Basic Structure doctrine, Constitutional morality principle built on views of Justice HR Khanna in Kesavananda Bharathi case: PS Narasimha

Senior Advocate PS Narasimha on Saturday spoke in some detail about how the interpretative choices of Supreme Court Judge Justice HR Khanna, when it came to deciphering the Constitution of India, have become the law of the land by influencing the course of future judgments..Narasimha observed that Justice Khanna's interpretative choices were guided by his courage, conviction and confidence, leading to the evolution of real Constitutional values. .Two such values which were built on Justice Khanna's views in the Kesavananda Bharathi case were the Basic Structure Doctrine and the principle of Constitutional morality. ."(What) Justice Khanna, in his judgment, discussed has come to be accepted as the law of the land. This is especially significant because in each of the judgments, Khanna authored a separate opinion, laying emphasis on the interpretation of the Constitution," Narasimha said. .He went on to emphasise,"It is only such a man who had such great foresight, knowledge and courage that could have dissented in ADM Jabalpur’s case. As is known, Justice Khanna, who was in line to become Chief Justice of India was superseded due to his opinion in the ADM Jabalpur case. In his autobiography he states that he was mentally prepared for being superseded and immediately, upon hearing the announcement, he resigned. On his resignation, the Supreme Court Bar Association decided to put up a portrait of him in Court number 2 to commemorate his courage. As members of the Bar and Bench, the institution we serve is epitomised by the courageous and independent Justice Khanna, about whom Nani Palkhivala famously wrote, ‘to the stature of such a man, the Chief Justiceship of India can add nothing.’”.Narasimha was speaking on the theme of Justice Khanna's contributions in a symposium conducted by the CAN Foundation, in partnership with NLU Jodhpur and GNLU. Justice UU Lalit gave the keynote address for the session. .[Watch Full Session].Justice Khanna and the origins of the Basic Structure doctrine.The landmark ruling in Keshavananda Bharathi's case came 18 months after he took charge as a Supreme Court Judge, Narasimha recalled in his address. .Narasimha noted that Justice Khanna's balancing interpretation that while there are inalienable and natural rights, the right to property is not part of the Constitution's Basic Structure (and, therefore, amenable to amendment) indicated the Judge's judicial independence. .He added that Justice Khanna's great judicial mind, his innovation and novelty was apparent from the fact that the Basic Structure Doctrine became the view of the majority, even though none of the other Judges held so in the same way Justice Khanna did. .Narasimha explained how the Judge leaned in favour of recognising the Parliament's powers to amend on provisions in Part III (fundamental rights) to counter the possibility of extra-Constitutional methods being resorted to for effecting such changes in line with changing needs and aspirations. ."He (Justice Khanna) says, in order to fulfil the aspirations of the people, we have to have a Constitution which would even go to the extent of Parliamentarians experimenting with the values. It is a very extraordinary feature, which he talks about. He says another circumstance which must not be lost sight of is that no generation has monopoly of wisdom, nor has generations in rights to place fetters on future generations to mould the machinery of the government and the laws according to their requirement. Although guidelines for the organisation and functioning of the future government may be laid down and although norms may be prescribed for legislative activity, neither the guidelines should be so rigid, nor the norms inflexible and unalterable as should render them incapable of change, alteration and replacement, even though the future generation wants to change, alter or replace them", Narasimha observed. .It was recounted that Justice Khanna opined that if it is not permissible under Article 368 to so amend the Constitution as to take away fundamental rights in Part III, "the conclusion would follow that the only way to take away or abridge fundamental rights, even if the overwhelming majority of people, e.g. 90 percent of them want such an amendment, is by resort to extra-Constitutional methods like a revolution.".A question that Justice Khanna posed to himself was is whether our Constitution is a flexible Constitution or whether it permits and enables the Parliament to make and modify changes when times come and when there is a need to do so, Narasimha added. .In answer, Justice Khanna "stressed on the need to allow enough flexibility in the substantive portions of the Constitution to avoid a popular uprising. Usurping the revolution, he made reference to Nazi in the second World War to find the Constitution may be subverted even while purportedly following the Constitution by proclaiming an emergency.".Narasimha quoted from the Keshavananda Bharathi judgment to explain that Justice Khanna had cautioned against allowing the amendment of the Constitution to be left to those who resort to extra-Constitutional methods. "It hardly needs much argument to show that between peaceful amendment through means provided by the Constitution and extra-Constitutional methods with all its dangerous potential, the former method is to be perfected. The contrast between the two is so glaring that there can hardly be any difficulty", Justice Khanna said in the judgment. .As such, Justice Khanna had favoured interpreting the Constitution to have ample provisions for the "experimentation and trial in the task of the administration", Narasimha added. .On how Justice Khanna's interpretative choice, in turn, led to the evolution and application of the basic structure doctrine in future cases, including the case of Kihoto Hollohan vs Zachillhu, Narasimha explained, "... when he (Justice Khanna) is saying that there must be a power or an enablement to the Parliament to experiment with ideas and the Constitution must permit it, Justice Venkatachaliah in Kihoto judgment, where the Parliamentarians introduced tenth schedule, it was questioned on various grounds, it was upheld inspite of the fact that certain provisions of the Constitution could perhaps be infringed. The Court said that the Parliament is entitled to experiment. Justice Venkatachaliah’s quotation is really beautiful. It is directly taken from the principle Justice Khanna had laid down earlier. Having decided to take this line, despite the contentious argument that the Constitution cannot be amended, he rejected that and said that it can be taken. The choice that he made led him to necessarily take that decision as to what should therefore be done to protect the individual rights - this led to the evolution of the principle of interpretation of fundamental rights, the scope and ambit, which is 'that far and no further.' That's the principle he lays down when he says, you cannot amend the Constitutional provisions relating to fundamental right to the extent of effacing or taking away the content of it, the basic structure of it. He applied that principle across the board to all provisions of the Constitution. He said that, you cannot identify an individual provision, but you will not be permitted, through the Parliamentary amending process, to change the basic structure. This Constitutional choice led to the evolution of the principle.".How Justice Khanna contributed to the evolution of "Constitutional Morality".The origins of Constitutional morality can also be found in the faith, trust and confidence Justice Khanna reposed in the majority of Parliamentarians, Narasimha said. The senior lawyer recounted:."He (Justice Khanna) says, in his judgment, 'Even without amending any article, the emergency provisions of the Constitution contained in Article 358 and 359 can theoretically be used in such a manner as may make a farce of the democratic set up by prolonging the rule of the party in power beyond the period of five years … The effective check against such unabashed abuse of power is the sense of political responsibility, the pressure of public opinion and the fear of popular uprising. We need not go into the question as to whether the court would also intervene in such an event. It is, in my opinion, inconceivable that a party would dare to so abuse the powers granted by the emergency provisions … This would be a flagrant abuse of the power of amendment and I refuse to believe that public opinion in our country would reach such abysmal depths and the standards of political and Constitutional morality would sink so low that such an amendment would ever be passed.”.This stance led to the formation of the principle of Constitutional morality, Narasimha went on to explain. "This very clearly reflected in the subsequent judgment of Manoj Narula, where the Court has held that Constitutional persons who are manning these Constitutional posts, will always have to follow the Constitutional principle of Constitutional morality. The principle of Constitutional morality means to bow down to the norms of the Constitution and not to act in a manner which would become violative of the rule of law or reflectable of action in an arbitrary manner. It actually works at a fulcrum and guides as a laser beam in institution building. The traditions and conventions have to grow to sustain the value of such morality. The democratic values survive and become successful where the people at large the persons in charge of the institutions, which Justice Khanna said we must trust, are strictly guided by the Constitutional parameters … Commitment to the constitution is a subset of Constitutional morality. The two concurring opinions of Justices Dipak Misra and Justice Chandrachud very clearly says, this is a guiding principle, where people occupying Constitutional positions are bound by Constitutional morality and the principle as laid down by Justice Khanna were followed", Narasimha noted. .An additional aspect discussed was how Justice Khanna viewed minority rights. ."With respect to minorities, he says it has to be not treated as if they are islands which need to be protected. The interpretative principle for that is the principle of equality. They must be given that kind of protection and eventually their position would be in the same as the ideal of an egalitarian country. That principle is also based on yet another Constitutional norm, that is fraternity. He says that equality would be natural if we adopt the principle of fraternity", Narasimha recalled. .His dissent in ADM Jabalpur was the lighthouse for future generations of judges: Justice UU Lalit on Justice HR Khanna