This article is written by Darshit Vora from SVKM, Narsee Monjee Institute of Management Studies, this article critically analyses the Minerva Mills Judgment also explains the concept of basic structure and the concept of judicial review. Various contents of the 42nd Amendment Act, 1976 have been included in this article.
Fundamental Rights are the essence of the Constitution and should be considered more than a directive principle because they can be enforced by the Court. The three organs of the Constitution include legislation, executive, and judiciary. It is important that there should be a right balance between them. There have been instances where the executive and legislative have committed action in order to expand power over the other organs. To protect the rights of the individual judiciary have time and again taken steps to protect those rights. In the case of Minerva Mills vs Union of India a similar attempt was made to exploit the power of the Parliament.
On 24, 1973 the Supreme Court pronounced its one of the most historic judgments in the history of the Indian Constitution.
The government through the Land Acquisition Act, 1969 tried to acquire the land of Kesavananda Bharati under Article 32 of the Indian Constitution. Before the challenge, there were a series of amendments passed:
- First: 24th Amendment It provided power to the Parliament to make an amendment and nothing would, in Article 13 apply made under Article 368.
- Second: 25th Amendment It reduced the burden from the State to adequately compensate the landlords. This removes the link between Article 19(c) and Article 31(c) of the Indian Constitution. Article 39 clauses (b) and (c) was given more primacy over Article 14, 19, or 31 of the Indian Constitution.
- Third: 29th Amendment inserted Kerala Land Reform Act, 1969 in the Ninth Schedule thus making it outside the scope of judiciary to review.
- The Court held that the Parliament can amend the Constitution without hampering the basic structure doctrine.
- The Parliament can amend fundamental rights as long as they are in consonance of the basic structure doctrine.
- The Court struck down the part which restricted the Judicial Review.
This Judgment didn’t go well with the legislation then the 42nd Amendment Act, 1976 was passed which mentioned that all or any Directive Principle of the State Policy would have primacy over the Fundamental Rights of Article 14 and 19. Further inserted clauses (4) and (5) stated that the Constitutional Amendment under Article 368 is outside the scope of judicial review. This amendment was passed to nullify the effect of the judgment passed in the Kesavananda Bharati case so that any law can be implemented without the fear of judicial scrutiny.
Facts of the case
Minerva mills is a textile mill located near the Bengaluru city. The Central Government considering the substantial fall in the production of Minerva mills appointed a committee under Section 15 of the Industries Development Act,1951 this was done in the year 1970. The committee submitted its report to the Central Government in October 1971. The Central Government authorized the National textile Corporation Limited which was a body formed under the Industries Development Act,1951 to take over the management of Minerva mills. In the 39th amendment, nationalization was included in the ninth schedule which was outside the purview of judicial review. After a huge setback in Indira Gandhi vs Raj Narain to have supreme power, a 42nd amendment was passed in the parliament which amended Article 31C through Section 4 of the Constitutional amendment Act, 1976. Further Section 55 of the 42nd Constitutional Amendment Act, 1976 made amendments in Article 368.
Amended Article 31C read as:
No law giving effect to the policy of the State towards securing (all or any principles laid down in Part (IV) shall be deemed to void on the ground that it is inconsistent or abridges any right which is conferred under Article 14 or Article 19; no law containing the declaration that it giving effect to such policy shall be called in the question in the in any court on the ground that it does not give effect to such policy.
Proviso: that where such laws are made by the legislature of a State, the provisions of these Articles shall not apply thereto unless such law, having time being reserved for the consideration of the president has received his assent.
This amendment meant that no laws that gave effect to the directive principle could be struck down by a court on the basis that it violated the right to freedom of speech or right to equality.
Amended Article 368 of the Indian Constitution there was an insertion of clauses (4) and (5) read as:
(4) No amendment of this Constitution including the provisions of part III made or purporting have been made under this article whether before or after Section 55 of the Constitution shall be called in question in any court on any ground.
(5) For removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of parliament to amend by addition variation or repeal the provision of the Constitution under this article.
The amendment made in Article 368 would nullify the effect of the Kesavananda Bharati Judgment.
The petitioners challenged
- They challenged the validity of Sections 5(b), 19(3) 21, 25, and 27 (read with 2nd Schedule of the Nationalization Act, 1974.
- Sections 4 and 55 of the 42nd Amendment Act, 1976.
- Order of the Central Government to nationalize Minerva Mills.
- The primacy of the Directive Principle of the State Policy over the Fundamental Rights.
The issue before the Supreme Court
- Whether insertion made under Article 31C and Article 368 through sections 4 and 55 of the 42nd Amendment Act, 1976 does hamper the basic structure doctrine?
- Whether the Directive Principle of the State policy has primacy over Fundamental right to the Indian Constitution?
Arguments of the Petitioner
The petitioners were represented by Nani Palkhivala he was the ambassador of the Janata Government soon he felt the need to return to India to protect Human Rights so he argued the case on the behalf of the previous owners of the Minerva Mills.
- The amendment powers of the parliament are limited under Article 368. This amendment would allow parliament the creature of the Constitution to become its master.
- The court decision in the Kesavananda Bharati case mentioned that the Parliament has no authority to disturb the basic features of the Constitution.
- It was an obligation on the State to pass laws on the Directive Principle of the State policy but it should be done through permissible means it cannot overrule the Fundamental Rights.
- Due to section 55 of the 42nd Constitutional Amendment Act, 1976 no court would have the power to review the constitutional amendment passed by the Parliament this would damage the balance between the Judiciary and the Parliament.
- There would be a disbalance that would be created between the Fundamental Rights and the Directive Principles of the State Policy there is a need to create a harmonious construction.
- Almost every law enacted by the government would one or the other way be associated with the Directive Principles.
- To give immunity to the Directive Principle would wipe out Article 19 and Article 14 of the Indian Constitution.
Arguments of the Respondents
The State was represented by the attorney general L.N. Sinha and additional solicitor general K.K. Venugopal they both were in a precarious position to defend the amendment passed the emergency era:
- Article 31C of the Indian Constitution reinforced the basic structure doctrine, Directive Principles provided goals in absence of Fundamental Rights.
- Any harm that is caused to the Fundamental Rights won’t amount to the violation of the basic structure doctrine.
- To achieve the goals framed under the Directive Principle of the State Policy powers of the Parliament should be supreme there should be no restrictions on its amendment powers.
- The issue related to academic interest should not be decided by the Court.
- The government through the naturalization process was assisting the company to raise loans.
After almost 7 years from the passage of the order passed by the Central Government to conduct the investigation. The decision was pronounced by a five judge bench of the Supreme Court with the Majority of 4:1.
The majority opinion was given by Justice Chandrachud on the behalf of Justice A.C. Gupta, N.L. Untwalia and P.S. Kailasam.
Article 368 of the Indian Constitution
- The parliament has the power to amend the Constitution but should be within its basic framework.
- The theory of unlimited power to amend the Constitution would alienate democracy and create a totalitarian State.
- The clause (5) is unconstitutional because it hampers the basic structure of the Constitution.
- The clause (50 was struck down as because it restricted the court’s power of judicial review on and amendment.
Article 31C of the Indian Constitution
- If part IV subverts Part III of the Indian Constitution it would destroy the basic structure.
- If part IV needs to be achieved without the abrogation of Part II of the Constitution.
- The most elementary freedoms provided under Article 19 and 14 of the Indian Constitution therefore they should be preserved.
- Article 31 C of the Indian Constitution has removed two sides of the golden triangles(Article 19, 14, and 21) which will cause serious harm to the people of this country.
The dissenting opinion was given by Justice Bhagwati.
Article 368 of the Indian Constitution
Justice Bhagawati was in favor of the majority decision in striking down section 55 of the 42nd Constitutional Amendment Act, 1976:
- He opined that basic features are an integral part of the Constitution.
- The clause (4) is unconstitutional because it breached two basic features of the constitution First Limited amending power of the Parliament. Second Restriction on judicial review.
- The clause (5) is unconstitutional and void it had an effect of transforming the constitution into an uncontrolled one.
Article 31C of the Indian Constitution
- Article 31C of the Constitution didn’t damage the basic structure but instead strengthened.
- Non-Compliance of the Directive Principle would be unconstitutional and breach of faith with the people.
- No law directly giving effect to the Directive Principle can be inconsistent with the vegetarian principle.
- If the law is substantially connected to the Directive Principle of the State Policy would be valid if there is no nexus then it would be struck down.
The decision of the Supreme Court
On 31st July 1980, the Court pronounced its Judgment:
- Sections 4 and 55 of the 42nd Amendment Act, 1976 is unconstitutional.
- The writ petition challenging the validity of Sections 5(b), 19(3) 21, 25, and 27 (read with 2nd schedule of the nationalization act, 1974 was dismissed by the court.
The Concept of basic structure
In the Indian Constitution, there is no mention of the term of basic structure; it has come to its existence through a series of judgments. This doctrine mentions that amendments can be made in the Constitution without hampering the basic structure.
The subject matter under the basic structure doctrine include:
- The rule of law.
- Separation of power between the Centre and the State.
- The balance between Fundamental Rights and the Directive principle of the State policy.
- Right to have free and fair elections.
- The Parliamentary system of government.
- Powers of the Supreme Court under Article 32, 147, 142 and 136 of the Indian Constitution.
- Power of the High Court under Article 226 and 227 of the Indian Constitution.
- Article 14 right to equality.
- Limited power of the parliament to amend the Constitution.
- Unity and Integrity of the nation.
- Secularism and Socialism.
Evolution of the basic structure doctrine
The evolution of this doctrine happened through various landmark judgments. Some of them are as follows:
- In this case, the court held that Fundamental Rights cannot be amended; there is a restriction imposed on the parliament to amend fundamental rights; there is a need for a new constitutional assembly.
- They used the concept of implied limitation on the power of the parliament to amend the constitution.
Kesvananda Bharati case
- In this case, the Supreme Court first used the concept of the Basic Structure for the first time.
- The basic structure doctrine cannot be abrogated even through a Constitutional Amendment.
- The Supreme Court suggested a few basic structures like Free and fair elections, separation Of Power, Parliamentary Form of government, etc.
Indira Gandhi vs Raj Narain
- Through the 39th amendment, there was an insertion of a clause that Prime Minister, Vice President, Spreaker is beyond the Scope of judicial review.
- The Court in this case, while pronouncing judgment on the basic structure doctrine held that bit was beyond the Parliament amending power and therefore it was struck down.
Minerva Mills case
- The Supreme Court added a new clause to the basic structure doctrine, judicial review and harmony between Fundamental Rights and Directive Principle of the State Policy.
- In this case, the Court also held that the Limited amending power of the Parliament is a part of the basic structure doctrine.
- In this case, the Supreme Court inserted various grounds for implementation of reservations like the creamy layer, 50% restriction, etc.
- The rule of law was inserted in the basic structure doctrine.
- Unity and Integrity of the nation, Federal Structure, Secularism, and Socialism were inserted by the court through this case.
R. Bommai Case
- The Supreme Court, through this case, inserted Preamble in the basic structure doctrine because Preamble acts as a guiding lamp for the legislature to interpret the Constitution.
Therefore basic structure doctrine has a significant place in the Indian Constitution it limits the power of the Parliament to frame laws that are inconsistent with the rights of the people.
The doctrine of judicial review
The doctrine was inserted in the Indian Constitution from the American Constitution which provides the power to the judiciary to review the Acts of the executive and the legislature.
The Court can use the power of judicial review on:
- Constitutional Amendments.
- Legislation passed by the Parliament, State Legislature, and Sub Legislation.
- Administrative Actions of Union and States.
Evolution of doctrine of judicial review
- The doctrine of judicial review was first introduced in the case named Marbury vs Maddison held that the Constitution is a supreme paramount law any legislative act which is repugnant would be held void.
- Constitutional thinkers with a view of having free Country inserted Article 13 of the Indian Constitution which provides the power to the Court to use judicial review.
- Shastri vs V.G. Row Chief Justice Patanjali held that the power of judicial review is a part of the legislation, the court in this Country faces an important task, they have to discharge duty as mentioned in the Constitution.
- In the AK Gopalan case, the Supreme Court held that Statue must conform with the constitutional requirements; it is the responsibility of the judiciary to decide whether the Act is Constitutional or not.
- Keshvanada Bharati vs Union of India the Court held that as long as Fundamental Rights exist the power of judicial review by the Court needs to be exercised so that those rights are not abridged.
- Indira Gandhi vs Raj Narian Through the 39th amendment, there was an insertion of a clause that Prime Minister, Vice President, Spreaker is beyond the Scope of Judicial Review. The Court declared it unconstitutional and mentioned that judicial review is a basic part of democracy.
- Minerva Mills vs Union of India the Court held that the Judges must decide the validity of the laws passed if the Court is deprived of its power then the controlled constitution would become an uncontrolled one.
- L Chandra Kumar vs Union of India the Court held that the Supreme Court has the power to uphold the Constitution. The court needs to maintain a balance of power and check the functions of the executive and the legislature so that there is no constitutional limitation. Judicial review is an essential feature of the basic structure doctrine.
- I.R. Coelho vs State of Tamil Nadu the Court held that any insertions made after the Kesavananda Bharati Case in the 9th schedule are open for judicial review.
Judicial review plays an important role in maintaining the supremacy of the Constitution. It also helps us in maintaining the balance between the three organs of the Constitution so that no law can be passed through without any check.
Contents of the 42nd Amendment Act, 1976
- Preamble: The amendment inserted three new words in the preamble Socialist, Secular, and integrity.
- Directive Principle: The Amendment was made in Article 31-A which widened its scope and held that all directive principles of the State policy would have supremacy over the Fundamental Rights. (It was struck down by the Supreme Court in the Minerva Mills Judgment). Three new directive principles were added:
- First equal Justice and free Legal Aid.
- Second Participation of workers in the management of industries.
- Third Improvement in the environment and safeguarding the forest and wildlife.
- Fundamental Duties: Part IV A of the Indian Constitution which led down ten Fundamental Duties of the Indian Constitution.
- Parliament, Executive, and the State Legislature: According to Article 55 allocation of seats in the Parliament and the State Legislature were determined on the census of 1971. According to Article 74, it made it clear that the President has the power to advise the council of ministers. Articles 105(3) and Article 194 provided privileges to each house of the Parliament
- Judiciary: Significant changes were made in the judiciary there was an insertion of six new Articles 32, 131A, 139, 144A, and 226A. It also amended various existing Articles 145, 225, 227, and 228.
- Supreme court article 139A provided powers to the Supreme Court to transfer cases from the High Court to the Supreme Court. This power was provided to the court to deal with important issues and dispose of it expeditiously.
- Amendments were made in Article 226 it redefined the Jurisdiction of the High Court. It restricted the Jurisdiction of the High Court to try cases which involved:
- For enforcement of Fundamental Rights.
- Cases involving Substantial injury to the citizens.
- Substantial Failure of Justice.
- The relation between Union and States: The amendment Act added Article 257A provided power to the Central Government to send any armed forces to any state in a grave situation. The amendment led to the transfer of areas from the State List to Concurrent List:
- An Administration of Justice.
- Prevention of wild animals and Birds.
- Weight and Measures.
- Services: Article 311 was amended which took away the right of the Government servant to represent himself in the Second Stage of inquiry. Amendment was made in Article 312 there was an establishment of All India Judicial Service.
- Tribunals: The amendments inserted two clauses under Article 323. Article 323A provided the power to establish the Administrative Tribunal by a Parliamentary Law. Article 323B Powers to the Parliament to establish various tribunals and disputes are outside the jurisdiction of the Supreme Court.
- Emergency: In Article 352 there was an insertion that allowed the President to declare an emergency to any part or whole of India through a proclamation. Article 356 substituted from Six Months to One Year.
- Amendment: Under Article 368 two new clauses (4) and (5) were added which gave ultimate power to the Parliament to form law and won’t be judicial review. These Clauses were struck down in the Minerva Mills Case. Amendment was made in Article 103 which removed the question of disqualification from judicial scrutiny. Similar change was made in Article 192 including the State Legislature.
- President Powers to remove Difficulties: This clause was set up to remove difficulties existing in the provisions of the Constitution. This provision gave immense power to the President.
Indira Gandhi vs Raj Narain
Facts: In this case 39th Amendment Act, 1971 was passed in the Constitution which inserted Article 329-A of the Indian Constitution. The Article stated that the election of the President, Prime Minister, Vice President, and the Speaker of Lok Shaba can not come under judicial scrutiny.
Judgment: The Court held that the Amendment to reduce the judicial scrutiny was held unconstitutional. There is a clear violation of Article 14. It was considered a breach of free and fair elections.
This was also a critical Judgment where an attempt was made by the legislature to restrict the role of the judiciary in matters of elections.
Sanjeev Coke Mfg Vs Bharat Coking
Facts: There was the passage of the Coal Mines (Nationalisation) Act, 1972. Which provided nationalization of Coking Coal Mines. It was challenged by the petitioner on the ground that it was violative of the right to equality. The petitioner mentioned that there was no need for nationalization.
Judgment: The Court in this case, held that the Amendment was held under Article 31C notwithstanding that it is violative of Article 14 of the Indian Constitution.
This judgment was contradictory with the judgment of Minerva Mills nationalization is beyond the preview of the judicial review.
I.C. Golaknath Vs State of Punjab
Facts: In this case, the Government of Henry and William Golaknath that they can keep 30 acres each and rest 460 acres would be taken by the Central Government. This action of the government was challenged under Article 32 of the Indian Constitution.
Judgment: The Supreme Court held that Parliament doesn’t have the power to amend the Fundamental Rights. These are important rights of growth and development of human beings.
The Court, in this case, held that any law passed which is inconsistent with the Fundamental Rights, and therefore it was struck down similar to that of Minerva mills case.
After the historic Judgment in Indira Gandhi vs Raj Narain, it was a huge setback for the Central Government which led to the passing of the 42nd amendment to curb the power of the judiciary on any amendments passed by the Parliament. Through the amendment, the Parliament tried to disbalance the harmony between Fundamental Rights and Directive Principle of the State Policy. The Majority opinion favored that the amendment caused a disbalance therefore it needed to be struck down. They contended that Fundamental Rights have a Unique place in civilized societies they are the Heart and Soul of the Indian Constitution.
Due to this amendment Directive Principle of the State Policy was given absolute power even being inconsistent with the Part-III(Fundamental Right) of the Constitution it can’t be struck down. They contended that there should be a right balance struck between both no one should have an unconditional power over another. The Minority decision was pronounced by Justice Bhagwati which contended that the Directive Principle of the State Policy nourishes the roots of the Democracy and plays a critical role in fertilizing the static provision of the Fundamental Rights.
The Majority opinion of the Judges to Section 5 of the 42nd Amendment Act, 1976 was accurate because if Directive Principles precedes over the Fundamental Rights in the name of welfare various amendments would be passed that would be discriminative and against individual liberty through being unconstitutional won’t be struck down.
On the Second Part of the Amendment Section 55 of the 42nd Amendment Act which provided unlimited power to amend the Constitution the full bench of Judges were in favor of striking down this section again the bench was accurate in their pronouncement, they tried to create a disbalance with various organs of the Democracy this amendment would have provided untenable power to the Parliament the amendment would have been out of the scope of judicial review. The court striking it down held that the limited amending power of the Constitution is a part of the basic structure. The court allowed the Parliament to make altercations in the Constitution but should not be inconsistent with the basic structure.
After the judgment that was pronounced by the Supreme Court Justice Bhagwati received a fair share of criticism the Judges admitted that they didn’t have the chance to review the Judgment of one another. The Government in order to expand the amending power of the Parliament filed a review petition to overturn the significant judgment. This was rejected by the court. Even after four decades of the passing of the judgment text which was declared unconstitutional is still a part of the text. This was one out of many occasions where the Parliament was exhibiting his arrogance of power by manipulating the Constitution.
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