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

 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

 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!

 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
 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!
 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!
 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
 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.

 On Oct. 7th. 1976 Indira Gandhi in a speech in Parliament

refused to accept the dogma of ‘basic structure” of the
Constitution.

 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. Gave Directive Principles of State Policy precedence over

Fundamental Rights contained in Art. 14, 19, and 21.
2. Art. 31C was amended to prohibit any challenge in a court of law.
3. Amendments made in the past and those to be made in future
cannot be challenged in any court.
4. Removed all Amendments from Judicial review
5. 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!

 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
 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