(a) Keshavananda illustrates judicial creativity and the policy-making role of the Supreme Court of a very high order and could be regarded to be an improvement over the formulation in Golaknath. Examine with the help of relevant arguments. (20 marks

Question

(a) Keshavananda illustrates judicial creativity and the policy-making role of the Supreme Court of a very high order and could be regarded to be an improvement over the formulation in Golaknath. Examine with the help of relevant arguments. (20 marks)

(b) 'Constitutional governance' is a system where government authority is limited, defined and structured by a supreme written or unwritten constitution. Analyze with special reference to the Sixth Schedule of the Indian Constitution. (15 marks)

(c) “The concept of ‘natural justice’ is of variable content and imposes variable procedural norms from case to case.” Explain. (15 marks)

UPSC Answer Check · Accepted Answer

(a) Kesavananda as an Improvement over Golaknath

Keshavananda Bharati v. State of Kerala (1973) represents a significant doctrinal and policy improvement over I.C. Golaknath v. State of Punjab (1967). Earlier, Shankari Prasad (1951) and Sajjan Singh (1965) had held that an amendment under Article 368 is not "law" under Article 13, though in Sajjan Singh Hidayatullah and Mudholkar JJ. doubted this, Mudholkar J. speaking of "basic features". In Golaknath, a Bench of 11 Judges (6:5) held that a constitutional amendment is a "law" under Article 13(2) and thus cannot abrogate Fundamental Rights; it located the amending power in the residuary power (Article 248 and Entry 97 of List I), treating Article 368 as merely procedural. However, it adopted the "prospective overruling" doctrine, leaving the validity of past amendments (like the 1st, 4th, and 17th) untouched. This created a constitutional anomaly where the validity of amendments depended on their date of enactment.

Parliament responded with the 24th, 25th and 29th Amendments. Kesavananda Bharati (13 Judges, 7:6, decided on 24 April 1973) corrected this by holding that Parliament possesses the power to amend any part of the Constitution, including Fundamental Rights, but this power is subject to the "Basic Structure" doctrine. It upheld the 24th Amendment (which had declared that the amending power is not a "law" under Article 13) but struck down the second limb of Article 31C (inserted by the 25th Amendment), which had purported to place all laws implementing Directive Principles beyond judicial review.

The "improvement" lies in the balance it struck: it preserved the supremacy of the Constitution by defining an unamendable core (Basic Structure) while allowing the legislature the flexibility to amend the rest. This "judicial creativity" was vindicated in Minerva Mills (1980), where the Court struck down clauses (4) and (5) of Article 368 (inserted by the 42nd Amendment) which had attempted to negate the Court's power to review amendments. The doctrine has since been applied in I.R. Coelho (2007) and the NJAC case (2015), establishing a robust check on constituent power; Waman Rao (1981) fixed 24 April 1973 as the cut-off date for its application to Ninth Schedule laws.

The creativity is also open to criticism. Drawing on Dietrich Conrad's argument about implied limits on the amending power and the example of Article 79(3) of the German Basic Law, the Court read in a limit that has no textual basis. Its content remains indeterminate and is decided case by case, and critics raise the counter-majoritarian objection that unelected judges fix the limits of constituent power. On balance, however, Kesavananda is an improvement: unlike Golaknath, it does not freeze Fundamental Rights and allows social-reform amendments, while protecting only the Constitution's core identity.

(b) Constitutional Governance and the Sixth Schedule

Constitutional governance is a system where government authority is limited, defined, and structured by a supreme constitution. The Sixth Schedule of the Indian Constitution is a prime example of this, providing for "Asymmetric Federalism" through Autonomous District Councils (ADCs) and Regional Councils in Assam, Meghalaya, Tripura, and Mizoram.

The authority of these Councils is "defined" and "limited" by the Schedule. Under Paragraph 3, their legislative competence is restricted to specific subjects such as land, forest (other than reserved forest), jhum cultivation, inheritance, and social customs. Crucially, any law passed by a Council requires the assent of the Governor (Paragraph 3(3)), which acts as a constitutional check on their autonomy.

The Schedule also structures their judicial and executive powers. Paragraphs 4 and 5 allow for the constitution of village courts and the conferment of civil/criminal powers, but with appeals lying to the District Council or High Court. Financially, their authority is structured through the District Fund (Paragraph 7) and the power to levy specific taxes and collect land revenue (Paragraph 8). Furthermore, Paragraph 16 provides for the dissolution of a Council by the Governor on the recommendation of a Commission appointed under Paragraph 14, or for the Governor to assume its functions where the administration of the district cannot be carried on in accordance with the Schedule. Paragraph 2 fixes the composition (normally not more than 30 members, of whom up to 4 are nominated by the Governor and the rest elected by adult suffrage), Paragraph 9 gives the Councils a share of mineral royalties, and Paragraphs 12A, 12AA and 12B make State law prevail over a repugnant Council law in Meghalaya, Tripura and Mizoram. The scheme flows from Article 244(2), with grants under Article 275(1), and differs from the Fifth Schedule (Article 244(1)), under which Tribes Advisory Councils only advise and the Governor directly adapts laws, and from the special provisions for Nagaland and Mizoram (Articles 371A and 371G). Thus, the Sixth Schedule creates a tier of governance that is autonomous yet strictly bounded by constitutional limits.

(c) Variable Content of Natural Justice

The concept of 'natural justice' is not a rigid code but a flexible principle of variable content. It is founded on two core rules: nemo judex in causa sua (no one should be a judge in their own cause) and audi alteram partem (hear the other side). As articulated by Tucker L.J. in Russell v. Duke of Norfolk [1949], the requirements of natural justice depend on the circumstances of the case, the nature of the inquiry and the rules under which the tribunal acts.

The "variable content" of these rules is demonstrated by how they adapt to the statutory framework and the nature of the inquiry. For instance, in A.K. Kraipak v. Union of India (1969), the Court held that the rules of natural justice apply to administrative inquiries as well, that the line between administrative and quasi-judicial power is thin, and that what the rules require depends on the facts and the statutory framework; a selection board member who was himself a candidate created a real likelihood of bias. Conversely, in Union of India v. Tulsiram Patel (1985), the Court held that the audi alteram partem rule can be excluded by an express constitutional or statutory provision or by necessary implication, as the second proviso to Article 311(2) does. In Bihar School Examination Board v. Subhas Chandra Sinha (1970), no individual hearing was needed before cancelling an examination marred by mass copying, and the doctrine of necessity allows even an interested adjudicator to act where no one else can.

Similarly, the audi alteram partem rule varies in its procedural requirements. In Swadeshi Cotton Mills v. Union of India (1981), the Court held that a pre-decisional hearing is the rule and a "post-decisional hearing" an exception permissible in urgent cases, as Maneka Gandhi (1978) had accepted for passport impounding. In ECIL v. B. Karunakar (1993), the inquiry report had to be supplied to the delinquent employee, but relief depended on showing prejudice. The requirement to give reasons also varies; while Siemens Engineering (1976) made it mandatory for quasi-judicial authorities, Kranti Associates (2010) extended it to administrative actions affecting rights. Thus, the "procedural norms" imposed by natural justice are not fixed but are determined by the context, the subject matter, and the consequences of the administrative action.

(a) Keshavananda illustrates judicial creativity and the policy-making role of the Supreme Court of a very high order and could…

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(a) Kesavananda as an Improvement over Golaknath

(b) Constitutional Governance and the Sixth Schedule

(c) Variable Content of Natural Justice

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