However, it does appear that the person who perhaps first articulated the idea that there are features of the Constitution that are beyond the pale of Parliament’s powers to amend the Constitution was Dr BR Ambedkar. Interestingly, he presented this point not as a member of the Constituent Assembly and not even as the country’s first Law Minister. He made this point as a counsel in the case of State of Bihar v.Kameshwar Singh.
Soon after the Constitution was enacted on January 26, 1950, several land reform laws were challenged in various High Courts across the country. It was the Patna High Court that delivered a judgment invalidating the legislation. Saurabh Kirpal’s recent book Fifteen Judgments: Cases that Shaped India’s Financial Landscape contains an excellent analysis of how the cases surrounding land reform laws in the early years of the Republic played out.
In June 1951, Parliament passed the First Amendment to the Constitution. One of the most important features of this amendment was that Parliament sought to shield laws pertaining to land reform and agrarian reform from judicial review, by introducing new articles to that effect [Article 31A and Article 31B read with the Ninth Schedule]. These amendments became the subject matter of review in Sankari Prasad Singh Deo v. Union of India, which upheld the First Amendment.
In the Kameshwar Singh case, counsel had to become creative and adopt a new strategy to challenge land reform laws which had been made immune from judicial review by the First Amendment.
Dr Ambedkar, who represented the interests of some zamindars, argued that regardless of the First Amendment to the Constitution, there was a particular constitutional principle which could not be affected by a constitutional amendment.
He propounded the idea that there was something such as the “spirit of the Constitution.” This spirit of the Constitution, according to Dr Ambedkar, substantively barred Parliament from enacting laws which took away private property without proper compensation. In other words, no form of constitutional amendment could allow Parliament to acquire property without compensation. As the judgment records:
“Dr. Ambedkar, who appeared for some of the zemindars in the Uttar Pradesh batch of cases, advanced a different line of argument…But he maintained that a constitutional prohibition against compulsory acquisition of property without public necessity and payment of compensation was deducible from what he called the “spirit of the Constitution”, which, according to him, was a valid test for judging the constitutionality of a statute. The Constitution, being avowedly one for establishing liberty, justice and equality and’ a government of a free people with only limited powers, must be held to contain an implied prohibition against taking private property without just compensation and in the absence of a public purpose.”
He relied on certain American decisions and text books to support the view that a constitutional prohibition can be derived by implication from the spirit of the Constitution, where no express prohibition has been enacted in that behalf.
Source: Barandbench
