SOUTH Asia has been greatly remiss in not acknowledging its debt to a jurist who single-handedly inspired a revolution in constitutional law. He was Prof Dietrich Conrad, head of the law department at the South Asia Institute of the University of Heidelberg, and the author of the doctrine that “the basic structure” of a constitution cannot be changed.

The Supreme Court of India ruled in 1967 in the Golak Nath case that “Parliament has no power to amend Part III of the constitution [embodying the fundamental rights] so as to take away or abridge the fundamental rights”. The court was split six-five; so was the majority.

Faced with the absurdity of an unamendable document, one judge said that parliament's residuary power of legislation can be invoked to convene “a constituent assembly for making a new constitution”. Another advised an equally absurd course; namely use the power to amend the constitution, conferred by Article 368 of the constitution, to convene that assembly and pass a law to sanction it. Thus a momentary two-thirds vote in parliament can serve to abrogate the entire constitution.

Counsel for the petitioner M.K. Nambyar urged that there were implied limitations on the amending power. The majority felt that “there is considerable force in this argument” but thought it unnecessary to pronounce on it. “This question may arise for consideration only if parliament seeks to destroy the structure of the constitution embodied in provisions other than in Part III of the constitution.”

Few knew then that he owed the argument to Prof Conrad. In February 1965, while on a visit to India, Conrad delivered a lecture on 'Implied limitations of the amending power' to the law faculty of the Banaras Hindu University. Nambyar's attention was drawn to a paper based on it which he read before the Supreme Court.

Conrad said “Perhaps the position of the Supreme Court [in earlier cases] is influenced by the fact that it has not so far been confronted with any extreme type of constitutional amendments. It is the duty of the jurist, though, to anticipate extreme cases of conflict, and sometimes only extreme tests reveal the true nature of a legal concept.”

Could parliament by a two-thirds majority change Article 1 to divide India into two states of Tamilnad and Hindustan? “Could a constitutional amendment abolish Article 21, to the effect that forthwith a person could be deprived of his life or personal liberty without authorisation of law? ... Could the amending power be used to abolish the constitution and reintroduce, let us say, the rule of a Mughal emperor or of the Crown of England?

A more detailed exposition of his views appeared after the judgment in Golak Nath's case ('Limitation of Amendment Procedure and the Constituent Power', Indian Year Book of International Affairs, 1966-1967, Madras). On April 24, 1973, a special bench of the Supreme Court ruled by a majority of seven-six, that Article 368 of the constitution “does not enable parliament to alter the basic structure or framework of the constitution”. This was the famous Keshavananda Bharati case frequently cited in Pakistan these days. The court overruled the Golak Nath case and rejected the concept of implied limitations.

Equally split between two extremes, Justice H.R. Khanna's ruling tilted the balance and has been repeatedly affirmed since. “The power of amendment under Article 368 does not include the power to abrogate the constitution nor does it include the power to alter the basic structure or framework of the constitution. Subject to the retention of the basic structure, the power of amendment is plenary.”

He approved as “substantially correct” the following observations by Prof Conrad “Any amending body organised within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its constitutional authority.”

It was no mere coincidence that a German jurist had thought of implied limitations on the amending power. Article 79(3) of the basic law of the Federal Republic of Germany, bars explicitly amendments to provisions concerning the federal structure and to “the basic principles laid down in Articles 1 and 20 [on human rights and the 'democratic and social' set-up]. Germans had learnt from the bitter experience of the Nazi era.

It is, again, to Prof Conrad that we owe a mass of information on the spread of the 'basic structure' doctrine in a lecture on 'Basic structure of the constitution and constitutional principles', delivered at the Indian Law Institute in New Delhi on April 2, 1996. It was published in Law and Justice, a journal of the United Lawyers Association, New Delhi.

Conrad was familiar with cases in Pakistan, India, Bangladesh and Sri Lanka. The doctrine was adopted by the Supreme Court of Bangladesh in 1989 expressly relying on the Keshavananda case. Conrad noted that in 1963 in Fazlul Quader Chowdry vs Mohammad Abdul Haque, the Pakistan Supreme Court had introduced the expressions “fundamental” or “essential features of the constitution”, “basic structure of government” and so on to describe the inherent limitations of a presidential power to remove difficulties in bringing the constitution into operation.

He added “Recently, in the famous case on judicial appointments, the Pakistan Supreme Court has come very close to recognising a 'basic structure' limitation on the power of amendment. In fact it is amazing to see how they could arrive at certain conclusions and still evade an express recognition of the doctrine.” (Al-Jehad Trust case in 1996.)

Prof Conrad was learned in India's history and philosophy, besides constitutional law. He wrote extensively on knotty issues of Hindu law and Muslim law. At Heidelberg he was a guide, friend and philosopher to many a South Asian student.

Sadly he received hardly any recognition for his service during his visits to India except from two senior counsels in the 1973 case. One was M.C. Chagla. The other was Anil B. Divan who recalled the first meetings with the leading counsel Nani Palkhivala. “Nani asked us to give all the cases where constitutional amendments were invalidated. We were flummoxed and told him that there was no such reported case of invalidation of a constitutional amendment. Palkhivala was greatly disheartened until we gave him an article by the late Prof Dieter Conrad.” It created history.

Were it not for the 'basic structure' ruling, Indira Gandhi would have recast the constitution entirely during the emergency in 1975.

The writer is an author and a lawyer.