Law and Development in India

LAW AND DEVELOPMENT IN INDIA
Author(s): Klaus Scharioth

Source: Journal of the Indian Law Institute, Vol. 17, No. 1 (January-March 1975), pp. 57-75
Published by: Indian Law Institute
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NOTES AND COMMENTS
LAW AND DEVELOPMENT IN INDIA
THEORY AND BACKGROUND
Law and development defined

(a) "DEVELOPMENT" IMPLIES a culturally specific process of
change directed towards an improvement of the quality of life
indicates not only economic growth to alleviate poverty, but also mo
towards greater socio-economic and political equality,1 providing
kinds of 'having' leading to more 'being',2 to a greater chance o
realisation.
This paper is concerned with the question of what role "law"

play in this process. It attempts to show how a change in the law m
pre-condition for any law to initiate development and even for
development at all. In a world of limited resources there has to be a
or lesser amount of planning on a societal level in order to achieve d
ment. Development is not only linked to change but also to order. B
of this two-fold connection, it depends on law. Law conditions or
anticipates or reflects, furthers or hinders development.
(b) What is "law" ? It is the totality of explicit or implicit rules
duct set for a given community on a certain territory within a given tim
As a process of régularisation of social relationships, law can a

socio-econmic goals and social philosophies. At the same time it c
establish a peaceful order, oriented towards regularity and predictab
enforcement, as well as the idea of justice. But it can oblige the mem
of the community only if, - in its basic principles - it has penetrat
consciousness, and, because it is perceived as at least not unjust, is ac
by their majority as binding, and is predominantly observed. Only
extent law influences human behaviour (consciously or unconsciously
it come alive and into existence.
Law is set by generally accepted authorities equipped with the pow

lay down rules of a degree of general application, and to enforce thes
1. For an outspoken and stimulating view of what "development" migh

India see D. H. Butani, India of the 1970s especially p. ix-xxx, 165-2Q6, 217-227 (1
2. Cf. Denis Goulet, The Cruel Choice : A New Concept in the Theory of
ment 94 passim (Ì91Ì).
3. See Wolfgang Friedmann, Legal Theory (5th ed., 1967) for a discussion
concept of "Law".
Sš JOURNAL ÒF TtíE ÎNDÎAN LAW INSTITUTE [Vol. 17: 1
by a variety of sanctions and incentives. It is always in const

laws are legislated, old ones are differently interpreted an
this paper we will mainly be concerned with the second case,
law in action changes, although the written laws remain the sa
Judicial interpretation and legal change
(a) One can broadly discern two opposing views on judicial in
There are some who maintain that judges just "find" the law,
the judiciary on a pedestal. Judges appear as impartial, to
servants of something called law, strangely withdrawn from
neither influenced by vested interests, nor personal experien
passions. There is talk of a government of laws but not of m
laws could speak and judges were merely translating machines
viewed as something which has an existence of its own before
This view naturally serves the function of maintaining respe
and those who "find" it. The question "why ?" can never be as
judge's mistakes can only be technical ones.
The opposing conception is one of judges "making" the law
three main reasons supporting this. First, judges like othe
members of their society, with family, friends, and pre-concep
very own. They reflect and represent the social, economic
forces prevailing in their community which they in turn inf
they establish a deep relationship between the law-making mac
social opinion of the society.4
Second, law is something which is always in a state of
comes into existence only with concrétisation. The normative c
abstract rule in the book can only be understood and determin
it to concrete cases. As there are no cases alike, the content o
norms (deciding the case) flowing from the abstract norm is
every case. Thus, the social reality touched by the law is
specific norm which decides the case, just as its abstract norm
as expressed by the wording.5 The third decisive factor in jud
sation of norms is the judge's pre-understanding which is sha
decided case and by his legal theory (about which ideally exist
within the community).
The third reason for rejecting the notion that judicial inte
involves only logic is the fact, that law is a mirror of social c
which the techniques of law themselves do not provide sol
judicial decision is a policy decision, a painful adjustment
values, interests or social philosophies.6 A judge's neutrality a
4. This view is brilliantly argued by Wolfgang Friedmann, Law

Society 429, 168, 45 passim., 83 (2nd ed., 1972).
5. Friedrich Muller, Normstruktur and Normativität 170, 116 passim.
6, Friedmann, supra note 4 at 384.
1975] LA W AND DEVELOPMENT IN INDIA 59
then can never mean to avoid a choice of values, i.e.,

reflect certain social aims. Instead what is asked for i
methods used, as well as the underlying assumptions
make discussion, review, and last but not least a n
community possible.
Thus, in the process of applying the norm to in
choosing among certain values, judges make the law
pretation is the text of the norm: excluded are the sol
means be derived from the wording. The extent to w
varies according to the generality of the norm. Crimin
the least leeway, constitutional law the most.
(b) Legal change can happen in three different way
(0 The normative content, i.e., the text, of law is c

by the legislature).
(//) The social reality regulated by the norm has c

trial, technological, and scientific developments c
with which the prevailing intrepretation cannot
a different kind of cases before the courts. As t
the specific norm, pressure for a different judic
enforcement results.
(iii) The judge's pre-understanding has changed. New social and politi-
cal philosophies as well as new moral values and social policies bring
about alternative in legal thinking and theory and prepare the ground
for revolutions in judicial interpretation.
The function of constitution
(a) The constitution is the basic law of a country, the highest and the
most abstract. All other laws are tested concerning their validity on the
constitution.7 The constitution defines and outlines the social philosophy,
the guiding principles of the society for the achievement of two major tasks :
political unity and legal order.8
Political unity and coherence is the first aim, as state and state power
cannot be taken for granted as pre-existing unhistorical entities. What cons-
titutes Federal Republic of Germany or India or the United States is a question
to which there is not only one answer through history. A multiplicity of in-
7. In the United States, India and the Federal Repuhlic of Germany by the Supreme
Court which has the negative power to strike down legislation (judicial review).
8. Konrad Hesse, Grundzuge des Verfassungsrechts der Bundesrepulik Deutschland
i passim (6lh ed., 1973).
60 JOURNAL OF THÉ INĎÍAN LA W INSTITUTE [Vol. 17 : 1
terests, aims and forms of social behaviour have to be combined in

unity able to act homogeneously as the state. This becoming of on
of a multitude is ä continuous process asking for systematic, c
and well-organized combined action.9 The constitution defines its pr
This political unity is necessary as the state faces more tasks in t
tieth century than ever before. Besides merely protecting ind
freedoms as the night-watchman-state of the nineteenth century, the s
has become a planning, providing, controlling, and distributing on
state power is essential and, therefore, political unity, too.
This does not imply that there are or should be no more confl
political unity is achieved. Conflicts are necessary, the salt of life of
as they protect it from immobilism, stagnancy, and incapability to
a changed reality. The point is not that the existence of conflicts
healthy effect but the fact that they are solved. The new result s
from the conflict is that which adds something new and valuable.10
By constituting a certain legal order the constitution lays down
mode of conflict resolution. In addition, the constitutional order m
possible for the state to fulfil its vast tasks and at the same time pr
misuse of the power transferred to carry out these tasks. The pow
competencies of various state authorities - executive, legislative or
centre or states - are limited and defined in the constitution. The co
provides a framework of basic rules for participation in the politic
Thus it can be said, that the constitution is the most important la
land summing up all other laws, constituting the structure of the
setting procedures of conflict resolution.
To gain further insights into the relevance of our case, we can
ply look at the functions of the constitutions in general. . Constitu
with circumstances which are different from country to country
time to time. We, therefore, must look at India's individually
Constitution as it is developing in history. Obviously, a constituti
different functions in an affluent industrialized country than
developing one. If the West German and the Indian Constitutions
identical text, their meanings and functions still would be quite differe
A Constituent Assembly, elected in 1946, drew up the Indian C
tion between 1947 and 1949. In 1950 it came into force. It is proba
lengthiest and most detailed constitution of the world. This is par
the fact that many of its provisions ..were copied almost textually
Government of India Act, 1935, an ordinary Act of the British Parl
a result, the Indian Constitution is a strange mixture of matters of
9. Hermann Heller, Staatslehre 228 passim . (1934).

10. Hesse, supra note 8 at 6.
1975] LAW AND DEVELOPMENT IN INDIA 61
tional order and matters of merely admini

would be regulated by ordinary legislation.11
The most striking feature of the Indian C
not only contains a list of guaranteed funda
titutions do) but also a series of directive pr
Although these principles cannot be enforc
out the social, political and economic phil
is obviously the Fabian gradualistic mode of
Wells, G. B. Shaw, Sidney and Beatrice Web
cerning desired ends. Whereas the Fabians
the means of production, distribution and
conspicuously lacking in the Indian Const
nationalization was only a means to an end
Part IV of the Indian Constitution reflects also the economic idealism of
Nehru. Nehru dominated the Congress party which in turn dominated the
making of the Constitution. His Fabian socialist thinking gained heavy influ-
ence on the document, although the socialists in the Congress party have
always been in the minority.14
The Indian constitutional brand of socialism is not only a product of
Fabianism and rigid egalitarianism but also a device to generate mass enthu-
siasm. The Constitution is more than a testament of a social philosophy.
It was devised as a tool for carrying out social purposes, social and economic
change.15
The task ahead was to change a particularistic, hierarchical and ascriptive
consciousness manifested in diverse local customs into a common conscious-
ness based on values of personal equality, individual dignity, socio-economic
justice and national identity. Embodying the leadership's pre-conceptions of
a modern democratic welfare state, the Constitution was to be an instrument
of tutelary politics in the hands of the westren-educated elite.16
The function of the fundamental rights
Within the Constitution, our interest is first concentrated on the funda-
mental rights, as they constitute parts of the issue of our case. The fundamental
rights as a part of a constitution are usually the product of the past experience
and the philosophical bakground of the makers of the constitution ánd- more
11. The dominance of lawyer-politicians in the Constituent Assembly added

definitely to the complexity of the Constitution. See William Ivor Jennings, Some
Characteristics of the Indian Constitution 25 (1953).
12. Butani derives his development values from these principles, see supra note .
lat 218.
13. Jennings, supra note U at 31.
14. V. S. Deshpande, Rights and Duties under the Constitution, 15 /. /. L . /.
94 at 97 (1973).
15. Id. at 101.
16. Peter Rowe, Indian Lawyers and Political Modernization, 3 Law and Society
Review 219 at 220 (1968-69).
62 JOURNAL OF THE INDIAN LAW INSTITUŤE [Vol. 17: j
or less - of the people.17 The fundamental rights were incorporated into the
Indian Constitution for three reasons :
(0 The leaders of the Congress party had had unhappy experiences with
the British laws imposed on Indian society. These laws did not take into
consideration that social reality and value systems in India looked differently
than in Britain and, therefore, the laws were regarded as manifestation of
power rather than as embodiments of societal consent.
(//) Gandhian philosophy, being the prevailing ideological force in the
Indian National Congress and thus the Constituent Assembly, emphasized
the sanctity of means even more than the sanctity of ends. To this view,
western liberalism, to which the elite was exposed through British education,
looked attractive as it was concerned with procedure.
(iii) It seemed to be the most satisfactory solution to the problem of
communal differences in India.18
We have already noted that all legislation can be tested before the
Supreme Court on its constitutionality. The power of such a court is greatly
increased where a constitution contains fundamental rights. These rights
inevitably are of such a sweeping and general character that the role of the
interpreting judge comes closest of all fields of law to that of the legislator.19
To a certain extent then policy-making function and judicial function merge,
as any piece of legislation may be challenged not only through the normal
parliamentary process but also through legal process. (Article 13 of the
Constitution). The fundamental rights limit the power of the legislature and
the executive and increase the influence of the judiciary.
The more expensive litigation is in a country, the more often a Bill of
Rights is mainly used by vested interests to protect their anti-social beha-
viour.20 It protects the poor, too, when some national organization provides
the money.
One may broadly discern two or three categories of fundamental rights :
(0 equality rights (in regard to race, caste, sex, religion, place of birth) and
(//) basic freedoms - of speech, assembly association, worship, movement,
trade, etc .
Property forms a category of its own, though technically it can be counted
among the basic freedoms. Decisive is the underlying social philosophy.
Eighteenth and nineteenth century liberalism was mainly concerned with the
protection of the individual from the almighty, absolute state. Property was
seen as the individual's economic base and as capitalism's too, which had to
17. S. P. Sathe, Fundamental Rights and the Amendment of the Indian Constitution
43-48 (1968).
18. Granville Austin, The Indian Constitution : Cornerstone of a Nation 55 (1966).
19. Compare, Judicial Interpretation and Legal Change supra, pp. 58-59 and Frie-
mann, Law in a Changing Society , supra note 4 at 35.
20. Jennings, supra note 1 1 at 49.
be safeguarded from state interference. Con

freedom (against state interference).
According to Marxist thought, property
production is the key to the control of so
society no such fundamental right of an ind
as belonging to the whole community.
(b) This points to the basic birth-defect o
the one hand it embraces Fabian socialist thought in its directive
principles,21 on the other it includes not only all the individual liberties
of classic liberalism (Montesquieu, Madison, and the U.S. Constitu-
tion may stand for all) but also the fundamental right to property. Where-
as, all the other freedoms and equality rights nicely fit into the concept of
democratic socialism, an unlimited right to property does not. It does not
surprise us, then, that almost immediately after the Constitution came into
force the discussion about this inconsistency arose. In 1951 itself, the
Constitution was amended in regard to property rights which were somewhat
limited.22 Later the question arose to what extent these rights could be
amended.
The significance of amending provisions

Constitutions are designed to last for an extended period of time. They
provide stability, continuity, and prevent an all too rapid transformation of
social change into legal change. But a constitution needs to be realized,
needs to be law in action, needs to shape and truly regulate historical
reality, needs to be lived by the people. To achieve this, it is an absolute
prerequisite that the constitution's content is capable of realisation. A consti-
tution ignoring the economic, political, social, and cultural development of
society and becoming too far removed from social reality, loses its power
to alter social conditions. The very power and task of a constitution
consists in its capability to unite with the spontaneous forces and tendencies
of the time, to channel and coordinate them and thus help them to unfold
and be utilized by all.23
Therefore, a constitution must be open to evolution. Judicial interpre-
tation by the highest court of his country is one outlet. But there are limits
to this form of constitutional change. The courts can only adjust the law to
changing times, they cannot create new provisions, which might be necessary
if the text leaves no reasonable choice.24 In addition, the "actualization"24"
21. See above, features of the Indian Constitution at pp. 60-61.

22. The Constitution (First Amendment) Act 1951.
23. Hesse, supra note 8 at 18.
24. Usually it is said that not all laws out of touch with reality come betöre the
courts. In constitutional law regarding fundamental rights, this, however, is only a
question of time.
24a. By "actualization" the author means the process of bringing into actual
existence.
64 JOURNAL OF THE INDIAN LA W INSTITUTE [Vol. 17:1
of a constitution cannot be equally provided by state aut

fields of law, as these are only constituted by the act
constitution.
Jennings has remarked that the progressive ideas of one generation are
the reactionary ones of the next.25 Even fundamental rights might
become out of tune with the needs of the time. If different interpretations
do not suffice any more, the constitution needs to be amended.
If a constitution is short and its provisions are very general - classic
example : the U. S. Constitution - changes in interpretation may in almost all
cases be sufficient. Much more difficult is the situation when, like in India,
everything is spelled out in detail. Then the need to amend the constitution
necessarily arises more frequently.26
The provision regulating the procedure of amendment is one of the most
important of any constitution. It decides who has this power of changing
the basic principles according to which a society is run, i.e., who ultimately
acts as sovereign and within what limitations. In a democracy this usually
will be Parliament as the closest representative body of the people.
One may distinguish between flexible and rigid constitutions. The more
difficult the amending process, the more rigid the constitution. It depends
on what more is needed for a constitutional amendment than for an ordinary
law. An example of an extremely flexible constitution is that of the United
Kingdom, of a rigid one that of the United States.
The Indian Constitution is partly flexible, partly rigid. Some of its
provisions which are not of a constitutional order can be changed by a simple
Act of Parliament.27 We are only concerned with the issue whether funda-
mental rights can be amended or taken away : in that the Indian Constitu-
tion is rigid. Just how rigid is hotly debated and is the essence of our case.
Can Parliament, provided it does so with a special two-thirds mojority in
both the Houses, i.e., follows the procedure of article 368 of the Constitution,
amend or abridge any part of the Constitution ? If Parliament cannot do
that, ordinary laws which contradict a provision in the Constitution could
always be struck down by the Supreme Court. Such new laws would then
be practically ruled out as a tool of social change and the Supreme Court
would set the pace of legal change. Thus in the final analysis, the
discussion centres around our initial questions : what role law is allowed
to play in a changing society ? Shall law lead society towards new goals
or rather function as a brake against too radical change ? Does constitutional
law impede or initiate development - or has it nothing to do with it ?
25. Jennings, supra note 11 at 35.

26. See Manubhai Shah, Thoughts on the Constitution of India, 22 United Asia ,
239 at 240 (1970).
27. For example arts. 3, 4, 11, 100 (3), 105 (3), 106, 118 (2), 120 (2), 124 (1), 133 (3),
135, 196(3), 345, 348.
1975] LA W AND DEVELOPMENT IN INDIA 65
THE CASES
Introduction and history
(a) On April 24, 1973 the Indian Supreme Court decided the b
case of its history : the Fundamental Rights case.28 Thirteen jud
largest ever Bench, after having heard 69 days of argument, the
hearing before the court so far in which 93 lawyers were inv
gave a record number of eleven different judgments covering altoget
pages.30
But amazingly enough, for once, there was a direct relationship between
effort and importance. Basic issues were at stake : the power of Parliament
to amend the Constitution, to abridge or take away the fundamental rights
guaranteed therein and the extent of judicial review.
Kesavananda Bharati, a religious leader, challenged the Kerala Land
Reforms Act of 1969 which enabled the state to acquire land without pay-
ment of compensation, arguing a violation of the fundamental right to
property. During the pendency of the writ petition, the Act was included in
the Ninth Schedule of the Constitution which grants immunity from consti-
tutional challenge. Shortly after that, Parliament amended the amendment
provisions of the Constitution (article 368 and article 13 (2) ) by the Consti-
tution (Twenty-Fourth Amendment) Act, and the right to property in the.
Constitution (Twenty-Fifth Amendment) Act. Basing his argument on the
previous Golak Natii decision of 1967, he challenged the amendments'
constitutionality, too. Bharati was joined by five other petitioners, mainly
princes fearing for their privy purses.31
This was, however, by no means the first time that attention was focus-
sed on the question of amendability of the fundamental rights. As early as
1951, one year after the Constitution came into force, Parliament amended
and limited the right to property (article 3l)32 - acting under article 368 -
as a response to the decision of the Patna High Court in Kameshwar v.
State of Bihar .33 Since the Supreme Court upheld this amendment unani-
mously in Shankari Prasad v. Union of India 34 the power of Parliament to
amend fundamental rights, which was invoked to silence the judiciary,
seemed unassailable.
28. Kesavananda Bliarati v. State of Kerala , A. I. R. 1973 S. C. 1461.

29. "The Games They Play", Economic and Political Weekly, editorial of April
28, 1973, p. 769.
30. "Parliament Can Amend Fundamental Rights," The Statesman Weekly, April
28, 1973. p. 13.
31. Id. at 8.
32. The Constitution (First Amendment) Act, 1951.

33. A. LR. 1951 Pat. 91.
34. A. I. R. 1951 S. C. 458.
66 JOURNAL OF THE INDIAN LA W INSTITUTE [Vo'. 17 : I
Parliament amended the Constitution concerning fundam

the following fourteen years four more times,35 twice in reac
Supreme Court's interpretation of the property right (ar
legislature considered that the directive principles of state p
be duly implemented as long as the right to property remain
enacted in the Constitution and as interpreted by the Suprem
primacy of Parliament over the judiciary stood virtually unch
The issue came before the Supreme Court again in 1965 in
v. State of Rajas than3* and this time opinions on the qustion
judges - the majority- reaffirmed the proposition held in Sh
case, whereas a minority of two judges expressed reservat
correctness of that view.
Less than two years later, in February 1967, the court
earlier decisions. Again an amendment of the right to prope
to the decision. The petitioners in Golak Nath v. State of
property rights in land were affected by certain laws, conten
14, 19 and 31 were violated. They also contended that the
and seventeenth amendments which sought to protect law
against such invalidity, were themselves unconstitutional ina
abridged the fundamental rights. By a majority of 6 against
Court held that it was beyond the competence of Parliament
article 368 to take away or abridge the fundamental rights.
of the land was changed by judicial interpretation.
The court implied that future social change or legal ch
social change could be accommodated without formal constit
ments. Thus, it tried to freeze the Constitution at the sta
court reserved to itself the whole power to provide constitu
(by interpretation) concerning the fundamental rights.
Parliament reacted immediately. Nath Pai introduced a
Bill41 in 1968 providing explicitly for Parliament's powe
fundamental rights, thus seeking to nullify the effects of the
decision in Goläk Nath' s case. The Congress party led by
and the left- the Praja Socialist Party and the Communist Pa
supported the Bill which the right (the Swantantra, the Jan
35. The fourth, seventh, sixteenth and seventeenth amendments of t

36. The fourth and seventeenth amendments. The other two ame
affect freedom of speech (sixteenth) and the right to equality of the major
opposed to scheduled castes, tribes, and backward classes (seventh).
37. R. S. Gae, Amendment of Fundamental Rights in L. M
Parliament and Constitutional Amendment 35 at 50 (1970).
38. A. I. R. 1965 S. C. 845.
39. Mainly the seveteeith anîiinîit of th3]C)i*tit'jtio.i.
40. A. I. R. 1967 S. C. 1643.
41. See Appendix.
Samyukta Socialist parties opposed42 and finally

as the Congress party had lost its two-thirds m
before the Golak Nath decision of February 1967
Quite naturally, the amendment question
which Indira Gandhi sought a mandate in the m
1971. 44 The landslide victory of the Congress
gave it the two-thirds majority in the Lok Sabh
promises it had made.
On July 28, 1971, two amendment Bills we
Sabha.*5 The Constitution (Twenty-Fourth Ame
pressly that Parliament had the power to curta
fundamental rights guaranteed by the Const
legal change created by Golak Nath . The oth
right to property which had been the underlying i
The Constitution (Twenty-Fourth Amendmen
overwhelming majority of 384 to 23 votes.46 It
state legislatures - as is demanded by article
opposition.
Thereby, the law was changed again although the Supreme Court had
not yet reversed its Golak Nath decision.47 The reason lies in this : Except
for the unusual case of article 143 when the President asks for the court's
opinion, the court's interpretative power is always exercised ex post facto.
On the question if the amendment procedure could be amended there had
not yet been any judgment. And until the Supreme Court's authoritative
opinion on a particular clause of the Constitution comes forth, the legislature
and the executive have the right to act in discharge of their tasks
and functions and in exercise of their powers, as they understand the
Constitution.48
The Bench deciding the Fundamental Rights case had the choice between
overriding its own decision in Golak Nath* s case on the one hand and dec-
laring the amendments void on the other, thus changing the law in force
again. The latter would have meant an open confrontation between the
legislature and the judiciary.
42. S. P. Sathe, supra note 17 at 67.

43. Jagat Narain, Constitutional Changes in India - an Inquiry into the Working of
the Constitution, 17 International and Comparative Law Ouaterlv 878, f. n. 36 (1968).
44. S. P. Sathe, "Supreme Court, Parliament and Constitution," Economic and
Political Weekly , August 21 and 28, 1971 as reprinted in S. P, Aiyar and S. V. Raju, (eds.)
Fundamental Rights and the Citizen 126 (1972).
45. The Constitutional Twenty-Fourth and Twenty-Fifth Amendment Acts.
46. S. P, Aiyar and S. V. Raju (Eds.), supra note 44 at 1.
47. This opinion is not shared by Puran L. Lakhanpal, Two Historic Judgments
v, (1912) who maintains that the Golak Nath judgment was still the law in force.
48. L. M. Singhvi (ed.), Fundamental Rights and Constitutional Amendment 2 (1971).
The legal facade

The relevant provisions concerning the amendability of
rights are articles 13 and 368. Three problems concerning
tion arose :
(i) Does the word "amend" in article 368 include radical change or
even taking away a certain provision ?
(//) Does article 368 lay down solely the manner of amendment or
does it settle the question who has the power to amend ?
(iiï) Does the meaning of the words "any law" in article 13 (2) in-
clude constitutional law and Acts of Parliament amending the Consti-
tion ?
In Golak Nath's case, the majority had held that :

(1) to amend meant only minor modifications, possibly not any major
change - article 368 did not give any authority for taking away or abridging
fundamental rights;
(2) the power to amend the Constitution was not to be found in
article 368, which was considered to regulate only procedure ;
(3) even if article 368 contained the power to amend the Constitution
and if such power included the power to take away or abridge the funda-
mental rights, the exercise of any such power must be controlled by article
13 (2) which comprised Constitution Amendment Acts. The court came to
the conclusion that only a new Constituent Assembly could curtail funda-
mental rights.49
In the Fundamental Rights case, the Supreme Court overruled its own
decision in Golak Nath by a majority of 9 : 4. It held that :
(1) no part of a fundamental right could claim immunity from the
amending process by being described as the essence of that right, but the
power to amend did not include the power to abrogate the Constitution nor
to alter its basic structure of framework (7 : 6 majority) ;
(2) article 368 granted the power to amend the Constitution to Parlia-
ment ;
(3) "law" in article 13 (2) did not comprise Constitution Amendment
Acts as those are constitutional law which is distinct from ordinary legislation;
49. An extensive controversy arose about this judgment and numerous books and
articles were written on the subject. Further information might be obtained from :
Karturiranga Santhanam, Fundamental Rights and the Indian Constitution cf. 17-19 (1969);
Mohammed Imam, The Indian Supreme Court and the Constitution cfē p. 334 (1968);
Puran L. Lakhanpal, Historic Judgments vii, who side with the majority in Golak Nath ;
M. C. Setalvad, The Indian Constitution- Rights of the Citizen cf. p. 18; (1969); P. B.
Gajendragadkar, The Constitution of India , Its Philosophy and Basic Postulates cf.
p. 74 (1969); Durgadas Basu, V Commentary on the Constitution of India 494-501
(1970); K.P. Krishna Shetty, Fundamental Rights and Sizio sconimic Justice in the Indian'
Constitution cf. p. 51-53 (1969) who comments critically.
Í975J LA W AÑD DEVELOPMENT IN INDÎA 69
(4) the Constitution (Twenty-Fourth Amendment) A

It is beyond the scope of this paper to argue the
both interpretations according to legal logic, though
the Constitution as a whole51 favours the latter one.
rather pointless.62 It will be more useful to discuss th
tions, the social, political, and philosophical issues behi
Natural law and the right to property
The majority in Golak Nath relied heavily and c
law" theories to support the argument that Parliamen
take away the fundamental rights.. They are called in
people, beyond the reach of Parliament53 (which r
natural rights by tradition, to which the Constitutio
cendental position, making them basically immutable.54
This argument which was opposed by the majority
Rights case contains three major flaws.
First, it lacked consequence. While holding Parliam
tent to take away these inalienable rights, the cour
amendments valid. It reasoned that the state had m
the basis of these amendments (social welfare legi
estates, foundation of state monopolies) which co
undone, and simply ruled out future amendments
fundamental rights were really inalienable, they could
allowing three curtailing amendments to be valid.
The majority in the Fundamental Rights case di
natural, immutable rights. This was a pre-condition fo
tution (Twenty-Fourth Amendment) Acjt valid.
Second, natural law describes no specific philosophy
lity, transcendence and universality. What and why so
immutable varies from one natural law theory to the
lying values vary. To claim this immutability withou
for it,55 without pointing out shared values, makes "n
venient tool which might be effectively cited if one d
able to give convincing arguments. The whole concept
purpose to withdraw a topic in advance from discussi
should not be the rule in a democracy.
50. The Times of India, April 25, 1973, and T. R. Andhyaru

Economic and Political Weekly , June 23, 1973, p. 1098-1099.
51. The leading doctrine in India.. See V. G. Ramachandran
and Constitutional Remedies 8-9 (2nd ed., 1968).
52. See supra pp. 58-59.
53. Supra note 40 at 1698.
54. Id. at 1658.
55. See also supra pp. 58-59.
10 JOURNAL OF ŤtiE IŇĎIANLa W INSTIŤUŤÉ [Vol. 17 : 1
In the Indian Constitution, there is no hint that the fundamen

should be considered inalienable. As only an express provision in
stitution can withdraw anything from discussion in a democracy,
law argument in Golak Nath must be seen as one which is used a
a purpose not articulated.
A third flaw consists in the judges' failure to differentiate b
right to property and other fundamental rights.56 The concept of
has borne vastly different connotations at different periods (not
different places) of human history. Which of them is guaranteed
law" ?
Justice Hidayatullah who voted with the majority correctly observed

hat of all the fundamental rights, property was the weakest.57 Under the
Indian Constitution v/ith its underlying philosophy of a gradualistic demo-
cratic socialism58 it is impossible to view property in its classic liberal
interpretation as an immutable, inalienable, natural right. Or, are the pro-
perty rights of Shell and Exxon immutably and externally fastened by
"natural law" on the Indian people under this Constitution ?59 In such a
system the right to property especially must be constantly adjusted to the
changing needs and values of the society.
It might be advisable to reinterpret the entire concept of property.
Today it guarantees only existing assets, thus protecting only those few who
have such a source of income. So far it does not safeguard the bare means
of subsistence to the millions of the masses, does not guarantee freedom
from economic want and insecurity. This striking imbalance could be
evened out either way : by stretching the concept of property as described
or by restricting it if it runs counter to the community as a whole.
It is well to remember that the judiciary's interpretation of the property
provision was the cause of the whole fundamental rights amendment con-
troversy. The amendments probably could have been avoided if the
Supreme Court had adopted a more flexible and constructive approach to
the right to property as read with the directive principles of state policy
under part IV of the Constitution.60 instead the court interpreted the
word "compensation" appearing in the context of compulsory acquisition of
property by the state, as meaning compensation at full market value,61 even
after the fourth amendment supposedly settled the question.62
56. See supra, pp. 62-63.

57. (1967) 2 S. C. R. 762 at 887.
58. See supra pp. 59-60.
59. P. K. Tripathi Some insights into Fundamental Rights 38 (1972),
60. A. R. Blackshield, 'Fundamental Rights' and the Institutional Viability of the
Indian Supreme Court, 8 J. I.L.I. 139 at 190-203 (1966).
61. State of West Bengal v. Bala Banerjee , (1954) S.C.R. 558.
62. Vajravclu v. Special Duty Collector , A.Ī.R. 1965 S.C. 1017,
1975] LA W AND DEVELOPMENT IN IÑDÍA lì
This it did, despite being fully aware of the fa

beyond the financial means of the state63 to pay com
at full market value, if social and economic reconstr
significant size.64 Besides, there had been a gen
Constituent Assembly that Parliament, not the judici
arbiter as to the adequacy or fairness of compensation
Thus natural law was invoked, to prevent the stat
property without full market compensation. Th
revoked until the Fundamental Rights case, when th
substitution of "amount" for "compensation" and th
ciation of the necessity of the time.66
The judges' background

Who are the judges of the Supreme Court ? Why
to a nineteenth century liberal interpretation of pr
socialistic state ?
The prototypie judge is the product of a socially

mically strongly advantaged family.67 He probably
this particular class. But typically he is a political m
political activities throughout his career. Until recen
tions seemed to have played virtually no role in his
pared to the practice in the United States and the W
refrained from participation in the nationalist movem
law as something unrelated to politics.70
Like most Indian lawyers, he is not particularly inte
At law school he has been trained to "apply" the law
63. Jagat Narain, supra note 43 at 882.

64. Indira Gandhi said in Parliament on August 4, 1971: "
pensation; but compensation for what ? Compensation for lan
or for a big house ? I would like to ask, Honourable Member
for injustice ? What about compensation for forced labour, fo
less people, for land unfairly grabbed ? What happens when a
ery runs down, its reserves eaten away, even provident funds
a small man's business closed and its partners driven to the str
of the capitalist system ?" Quoted from Indira Gandhi, "R
Change," Socialist India , August 14, 1971, as reprinted in Fu
44 at 99.
65. Supra note 43 at 882, f.n. 3.
66. Vasant V. Vaze; Executive and Judiciary -an Overview, 15 J J.L.I. 275 at 280
(1973).
67. George H. Cadbris, Indian Supreme Court Judges- A Portrait, 3 Law and Society
Review 317 and 324. (1968-69).
68. Vaze, supra note 66 at Zło.
69. Cadbris, supra note 67 at 330.
70. As ex-Chief Justice Hidayatullah remarked : "the judiciary as a whole is not in*
terested in the policy underyling a legislative measure." See M. Hidayatullah, Democracy
in India and the Judicial Process 70 (1965).
71. Rowe, supra note 16 at 242.
12 Journal op the inďian La w institute [Vol. 1 1 : l
policies designed to facilitate modernisation.72 He will ha

grounding in sociology, philosophy, history, and economics.
method and capability substantially from a typcial member of
Assembly who was typically dedicated to leading the people
All this certainly influences the judge's voting behaviour
Court and, therefore, its decisions.
Supreme Court v. Parliament
The question arises whether these men or Parliament should
say concerning amendments of the fundamental rights,75 We
this means : Who should decide the great questions of econom
policies ? The true character of the controversy is a struggle
for power between Supreme Court and Parliament.
According to the Indian Constitution the people are th
India. Therefore, in the final analysis, Parliament, as the
elected representatives of the sovereign must have the final au
matters. Members of Parliament are politically responsible f
and the consequences of their decisions; they can be voted
whereas the appointed small oligarchy of learned men of th
responsible to their own conscience.76 As Nehru remarked in
Assembly :
No Supreme Court and no judiciary can stand in judgment over

the sovereign will of Parliament representing the will of the entire
community. If we go wrong here and there it can point it out; but
in the ultimate analysis, when the future of the community is
concerned, no judiciary can come in the way. Ultimately the
Constitution is a creature of Parliament.77
This supremacy is not unlimited. Parliament can amend the Consti-

tution, i.e., overrule the Supreme Court only with a particular majority, as
prescribed by the Constitution. The court can caution and delay, point
out positions so far neglected and show alternatives. It can insist that the
government obtains a clearer mandate from Parliament; but it cannot
ultimately frustrate the will of Parliament.
When the majority in Golak Nath insisted to uphold the inalienable
rights of the people as expressed in the Constitution, it actually tried to
assert the court's supremacy over Parliament. This position was given up in
72. Ibid.
73. Implied by Jagat Narain, see supra note 43 at 903, f.n. 57.
74. P.K. Tripathi, supra note 59.
75. See also, supra p. 64. An institutionalized dialogue is suggested oy A.K. .black-
shield, 'Fundamental Rights' and the Economic Viability of the Indian Nation," 10 J. I. L.I.
1 at 58 (1968).
76. P. K. Tripathi, supra note 59 at 3.
77. As quoted from Speeches of Jawahar Lai Nehru (1949-1953) 4Ö4 (J St ecL, 1954;.
1975] LA W AND DEVELOPMENT IN INDIA li
the Fundamental Rights case. It reserved to itself, h

review any legislation concerning constitutionality (ju
Thus, the Indian Supreme Court seems to be headi
held by the judiciary in many countries, though know
("dualism," "political question doctrine", "judicial res
the court asserts the right to scrutinize the substanc
practically the ultimate power in each case is concede
Social philosophy, law and change
But the fundamental rights amendment contro
power struggle between Parliament and the Supre
conflict between two opposing views of the role law a
utional law has or is allowed to play in the developm
(a) One view, expressed by the petitioners and the
Nath case, stresses the need for stability and order.
that the fundamental rights including the right to
essence of the Constitution and the whole legal
changed as little as possible. Law is seen as somethin
static, providing for certainty and predictability. Th
as a tool to initiate social change but rather as one
lying philosophy is laissez-faire , preferring the
individual over the interest of the society as a whol
are to claim natural rights and supremacy of the jud
Ilw is found by pure legal logic.
• (b) The opposing view of the government headed
the majority in the Fundamental Rights case points o
They advocate amendability of the fundamental right
constitution can meet the challenge of changing s
objectives of social justice and equality. As Indira
ment, during the discussion of the * Constitution (T
ment) Act
[There is] need for change within a democratic

the need to prevent narrow vested interests from
processes of change. We all know that change
whether we like it or not. We all know that the subtlest and
cleverest argument cannot bind us to the past.... I do not see
any reason in a denial of radical change. Whatever is made rigid
ceases to be living . . . and may become less and less reflective
of the needs of a vital and dynamic people .... The choice in
every country is whether changes can come about peacefully or
whether they must be driven to violent means.79
For the proponents of this view the only alternative to violent revolution
78. Cf. T. Rk Andhyarujuna, supra note 50 at 1099.

79. Indira Gandhi, quoted iü supra note 64 at 98,
against the law is radical change through law,80 with law initi
lopment and responding to a changing reality. They argue that if
social and economic structure of a country has outgrown the n
times and is in urgent need of being overhauled, then even the be
ment cannot prevent a revolution if it is forced to work within t
legal framework.81
There are three underlying assumptions in this view. First, th
tic change of some kind is urgently needed. Keeping in mind t
of people living in abject poverty and mainly occupied with ju
alive, while economic disparities grow,82 this seems to be a fair
observation in India.
Second, that the Constitution and law in general could and should
meet the challenges inherent in such a reality. While social realities must
be reflected in the Constitution it must set the society's goals at the same
time. The Constitution - besides providing for political unity- enunciates
the broad development objectives, stressing those values which will facilitate
development. Thereby it exerts continually an. educative, guiding, and sti-
mulating influence, on the sub-elite, like the bureaucracy and judiciary. If
times change, so do parts of the Constitution. The advocates of this view
accept ordinary as well as constitutional law as an instrument of social
engineering in a developing society. They do not want certainty and pre-
dictability at the expense of fairness, socio-economic justice and develop-
ment. If these are not achieved, certainty and predictability become a
certainty and predictability of social injustice and retrogression.
The third characteristic of this view is a theory of constitutional law
reflecting the political philosophy of welfarism or democratic socialism.
The basic premises of this are the ideals as expressed in the directive princi-
ples,83 participation of the people in the political process, emphasis on an
increasing role of the state in the interests of social justice, economic demo-
cracy and equal opportunity to work according to one's interests and
capacities.84
(c) In the Fundamental Rights case the second view prevailed. The con-
titutional pre-condition for social change through law was met. Constitu-
tional change is, however, not an end in itself, but only a first step of
legal change leading to social development. To achieve this, law which would
have been unfeasable without the amendments (e.g., land reform BilJs) have
to be enacted. The point is, that since April 24, 1973 this is possible.
Klaus Scharioth*
80. See Vaze, supra note 66 at 275.

81. Jagat Narain, supra note 43 at 894.
82. For many other sources : A. M. Rosenthal, A Great Adventure Revisited, The
New York Times Magazine , May 5, 1974, pp. 66*67.
83. See also, supra pp. 60-61.
84. Cf. Jagat Narain, supra note 43 at 904.
* Fletcher Hall, Fletcher School of Law and Diplomacy, Medfořd, U . S. A.
1975] LA W ANĎ DEVELOPMENT IN INDIA 75
APPENDIX
Text of Mr. Nath Pai's Bill

(as reported by the Joint (Select) Committee of Parliament)
BE it encated by Parliament in the Nineteenth Year of the Republic
of India as follows :
1. This Act may be called the Constitution (Amendment) Act, 1968.
2. In the Constitution -
(a) in article 368, for the marginal heading, the following mar
heading shall be substituted, namely
"Power to amend the Constitution";
(b) the said article shall be renumbered as clause (2) the
and before clause (2) as so renumbered, the following cl
shall be inserted, namely
"(1) Parliament may by law amend any provision of
Constitution in accordance with the procedure laid do
in this article" ;
(c) in clause (2) as so renumbered, in the proviso, in cla
(b), before the words and letters "Chapter IV of Part V",
following shall be inserted, namely
"Part III"; and
(d) after clause (2) as so renumbered, the following clause shall
be inserted, namely
"(3) Nothing contained in article 13 shall apply to any law
made in pursuance of this article."

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LAW AND DEVELOPMENT IN INDIA

Author(s): Klaus Scharioth

LAW AND DEVELOPMENT IN INDIA

THEORY AND BACKGROUND

Law and development defined

This paper is concerned with the question of what role "law"

As a process of régularisation of social relationships, law can a

Law is set by generally accepted authorities equipped with the pow

1. For an outspoken and stimulating view of what "development" migh

by a variety of sanctions and incentives. It is always in const

4. This view is brilliantly argued by Wolfgang Friedmann, Law

then can never mean to avoid a choice of values, i.e.,

(b) Legal change can happen in three different way

(0 The normative content, i.e., the text, of law is c

(//) The social reality regulated by the norm has c

The function of constitution

terests, aims and forms of social behaviour have to be combined in

9. Hermann Heller, Staatslehre 228 passim . (1934).

tional order and matters of merely admini

11. The dominance of lawyer-politicians in the Constituent Assembly added

be safeguarded from state interference. Con

The significance of amending provisions

21. See above, features of the Indian Constitution at pp. 60-61.

of a constitution cannot be equally provided by state aut

25. Jennings, supra note 11 at 35.

Introduction and history

28. Kesavananda Bliarati v. State of Kerala , A. I. R. 1973 S. C. 1461.

32. The Constitution (First Amendment) Act, 1951.

Parliament amended the Constitution concerning fundam

35. The fourth, seventh, sixteenth and seventeenth amendments of t

Samyukta Socialist parties opposed42 and finally

42. S. P. Sathe, supra note 17 at 67.

The legal facade

In Golak Nath's case, the majority had held that :

(4) the Constitution (Twenty-Fourth Amendment) A

50. The Times of India, April 25, 1973, and T. R. Andhyaru

In the Indian Constitution, there is no hint that the fundamen

Justice Hidayatullah who voted with the majority correctly observed

56. See supra, pp. 62-63.

This it did, despite being fully aware of the fa

The judges' background

The prototypie judge is the product of a socially

63. Jagat Narain, supra note 43 at 882.

policies designed to facilitate modernisation.72 He will ha

No Supreme Court and no judiciary can stand in judgment over

This supremacy is not unlimited. Parliament can amend the Consti-

the Fundamental Rights case. It reserved to itself, h

[There is] need for change within a democratic

78. Cf. T. Rk Andhyarujuna, supra note 50 at 1099.

80. See Vaze, supra note 66 at 275.

Text of Mr. Nath Pai's Bill

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