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Basic Feature of Constitution- [Part-I]

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By Sushil Jain

Immediately after independence and promulgation of Constitution of India, the Indian Parliament wanted to introduce land reforms. The land reforms were affecting right to property i.e., one of the fundamental right under Article 31 of the Constitution of India. To overcome possible challenge, the parliament introduced the Constitution (First Amendment) Act, 1951, which inserted Article 31A and 31Bin the constitution. In the case of Sankri Prasad Singh v. Union of India [1], it was for the first time controversy arose as to whether provisional parliament is competent to exercise the power of amending the constitution under article 368. It was held by Hon’ble Supreme Court that the powers conferred under Art 368 are wide enough to include the powers to amend the constitution. In Sajjan Singh V. State of Rajasthan 1965 (1) SCR 933 Justice Gajendra Gadkar C.J. came to conclusion that as a matter of construction, there is no escape from the conclusion that Art. 368 provides for amendment of the provisions contained in part-III without imposing on parliament an obligation to adopt the procedure prescribed by the two provisos: It was held by leaned Chief Justice that though the power to amend, in the context, was very wide power and it could not be controlled by the literal dictionary meaning of the word “amend”. He expressed his agreement with Patanjali Shastri C.J. regarding the applicability of Art 13(2) to the constitution amendment Act pursued under Art 368. He further held that where Art 368 confers on Parliament, the right to amend the constitution, it can be exercised over all the provisions of the constitution. The Higher Bench of Supreme Court in the case of Golaknath vs. State of Punjab[2] again considered the competence of Parliament to amend Part-III of the Constitution of India and held that Parliament cannot alter or restrict fundamental rights conferred under Chapter-III of the Constitution. The judgment in Golaknath v. State of Punjab led to constitution (24th Amendment) Act which was made applicable w.e.f. Nov 5, 1971. The Constitution (25th Amendment) Act came into force on April 20, 1971. The Constitution (26th Amendment) Act came into force on June 9, 1972. By 29th Amendment two acts relating to land reforms were inserted in 9th Schedule.

In the Kesavananda Bharati vs State Of Kerala[3] larger bench of 13 Judges was again constituted. In the said judgment of Kesavananda Bharti (supra) the Hon’ble Supreme court lays down the power under Article 368 to amend the constitution subject to implied limitation that amendment cannot alter the basic structure of constitution. In Kesavananda Bharati (supra) the term used in ‘Alter’ “Parliament cannot alter the basic structure of constitution.”  Judgment in Keshwanand Bharti case was not unanimous in as much as-

9 of the 13 judges signed a summary statement (at p. 1007 of the SCC) which stated

“(1) Golak Nath’s case is overruled

(2) Article 368 does no enable Parliament to alter the basic structure of the Constitution

7 of these 9 judges actually struck down 31C or parts thereof

“(1) Golak Nath’s case is overruled

(2) Article 368 does no enable Parliament to alter the basic structure of the Constitution”

Of the 7, six judges (namely Sikri CJ (para432) Shelat and Grover JJ (para 604). Hegde and Mukerjea (para 718, 735), Reddy J. (para 1185-9. 1206) struck down Article 31C which empowered the legislature to abrogate Article 14,19 and 31 by legislation.

Khanna J (paras 1483, 1518) struck down only part of Article 31C which excluded judicial review.

In last fifty years Supreme Court has considered and classified doctrine of basic features in large numbers of judgments and following feature of constitution have emerged.

The integrity of the judiciary, judicial review and the separation of powers

Kartar Singh v. State of Punjab (1994) 3 SCC 569 per K. Ramaswamy at para 412.

S.P. Sampath Kumar, (1987) 1 SCC 124 at para 3 (referring to judicial review as a part of the basic structure).

Kesavananda Bharthi, (1973, supra) at para 292.

Indira Gandhi v. Raj Narain, (1975) Supp SCC 1), per Mathew J (at paras 341, 521), per Khanna J (at para 210), per Chandrachud J (at para 664)

A.K. Roy v. Union of India, (1982) 1 SCC 271 at para 23.

L. Chandrakumar, (1997) 3 SCC 261 at paras 78-9 and 90.

IR Coelho, (2007) 2 SCC 1 at paras 63,67.

State of Bihar v. Bal Mukand Shah, (2000) 4 SCC 640 at paras 32-34.

Federalism

S.R. Bommai, (1994) 3 SCC 1 (Per Sawant And Kuldip Singh, Jj, Pandian, J. Concurring) At Para 96.

IRC LTD., (2002) 9 SCC 232 at para 96.

State of Haryana v. State of Punjab, (2002) 2 SCC 507 at para 12.

Secularism

S.R. Bommai, (1994) 3 SCC 1 per Ahmadi J. (at para 29), per Sawant, J. (at paras 144, 153), per Ramaswamy K., J. (at para 186)

Indra Sawhney (1992) per Kuldip Singh, J. (at paras 339 and 350)

M. Ismail Faruqui, (1994) 6 SCC 360 at paras 36-8 (per Verma J), paras 135 and 142 (per Bharucha J)

R. C. Poudyal, 1994 Supp (1) SCC 324 (per Agarwala J.) at para 199.

Valsamma Paul, (1996) 3 SCC 545 at para 25.

Equality

Saurabh Chaudri, (2003) 11 SCC 146 at para 82.

M.G. Badappanavar v. State of Karnataka, (2001) 2 SCC 666 at para 1.

Indra Sawhney II, (2000) 1 SCC 168 at paras 64-5, 85.

Dalmia Cement, (1996) 10 SCC 104 at para 11.

State of UP v. Dinanath Shukla, (1997) 9 SCC 662 at para 6.

Raghunathrao Ganpatrao, 1994 Supp (1) SCC 191 at para 199.

Mahrao Bhim Singhji, (1981) 1 SCC 166 at para 20.

M. Nagaraj, (2006) 8 SCC 212 at paras 31, 33,70, 80 and 102.

IR Coelho, (2007) 2 SCC 1 at paras 95, 108, 109, 130.

The Hon’ble Supreme Court applied basic feature doctrine in number of cases and even struck down following constitutional amendments.

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 invalidating the constitution (25th) Amendment Act.

Indira Gandhi v. Raj Narain, 1975 Supp SCC 1 invalidating Article 329-A (4) as inserted by the clause 4 of the constitution (39th) Amendment Act,1975.

Minerva Mills v. Union of India, (1980) 2 SCC 591 at para 2 read with Minerva Mills v. Union of India, (1980) 3 SCC 625 at para 17-22 invalidating Article 268 (4) and 368 (5) inserted by Section 55 of the Constitution (42nd) amendment Act, 1976.

Sambamurthy v. Union of India, (1987) 1 SCC 362 at para 3-5 invalidating Article 371-D as introduced by the Constitution (32nd) Amendment Act, 1973 as unconstitutional.

Kihoto Hollahan v. Union of India, 1992 Supp (2) SCC 651 at para 612 invalidating Para 7 of the 10th Schedule as it sought to amend the powers pf the Supreme court and High Courts without following the procedure laid down by Article 368 (2).

Out of the various important and basic feature of Indian Constitution the Hon’ble Supreme Court has come to the conclusion that right of equality being the most important and basic structure of constitution.

EQUALITY – BASIC FEATURE AND BASIC STRUCTURE

Equality is the most fundamental of all the fundamental rights and is the foundation of the Indian Constitutional edifice. It is an integral part of the basic structure. Article 14 and Article 16(1) provide the sheet anchor of the jurisprudence of Equality. Equality has been repeatedly acknowledged and accepted as a part of the basic structure of the Constitution.

i. Indira Sawhney II (2000) 1 SCC 168 para 764.

ii. MG Baddapanawar (2001) 2 SCC 666 para 13.

iii.TMA Pai Foundation (2002) 8 SCC 481 para 138, 301, 421.

iv. E.P. Royappa Vs. State of T.N. (1974) 4 SCC 3.

While Article 14 deals with equality generally and inclusively in all aspects of state functioning, Article 16 specifically prescribes for providing equality of opportunity to all in public employment. The concept of ‘equality’ is not merely found in the equality clauses-Article 14 to 18, but its illuminating light and luster can be seen to spread throughout the Constitution. It is the most fundamental feature of the Constitution and forms a basic of other basic features of the Constitution.

Dimensions of Equality

Equality is a many splendored basic feature of the Constitution. On its foundation, the pillars of Liberty, National Unity and Integrity, Fraternity, Justice-Social Economic and political rest. Without the foundation of Equality, each pillar and indeed the whole edifice would crumble like of house of cards. That is why the essence of equality is constitutionally “Non negotiable” and could not be directly or indirectly abrogated. The following dimensions and basic features are integrally interconnected with and interdependent on equality.

(i) Rule of Law

Rule of Law postulated ‘intelligence without passion’ and ‘reason freed from desire’. It excludes arbitrariness and thus absence of arbitrary power is the first essential feature of “Rule of Law’ upon which our whole constitutional system is based. The distinction in a ‘Government of Laws’ and a ‘Government of Men’ is vital in a setup and the difference in preferring ‘Laws’ to ‘Men’ is the absence of despotic dictates of a dictator. In a case where the political setup is dictatorial, it is law that governs the relationship between men and men and between men and state, but still it is not rule of law since the laws itself have emanated from the absolute will of the dictator. In a system governed by rule of law, discretion which inhere arbitrary action is confined within clearly defined limits free from the capricious will of a monarch. If a decision is taken without any principle or without any rule it is arbitrary and such a decision is the antithesis of a decision taken in accordance with the Rule of Law. “Law has reached its finest moments,” stated Douglas, J. in Unites States Vs . Wunderuck[4], ‘when it has freed man from the unlimited discretion of some ruler…. Where discretion, is absolute, man has always suffered.’ It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield slated it in classic terms in the case of John Wilkes[5], ‘means sound discretion guided by law. It must be governed by Rule, not by humour. It must not be arbitrary, vague and fanciful’. It is submitted that any archaic rule based on the prerogative and perfection of the Crown has no relevance to a democratic republic; it is inconsistent with the rule of law based on the doctrine of equality. It introduces conflicts and discrimination. Thus ‘equality’ is an essential element of ‘Rule of Law’ which forms part of all forms of public activity in our constitutional setup.

It is well settled that every state, in order to survive must not be susceptible to the vices of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law[6].

In a country like India, there are fetters in the form of fundamental rights placed on the action of the state-legislative and executive, further the amending or the Constitute Powers are also not untrammeled and are subject to constitutional limitations as prescribed and explained in Kesavanand Bharati[7]. It is submitted that Rule of Law which forms a basic for all state action, should be beyond the realm of constitute powers and therefore Article 368 of the Constitution cannot be invoked to remove the fetters of ‘rule of law’ on the powers of the state.

Article 14 and 16(1) are limitations on state action in relation to public employment. These principles viz ‘equality of status and equal opportunity to all’ which are principles of ‘rule of law’ and the impugned amendments are a desire to rob the Constitution from these holy principles of justice and fair-play.

Though the court neither possesses the sword of the executive nor the purse of the legislature, the judgments are normally adhere to without question by those who direct the strength and wealth of the society. Habitual acquiescence by people of possibly mistaken judgments is an underlying indispensable condition for the implementation of rule of law[8]. Judicial pronouncements have consistently held and laid down the limits of state action, it has held certain action of the state to be erroneous as being violative of the principles of equality and ‘rule of law’, yet if the state continues to act in ‘such erroneous’ manner repeatedly it puts the ‘rule of law’ to a mockery and rather promotes ‘Rule of Men’. These amendments permit the state to embark on a path of arbitrary action and remove ‘rule of law’ in relation to public employment. The constitutional amendments seek to remove this fetter on the power of the state to act reasonably and therefore are violate of the basic structure of the Constitution.

i.    Superintendent and Remembrancer of Legal Affairs Vs. Corpn. of Culcatta, (1976) 2 SCR 170.

ii.   S.G. Jaisinghani Vs. Union of India, (1967) 2 SCR 703, 718.

iii. Satwant Singh Sawhney Vs. D. Ramarathnam, Asstt. Passport Officer (1967) 3 SCR 525, 542.

iv.  Indira Nehur Gandhi Vs. Raj Narain 1975 Supp SCC 1, at page 137, 258.

v.   Paradise Printers Vs. Union Territory of Chandigarh, (1988) 1 SCC 440, at page 451.

vi.  E.P. Royappa Vs. State of T.N., (1974) 4 SCC 3, at page 38.

(ii)       Secularism

a.         The objectives with which our fore-fathers decided and embarked upon the framing of the Constitution-Secularism was one of the guiding principles. Secularism entails not just religious but also casteless egalitarian society. The high objective and the final goal was to convert a society fragmented on the lines of religion, caste, economic status etc. into a homogenous society where identification of a person was not on the basis of the religion he professes or caste he belongs to but was on the basis of what he is or what he has made himself into. Making of a nation State involves increasing secularization of society and culture. Secularism operates as a bridge to cross over from tradition to modernity. Thus secularism entails not just religious unity but also caste homogeneity. Indian State opted for this path for universal tolerance due to its historical and cultural background and multi-religious faiths. Secularism in the Indian context bears positive and affirmative emphasis. Religious with secular craving for spiritual tolerance have flourished more and survived for longer period in the human history than those who claimed to live in a non-existent world to their own. Positive secularism, therefore, separates the religious faith personal to man and limited to material, temporal aspects of human life. Positive secularism believes in the basic values of freedom, equality and fellowship. It does not believe in hark back either into country’s history or seeking shelter in its spiritual or cultural identity dehors the man’s need for his full development. It moves mainly around the State and its institution and, therefore, is political in nature.

b.         The State is enjoined to counteract the evils of social forces, maintaining internal peace and to defend the nation. Welfare State under the Constitution is enjoined to provide means for well-being of all its citizens’ essential services and amenities to all its people (and not a class or section). Morality under positive secularism is a pervasive force in favour of human freedom or secular living. Positive secularism gives birth to biological and social nature of the man as a source of morality. True religion must develop into a dynamic force for integration without which the continued existence of human race itself would become uncertain and unreal. Secularism teaches spirit of tolerance, catholicity of outlook, respect for each other’s faith and willingness to abide by rules of self-discipline. This has to be for both-as an individual and as a member of the group. Religion and secularism operate at different planes. Religion is a matter of personal belief and mode of worship and prayer, personal to the individual while secularism operates, as stated earlier, on the temporal aspect of the State activity in dealing with the people professing different religious faiths. The more devoted a person in his religious belief, the greater should be his sense of heart, spirit of tolerance, adherence of secular path. Secularism, therefore, is not antithesis of religious devoutness. Swami Vivekananda and Mahatma Gandhi, though greatest Hindus, their teaching and examples of lives give us the message of the blend of religion and the secularism for the good of all men. True religion does not teach to hate those professing other faiths.

c.         Thus secularist way of life promotes a society where a division on the basis of caste has no place, where ‘birth mark’ is not given any importance. Religion is always an issue of faith which a personal to a person an can be changes on a change of faith but caste sticks as a permanent mark which cannot be altered thus efforts should be to dilute its importance and not to promote it by over classifying on its basis. Bigotry is not religion, nor can narrow minded favoritism be taken to be an index of one’s loyalty to his religion. This cultural heritage in India shaped that people of all religion faiths, living in different faith or beliefs and each religion made its contribution to enrich the composite Indian culture as a happy blend or synthesis. Our religious tolerance received reflections in our constitutional creed.

d.         It is thus submitted that secularism being a basic feature of the Constitution-the action of the constituent power in the form of constitutional amendments to unreasonably benefit a section of the society-based on caste, at the cost and deprivation of other ‘citizens’ of the country does not promote but on the contrary torment the ultimate objective of a peaceful coexistence of all religious and communities-mandatory for the high goal of an egalitarian society.

i.          S.R. Bommai Vs. Union of India, (1994) 3 SCC 1 at page 167.

ii.         M. Ismail Faruqui (Dr.) Vs. Union of India, (1994) 6 SCC 360, at page 403.

(iii)  Freedom and Liberty under the law.

a.         The foundation of Indian political and social democracy, as envisioned in the preamble of the Constitution, rests on justice, equality, liberty, and fraternity in secular and socialist republic in which every individual has equal opportunity to strive towards excellence and of his dignity of person in an integrated egalitarian Bharat. Right to justice and equality and stated liberties which include freedom of expression, belief and movement are the means for excellence. The trinity i.e. liberty, equality and fraternity always blossoms and enlivens the flower of human dignity. One of the gifts of democracy to mankind is the right of personal liberty. Life and personal freedom are the prized jewels under Article 19 conjointly assured by Articles 20(3), 21 and 22 of the constitution ensures freedom of movement. Liberty aims at freedom not only for arbitrary restraint but also to secure such conditions which are essential for the full development of human personality. Liberty is the essential concomitant for other rights without which a man cannot be at his best.

b.         Fundamental rights are the means and the directive principles are essential ends in a welfare state. The evolution of the State from police state to a welfare state is the ultimate measure and accepted standard of democratic society which is an avowed constitutional mandate. Though one of the main functions of the democratic government is to safeguard liberty of the individual, unless its exercise is subject to social control, it becomes anti-social or undermines the security of the State. The Indian democracy wedded to rule of law aims not only to protect the fundamental rights of its citizens but also to establish an egalitarian social order but the social interest must never be overbearing to justify total deprivation of individual liberty.

c.         Liberty cannot stand alone but must be paired with a companion virtue; liberty and morality; liberty and law; liberty and justice; liberty and common good; liberty and responsibility which are concomitants for orderly progress and social stability. Man being a rational individual has to live in harmony with equal rights of others and more differently for the attainment of antithetic desires. This intertwined network is difficult to delineate within defied sphered of conduct within which freedom of action may be confined. Therefore, liberty would not always be an absolute licence but must arm itself within the confines of law. Liberty, therefore, as a social conception is a right to be assured to all members of a society. Unless restraint is accepted by all members of the society, the liberty of some must involve the oppression of others, and excessive liberty and opportunity to some entails complete abrogation of the freedoms and liberties of the others.

d.         The modern social evolution is the growing need to keep individual to be as free as possible, consistent with his correlative obligation to the society. According to Dr. Ambedkar in his closing speech in the constituent Assembly, the principles of liberty, equality and fraternity are not to be treated as separate entities but in a trinity. They form the union or trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality. Equality cannot be divorced from liberty. Nor can equality and liberty be divorced from fraternity. Without equality, liberty would produce supremacy of law. Equality without liberty would kill individual initiative. Without fraternity, liberty and equality would not become a natural course of things. Courts, as sentinel on the qui vive, therefore must strike a balance between the changing needs of the society for peaceful transformation with orders and protection of the rights of the citizen.

i.          Indra Sawhney Vs. Union of India, 1992 Supp (3) SCC 217, at page 435, 619-620.

ii.         Kartar Singh Vs. State of Punjab, (1994) 3 SCC 569, at page 716.

iii.       Dalmia Cement (Bharat) Ltd. Vs. Union of India (1996) 10 SCC 104, at page 117.

(vi)      Justice.

a.         It is submitted that on administer justice according to law, it is enjoined on the Court to do justice and equity between the parties. “Justitia est constans et perpetua voluntas jus suum cuique tribuendi’. Justice is the constant and perpetual wish to render everyone his due. ‘Jurisprudentia est divinarum atque bumanarum rerun notitia, justi atque injusti Scientia.’ Jurisprudence is the knowledge of the things divine is that which right reason commends. Thus the role of the courts in imparting justice is to do right to a person who has suffered a wrong, to punish a person who has inflicted that wrong and in short promote equity and restore status quo. As Max Rumelin said, in the Struggle to Govern Law, ‘Justice is rivaled by equity’. The dilemma that equity is to be better than justice and yet not quite opposed to justice, but rather a kind of justice is a troublesome subject. Gustav Radbruch clarifies the mutual relation between two kinds of justice, namely, commutative and distributive. We may call ‘just’ either the application or observance of law, or that law itself. ‘The former kind of justice, especially the justice of the Judge true to the law’, according to him, ‘might better be called righteousness’. Here ‘we are concerned not with justice which is measured by positive law, but rather with that by which is measured by positive law, but rather with that by which positive law is measured’. Justice in this sense means equality. Aristotle’s doctrine of justice of equality is called by him commutative justice which requires at least two persons while distributive justice requires at least three. Relative equality in treating different persons while granting relief according to need, or reward and punishment according to merit and guilt is the essence of distributive justice. While in commutative justice the two persons confront each other as co-equals, three or more persons are necessary in distributive justice in which one, who imposes burdens upon or grants advantages to the others, is superior to them. ‘Therefore, it presupposes an act of distributive justice which has granted to those concerned, equality of rights, equal capacity to act, equal status.’ According to Radbruch, ‘distributive justice is the prototype of justice. In it we have found the idea of justice, toward which the concept of law must be oriented.’ Law offers and protects the conditions necessary for the life of man and his perfection. In the words of Cardozo, ‘What we are seeking is not merely the justice that one receives when his rights and status are determined by the law as it is; what we are seeking is a justice to which law in its making should conform’. The sense of justice will be stable when it is firmly guided by the ‘pragma’ of objective and subjective interests.

b.         Justice is the earnest and constant will to render every man his due. The precepts of the law are these; to live honourably, to injure no other man, to render to every man his due. Giving a man his due, one of the basics of justice, finds reflected in right to equality. Mediocracy over meritocracy cuts at the roots of justice and hurts right to equality. Protective push or prop, by way of reservation or classification must withstand the test of Article 14. Any overgenerous approach to a section of the beneficiaries, if it has the effect of destroying another’s right to employment, more so, by pushing a mediocre over a meritorious, belies the hope of our founding fathers on which they structured the great document of the Constitution. To deprive a man of merit of his due, even marginally, no rule shall sustain except by the aid of the Constitution, one such situation being when deprivation itself achieves equality subject to satisfying the tests of reason, reasonability and rational nexus with the object underlying deprivation. Therefore the amendments to the constitution to under what Indra Sawhney decided is therefore exfacie unjust and unwarranted. The amendments have been couched in the form of constitutional amendments in order to insulate the violations from judicial scrutiny which cannot be permitted in the present constitutional setup.

i.          Gurbax Singh Vs. Financial Commissioner 1991 Supp (1) SCC 167, at page 178.

ii.         Indra Sawhney Vs. Union of India, 1992 Supp (3) SCC 217, at page 619-620.

iii.       AIIMS Students’ Union Vs. AIIMS 2002 1 SCC 428, at page 460.

(v)       Republicanism.

a.         India is a Democratic Republic. The term ‘Republic’ is rather freely applied to almost all kind of state that has no monarchial headship. It has some system to election to the office of the head of the state. The Historic antithesis of Republic is Monarchy. Equality has been recognized as an essential principle of republicanism wherein law applicable is not a rule of a monarch but a system which has based on a principle of Equality and rule of law.

b.         The first part of Article 14 is a declaration of Equality of civil rights of all person within the territory of Indian. It enshrines the Basic principle of Republicanism[9]. The second part is the corollary to the first is based on the iaai clause of the first section of the fourteenth amendment of the American Constitution, it is a pledge of protection of equal laws, i.e. laws that operate alike on all persons under like circumstances[10]. This article combines the English principle of Rule of Law and the Equal protection clause of the American constitution. Equality is a vital principle of Republican institutions[11]. So the concept of equality which is the basic to the rule of law and that which is regarded as the most fundamental postulate of republicanism are both embodied in Article[12].

c.         It is submitted that any Constitutional amendments impinge in the equality clause of the Indian constitution and thereby undermines its republican character. Reasonable reservations restricted to the level at initial appointments (for a certain period of time) may be permitted temporarily but to exceed and overwhelm the system with reservations as an end in themselves would not only violate the equality clause but also undermine the basic character of the Constitution.

i.          Superintendent and Remembrancer of Legal Affairs Vs. Corpn. of Calcutta (1967) 2 SCR 170.

ii.         Kesavananda Bharati Vs. State of Kerala, (1973) 4 SCC 225, at page 368, 430, 460.

iii.       Paradise Printers Vs. Union Territory of Chandigarh (1988) 1 SCC 440, at page 451.

(vi)      Fraternity and Dignity of Individual

a.         Fraternity or common brotherhood is the essence of our constitutional structure and all state action should be directed towards promoting unity and brotherhood among all. Deprivation of a class of people in order to unjustly benefit another class or section without any reasonable basis for classification rather promotes hatred and causes heart burn. This inturn leads to division and fragmentation of the country thereby destroying the basic structure of the Constitution. Promoting ‘Fraternity’ is vital in the direction of nation building and is in national interest. Individuals as a group should be identified as a nation and individual generally should be identified on the basis of the nation and not in the form of classes or sections, this is possible when there is unity and commonness among all citizens which inturn can be achieved only with Equality.

b.         Inequality ill-favours fraternity, and unity remains a dream without fraternity. The goal enumerated in the Preamble of the Constitution, or fraternity assuring the dignity of the individual and the unity and integrity of the nation must, can therefore, be attained only when equality of opportunity is ensured to all.

c.         It is submitted that Reservations are not an end in itself. These are a means to achieve equality. The policy of reservation adopted to achieve that end must, therefore, be consistent with the objective in view. Reservation must not outlast and exceed its constitutional object, and must not allow a vested interest to develop and perpetuate itself. Achievement and preservation of equality for all classes of people, irrespective of their birth, creed, faith or language is one of the noble ends to which the Constitution is dedicated. Every reservation founded on being discrimination, and justifiably adopted to achieve the constitutional mandate of equality, must necessarily be a transient passage to that end and should be and remain within its judicially defined bounds. Reservation must contain within itself the seeds of its termination. Any attempt to perpetuate reservation and upset the constitutional mandate of equality s destructive of liberty and fraternity and all the basic values enshrined in the Constitution. A balance has to be maintained between the competing values and the rival claims and interests so as to achieve equality, freedom and the ultimate casteless egalitarian society with peace and brotherhood among all.

d.         It is submitted that the People of India have, in exercise of their sovereign will, as expressed in the preamble, adopted the democratic ideal which assure to the citizen the dignity of the individual and other cherished human values as a means to the full evolution and expression of his personality, and in delegating to the legislature, the executive and the judiciary their respective powers in the Constitution, reserved to themselves certain fundamental rights. It is submitted that rights retained by the people are fundamental fetters on the powers of the legislature and the Constituent Power cannot be invoked to abrogate these fetters. Some minor intrusions are permissible (within the four corners as have been laid down in the judicial pronouncements) mainly to achieve wholesome growth and development. The development has to be both economic and social which can be achieved by improving human faculties. This is possible only with equality of opportunity with emphasis on efficiency and merit.

i.          Indra Sawhney Vs. Union of India, 1992 Supp (3) SCC 217, at page 435, 508.

ii.         Raghunathrao Ganpatrao Vs. Union of India, 1994 Supp (1) SCC 191, at page 223.

ii.         Kartar Singh Vs. State of Punjab, (1994) 3 SCC 569, at page 716.

iii.       Dalmia Cement (Bharat) Ltd. Vs. Union of India (1996) 10 SCC 104, at page 116.

Equality is the essence and the sheet anchor of the Rule of Law. If we bid adieu to equality we will be bidding adieu to the Rule of Law, Secularism, Liberty, Unity, Integrity, Fraternity and Dignity of the individual. For example, would it be constitutional if it were provided that every backward person, SC or ST will have ten votes instead of one given to general category. Examples can be multiplied to demonstrate what would happen to the Basic structure of the Constitution without Equality.

Judicial Independence, Impartiality and judicial decision-making, free from any affection or ill will, is an integral part of the jurisprudence of Equality, Secularism and Rule of Law which are inseparable. It is well established that the Parliament has no power to overrule or override the decision of the Supreme Court. At present there is effort on the part of all political parties in parliament to overdo what Indra Shawney decided.

The oaths prescribed for holders of important public offices are based on the mandatory precept of equality and deserves to be particularly referred to.

There is centrality of Equality and wholeness in the concept of ‘We the People….’, which means – We the entire people of India and not merely sections and segments of we the people of India. The concept of ‘Sovereign Democratic Republic’ subsumes fundamentals such as Equality, liberty, Freedom, Unity and Integrity of the Nation and Fraternity that follow in the Preamble. India as a Sovereign Democratic Republic is undoubtedly a fundamental feature of the Constitution and any tinkering would destroy the balance and the basic structure.

The concept of Republican India inheres in the juridical factum of power vested and derived from ‘We the People….’. Equity is an essential element of a republic and does not contemplate giving more power or benefits to a section/class of the people. India is basically and in terms of the Basic Structure a ‘Sovereign Democratic Republic’ and it cannot have a constitutional system or polity denuded of Democracy, Equality and Republican character. The Judiciary, as the custodian que vive has the constitutional obligation to umpire the process and see that the scales are not tilted so radically and violently as to destroy the whole basic structure.

Article 16(4) provides an exception to the rule of Equality and as Dr. Ambedkar put it in the Constituent Assembly, the exception cannot be allowed to eat up the rule. It is submitted that excessive reservation in Article 16(4) or extension of reservation to promotions as well (under the impugned Article 16(4A) – is designed to abrogate the rule of equality of opportunity to all.

The author is a Senior Advocate, Supreme Court of India


[1] 1952 SCR 90

[2] 1967 AIR SC 1643, 1967 SCR (2) 762

[3] 1972 (4) SCC 225

[4] 342 US 98

[5] (1770) 4 Burr 2528, 2539

[6] Srilekha Vidyarthi Vs. State of U.P. (1991) 1 SCC 212.

[7] (1973) Supp SCR 1

[8] Schwartz: The Powers of Government, Vol 1 P.23.

[9] State of W.B. Vs. Anwar Ali Sarkar, 1952 SCR 284, 293, 313.

[10] In re Special Courts bill: (1979) 1 SCC 380

[11] American Jurisprudence Vol-16 2d p.731 Article 391

[12] Indira Nehru Gandhi Vs. Raj Narain, 1975 Supp SCC 1, at page 137, 256

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