in Kesavananda9 was also a member of that new 13-Judge Bench constituted by Chief Justice Ray. Justice Khanna records in his memoirs that during the hearing of that case—if it can ever be called a case:
The heights of eloquence to which Palkhivalla had risen has seldom been equalled and never been surpassed in the history of the Supreme Court.
High praise from one great and brave man about another: Justice Khanna later paid the price for falling foul of the Government when he too was “superseded” (the second, and hopefully the last supersession) i.e. not appointed Chief Justice of India as per constitutional convention when Chief Justice Ray demitted office. Instead, Judge 3 (Justice Beg) was administered the oath of office of Chief Justice of India, and Justice Khanna promptly resigned: but in a blaze of glory!
James Madison, one of the Framers of the American Constitution, had said in the Federalist Papers—
if men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
Judicial review has been one of these “auxiliary precautions” which continues to act as a foil to laws made in Parliament. It was the doctrine of judicial review that had introduced the doctrine of basic structure of the Constitution.
“Basic structure” then, was the response of an anxious activist Court to the experience of the working of the India’s Constitution during its first 23 years. It now remains as an auxiliary precaution against a tidal wave of majoritarian rule: which we are now experiencing (since 2014) after a lapse of nearly thirty long years.
* Speech delivered at a Seminar on “Continuing Legal Education for Professional Development” organised by the Supreme Court Bar Association at the Indian Law Institute on 15-8-2015.
** This Article was first published in Supreme Court Cases (2015) 8 SCC J-41 . It has been reproduced with the kind permission of Eastern Book Company.
*** Senior Advocate, Supreme Court.
Picture Credits: DNA India
 Its content was later reproduced in Granville Austin’s weighty second book, published by OUP in 1999: Working of India’s Democratic Constitution; it is India’s constitutional history in the making.
 I.R. Coelho v. State of T.N., (2007) 2 SCC 1
 Golak Nath v. State of Punjab, AIR 1967 SC 1643
 A.K. Gopalan v. State of Madras, AIR 1950 SC 27
 The concept of prospective overruling is a deviation from the Blackstonian principle recognised for centuries under English law about the retrospective operation of a decision. The incorporation of this doctrine in India meant that the decision (in Golak Nath, AIR 1967 SC 1643) would not have a retrospective operation so as to adversely affect the Constitution First, Fourth and Seventeenth Amendment Acts, but would operate only in the future. This doctrine now offers the basis for an extended view of the judicial function — a view which confers a discretion of the Court to specify the time-frame and the cases to which a particular pronouncement in a case will be applicable. It is meant to protect the interest of the public (and of Governments) who have arranged their affairs (and affairs of State) on the basis of then existing law; to pronounce such law unconstitutional or invalid would result in hardship and hence the doctrine of “overruling — but only prospectively”. The basic objective of prospective overruling is to overrule a precedent without it having retrospective effect. The great American Judge Cardozo had said that if this doctrine is not given effect to, it will “wash away the whole dynamic nature of law, it will be against the concept of judicial activism”.
 Kesavananda Bharti v. State of Kerala, (1973) 4 SCC 225
 Sidharth Shanker Ray, another good advocate and a former Chief Minister of Bengal, has written a moving tribute to Kanhaiya Lal Misra which is recorded in the 125th Post Centenary Silver Jubilee Volume of the Allahabad High Court (1866-1991). In it he tells us (what I did not know) that Kanhaiya Lal scored 150 out of 150 marks in his English essay paper in the Indian Civil Service Examination of 1926. This was the prestigious examination of ICS held only in England. He passed. And yet he was not selected for the ICS. Others who scored less marks were preferred. This was so irregular that questions were asked about it in England’s Parliament. The truth was that in the year 1926, Kanhaiya Lal had committed the unpardonable sin of joining the nationalist movement, and there was a black mark by the British against his name. And his obtaining cent per cent marks in his English essay paper had a sequel. Sir Arthur Quiller-Couch, the well-known Professor and master of the English language, and one of the editors of Oxford Book of Verse, who had examined and marked Kanhaiya Lal’s paper was so impressed that he not only gave him full marks but also took the trouble of writing a personal letter to Kanihya Lal’s Professor in Allahabad University. In his letter to Professor Dunn, he summarised K.L. Misra’s brilliance with a bit of hyperbole:
It was the Englishman who had conquered India, but it is Kanihya Lal who has conquered English.
There you have a great tribute by a great Englishmen about a great Indian.
 Maneka Gandhi v. Union of India, (1978) 1 SCC 248 (7 Judges).
 Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1
 Raj Narain v. Indira Nehru Gandhi, 1974 SCC OnLine All 287 : AIR 1974 All 324
 Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248
 Only 5 of the Judges in Kesavananda, (1973) 4 SCC 225 were on the new Bench set up in 1975: they were Ray, C.J., H.R. Khanna, K.K. Mathew, M.H. Beg and Y.V. Chandrachud, JJ. The “new” Judges were: P.N. Bhagwati, J. (appointed on 17-7-1973); V.R. Krishna Iyer, J. (also appointed on 17-7-1973); P.K. Goswami, J. (appointed on 10-9-1973); R.S. Sarkaria, J. (appointed on 17-9-1973); A.C. Gupta, J. (appointed on 2-9-1974); N.L. Untwalia, J. (appointed on 3-10-1974); M. Fazal Ali, J. (appointed on 2-4-1975); and P.N. Shinghal, J. (appointed on 6-11-1975).
 A very recent judgment of a Full Bench of 17 Judges of the Supreme Court of Pakistan has taken the same view about its own Constitution in District Bar Assn., Rawalpindi v. Federation of Pakistan, Constitution Petition No. 12 of 2010, decided on 5-8-2015 (Pak SC)
 Because in May 1980 a Constitution Bench in Waman Rao v. Union of India, (1980) 3 SCC 587 and Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625 held that after April 1973 any Act added in the Ninth Schedule would be open to challenge for violation of the Constitution (including the Fundamental Rights Chapter), and clauses (4) and (5) added in Article 368 by the Constitution Forty?second Amendment shutting out judicial review of constitutional amendments and proclaiming their finality, were also struck down respectively.