Lines in the Margin (Part II): Mudholkar J. in Sajjan Singh v State of Rajasthan

This essay is part of a four-part series on some of the greater dissents in Indian constitutional law that are worth returning to. The previous post can be accessed here. I can only hope that readers find something of interest in this journey. 

Introduction

We all know the familiar trajectory of the Basic Structure doctrine. The story is usually told as an arc - from Shankari Prasad to IC Golaknath -- stabilising into Kesavananda Bharati --- and fortified through Minerva Mills. Yet somewhere along this telling, one judgement slips through the cracks ---- Sajjan Singh v. State of Rajasthan. The judgement rarely gets the spotlight. It is remembered, if at all, as just another stepping stone to Golaknath. But that is a deeply incomplete memory. For hidden within Sajjan Singh is one of the most consequential anxieties that our Constitution has ever witnessed. 

There is another irony (by the way).

We are taught to trace the idea of Basic Structure to Dieter Conrad’s theory of implied limitations (see here, here, here, here and here) - even when the doctrine acquired its familiar vocabulary vide Mudholkar J. in Sajjan Singh. For I would argue it was him - who cared to pause; and ask whether there exist certain “basic features” that Parliament can never efface. Now combine that with Hidayatullah J.'s unease about amending power and suddenly Sajjan Singh stops being a prelude. Instead, it becomes a site where the first tremors of Basic Structure were felt. And so, there is something rather consequential about the dissent in Sajjan Singh that deserves attention as a moment (of constitutional significance) in its own right. 

The Facts in Sajjan Singh – and the Early Story of Article 368

Before getting ahead of ourselves, ​​one must momentarily slow down the drama and sit with the rather ordinary factual setting from which this extraordinary anxiety (so to speak) emerged. The dispute arose from the State of Rajasthan’s efforts to implement agrarian reform laws that inevitably collided with the guarantees of property under Part III. Parliament, eager to insulate such “reform” legislation from scrutiny, responded with the Seventeenth Amendment. This amendment expanded the Ninth Schedule, placing a fresh set of land reform statutes beyond the reach of courts. Unsurprisingly, individuals whose rights were curtailed challenged it. 

Their contention was very simple: could the Parliament, under Article 368, amend the Constitution in a manner that directly abridges fundamental rights? Was the amending power truly so unbounded?

Now – by the time Sajjan Singh reached the Court in 1965, Article 368 had already travelled quite a journey. In Shankari Prasad, the Court had taken a comfortingly textual approach. It held that constitutional amendments made under Article 368 were not “law” within the meaning of Article 13, and therefore they could indeed alter fundamental rights. Parliament, in this telling, did not merely enact law; it altered the constitution itself, and Article 13 was not meant to stand in the way of such structural interventions. Perhaps, it is precisely this unsettledness that allowed Mudholkar J. and Hidayatullah J. to voice their doubts. Thus, Sajjan Singh marked the transitional stage where Parliament’s confidence was met with the judiciary’s unease, and the seeds of a doctrine that would later be named basic structure were quietly planted.

The Judgement and the First Signs of Unease

When the Supreme Court finally spoke in Sajjan Singh, the majority did what courts often do. It chose continuity over disruption - when confronted with difficult questions. 

Reaffirming Shankari Prasad, the Court held that Parliament’s amending power under Article 368 was plenary and could extend even to altering fundamental rights. Constitutional amendments, it reiterated, were not “law” within the meaning of Article 13, and therefore were not constrained by it. The Seventeenth Amendment was upheld. The Ninth Schedule’s expansion remained intact. The rhetoric, on the face of it, was one of confident reaffirmation. Parliament could amend; the Court would not interfere. Everything seemed stable.

Except, for what now seems obvious – it just wasn’t. Alongside this judicial reassurance sat something far more fragile. And Mudholkar and Hidayatullah JJ. refused to glide past the implications of what was being endorsed. Even while concurring in the result, they questioned whether it was possible to read Article 368 as an unlimited license to Parliament. Was the Constitution truly built to allow its own destruction through formal amendment? Could Parliament rewrite not just provisions but the very identity of the constitutional order? 

Sure, these opinions did not yet create doctrine. But they created something arguably more crucial. The grammar in which the basic structure would later be articulated.

Zooming In – Mudholkar J.’s Brilliance

At the very heart of Mudholkar J.’s analysis is a simple but beautiful move. He repositions a constitutional amendment as “law.” Parliament, he says, is not some grandiose, extra-constitutional creator in the image of Westminster. It remains a constitutional body acting under a conferred power. If it makes law in its ordinary capacity, why is an amendment any different? If constitutional amendments are law, they are reviewable. And if they are reviewable, then Article 13 becomes relevant. That thought alone destabilises the entire comfort of earlier doctrine. Just because the Constitution allows amendment does not mean every amendment successfully becomes part of the Constitution. Courts must examine whether it validly did so. He normalises judicial review of amendments by refusing to mystify them.

But the more radical part of his opinion lies elsewhere. He recognises the possibility that the Constitution may have basic features, ones that resist amendment not because Parliament lacks procedural compliance, but because some parts are foundational.

What makes Mudholkar particularly fascinating is how comparatively cosmopolitan his reasoning is. He explicitly invokes the Pakistani Supreme Court’s judgement in Fazlul Quader Chowdhry v. Mohd. Abdul Haque (PLD 1963 SC 486). Pakistan’s court had held that certain structural features are beyond alteration. That court grounded its reasoning partly in judicial oath, partly in the idea that constitutionalism implies limits even on those who claim to speak in the Constitution’s name. Mudholkar picks this up with remarkable openness, at a time when Indian constitutional law was not ordinarily eager to learn from Pakistan. He does so not out of comparative curiosity alone, but because he recognises a shared anxiety between postcolonial constitutional states - i.e. how does one preserve the constitutional project against those who would seek to re-script it under the guise of an amendment?

Yet, this is not by any means, a preservationist judgement. Mudholkar J. is careful to acknowledge the counter-argument. A dynamic society needs legislative flexibility. Fundamental rights must sometimes bend. But his faith is in the internal resources of the Constitution. Article 19 already builds in reasonableness. Directive Principles can guide. His instinct is not to freeze the document, but to protect its character while allowing adaptation. And perhaps that is the essence of why Mudholkar J.'s opinion matters. He resists binaries.

Sovereign Parliament v/s written Constitution

Amendment v/s law

Flexibility v/s rigidity

He asks whether the preamble might not be merely ornamental, whether allegiance and amendment can coexist without some conceptual hierarchy, whether “basic” might actually mean something. And so, when the Court in Kesavananda Bharati later articulates the Basic Structure doctrine with far greater clarity and confidence, it is not easy to forget that its DNA runs through this probing judgement by Justice Janardan Raghunath Mudholkar. 

Final Reflections 

I must pause to acknowledge that this piece could very easily have been about Hidayatullah J. alone, or about both him and Mudholkar J. together. Hidayatullah J.’s opinion carries its own instinct. He too refuses to treat Article 368 as limitless and worries about the consequences of allowing Parliament to rewrite the Constitution at will. 

So why foreground Mudholkar? 

Well, partly because his opinion does something symbolically powerful. It names the anxiety. It gives vocabulary to the idea that there exist basic features of the Constitution - an early precursor to what we now confidently call the basic structure. The choice, then, is not about hierarchy or claiming superiority of one dissent over another. It is about recognising that Mudholkar J.’s language, with its hesitant clarity and quiet audacity, marks the moment where Indian constitutional thought first dared to articulate the possibility that the Constitution may have a soul.

And that someone must guard it.

Lines in the Margin (Part I): Fazl Ali J. in A.K. Gopalan v. State of Madras

This essay is the first in what I hope will become a four-part series on some of the greater dissents in Indian constitutional law jurisprudence. I can only hope that readers find something of interest in this journey. 

Introduction

Dissents matter. We know this. Time and again, dissents have become the seeds of future doctrine. For, of course, had it not been for Khanna J.’s lonely protest in ADM Jabalpur, we would not have the Supreme Court’s burial of that decision in Puttaswamy. Had it not been for Subba Rao J.’s dissent in Kharak Singh, we might just never have arrived at the privacy and dignity jurisprudence, the way we did, decades later. As Jackson J. of the SCOTUS once aptly wrote, dissents are appeals “to the brooding spirit of the law,” and as Chandrachud C.J. has reminded us very recently - they are a value that lie not in immediate victory, but in truth-telling. 

It is in this lineage that Fazl Ali J.’s dissent in A.K. Gopalan stands. The earliest, and to my mind, perhaps the most prophetic dissent in Indian constitutional history. This essay intends to return to that dissent. The blog has, and I so hope, will always be about this sort of wandering. One that follows the threads of constitutional law wherever they lead, unbothered by topicality. And so this essay also marks the beginning of what I hope will become a longer journey through some of the greater dissents of Indian constitutional law. I can only hope the readers will be kind enough to bear with me. The invitation is simply to read along.

The World in Which Gopalan Was Decided

A.K. Gopalan was, by 1950, no stranger to prison. A prominent communist organiser in Malabar, he had spent much of the previous decade cycling through various forms of confinement under colonial public-order laws. There should be no two ways about the fact that when the Constitution came into force, the new Republic inherited the policing instincts of the late colonial state. The Preventive Detention Act, 1950 - hurriedly enacted in the first weeks of governance was precisely one such carryover. And it was under this Act that Gopalan found himself detained yet again.

As one must remember, the Court at the time comprised just six judges; Kania C.J., Patanjali Sastri, Mukherjea, Das, Fazl Ali, and Mahajan JJ. —— and it was this bench that was called upon to decide Gopalan’s challenge. Gopalan had submitted a writ of habeas corpus contending that the government's detention order infringed upon his fundamental rights to life, personal liberty, and mobility. Additionally, he claimed that the failure to inform him of the reasons for his detention violated his rights under Article 22 of the Constitution. In its defense, the state asserted that the order was made under the authority granted by the Preventive Detention Act.

The Decision in Gopalan – A Bench Divided From Its First Principles

What the Bench produced is something that can only be described as six separate opinions. The majority: Kania C.J., Sastri, Mukherjea, and Das JJ. were broadly aligned on the outcome, but not always on the reasoning. Mahajan J. agreed in part, but not in whole. 

And Fazl Ali J., of course, parted ways entirely.

1. Kania C.J. set the tone. Articles 19, 21, and 22, he held, operated in distinct silos. A law of preventive detention was to be tested only against Article 22 and, where necessary, Article 21. Not Article 19. The procedure established by law in Article 21 meant procedure enacted by the legislature, not a substantive due-process standard. And so, for as long as the legislature had prescribed a procedure, the Court’s role ended there. Section 3 of the PDA (authorising detention) was therefore valid. Section 14 (the notorious gag clause preventing disclosure of detention grounds) was unconstitutional, but severable, and its invalidity did not taint the rest of the statute.

2. Sastri J. followed a similar line. He argued Article 19 dealt with affirmative freedoms that presupposed physical liberty. Once a person was detained - lawfully (as one would assume) - those freedoms simply fell away. Preventive detention, in his view, was a self-contained domain governed primarily by Article 22. Article 21 offered no additional substantive constraint. Sastri J. was categorical that law in Article 21 meant enacted law, not principles such as natural justice.

3. Mukherjea J. joined the siloed-rights view. He argued that even if Article 21 technically applied, it could not be supplemented by general notions of fairness or procedural justice. Interestingly, the reason being Article 22. He accepted that Section 14 of the PDA was unconstitutional, but viewed the rest of the Act as intact.

4. Das J. elaborated the (majority’s) conceptual distinction most explicitly. While Article 19 protected specific facets of liberty; Article 21 protected personal liberty as a broad residual category. Thus, once lawfully detained, the rights under Article 19(1) were simply not in play. Article 22, he argued, was not exhaustive, but still provided the minimum procedural guarantees. Article 21’s procedure established by law referred only to legislatively enacted procedure. And so, much like the others, he upheld the Act except for Section 14.

5. Mahajan J. added a slight variation. While he agreed that Articles 19 and 21 did not operate together in preventive detention cases and that Article 22 provided a complete constitutional code for such laws. However, unlike the majority, he believed Section 12 (which permitted long detention without advisory board review) was unconstitutional for failing to meet Article 22(7)’s requirements. Even so, he upheld the detention order. 

6. And then there was Fazl Ali J. He rejected the silo theory entirely. Per Fazl Ali J. Articles 14, 19, and 21 were interlocking guarantees, and preventive detention laws must satisfy all three. The right to free movement (Article 19(1)(d)) was directly violated by any detention; Article 21, in turn, required a fair, reasonable, and just procedure - a standard drawn not merely from enacted law but from the basic principles of natural justice. Thus, Article 22 did not oust the operation of Articles 19 and 21. On this view, Gopalan’s detention was illegal. 

At the cost of repetition - Fazl Ali J. was the only member of the bench to reach that conclusion. 

Afterlife & Legacy

(i) Afterlife

The first site where the dissent’s afterlife began to emerge was Kharak Singh.

Mahajan J., speaking from the majority in Gopalan, had believed Article 22 formed a near-complete code for preventive detention. Two decades later, the Court in Kharak Singh was asked to consider whether police surveillance (domiciliary visits, watch entry registers, shadowing, in the face of - that is) violated personal liberty. The majority upheld much of the surveillance regime, largely clinging to the familiar Gopalan logic - Article 21 meant only whatever procedure Parliament deemed fit to enact. If Parliament said surveillance was lawful, then that was that. 

Subba Rao J., dissenting, refused to accept this. Borrowing directly from the logic Fazl Ali J. had earlier articulated, he insisted that liberty was not reducible to whatever the State named as procedure. Liberty, he argued, required dignity, autonomy, a sphere of life resistant to constant State intrusion. While Kharak Singh, sure, did not formally vindicate Fazl Ali J., but it brought back his imagination - that Articles 19 and 21 were co-constitutional guardians of freedom, and that procedure in Article 21 could not merely mean legislative ritual.

It took R.C. Cooper to land the first decisive blow on the ghost of Gopalan. There, the Court discarded the idea that each right corresponded to a separate head of legislation, insisting instead that laws must be assessed by their effect on rights, not their formal classification. Without saying so explicitly, the Court began dismantling the edifice Gopalan had built. The walls between Articles 14, 19 and 21 became thinner. The Constitution was beginning to sound more like Fazl Ali J. than Kania C.J. (as he then was).

Then came Maneka Gandhi For the first time, the Supreme Court said aloud what Fazl Ali J. had been arguing since 1950 - that Articles 14, 19, and 21 form a triad, that any law restricting personal liberty must meet the tests under all three provisions, and that procedure established by law necessarily meant a procedure that was fair, just, and reasonable. Our Republic had finally arrived at the constitutional vision one judge had seen at the very beginning. And yet, Maneka’s importance is not simply limited to that.

It, in many ways, institutionalised a constitutional morality that Fazl Ali J. had long gestured toward; one that treats liberty not as a grant subject to qualifiers, but as a foundational constraint upon State power. A democracy that takes itself seriously cannot allow the State to simply write a procedure and call it constitutional. Procedure must meet moral thresholds. Law must answer to justice. And the Constitution must be read not in linguistic fragments, but as an ethical whole.

In that sense, the dissent marked an important lineage. Indian constitutional law has often oscillated between two instincts: one that sees the Constitution as a charter of governance, and another that views it as a moral project. Fazl Ali J.’s dissent is the earliest, clearest articulation of the latter instinct.

It is also important to note that his dissent resisted the seduction of early constitutional deference. Post-independence courts across the world (from South Africa (pre-1994) to Ireland) often began their lives deferential, trusting State power in the name of nation-building, stability, and identity formation. The ghost of Gopalan fits neatly within that tradition. There was a palpable judicial unease with striking down national security legislation in a fragile young Republic. Fazl Ali J. refused that anxiety. His dissent was, in that sense, was also courageous; it insisted that the Constitution does not have an adolescence where rights can be suspended until the Republic matures. 

There is another way in which the dissent becomes foundational. It anticipates a philosophy of synthesis rather than segregation. Much later, in Puttaswamy, when the Court recognised privacy as a fundamental right, it relied once again on the integrated-rights approach that Fazl Ali J. had imagined. Privacy was located not in Article 21 alone, but in the overlapping guarantees of dignity, liberty, autonomy, and equality. That interpretive instinct traces a lineage straight back to Fazl Ali J.’s argument that the Constitution is not a catalogue of isolated guarantees but a web of inter-related commitments.

Thus, the deeper importance of the dissent lies in reminding us what dissents do in constitutional life. A majority judgement decides. A dissent preserves possibility. It ensures that the defeat of an argument is never the same thing as its erasure. When Fazl Ali J. wrote, he was not writing only for his Court. He was writing for every future bench that would confront State power over liberty. He was writing, quite simply, for time.

And time listened.

(ii) Legacy

Today, the ghost of Gopalan does not survive except as a cautionary lesson. It is rarely cited as persuasive doctrine; when it appears, it is usually as part of a genealogy of constitutional failure. Fazl Ali J.’s dissent, by contrast, forms part of the bloodstream of Indian constitutional law. Its method shapes how we now think about rights. Its suspicion of unreviewable State power over liberty informs how we approach preventive detention, criminal procedure, and administrative law. Its insistence on fairness as constitutional necessity is so naturalised that we barely pause to remember that the Court once rejected it.

That, perhaps, is the most extraordinary mark of its success. The dissent’s victory is not only that it was later followed; its victory is that it became so embedded in our consciousness that it now feels obvious. We almost forget that it had to be fought for. And that, in 1950, one judge stood alone to articulate it.

There is also something personally dignifying about the dissent. It refuses cynicism. It refuses the idea that law is merely what the majority says it is. It holds open a moral space within judicial reasoning. Fazl Ali J.’s opinion is rigorous, closely reasoned, structured. But it is also, unmistakably, humane. It understands that preventive detention is not an abstract category of State power. It is a real human being being deprived of liberty. And the law’s first duty, in that moment, is not to ask whether Parliament has followed its own paperwork, but whether the deprivation of liberty accords with the Constitution’s idea of justice.

Perhaps, in the end, that is the dissent’s greatest legacy. It demands that the Court remember that it is not a clerk to Parliament. It is, instead, a guardian of the Constitution. Seventy-five years on, with preventive detention laws still alive and frequently used, this reminder remains urgent. The ghost of Gopalan may be weaker, but it is not gone. The temptation to retreat into procedural formalism persists. And maybe that is why this dissent matters so deeply. Not because it won (though it did) but because it models a judicial temperament grounded in courage, imagination, and restraint. It shows us what it looks like when a judge refuses to let the Constitution be small.

For a Republic that continues to negotiate the balance between liberty and power, that remains a lesson worth reading. And re-reading. And never forgetting.