Substantive Due Process of Law in India

Comparison of Substantive Due Process
with Doctrine of Basic Structure of Constitution

‘Due process of law’ is a term used in USA Constitution and it enables court to strike down laws on somewhat more wide grounds that the doctrine of ultra vires used by English Courts. In India similar result is obtained by the  of violation  ‘Doctrine of Basic Structure of Constitution.’

Following observations of Allahabad High Court make an interesting point in this regard:

“27. Thus we see that the ‘due process’ clause was specifically and deliberately excluded from the Constitution by the Constitution makers, and this fact was noted in A. K. Gopalan’s case (AIR 1950 SC 27) (supra). However, in Sunil Batra v. Delhi Admn., (1978) 4 SCS 494 : (AIR 1978 SC 1675), Krishna Iyer, J. held that after the decisions in R. C. Cooper’s case (AIR 1970 SC 564) and Maneka Gandhi’s case (AIR 1978 SC 597) (supra) the due process clause must be deemed to be ingrained in Article 21. No doubt in Air India v. Nergesh Meerza, AIR 1981 SC 1829 (paras 84 and 85) there are some observations to the contrary (in a 3 Judge bench decision) but these have been made without noticing the series of decisions on Article 21 (mentioned above), beginning from Maneka Gandhi’s case (which is a 7 Judge Constitution Bench Decision), and hence these observations have to be either treated as per incuriam or restricted to mean that the ‘due process’ clause cannot be utilized in our country to invalidate laws infringing freedom of contract. (It is well known that the U. S. Supreme Court had at one time struck down several laws infringing freedom of contract, particularly some of the Neal Deal Legislation of President Roosevelt, on the ground that they violated the ‘due process’ clauses in the Fifth and Fourteenth Amendments).

28. It may be mentioned that ‘due process’ is of two kinds procedural due process, and substantive due process. Procedural due process means that no one can be deprived of his life, liberty or property except in accordance with the procedure laid down in the statutory law. Substantive due process means that this procedure (for depriving a person of his life, liberty or property) must be fair, just and reasonable. Thus, while on a literal interpretation Article 21 only embodies procedural due process, by judicial interpretation it has been held to include substantive due process also. Thus, in Bachan Singh v. State of Punjab, AIR 1982 SC 1325, the Supreme Court held that ‘the concept of reasonableness runs through the entire fabric of the Constitution’ (vide para 16), and also “every facet of the law which deprives a person of life or personal liberty would therefore, have to stand the test of reasonableness, fairness and justice in order to be outside the inhibition of Article 21” (vide para 16).

29. In Maneka Gandhi’s case (AIR 1978 SC 597) (supra) the Supreme Court observed (vide para 56): “The principle of reasonableness which legally as well as philosophically is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer to the test of reasonableness in order to be in conformity with Article 14.”

30. I may clarify that I am not resting my decision on the “due process” clause. Even independently of the ‘due process’ clause the same conclusion-can be reached on the basis of the decision in Maneka Gandhi’s case and other decisions of the Supreme Court on Articles 14 and 21. I have referred to the due process’ clause only to point out that substantive due process means (so far as life and liberty is concerned) almost the same thing which has been said in Maneka Gandhi’s case, namely, that the procedure depriving one of his life or liberty must be fair, just and reasonable.”

Source: Ganesh Chandra Bhatt v. Distict Magistrate

This judgement produces an interesting debate about the subject.

Allocation of funds directly to members of parliament for expenditure on national priorities, if valid?

MPLAD Scheme

Members of Parliament Local Area Development Scheme:

Validity of direct allocation of funds.

Facts of MPLAD Scheme:

On 23.12.1993, the then Prime Minister announced the MPLAD Scheme. This scheme was formulated for enabling the Members of Parliament to identify small works of capital nature based on locally felt needs in their constituencies. The objective, as seen from the guidelines of the MPLAD Scheme, is to enable the Members of Parliament to recommend works of developmental nature with emphasis on the creation of durable community assets based on the locally felt needs to be taken up in their Constituencies. The guidelines prescribe that right from inception of the MPLAD Scheme, durable assets of national priorities viz., drinking water, primary education, public health, sanitation and roads etc. are being created.

Question of law:

Does the MPLAD Scheme violates article 275 and 282 of the Constitution of India?

Observations of Supreme Court of India:

The argument that the Appropriation Act by itself is not sufficient to satisfy the requirements of Article 266(3) cannot be accepted. It is true that the activity of spending monies on various projects has to be separately provided by a law. However, if Union Government intends to spend money for public purpose and for implementing various welfare schemes, the same are permitted by presenting an Appropriation Bill which is a Money Bill and by laying the same before the Houses of Parliament and after getting the approval of the Parliament, Lok Sabha, in particular, it becomes law and there cannot be any impediment in implementing the same so long as the MPLAD Scheme is for the public purpose.

We are satisfied that all the tests laid down under the provisions of Article 266(3) have also been fully satisfied in the implementation of the MPLAD Scheme. Further Article 283(1) provides that `law’ made by the Parliament shall regulate withdrawal of money from Consolidated Fund of India. The Appropriation Act passed as per the provisions of Article 114 is `law’ for the purpose of the Constitution of India and the respondents are fully justified in claiming that no separate or independent law is necessary since an item of expenditure forming part of the MPLAD Scheme or the activity on which the expenditure is incurred also, forms part and parcel of such Appropriation Act. In other words, Appropriation Acts are for the purposes of the Constitution of India and no further enactment is required on a proper interpretation of the Constitution of India.

Under Article 73, the executive power of the Union to give grants extends to the matters with respect to which the Parliament has the power to make laws. This is an embargo on the Centre’s power to give discretionary grants to the States and this embargo is lifted by the non- obstante clause in Article 282 whereby the Centre can give discretionary grants to the States even when it has no legislative power on the subject.

The expression ‘public purpose’ under Article 282 should be widely construed and from the point of view of the scheme, it is clear that the same has been designed to promote the purpose underlying the Directive Principles of State Policy as enshrined in Part IV of the Constitution of India. It is not in dispute that the implementation of the Directive Principles is a general responsibility of the Union and the States.

Conclusions of Supreme Court of India on validity of MPLAD Scheme:

1) Owing to the quasi-federal nature of the Constitution and the specific wording of Article 282, both the Union and the State have the power to make grants for a purpose irrespective of whether the subject matter of the purpose falls in the Seventh Schedule provided that the purpose is “public purpose” within the meaning of the Constitution.
2) The MPLAD  Scheme falls within the meaning of “public purpose” aiming for the fulfillment of the development and welfare of the State as reflected in the Directive Principles of State Policy.
3) Both Articles 275 and 282 are sources of spending funds/monies under the Constitution. Article 282 is normally meant for special, temporary or ad hoc schemes. However, the matter of expenditure for a “public purpose”, is subject to fulfillment of the constitutional requirements. The power under Article 282 to sanction grant is not restricted.
4) “Laws ” mentioned in Article 282 would also include Appropriation Acts. A specific or special law need not be enacted by the Parliament to resort to the provision. Thus, the MPLAD Scheme is valid as Appropriation Acts have been duly passed year after year.
5) Indian Constitution does not recognize strict separation of powers. The constitutional principle of separation of powers will only be violated if an essential function of one branch is taken over by another branch, leading to a removal of checks and balances.
6) Even though Members of Parliaments have been given a seemingly executive function, their role is limited to `recommending’ works and actual implementation is done by the local authorities. There is no removal of checks and balances since these are duly provided and have to be strictly adhered to by the guidelines of the MPLAD Scheme and the Parliament. Therefore, the MPLAD Scheme does not violate separation of powers.
7) Panchayat Raj Institutions, Municipal as well as local bodies have also not been denuded of their role or jurisdiction by the Scheme as due place has been accorded to them by the guidelines, in the implementation of the Scheme.
8) The court can strike down a law or scheme only on the basis of its vires or unconstitutionality but not on the basis of its viability. When a regime of accountability is available within the Scheme, it is not proper for the Court to strike it down, unless it violates any constitutional principle.
9) In the present Scheme, an accountability regime has been provided. Efforts must be made to make the regime more robust, but in its current form, cannot be struck down as unconstitutional.
10) The Scheme does not result in an unfair advantage to the sitting Members of Parliament and does not amount to a corrupt practice.

Source: Bhim Singh v. Union of India

Positive discrimination in promotion

Discrimination under Article 16 of Constitution of India.

Accelerated Promotions in employment:

Reservation in promotion with consequential seniority, if legally valid?

The Question:
Petitioners invoked Article 32 of the Constitution for a writ in the nature of certiorari to quash the Constitution (Eighty-Fifth Amendment] Act, 2001 inserting Article 16(4A) of the Constitution retrospectively from 17.6.1995 providing reservation in promotion with consequential seniority as being unconstitutional and violative of the basic structure.

Observations of Supreme Court: 

Constitution is not an ephemeral legal document embodying a set of legal rules for the passing hour. It sets out principles for an expanding future and is intended to endure for ages to come and consequently to be adapted to the various crisis of human affairs. Therefore, a purposive rather than a strict literal approach to the interpretation should be adopted. A Constitutional provision must be construed not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that constitutional provision does not get fossilized but remains flexible enough to meet the newly emerging problems and challenges.
This principle of interpretation is particularly apposite to the interpretation of fundamental rights. It is a fallacy to regard fundamental rights as a gift from the State to its citizens. Individuals possess basic human rights independently of any constitution by reason of basic fact that they are members of the human race. These fundamental rights are important as they possess intrinsic value. Part-III of the Constitution does not confer fundamental rights. It confirms their existence and gives them protection. Its purpose is to withdraw certain subjects from the area of political controversy to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. Every right has a content. Every foundational value is put in Part-III as fundamental right as it has intrinsic value. The converse does not apply. A right becomes a fundamental right because it has foundational value.

At the outset, it may be noted that equality, rule of law, judicial review and separation of powers are distinct concepts. They have to be treated separately, though they are intimately connected. There can be no rule of law if there is no equality before the law; and rule of law and equality before the law would be empty words if their violation was not a matter of judicial scrutiny or judicial review and judicial relief and all these features would lose their significance if judicial, executive and legislative functions were united in only one authority, whose dictates had the force of law. The rule of law and equality before the law are designed to secure among other things justice both social and economic. Secondly, a federal Constitution with its distribution of legislative powers between Parliament and State legislatures involves a limitation on legislative powers and this requires an authority other than Parliament and State Legislatures to ascertain whether the limits are transgressed and to prevent such violation and transgression.

Once it is held that fundamental rights could be abridged but not destroyed and once it is further held that several features of the Constitution can not be destroyed, the concept of ‘express limitation’ on the amending power loses its force for a precise formulation of the basic feature of the Constitution and for the courts to pronounce on the validity of a constitutional amendment.

In the present case, we are concerned with the right of an individual of equal opportunity on one hand and preferential treatment to an individual belonging to a backward class in order to bring about equal level- playing field in the matter of public employment. Therefore, in the present case, we are concerned with conflicting claims within the concept of ‘justice, social, economic and political’, which concept as stated above exists both in Part-III and Part-IV of the Constitution. Public employment is a scarce commodity in economic terms. As the supply is scarce, demand is chasing that commodity. This is reality of life. The concept of ‘public employment’ unlike right to property is socialistic and, therefore, falls within the preamble to the Constitution which states that WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC.
Similarly, the preamble mentions the objective to be achieved, namely, justice, social, economic and political. Therefore, the concept of ‘equality of opportunity’ in public employment concerns an individual, whether that individual belongs to general category or backward class. The conflicting claim of individual right under Article 16(1) and the preferential treatment given to a backward class has to be balanced. Both the claims have a particular object to be achieved. The question is of optimization of these conflicting interests and claims.

Conclusions on validity of accelerated promotion:

The impugned constitutional amendments by which Articles 16(4A) and 16(4B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling-limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBC on one hand and SCs and STs on the other hand as held in  Indra Sawhney v. Union of India, the concept of post-based Roster with in-built concept of replacement as held in R.K. Sabharwal & Others v. State of Punjab
We reiterate that the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.
However, in this case, as stated, the main issue concerns the “extent of reservation”. In this regard the concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SC/ST in matter of promotions. However if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.
Subject to above, we uphold the constitutional validity of the Constitution (Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-First Amendment) Act, 2000, the Constitution (Eighty-Second Amendment) Act, 2000 and the Constitution (Eighty-Fifth Amendment) Act, 2001.
M. Nagaraj v. Union of India, decided by Supreme Court of India on 19 October, 2006.

Note: Thus the Court will evaluate each law to see if it is supported by data.
Does it not involve subjective Due Process of another kind?

Basic structure of Constitution of India

Basic Structure of Constitution of India

Constituent power of the Legislature:

Does Sovereign authority of Parliament includes power to pass Judicial verdict?

Can Parliament in its legislative powers pass a law deciding the pending or judicially decided election dispute?

Would such exercise of Legislative power violate Basic Structure of Constitution of India?

Relevant Provisions of Constitution of India:
Clause (4) of Article 329A had been added by the Constitution (Thirty-ninth Amendment) Act, 1975, which consisted of four parts:
(i) No law made by Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975 in so far as it relates to the election petitions and matters connected therewith shall apply or shall be deemed even to have applied to or in relation to the election of any such person as is referred to in Clause (1) to either House of Parliament;
(ii) and such election shall not be deemed to be void or ever to have become void on any ground on which such election could be declared to be void or has before such commencement been declared to be void under any such law;
(iii) and notwithstanding any order made by any court before such commencement declaring such election to be void, such election shall continue to be valid in all respects;
(iv) and any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no effect.

Conclusions of Supreme court of India on Basic Structure of Constitution of India:

Per Ray, A.N. J.:
The principle of free and fair elections is an essential postulate of democracy and which in its turn is a part of the basic structure of the Constitution. An amendment of Constitution which (1) abolishes the forum without providing for another forum for going into the dispute relating to the validity of the election of the appellant and further prescribes that the said dispute shall not be governed by any election law and that the validity of the said election shall be absolute and not consequently be liable to be assailed, and (2) extinguishes both the right and the remedy to challenge the validity of the aforesaid election; is therefore not permissible.

Per Khanna H.R. J.,:
…..The effect of impugned Clause (4) is to take away both the right and the remedy to challenge the election of the appellant. Such extinguishment of the right and remedy to challenge the validity of the election, in my opinion, is incompatible with the process of free and fair elections. Free and fair elections necessarily postulate that if the success of a candidate is secured in elections by means which violate the principle of free and fair elections, the election should on that account be liable to be set aside and be declared to be void. To extinguish the right and the remedy to challenge the validity of an election would necessarily be tantamount to laying down that even) if the election of a candidate is vidated by the fact that it was secured by flagrant violation of the principles of free and fair election, the same would still enjoy immunity from challenge and would be nonetheless valid. Clause (4) of Article 329A can, therefore, be held to strike at the basis of free and fair ‘elections,
207. I agree that it is not necessary in a democratic set up that disputes relating to the validity of the elections must be settled by courts of law, There are many countries like France, Japan, and the United States of America where consistently with the democratic set up the determination of such controversies is by legislatures or by authorities other than the courts. The question with which we are concerned, however, is whether it is permissible in a democratic set up that a dispute with regard to the validity of a particular election shall not be raised before any forum and shall not be governed by law and whether such an election can be declared, despite the existence of a dispute relating to its validity, to be valid by making the existing law relating to election disputes not applicable to it and also by not applying .any other election law to such a dispute. The answer to such a question, for the reasons given earlier by me, should be in the negative.

Per Mathews J.:
281. I fully appreciate that ‘sovereign’, if conceived of as an omnipotent being, has no existence in the real world. Several thoughtful writers have deprecated the use of the expression in legal discussion as it has theological and religious overtones. Neverthelss, as the practice has become inveterate it will only create confusion if any departure is made in this case from the practice. If it is made clear that sovereign is not a ‘mortal God’ and can express himself or itself only in the manner and form prescribed by law and can be sovereign only when he or it acts in a certain way also prescribed by law, then perhaps the use of the expression will have no harmful consequence.
299. For the purpose of this case I accept as correct the statement of Blackstone already quoted and approved by the Privy Council in Liyanage v. The Queen (1967) 1 AC 259. I cannot regard the resolution of an election dispute by the amending body as law : It is either a judicial sentence or a legislative judgment like a Bill of Attainder.
300. It is no doubt true that the House of Commons in England used to pass bills of attainder. But the practice has fallen into desuetude, since the year 1696. A bill of attainder is a special act of the legislature, as inflicts capital punishments upon persons supposed to be guilty of high offences, such as treason and felony, without any conviction in the ordinary course of judicial proceedings. The legislature assumes judicial magistracy, pronouncing upon the guilt of the party without any of the common forms and guards of trial, and satisfying itself with proofs, when such proofs are within its reach, whether they are conformable to the rules of evidence or not. In short, in all such cases, the legislature exercises the highest power of sovereignty, and what may be properly deemed an irresponsible despotic discretion, being governed solely by what it deems political necessity or expediency, and too often under the influence of unreasonable fears, or unfounded suspicions.
304. , At the time when the Amendment was passed, the appeal filed by the appellant and the cross appeal of the respondent were pending before the Supreme Court. Clause (4) was legislation ad hominem directed against the course of the hearing of the appeals on merits as the appeal and the cross appeal were to be disposed of in accordance with that clause and not by applying the law to the facts as ascertained by the Court. This was a direct interference with the decision of these appeals by the Supreme Court on their merits by a legislative judgment.
305. If the amending body really exercised judicial power, that power was exercised in violation of the principles of natural justice of audi alteram partem. Even if a power is given to a body without specifying that the rules of natural justice should be observed in exercising it, the nature of the power would call for its observance.
307. It is difficult to understand, when the amending body expressly excluded the operation of all laws relating to election petition and matters connected therewith by the first part of Clause (4), what ideal norms of free and fair election it had in view in adjudging the validity of the election of the appellant. I cannot conceive of any pre-existing ideal norms of election apart from the law enacted by the appropriate legislatures. If the amending body evolved new norms for adjudging the validity of the particular election, it was the exercise of a despotic power and that would damage the democratic structure of the Constitution.
320. The major problem of human society is to combine that degree of liberty without which law is tyranny with that degree of law without which liberty becomes licence; and, the difficulty has been to discover the practical means of achieving this grand objective and to find the opportunity for applying these means in the ever-shifting tangle of human affairs. A large part of the effort of man over centuries has been expended in seeking a solution of this great problem. A reign of law, in contrast to the tyranny of power, can be achieved only through separating appropriately the several powers of Government. If the lawmakers should also be the constant administrators and dispensers of law and justice, then, the people would be left without a remedy in case of injustice since no appeal can lie under the fiat against such a supremacy. And, in this age-old search of political philosophers for the secret of sound Government, combined with individual liberty, it was Montesquieu who first saw the light. He was the first among the political philosophers who saw the necessity of separating judicial power from the executive and legislative branches of Government. Montesquieu was the first to conceive of the three functions of Government as exercised by three organs, each juxtaposed against others. He realised that the efficient operation of Government involved a certain degree of overlapping and that the theory of checks and balances required each organ to impede too great an aggrandizement of authority by the other two powers. As Holdsworth says, Montesquieu convinced the world that he had discovered a new Constitutional principle which was universally valid. The doctrine of separation of Governmental powers is not a mere theoretical, philosophical concept. It is a practical, work-a-day principle. The division of Government into three branches does not imply, as its critics would have us think, three water-tight compartments. Thus, legislative impeachment of executive officers of judges, executive veto over legislation, judicial review of administrative or legislative actions are treated as partial exceptions which need explanation.
327. A sovereign in any system of civilized jurisprudence is not like an oriental despot who can do anything he likes, in any manner he likes and at any time he likes. That the Nizam of Hyderabad had legislative, judicial and executive powers and could exercise any one of them by a firman has no relevance when we are considering how a pro-sovereign-the holder of the amending power-in a country governed by a Constitution should function. Such a sovereign can express ‘himself only by passing a particular kind of law; and not through sporadic acts. ‘He’ cannot pick and choose cases according to his whim and dispose them of by administering ‘cadijustice’ : nor can the amending body, as already noticed, pass an ordinary law, as Article 368 speaks of the constituent power of amending by way of addition, variation or repeal, any provision of the Constitution in accordance with the procedure laid down in that Article. An ordinary law can be passed by it only after amending the provisions of the Constitution authorizing it to do so.
343. Leaving aside these extravagant versions of rule of law there is a genuine concept of rule of law and that concept implies equality before the law or equal subjection of all classes to the ordinary law. But, if rule of law is to be a basic structure of the Constitution, one must find specific provisions in the Constitution embodying the constituent elements of the concept. I cannot conceive of rule of law as a twinkling star up above the Constitution. To be a basic structure, it must be a terrestrial concept having its habitat within the four corners of the Constitution. The provisions of the Constitution were enacted with a view to ensure the rule of law. Even if I assume that rule of law is a basic structure, it seems to me that the meaning and the constituent elements of the concept must be gathered from the enacting provisions of the Constitution. The equality aspect of the rule of law and of democratic republicanism is provided in Article 14. May be, the other articles referred to do the same duty.

Per Beg, M.H. J.,:
….It is when the country is faced with issues of this nature that the Constitutionally vital role of the judicature, as a co-ordinate and independent organ of a democratic system of Government, comes into prominence and has to be performed without fear or favour, affection or ill will as the custodian of constitutionality.
524. If “constituent power”, by it itself, is so transcendental and exceptional as to be above the provisions of the Constitution itself it should not. logically speaking, be bound even by the procedure of amendment prescribed by Article 368(2). I have not found any opinion expressed so far by any learned Judge of this Court to show that the constituent power is not bound by the need to follow the procedure laid down in Article 368(2) of the Constitution. Indeed, rather inconsistently with the theory of an absolute and unquestionable power In some undifferentiated or raw and unfettered form, operating from above and outside the Constitution, learned Counsel, sup porting the impugned 4th Clause in the 39th Amendment, concede that the constituent power is bound by the appropriate procedure laid down In Article 368 for the amendment of the Constitution. What they urge is that, subject to this procedure, which has been followed here, the constituent power cannot be questioned because it is a “sovereign power”. The logical consequence of such an argument also is that the majority view In Kesavananda Bharti’s case was erroneous. It also overlooks that judicial review of laws made by Parliament is always a review of an exercise of “sovereign power”. It may be that the object of the learned Counsel In advancing this extraordinary theory was to induce us to refer this case to a much larger bench so that the majority view in Kesavananda Bharti’s case (supra) may. If necessary, be overruled. I, however, doubt whether putting forward such extreme and untenable propositions is the best method of securing such a result.
525. I think that the possibly theoretical question indicated above, whatever may be the object of raising it, does deserve to be seriously considered and answered by us because it discloses a basic misconception. Therefore. I propose to consider it at a length which seems to me to be justified by our need to clarify our thinking on a basic or “key” concept without a final commitment to a particular view on it. Clearer thinking, by examining a basic theoretical question from every conceivable angle, leads, I believe, to that openmindedness which is needed by lawyers no less than by any other class today so that we may, contrary to our reputation, be responsive to the Inevitable challenges of change. Justice Holmes once said : “Theory is the most important part of the dogma of law, as the architect is the most important man who takes part in the building of a house “.(Holmes, Collected Papers (1921) 200).
543. Judges must, no doubt, be impartial and independent. They cannot, in a period of intensified socio-economic conflicts, either become tools of any vested interests, or function, from the bench, as zealous reformers propagating particular course. Nevertheless, they cannot be expected to have no notions whatsoever of their own, or to have completely blank minds on important questions indicated above which, though related to law, really fall outside the realm of law. They cannot dwell in ivory towers or confine their processes of thinking in some hermetically sealed chambers of purely legal logic artificially out off from the needs of life around to which law must respond. Their differing individual philosophies, outlooks, and attitudes on vital questions, resulting from differences in temperament, education, tradition, training, interests and experiences in life, will often determine their honest choices between two or more reasonably possible interpretations of such words as “amendment” or “constituent power” in the Constitution. But, on certain clear matters of principle, underlying the Constitution, no reasonable person could entertain two views as to what was or could be really intended by the Constitution makers. One of these matters, clear beyond the region of all doubt, seems to me to be that the judicial and law making functions, however broadly conceived, could not possibly have been meant to be interchangeable. They are not incapable of distinction and differentiation, in any Constitutionally prescribed sphere of operation of power including that of “constituent power”. Each has its own advantages and disadvantages and its own natural modus operandi.
559. Of course, inasmuch as the power of altering every feature of the Constitution remains elsewhere politically, the Constitution is neither the ultimate “political” sovereign nor a legally unalterable and absolute sovereign. All Constitutional and “legal” sovereigns are necessarily restrained and limited sovereigns. I thought and still think that such a working theory should be acceptable to lawyers, particularly as the dignitaries of State, including Judges of superior Courts, and all the legislators, who have to take oaths prescribed by the Third Schedule of our Constitution, swear “allegiance” to the Constitution as though the documents itself is a personal Ruler. This accords with our own ancient notions of the law as “The King of Kings” and the majesty of all that it stands for : The Rightfulness of the Ends as well as of the Means.
572. The principle of the supremacy of the Constitution was then declared by the majority of the learned Judges of this Court in Kesvananda’s case to be a part of the basic structure of the Constitution. The minority opinion, while not specifically dissenting from this view, was that even what was considered by the majority to be a part of “basic structure” was alterable under Article 368. But, no Judge of this Court has so far held that, without even attempting to change what may be the basic structure of Constitution itself, by appropriate amendments, judicial power could be exercised by Parliament under Article 368 on the assumption that it was already there.
577. The “constituent power” is still bound by the exclusively prescribed procedure to “amend by way of addition, variation, or repeal” any provision of the Constitution. It is entirely a law making procedure elaborately set out in Clause (2). In fact, Article 368 contains so much of the fundamental law making or legislative procedure that five judges of this Court, led by Subba Rao, C.J. opined in Golaknath’s case , that it was confined to procedure and did not contain at all the substantive power to amend. Clause (1) of Article 368, introduced by the 24th amendment, was, apparently, meant to remove this objection and to do no more. It could not be intended to pour some new amalgam of executive and judicial or quasi-judicial substantive powers into it also by some implication so its to do away with the very need for such an elaborate and carefully drawn up Constitution such as ours. The absence of any quasi-judicial procedure, from the comprehensively framed procedural provisions of Article 368, seems extremely significant. It indicates that it was the clear intention of Constitution-makers that no judicial or quasi-judicial function could be performed by Parliament whilst operating in the special Constituent field of law making. An omission to provide any quasi-judicial procedure in Article 368, which, apparently, furnishes a self-contained code, means that no such power was meant to be included here at all. Proper exercise of judicial power is inseparable from appropriate procedure.
584. It is true that, in the exercise of the law making constituent power, brought in by Section 8 of the Indian Independence Act, the legislatures could be armed with judicial powers as well if appropriate laws were made to that effect. But, as no law, either Constitutional or ordinary was passed, preceding 39th amendment, to repeal the Act of 1951 and then to vest a judicial power in Parliament, so as to enable it to take over and decide election disputes itself directly, I do not see how Clause (4) of Article 329A, if it contained certain provisions on the assumption that such a judicial power was already there in Parliament, could be valid as a piece of mere law making. However, counsel supporting the 39th Amendment had submitted that Article 329A(4) evidenced and constituted an exercise of some “unbroken” or a combined legislative and judicial power-proposition for which no precedent of any such consolidated action of a constituent body was cited from any part of the world. The Firmans of former Indian ruling princes were hardly suitable or applicable precedents.
595. Whatever view one may take of any other powers of Parliament, by reason of Article 105(3) of the Constitution, I am unable to see how exercise of the jurisdiction to determine an election dispute, which was in accordance with Article 329(b), already vested in the High Court by the Act of 1951 for all elections to House of the People, could not only be taken away by a Constitutional amendment, purporting to repeal retrospectively the provisions of the Act of 1951, a piece of ordinary legislation, in their application to particular class of cases, but at the same time, making a declaration of the rights of the parties to a judgment, without first performing a judicial function also which was not included in the “constituent” or any other law making power.
622. If the constituent bodies, taken separately or together, could be legally sovereign, in the same way as the British Parliament is, the Constitutional validity of no amendment could be called in question before us. But, as it is well established that it is the Constitution and not the constituent power which is supreme here, in the sense that the Constitutionality of the Constitution cannot be called in question before us, but the exercise of the constituent power can be we have to judge the validity of exercise of constituent power by testing it on the anvil of Constitutional provisions. According to the majority view in Kesavananda’s case (supra), we can find the test primarily in the Preamble to our Constitution.

Per Chandrachud Y.V. J,:
679. Article 329-A(4) makes the existing election laws retrospectively inapplicable, in a very substantial measure, to the Parliamentary elections of the Prime Minister and the Speaker. The inapplicability of such laws creates a legal vacuum because the repeal, so to say. of existing laws is only a step-in-aid to free the election from the restraints and obligations of all election laws, indeed of all laws. The plain intendment and meaning of Clause (4) is that the election of the : two personages will be beyond the reach of any law, past or present. What follows is a neat logical corollary. The election of the Prime Minister could not be declared void as there was no law to apply to that election; the judgment of the Allahabad High Court declaring the election void is itself void; and, the election continues to be valid as it was before the High Court pronounced its judgment.
680. These provisions are an out-right negation of the right of equality conferred by Article 14. a right which more than any other is a basic postulate of our Constitution. It is true that the right, though expressed in an absolute form is hedged in by a judge-made restriction that it is open to the Legislature to make a reasonable classification so that the same law will not apply to all persons alike or different laws may govern the rights and obligations of different persons falling within distinct classes. The boast of Law that it is no respecter of persons is the despair of drawers of waters and hewers of wood who clamour for a differential treatment. The judge takes that boast to mean that in an egalitarian society no person can be above the law and that justice must be administer ed with an even hand to those who are situated equally. In other words, all who are equal are equal in the eye of Law and it will not accord a favoured treat ment to persons within the same class. Laws, as Plato said, would operate “like an obstinate and ignorant tyrant if they imposed inflexible rules without allowing for changed circumstances or exceptional cases.” See “The Sense of Injustice” by Edmond Cahn (1964). p. 461 in which the reference is made to Plato’s ‘Politicus’. p. 294.
681. This Court, at least since the days of Anwar Ali Sarkar’s case , has consistently taken the view that the classification must be founded on an intelligible differentia which distinguishes those who are grouped together from those who are left out and that the differentia must have a rational relation to the object sought to be achieved by the particular law. The first test may be assumed to be satisfied since there is no gainsaying that in our system of Government, the Prime Minister occupies a unique position. But what is the nexus of that uniqueness with the law which provides that the election of the Prime Minister and the Speaker to the Parliament will be above all laws, that the election will be governed by no norms or standards applicable to all others who contest that election and that a election declared to be void by a High Court judgment shall be deemed to be valid, the judgment and its findings being themselves required to be deemed to be void ? Such is not the doctrine of classification and no facet of that doctrine can support the favoured treatment accorded by the 39th Amendment to two high personages. It is the common man’s sense of justice which sustains democracies and there is a fear that the 39th Amendment, by its impugned part, may outrage that sense of justice. Different rules may apply to different conditions and classes of men and even a single individual may, by his uniqueness, form a class by himself. But in the absence of a differentia reasonably related to the object of the law, justice must be administered with an even hand to all.
691. I find it contrary to the basic tenets of our Constitution to hold that the Amending Body is an amalgam of all powers-legislative, executive and judicial. “Whatever pleases the emperor has the force of law” is not an article of democratic faith. The basis of our Constitution is a well-planned legal order, the presuppositions of which are accepted by the people as determining the methods by which the functions of the government will be discharged and the power of the State shall be used.
697. In the result. I hold that Clauses (4) and (5) of Article 329-A are unconstitutional and therefore void.

[Source: Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, 1975 Supp SCC 1, 1976 2 SCR 347.]