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| Justice JR Mudholkar |
The seed of this hallowed principle were sown by Justice JR Mudholkar in Sajjan Singh Vs State of Rajasthan AIR 1965 SC 845 (the Sajjan-Singh case). Though he had dismissed the challenge, but observed that:
- The decision of Shankari Prasad Singh v. Union of India AIR 1951 SC 458 (the Shankari-Prasad case) may not be the last word for the reasons mentioned by Justice Hidayatullah and for some other reasons (para 51);
- Changing the basic features of the Constitution may be rewriting a part of the Constitution and may not be within the purview of Article 368 (para 58);
- The members' oath to the allegiance to the Constitution may be harmonised by excluding the power to amend the basic features of the Constitution (paras 59 & 60).
But what inspired these observations; how the principle of basic structure got seeded? Before I talk about it - some words about Justice Alvin Robert Cornelius and the decision reported in Fazlul Quader Chowdhry Vs Muhammad Abdul Haque PLD 1963 Supreme Court 486 (the Fazlul-Quader case).
Brief Sketch – Justice Cornelius
Justice Cornelius, the 4th Chief Justice of Pakistan was the most famous and influential figures ever to adorn the robes of a judge in Pakistan. His forefathers were Hindu Naikor landholders, who rendered military service to Madras East India Company. One of them, grandfather of Justice Cornelius, settled in Central Province and became Christian, adopting Cornelius as the name. His mother Tara D’Rozario’s family was Christian converts from Hinduism. His father Israel Jacob Cornelius was a professor of mathematics at Holkar college, Indore though he was born in Agra on 8th May 1903.
Justice Cornelius did his schooling from St. John’s College, Agra and his higher studies from Allahabad University. He graduated in science not only standing first but winning all awards as well. At that time, science topper in the Allahabad University used to get scholarship to study in England. He also got scholarship and took admission in the Cambridge University, where he attended Selwyn College.
It is not clear whether he went to England immediately after his graduation or after obtaining his law degree as well but he did obtain some degree in law (either graduation or masters) from Selwyn College.
It is also not clear when he was a student in the Allahabad University. He could have done graduation in science from 1921-23 and then joined Selwyn for his law degree or could be in Allahabad University from 1920 to 1924 finishing his graduation in science and law. Thereafter joining Selwyn College for his masters in law. But one thing is certain that he qualified for Indian Civil services (ICS) in 1926.
In 1930, he was appointed on judicial branch of the ICS. He served on different posts becoming Legal Remembrancer of Government of Punjab in 1943. Then was elevated to the Bench of Lahore High Court in 1946.
He was one of the notable Christian figures in the Pakistan Movement and was close to Mohammad Ali Jinnah having faith in his vision. After independence, he opted for Pakistan.
He sowed the seed of cricket in Pakistan. When the West Indies were touring India in 1948, he formed a cricket board in Pakistan and invited them. They were the first international cricket team to play in Pakistan.
He was one of the three original Vice Presidents (1948-53) of Board of Cricket Control of Pakistan and later became Chairman of the Working Committee and then was made Chairman of the first Ad Hoc Committee, created to run cricket in Pakistan.
His greatest achievement in cricket was to found the Pakistan Eaglets, an informal club of promising young Pakistani cricketers in 1951-52, which made tours of England for training and gaining experience.
He was appointed as an associate judge of the Federal Court (later named Supreme Court) of Pakistan in November 1951 and was confirmed in 1953. He was appointed as its Chief Justice on 13th May 1960 and remained there till his retirement.
He was to retire on 7th May but took early retirement on 29th February 1968. He wanted to give his sucessor more time as Chief Justice - a great sense of sensitivity and magnanimity on his part. He died at the age of 88 on 21st December 1991 at Lahore.
The Fazlul-Quader Case
The second constitution of Pakistan came into force on 8th June 1962 (the 1962 Constitution). Sub-Article 3 of Article 224 of the same, empowered the President to modify it for the purpose of removing difficulties. In pursuance of this power, the President of Pakistan promulgated Order No. 34 of 1962 (the 1962 Order). Among the others, it modified Articles 25 and 224 -
- Providing right to speak and participate to a Central Minister in the National Assembly, even if he was not a member of the same (Article 25); and
- Putting validity of the order beyond purview of courts by adding Sub-Article (4) in Article 224.
The three appellants in the Fazlul-Quader Case were members of the National Assembly. They were reluctant to become Central Ministers as they would lose their membership, right to speak and participate in the National Assembly under Article 25. However, because of the 1962 order, they could speak and participate in the National Assembly. They accepted the central ministership. Their appointment and validity of the 1962 Order was challenged in the High Court of East Pakistan at Dacca.
The High Court allowed the writ petition and set aside the 1962 Order and appointment of the three ministers. They came up in appeal to the Pakistan Supreme Court.
The Supreme Court unanimously dismissed the appeal. Justice Cornelius wrote the leading judgement. Relying upon 'Cooley's Constitution Limitations' and opinion in Special Reference No. 1 of 1957 PLD 1957 S C (Pak.) 219, the court held that:
- The provisions could not be so altered as to change the very nature of the Constitution;
- Neither the amendments were within the scope Article 224 (3), nor the courts were debarred from entertaining the challenge to the validity of the 1962 Order.
Basic Structure Theory - At Present
The observations of Justice Cornelius in the Fazlul-Quader case were relied upon by Justice Mudholkar in the Sajjan-Singh case, to sow the seed of basic structure doctrine. His observations were inspiration for the same - a great contribution to our constitution from across the border.
The basic structure principle also flourishes in the nation that inspired it – though in varied form. A seventeen judge bench of Pakistan Supreme court in District Bar Association, Rawalpindi Vs Federation of Pakistan PLD 2015 SC 401 by majority of thirteen to four held that:
- There are limitations on the powers of the Parliament to amend the Constitution
- The Court has power to strike down an unconstitutional amendment.
- Eight of the thirteen judges found this limitation regarding ‘Salient Features’ rather than 'Basic Structure' of the Constitution.
- The remaining five judges of the majority dismissed the ‘Salient Features’ doctrine but held that the Constitution as a whole provided implied limits on the amending power.
Nevertheless, all constitutional amendments were upheld by the majority:
- Twelve judges including four that had said that there was no limitation and eight others, who had held that there are some limitations upheld the amendments.
- Five others not held that that there are limitation to amending power and also invalidated some of the amendments.
This case is reminiscent of Marbury Vs Madison 5 US 137 (1803), where US Supreme Court assumed power to invalidate a law if it contravened the Constitution but decided the case in favour of the Government.
Bangladesh has also accepted the basic structure doctrine - starting with Anwar Hossain Chowdhury v. Bangladesh (Special Issue) 1989 BLD, 1: 41 DLR (AD) 165 and continuing with the latest decision reported in Bangladesh v Asaduzzaman Siddiqui (2017) CLR (AD) (Spl) 1: 2017 SCC OnLine Bang SC (App) 5.
Conclusion - A Caveat
In our country, Basic Structure theory is firmly established but our judiciary should wary itself of the doctrine: it is in the hand of those, who are -
- Neither elected by the people, nor answerable to anyone except to their own conscience; and
- Part of self perpetuating system by appointing themselves (Collegium system).
Over-confidence and chances of going astray can not be ignored.
I am thankful to Shri Hussain Raza, a young advocate from Pakistan, for helping me in writing this article.
#AlvinRobertCornelius #BasicStructurePrinciple #BasicStructureDoctrine #BasicStructureTheory #KeshvananadBhartiCase #FazlulQuaderCase #PakistanConstitution #BangladeshConstitution
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