Pakistan’s contribution to Indian Constitutional interpretation

The observations of Justice A.R. Cornelius in the Pakistani Supreme Court’s Fazlul Quader Chowdhry judgment were relied upon by Justice J.R. Mudholkar in the Sajjan Singh case to sow the seed of the basic structure doctrine.


When in Indian constitutional jurisprudence did the basic structure theory originate?

LAW grows, as does the Constitution. The doctrine of unamendability of the basic structure of the Constitution saw the light in the Supreme Court’s Kesavananda Bharati judgment in 1973, and grew in strength with the passage of time. Though as it is ageing, signs of senility are visible. (For instance, see the Supreme Court’s judgment in the Fourth Judges case in 2015).

The seed of this hallowed principle was sown by Justice J.R. Mudholkar in Sajjan Singh versus State of Rajasthan (1964). Though he dismissed the challenge to the 17th Constitutional Amendment, he observed that:

  • The Supreme Court’s decision in Sankari Prasad Singh Deo versus Union of India (1951) may not be the last word for the reasons mentioned by Justice M. Hidayatullah in his opinion in Sajjan Singh, and for some other reasons;
  • Whether changing the basic features of the Constitution would be rewriting a part of the Constitution, and if it could be within the purview of Article 368 of the Constitution, is an open question;
  • The members’ oath of allegiance to the Constitution might be harmonised by excluding the power to amend basic features of the Constitution.

But what inspired these observations? How did the principle of basic structure get seeded? Before I talk about it, some background on Pakistani jurist, judge and legal philosopher Alvin Robert Cornelius, and the Pakistani Supreme Court’s decision in Fazlul Quader Chowdhry versus Muhammad Abdul Haque (1963).

Also read: Basic structure and unwritten constitutional principles: analysing the Canadian Supreme Court’s recent ruling in relation to the position in India

Who was Justice Alvin Robert Cornelius?

Justice Cornelius, the fourth Chief Justice of Pakistan, was one of the most famous and influential figures ever to adorn the robes of a judge in Pakistan.

The seed of the basic structure doctrine was sown by Justice J.R. Mudholkar in Sajjan Singh versus State of Rajasthan (1964).

He was an Anglo-Indian. His Hindu ancestors were land owners, and his maternal side was of Luso-Indian or Portuguese-Indian origin (people with mixed Indian subcontinent and European-Portuguese ancestry). His father, Israel Jacob Cornelius was a professor of mathematics at Holkar College, Indore. He was born in Agra on May 8, 1903.

Cornelius did his schooling at St. Peter’s College, Agra. For his higher studies, he took admission at the Allahabad University in 1920, standing first in the entrance examination as well as his graduation in Mathematics. After obtaining a law degree in 1924 from the same university, he won a government scholarship to pursue further education abroad. He took admission at Cambridge University in the United Kingdom, and attended Selwyn College to get his LL.M. degree in 1926. The same year, he qualified for the Indian Civil Service and served in Punjab. He served the posts of Assistant Commissioner, District & Sessions Judge, and then became the Legal Remembrancer of the Punjab government in 1943. He was elevated to the Bench of the Lahore High Court in 1946.

Relying upon American judge T.M. Cooley’s treatise on Constitution Limitations and his own opinion in the Pakistani Supreme Court’s judgment in Special Reference No. 1 of 1957, he held that its provisions could not be so altered as to change the very nature of the Constitution.

He was one of the notable Christian figures in the Pakistan Movement, and was close to the founder of Pakistan, the barrister and politician, Mohammad Ali Jinnah, having faith in his vision. After independence, he opted for Pakistan. He was appointed as an associate judge of the Federal Court (later named the Supreme Court) of Pakistan in November 1951, and was confirmed in 1953. He was appointed as its Chief Justice on May 13, 1960 and served in that post till his retirement on February 29, 1968. He died at the age of 88 years on December 21, 1991 in Lahore.

What happened in Fazlul Quader Chowdhry?

The second Constitution of Pakistan came into force on June 8, 1962. Article 224(3) of the same empowered the President to modify it for the purpose of removing difficulties. In pursuance of this power, the President of Pakistan promulgated Order No. 34 of 1962. Among the others, it modified Articles 25 and 224 of the 1962 Constitution –

  • Providing the right to speak and participate to a Central Minister in the National Assembly, even if he was not a member of the Assembly (Article 25); and
  • Putting validity of the order beyond purview of courts by adding sub-article (4) in Article 224.

The three appellants in Fazlul Quader Chowdhry were members of the National Assembly. They were reluctant to become Central Ministers as they would lose their membership, their right to speak and participate in the National Assembly under Article 25. However, because of the 1962 order, they could speak and participate in the National Assembly. They accepted the central ministership.

Their appointment and validity of the 1962 Order was challenged in the High Court of East Pakistan at Dacca. This was accepted. The three ministers came up in appeal to the Pakistan Supreme Court.

The Pakistani Supreme Court unanimously dismissed the appeal. Justice Cornelius wrote the main judgement. Relying upon American judge T.M. Cooley’s treatise on Constitution Limitations and his own opinion in the Pakistani Supreme Court’s judgment in Special Reference No. 1 of 1957, he held that its provisions could not be so altered as to change the very nature of the Constitution. The court upheld the finding of the high court that neither of the amendments were within the scope Article 224(3), nor were the courts debarred from entertaining the challenge to the validity of the 1962 Order.

Also read: Indian judiciary, legislature must learn from Pakistan and recognise ‘enforced disappearance’ as a distinct offence

How did this inspire the basic structure theory?

The observations of Justice Cornelius in Fazlul Quader Chowdhry were relied upon by Justice Mudholkar in Sajjan Singh to sow the seed of the basic structure doctrine. His observations were the inspiration for the same – a great contribution to our Constitution from across the border.

I am thankful to Shri Hussain Raza, a young advocate from Pakistan, for helping me in writing this article.