President’s rule has been imposed in Arunachal Pradesh that’s been wracked by political turmoil. Congress has denounced it as murder of democracy. Matter has been challenged in supreme court and five judge constitutional bench will hear the challenge.
Take the opportunity to know more about various kinds of emergencies-
Terrorist attack on Pathankot airbase after PM Modi’s Birthday Diplomacy has once again brought to spotlight challenges of dealing with Pakistan. Successive governments have tried to engage pakistan. PM vajpayee’s Bus Yatra to Lahore, Manmohan-Musharraf talks, PM Modi’s shawl diplomacy at the swearing in ceremony are some of the examples. Successive govt have also failed in their attempts to normalise relations with Pakistan. Question remains as to, what should be the best way to deal with Pakistan?
In this article, we try to answer some of the pertinent questions related to India’s Pakistan policy through the perspective of dove and hawk.
Some strategic commentators like to point out that there is a pattern to attack. Every attempt by India to improve relations with Pakistan has evoked this kind of response.
Lahore bus trip of Vajpayee was followed by Kargil attack.
Parliament was attacked after failed Agra summit.
When indian forces were deployed at border in response, attack at Kaluchak.
After Musharraf manmohan talk ran into rough weather, Mumbai serial train bombing and 26/11.
Ufa meeting was followed by Gurdaspur attack.
#1. Who are the elements within Pakistan who do not want normal relations between two countries?
Dove- Apart from jihadists, there are elements within the army who do not want any sort of movement towards any sort of rapprochement. But attacks do not necessarily imply that they were sanctioned by the top brass of Pak military.
Hawk- No evidence of split in Pakistani army. There may be differences of opinion but army remains a professional force controlled by army chief. Attackers must at least have the tacit approval of generals. Pakistani generals including Musharraf have been on record saying they use terrorists as instrument of state policy. This is part of their security doctrine.
#2. Are these attacks timed to prevent normalisation of relations?
Dove- Yes, certainly. Attackers do not want normal people to people relations. Pattern of their attacks bear testimony to this. They want to derail bilateral talks,
Hawk- They attack India to bring us to accept their agenda i.e. talk on Kashmir, Baluchistan etc. They believe,unless there’s terrorism, India won’t discuss the agenda Pakistan wants.
#3. What about talks? Should talks be cancelled?
Dove- There are no other options available and calling off the talk would be playing into the hands of terrorists. They should not be allowed to derail the peace process.
Hawk- Talks can not be an end in themselves. What is more important is what do we talk about? Pakistani generals have responded to all the concession given by PM in this manner. Now talk has to be on terror and terror only.
We also need to keep in mind, any talk with political establishment will not be successful until Pakistanis themselves are able to bring military on board
#4. If not talk, what are the other options?
Dove-Army is not a monolith,not everyone want bad relations with India. we should cultivate relations with the moderate elements within Pakistani establishment and civil society, create vested interests in favour of normal ties. War does not serve any purpose. There’s no alternative to talks.
Hawk- Only answer we have been able to devise to Pak provocation is to call off the talks.
Answer to low intensity warfare is low intensity warfare and it’s not bomb for bomb but emasculation of state structures. India should be prepared to hit pakistan where it hurts at the time and place of its choosing. There are so many internal fissures inside pakistan. We can exploit them.
#5. But wouldn’t unstable Pakistan be even more of a problem for India?
Dove- Destabilizing Pak doesn’t serve India’s interests. Creation of Bangladesh hasn’t necessarily helped our security. Instability there will lead to chaos which would spill over and would be disastrous for our security and other interests.
Hawk- Our problem is our fear that instability in Pakistan will harm us irreparably and our premise that stability of Pak is in our interest and the fond hope that political class and civil society will one day come up. If Baluchistan, frontiers were not there, what would remain is Punjab and it would be a weakened Punjab and its Punjab that’s creating problems.
Let’s not discuss whether a strong Pak is good for India, or weak Pak is good for India, of course no Pak is best for India.
#6. But why does Pakistan do it? What does it tell about the nature of Pak state?
Dove- Defiance is essential to ensure normal disparity never fully operate. Military obviously control its pak policy and elements within military and Jihadist groups carry out such attacks to maintain control over Pak society.
Hawk- It’s not a state with an army but army with a state. They have gone on a completely different trajectory. It is virtually becoming a theocratic state. Also there is deep criminalization of Pakistani state. Madrasas, jihadist groups, sectarian groups, organized crimes they have all become interlinked.
#7. What should India do to prevent such attacks?
Dove- Strengthen our own security. Carry on with talks to build positive momentum in bilateral relationship. Strengthen the hands of civilian govt there.
Hawk- Strengthen our security. Complete the fencing. Drug smuggling is rampant which can’t happen unless there is connivance on both sides. If smugglers can sneak through, so can terrorists.
We also need to improve our technical capabilities. They were using mobile phones and we were not even able to pinpoint exact locations.
We must also establish deterrence that mischief will be countered by robust action on the ground. Carrot and stick policy ie carrot of talk and stick of robust punishment on the ground.
#8. Can we carry out Myanmar like hot pursuit or operation like Neptune spear?
Dove- It will only escalate tensions and won’t be in the interest of either side. There would be too much pressure from international community. There’s vast difference in the capabilities of India and USA..
Hawk- We need to get rid of monkey of being a soft state off our back. If we so decide, we can undertake Myanmar like operation. There is a role of violence in state craft especially when we are dealing with very very violent actors.
#9. What about the role of international community, external pressure?
Dove- We are responsible member of international community. We should try to put pressure on Pakistan to stoop its territory from being used as launching pad for terrorism. We should not do anything that sully our image.
Hawk- Pakistan don’t feel any pressure, why do we feel pressure of international community! Everyone knows Pak is epicenter of terrorism yet Pak cleverly plays its card of being a nuclear armed state and gets away with everything.
Finally, something both dove and hawk agree on –
Fact remains that Pakistan will have to come to conclusion that good relations with India are in their own interest. It’s a society in deep crisis. Frankenstein monster has come to bite its own master. There is an urgent need of a civil society movement to overhaul the whole power equation and social structure of Pak society.
The story of landmark judgments continue and we are here with the tale of a judgement which ignited passions then, and is still hotly debated in the context of Indian secularism.
Consider the following facts –
It’s lawful for a Muslim man to keep more than one wife but not for a Hindu man. Of course no woman Hindu or Muslim can have more than 1 husband in our patriarchal society.
Hindus can form an undivided family (HUF) to manage their assets better and in the process reduce their taxes but not Muslims or Christians.
Christians can’t file for divorce before completion of 2 years of marriage while other communities can do so after 1 year of marriage.
Christian women get no share in the property of deceased children while different rules apply to other communities.
These observations prompt one to ask, whose law is it anyway!
This chaotic situation is the result of religious laws governing matters relating to marriage, divorce, succession, inheritance, maintenance etc.
The question of uniform civil code had been raised time and again since independence but post supreme court judgement in 1985 on “the maintenance a divorced Muslim woman would be entitled to receive”, this question has acquired a distinct communal overtone.
In this mini series we discuss the tale of Shah Bano case . This is the story of a judgement which would lead to politics of Mandal- Kamandal and set off a chain reaction which would set ablaze fires of communalism and set off one of the biggest communal riot in the post independence history of India. It would change the politics of India and relationship b/w 2 major communities forever.
But before we come to the judgment, let us briefly have a look at the constitutional provisions relating to religious freedom, secularism and supreme court interpretations of the same.
Art 15– No discrimination on grounds of religions, race,caste, sex, place of birth only.
Art 25– Freedom of conscience and free profession, practice and propagation of religion subject to reasonable restrictions on the grounds of public order, health and mortality.
Art 25 (2) provides for regulating secular activities associated with religious practices and social welfare and reform.
Art 26– right to establish and administer religious institutions.
Art 27– Prohibit state from levying tax proceeds of which are used for the benefit of a particular religion.
Art 28– deals with issue of religious instruction in educational institutions.
It emphasized the importance and necessity of uniformity in codification of Indian law, relating to crimes, evidences and contract.
It also recommended that personal laws of Hindus and Muslims should be kept outside such codification.
#2. Queen’s 1859 Proclamation promised absolute non-interference in religious matters. So while criminal laws were codified and became one for the whole country, personal laws continue to be governed by separate codes for different communities.
What was the reason?
Indians resisted British attempts to change their religious and customary practices and British realized it the hard way with various sporadic localized revolts and massive mutiny of 1857.
Charter act of 1813 had allowed missionaries to come to India and promote Christianity. To impress the liberal govt in Britain (2 main parties in Britain that time were liberals and conservatives, labour party came later ) to grant them another 20 years of trade monopoly, EIC, promoted activities of missionaries and under leadership of Bentinck passed many social reform legislation like abolition of Sati in 1829. But primary motive being money and loot, they abandoned it when they saw it hurting their commercial interests.
The same situation was allowed to continue post independence. Constitution was written in the shadow of partition. There was tremendous anxiety among the minority community so founding fathers thought it fit to prescribe principle of UCC in DPSP. It was their fond hope that with time, minorities will feel safe and parliament would be able to legislate a uniform civil code.
Apart from very chaotic situation different codes for different communities create, religious laws of every community discriminated against women. .Laws had to be reformed and for that very reason art 25 (2) provides for state intervention in secular practices associated with religion.
To reform Hindu laws, Hindu code bill was piloted by Dr Ambedkar which legalized divorce, provided for only monogamy, gave inheritance rights to daughters. Amid intense opposition of the code being anti Hindu, a diluted version was passed via 4 different legislation.
the Hindu Marriage Act,
Minority and Guardianship Act
Adoptions and Maintenance Act.
For instance diluted Hindu Succession Act, 1956, originally did not give daughters inheritance rights in ancestral property. They could only ask for a right to sustenance from a joint Hindu family. But this disparity was removed by an amendment to the Act in 2005.
Similarly in Gita Hariharan case, supreme court while interpreting Minority and Guardianship Act, declared mothers also the natural guardian of child even when father is alive.
Special marriage act was enacted in 1956 which provided for civil marriages outside of any religious law .
Other personal laws remained unreformed and most visible aspect at least in public consciousness of unreformed laws were provisions of triple talaq and polygamy in Muslims.
Let’s come back to the judgment
Shah Bano, a 73 yr old woman was divorced by her husband by triple talaq and was denied maintenance. She approached the courts.
District Court and high court ruled in her favour that led to her lawyer husband moving to supreme court.
Facts of the case
Under Muslim personal law, maintenance was to be paid only till period of iddat( roughly 90 days ).
Section 125 of crpc (criminal procedure code) that applied to all citizens, provided for maintenance of wife.
A five judge constitutional bench of supreme court unanimously ruled in her favour. But it also passed some adverse remarks about Muslim personal laws and failure of parliament to legislate UCC.
Note that judgement came not very long after 1984 anti Sikh riots. Muslims felt under siege and all India Muslim personal law board and conservatives vigorously defended the application of their own personal laws. Govt was accused of imposing Hindu culture on minorities. It was seen as a threat to Muslim personal law which they considered their identity. The fact that none of 5 judges who advocated for uniform civil code was Muslim did not help the matter but was evidence of imposition of Hindu values over Muslims. Media sensationalism did not help matters either.
Aftermath and impact
Rajiv Gandhi govt. buckled under pressure and passed The Muslim Women’s (Protection of Rights on Divorce) Act (MWA) was passed in 1986, which made Section 125 of the Criminal Procedure Code inapplicable to Muslim women.
This law was exact opposite of its name as any sane person can see it was passed to neutralize supreme court judgement in Shah Bano case.
Rajiv govt was accused of minority appeasement and perhaps to compensate the other side or by sheer coincidence, magistrate in Ayodhya ordered opening of the gates of disputed Babri masjid. Bofors scandal wrecked his Mr clean image and govt fell in 1989 and in ensuing general election VP Singh of national front became the PM. He played the Mandal card and in response, Advani started rath yatra. Politics of kamandal had begun . All of this would have very tragic consequences but that’s the story for some other day.
Daniel Latifi case
MWA was challenged on the grounds that it violated right to equality (art 14, 15) as well as right to life (art 21).
Supreme court while holding the law as constitutional, harmonised it with section 125 and held that amount received during iddat period should be sufficient to maintain her during iddat as well as provide for her future.
Different personal laws for different communities esp provision of polygamy for Muslim men gave rise to the phenomenon of converting into Muslim just for the sake of remarrying without divorce. Everyone would have heard the tale of Chand Mohammad(deputy CM of Haryana) and Fiza.
Sarla Mudgal v.Union Of India
Supreme Court in its judgement in 1995 held such practice as illegal and criminal.
Again an appeal was made to parliament to have a re look at UCC.
Supreme court parroted Sarla Mudgal lines again in Lily Thomas case5 years later but still many Hindus convert to Islam just to remarry.
in spite of the chaotic situation and denial of rights to women, governments hav failed to even put out a draft UCC. This leads us to ask-
Some thought questions related to UCC –
#1. Would there ever be suitable conditions for the enactment of UCC? What would be those conditions like? Would not vested interests always thwart attempt to bring a UCC?
#2. If parliament does indeed decides to bite the bullet and passes UCC,what could be the adverse consequences of the same?
#3. What should be the broad principles on which such UCC be based?
#4. Should supreme court not strike down all the provisions which are discriminatory to women or violate their human rights as being unconstitutional ?
#5. What do u think should be the way forward ?
In the next article we shall discuss more fundamental questions related to Indian secularism like right to freedom to convert, extent of state intervention in religious affairs, desirability or otherwise of a secular court interpreting scriptures and determining what’s core religious practice and what’s not and by extension what can be restricted and what can not be ?
Every good post must have compelling questions which set its user thinking. Right? Here are a few before we deep dive into our third installment of “Landmark judgements that transformed India”.
What’s the scope of right to life? Could parliament curtail personal liberties by any procedure, even one that violates all principles of natural justice? Do all fundamentals rights form an integrated scheme and need to be read together and in tandem or are all the fundamental rights distinct and should be considered in isolation ?
These were the broad questions which supreme court sought to answer in Maneka Gandhi vs Union of India case.
This is going to be a long read, yet again. Hope you enjoy these looonger narratives as they help bring out the flavour in full.
Immediate issue was impounding of Maneka Gandhi’s passport without giving her any hearing and disclosing any reasons which she challenged in supreme court under art 32 (right to remedy) on the grounds that right to travel abroad came under broad sweep of personal liberty granted under art 21 and order also violated art 14 (equality).
Before going into the supreme court observations and counter arguments, let’s have a look at the relevant constitutional provisions and supreme court interpretation of the same.
Art 21 – No person shall be deprived of life or personal liberty except in accordance with the procedure established by law .
Art 14 – Right to equality i.e. equality before law and equal protection of law
Art 19 – 6 freedoms (7th one right to property was deleted by 44th CAA)
Art 14 and 19 subject to reasonable restrictions (reasonableness being subject to judicial review)
Art 22 – Safeguards against preventive detention
For the 1st time Supreme Court was asked to interpret FR in 1950 in AK Gopalan vs state of Madras.
He was arrested under preventive detention act. (A person can be put in jail / custody for two reasons. One is that he has committed a crime. Another is that he is potential to commit a crime in future.)
Petitioner claim –
All FRs were to be read collectively, in tandem and it violated art 14(equality ) and art 21 (liberty).
Court disagreed and applied procedure established by law textually.
All FRs deal with distinct matters. Law is meant to satisfy article 22, petitioner not entitled to challenge it under other FRs ie equality and liberty.
Court did not find any similarity b/w american due process of law and Indian procedure established by law in effect saying courts had no power of substantial review of laws and had only to check if correct procedure had been followed.
Due process on the other hand would check reasonableness, fairness of law whether laws follow principles of natural justice or not .
Put simply the difference between the doctrines of substantive and procedural due process is a function of the interplay between the questions of “why” and “how” an authority decides the way it does.
Inquiries that seek answers as to “why” an authority decided the way it did, and examine the justice or injustice of the decision, are substantive.
Inquiries that examine “how” an authority procedurally arrived at a decision constitute an exercise of procedural due process.
For instance – if police arrests homo sexual couples, it’s valid as per procedure established by law as police followed correct procedure prescribed by a law enacted by a competent legislature but it may not be valid as per due process of law as it seems arbitrary, unjust to minorities (sexual minority) and this violates principle of natural justice . You get the difference bw the two, right !
Right to travel abroad question was settled in Satwant singh case, where court held that liberty under art 21 has wide import and exclude only those liberties expressly granted under art 19.
Right to travel within india – art 19
Right to travel abroad – art 21
But as art 21 was subject to procedure established by law, parliament could by enact of a valid law curtail right to travel abroad .
Meanwhile during emergency civil liberties came under heavy assault and Judiciary also buckled under pressure.
In ADM Jabalpur case also known as the habeas corpus case, supreme court held that people did not even have the right to file habeas corpus writ petition challenging illegal detention. Supreme court had applied doctrine of procedure established by law in letter but not in spirit.
After emergency in Maneka Gandhi case, supreme court sensed an opportunity for redemption and grabbed it with both hands.
Supreme court not only emphatically asserted right to travel abroad as fundamental right under art 21 but reversed its judgement in AK Gopalan case and held that rights form an integrated scheme .
Articles dealing with different fundamental rights contained in Part III of the Constitution do not represent entirely separate streams of rights which do not mingle at many points. They are all parts of an integrated scheme in the Constitution. Their waters must mix to constitute that grand flow of unimpeded and impartial justice… Isolation of various aspects of human freedom, for purposes of their protection, is neither realistic nor beneficial.”
Art 21 has to be read alongside art 14 and 19 which demand reasonableness and non arbitrariness .
Procedure established by law has to be FAIR JUST REASONABLE AND NOT FANCIFUL ARBITRARY AND OPPRESSIVE.
In one stroke of pen, court changed procedure established by law to de facto due process of law.
In essence present position of article 21 is fair, just and reasonable procedure established by a valid law.
Courts held that personal liberty in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have been made distinct fundamental rights in Article 21.
1. It marked the beginning of an era of judicial activism. It gave Judiciary the power to expand the canvass of rights and create new rights to give right to life its true meaning not just satisfied with right to life remaining an empty promise. Some of these rights include-
Right to live with dignity, right to education, right to legal aid , environmental laws such as right to clean air, right to noise free surroundings etc.
2. Judiciary got the power to review virtually every law. Using its power of substantial review of law by this judgement and basic structure doctrine courts have now started striking down even non constitutional amendment acts.
For instance in July 2014 it struck down national tax tribunal for taking away the powers of high courts of judicial review and not maintaining separation of judiciary and executive.
Similarly narcoanalysis against the wishes of the person was declared illegal by holding right to mental privacy as fundamental right.
In fact on 1997 itself supreme court in Chandra Kumar case had declared those provisions of art 323A and B (dealing with tribunals) unconstitutional which provided for direct appeal to supreme court holding judicial review by high courts as part of basic structure.
Note – tribunal were added by 42nd CAA by adding a new part 14A.
In this age of civil society activism, this judgement has given Judiciary a lot of leverage to expand scope of rights for the common citizen of this country.
But question remain should Judiciary become a super parliament, a paramount policy making body? As we would see in a later article judiciary virtually created a law in VISAKHA JUDGEMENT. Should not this task remain with parliament?
Should not power of substantial review of laws remain with the Parliament as was envisaged in the constitution?
Note that founding fathers deliberately dropped due process from the draft and replaced it with procedure established by law.
Another problem arise as different judges would surely apply different principles of morality. We examine this issue with respect to rights of sexual minority, right to privacy and euthanasia debate.
The Naz foundation case –
Challenged section 377 of IPC
Delhi high court decriminalised homosexuality holding that said section –
1. Violates right to dignity and privacy
2. Creates an unreasonable classification and targets homosexuals as a class.
3. Public animus and disgust towards a particular social group or vulnerable minority, it held, is not a valid ground for classification under Article 14.
4. Article 15 of the Constitution forbids discrimination based on certain characteristics, including sex. The Court held that the word “sex” includes not only biological sex but also sexual orientation, and therefore discrimination on the ground of sexual orientation is not permissible under Article 15.
5. The right to life under Article 21 includes the right to health, and concluded that Section 377 is an impediment to public health because it hinders hiv prevention effort .
But as you would know anti climax came when supreme court quashed the judgement holding it constitutionally unsustainable as only parliament can change laws not courts.
Right to privacy
Right to privacy was an inferred right. As we saw above even in Narcoanalysis case supreme court held right to mental privacy as fundamental right .
But 8 judge bench of supreme court in M P Sharma And Others vs Satish Chandra, District Magistrate Delhi (1954), and 6 judge bench in Kharag Singh vs State of Uttar Pradesh (1962), held that the right to privacy was not a fundamental right.
It has not been overruled by any subsequent judgment by a larger Bench.
But note that right to life was given an expanded meaning only after Maneka Gandhi case 1978.
And then there is a small matter of India being a signatory to international covenant on civil and political rights and UN declaration on human rights both of which consider right to privacy as human right.
Are we good? Hope you enjoyed reading till now! A few paras more!
Euthanasia debate/ Aruna Shannbaug case
Does right to life includes within right not to live or right to die as right to speech includes right not to speak or right to remain silent?
Maruti Shripati Dubal vs State Of Maharashtra,
Bombay high court held
Nothing unnatural about the desire to die
Every man is the master of his own body and has the right to deal with it as he pleases
Right to live includes right not to live or right to end one’s life
Section 309 IPC prescribing punishment for attempt to commit suicide unconstitutional
P.Rathinam vs Union of India
Supreme court observations
Attempt to commit suicide indicated a psychological problem rather than criminal conduct
Section 309 violated art 21
But this judgement would not last long as in…
Gian Kaur v/s state of Punjab
It was argued by petitioners that abetting suicide was merely facilitating enjoyment of fundamental right of not to live# abetment can not be penalised
Court reversed the judgement in Rathinam case
What was the logic?
Right to life is a natural right but suicide is unnatural termination of life # incompatible with the concept of right to life.
While other negative rights such as right not to speak suspend positive right for a temporary period, person can exercise his right to speak as he wishes; right to die would permanently end the right# incompatible with right to life
But the court held that right to life includes right to die with dignity. Court highlighted the difference bw desirability of law and constitutionality of law
Aruna shanbaug case
Court rejected mercy death petition but legalised passive euthanasia with elaborate safeguards
Judgement would obviously be challenged as it impinged not only on legal but important moral and ethical principles .
PIL filed by NGO Common Cause
3-judge bench of the Supreme Court of India said that the prior opinion in the Aruna Shanbaug case was based on a wrong interpretation of the Constitution Bench’s opinion in Gian Kaur v. State of Punjab. The court also determined that the opinion was internally inconsistent because although it held that euthanasia can be allowed only by an act of the legislature, it then proceeded to judicially establish euthanasia guidelines. The court referred the issue to a larger Constitution Bench for resolution.
You can clearly see how different judges apply their own individual morality to decide what is constitutional or not.
We can add Sallekhana judgement (natural vs unnatural death, importance of motive in suicide ) of rajasthan high court and subsequent staying by supreme court in the same pattern .
Question remains should not parliament which has a finger or the pulse of masses take such imp calls instead of courts with different judges coming from different backgrounds applying their own moral and ethical principles in the cloak of expanding the scope of human rights .
Now it’s time for some thought questions –
#1. What should be the limits of due process review ? If taken too far supreme court can virtually become a law asking body and if not applied it can create situations such as emergency. Where should be the right balance lie?
#2. As the doctrine has been widely accepted, isn’t it time parliament amended the constitution,provided for explicit due process clause and also specified its limits ?
If you enjoyed reading this, you might want to check earlier blogs here –
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.
Art 19f delinked from 31, in effect parliament deciding compensation amount payable instead of courts.
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)
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?
Overturned Golaknath ie amendment not law , fundamental rights amendable, no implies limit under art 368 ie CAA 24 constitutional
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?
Expression amendment did not encompass defacing the constitution such that it lost its identity.
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.
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 –
PART 4a fundamental duties
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
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.
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 –
Any LAW ie ordinary law violating provisions of constitution would be declared null and void to to the extent of contravention.
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.
The Judiciary, at one time, was considered and projected to be the weakest branch of the state because it possessed neither power of the purse nor power of the sword. This myth has been demolished. – Soli Sorabjee
Over the years by innovative interpretation of constitution, Judiciary has become very powerful in many democracies and nowhere is it more true than in the case of India .
Using its power to interpret the constitution and review laws, supreme court has expanded the scope of rights and limited parliament’s power to amend the constitution. It’s landmark judgments from Kesavananda Bharati to Shreya Singhal case running into 1000s of pages and lakhs of words quoting English poets to a google reference have changed the course of Indian polity and democracy like nothing else.
Understanding the judgements would help in understanding the working of our democracy and create an enlightened citizenry which would deepen our democracy.
In this series we try to understand such landmark judgments which have transformed Indian polity for all time to come. We will present the context, impact, present day relevance and ask some thought provoking questions for you to answer. Judgements have been presented in layman’s terms to help u understand better.
We hope u enjoy this series and hey, there’s also a small matter of u being able to write better answers in mains and solving questions in prelims but that’s only incidental!
So without wasting any further time, let’s discuss most transformational judgement of all –
#1. Kesavananda bharati vs State of Kerala (1973)/ limits to amending power of parliament / amendabiliy of fundamental rights/ basic structure doctrine
His holiness kesavananda bharati challenged before the supreme court validity of 29th CAA which inserted some laws in 9th schedule and affected property of his Hindu Mutt.
What else was at stake?
Supreme court (R. C. Cooper case ) had struck down bank nationalisation act of 1969 which had nationalised 14 major banks for illusory compensation though it conceded parliament’s right to nationalise banks in national interest.
Supreme court had struck down abolition of privy purses which was a betrayal of solemn promise to erstwhile kings by Sardar Patel.
Supreme court could do all this as it had held in 1967 in Golaknath case that fundamental rights could not be abridged.
Before returning back to Kesavananda, Let’s take a look at the relevant provisions of the constitution and supreme court interpretation of the same.
Art 13(2) Any LAW abridging fundamental rights mentioned in part 3 shall be null and void to the extent of contravention
Art 368 Procedure to amend the constitution.
Art 19(f) freedom to acquire hold on and dispose off property.
Art 31 right to property
Both the rights were subject to reasonable restriction in public interest and restriction were subject to judicial review
Soon after the coming into force of the constitution, states enacted land reform acts #Zamindars challenged them. #Patna high court declared bihar act unconstitutional for violating right to property #interim parliament passed 1st CAA.
ART 31B created 9th schedule. Laws inserted under it by constitutional amendment were immune to judicial review.
Other provisions not imp for this article but imp for exams
Reasonable restrictions against freedom of expression under art 19.
To nullify judgment in State of Madras v. Champakam Dorairajan and giving effect to art 46 (promoting educational and economic interests of weaker sections) amplified article 15 (3)
Zamindars didn’t like it, not one bit. And here comes the 1st salvo
Shankari Prasad v Union of India
Challenged 1st CAA. What was the court’s judgment?
Difference bw constituent power and ordinary legislative power ie amendment not law for the purpose of article 13
art13 and 368 in conflict # apply DOCTRINE OF HARMONIOUS CONSTRUCTION # ART 13 not applicable to art 368
Govt 1-0 Zamindars
Govt passed 17th amendment and inserted more laws under 9th schedule ‘
Zamindars fired yet another salvo
Sajjan Singh vs state of rajasthan
Supreme court sang Shankari prasad song again
Govt 2-0 jamindars
But Justice Mudholkar was of the view that the every Constitution has certain features which are basic in nature and those features cannot be changed.
2 minority judgements ..utter confusion. And you can see seeds of basic structure were sown here.
Zamindars fired 3rd salvo
Golaknath v. State of Punjab
11 judge bench overturned earlier 2 verdicts by a slender majority of 6-5
Really? What was the logic given here?
Nothing to suggest constituent power to be separate from legislative power and even if distinct amending power not same as constituent power which is given only to constituent assembly ie amendment is law and subject to article 13
Fundamental rights so sacrosanct and transcendental that they can not be abridged even if whole parliament unanimously decided to abridge them.
But it validated all previous land reform acts as nullifying them would create utter confusion
Govt angry – Zamindars angry
New landlords happy.
Loss – loss to defendants as well as petitioner.
Madam Indira was in power and she did not like this . Not one bit.
Along came 24th amendment to neutralise GOLAKNATH JUDGEMENT
Art 13 inapplicable to art 368
Art 368 provided powers as well as procedure to amend the constitution
Parliament by way of addition, variation or repeal can amend any provision of constitution
President shall give assent to CA bills ( VERY VERY IMP FOR PRELIMS )
But madam Indira wouldn’t just stop here as Cooper judgment (Bank nationalisation ) also had to be neutralised.
What did she do next? And how did all of this tie back to the Kesavananda bharati vs State of Kerala case. All for the next post inline.