Subba Rao in Sajjan Singh: the dissent that drew the line eight years before Kesavananda did

In 1965, four judges of the Supreme Court held that Parliament's amending power was unlimited. The fifth, Justice K. Subba Rao, said the question was open. Eight years later, Kesavananda agreed. A reconstruction of the dissent that the Court had refused to entertain, and the doctrinal architecture it quietly assembled.

In 1965 the Supreme Court was asked, again, whether Parliament could amend the fundamental rights chapter of the Constitution. The Court had said yes, fourteen years earlier, in Shankari Prasad v. Union of India. The 1965 challenge to the Seventeenth Amendment, brought before a Constitution Bench, asked the Court to revisit that holding. The Bench, by three to two, declined.¹

The two who would have entertained the question were Justice K. Subba Rao and Justice Mudholkar. Subba Rao's dissent is the longer and more developed of the two. It is also, on a careful reading, the document from which most of the architecture of the basic-structure doctrine eventually emerged. Eight years before Kesavananda Bharati, the dissent worked out, in a quieter register, the legal question that Kesavananda would face directly.

The case the Court was asked to decide

The Constitution (Seventeenth Amendment) Act, 1964 had added several state legislations to the Ninth Schedule, conferring immunity from challenge under Articles 14, 19 and 31. The petitioners argued that the amendment was unconstitutional because it abrogated their fundamental rights. The Union's defence rested on Shankari Prasad — the 1951 judgment that had held Article 368 was a self-contained code of amendment to which Article 13(2) did not apply.

The majority in Sajjan Singh reaffirmed Shankari Prasad. Chief Justice Gajendragadkar's lead opinion accepted that the question deserved consideration, but held that the fourteen-year-old holding should not be disturbed without compelling reason. The amendment was therefore valid; the Ninth Schedule continued to insulate the state laws from challenge.

The premise Subba Rao refused

Subba Rao's dissent does not, in its first move, attack Shankari Prasad. It does something more careful. It accepts the framework of the 1951 judgment as a starting point, and then asks: what does that framework actually say? Shankari Prasad had held that Article 368 was a special procedure for amendment, and that an amendment passed under that procedure was not a “law” within Article 13(2). Subba Rao agreed with the second proposition. He then drew a distinction the 1951 judgment had not.²

The distinction was this. Even if an amendment is not a “law” for the purposes of Article 13(2), it is still an exercise of constituent power. Constituent power, the dissent argued, is not the same as legislative power, but it is also not unlimited. The framers of a Constitution, in laying down a procedure for amendment, do not thereby authorise the amending body to dismantle the document itself. There must be, somewhere in the structure, a limitation on the amending power that the document's text does not need to articulate explicitly.

This is the move that Kesavananda would later make in narrower and more emphatic terms. Kesavananda's holding was that Article 368 does not contain a power to abrogate the basic structure of the Constitution. Subba Rao did not put it that way. But the structural intuition is identical: amendment cannot be unlimited, because an unlimited power of amendment is the power to remake the document, and the document does not contain a power to remake itself.

The evidence the dissent leans on

The dissent works through three sources. The first is the constitutional text itself. Subba Rao reads Articles 13(2), 32, 245 and 368 together and asks what the document, taken as a whole, presupposes about its own foundation. The reading is structural rather than textual; it does not depend on a particular construction of any one provision.

The second is the constitutional text of other federal democracies — the United States, Australia, Canada — in which an amending power exists alongside an entrenched bill of rights. The comparative treatment is brief but pointed: in each case, the amending power is bounded by something other than its own text, whether the bound is the supreme law clause, the federal compact, or a doctrine of implied limitations. The Indian text, the dissent suggests, would be anomalous if it were read as containing no such bound.

The third is the Constituent Assembly debates. Subba Rao quotes B.N. Rau and Alladi Krishnaswami Ayyar on the question of whether the framers intended the amending power to be plenary. The passages are not decisive in either direction; the dissent does not pretend they are. What the passages establish is that the framers regarded the amending power as serious and bounded, even if they did not articulate the bounds in the text. From this it follows, for the dissent, that a court asked whether the bounds exist cannot dismiss the question as already answered.³

What the majority refused to engage with

The majority's response to the dissent is, in places, more revealing than the dissent itself. Chief Justice Gajendragadkar accepted that the question was important. He acknowledged that the dissent's structural argument had force. He concluded, nonetheless, that Shankari Prasad ought not to be disturbed without “a compelling reason or strong ground,” and that the present case did not provide one. The majority is, in other words, refusing to engage on the merits. The 1951 holding stands not because it is right but because it has stood for fourteen years.

The dissent's response to this is precise. Stare decisis, Subba Rao argued, applies with full rigour to questions of common law and statutory construction. It applies with diminished force to constitutional interpretation, where the legitimacy of the Court's role rests on its willingness to revisit settled positions when the structural foundations of the document are at stake. To refuse to engage with the question is, in the dissent's reading, to make stare decisis do work the doctrine cannot bear.

What survived in Golak Nath, and then in Kesavananda

Subba Rao became Chief Justice in 1966. His tenure was short — he resigned in April 1967 — but it produced one judgment: I.C. Golak Nath v. State of Punjab, in which the Court, with Subba Rao writing for the majority, overruled Shankari Prasad on a different ground. Article 368, the Golak Nath majority held, did not authorise amendments that took away or abridged fundamental rights, because such amendments would be “laws” within Article 13(2).⁴

The Golak Nath reasoning was textual; the Kesavananda reasoning was structural. Both, in retrospect, can be read as building on the 1965 dissent. Golak Nath took the dissent's call to revisit Shankari Prasad seriously and answered the question with a textual ground. Kesavananda took the dissent's structural intuition seriously and answered the question with the basic-structure doctrine. The dissent itself did neither completely; it raised the question and pointed in directions that two later judgments, in different combinations of judges, would develop.

The doctrinal cost of refusing to engage

The institutional lesson of Sajjan Singh is the cost of refusing to engage with a question while it is still containable. The Court in 1965 could have addressed the question of bounds on the amending power on a relatively narrow record — the Seventeenth Amendment was not, in itself, a regime-changing measure. By declining to engage, the Court ensured that the question would return when the political stakes were higher.

It returned in 1967, in Golak Nath, with the Court divided six to five. It returned again in 1973, in Kesavananda, with thirteen judges, 703 pages, and a holding that has shaped the country's constitutional politics ever since. Each successive return brought a more committed answer because the political pressure had grown in the interval. A question entertained in 1965 might have produced a more measured doctrine. A question forced upon the Court in 1973 produced one that has, on this section's argument, expanded beyond its original purpose.

How the dissent reads now

Subba Rao's dissent is short by the standards of the cases it would influence. It is roughly thirty pages of the law report. The line that everyone remembers is its closing observation: that the question whether fundamental rights are amendable under Article 368 is not free from doubt and merits serious consideration. The line is doctrinally modest; it claims only that the question is open. It is, in retrospect, the most consequential line in the report. It opened a door that the majority had tried to close, and through that door — in Golak Nath, in Kesavananda, in every basic-structure case since — came the doctrine that has structured Indian constitutional law for half a century.

The judgment of the majority in Sajjan Singh is now a doctrinal footnote, cited mainly to be distinguished. The dissent of Justice Subba Rao is now the foundation. The four judges who decided against him were senior, careful, and within the tradition of the Court they served. The fifth saw a question they were not yet ready to ask. He asked it. Eight years later, the Court did the work of answering.