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.
By this post we try to understand such landmark judgments which have transformed Indian polity for all time to come. I am presenting 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.
So without wasting any further time, let’s discuss most transforming judgement of all –
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 (Constitutional Amendment Act) 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 Gandhi 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
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.