BASIC STRUCTURE Baxi

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(1974) 1 SCC J-45
The Constitutional Quicksands of Kesavananda Bharati and the Twenty-Fifth

Amendment
THE CONSTITUTIONAL QUICKSANDS OF KESAVANANDA BHARATI AND THE TWENTY-FIFTH

AMENDMENT
by
Upendra Baxi *
— Kesavananda Bharati case (1973) — The Indian constitution of the future —
Essay limited to analysis of what the court “decided” with respect to the twenty-fifth
amendment — Twenty-fifth amendment purports, on its face, to deprive the judiciary
of any say in the matter of compensation for deprivation of property — Twenty-fifth
amendment is based on the myth — Supreme Court of India has been a protagonist of
the right to property and an antagonist of every major attempt at
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an egalitarian social order — Myth sustained by the invocation of the Court's decisions
from Bela Banerjee to Bank Nationalization — Some justices in Kesavananda fallen
prey to the myth — Myth led to the extravaganza of the State claiming unlimited
power to amend the constitution, especially the fundamental rights — Nurturing of a
new myth by some opinions in Kesavananda — Directive principles embody values of
“Social Justice” which override the fundamental rights — Examples of some
fundamental rights reflecting social justice and some directive principles not reflecting
social justice — Substitution of the word “compensation” by “amount” by the 25th
amendment — Art. 19(1)(g) made inapplicable to Art. 31(2) by the amendment —
Insertion of Art. 31-C by the second part of the amendment — Art. 31-C explained —
Interpretation of Art. 31-C in Kesavananda — Unforgivably naive for anyone to look for,
or claim to have discovered, the ratio decidendi of the case — Less so with regard to
the Twenty-Fifty amendment — Views of the judges as to the fundamental right
character of Art. 31(2) — Net result on this issue stated — Construction of Art. 31(2)
examined — Reasons offered by the six judges who impose some limitation on the
amending power identified — Amount fixed by statute or arrived at in the light of the
principles stipulated therein, must have a “reasonable relationship” to the property
under acquisition — Reasons given — Views of various judges in Kesavananda in this
regard discussed — Conclusion of Prof. P.K. Tripathi in this connection and the reason
for the conclusion — Disagreement expressed with the conclusion of Prof. P.K. Tripathi
— Doctrine of Trust and confidence — Hypothesis of “Complete insulation” of the
validity and construction of Art. 31(2) — “Construction” of Art. 31(2) “emerges as res
integra to be expounded by the Supreme Court when the occasion arises” according to
Prof. Tripathi — Whether and to what extent, judicial review of acquisition legislation is
permissible is in a sense for the future court to decide — Question not wholly open —
New Art. 31(2) unanimously declared valid in Kesavananda — Crucial question
attendant upon the declaration of the validity of the Article — What degree of relief
from judicial scrutiny does this validation assure? — Seven points given in this regard
— Reasoning of the court evaluated — Interpretation placed by six judges (Sikri, C.J.
Shelat, Grover, Hegde, Mukherjea and Jaganmohan Reddy, JJ.) on Art. 31(2) in
persuasive — Argument of Mr Seervai quoted — Interpretation of Art. 31(2) by the six
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justices not at all convincingly refuted by any of the four justices (Ray, Mathew,
Dwivedi and Beg, JJ.) — Main theme of the four opinions is “social justice” — Art. 31
(2) nowhere envisages fixing of the amount on consideration of social justice — Only
Art. 31-C does so by its reference to Art. 39(b) and (c) — Art. 31(2) seeks to create an
immunity from the exercise of judicial power — Submission made — To concede power
on the assumption, hope or faith that Legislatures will always act wisely and fairly is
no better than to deny this power on the ground that it may possibly be abused —
Market-value recompense standard formally renounced by all the 13 judges —
Considerable difficulty in finding out what was decided on Art. 31-C — Two major
parts of Art. 31-C — Art. 31-C treated as one unit in pronouncing upon its validity by a
majority of the justices in Kesavananda — Summary signed by the nine judges — First
part of Art. 31-C declared valid and second part invalid — Summary not ratio
according to Seervai — Approaches of Mr Seervai to find out the ratio regarding the
validity of Art. 31-C — Summary of conclusions in Kesavananda examined — Judicial
review and Art. 31-C — Analysis made referring to the view of each judge
I
For a long time to come, the Indian Judiciary, constitutional scholarship and above
all the Indian polity are likely to be consumed by the magnificent obsessions created
by the eleven opinions of the Supreme Court in the historic Kesavananda Bharati case.
The many varied and profound questions it raises—the place of judicial review in a
democratic society being the principal among them—will have to be answered with the
chill of reason rather than with the passion of a moment.
Kesavananda Bharati generates many paradoxes. Although it is in the ultimate
analysis a judicial decision, it is not just a reported case on some Articles of the Indian
Constitution. Indeed, I believe that it is, in some sense, the Indian Constitution of the
future.
Although this is so, paradoxically, the Case is likely to create an illiterate Bar in the
country. A decision which runs into over seven hundred closely printed pages is
unlikely to be read by the majority of the Bar; and if read only once is unlikely to be
fully understood.1 But a legal profession which misses out on the liberal and legal
reading of this decision is thus likely to commit a mayhem upon itself, and thereby
upon the future development of the constitutional jurisprudence in this country. As
always, the illiteracy of the literate is more pernicious for development than that of the
illiterate.
The role of the academic lawyers in creating an atmosphere of a fuller appreciation
of Kesavananda is indeed a very demanding one. They have first of all to identify the
complexities of Kesavananda before they can critically appraise it. Otherwise, the same
stereotypes as surrounded Golak Nath, despite some good (and perhaps unread by
most) academic analyses, are bound to masquerade as a real understanding of
Kesavananda. And nothing is more dangerous for social action than a grounding
merely in stereotypes.
In this paper, I essay a limited analysis of what the Court “decided” with respect to
the Twenty-Fifth Amendment. Even this limited exercise is as delicate and difficult as
that directed to the unraveling of the significance of the smile of Mona Lisa.
II
The well-known Twenty-Fifth Amendment purports, on its face, to deprive the
Judiciary of any say in the matter of compensation for deprivation of property. It is
based on the myth that the Supreme Court of India has been a protagonist of the right
to property and an antagonist of every major attempt at an egalitarian social order
through its requirement of the market value compensation for acquisition of property.
The myth is sustained by the ritualistic invocation of the Court's decisions from Bela
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Banerjee to Bank Nationalisation. The myth has been carefully nurtured—intentionally
or otherwise—by the targets, consumers, and students of the Court. So successful has
been the mythification process that even the Judiciary in the country, including some
justices in Kesavananda, have (with respect) fallen easy prey to it.
Myths do serve some constructive functions in society but it is doubtful whether this
particular myth has served us well. The myth that has, alas! become the legal tender
of the country (especially legislative, judicial and academic), accentuates some
aspects which are true but magnifies them to proportions which are colossally untrue.
I have stressed the need to absolve ourselves of this untruth as far back as 1967 and
set out grounds on which we can, and must, correct our impressions.2 A major
“biopsy” of a social mal-perception of this sinister a magnitude cannot be attempted in
this paper. Suffice it to point out that it was this myth that led to the extravaganza of
the State claiming unlimited power to amend the Constitution, especially the
fundamental rights.
The untenable premise of the contention is that the right to property coupled with
judicial review of legislation affecting it was somehow an obstacle to the very
fulfilment of the Directive Principles of State Policy. Forgotten was the fact—by some
Judges in Kesavananda and by most policy-makers in India— that Parliament has
indeed wide powers of amending the Constitution from 1950 until 1967. Sociological
data to show how this amending power helped, or the Golak Nath ruling hampered,
socio-economic reconstruction of the country in that period needs to be examined.3 As
it is, Kesavananda has given rise merely to a new debate over the scope of amending
power, and some ungracious (even if howsoever justified on other grounds) attempts
taming the wielders of judicial review.
Some opinions in Kesavananda (specially those which sustain the second half of
Article 31-C) nurture a new myth, which uninformed citizens and interested politicians
have attempted to propagate. The new myth is that the Directive Principles embody
values of “social justice” which override the Fundamental Rights. From one end of the
pendulum which rendered the Directive Principles juridically inferior to Fundamental
Rights, we now seem to swing to the other end which makes the Rights juridically
inferior to the Directive Principles.
Discerning jurists and Judges have always maintained that this simple-minded
antithesis between the Rights and the Principles distorts the manifest structuring of
the values of the constitutionally proclaimed social order. Are
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not the judicially enforceable rights of the minorities a part of the constitutional
conceptions of social justice? Is not the abolition of untouchability and of forced
labour, as a matter of fundamental right, an aspect of social justice? Each and every
fundamental right is an embodiment of the values summed up by the label “social
justice”. The same, however, cannot be said of each and every directive. Thus, one
would have some difficulty in relating the directive principles concerning cow-
slaughter (Article 47), protection of national monuments (Article 49), and international
relations (Article 51) to any conception of social justice.3a
The truth is that all the Fundamental Rights together with the majority of the
Directive Principles elucidate the constitutional conception of social justice for India;
and this conception, like all conceptions of social justice, embodies values which
cannot be fulfilled concurrently in an economy of scarcity. Choices giving priority to
one or the other value from amongst all the values of equal moral weight have to be
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made. When this is grasped, it should be impossible to honestly say in the abstract,
for example, that preferring the standard of just compensation is always contrary to
“social justice” or that confiscation is always in consonance with “social justice”.3b The
choice has to be based upon what St. Thomas Aquinas called “prudential reasoning”
consisting, roughly, in the drawing of concrete precepts through “intuition … promted
by synderesis, sympthetic understanding … supported on rational grounds.”3c
To say, then that the Directive Principles embody social justice values which can
override Fundamental Rights is at best an exercise in such prudential reasoning and at
worst an abdication of moral responsibility in constitutional decision-making.
Kesavananda opinions, with respect, reflect both these strains. Insofar as they
manifest the worst strain, the new myth receives judicial benediction which may well
result in the entire Constitution being a “plaything” both of the Parliamentary and
judicial majorities.
Kesavananda has also produced (or rather revived) the institution of judicial curse
which Chandrachud, J., utters towards the end of his opinion. He says:
“But, if despite the large powers now conceded to the Parliament, the social
objectives are going to be a dustbin of sentiments, then woe betide those in whom
the country has placed such massive faith.”4
But mere curses, even by the highest in the land, cannot kill myths. As Voltaire
said, you can kill a flock of sheep with curses only if you add a little bit of arsenic as
well.
I believe (with respect) that a wise exercise of judicial review is a safer way of
securing a better India than abdicating judicial review wholly either with benediction
or curses. I further maintain the Kesavananda has not surrendered judicial review over
the exercise of constituent power. The Supreme Court of India simply cannot
surrender it because under the Constitution the Court
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is also endowed with constituent power like the Parliament. But this introductory
theme can only be further pursued in another article.5
The Twenty-Fifth Amendment, in its first part, substitutes the word “compensation”
by “amount” so that the property of a person can be compulsorily acquired or
requisitioned for a public purpose by a law which has to “fix” an “amount” or to lay
down principles in accordance with which the amount is to be determined. Such law is
not to be questioned on the ground that the amount is not adequate or that the whole
or the part of the amount is payable in kind. Article 19(1)(f) is rendered inapplicable
to Article 31(2) by this Amendment.
The second part of the Amendment inserted Article 31-C. The first part of Article 31
-C in effect says that no law which gives effect to Article 39(b) and (c) “shall be
deemed void” on the ground of violation or abrogation of the rights conferred by
Articles 14, 19 and 31. The second part of Article 31-C debars courts from examining
whether a law thus made gives effect to the policies of Article 39(b) and (c) when it is
accompanied by a declaration stating its intention to effectuate these policies. The
proviso requires presidential assent to State legislations under the Article.
Kesavananda concedes that Parliament has some power to amend the Constitution
and that such power is constituent, not legislative, in nature. On the scope of the
constituent amending power thus recognised there is no clarity at all. It is of course
possible to arrive, mechanically, at the “majority” and “minority” of Kesavananda and
to say that seven Judges (Sikri, C.J., Shelat, Grover, Hegde, Mukherjea, Jaganmohan
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Reddy, and Khanna, JJ.) assert certain limitations to the constituent amending power
whereas six other Judges (Ray, Palekar, Mathew, Beg, Dwivedi and Chandrachud, JJ.)
recognise no limitations to this power.
One wishes that the matter was so simple; unfortunately it is not. The examination
of the Court's determination, if any, of the scope of the amending power must be left
to another essay. We will take account of the holdings on the validity of Twenty-Fourth
Amendment only insofar as they clearly bear upon the question of the validity of the
Twenty-Fifth Amendment.
Even as regards the latter, what the Court decided remains uncertain. A very
cursory perusal reveals the following picture:
(1) Article 31(2), 31(2)(b) are held valid unanimously but six justices held them
valid “as interpreted”. (Sikri, C.J., Shelat, Grover, Hegde, Mukherjea and
Jaganmohan Reddy, JJ.; hereafter referred to as Sikri et al).
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(2) Article 31-C first half is declared valid by seven justices (Ray, Palekar,
Khanna, Mathew, Beg, Dwivedi and Chandrachud, JJ.); invalid by five (Sikri, C.J.,
Shelat, Grover, Hegde and Mukherjea, JJ.); and valid upon severance by
Jaganmohan Reddy, J.
(3) Article 31-C second half is held invalid by seven justices (Sikri, C.J., Shelat,
Grover, Hegde, Mukherjea, Jaganmohan Reddy, and Khanna, JJ.); wholly valid by
four justices (Ray, Palekar, Beg and Dwivedi, JJ.); and valid as interpreted by two
justices (Mathew and Chandrachud, JJ.).
One can say that Article 31(2) and 2(b) are valid; but no clear conclusion is
available with regard to Article 31-C at all. Eleven out of thirteen justices considered
Article 31-C as a whole and the distribution of votes to the first half and second half of
Article 31-C must of necessity remain a speculative exercise (see Part V).
At any rate, it is simply unforgivably naive for anyone to look for, or claim to have
discovered, the ratio decidendi of the Case. All that one can aspire to do, and that not
too satisfactorily, is to elucidate a set of principles and to indicate the weight of
agreement or disagreement attaching to each principle. Even this exercise is
formidable, often bristling with imponderables as we shall soon find out. But it is less
so with regard to the Twenty-Fifth Amendment.
Every voyage for discovering what and why of Kesavananda with regard to the
Twenty-Fourth Amendment must begin with a prayer for the safety of seafarers and
avoidance of a shipwreck. Comparatively, we have only to pray for discoverers of the
decision on the Twenty-Fifth Amendment that they be spared of too many storms, and
encounter only a few Scylla and Charybdis. These prayers extend to jurists as well as
to Judges, more particularly to the latter, whose need (with respect) to make sense of
Kesavananda holdings may be more pressing for the discharge of their judicial duties.
III
Let us look at the unanimity sustaining Article 31(2). Six Judges (Sikri, et al.)
regard the Article as valid only as bearing interpretation they place on it. This, as will
be shown below, is also the case with the remaining seven Judges, even though they
have not preferred to characterise their conclusions of validity by reference to their
interpretations.
It is important at the outset to ascertain whether Article 31(2) is still a fundamental
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right. It appears in Part III as such; but after Kesavananda whatever appears in Part
III, if not the entire Constitution, becomes problematic!
Six Judges (Sikri, C.J., et. al.) explicitly recognise that Article 31(2) is a
fundamental right. This recognition has certain important bearings upon its
interpretation. For, while they recognise Parliament's power to amend, and even
abridge, fundamental rights they do not allow this power a scope which would destroy
these rights. The new Article 31(2) would be valid only if it did not destroy the right to
property. Such destruction would indeed occur if the Article were interpreted to mean
that the State has absolute discretion to fix any amount for the affected property,
which may not have any relevance to such property. On this view, so long as Article 31
(2) is a fundamental right, the Constitution does not authorise confiscation of private
property, that is expropriation without some reasonable recompense. The six Judges
acknowledge that the amount may be less than the market value and that
considerations of social justice may help fix or determine the amount. Nevertheless,
the right
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under Article 31(2) entails a corresponding duty on the State to act reasonably in the
exercise of the eminent domain power.
The six Judges do not derive the above stated conclusion inexorably from the
premise that Article 31(2) is a fundamental right. That is only one aspect of their
reasoning based upon a construction of the language of Article 31(2), to which we turn
in the next section.
As against this, the remaining seven justices are not in full agreement inter se.
Justice Dwivedi stands in majestic isolation in holding that Article 31(2) in effect,
abrogates the right to property.6 Justice Khanna seems loftily disinterested in the
question whether the Amendment abrogates right to property. This is so because he
has determined that the right does not pertain to the “basic framework” of the
Constitution. The right to property is a mere “matter of detail” not of basic framework.7
So that even if the new Article abrogated the right, it would be valid. The question
whether it in effect does so does not at all interest the learned Justice.
Of the remaining five justices, Palekar, J., recognises that Article 31(2) postulates a
“fundamental right to receive an amount” but this fundamental right means the right
to receive what the “Legislature thinks fit”.8 Justices Ray and Mathew do not speak of
Article 31(2) in terms of its being a fundamental right at all. They both conclude that
the legislative determination is beyond question in Courts.
But unlike Ray, J. (now C.J.), Palekar, J., would allow judicial review on the grounds
of fraud on the Constitution and illusoriness.9 Mathew, J., leaves the question
pointedly open.10 And Chandrachud, J., asserts even more pointedly that the Court
would have the power to question the law on the above grounds as well as, inter alia,
if the principles are “wholly irrelevant for the fixation of the amount”.11
Justice Beg's position, with great respect, remains highly anomalous. He adopts on
the whole question the reasons of Ray, Mathew and Dwivedi, JJ.12 Dwivedi, J., holds
that there is no fundamental right to property. Ray, J., is not as clear, though it is
open to argument that since Ray, J., would not allow judicial review even on the
ground of illusoriness, he too by necessary implication denies the existence of the
fundamental right. Functionally speaking this must be so, because there is no remedy
to enforce the duty on the State to pay a reasonable amount. Payment of one paisa
would be adequate to oust the judicial review on the reasoning of Justice Ray.
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However, Justice Beg also adopts the reasons and conclusions of Justice Mathew
who in effect differs from Ray and Dwivedi, JJ., by clearly leaving open illusoriness and
fraud as possible grounds of judicial review. Mathematically, therefore, one would have
to apportion half of Justice Beg's agreement to Mathew, J., and half to Ray and
Dwivedi, JJ. If this is unreasonable, Justice Beg's opinion on Article 31(2) will have to
be altogether excluded.
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If this too is unreasonable, one will have the option to choose between two equally
unreasonable courses.
The net result on this issue is as follows:

(1) Eight justices (Sikri et al., Chandrachud and Palekar, JJ.) acknowledge that
the right to receive amount is a fundamental right. That is to say, Article 31(2)
abridges but does not take away right to property.
(2) Two (or two and a half) justices rule that the right to property is abrogated
(Dwivedi and Ray, JJ., plus a portion of Beg, J.).
(3) One Justice (or one and half, if we include Beg, J., with Mathew, J.) takes a
position not easy to characterise in this respect. On the one hand, judicial review is
held completely excluded; on the other, judicial review on the grounds of
“illusoriness” and “fraud” seems to have been left open. The significance of
maintaining any degree of judicial review as to the amount payable for acquisition
is that it endows the fundamental right with a legal remedy, whatever be the scope
of this remedy.
(4) One Justice (Khanna, J.) adopts an approach in which the question whether
the right to property is a fundamental right or not becomes a narrow academic
question.
IV
Let us turn briefly to the construction of Article 31(2). At the outset, it may be
questioned whether the construction of the Article was necessary to determine its
validity. The question cannot be generally answered. Rather, it has to be answered
with reference to the determinations concerning the surviving power of the judicial
review under the Twenty-Fourth Amendment. If the scope of the amending power is
absolute, then, strictly speaking, it is unnecessary to engage in any construction of
Article 31(2) in arriving at a conclusion on its validity. All that is necessary is to find
out whether the amending power was correctly exercised. Nonetheless, all the six
Judges who adopt a wide view of the amending power give some thought, and space,
to the construction of Article 31(2).
These six Judges (Ray et. al.)13 do so perhaps by way of providing some kind of
response to the construction placed by the other six justices (Sikri et. al.) who having
found some limitation on the scope of the amending power proceed also to find those
limits to the actual exercise of that power in the shape of the Twenty-Fifth
Amendment. Only Justice Khanna is unconcerned with the construction of Article 31
(2) since for him, whatever be the limits of amending power, the right to property is
clearly abrogable.
Those Judges who, strictly, need not have discussed the construction of Article 31
(2) to determine its validity have nevertheless discussed it. Therefore, any disclaimers
in their opinions, that it is unnecessary for them to discuss the construction of Article
31(2) cannot, and should not (with respect), be taken at their face value. When
Judges say that it is unnecessary for them to discuss a matter, and then immediately
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proceed to discuss it, they are bestowing a puzzle upon jurists. The task of the jurist
is, in such situations, not to take such disclaimers seriously. To take them seriously
would be to thwart the rational development of the law, a development in which the
jurist, rather than the Judge, is usually the leading partner.
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Of course, in relatively “simple” cases, open to the tortuous discoveries of ratio

decidendi, such disclaimers may perform a useful function. They may also serve a
useful function in that they indicate that the Court or the Judge concerned is
favourably disposed to further litigation on the matter. But at least in a case like
Kesavananda, not simply amenable to the traditional ritual of discoveries of ratio
decidendi, there is no scope for ambiguities ushered in by judicial disclaimers. In any
event, the present writer holds the general position made in the preceding paragraph.
That main point can be reformulated as follows: If appellate Judges are to make law
(as they have to and do) they must adopt standards of craftsmanship at least equal to
those of legislative draftsmen. Appellate Judges are not entitled to say what they do
not mean or to mean what they do not say. For, what they say and mean has a
community-wide importance. Accordingly, they are under a duty to decide first what is
“necessary” to decide, and then decide it. The point of these prefatory observations
will become clearer as we proceed further in this part.
Let us first identify the reasons offered by the six Judges who impose some
limitation on the amending power. They acknowledge that the term “amount” is not a
legal concept as “compensation” is. But they seek to gather the meaning of the word
“amount” from the total formulation of Article 31(2). The gist of this approach is that
the amount, whether fixed by statute or arrived at in the light of the principles
stipulated therein, must have a “reasonable relationship” to the property under
acquisition. This is so
because:
(1) the two methods of recompense in Article 31(2) cannot give different results
nor can it be that while the fixation of amount in a law would be beyond judicial
scrutiny the specification of principles will remain amenable to judicial review for
relevancy;14
(2) the term “fixed” must mean that the amount is to be determined rationally
(not arbitrarily), and this entails recourse to principles;15
(3) since the amount is to be fixed by law, discussion in Legislatures will
necessarily involve identification and justification of principles upon which the Bill
fixes an amount payable, since otherwise no discussion can take place;16
(4) investment of discretion in any authority carries with it the assurance that it
will be exercised reasonably, not arbitrarily; the obligation to act on some principle
arises both from Article 31(2) and from “the nature of the legislative power” itself;17
(5) the Court will “certainly give due weight to legislative judgment” but “the
norms or principles for determining the amount will have to be disclosed to the
Court”;18
(6) the reference to “adequacy” of the amount in Article 31(2) is meaningless if
the amount fixed by the law is to be determined without any reference to
principles;19
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(7) though the amount may not be market value and be based upon
considerations of social justice, the amount must rest on principles reasonably
related to the affected property;20
(8) the adequacy of the amount is beyond judicial review.
On the other hand four out of the other six Judges (Ray, Mathew, Beg and Dwivedi,
JJ.) held that the fixation of amount or laying down of principles is in the “absolute
discretion” of Legislatures and “beyond judicial ken”.21 Their reasons for so holding
cannot be grouped together as with the earlier set of opinions but have to be briefly
restated here individually.
Justice Ray (now C.J.) apprehends that “Readjustments in the social order may not
be practicable in a smooth manner unless the Directive Principles are effectively
implemented”.22 Right to property is a road-block in this smooth and effective
implementation. Accordingly, the Constitution makes the adequacy of amount non-
justiciable; and it cannot be made justiciable in an “indirect manner” through any
ground, including illusoriness of amount or irrelevancy of principles. “Social justice will
determine the nature of individual rights” and social justice means “various concepts
which are evolved in the Directive Principles”.23
Justice Mathew, in a brilliant and profoundly reasoned opinion, argues that the
whole point of the new Article 31(2) is that “the fixation of the amount or laying down
of the principle is left to the absolute discretion” of the Legislatures. If the Legislatures
can fix “any amount on the basis of considerations of social justice”, then it can also
formulate the principle for fixing the amount on the very same consideration(s)”.24
Justice Mathew feels that the principles of social justice “will not furnish judicially
manageable standards either for testing the adequacy of the amount or the relevancy
of the principle”.25 Moreover, the word “amount” is intentionally used by Parliament to
deprive the Courts of a standard through which the adequacy or relevancy
determinations can be made.26 Mathew, J., however, leaves pointedly open the
question whether a law tantamount to fraud on the Constitution or giving an illusory
amount is permissible under Article 31(2).
Dwivedi, J., comes to the conclusion, noted earlier, that the “amount payable under
the main part of the amended Article 31(2) may be such as would ‘abrogate’ the right
to property of all and sundry”.27 He maintains that the notion of “the relevancy of
principles to compensation” is jettisoned by the new Article 31(2).28 The “legislative
choice is conclusive”.29 Justice Dwivedi likes to assume that despite his holding
the value of the property …, the nature of the property …, the circumstances in
which the property is acquired … and the object of
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acquisition … will be the guiding principles for legislative determination of the

amount.30
These “principles” will be supplemented by principles of “social justice”. It would be

“wrong to say that on my interpretation … the Legislatures will act arbitrarily in
determining the amount”.31 More so, since the amended Article does not remove the
“bar of Article 14”.32
Justice Beg adopts these reasons of his brethren.
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On the other hand, the opinions of Palekar and Chandrachud, JJ., are distinctive in
that they do no explicitly recognise the “absolute discretion” of Legislatures in the
matter of fixing amount or determining principles. Palekar, J., is unable to say “in all
conscience” that Article 31(2) “precludes” a “fair amount being fixed for payment in
the circumstances of a particular acquisition or requisition”.33 He would leave open
judicial review of Article 31(2) legislation on the grounds of illusoriness or fraud on the
Constitution. Palekar, J., does not, significantly, deny or affirm the need for the
amount being determined on principles having reasonable relationship with property
under acquisition.
Justice Chandrachud is (with respect) second to none among the six justices in
asserting the primacy of Directive Principles over fundamental rights, especially the
right to property. Yet the very first point he makes when he specifically turns to Article
31(2) is that it “still binds the Legislature to give to the owner a sum of money in cash
or otherwise”.34 He then asserts “There is … intrinsic evidence in Article 31(2) that it
does not empower the State to confiscate or expropriate (sic) property”.35 The
constituent body has not said that State shall not pay anything for the acquisition of
property, although it could have said so.36 Justice Chandrachud continues in the same
vein: “If the right to property still finds a place in the Constitution, you cannot mock
at the man and ridicule his right. You cannot tell him: ‘I will take your fortune for a
farthing.’“37 That would be giving an illusory amount, in violation of Article 31(2).
Justice Chandrachud, indeed goes further than the six justices who insist on a
reasonable relationship between the amount and the acquisitioned property. He
concedes on the one hand that the amount may not bear a reasonable relationship to
the market value of the affected property and yet it may be valid. But he maintains on
the other hand that this is different from saying that “it bears no such relationship at
all, none whatsoever”.38 In this case the amount becomes “illusory” and “may come
within the ambit of permissible challenge”.39
Justice Chandrachud then utters a disclaimer by saying “It is unnecessary to pursue
this matter further”40 because what is at issue is not an acquisition
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law but a constitutional amendment to Article 31(2). After having said this, and again
reiterating the disclaimer, Chandrachud, J., proceeds to say that though the Courts
have no power to review adequacy of the amount, they “would have the power” to
“question a law under Article 31(2)” if
“… the amount fixed thereunder is illusory; … the principles, if any are stated, for
determining the amount are wholly irrelevant for fixation of the amount; … the
power … is exercised for a collateral purpose, … the law offends constitutional
safeguards other than the one contained in Article 19(1)(f); or if the law is in the
nature of a fraud on the Constitution. I would only like to add, … that if the fixation
of an amount is shown to depend upon principles bearing on social good it may not
be possible to say that the principles are irrelevant.”41
My distinguished colleague Professor P.K. Tripathi, concludes that Chandrachud, J.,
takes the view that Article 31(2) is “valid irrespective of meaning and scope of the
words ‘amount’ and ‘principles.’ “42 Accordingly, he aligns this holding with that of
other six justices (Ray, Khanna, Mathew, Palekar, Beg and Dwivedi, JJ.) and arrives at
the conclusion that the views of the other six Judges (Sikri et. al.) have been thus
rejected by the Court by 7 : 6. Professor Tripathi assigns to the views of Chandrachud,
J., in this respect a “determining position in this nicely balanced division of six against
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six”.47
The principal reason for Professor Tripathi's conclusion is that the question of
validity of the Twenty-Fifth Amendment is “completely insulated”,44 in the opinion of
Chandrachud, J., from the construction of Article 31(2). And this, in his opinion, is
evidenced by the disclaimer filed by Chandrachud, J., which we have noted above.
I regret to have to disagree. It is true, of course, to say that Chandrachud, J.,
recognises no limitation on the amending power of the Parliament. But in the learned
justice's own opinion that view has no relevance to the construction of Article 31(2).
This is conclusively shown by the fact that, unlike Justice Dwivedi, Justice
Chandrachud insists that Article 31(2) is still a fundamental right.45 He maintains, as
noted earlier, that the constituent body could have abrogated this right but has not
done so.
To be sure, Justice Chandrachud says “It is unnecessary to pursue this matter
further” or that it “is unnecessary to discuss the matter fully”.46 But the four
paragraphs he devotes to Article 31(2) are all concerned with the construction of the
Article. Even though he considers it unnecessary to discuss the matter “further” or
“fully” (note, he nowhere says, like Justice Khanna, that it is unnecessary to discuss
the matter at all) he himself assigns the construction he places on Article 31(2) such
an importance as to wholly incorporate it in point (8) of his summary of conclusions.47
There is thus sufficient evidence that the learned justice does not himself wish his
disclaimer to be treated too literally. And my prefatory points show that even if the
learned justice was ambivalent
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(which he is not) in regard to the weight to be given to his own disclaimer, jurists will
be wise not to indulge Judges in such ambivalence.
To say with Professor Tripathi that the question of the validity of Article 31(2) was
“completely insulated” from the question of its construction may still appear true. But
the truth of such a statement must remain confined at a highly speculative level. This
is so, first, because the learned justice, as noted, did discuss extensively the meaning
of Article 31(2), unlike Khanna, J.
Second, it may have been the case that even if the new Article 31(2) in cyrstal-
clear terms took away the right to recompense altogether, Justice Chandrachud might
have held it valid, having upheld the Twenty-Fourth Amendment. Yet the new Article
offered scope for the view that the right to property is taken away thereby (witness
the construction of Dwivedi, J.). The learned Justice also could have adopted the
construction that no scope for judicial review remains under Article 31(2) (a la Justice
Ray). He could have done so even if the opinions of Ray and Dwivedi, JJ., were not
among the four opinions he had before him when he decided to write his own. He
could have adopted such a construction of the Article because the respondents
themselves had emphatically urged it.
If the question of construction of Article 31(2) was insulated completely from its
validity, why did Chandrachud, J., (who with his five brethren recognised no limits on
the amending power) adopt a construction which preserves plenty of judicial review?
The reason is, I suspect, that instead of there being any “complete insulation” there is
an organic continuity between Justice Chandrachud's thinking on the Twenty-Fourth
Amendment on the one hand and Twenty-Fifth on the other. The main policy theme
sustaining the claim for extraordinary powers claimed on behalf of the Parliament is
that: “Trust in the elected representatives is the corner-stone of a democracy. When
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that trust fails, everything else fails.”48 Justice Chandrachud concedes, in the same
vein, that “our confidence in the men of our choice cannot completely silence our fears
for the safety of our rights”49 but that of course furnishes no ground for the denial of
any, even extraordinary, power.
Having elaborated such a doctrine of trust and confidence, what else can Justice
Chandrachud do but interpret Article 31(2) as an example of how “men of our choice”
would act? Of course, the opinions of Justices Ray, Palekar, Mathew, Beg and Dwivedi
are also suffused with declarations of massive faith in the elected representatives. But
Justice Chandrachud prefers a construction of Article 31(2) as evidencing the
responsibility with which “men of our choice” behaved in amending the guarantee of
the right to property. He does not, with respect, as yet feel “fears for the safety of our
rights” because he can read limited judicial review as a matter of course in Article 31
(2) and even in Article 31-C.
Indeed, I may only incidentally stress here (leaving fuller elaboration to my paper
on the Twenty-Fourth Amendment) that proclamations of trust and faith in the elected
representatives by the six justices who recognise no limits to Article 368 power may in
themselves be made to yield an implied limitation on that power. True, these justices
assume that the amending power will not be abused; and they rule that even if it is
abused the Court will only scrutinise if the form and manner of its exercise are
correctly observed. But in so doing they all along forcefully, often poetically, elaborate
the assumption of good faith on the part of the amending body. It is, therefore, only to
be expected that
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they (and other Justices of the like views) will so construe every constitutional
amendment as to imply or impose good faith, which includes preservation of some
judicial review. It is significant that, as will be noted later, every Single Judge of this
“group” (Ray, et. al.) construes Article 31-C as leaving scope for judicial review. It is
also significant, as noted below, that only three of these six Judges exclude judicial
review under Article 31(2), on the ground of illusoriness, and only one (or one and
half) excludes it altogether.49a
In other words, the same pen which apparently grants extraordinary powers, even
of repealing the Constitution, also writes panegyrics of the collective wisdom, “innate
good sense” of the amending body. Thereby, the amending body is being in effect told
to be wise and trustworthy and conveyed an implicit message that its actions will be
always thus construed, even if it wanted to act otherwise.
To revert to Professor Tripathi's views, the hypothesis of “complete insulation” of
the validity and construction respectively of Article 31(2) in Justice Chandrachud's
opinion is only superficially plausible. Insofar as it rests on the factor of the disclaimer
by the learned Judge, it is not even so plausible.
Professor Tripathi further maintains that the “construction” of Article 31(2) also
“emerges as res integra to be expounded by the Supreme Court when the occasion
arises”.
To say that the construction of Article 31(2) is res integra is wholly correct on one
ground. And this is that Kesavananda was simply concerned with the validity of Article
31(2), not with validity of a law made subject to that Article. The question whether,
and to what extent, judicial review of acquisition legislation is permissible is in a sense
for the future Court to decide.
But the question is not wholly open. To say it was wholly open would be to say that
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Kesavananda contains no authoritative exposition of Article 31(2). And this can be said
only on the ground that it was not necessary for the Court to pronounce on this aspect.
This is not true for the six Judges (Sikri et. al.), although it may be true for all the
remaining Judges. But even they (save Khanna, J.) expressed reasoned opinion on this
matter.
On traditional approaches, such reasoned (or considered) observations, strictly
unnecessary to the decision, have the status of obiter dicta. There is authority for the
proposition that such dicta constitute a part of binding “law
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declared” by the Supreme Court, under Article 141 of the Constitution.50 Of course, the
Supreme Court is not altogether bound by the law it declares. But one might venture
to say that in absence of compelling reasons even the Court must regard itself so
bound, and that by and large the practice of the Court sustains this submission. Even
otherwise, the Constitution Bench to which the Case is remitted cannot ignore the
construction placed by the Full Bench upon Article 31(2).
But apart from all this, I believe, as stated in the opening part of this section, that
when Judges pronounce upon issues that are not directly relevant, their
pronouncements must be taken seriously despite all their disclaimers. What they thus
say, must be put into the mainstream of the authoritative legal materials. And the way
in which this has to be done must avoid simple calculation of “majority”—“minority”
votes on the construction of Article 31(2) as a whole. Rather, the numerical weightage
must be assigned issue-wise as suggested in the next following section.
V
The foregoing analysis must disclose that the significance of Kesavananda is
scarcely to be captured by a bare and bald assertion that the new Article 31(2) is
unanimously declared valid. The crucial question attendant upon the declaration of the
validity of the Article is: what degree of relief from judicial scrutiny does this validation
assure? The answer to this is not simple and must at least recognise the following
elements:
First, the Court unanimously accepts the demise of the market value conception of
recompense for acquisition or requisition of property under Article 31(2). The Court
also accepts, with varying degrees of circumspection, that the amount payable for
such action may be determined in accordance with the principles of social justice. The
legislative task is facilitated in the sense that market value recompense is no longer
the constitutional norm. It is aggravated at least insofar as specification of reasonable
non-market value or social justice standards in the determination of recompense is
incumbent upon the Legislature.
Second, as many as eight Judges explicitly acknowledge that Article 31(2) still
remains a fundamental right. As such, it continues to condition legislative
competence. The extent of such conditioning, however, remains to be determined with
reference to the points immediately made below.
Third, according to eight Judges out of thirteen (Sikri, C.J., Shelat, Grover, Hegde,
Mukherjea, Jaganmohan Reddy, Palekar and Chandrachud, JJ.) a law yielding “illusory”
amount or law tantamount to a “fraud” on the Constitution is not protected by Article
31(2). It should be noted here that two Judges—Khanna and Mathew, JJ., do not at all
advert to this question.
Fourth, according to seven Judges (Sikri, C.J., Shelat, Grover, Hegde, Mukherjea,
Jaganmohan Reddy and Chandrachud, JJ.) a law can be challenged, and held invalid,
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under Article 31(2) if the principles yielding the amount are wholly irrelevant to the
property under acquisition. This means that a law subject to Article 31(2) must be
based on certain principles which will need to be articulated and the Court can assess
their relevance if only to the point of ascertaining some degree of relevance to the
affected property.
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Fifth, six Judges categorically require that the principles upon which the amount
must of necessity be fixed should be reasonably related to the affected property. The
normative weight of this requirement, reinforced by cogent reasoning, remains
unaffected by the retirement of one of them (Sikri, C.J.), the resignation of three of
them (Shelat, Hegde and Grover, JJ.) and the lamented demise of one of them
(Mukherjea, J.). At the same time, it remains the view of only six out of thirteen
Judges.
Sixth, only three (or three and a half Judges—Ray, Khanna and Dwivedi, JJ., plus
Beg, J.) construe Article 31(2) to exclude judicial review on any ground, including
illusoriness (we leave aside fraud on the Constitution for the next point). Khanna, J.,
seems to sanction illusory amount by his reference to amount being “plainly adequate”
though this is only a passing reference in an opinion entirely unconcerned with the
construction of Article 31(2).
Seventh, only one (or one and a half) Judge (Dwivedi, J., plus Beg, J.) holds that
even a law tantamount to a “fraud on the Constitution” will be beyond judicial review.
Ray, J., makes no reference to this aspect; nor does Khanna, J. It remains problematic
whether either of the two Judges will sanction such a law on the respective ground of
“social justice” or the property right not being a part of the basic structure of the
Constitution. It should also be noted, however, that the concept of “fraud on the
Constitution” is somewhat indeterminate but insofar as it refers to colourable
legislation, and involves legislative competence, the approach of Ray and Khanna, JJ.,
is not likely to be one which regards Article 31(2) as setting any substantial limitation
on legislative competence.
VI
Having identified the manner of the validity of the new Article 31(2), it is necessary
to evaluate the reasoning of the Court before moving to the question of the validity of
Article 31-C. I will make a few points very briefly here, leaving elaboration to a future,
more detailed, examination of the Case.
From the standpoint of judicial craftsmanship, the interpretation placed by six
Judges (Sikri, C.J., Shelat, Grover, Hegde, Mukherjea and Jaganmohan Reddy, JJ.) on
Article 31(2) is indeed persuasive. They have painstakingly examined the formulation
of Article 31(2) and interpreted the word “amount” in its context. They have shown
that fixation of amount ineluctably entails recourse to principles, since it is an
alternative method of fixing amount as a result of principles laid down in the law. They
have also pointed to the fact that if fixation of amount was at all to be legislatively
discussed, some elucidation of principles will be essential.
So cogent was this latter point that the learned Advocate-General of Maharashtra
was reduced to making a completely indefensible argument in response. Mr Seervai
sought to negate argument by saying that
“Our democracy works on the basis of party system. The ruling party has the
majority of the members of Legislature behind it. Therefore, the members of the
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opposition party need not know the basis of fixation of the value of property. Even
the members of the ruling party need not be told about the basis on which the
value is to be fixed. The option before them is to accept the fixation of the amount
fixed by the cabinet … or to reject the proposal and face the consequences.50a
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Hegde and Mukherjea, JJ., were stirred by such an argument to say that this is a
“negation of parliamentary democracy … based on the principles of debate and
discussion”.51 So indeed it would be.
Surely, there is much to be said for this judicial rebuff. If Mr Seervai was describing
the working of our democratic institutions correctly, there is even greater policy
justification for the Court to insist that the amount to be fixed in lieu of principles in
the acquisition statute must be based on some rational principles.
Be that as it may, the interpretation of Article 31(2) by the six justices is not at all
convincingly refuted (with great respect) by any of the four justices (Ray, Mathew,
Dwivedi and Beg, JJ.). No answer is to be found in these four opinions to the
arguments that the word “fix” imparts certain standards, that the fixation of amount
without the enunciation of principles is inconceivable as no legislative discussion would
be possible, or that fixing the amount being on alternative method to laying down
principles should not be allowed to yield different results. Surely, these were cogent
reasons appealing to brother justices which ought to have been refuted by justices
who adopted a diametrically opposite view.
Moreover, the reasons given in these opinions do not themselves invincibly support
the argument of “absolute discretion” for the Legislatures. The main theme of the four
opinions is “social justice”. The emotive potential of the term “social justice” has been
so great as to frustrate (with respect) coolheaded appraisal of the meaning of a
constitutional formula. Thus, Ray, J. (now C.J.) says “The fulfilment of Directive
Principles is in a sense more fundamental than the mere right to property”52 or that
“Social Justice will determine the nature of the individual rights and also the
restriction on such right”.53 Justice Dwivedi who urges us to realise that “reason is a
fickle guide in the quest for socio-political values”54 has (with respect) paradoxically no
difficulty in holding out an assurance that Legislatures in implementing “principles” of
“social justice” would not act “whimsically” or “arbitrarily”.55 Even Justice Mathew,
whose superb judgment ensures him the fame of being the Cardozo of India, finds
himself able to say that while principles of social justice “will not furnish judicially
manageable standards either for testing the adequacy of the amount or the relevancy
of the principles”56 the Legislatures in their “absolute discretion” will somehow be able
to “formulate” the principles of social justice on which they will fix the amount for
acquisition.
The simple point is that Article 31(2) in terms nowhere envisages fixing of the
amount on considerations of social justice. Only Article 31-C does so by its reference
to Article 39(b) and (c); but that Article itself presupposes that a law of acquisition
otherwise valid under Article 31, may need the protection of a legislative declaration
from an attack on the ground of unconstitutionality in the Courts. One way in which to
comprehend the reference to Article 31
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in Article 31-C is that even if, in certain circumstances the amount was illusory, a
legislative declaration can protect it. Another way to understand this reference,
although hitherto perhaps unthought of, is that even if a case of proper (substantial)
payment could be made out on the ground of social justice under Article 31(2), the
legislative declaration signifies that mere compelling grounds of social justice in Article
39(b) and (c) must take the whole matter outside judicial review. Whichever way we
look at it, Article 31-C was introduced on the assumption that an Article 31(2)
invalidation of an acquisition law was still a probability, which ought to be guarded
against in certain cases on the grounds of “social justice”. On the other hand, Article
31(2) is no more than an assertion of legislative power over judicial power; its text
does not convey to the property-holder that his property will be taken away with
inadequate compensation on recognizably specific grounds of social justice.
Thus, all that Article 31(2) by itself seeks to accomplish is to avoid the liability of an
acquisition law being judicially invalidated; in other words, it seeks to create an
immunity from the exercise of judicial power. Justice Dwivedi who acquiesces wholly in
this demand is right (with respect) to reach the conclusion that this fundamental right
is thereby abrogated. Justice Ray with his (with respect) extraordinary appreciation of
social justice as involving, necessarily, subordination of fundamental rights more or
less implicitly agrees with Justice Dwivedi. So probably does Justice Mathew, though
(with respect) with much refinement and discernment, and after great moral
agonizing.
But each of these Judges—including here Palekar and Chandrachud, JJ.—assumes
that Legislatures will act on grounds of social justice, and not act arbitrarily. To
concede power on the assumption, hope or faith that Legislatures will always act
wisely and fairly is (with respect) no better than to deny this power on the ground that
it may possibly be abused. The latter, it has been reiterated ad nauseum, is no ground
for denying power. When indeed will it be realised that, by the same token, the
possibility of the benign use of the power is likewise no ground for conferring it?
Why, moreover, is it automatically assumed that social justice will in no situation
require substantial, market-value, or even over-market value recompense? Why should
it be assumed as a matter of course that fundamental rights embody values which are
not also a part of values comprised by “social justice”? Only Justice Mathew, in his
classic opinion, attempts to provide a jurisprudential perspective. He emphasises that
even though fundamental rights are “liable to be limited for the common good of the
society”57 the “responsibility of Parliament in taking away or abridging a fundamental
right is an awesome one”.58
But, indeed, if this responsibility is truly an “awesome one” (as it is), what
justification is there for the Court even to abdicate the limited judicial review that
Article 31(2) in terms offers on one reasonable interpretation of it? This question
acquires a sharper edge when we recall that the market-value recompense standard is
formally renounced by all the thirteen Judges.
VII
Turning to Article 31-C, one has considerable difficulty in finding out exactly what
was decided. Article 31-C, as noted earlier, falls into two major parts. Under the first
half of the Article, no law “giving effect” to the principles embodied in Article 39(b)
and (c) is to be “deemed void” on the ground that
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it is “inconsistent with, or takes away or abridges any … rights conferred by Articles

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14, 19 or 31”. The second half of Article 31-C states that “no law containing a
declaration that it is for giving effect to such policy shall be called into question on the
ground that it does not give effect to such policy”.
Analytically, these two components of Article 31-C should be viewed discretely. But
a majority of Justices in Kesavananda treat Article 31-C as one unit in pronouncing
upon its validity. Thus, five justices (Sikri, C.J., Shelat, Grover, Hegde and Mukherjea,
JJ.), viewing Article 31-C as one single provision, declare it wholly invalid for the
reasons that it permits abrogation of some fundamental rights, that it entails
delegation of amending power to State Legislatures, and that the ambit of Article 39
(b) and (c) is so wide that even a limited judicial review of the nexus between
legislative declaration and the policies of the Directive Principles does not redeem
Article 31-C of its major constitutional vice. On the other hand, the other group of six
Judges (Ray, et. al.) considering Article 31-C as a whole held it valid, rejecting each
one of the above-stated arguments.
We reach a score of eleven Judges ruling upon the validity of Article 31-C as a
whole. Two other Judges proceed differently; they rule separately each upon the first
half and second half of Article 31-C. Justice Jaganmohan Reddy, accordingly, upholds
the first part after serving the reference to Article 14; and altogether denies validity to
the second half. Justice Khanna upholds all of Article 31-C in the first half; he too
strikes down the second half.
How is one to comprehend what the Court decided? The Order of the Court is
altogether silent on all substantive points; a “summary” signed by nine Judges
(excluding Ray, Mathew, Dwivedi and Beg, JJ.) declares categorically that the “first
part” of Article 31-C is valid and the second part in invalid. The summary purports to
state “the view of the majority in these writ petitions59 ” Weighty objections have been
made against the legal position of this “summary”. Mr Seervai has pointed out that the
summary could not either purport to lay down the ratio of the case or be regarded as
an obiter. It cannot be regarded as constituting the ratio because four Judges did not
sign it testifying to a difference of opinion in the Court as to what was precisely held.60
Nor, he argues, can the “summary” be treated as obiter because obiter dicta ought to
comprise “considered observations” made by a Judge, even though strictly
unnecessary to the decision.
If the “summary of conclusions” is to be disregarded for all purposes, how is one to
arrive at a determination of what the Court decided on Article 31-C? It is instructive to
follow Mr Seervai on this point. He tries to discover the ratio on this aspect by
following two definitions of ratio: one, that the conclusions constitute the ratio of the
case; another, that underlying reasons constitute the ratio.
On both these approaches, Mr Seervai finds that since eleven Judges considered
Article 31-C as a whole the Article is held valid by 6:5 majority. Severability was not
argued at the Bar, Mr Seervai says, and five Judges (Sikri, C.J., Shelat, Grover and
Mukherjea, JJ.) were against severance by necessary implication and so were the
remaining six Judges. Hence, there is “no majority for severability” or “such majority
as there is, sub silentio is against it”.61 Because of this, he further maintains, one
cannot conclude that the first half is valid 7:6, and the second half is invalid 7:6. This
would involve
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distributing the votes of two Judges who adopted severability technique, to which
eleven Judges were, by necessary implication, opposed. Besides, to thus apportion
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votes would involve speculation of an impermissible nature of what eleven Judges
would have held if they had taken recourse to severance.62
Mr Seervai concedes that “the theory of precedent laid down by the Supreme Court
is in an unsatisfactory state”63 and urges that the Court rectify it. Anyone familiar with
the theoretical literature on the ratio decidendi will have considerable admiration for
his attempt to trace a ratio on Article 31-C; and considerable sympathy with his
difficulties.
But to the cognoscenti Mr Seervai's appeal to the Court to evolve a theory of
precedent which will somehow work in a case like Kesavananda (or indeed in more
routine cases) will sound naive. Such theories are simply not analytically possible; and
it is a mistake to think (with respect) that where eminent jurists fail to systematize
the “holding” of a case, eminent Judges will somehow succeed.
The fact remains that even as we attend to the eleven Judges who tackled Article
31-C as a whole, we cannot ignore the two Judges who severed it. So also the fact
cannot simply be ignored that nine Judges—including Palekar and Chandrachud, JJ.—
signed the “summary”, though four did not. We are thus not completely entitled to
ignore the opinions of Jaganmohan Reddy and Khanna, JJ. who sever Article 31-C; nor
are we to be permitted to ignore that four Judges did not sign the “summary”.
The function of the summary is, although each Judge has appended a summary to
his own opinion, to attempt to provide a collective summation. The attempt failed
because four Judges refused to sign for reasons we can infer but cannot really know.
But the attempt did not wholly fail.
I believe that the “summary” needs to be utilized not completely jettisoned, by
jurists and Judges as an aspect of Kesavananda. But it has to be utilized separately on
each point. Thus the summary is obviously asserting, the decided points when it says
Golak Nath case is “overruled”; that the Twenty-Fourth Amendment is valid; that the
Twenty-Fifth Amendment is valid; that the Twenty-Ninth Amendment is valid; that
the first half of Article 31-C is valid; that the Constitution Bench, to which the cases
are remitted, should dispose it according to the law. The fact that four Judges have not
signed the summary does not affect any single one of these conclusions, as being the
majority conclusions. This leaves us with points (3) and (5) of the “summary” which
say that “Article 368 does not enable Parliament to alter the basic structure of the
Constitution” and that the second part of Article 31-C is invalid. It is possible to infer
that the four Judges who did not sign the summary did not agree with the assertion
that the “view of the majority in these writ petitions” is the same as stated in
abovementioned two points. These Judges (with respect) ought to have signed the
summary stating in a caveat that they did not agree with these two points as being
points decided by the majority of the Court. That manner of proceeding would have
established beyond doubt the status of the “summary”.
Be that as it may, the summary shows that nine Judges agree that Article 31-C,
second half, is held involved by the majority of the Court. It is quite consistent with
our respect for four non-signatory Judges to accord some respect to the considered
statement of their nine brethren.
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On what basis did the nine Judges agree that the second half of Article 31-C was
held invalid by a majority of Judges? The answer must be obvious. It is that the
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invalidation of that part by Khanna and Jaganmohan Reddy, JJ., must be added to the
invalidation of that part (as a part of entire invalidation of Article 31-C) by five Judges
(Sikri, C.J., Shelat, Grover, Hegde and Mukherjea, JJ.).
If nine Judges of the Supreme Court thus perceive the holding, we need strong
reasons for disagreement with them on the accuracy of their reasons for so holding. As
already noted, the argument of Mr Seervai on severance being not argued and
implicitly “rejected” by a majority of eleven Judges is not a strong argument because
as he himself realizes that entails leaving aside altogether the opinions and holdings of
Jaganmohan Reddy and Khanna, JJ., and treating them as constituting an unusable
“second” minority opinion.
Nor is the argument about the status of the summary a strong one. It does not
matter at all whether it can be described as propounding the ratio or obiter of
Kesavananda on all points. The summary makes six points. Of these, as stated earlier,
it is inconceivable that the four non-signatory Judges did not agree with points (1),
(3), (4), (5) and (6), summarised earlier. Only point (2) concerning basic structural
limitation to Article 368 and a part of point (5) concerning certain invalidity of second
half of Article 31-C may be in question. This possible disagreement does not affect the
usefulness of summary as a whole. So that whether there is a majority on these two
points of contention should be ascertained from the Case as a whole, including the
nine Judges view, points in a collective summation. And as regards Article 31-C,
second half, the “summary” and eleven opinions jointly support the conclusion that
the second half of Article 31-C is invalid for reasons so far stated.
VIII
In striking contrast to vacillation surrounding recognition of a limited degree of
judicial review, one finds growing solicitude for such review when one reads the
opinions pertaining to the second half of Article 31-C. The six Judges who invalidated
this Article were, of course, concerned that it provided no substantial scope for judicial
review. The other seven Judges were also equally concerned.
There may seem to be no need to discuss this aspect in the light of the conclusion
that the second half is invalid. However, the analysis to follow, in addition to being
intrinsically worthwhile, provides telling linkages on the attitude of Judges who
recognise no limitations on Article 368 power. Their views on limited judicial review in
Article 31-C also introduce certain tensions in their opinions when compared with their
touching proclamations of the faith in the Legislature as regards Article 31(2). What
follows also demonstrates that all of the seven Judges still regard Article 31(2) as a
fundamental right, although some of them employ Article 31-C device rather than
plain text of Article 31(1), to convey their recognition.
It would have been relatively easy for justices who earlier recognised no implied
limitations on the power of Parliament to amend the Constitution to have held that the
second half completely ousted the judicial review. The steps towards this conclusion
were simple and easy. Parliament would not, on earlier logic, wantonly issue a
declaration that the law was one giving effect to Article 39(b) and (c) when in reality it
was not so. Nor would the President assent, under the provision to Article 31-C, to any
irresponsible declarations by the State. Even if there was a possibility of abuse of this
procedure, the argument will proceed, that it is no ground for interpreting the second
half of Article 31-C
Page: J-65
otherwise. Hence the declaration must be conclusive as far as Courts were concerned.
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No one would expect at least six Judges—Sikri, C.J., Shelat, Grover, Hegde,
Mukherjea and Jaganmohan Reddy, JJ.—to accept this line of reasoning; and one may
be a little surprised (with respect) that Khanna, J., should be so vehement in the
invalidation of this part of Article 3-C. But one would expect the remaining Justices—
Ray, Palekar, Mathew, Beg, Dwivedi and Chandrachud—to declare the provision valid
without “ifs” and “buts”. These six Justices, however hold this position valid but put a
gloss on it which provides ample scope for judicial review.
These justices agree that whether the law immunised by second half of Article 31-C
actually gives effect to the policies of Article 39(b) and (c) falls outside judicial review.
As Chandrachud, J., pithily puts it “… I suppose no Court can ever take upon itself the
task of finding out whether a law in fact gives effect to its true policy. If such a
latitude were open to the Judges, laws of Prohibition and Gambling should have lost
their place on the statute book long since”.64 Palekar, J., says the “declaration does no
more than forbid … an enquiry by the Courts which the Courts themselves would not
have undertaken. The declaration is by way of abundant caution”.65 Each one of the
justices, however, feels that the declaration that the law is one relative to clauses (b)
and (c) of Article 39 cannot be at all accepted as binding.
Ray, J. (now C.J.) decides that it is for the Courts to find out whether there is
“nexus between the legislation and the objectives and principles mentioned in Article
39(b) and (c)”. If there is no such nexus the law “will not be within the protective
umbrella” of Article 31-C.66 Indeed, in arriving at such a determination the Court “can
tear the veil to decide the real nature of the statute”.67 Judicial review, in Justice Ray's
opinion, thus provides a third safeguard, others being the “foremost safeguards” of the
“good sense of the Legislature and the innate good sense of the community” and
finally the requirement of Presidential assent.68
Similarly, Palekar and Mathew, JJ., conclude that if the object of the Legislature was
a “pretence”, or some “collateral”, or ulterior aim outside Article 39(b) and (c) was
involved, then Article 31-C will “not be attracted”.69
Mathew, J., makes the further point that only a law aiming to effectuate the aims of
Article 39(b) and (c) can validly contain a declaration contemplated by Article 31-C.
He rules that the:
“declaration can never oust the jurisdiction of the Court to see whether the law is
one for giving effect to such a policy, as the jurisdiction (sic) of the Legislature to
incorporate the declaration is founded on the law being one to give effect to the
policy ….”70
Beg, J., takes (with respect) the somewhat puzzling view that the “declaration” by
itself is not a part of the law made, but is something only attached
Page: J-66
to the law even though, this annexation is by a purported law”.71 The puzzle deepens
when the learned Justice immediately adds that “the declaration, though provided for
by law, takes place of judicial consideration by the Courts”.72 He also wonders whether
rules of “natural justice” must be complied with in making the declaration and leaves
the question pointedly open.73 Howsoever (with great respect) enigmatic all this may
seem, Beg., J., is at least clear on the main point—namely that the “declaration would
not preclude judicial review”.74
Dwivedi, J., is perhaps most specific (with respect), for a Judge who had earlier
recognised that Article 31(2) abrogates the right to property, on the extent of judicial
review over the declaration. He points out that the expression “subserve common
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-
good” in clause (b) and the expression “common detriment” in clause (c) of Article 39
raise “questions of fact”.75 The Court has power to decide the “legal question of the
law's relevancy to the principles specified in Article 39(b) and (c) as well as the factual
question of the laws efficacy to subserve common good or prevent common detriment.
It can test the ends as well as means of the law”. Only the “sufficiency of the law's
efficacy alone is made non-justiciable”.76
Finally, Chandrachud, J., insists on “a direct and reasonable nexus between the law
and the directive principles” mentioned in Article 31-C.77
The Ray-Palekar-Mathew-Beg-Dwivedi-Chandrachud stance on excluding even a
limited judicial review on the recompense under the new Article 31(2) (subject to inter
se variations, noted earlier and here not crucial) sits strangely (with respect) with their
solicitude for not so limited judicial review in relation to the second half of Article 31-
C. For, Article 31-C in terms referred to basic, overarching policies of social justice
embodied in Article 39(b) and (c), whereas Article 31(2) merely spoke the language of
colourless, neutral “amount”. The limited judicial review sought to be imported into
Article 31(2) by their brethren was resisted on the ground of social justice, while the
same ground is to be hedged in by judicial oversight in Article 31-C upon the
reasoning of the six learned Justices. In fact, upon this reasoning the Article 31(2)
laws remain more immune by avoiding Article 31-C device. A more curious result (with
respect) is hard to imagine!
It may be that the Judges were thinking here more about Articles 14 and 19 and
less of Article 31(2). But the fact is that Article 31-C also seeks to protect laws liable
to invalidation under Article 31. And, indeed, Article 31-C speaks only of acquisition
and requisition laws which may offend incidentally Articles 14 and 19 freedoms. On
their approaches to the Twenty-Fourth Amendment what prevented the six Judges,
one may ask with respect, from holding that Articles 14 and 19 were partially repealed
by Article 31-C? One can understand Justice Khanna's repugnance of this part of
Article 31-C for he does wish to set some limits to Article 368 power. But of the six
Judges, only Mathew, J., has the candour (with respect) to conclude that there is such
partial repeal. This is clear when he opines that “Article 31-C is a proviso to Article 13
(2)”.78 But
Page: J-67
even he nevertheless would preserve a degree of judicial review. And Justice Dwivedi
who otherwise insists that Article 31 is not a fundamental right is concerned to
preserve judicial review of the widest kind over Article 31-C. This may be so partly
because he has earlier held that Article 14 can invalidate a law offending Article 31(2).
But this fact does not (with respect) wholly explain his position.
The matter would merely be of academic or logical interest were it not for the fact
that a law subject to Article 31 was also sought to be protected by Article 31-C. On the
reasoning of the six justices the question whether a law related to Article 39(b) and
(c) policies was open for judicial review, including an Article 31(2) law. It is quite
conceivable that the question of whether such a law provided an amount (or principles
yielding such an amount which provided an amount) not reasonably related to the
affected property may arise in considering the question whether a law under Article 31
-C had a “direct and immediate” nexus to the aims of Article 39(b) and (c). Can a law
providing an amount not reasonably related to the property under acquisition be either
characterised as conducive to the “common good” and preventing “common
detriment”? Would such a law not receive judicial scrutiny (whatever the result)
determined to “tear the veil to decide the real nature of the statute” or to establish
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-
“direct and immediate nexus”?

The purpose of raising this question is to indicate that, even if a later Court was to
somehow decide that second-half of Article 31-C has been declared valid by the
Kesavananda Court, judicial scrutiny of a declaration is clearly conceivable on the very
ground on which it is not so open according to these six Judges. That is, it is
conceivable that a law which provides unreasonable recompense (amount) may not be
saved if it is accompanied by an Article 31-C declaration, which is open to judicial
scrutiny, whereas such a law according to these Judges may well be valid under Article
31(2). Such are the “whims and the vagaries” of constitutional interpretation!
And the strangest irony of all this is that these Judges who endow Parliament with a
sovereign amending power, and who sanction Article 31(2) in the process, after all do
find it possible to think that the power could be misused! Justices Ray and Mathew say
that under Article 31-C the Court can “tear the veil” and hold that there was a
“pretence” of achieving the aims of Article 39(b) and (c) on the part of the Legislature.
They do not of course deny Parliament and Legislatures the power to make such laws
on the ground that such pretences (abuse of power) are probable. But they are ready
to hold the sword of Democles in the shape of judicial review on the Legislatures. They
do so not because Article 31-C (or for that matter the Twenty-Fourth Amendment) in
terms allowed even a limited judicial review. Rather, such review is the fruit of an
interpretative exercise. Could not they have wielded such a sword over Article 31(2)
and more importantly over Article 368?
———
*B.A. (Guj), LL.M. (Bombay), LL.M.J.S.D. (Berkeley, California), Professor of Law and Head, South Delhi Law
Centre, University of Delhi.
1
Some help may be derived from Shri M.C.J. Kagzi's valiant effort to abridge all the opinions in his book. The
Kesavananda Case (1973, Metropolitan, Delhi). But even this abridgment runs into 295 pages! This reading must
however be supplemented at least by recourse to the complete opinions of either Sikri, C.J. or Shelat and
Grover, JJ., plus the individual opinions at least of Khanna, Jaganmohan Reddy, Mathew and Chandrachud, JJ.
2 See Baxi, “The Little Done, The Vast Undone ….” (1967) 9 J.I.L.I. 323 at 389-407. See also K. Subba Rao,
(1973) 2 SCC (Jour) 1, at p 5; and Surendra Malik (1973) 2 SCC (Jour) 32 at 35. Subba Rao stressed that the
“slogan which, by repetition has become a conviction in the uninformed mind that under the Indian Constitution
the property right has become entrenched has … no foundation in fact”. Malik says “The plea that Fundamental
Rights are an impediment to the implementation of Directive Principles is deceptive and mischievous and intended
to cover our failings”.
3 A mere invocation of Bank Nationalisation and Privy Purses decisions is not enough. My critique of Golak Nath,
Supra note 2, seems to have given rise to an impression that I was too exclusively preoccupied with the needs
of economic development at the altar of which fundamental rights, if need be, could be sacrificed. Dr Hari Chand
has thus read me in his excellent (and much neglected) study Amending Process under the Indian Constitution
(1972) p. 150. See also A.R. Blacksheild's critique of my views in 10 J.I.L.I., 1, at 33-42. This, however, was not
the underlying intention as the total context of my article would show.
3a
See Baxi, supra note 2, at 344-48, 360-63.
3b
See Baxi, “State of Gujarat v. Shantilal: ‘A Requiem for ‘Just Compensation’ ” (1969) 9 Jaipur C.J. 29 at 58-97
for an elaboration of the notions of distributive justice in an economy of scarcity.
3cR.D. Lumb, “The Scholastic Doctrine of Natural Law” (1959) 2 Melbourne University L. Rev. 205, Julius Stone,
Human Law and Human Justice (1965) 215-218.
4
(1973) 4 SCC 225, 1005, para 2141. (emphasis added) Hereafter, I will just refer to SCC pages and paragraphs
without giving the fuller citation.
5 The power of judicial review of laws made under the Constitution is, analytically, a legislative power. The power
of judicial review over amendments to the Constitution is, analytically, akin to amending power. Thus, contrary
to the proclaimed intentions of Parliament, the word “compensation” in Article 31(2) was interpreted by the
Court to mean “just equivalent”. Analytically, the Court can be said to have thereby amended the Fourth
Amendment. A similar destiny may well await the term “amount” in the new Article 31(2). If we call amending
power a “constituent” power, both Parliament and the Supreme Court share it. It is conceivable indeed that if
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
major guarantees of Part III were sought to be abrogated by virtue of the Twenty-Fourth Amendment, the Court
might reconsider, and even depart from whatever Kesavananda might be read to have held by way of recognizing
unlimited power of Parliament to amend the Constitution. A similar result is equally conceivable if the whole of
Part IV of the Constitution were sought to be repealed. The Supreme Court and the Parliament are co-ordinate
authorities in respect of Constitution-making. See also my article referred to in note 2.
6 SCC p. 953, paras 1971-2.
7
SCC p. 794, para 1483.
8 SCC p. 721, para 1319.
9 Ibid.
10
SCC p. 889, para 1754.
11 SCC p. 1001, para 2124 (emphasis added).
12 SCC p. 919, para 1856.
13
Ray, Palekar, Mathew, Beg, Dwivedi, Chandrachud, JJ.
14 See, e.g., SCC pp. 389-90, para 404 (per Sikri, C.J.); p. 499, paras 703-4 (per Hegde and Mukherjea, JJ.)
15 See, e.g., SCC p. 499, paras 703-4 (per Hegde and Mukherjea, JJ.)
16
See SCC p 390, para 407 (per Sikri, C.J.); p. 457, para 584 (per Shelat and Grover, JJ.); p. 500, para 706 (per
Hegde and Mukherjea, JJ.); (per Jaganmohan Reddy, J.) p. 642, para 1166.
17 See, e.g., SCC p. 391, paras 408-412 (per Sikri, C.J.) p. 457, para 591 (per Shelat and Grover, JJ.).
18 See SCC p. 457, para 591 (per Shelt and Grover, JJ.).
19
See, e.g., ibid.
20 See, e.g., SCC p. 501, paras 707 (per Hegde and Mukherjea, JJ.).
21 See, e.g., SCC p. 590, paras 1048-49 (per Ray, J.); p. 891, para 1761 (per Mathew, J.).
22 SCC p. 583, para 1020.
25 Ibid.
26
SCC p. 889, para 1751.
27
See supra note 6.
28 Ibid.
29 Ibid.
30 Ibid. (emphasis added).
31 Ibid.
32 Ibid.
33 See note 9, Supra (emphasis added).
34 SCC p. 1000, para 2121.
35 Ibid.
36 Ibid.
37 SCC p. 1000, para 2122.

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39 Ibid.
40
SCC p. 1001, para 2124.
41 Ibid.
42 P.K. Tripathi “Kesavananda Bharati v. State of Kerala: Who wins?” (1974) 1 SCC (Jour.) 3 at 39.
43
Ibid. at 38.
44 Ibid.
45 See Supra note 35.
47 SCC p. 1006, para 2142.

48 SCC p. 990, para 2089.
49 SCC p. 991, para 2093.
49a In addition to this implied “good faith” limitation, there lurks yet another reason for inferring an implied
limitation on the amendatory power of Parliament in the very six opinions of the Court which recognise no explicit
limit upon the amendatory power. This implied limitation arises from the paramount emphasis placed upon “social
justice” values elucidated in the Directive Principles. Closely read, each of the six opinions seems to receive its
major sustenance from the apperceived sacrosanctity of the Directive Principles. The Fundamental Rights are
held amendable in pursuit of the justice-values of the directive principles; and if the rights could be thus
amended, then no other constitutional provision can claim immutability. In a situation where Parliament seeks to
repeal Part IV of the Constitution, the very logical basis of granting unlimited amendatory power will be taken
away from the six Kesavananda opinions! Perhaps, the six justices confronted with such a situation may still feel
constrained to hold-according to their widely formulated scope of amendatory power-the hypothetical
amendment valid. But the forceful justification of social justice would no longer be at hand. Stripped of this, they
would have to reason that Parliament has the power to repeal Part IV because the Court cannot prevent any
radical abuse of amending power. But the six justices in that case will have to accept the role of accomplices to
the demise of constitutional elucidation of the conceptions of social justice upon which they place so great a
reliance. One may be forgiven for venturing a predication that even these justices in such a situation will prefer
to adopt as the ratio of Kesavananda the basic framework limitation (restricted only to the preservation of the
Directive Principles) for the amending power.
50 See, e.g. the analysis in H.M. Seervai, Constitutional Law of India (1967) pp. 1023-24.
50a See SCC p. 500, para 706.
51 Ibid. Shelat and Grover, JJ. found this argument “unusual” and its conclusions “wholly incomprehensible” (SCC
p. 457, para 589) and Jaganmohan Reddy, J. dismissed this argument by saying “Such a view has no rational or
logical basis” (SCC p. 642, para 1116).
53 SCC p. 590, para 1051.
54 SCC p. 947, para 1945.

55 SCC p. 954, para 1972.
56 Supra note 25.
57 SCC p. 868, para 1681.
59
SCC p 1007.
60 H.M. Seervai, “The Fundamental Rights Case: At the Cross Roads” (1973) 74 Bom. L.R. (Jour) 47 at 50-51.
61 Supra note 60 at 82.
62 Supra note 60 at 83.
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63 Ibid.
64 SCC p. 1003, para 2133.
65 SCC p. 725, para 1328.
66 SCC p. 587, para 1035.

67 Ibid.
68 SCC p. 587, para 1036.
69 SCC p. 723, para 1323; p 896, para 1779.
70
SCC p. 896, para 1778.
71
SCC p. 918, para 1854.
72
Ibid.
73
SCC p. 918, para 1855.
74
Ibid.
75
SCC p. 955, para 1979.
76 Ibid.
77
SCC p. 1003, para 2133.
78
SCC p. 803, para 1768.
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(1974) 1 SCC J-45

The Constitutional Quicksands of Kesavananda Bharati and the Twenty-Fifth

THE CONSTITUTIONAL QUICKSANDS OF KESAVANANDA BHARATI AND THE TWENTY-FIFTH

The net result on this issue is as follows:

Of course, in relatively “simple” cases, open to the tortuous discoveries of ratio

acquisition … will be the guiding principles for legislative determination of the

These “principles” will be supplemented by principles of “social justice”. It would be

it is “inconsistent with, or takes away or abridges any … rights conferred by Articles

“direct and immediate nexus”?

38 SCC p. 1000, para 2123 (emphasis added).

47 SCC p. 1006, para 2142.

54 SCC p. 947, para 1945.

66 SCC p. 587, para 1035.

© Eastern Book Company.

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