Is the Constituent Assembly Still Supreme? Revisiting the Bar of Article 329

Vaibhav Bansal
Jun 2
6 min read

Authored by Atharv Sharma, a 2nd-year law student at Hidayatullah National Law University, Raipur

Supreme Court of India | TSCLD Blog — Supreme Court of India

Introduction

The framers of the Constitution envisioned a separation of powers among the three branches to ensure that none of the branches transgresses into the function of the other or acts arbitrarily, disregarding the constitutional mandate. This separation implies certain restrictions on each branch, which, if respected and preserved, protect against what Locke and Montesquieu feared as the eclipse of the liberty of the citizen.[i]

These restrictions function to deter any branch from interfering with the function of other branches. However, when placed on the judiciary through ouster or finality clauses, these often create an unregulated nexus for the legislature and executive to function without any supervision. Such unsupervised domains can produce outcomes that undermine the constitutional framework. These limitations, if arbitrarily placed by the parliament in exercise of its amending power, can undoubtedly be struck down. The most notable illustration of this is the striking down of the 39 ^th Constitutional Amendment Act (‘CAA’), which placed the election to certain high legislative offices, such as the office of the prime minister and the speaker of the Lok Sabha, beyond judicial scrutiny to protect Indira Gandhi’s candidature.

However, suppose such a limitation is placed by the Constituent Assembly itself. In that case, it raises a question as to the competency of the court to override such a restriction, as the Constituent Assembly, regardless of any concern, is deemed sacrosanct. This issue becomes pertinent to examine, especially in light of the upcoming delimitation exercise and the complete bar on judicial review of such exercise due to restrictions by Article 329.

Therefore, this article attempts to:

Firstly, uncover the intent behind Art. 329 in light of the historical setting in which it was framed and its interpretation adopted by the courts, moving from a strict reading of the text to a more purposive approach. Secondly, evaluate the impact of this judicial shift, particularly in light of the Basic Structure Doctrine, and propose how a balance between the Constituent Assembly and the Judiciary can be reimagined.

Framing Article 329: Purpose and History

Article 329 stands as the clearest example of an ouster clause that limits the jurisdiction of the courts over electoral matters, particularly the delimitation of electoral constituencies. This provision enacted a safeguard for electoral processes against judicial delays, which was rooted in the Constituent Assembly’s concerns about preserving parliamentary sovereignty. As this delimitation exercise fell within the domain of legislative prerogative, it was emphasised that disputes relating to it should be resolved solely through parliamentary mechanisms, such as through electoral tribunals, rather than judicial intervention.

Another intent behind the enactment of such a provision can be inferred from the circumstantial environment of that time, characterised by the domination of the upper caste and majority communities in every position and post. The Constituent Assembly also recognised that unless formal safeguards were instituted, marginalised groups would continue to be excluded from meaningful participation. Therefore, they thought it best to prevent any challenge to the reservation of any constituency seat for Marginalised Classes by leaving such discretion completely outside the judicial purview. Thus, ensuring that the constitutional objective is met.

From Deference To Intervention

For decades, the judiciary refrained from reviewing delimitation orders and respected this bar. Early rulings such as Meghraj Kothari v. Delimitation Commission, N.P. Ponnuswami v. Returning Officer, etc., adhered strictly to the constitutional text, reaffirming Parliament’s exclusive prerogative and recognising complete autonomy of Parliament over delimitation of constituency. Even in 2007, the Supreme Court in Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, maintained this stance, which in one way allowed arbitrary practices like gerrymandering or partisan favouritism to remain unchallenged.

Eventually, a need was felt by the judiciary to revisit the intention behind the inclusion of such restraint in the constitution, especially in contemporary times with delimitation exercises at the doorstep of Indian Democracy. Thus, a departure from strict textualism to a purposive interpretation of the constitutional provision was deemed necessary by the Courts.

This change was effected in Kishochandra Chhaganlal Rathod v. Union of India, wherein the Supreme Court adopted a transformative view, admonishing a complete hands-off approach to delimitation matters. Herein, the petitioner challenged the reservation of the ‘Bardoli Legislative Assembly Constituency’ for an SC candidate. Although the court in this case did not declare the alleged delimitation exercise to be invalid, it derived from its previous decisions in Dravida Munnetra Kazhagam v. TN State Election Commission and State of Goa v. Fouziya Imtiaz Shaikh, it carved out an essential exception to the constitutional mandate. This implied that while the Constituent Assembly’s authority is foundational, it is not absolute in case it contradicts the basic principles of the Constitution.

Constituent Supremacy versus Judicial Oversight

This decision effectively permitted judicial supervision in delimitation matters despite the constitutional bar. However, this shift brought such interpretation into conflict with the original provision of the constitution as enacted by the Constituent Assembly, thereby creating an unprecedented situation of conflict between the judiciary and the Constituent Assembly.

For decades, the judiciary refrained from transgressing the constitutional mandate. Recently, recognising the risks of manifest arbitrariness, it has moved towards a transformative approach. However, this move creates an untenable proposition, implying that actions protected under original constitutional provisions are not entirely immune from judicial review, which challenges the traditional view propounded by jurists like HM Seervai, that the Constituent Assembly’s decisions are sacrosanct and not to be questioned.

However, this view regarding the sacredness of the constituent assembly decisions is critiqued by many scholars, including Upendra Baxi, who counter that while supreme during framing, the Assembly’s authority cannot bind future generations if it conflicts with constitutional morality. This critique is also in line with the court's obiter dictum in Kesavananda Bharati v. State of Kerala, which states that the Constitution must evolve through interpretation, not merely through amendments.

The judiciary thus faces a delicate task of balancing the reverence for the Constituent Assembly’s authority with the need for transformative interpretation to address contemporary democratic challenges.

Reimagining The Balance

The Supreme Court’s ruling raises a fundamental question: are the constitutional provisions drafted by the Constituent Assembly to be treated as permanently beyond the judiciary’s interpretive authority? It has long been recognised that the Parliament, while acting in its constituent capacity, is competent to amend the Constitution according to the procedure laid down therein. However, such amendments are always susceptible to judicial scrutiny because, though the Supreme Court controls neither the purse nor the sword, it wields the power to interpret the Constitution. However, this power would be diminished if the courts were confined to a strictly literal reading of the constitutional provision rather than interpreting it to preserve its underlying purpose. This is so because the framers themselves acknowledged that no constitutional text could anticipate every future challenge. They therefore vested in Parliament the power to amend and in the judiciary the authority to review such amendments, creating a system of checks and balances. However, when Parliament is reluctant to act, circumstances may require the judiciary to adopt a more proactive interpretive role.

This approach is not unique to India and can be derived from the well-celebrated “living tree” doctrine, articulated in Edwards v A.G. of Canada, which treats a constitution as a living tree capable of growth and expansion within its natural limits. Indian constitutional jurisprudence has followed a similar path, permitting the text to evolve to safeguard the values it embodies.

However, in the exercise of such a proactive role, the Judiciary may bring itself into conflict with the Constituent Assembly’s authority, which is regarded as sacred. But this presumption defeats the principle of constitutionalism, which entails that no entity, even the Constituent Assembly, is above the Constitutional principles.

Thus, this conflict can be resolved using the Basic Structure Doctrine. In Kesavananda Bharati, the Court held that while Parliament could amend the Constitution, it could not alter its basic structure. By extension, if the Constituent Assembly’s original provisions conflicted with this structure, the judiciary may have the authority to review them. For instance, if Article 329(a) were to be used to legitimise delimitation exercises that dilute minority representation, the Court could intervene to protect the basic structure’s equality guarantee.

Although such an approach will be criticised for appearing to challenge the Constituent Assembly’s authority, constitutional morality lies in upholding the Constitution’s basic pertinent principles and not in blind adherence to its original wording. Thus, a limited expansion of the Court’s interpretive role balances the Constituent Assembly’s authority with judicial supervision, in accordance with the fundamental constitutional principles.

Conclusion

The ruling in Kishorchandra Chhanganlal marks a careful step by the Judiciary in asserting the importance of constitutional values and balancing it with the Constituent Assembly’s authority. This case highlights the hurdle created by Article 329 and the practical need to ensure free and fair elections, particularly during the delimitation process. Therefore, this article illustrates how judicial interpretation can address potential arbitrariness which may arise in delimitation processes without dishonouring the Constituent Assembly’s authority by relying upon the basic structure doctrine. Such interpretation also aligns with the living tree approach, which views the Constitution as an ever-evolving instrument capable of responding to contemporary challenges. While the Constitution originally limited judicial intervention in electoral matters, the courts by extending oversight over these matters can strengthen democratic legitimacy. Thus, adopting such a broad interpretative approach establishes a balance between the constituent authorities and ensures harmony between the constitutional provisions and constitutional principles.