Page 63 - Constitution
P. 63
70 Years of Indian
Constitution
Who determines the “basic structure”? While A market-based economy operates on the basis of
Courts have set out some principles, that property rights. But the right to property is no longer a
determination will be made by Supreme Court on a fundamental right. The Preamble to the Constitution now
case to case basis. That is the upshot of the Indira uses the word “socialist”. Let’s leave aside legal subtleties
Nehru Gandhi versus Raj Narain (1975) and Minerva and nuances of different judgements about whether the
Preamble is technically a part of the Constitution or not.
Mills versus Union of India (1980) judgements Regardless of the technical answer, the Preamble shapes
Constitutional bench of Supreme Court and there wasn’t judgements. This is B. R. Ambedkar, participating in the
unanimity. Indeed, with a margin of 7-6, the decision was Constituent Assembly debates on 15th November 1948.
wafer thin. It could have very easily have gone the other He was opposing an amendment that sought to introduce
way. One judge decided the living document trait of the the word socialist in the Preamble. “What should be the
Constitution would be taken away in perpetuity, even if “We policy of the State, how the Society should be organized
the People”, through Parliament, decide otherwise. Second, in its social and economic side are matters which must be
in the past (despite the 1967 Golaknath versus State of decided by the people themselves according to time and
Punjab case), Supreme Court hadn’t said anything about circumstances. It cannot be laid down in the Constitution
the basic structure remaining intact. Third, mid-1970s was itself, because that is destroying democracy altogether. If
special, Emergency was soon to follow. In other words, you state in the Constitution that the social organization
that wafer-thin majority was influenced by subjectivity, of the State shall take a particular form, you are, in my
coloured by circumstances and the time period. Fourth, judgement, taking away the liberty of the people to decide
who determines the “basic structure”? While Courts have what should be the social organization in which they wish
set out some principles, that determination will be made by to live. It is perfectly possible today, for the majority people
Supreme Court on a case to case basis. That is the upshot to hold that the socialist organization of society is better
of the Indira Nehru Gandhi versus Raj Narain (1975) and than the capitalist organization of society. But it would
Minerva Mills versus Union of India (1980) judgements. be perfectly possible for thinking people to devise some
Most people will agree the amendments listed above have other form of social organization which might be better
altered the basic structure, but Courts will agree they are than the socialist organization of today or of tomorrow.
in conformity with the “basic structure”. Fifth, as should Therefore, why the Constitution should tie down the people
be obvious, despite those principles, in all probability, to live in a particular form and not leave it to the people
judges will be subjective about what is breach of the basic themselves to decide it for themselves. This is one reason
structure. why the amendment should be opposed.” This too was an
70 Years of Indian Constitution 63
