FROM BASIC JUDICIAL REVIEW TO BASIC STRUCTURE OF CONSTITUTION IN INDIA

A.N. Tripathi (Senior Advocate, Allahabad High Court)

2 August 2020 4:40 PM

After the Constitution of India come to be enforced in 1950 we, the people of India with solemn declaration in its preamble in the nature of essential feature of Constitution and by adopting enacting and giving to themselves the Constitution of India, the people of India had high expectation from future governments. During the initial formative stage the three organs of the Govt. namely legislature, Executive and Judiciary tried to remain within their Exclusive Power, Jurisdiction and Limitation as specified in the Constitution with reference to strict adherence to the theory of separation of powers by maintaining highest standard in a Constitutional democracy. Supreme Court of India and High Courts in India also confined their powers of Judicial Review within its inbuilt frame work of pure and simple sphear of Judicial restraint which is reflected in its initial judgments.
 

IN THE MATTER OF AGRARIAN REFORMS AND RIGHT TO PROPERTY AND COMPENSATION

In the matter of land Reforms Acts and Zamindari Abolition Acts Supreme Court in State of Bihar v. Kameshwar Singh, AIR 1952 SC 252, dealing with such Acts, relating to Bihar, U.P. and Madhya Pradesh in authors opinion appears to have become overwhelmed with legislative wisdom of agrarian reform and creation of an egalitarian society and placing the same in IXth schedule of Constitution took a conservative view with regard to compensation by holding that such Acts did not give equivalent or quid pro quo for Zamindari Abolition Rights in the nature of property articulated and called as equitable compensation, taking an unprecedented and contrary view to the well settled view of adequate and reasonable compensation for deprivation of any type of property right in the Land Acquisition Act ignoring also the historical fact of Acquisition of Zamindari Rights of State of Bengal, Bihar and Orissa by East India Company through which it become the ruler of those three states ultimately. 20 times of net annual income which was upheld as compensation for total abolition of Zamindari Rights including those of petty Zamindars and treating then equal to big Zamindars was nothing but illusory and arbitrary and destructive fundamental right to property till then enshrined in the Constitution and as such is debatable far and against both.
Such type of concept of compensation was given a go by in 3 years by subsequent decision of Supreme Court in State of West Bengal v. Bela Benarjee, AIR 1954 SC 170 case where West Bengal Land Reform and Development Act was under challenge and it was held that compensation for property appropriated must be just equivalent to market value and full indemnification of expropriated owner of land at the time of acquisition. In 1970 Supreme Court in Bank Nationalization Case R.C. Cooper v. Union of India, AIR 1970 SC 654, extended the market value theory of compensation to asset goodwill, cash and secret reserve and to share value when it is settled since Lord Justice Lindley’s observation that company is an artificial and separate entity created by law apart from the share holders who constitute it and is also against settled legal position that the liability of share holders are limited to the face value of the shares they purchase and hold it. It is also necessary to point out that even after abolition of right to property from fundamental right by forty second (Constitution Amendment) 1976. Supreme Court in its various judgments which is not necessary to be mentioned upto  K.K. Plantation Private Ltd. v. State of Karnataka, JT 2011(9) SC 65 and even subsequent thereto has held that right to claim compensate can be inferred in Article 300A and it must be reasonable, just and fair.

IN THE MATTER OF FUNDAMENTAL RIGHT TO LIFE AND LIBERTY IN ITS VARIED FORM

In A.K. Gopalan case reported in AIR 1950 SC 27, the Constitution Bench of Supreme Court of India interpreted Article 21 to mean that a person could be deprived of life and liberty so long as there was enacted law to support the same. It was a clear case of basic judicial review theory which dominated in the minds of judges but later on in Menaka Gandhi’s case reported in AIR 1978 SC 248 (7 Judges Bench) held that any law depriving fundamental right of life and liberty must not be either discriminatory or arbitrary and it must comply with the mandate of Article 14 in substantive as well as in procedural form. The right to life and liberty has been interpreted in Unni Krishnan’s case and other cases to include almost all conceivable rights which are basic to a moderate dignified human living and right to life and it’s need in varied forms.

IN THE MATTER OF AMENDMENT OF CONSTITUTION

In AIR 1951 SC 458 the basic conservative theory of judicial review it was adopted and it was held that Parliament has plenary and exclusive power to amend the Constitution but in AIR 1965 SC 845 the check and balance theory was sought to be developed by Hon’ble two Judges though not dissenting but saying in so many words that they did not feel comfortable with the theory that each and every part of constitution could be amended. Later on in Golak Nath case reported in AIR 1967 SC 1643 by (6:5) majority it was held that a Constitutional Amendment abridging or taking away fundamental right was absolutely void and ultimately in Keshvanand’s case reported in (1973) 225, the basic structure theory was developed and held that basic features of the constitution could not be abrogated even by a constitutional amendment.

IN THE MATTER OF EDUCATION INCLUDING TECHNICAL EDUCATION, MEDICAL EDUCATION AND UNIVERSITY

After to 42nd Amendment Act 1976 w.e.f. 3.1.1977 when Entry 25 of concurrent list was inserted giving parliament and State Legislature both the power and jurisdiction to legislate on the subject of education including University a constant fear of overlapping jurisdiction and conflict of Parliamentary law and State Law have become bone of contention and subject matter of controversy leading to various litigation and conflicting judgments which has become a serious matter of concern and after insertion of Article 21-A Right to Education having been inserted by Constitution (Eighty Sixth Amendment) Act, 2002 empowering State to provide Free and Compulsory Education to all Children of the age of six to fourteen years in such manner as state may, by law, determine and by passing of Right to Free and Compulsory Education Act 2009 by Parliament, although state share is there but the State has become powerless and National Council for Teachers Education being nodal and controlling agency has become most powerful and has created various complicated situation and problems in implementation which need to cackled and intervention of Supreme Court of India by a Constitution Bench Judgment appears to be a pressing need of time in this field.

It is not possible in this short article deal with various other Constitutional matter which are no less important than those specific topics mentioned above but in view of 65 years judicial journey of Supreme Court of India it has become a serious and moot question of Constitutional importance with for reaching consequences to rethink and reassert as to whether basic conservative concept of judicial review by not questioning legislative wisdom is more better or check and balance method of Judicial review as a middle path or basic structure of Constitution theory of judicial innovation in the context of present day complex situation of constitutional democracy in India.

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