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of Mrs. Indira Gandhi was set aside by the Allahabad High Court on grounds of corrupt practices. Instead of gracefully waiting for the outcome of her appeal before the Supreme Court, the Parliament passed the 39th Amendment Act, 1975 on 10th August 1975, taking the election of President, Vice President, and Prime Minister outside the pale of Judicial Review. The amendment was tailor made to nullify the decision of the Allahabad High Court. The constitutional validity of this amendment came up for consideration in the aforesaid Indira Gandhi’s case. Article 329-A(4) was held to be constitutionally invalid. Several observations regarding the law relating to elections are not relevant here. As regards to basic structure, Chandrachud J. who was part of the majority, referred to the five aspects that would constitute the basic structure:

o Sovereign democratic republic status

o Equality of status in opportunity of an individual o Rule of law

o Secularism and freedom of conscience and religion o Judicial review

The Supreme Court struck down Clause (4) of Article 329-A on various grounds. Ray, C.J. pointed out: “Clause (4) of Article 329-A……..has passed a declaratory judgment and not law. Legislative judgment in clause (4) is an exercise of judicial power………the validation of election cannot rest on clause (4).” Mathew, J. held that “democracy” is basic feature of the Constitution and this basic feature has been damaged by clause (4). Hence the clause was invalid. “An election dispute can be resolved only by a tribunal and not by a legislature.” This judgment had an extensive discussion on the basic structure theory and to what extent it would apply to the

ordinary law making powers of Parliament. This judgment is also important from the point of view of the meaning of the expression “constituent power”. The power exercised by a Constituent Assembly in framing a new Constitution is a plenary power and is not subject to any limitations. But the constituent power exercised by a body empowered to amend the Constitution is subject to limitations.

After the judgments of Kesavananda Bharati case and

Indira Gandhi Election case were delivered, Parliament

amended the Constitution in 1976 (Forty-second Amendment) Act and added the clauses (4) and (5) to Article 368.



42

nd

_{Amendment Act, 18}

th

_{December, 1976:-}

 This was the most extensive Amendment Act. It

contained 55 Sections and sought to amend a number of Articles. It proved to be a most controversial amendment as it was attacked more from the point of view of political affiliations rather than purely legal objections. There was a national debate on the proposals contained in this amendment. As the amendment was undertaken during the period of emergency when the freedom of expression was subject to many restrictions and a number of members of Parliament from opposition parties were in prison, it was denounced by many. The principles on which the amendment was based were the sovereign powers of Parliament to amend the Constitution, wide powers to the Union Government with a view to maintaining law and order in the country, curtailment of the power of the

judiciary with the purpose of taking away the jurisdiction of the Supreme Court as regards deciding the validity by a constitutional amendment, avoiding the interpretation of constitutional provisions. This amendment became one of the topics of general election to Parliament at the end of the emergency period.

 42 _{Amendment Act with reference to Article}nd

368––

Encouraged by the decision in Kesavananda

Bharati’s43 _{case, Clauses (4) and (5) were inserted}

in Article 368 by the 42nd _{Amendment Act, 1976, by} Mrs. Gandhi’s Government, to control another part of the Kesavandanda decision that though the Fundamental Rights constituted no limitation on the amending power, there were other ‘implied limitations’, namely, that the power to amend could not be used to alter the ‘basic features’ of the Constitution or to make a new Constitution. This latter view in Kesavananda’s case was intended to be superseded by Clause (4)-(5) which say that:

(a)there are no limitations, express or implied, upon the amending power under Article 368 (1), which is a ‘constituent power’, and that

(b)a Constitution Amending Act would not, therefore, be subject to judicial review, on any ground.

 But the Constitution (42nd _{Amendment) Act, 1976, in} so far as it inserted Clauses (4) and (5) in Article 368, has been held to be void by the Supreme Court in the Minerva Mills case.44 _{The Supreme Court held the new} clauses to be void on the ground that this

amendment sought to totally exclude judicial review, which was ‘basic feature’ of the Constitution.

 A question may be asked here, can we say that an amendment made by Parliament is an amendment made by people? The 42nd amendment was intended to achieve this object. It was argued that the amending body under Article 368 has the full constituent power. In other words, the Parliament acts in the same capacity as the Constituent Assembly when exercising the power of amendment under Article 368. It is submitted that this proposition is totally wrong. The reasons are:-

1) Firstly, an amendment made by Parliament cannot be said to be an amendment made by the people. There is a distinction between the power of the people to amend a Constitution and the power of the legislature to amend it. It is true that Parliament represents the will of the people. But it is not equally true that whatever Parliament does is usually approved by the people. The Lok Sabha election held in 1977 is a good example to show that the representatives of the people in Parliament do not always reflect the people’s will. Whatever was done during the emergency was done in the name of the people. But from the election result it was clear that they had rejected all what had been in their name by the representatives. Therefore it is not possible to derive support for an unfettered amending power from the theory that their representatives of the people always reflect the people’s will. The theory of basic structure propounded by the Supreme Court in Kesavananda’s case is correct and will act

as a safety valve against arbitrary use of amending powers. In Australia out of 30 amendments proposed by the absolute majority of Australian Parliament only four were accepted and 26 were rejected by the people.

2) Secondly, the assertion of parliamentary supremacy is based on wrong nations. The supremacy of the parliament is the main characteristic of the British Constitution, Parliamentary supremacy means that the Parliament has unlimited law making power. It includes both the constituent powers and ordinary law making powers. Parliament can change the Constitution by passing an ordinary law. It means that there is no distinction in England between constitutional law and ordinary law. Thirdly, no law passed by the Parliament can be declared unconstitutional by the courts. In India, Parliament is not supreme but the Constitution is supreme. Parliament is the creature of the Constitution and derives its powers from the provisions of the Constitution including the power to amend the constitution under Article 368. Laws passed by Parliament can be declared ultra vires the Constitution. There is distinction between constituent powers of Parliament and its ordinary law making powers. The amending power under Article 368, therefore, cannot be exercised in such a way so as to subvert or abrogate the Constitution.

 Thus the Constitutional amendments made under Article 368 can still be challenged on the ground that they are destructive of the ‘basic features’ of the Constitution.



Fourth Stage:-

o In Minerva Mills Limited v. Union of India, AIR 1980

SC 1789, the Supreme Court by 4:1 majority struck down

Clauses (4) and (5) of Article 368 inserted by the 42nd Amendment Act, on the ground that these clauses destroyed the essential feature of the basic structure of the Constitution. Since these clauses removed all limitations on the amending power and thereby conferred an unlimited and absolute amending power to the Parliament, it was destructive of the basic feature of the Constitution.

The judgment of the Supreme Court thus makes it clear that the Constitution –– and not the Parliament –– is supreme in India. This is in accordance with the intention of the framers who adopted a written Constitution for the country.

o In this case, the Supreme Court has held that the following are the basic features of the Constitution:

a) limited power of Parliament to amend the Constitution; b) harmony and balance between fundamental rights and

directive principles;

c) fundamental rights in certain cases; d) power of judicial review in certain cases.

Independence of Judiciary is also a part of the basic structure of the Constitution.45

o In Waman Rao v. Union of India, AIR 1981 SC 271, the Supreme Court held that all amendment to the Constitution which were made before 24th _{April, 1973 (i.e., the date on} which the judgment of Kesavananda Bharati was delivered) including those by which the Ninth Schedule to the Constitution was amended from time to time were valid

45 Shri Kumar Padma Prasad v. Union of India, (1992) 2 SCC 428. In this case appointment of a High Court Judge was quashed on the ground that he was unqualified.

and constitutional. But amendments to the Constitution made on or after that date by which the Ninth Schedule was amendment were left open to challenge on the ground that they were beyond the constituent power of Parliament because they damaged the basic structure of the Constitution.

o In this case, the Supreme Court laid down,” All amendments to the Constitution before April 24th_{, 1973 and} by which the Ninth Schedule to the Constitution was amended from time to time by inclusion of various Acts and Regulations therein are valid and Constitutional. Amendments to the Constitution made on or after April 24th_{, 1973, by which the Ninth Schedule was amended from} time to time by the inclusion of various Acts and Regulations therein, are open to challenge on the ground that they, or any one or more of them are beyond the constituent power of the Parliament since they damage the basic or essential features of the Constitution or the basic structure.”46

o In S.P. Sampath Kumar v. Union of India, AIR 1987 SC

386, the constitutional validity of Article 323-A and the

provisions of the Administrative Tribunals Act, 1985, was challenged on the ground that the Act by excluding the jurisdiction of the High Courts under Articles 226 and 227 in service matters had destroyed the power of judicial review which was a basic feature of the Constitution. The Supreme Court upheld the validity of Article 323-A and the Act as the necessary changes suggested by the Court were incorporated in the Administrative Tribunal Act. It held that though the Act has excluded the judicial review of High Court in service matters under Articles 226 and 227, but as it has not excluded judicial review under Articles 32 and 136, the Act is valid. The Amendment does not affect the

basic structure of the Constitution as it has vested the power of judicial review in an alternative institutional mechanism, after taking it from the High Courts which is not less effective than the High Courts.

o In Raghunath Rao v. Union of India, AIR 1993 SC

1267, the Supreme Court has reiterated the proposition

that the basic features of the Constitution cannot be amended by following the procedure laid down in Article 368. The Court has observed that the Constitution is the supreme law of the land and all organs of government- executive, legislature and judiciary derive their powers and authority from the Constitution. The Courts are entrusted with the important constitutional responsibilities of upholding the supremacy of the constitution. The amendment of the Constitution is only for the purpose of making the Constitution “more perfect, effective and meaningful”. An amendment should not result in “abrogation or destruction” of its basic structure or loss of its original identity and character and render the Constitution unworkable”

If an amendment trespasses its limits and impairs and alters the basic structure or essential features of the Constitution then the Court has power to undo that amendment. “An amendment of the Constitution becomes ultra vires if the same contravenes or transgresses the limitations put on the amending power because there is no touchstone outside the Constitution by which the validity of the exercise of the said powers conferred by it can be tested.”

The Supreme Court has stated that “unity and integrity of India” and the principle of equality contained in Article 14 constitute the “basic structure” of the Constitution.

o In a landmark judgment in L. Chandra Kumar v. Union

Constitution Bench of the Supreme Court has unanimously while reconsidering the Sampath Kumar’s case, has struck down Clause 2(d) of Article 323-A and Clause 3(d) of Article 323-B which provided for the exclusion of the jurisdiction of the High Courts under Article 226 and 227 and the Supreme Court under Article 32 of the Constitution as unconstitutional and invalid as they damage the power of judicial review which is the basic feature of the Constitution. The Court has held that, “power of judicial

review over legislative action vested in the High Courts under Article 226 and the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution and formed part of its basic structure.”

‘Ordinarily, therefore, the power of High Courts and the Supreme Court to test the constitutional validity of legislations can never be ousted excluded’. Following the

Kesavananda Bharati’s case, the Court declared unconstitutional Clause 2(d) of Article 323-A and Clause 3(d) of Article 323-B of the Constitution, to the extent that they excluded the jurisdiction of the High Courts under Article 226 and 227 and the Supreme Court under Article 32 of the Constitution.

The Court said that while this jurisdiction cannot be ousted, other Courts and tribunals may perform a supplemental role in discharging the powers conferred by Article 226 and 227 and Article 32 of the Constitution, so long as the jurisdiction of the High Courts under Articles 226 and 227 and of the Supreme Court under Article 32 is retained there is no reason the power to test the validity of legislations against the provisions of the Constitution cannot be conferred upon Administrative Tribunals created under Article 323-A and Article 323-B of the Constitution.

o In M. Nagraj v. Union of India, AIR 2007 SC 71, the petitioners challenged the Constitutional validity of the Constitution 77th _{Amendment Act, 1995, introducing Article} 16 (4-A) nullifying number of decisions, the 81st Amendment Act, 2000, introducing Article 16 (4-B), introducing promotion in reservation also which was stopped in Indra Sawhney’s case,47 _{and 82}nd _Amendment Act, 2000, introducing proviso to Article 355 which emphasizes the importance of maintaining efficiency in administration and the 85th _{Amendment Act, 2001, adding} words –– with consequential seniority in Article 16 (4-A) nullifying decisions in Ajit Singh’s case48 _{on the ground that} they violate basic features of the Constitution. However, a five Judge Bench of the Supreme Court headed by Chief Justice of India, Sabharwal, J. unanimously held that these amendments do not violate the basic feature of the Constitution. They are enabling provisions and only apply to Scheduled Castes and Scheduled Tribes. They do not obliterate constitutional requirements, such as –– 50% ceiling limit in Reservation, Creamy Layer Rule and post based roster sub-classification between Other Backward Class (O.B.C.) on one hand, and Scheduled Tribes (ST) on the other hand, as held in Indra Sawhney’s case. They do not alter the structure of equality of codes, therefore, they are not beyond the amending power of the Parliament.

o In I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC

8617, headed by Chief Justice Y.K. Sabharwal (comprising

Ashok Bhan, Arijit Pasayat, B.P. Singh, S.H. Kapadia, C.P. Thakker, P.K. Balasubramanyam, Altaman Kabil and D.K.

47 AIR 1993 SC 477

Jain, JJ.) held that any law placed in the Ninth Schedule after 24th _{April, 1974, when Kesavananda Bharati’s} judgment was delivered will be open to challenge. The Court said that even though an Act is put in Ninth Schedule by a Constitutional Amendment, its provisions would be open to challenge on the ground that they destroy or damage the basic feature, if the fundamental rights are taken away or abrogated pertaining to the basic feature of the Constitution. The Ninth Schedule was introduced to the Constitution through Article 31 (b) by the First Constitutional (Amendment) Act, 1951. The object of the Ninth Schedule was to save Land Reform Laws enacted by various states from being challenged in the court. Later on, it became an omnibus and every kind of law whether it related to election, mines and minerals, industrial relations, requisition of property, monopolies, coal or copper nationalization, general insurance, sick industries acquiring the Altcock Ashdown Company, Kerela Chillies Act, Tamil Nadu reservation of 69% and so on were inserted in it. No principle under lies this selection. Today the total number of Acts, inserted in Ninth Schedule of the Constitution is 284. The Tamil Nadu law in it was included because of the Supreme Court’s rulings in the Indra Sawhney’s case that overall reservation cannot exceed 50%. In the instant case, the politicians had challenged the validity of the various Central and State laws put in the Ninth Schedule including the Tamil Nadu Reservation Act. The Court said that the validity of any Ninth Schedule law has been upheld by the Apex Court and would not be open to challenge it again, but if a law is held to be violative of Fundamental Rights incorporated in the Ninth Schedule after the Kesavananda

Bharati’s case, such a violation shall be open to challenge

on the ground that it destroys or damages the basic structure of the Constitution.



In document ProMercado/SAGARPA. Adecuación de Productos para la Integración de la Alfalfa. Mexicana en el Comercio Global de Forrajes (página 103-109)