The Big Fight

THE BIG FIGHT Parliament Vs. The Supreme Court

ROUND # 1 Congress and the Socialist Pattern of Society  Pandit Nehru’s Speeches in the Constituent Assembly  Directive Principles of State Policy-Art. 39 (a) and 39 (b)  Mandate for the Congress in the First Parliament  Agenda for Land reforms  Enthusiasm of States 

ROUND # 1

 Bihar Land Reforms Act 1950  Challenged in the Patna High Court  Struck down as violative of the

Constitution-Art.14 & 31

ROUND # 1 Response of Parliament First Amendment 1950: Fourth Amendment 1952: Inserted Articles 31 A and 31 B: Acquisition by State of any Estate to be immune from any challenge. Added Ninth Schedule 1951: List of Acts which cannot be challenged in court 250 Laws put in Schedule Nine Round # 1 goes to Parliament !!!

Round # 2 

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Property owners challenged Amendments putting the Land reforms in the Ninth Schedule as violative of Art. 13(2). 1952- Sankari Prasad Sing Deo Vs. Union of India 1955- Sajjan Singh Vs. Rajasthan Supreme Court rejected the plea and upheld the power of Parliament to amend any part of the Constitution including Fundamental Rights Round # 2 goes to Parliament !!!

Round # 3 THE GOLAKNATH VERDICT  1967: I C Golaknath Vs. State of Punjab  11 Member Bench heard the case  6:5 Majority Judgment  C.J Subba Rao

Round # 3 THE GOLAKNATH VERDICT Summary of the Judgment  Parliament’s powers to amend the Constitution limited by Art. 13.  Fundamental Rights occupies a permanent place in the Constitution and is sacrosanct  Core features of the Constitution cannot be changed

“Basic Structure” used for the first time by Advocate for Petitioner M K Nambiar

Round # 3 THE GOLAKNATH VERDICT Within few weeks Congress suffered electoral reverses Pvt. Members Bill (Shri Nath Pai) seeking to restore Parliament’s Supremacy tabled but could not be passed  

Parliament tries to restore its supremacy: Nationalisation of Banks Abolition of Privy Purses (Presidential Order) Supreme Court Struck down both moves!!! Supreme Court and Parliament on collision course!

Round # 3 to Supreme Court

Round # 4

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1971: In less than two weeks after S.C struck down Presidential order derecognising Princes, Indira Gandhi dissolved Parliament and called for a snap poll For the first time the Constitution became a poll issue. Congress returned to power with 2/3 majority. It now had the mandate to change the Constitution.

Round # 4 Spate of Amendments…with a vengeance! 

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1971: 24th. Amendment. Inserted clause 4 under Art. 13. giving absolute power to Parliament to amend the Constitution including Fundamental Rights. 1971: 25th. Amendment. Art. 39(a) and (b) of Directive Principles given paramount importance comparable to Fundamental Rights. 1971: 26th. Amendment; Privy Purse abolished Entire category of legislation placed in the Ninth Schedule

Round # 4 goes to the Parliament!!!

Round # 5 The Kesavanand Bharati Case:1973   

Full bench of 13 Judges: 11 Separate judgments.9 Judges signed summary report which had “discrepancies”.* Razor thin majority of 7:6 Judgement dated 24th. April 1973

At issue: The Constitutional Validity of the Amendments. The “Basic Structure” of the Constitution

*Granville Austin

Summary of the Verdict 

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Validity of the 24th . Amendment upheld. Parliament’s right to amend Constitution acknowledged. Golaknath case wrongly decided. Distinction made between Legislative and Constituent powers of the Parliament. 7 out of the 13 Judges (including C.J.Sikri) declared that the Parliaments Constituent Powers were subject to inherent limitations. Parliament could not use its amending powers to: damage, emasculate, destroy, change or alter the basic structure of the Constitution

Summary of the Verdict However, no unanimity on what is the “Basic Structure”: Sikri C.J: Supremacy of the Constitution, Republican form of Govt., Secular character, Separation of Powers, Federal character. Shelat & Grover: Mandate to build Welfare State, Unity and integrity of nation. Hegde & Mukherjea: Sovereignty of India, unity of country,individual freedom, welfare state. Jagmohan Reddy: Sovereign democratic Republic, Parliamentary democracy, The three organs of Govt.

The Minority View Justice A.N. Ray, M.H. Beg, K.K.Mathew, Dwivedi:  All Amendments are valid  All parts of the Constitution equally important  Parliament can amend Constitution vide Art. 368 Round # 5 to the Supreme Court!!!

Round # 6: Parliament Hits Back!  

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1973: Justice A.N Ray appointed Chief Justice superseding three senior judges. Counter Punch by Judiciary!: June 12 1975, Allahabad High Court unseats Indira Gandhi for electoral malpractises. Indira Gandhi files appeal to Supreme Court. Declaration of Emergency: June 26th 1975, Indira Gandhi declares Emergency

Justice Krishna Iyer, Vacation Judge, grants interim stay of Allahabad judgment.

Parliament’s Punch!  

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Even as the Appeal is pending before Supreme Court, 39th Amendment Bill tabled in Parliament. Contents: Removed authority of Supreme Court to adjudicate on elections of President, Vice President, Prime Minister and Speaker of Lok Sabha. Representation of People’s Act/Election Law placed in Ninth. Schedule 39th.Amendment Rushed through Parliament. Aug. 7th. Introduced in Parliament. Aug. 7th. Passed in Lok Sabha Aug. 8th. Passed in Rajya Sabha President’s assent in two days Ratified by States in Special Sessions Gazetted on Aug 10th. On Aug. 11 when case came up for hearing in S.C. Attorney General produced 39 th. Amendment and asked Court to throw out the case!!!

Election Case Verdict: 1975 

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4 out of the 5 Judges upheld the 39th. Amendment but struck down the clause pertaining to curbs on the power of the judiciary to adjudicate. Indira Gandhi’s election declared valid However, “basic structure” of the Constitution again became the focus. Despite disagreement as to what constituted “basic structure”, idea of a core content which is sacrosanct was upheld.

Round # 6 goes to the Parliament

Post-Kesavanand Scene 

Within three days of the verdict in the Election case, even though there was no appeal pending, C.J.Ray convened a 13 judge bench to review the Kesavanand verdict. After two days of hearing bench dissolved.

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On Oct. 7th. 1976 Indira Gandhi in a speech in Parliament refused to accept the dogma of ‘basic structure” of the Constitution.

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Congress constituted a Committee under Sardar Swaran Sing to study Amending the Constitution

ROUND 7:Further Amendments Swaran Singh Committee Recommendations 42nd Amendment (passed in 1976,effective Jan. 3rd. 1977) 1. 2. 3. 4. 5.

Gave Directive Principles of State Policy precedence over Fundamental Rights contained in Art. 14, 19, and 21. Art. 31C was amended to prohibit any challenge in a court of law. Amendments made in the past and those to be made in future cannot be challenged in any court. Removed all Amendments from Judicial review Removed all limits on Parliament’s power to amend the Constitution under Art. 368 Parliament asserts itself

Round # 7 to Parliament!!!

Round # 8 Parliament Challenged Again! 

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Within less than two years of near absolute power of Parliament, 42nd Amendment challenged before Supreme Court by owners of Minerva Mills of Bangalore N.A. Palkhivala argued for the petitioners. He argued that the 42nd. Amendment had placed unlimited powers in the hands of Parliament, and immunised its actions from judicial review. Art. 31C as amended was constitutionaly “bad” The Amendment went against the philosophy of “basic structure” accepted in Kesavanda and Election cases

Minerva Mills Case Verdict    

C.J.Y.V.Chandrachud delivering majority judgment (4:1) upheld contentions of Shri Palkhivala. Judicial Review of constitutional amendments restored Limitation of amending power is in fact one of the ‘basic features of the Constitution Amendment to Art. 31C is unconstitutional. Amendment to Art 31C remains a dead letter. Not repealed. But cases decided as if it did not exist.

Round # 8 to Supreme Court!!!

Postscript 

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The Emergency came to an end on 23rd Jan 1977 when Indira Gandhi called fresh elections and released all political prisoners The Janata Party repealed most of the changes introduced by the 42nd Amendment Act This was done by the 43rd. and the 44th. Amendment Acts which came into force in 1978 and 1979 respectively.

Thank You

Satyameva Jayate