RESHAPING THE CONSTITUTION

By N. A. Palkhivala

Summary

Written in the heart of the Emergency, this Forum of Free Enterprise pamphlet reprints N. A. Palkhivala’s polemic against the Swaran Singh Committee’s report on constitutional amendments. Palkhivala concedes a handful of innocuous proposals — moving agriculture and education to the Concurrent List, allowing localised Emergency proclamations, setting up service tribunals — but argues that the Committee’s central thrust would in reality alter the basic structure of the Constitution. He frames the moment as a civic emergency in itself, warning a complacent public that the proposals are debated less than the monsoon or the price of onions, and that posterity will ask where citizens were when their freedoms were put up for discussion.

The core of the tract is a constitutional-law argument against the proposed amendment of Article 368, which would put parliamentary amendments beyond the reach of any court. Drawing on the Kesavananda Bharati decision, Palkhivala lays out six interlocking reasons why Parliament’s amending power is inherently limited: ultimate sovereignty rests with the people; Parliament is a creature of the Constitution; a delegated power cannot destroy other powers or itself; an unlimited amending power could be used to make all future amendments impossible; the historical bargain that secured minority assent to the Constitution rested on guaranteed Fundamental Rights; and Article 60’s presidential oath to “preserve, protect and defend the Constitution” would be incoherent if Parliament could destroy its basic structure.

He then dismantles three further sets of proposals. The substitution of “Sovereign Democratic Secular Socialist Republic” for the existing Preamble formula he treats as cosmetically unnecessary and substantively dangerous, quoting Solzhenitsyn on the emptiness of the phrase “socialist democracy” and recalling that the Constituent Assembly itself rejected inserting “Socialist.” The proposed expansion of Article 31C — immunising any law claiming to pursue Directive Principles from Fundamental Rights challenge — would, he argues, leave only “the corpse of the Fundamental Rights” embalmed in the text. Finally, curtailing the writ jurisdiction of the Supreme Court and High Courts under Articles 32 and 226, and requiring super-majorities of judges to strike down a law, would devalue the High Courts, subordinate the judiciary to the executive, and enforce against citizens laws that a majority of judges have already held unconstitutional.

Palkhivala closes with Lord Acton on the choice every democracy faces between the authority of law and the will of force, and reminds readers that the people of India made their choice in 1949 — and are now being asked, twenty-seven years later, to make the other one. The pamphlet is a courtesy reprint from The Illustrated Weekly of India of 4 July 1976.

Key points

• Palkhivala accepts a few Swaran Singh Committee proposals as benign — moving agriculture and education to the Concurrent List, localised Emergency proclamations under Article 352, and administrative service tribunals — but treats the bulk of the report as an attack on the Constitution’s basic structure.

• He invokes the Supreme Court’s ruling in Kesavananda Bharati to argue that Parliament’s amending power is inherently bounded and cannot be used to destroy the Constitution’s basic features, and that the proposal to make Article 368 amendments non-justiciable is itself unconstitutional.

• A six-point first-principles argument: sovereignty rests with the people, Parliament is a creature of the Constitution, delegated power cannot destroy other powers or itself, the President’s Article 60 oath to preserve the Constitution presupposes limited amending power, and the Constitution’s minority-protection bargain depends on Fundamental Rights being inalienable.

• Inserting “Secular” and “Socialist” into the Preamble is dismissed as cosmetic and dangerous; “socialism” is ambiguous, the Constituent Assembly already rejected the word, and the Preamble in any case cannot be amended under Article 368.

• Expanding Article 31C to shield any law claiming to advance Directive Principles from Fundamental Rights challenge would leave Fundamental Rights — including life, liberty, free expression, assembly, association, movement, and equality before the law — virtually abrogated.

• Stripping the Supreme Court’s Article 32 jurisdiction and the High Courts’ Article 226 jurisdiction, requiring prior notice before interim stays, and devaluing High Court review of central laws would relegate the judiciary to the background and leave citizens — especially poor citizens — without effective legal redress.

• The proposed two-thirds-of-the-Bench rule for striking down laws is shown to violate arithmetic and the rule of law: it means that laws already held unconstitutional by a majority of judges would still be enforced by the executive.

• Closing frame: the Acton dictum on law versus arbitrary power, and the rhetorical contrast between the choice India made in 1949 and the opposite choice it is now being invited to make.

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