In the last part, we saw the tussle between the Parliament and the Judiciary over amendments to fundamental rights with Supreme Court finally putting its foot down and virtually making it impossible for the parliament to abridge fundamental rights in Golaknath case.

This is going to be a long post, so sit back and relax. You will come out appreciating the evolution better. Later, I urge you to read these developments in some detail and come back to answer the questions below.

Smarting from this setback, Madam Indira ( the parliament, herself) passed 24th CAA to neutralise GOLAKNATH judgement. But there was also a small matter of reversing Copper judgment in bank nationalisation case so parliament passed 25th CAA.

1. Art 19f delinked from 31, in effect parliament deciding compensation amount payable instead of courts.
2. Art 31c  -inserted under whoch – art 39b and c, most socialist of dpsp ( equitable distribution and prevention of concentration of wealth respectively )precede over 7 freedoms (art 19 ), equality (14),property (31)
3. Parliament’s power to determine if policy is to give effect to 39b and c not subject to judicial review.

29th CAA had put kerala land reform act under 9th schedule and his holiness challenged the provisions and all hell broke loose.

Now the 4th salvo

A 13 judge bench is constituted and what does it do?

1. Overturned Golaknath ie amendment not law , fundamental rights amendable, no implies limit under art 368 ie CAA 24 constitutional
2. Art 25 invalid to the extent it takes away judicial review ie 39b and c above 14, 19 and 31 but subject to judicial review

Most imp decision of all by slimmest of all 7-6 majority stated Parliament can amend any provision of the Constitution but the basic structure should not be destroyed, damaged or abrogated.

What’s the logic?

1. Expression amendment did not encompass defacing the constitution such that it lost its identity.
2. In the garb of amendment parliament can not rewrite the constitution.

Court gave relief to govt but reserved for itself power to review all amendment not just those that violate fundamental rights.

Aftermath

Indira Gandhi didn’t like the judgement 1 bit. She (via the president) superceded 3 judges to appoint justice A.N. Ray as CJI.

Knives had been drawn and the battle was gonna be very bloody .

Navnirman movement of JP (Jayprakash) had gathered steam. Indira on the back foot and then came the judgements of Allahabad High Court convicting Indira of corrupt electoral practices. Election null and void 6yrs ban.

Supreme Court stayed it and allowed her to remain PM but not to draw salary or speak or vote in parliament.

Darkest chapter in democracy’ 21 month emergency was declared on 25th June 1975 without even consulting cabinet.

Indira Gandhi wasn’t to sit quiet.

CAA 39th election of president, VP, PM and speaker beyond judicial review

Clownish Rajnarayan challenged the CAA 39.

For the 1st time supreme court applied basic structure doctrine and considered free and fair election and rule of law to be part of basic structure . #amending act invalidated.

Note here that 4 of the 5 judges on the bench had given dissenting judgment in Bharati case but still applied the same doctrine for supreme court judgment becomes law until overruled by bigger bench ( art 141 ).

Then how did Indira continue to be prime  minister and contest election again and not get banned for 6 years?

Supreme court accepted retrospective amendment to electoral law ie electoral malpractice of Indira was no longer a corrupt practice .

Find out for fun the charges against Mrs. Gandhi for which she was convicted and what a popular British magazine had to say about the judgement.

Along came mini constitution 42nd amendment act TO ELIMINATE IMPEDIMENTS TO THE GROWTH OF THE CONSTITUTION – 

1. PART 4a fundamental duties
2. Socialist and secular to preamble

And for the purpose of this article  amendment to article 368 nullifying basic structure doctrine by adding amendments can’t be challenged in courts and parliament possessing unlimited power of amendment

3. All DPSPs to take precedence over all fundamental rights not just 39b and 39c.

And Minerva Textile mills of Karnataka fired the 5th and the last salvo

Minerva Mills v Union of India

Unanimously struck down amendment to article 368 holding limited amending power and judicial review to be part of basic structure.

Court held that constitution is founded on the bedrock of balance bw FRs and DPSPs. Goals set out by DPSPs have to be achieved without abrogation of means provided by FRs.

What’s the logic?

If a donee was vested with limited power, it could not be exercised to control that very power power and convert into unlimited one.

Or

If a genie grants u 3 wishes, it is understood u can not, as one of the wish, ask for unlimited number of wishes !

Janta govt comes to power and CAA 44 deletes art 31 (b)  right to property and 19 (f) freedom to acquire, hold and dispose of property as they were not considered part of basic structure

Right to property now a constitutional right under art 300A.

9th schedule and judicial review

I.R.Coelho vs state of TN,  Supreme court held that acts placed under 9th schedule after basic structure subject would be subject to judicial review to the extent of those acts violating basic structure of constitution.

Impact of basic structure doctrine.

It certainly saved Indian democracy from degenerating into authoritarian regime during those testing times but it has also given immense untold unbridled power to supreme court and made it the most powerful court in the world .

As we would later see in the NJAC Verdict (let’s call it 4th judges case), Supreme court applied this doctrine, many would say for wrong reasons to strike down the act and kept for itself the power to appoint brother judges. In the original constitution only fetters on the power of parliament was art 13.

Relevance –  It was delivered at the time of single party rule both at the centre and most of the states. In the era of coalition politics no govt is going to wield so much power to destroy the constitution and then there is ever present danger of tyranny of unelected .

But only legitimate way to overturn the verdict would be a 15 judge bench so don’t hold your breath for that .

Now is the time for some thought  questions –

#1. Consider these 2 statements –

1. Any LAW ie ordinary law violating  provisions  of constitution  would be declared null and void to to the extent of contravention.
2. Any LAW violating art 13 would be declared null and void

Both statements are  true ..if amendments were not law, what was the purpose of art 13 (2) other laws would anyway be declared unconstitutional !

#2. Is basic structure doctrine relevant in the present political scenario where no single party is unlikely to enjoy majority in both the houses ?

#3. What should be the limits to amending power of parliament? Do u think for very substantial amendments instead of courts, people by way of referendum should determine whether amendment should go.through or not ?

#4. Whatever happens to original intent theory that constitutional courts have to interpret constitution in accordance with the implied intentions of founding fathers and there is enough evidence to suggest founding fathers thoughtfully kept FRs sacrosanct to prevent their abrogation or as we would see in a later article how supreme court by creative interpretation virtually changed procedure established by law in art 21 to due process of law while founding fathers deliberately kept expression as procedure established by law.

Should constitutional courts be vested with such power and risk becoming super parliament ?
Epilogue-  while basic structure doctrine saved Indian democracy and gave supreme court the final say in the matters of constitutional amendment, in the next article we shall see how the courts expanded meaning of rights under right to life and how procedure established by law has now become de facto due process of law and its implications on indian polity and democracy and by extension on all of us.