Perspectives

The Constitution and Supreme Court

The Indian Constitution, true to its commitment to the federal imperative, includes the important provision that any amendment which may affect rights granted by the Constitution to the federated states can be made only with the consent of the majority of the constituents, obtained by methods prescribed by the Constitution. Despite such clarity, some important aspects of the Indian Constitution have been misunderstood from time to time; the misunderstanding has occurred at the highest levels of government and the judiciary. These institutions moreover, have underestimated the part public opinion can play in acting as a proper guardian of the Constitution.
PRAN CHOPRA
of some hundreds of members, not a single person drawn from one or another of the innumerable pieces of the Indian mosaic, can be a faithful reflection of the hundreds of millions of very diverse Indians; and it could not be anything but federal if the numerous political entities which existed before independence were to become active and equal partners in the same power system across the whole country. Such a system, however, must maintain a balance between all the stakeholders which constitute it, and India has a very great many of them. If any stakeholder steps out of the place which the system has allotted to it the transgression can trigger a collapse. That is why those who set up the system wrote out one of the most detailed constitutions in the world, and one which has done several things most painstakingly. First, it has defined the functions and powers of each component of the federal government, and at each layer, that is at the level of the federal centre, the federating states, and since 1993 at the local level also, whether in rural or urban India. Second, it has set up mechanisms for resolving all kinds of disputes that could be foreseen. Third, it has laid down mechanisms for dealing with unforeseen disputes. Fourth, it has prescribed very clear processes by which, and the limits within which, the Constitution can be amended in the light of the countrys experience and evolving needs. Fifth, in prescribing the amending processes it has reaffirmed the federal imperative. Sixth, it has empowered the most authoritative interpreter of the Constitution, namely, the Supreme Court, to resolve, in the light of the Constitution, any dispute between components of the federal system, or between a component and a citizen. For this reason it is all the more unfortunate that the most intricate systemic problem, which was the least foreseen and therefore also the least provided against, has arisen at the level of the court itself. The Supreme Court has three main areas of work. If any matter before it relates to laws it measures the matter against the text of the law and its own previous judgments; or against what, in accordance with the established principles of interpretation, the law and the precedents can be interpreted to have said. Second, if the matter relates to the constitutionality of a law passed by parliament in its legislative role the court measures it against what the text of the Constitution says or, subject to the same qualification, can be interpreted to have said. The same applies, third, and again with the same qualification, to a matter relating to constitutionality of a constitutional amendment made by parliament meeting in its constituent mode, which is the only body authorised by the Constitution to amend the Constitution. The court measures the matter against the existing text of the Constitution or its legitimate interpretation. This makes the Constitution the founding document and preserver of the federal system of India. No document, institution or authority is superior to it. Rightly then, the best known authority on the Constitution and best known as its author, B R Ambedkar, gave a much needed early warning against what may befall the country if the Constitution were violated or bypassed by anyone. Speaking in the constituent assembly on September 17, 1949, he said In fact the purpose of the Constitution is not merely to create the organs of the state but to limit their authority, because if no limitation was imposed upon the authority of the organs, there will be complete tyranny and complete oppression. The legislature would be free to make any law, the executive free to take any decision, and the Supreme Court free to give any interpretation of the law. It would be result in utter chaos.1

f all forms of government, the federal parliamentary form is the most complex. A monarchy is the simplest. It has to manage only the throne. The unitary presidential form comes next. It puts the whole country under one authority and frees it from the hazards of daily accountability to parliament. Parliamentary democracy wallows in these hazards but if it is unitary it ensures uniform command over the whole country. More complex is a presidential federation because it divides the domain both vertically and horizontally. To this complexity a parliamentary federation adds the burdens of daily accountability. But the form with most nightmares is one which is both parliamentary and federal, and in a country which is large in size, has a conspicuously diverse society and polity, is a vigorous democracy and has a party system which mirrors the diversity. In brief, if it is India. Hence the nightmares for those who govern this country. Why did Indias leaders choose this most difficult form? The answer is their faith in the values of this system, and their confidence that Indians could manage it. Independent India is a product of the most massive freedom movement the world has seen. Hence it could not but be a mass democracy based on universal adult franchise; nor anything but parliamentary because only a political apex consisting

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These are among the wisest words of a very wise man. But read in the context of some recent events, they also have an ironic twist in them. The Supreme Court has used its powers very wisely to keep the legislature from making any law and the executive from taking any decision. But it has not restrained itself from giving any interpretation. The emerging consequence is that the two main lieutenants of the Constitution, parliament and the Supreme Court, are fighting each other for the possession of its body and soul. This irony is the theme of the present writing.

Two Roots of the Irony

Federations are either formed when some states decide to come together for whatever reason, or when the components of a state opt for decentralisation, whether for more efficient governance or greater selfgovernance for the components. Either way a federation is founded on some general or specific terms, which then go into its Constitution. It also prescribes whether, when, how, how far, and by whom the terms may be amended. It also provides some form of an apex court for detecting, preventing or annulling any departure from the Constitution by any component of the federation. True to its commitment to the federal imperative, the Indian Constitution has added the important provision that any amendment which may affect the rights given by the Constitution to the federated states can be made only with the consent of the majority of the constituents, obtained by methods and to the extent prescribed by the Constitution. But considering the importance and clarity of the Constitution, two things are ironic. First, that some important aspects of the Constitution, such as the source of its own authority and the authority of such key constitutional institutions as parliament and the Supreme Court, have been misunderstood from time to time; and second that they have been misunderstood at such high levels as parliament, the president, the prime minister, and the Supreme Court itself. Some of them have also underestimated the part public opinion can play in making desirable changes in the Constitution or preventing undesirable ones, that is in acting as a guardian of the Constitution. But We the people had barely completed the act of giving ourselves this Constitution, which they did on January 26, 1950, when some enthusiastic MPs

began to describe the Indian parliament as sovereign, which it is not. They were misled by the example of the British institution which bears the same name. In Britain the Constitution on a given day is what the British parliament says it is, while in India any matter relating to the Constitution can be decided only in the light of the Constitution, which is not only a written Constitution but is also among the longest and most detailed, and it is the ultimate repository of the sovereignty of India. On the other hand president Rajendra Prasad made the contrasting mistake of reading too much into individual lines of the text and overlooking the structure of the Constitution when it came to deciding the source and limits of certain apparently discretionary powers of the president. But a more curious mistake was made by Pandit Nehru on September 10, 1949, in the constituent assembly. Presumably thinking of the Lok Sabha and the Rajya Sabha as the first and second chambers, he said No Supreme Court and no judiciary will sit in judgment over the sovereign will of Parliament. Ultimately, the whole Constitution is a creature of Parliament.2 There are two mistakes in this short passage from Nehru. Our parliament is not sovereign; only the Constitution is. Second, the Constitution is not and never was a creature of parliament. It was created by the constituent assembly, and when the latter was dissolved on completing its work the Constitution was not entrusted to parliament as such but exclusively to parliament meeting in exercise of its constituent power, the term specifically used in the Constitution for such functions of parliament as may relate to the Constitution.3 But a directly opposite view has been thrown into the ring by the Supreme Court. As the result of perhaps the most convoluted course it has taken in a constitutional matter, the court in effect came to the position in 1973, as a result of the Keshavanand case, that it has an undefined, undefinable, and therefore inexhaustible power to annul any amendment to the Constitution which the court thinks to be averse to whatever the court may consider to be a basic feature of the Constitution. The court has stuck to this novel device ever since, and it has come to be known as the doctrine of basic features. These two positions, the Constitutions and the doctrines, can create a direct clash between the Constitution and the Supreme Court at three different levels. First, between the court and clause (1) of

Article 368 of the Constitution; second, between the court and one part of clause (2) of the same article; and third, which can subject the president to an untenable constitutional position, between the court and another part of the same clause. In addition, a very complex controversy has been created over the dividing line between interpretation of the Constitution and the interpolation of a new clause in it or the subtraction of one from it.

The Federal Imperative

Article 368 of the Constitution clearly confers well defined but in effect extensive powers on the constituent mode of parliament in the matter of making amendments to the Constitution. They can be made only according to a prescribed procedure. But the procedure excludes nothing from the scope of such amending power. It only prescribes certain margins of majority support which an amendment must have before it may be incorporated into the Constitution. A collision between that power and the doctrine can result in a constitutional crash. The scope for the collision is as extensive as the Constitution is on one side and on the other side the undefined and unlimited doctrine. It can also be a very sharp crisis because of the unusually mandatory language of Article 368 on the one hand and on the other hand the open ended view the Supreme Court seems to have taken regarding where interpretation of the Constitution ends and interpolation of clauses into it begins. Clause 1 of Article 368 says notwithstanding anything in this Constitution, parliament may, in exercise of its constituent power amend any provision of this Constitution in accordance with the procedure laid down in this Constitution, and while saying so the clause gives a very wide interpretation to the word amend. Clause 2 of Article 368 says that an amendment to this Constitution may be initiated only by the introduction of a bill for the purpose in either house of parliament. On the other hand the Supreme Courts position is that under its doctrine it can strike down any amendment which affects any feature of the Constitution which the court may consider to be basic. The court has illustratively listed some features as basic, but the list has gone on growing over the years and the features already listed not only relate directly to a large number of provisions of the Constitution but can be related to many more indirectly through the courts power of interpretation.4 The court has not only left

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the power of interpretation free of any limitations; its doctrine in fact rests upon the assumption that there are no limits. If there were any there would be no place and no need for a separate doctrine because any amendment which, within the settled limits of interpretation, could be held to be in violation of the text or meaning of any provision of the Constitution could be struck down in any case as ultra vires. Several proposed amendments have in fact been struck down that way.5 But if in spite of this power which it already has the court has taken the trouble of inventing the doctrine, it is reasonable to ask why is it searching for extra-constitutional weapons against the constitutionally valid power of amendment Article 368 has given to the constituent role of parliament. Justice Chandrachud has given one reason, with which Granville Austin appears to agree. In the Election Case Justice Chandrachud suggested that instead having to test the vires of every amendment in every individual case, it would be nice to have an open ended check list of basic features handy, so that the court may quickly consult it as a dictionary and throw the offending amendment out.6 That would eliminate the labour of arguing the matter out in every case on the basis of the text of the Constitution. But while it may be convenient to have such labour-saving devices, preservation of the sanctity of the Constitution is too serious a matter for cutting corners on it. Besides, specific details of every individual case can tell a different story, as a conscientious judge like Justice Khanna showed in dealing with the same matter, fundamental rights.7 The doctrine also allows the court to insert something into the Constitution through the art of interpolation, sometimes in the name of what is good for the people without anyone having to go through the toil of either finding out whether the people want it or the greater toil of having to persuade people that they should want it. The consent of a dozen men in black robes and wigs is all that is needed under the doctrine, which by-passes the constitutional stipulation in Article 368 that an amendment may be initiated only through a bill introduced in either house.8 But the language of Article 368 becomes even more mandatory when it comes to defining the role of the president in the making of an amendment. Clause 2 of the Article says that when a Constitution amendment bill has been passed by parliament in compliance with the procedure laid down in Article 368, it shall be

presented to the president who shall give his assent to the bill, and thereupon the Constitution shall stand amended in accordance with the terms of the bill. What happens then if, after its adoption by parliament the bill runs into the doctrine? What survives the collision, the bill or the doctrine, and what happens to the assent given to the bill by the president? Is he left holding his letter of assent which bears his signatures but is a dead letter? The provisos to clause 2 prescribe certain qualifications which the bill must satisfy before it can be sent to the president for signatures.9 The purpose of the provisos is to ensure the fulfilment of the federal imperative that the powers and privileges which the Constitution may have assured to the federated states at the time of their joining the federation may not be watered down without the consent of at least half of them. That is why the article requires that the amending bill must be approved by the legislatures of not less than half the states. There is further fulfilment of the federal imperative in the requirement that the bill must be passed not by just a simple majority but by two-thirds majorities by each of the two houses of parliament, because these houses are substantially representative of the peoples and legislatures of the federated states, as is indeed the president too whose assent is also required.10 Because of this it would be anomalous if a bill approved by two of the three most important institutions of the Constitution, the president and parliament, which are also the most federal in their character, were to be struck down by the third, the Supreme Court, which is the least federal; and struck down in the name of a doctrine in the making of which no part has been played by the Constitution, or by the president, or by parliament or by the states.

Decline of Parliament
Since the dissolution of the constituent assembly, the constituent role of parliament, which is much less familiar to the people than its legislative role, has often been confused with the latter. At the same time the legislative role has been hugely defamed by the disorder which marks or mars its deliberations. The combination of these two phenomena has lowered the status of the constituent role in public esteem, which is the best fortification that a political institution can have for its authority. In contrast the Supreme Court has grown in public stature despite its

numerous ills because the ills are much less in the public eye than the daily rioting in parliament. The consequence has been that of late the effective legislative and political power of parliament has been declining, and the judicial power of the Supreme Court has developed political dimensions as well. Some 40 years ago the Supreme Court began to take the supreme part of its name more seriously, and thus began what to the outside world looked, understandably, more and more like a turf war between the court on the one hand and on the other hand the legislative role of parliament to begin with and the then the constituent role as well.11 But more recently the Supreme Court has also taken on the Constitution itself. The change is clearly reflected in the opinions which have lately been expressed, among others, by Fali Nariman, senior advocate and a legal and constitutional luminary who is no less luminous in his own field than Nehru was in his. He noted in The Indian Advocate, (Vol XXIX, 1999-2000) that The majority view in Keshavanand was criticised as an assertion of naked political power by the court in the guise of judicial interpretation. By propounding the basic structure theory, the guardians of the Constitution (it was said) had at one bound become guardians over the Constitution. Constitutional adjudicators had assumed the role of constitutional governors. Nariman agrees with this description of the new role assumed by the court but adds it is only an auxiliary precaution taken against the possible tide of majoritarian rule.12 In another context he has observed If we must have faith in elective bodies for our democracy to survive we must also hedge our bets. We must beware of majoritarian governments at all times whether BJP, Congress or any other It is this novel doctrine that has helped save our liberties.13 And in another context he acknowledges yet more frankly that with the Keshavanand judgment the Supreme Court has succeeded in retaining to itself the custody and control of the Constitution, which in the 1970s was in danger of being taken over by parliament. Granville Austin, a more detached scholar but perhaps not less dedicated to his convictions was asked once whether the court would be in conflict with the Constitution if, in keeping with the doctrine, it struck down a constitutional amendment made by parliament in full compliance with Article 368. He replied Yes, if one believes in parliamentary

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supremacy. NO, if one does not trust Parliament to refrain from damaging the Constitution. His lack of faith in our parliament is obvious. But not only his, and yet our more vociferous MPs do not realise how deep parliament sinks when they jump into the well. However, who is to measure, by what yardstick, whether or when parliament may regain the respect of the people? Or how far the judicial system still commands the publics trust, which used to be its most cherished asset? But there are also voices in favour of the constituent role of parliament among men of law, some of whom have the same stature as some of its critics. They see in the doctrine a dangerous distortion of the constitutional position regarding so important a part of the Constitution as the provisions relating to its amendment. A former chief justice and three peers of Nariman, all of them senior advocates of the Supreme Court like himself, have drawn attention to situations which must be seen as disturbing regardless of where one stands in respect of the doctrine of basic features. Their comments show how indefensible it would be if one side went ahead and did something indefensible in the belief that the other side was going to do it and it decided to be the first to land its own fist in the others face. Is the doctrine just such a fist ? What would it do which the laws for defending minority rights cannot do against a majority becoming majoritarian? Or would enlightened public opinion be a better safeguard?

Interpretation or Interpolation?
This phenomenon of the doctrine and the meaning of its words justifies the comments by former chief justice S Ranganathan, and by two senior advocates P P Rao and Raju Ramachandran, while a third senior advocate, Andhyarujina, raises the all important question whether the Supreme Court should draw a line, and if so where, between interpreting the Constitution and interpolating something into it without meeting the requirements of Article 368. Justice S Ranganathan contemplated this dilemma in his memorial lecture in honour of Sir Alladi Krishnaswami Ayyar, one of the great luminaries who wrote the Constitution. Justice Ranganathan said It does not seem likely that the Constitution makers intended to repose in the judiciary the power to pronounce even on the validity of a constitutional amendment. In his own lecture in the same series senior

advocate, P P Rao, said (the doctrine of) basic structure remains a vague and undefined concept At the same time in the folds of vagueness of basic structure lies limitless judicial power. Referring to the judgment in the Keshavanand case, which gave birth to the doctrine, Rao said This single decision has deflected the balance of power decisively in favour of the judiciary at the cost of parliament, and cast a cloud of uncertainty over the amending power of parliament in its constituent mode. Another senior advocate, Raju Ramachandran, says the doctrine is anti-democratic because under its cover unelected judges have assumed vast political power not given to them by the Constitution. He examines the whole set of cases having a bearing on the doctrine and draws attention to two features which are common to them: one, that they uncover a struggle for power between the Supreme Court and parliament, and two, that the court extended its domain step by step as the power of parliament declined because of the deplorable way it conducts its business. He concludes The basic structure doctrine proceeds upon a distrust of the democratic process, which itself must surely be a part of the basic structure. In limiting the amending power, the basic structure in fact stifles democracy, a basic feature. On the other hand Andhyarujina shows how far the Supreme Court has carried its power of amending the Constitution by stretching its power of interpreting it. He notes The framers of the Indian Constitution, after deep deliberation extending over several years, rejected the US concept of due process in the Indian Constitution. He then traces various cases in which the courts have interpreted the Constitution, particularly Articles 14 and 21, and argues that these interpretations have introduced the concept of due process of law in the Indian Constitution, He then pleads The viable constitutional law of India since 1978 has been the concept of due process of law in the Constitution, and he adds It is time to recognise that, never mind the fact, which he recognises, that the concept was rejected by the framers of the Indian Constitution. The issue here is not whether any feature of the Constitution is basic or not. Obviously one feature can be more important than another. But are any of them impervious to the power given to parliament by the Constitution to amend any feature? Similarly, the question is not whether India would or would not be better off under the US concept or any other

version of due process. The question is whether anything which the authors of the Constitution kept out of it after deep deliberation for years can be brought into it by the backdoor of incremental interpretations, as due process has been according to Andhyarujina. Conversely, can the doctrine of basic features be used to block an amendment which has been adopted by parliament in full compliance with the Constitution? The principles of interpretation and amendment are clear enough. After scrutinising constitutions around the world the redoubtable scholar, senior advocate and jurist, H M Seervai, has laid out the principles in his authoritative work, Constitutional Law of India. In the chapter on Interpretation he emphasises that what is not in the language of the text is not in its meaning, and nothing can be inserted into the text in the light of considerations or criteria which find no place in the text. The doctrine finds none. Besides, there is much less room for judge made laws in a country like India which has a more detailed and explicit Constitution than there is in a country like America, which hardly has a Constitution. Britain has even less. While there is ample room for amendments in India because Article 368 has left everything open for it, be it only through a specified process, there is not much room for the doctrine. After an exhaustive survey of the amendments made so far, Seervai has shown that all of them are protected or authorised by the language of the Constitution. They do not need and cannot get any more protection from a doctrine which itself is not reflected in that language. Almost anything which can be called basic is related by its language, substance, or meaning to the language of one or another provision or structure of the Constitution. It is therefore protected by the latter and can be amended only in the manner and to the extent permitted by the Constitution. Otherwise it would be struck down on grounds of inconsistency and vires. The difference between striking down an amendment under the doctrine or under the Constitution is not merely technical . The former method sidelines the Constitution, the latter affirms the sanctity of the Constitution, which is the bulwark for ensuring the stability of the constitutional system. Every time the Supreme Court bypasses the Constitution in the name of public good it reinforces the classic argument of the military dictator that he is taking over only because democracy is too slow or it only produces majoritiarian

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rule. That allegation may well be true. But there are laws for protecting the rights of minorities, and all of them have been passed by majorities. If the courts were more open and faster in applying them, because in the long run public interest is served better when parliament respects public opinion, courts respect laws, and both keep their processes open and transparent so that public opinion is educated and updated more regularly. And be it remembered, it was judges, not parliament, which first succumbed to the ambitions of Indira Gandhi, and she was overthrown by an aroused electorate, not by doctrines produced by judges huddled in their chambers. But even assuming that some device like the doctrine can serve some public purpose, it can do that much better if it is enshrined in the Constitution by an open political process, not insinuated into the system by people whose faith in the democratic process appears to have faltered. Any such device should be debated openly and as long as needed, and then led into the Constitution by parliament itself, not behind its back.

Getting Us Back On Track

What is happening at present is that while the Supreme Court and parliament fight each other for control of the Constitution, neither helps much in educating the people in what their Constitution is all about, and voters get only one chance is so many years to help the rulers to understand what the people are all about. But some interesting attempts have been made to get us back on track and they need to be pursued. For example in Sajjan Singh vs State of Rajasthan, 1964, a fivejudge bench of the Supreme Court reiterated by a majority of three to two what the five-judge bench in Shankari Prasad vs Union of India, 1951, had unanimously said earlier, that parliament could abridge or take away any fundamental right under Article 368 so long as it did so by the special majorities prescribed in the provisos to that article, which really means by a majority of the whole electorate. But the majority in Sajjan Singh also suggested to parliament that fundamental rights also be covered by the same provisos. They would then cease to be unamendable (which nothing is, according to any legitimate interpretation of the Constitution) but it would not be possible for parliament to curtail any of them without the specific consent of a majority of the voters. Unfortunately the suggestion was

ignored as Nariman records. Another effort to get back to the basic sovereignty of the people was made in 1978, the time when the people were more in our thoughts than at any time before or since. It was suggested then that a referendum should be required for the adoption of certain types of amendment to the Constitution. Members of parliament and men of law would be better off publicly debating what else, if anything, should go into that list of specially protected clauses of the Constitution. But the road to an enlightened public opinion does not lie through legal cloisters which are shrouded in erudition if not also in secrecy. Nor does it lie through legal coups such as the doctrine against the principles and practices of open governance through open debate. Nor through battles between the Supreme Court and parliament for capturing the Constitution in the name of democracy. Amendments to the Constitution which are not supported by parliament will last only as long as laws which are not supported by the people. Protecting the people from a parliament they have elected themselves would remain an absurdly elitist proposition so long as it did not actively engage the people in protecting it. EPW Address for correspondence: pranc@vsnl.com pran1921@yahoo.co.in

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Notes
1 Constituent Assembly debates. 2 Pandit Nehrus speeches, Vol 1, published by Government of India. 3 Constitution of India, Article 368, Clause 1. 4 Constitutional Law of India, by D D Basu, 7th edition, page 470, lists 20 features as basic, ranging from specific articles and clauses to concepts such as supremacy of the Constitution, the principle of free and fair elections, freedom and dignity of the individual and effective access to justice, etc. 5 The history of the formulation of constituent power from Shankari Prasad vs Union of India in 1951 to its further clarification and firming up in the 24th Amendment Act of 1971, and later applications of the 24th Amendment Act since 1971, is full of examples of earlier amendments to the Constitution being struck down and various judgments of the Supreme Court being upturned on account of subsequent discovery of grounds of inconsistency with the Constitution. In Keshavanand vs State of Kerala,, 1973, in which the doctrine acquired its present status, a part of the 25th Amendment Act was invalidated on the ground that it was inconsistent with the Supreme Courts power of judicial review. That means even

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as the doctrine was being formulated the Supreme Court had the power to strike down an amendment on grounds of its inconsistency with the Constitution. Incidentally, Fundamental Rights were not held to be a limitation on the consituent power of parliament. As quoted by Seervai (page 2693 of Chapter on Amendment of the Constitution in Constitutional Law of India ), Justice Chandrachud stressed the immensity of the task that would be involved in determining in advance whether a particular feature of the Constitution is a part of its basic structure. Seervai himself commented along the same lines and said For a precise formulation of the basic features of the Constitution would be a task of the greatest difficulty and would add to the uncertainty of interpreting the scope of Article 368 which sets out the procedure for amending the Constitution. In a letter to the present author which is cited here by permission, Granville Austin said (March 25, 2004) If one accepts the idea of a basic structure doctrine, it should not follow that the Court should define every timber in the structure before cases involving the concept appear before them. In Keshavanand and the Election Case. Clause 2 of Article 368. It is not very clear whether Clause 2 leaves any room for the president to satisfy himself that the amendment bill has met the conditions it is supposed to have met before being presented to him for signatures. But there is no doubt regarding the mandatory nature of the requirement that he shall give his assent when the bill is presented to him and that upon his giving it the Constitution shall stand amended. This is clear enough from the language of the clause and is further reinforced by the circumstance that while he retains his power to veto other bills, subject to the advice of his cabinet, his assent to a bill under Clause 2 has been made obligatory by the 24th Constitution Amendment Act, the same Act which has stated so explicitly in the new Clause 1 of Article 368 that the constituent power of parliament extends to the whole Constitution subject only to the procedure laid down in the article. Lok Sabha is not elected by the whole electorate acting as a single constituency but by the electorate of each state, the number depending upon the population of that state. Most of the Rajya Sabha members are elected by the legislative assemblies of the federating states, the number depending upon the size of the assembly concerned. The president is not elected directly by the whole country but by the legislatures of the federated states. The issue took clear shape in Keshavanand though some beginnings are to be found in some earlier cases as well. In The Indian Advocate, Vol XXIX, 19992000. In a letter to the present author, March 23, 2004, quoted here by permission. Incidentally, Shorter Oxford English Dictionary does not recognise the word majoritarian. Webster does and defines it is a majority in a state of hysteria.

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