This article is written by Anam Khan from Hidayatullah National Law University. The Indian judiciary was, at one time, considered and projected to be the weakest branch of the government. The primary reason for a weak judiciary was the absence of sufficient power and purse in the newly independent India. How did the judicial pronouncements help empower the Indian judiciary? This article tries to articulate a few revolutionary pronouncements that continue to impact our lives.
Table of Contents
Introduction
The enactment of the Constitution has been the cornerstone to Indian democracy. It has not only empowered the rights of citizens but also given a structure to the justice system. The cases that have been discussed in this article are the footsteps that the judiciary continues to follow. These cases are not only precedents that are to be followed in the times ahead but also the rules that have been laid down through these cases must be appreciated as authorities that bind our society as one unit. It was difficult to choose which cases will fall under this theme. Therefore, the cases that have been discussed in this article are those that continue to affect the basic liberties and rights of the citizens. The Supreme Court’s role in shaping up a strong judiciary can be easily comprehended through these pronouncements.
Basic structure doctrine
India has often been placed in a situation where the very existence of its democratic character has been questioned. In the mid-1970s there was an increase in the struggle for supremacy of power between the judiciary and the legislature. It was in this backdrop of a power struggle that the Supreme Court delivered this landmark judgement on 24th April 1973. This case not only empowers the Indian constitution but also has a unique place in the history of international constitutional law primarily for the reasons mentioned below-
- For the political circumstances in which it was delivered,
- Change in the balance of democratic powers,
- Number of separate opinions,
- The sheer length of the judgement.
Kesavananda Bharati v. The State of Kerala
It was in this case that the Supreme Court sat in judgement for almost five months- the longest amount of time since its inception. The judgement reads over 800 pages and is nearly 420,000 words long and hence it has been aptly named as the ‘longest appellate decision.’ Under the guise of making constitutional amendments, can the parliament alter the Constitution in a way that it opposes its basic essence?
Swami Kesavananda Bharati was the chief head of the Edneer math in Kerala. The property of his religious institution had been affected by The Kerala Land Reforms Act, 1963. Who would have thought that challenging the land reform legislation in Kerala could lead to the conceptualisation of the basic structure doctrine? While the proceedings of this case were underway the Parliament passed the Constitution (Twenty-ninth Amendment) Act, 1972. The amendment inserted certain land reforms to the Ninth Schedule. Since the amendment adversely affected his case, Nani Palkhivala who was the petitioner’s counsel seized the opportunity to challenge the constitutional validity of not only the twenty-ninth but also the twenty-fourth and twenty-fifth amendments.
Until 1978 Right to property was a fundamental right under Article 31. Soon after agrarian land reform was enacted in many states in India thus depriving the zamindars a significant portion of their landholdings. Since the right to property was a fundamental right back then, many petitions were being filed stating that the land reforms were a violation of fundamental rights. All these incidents were the building blocks of the first constitutional amendment. It happened when the Patna High Court invalidated the Bihar Land Reform Act, 1950 then the Constitution Assembly passed the Constitution (First Amendment) Act, 1951. With this amendment, Article 31B was converted to make the Ninth Schedule. The striking feature of this amendment was that any laws that were inserted (through constitutional amendments) to the Ninth Schedule could never be challenged on grounds of being inconsistent with fundamental rights.
To comprehend the case better a brief analysis of the following cases is important-
The zamindars challenged the first amendment in this case. Out of the several grounds on which the amendment was challenged was the scope of the meaning of the term ’law’ under Article 13(2), which says that it is not within the scope of the Parliament to make laws that take away fundamental rights. If this contention was to be accepted it would imply that Part III could never be touched and would remain as it is. Unfortunately for the petitioners the five-judge bench of the Supreme Court unanimously rejected this contention. It was held that our constitution guarantees a clear demarcation of powers. Thus, it was ultimately held that the amendments that were made could not be reviewed by the courts.
It was in this case that the first seeds of ‘basic structure’ doctrine were sown. The Constitution (Seventeenth Amendment) Act had inserted 44 statues to the Ninth Schedule and the same was challenged in this case. Although in this case the right to question constitutional amendments was not questioned but nevertheless the court dismissed the petition. Of the five-judge bench, it was Justice Mudholkar who said, “intention of the Constituent Assembly” to give permanency to the basic features of the Constitution is a matter of consideration whether making a change in the basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution.
The eternal issue of whether the Parliament had the right to amend fundamental rights was yet again raised in this case. Once again the landowners who were deprived of their landholdings challenged the validity of the First, Fourth and Seventeenth Amendments. With a striking majority of 6:5, it was held that amendments fell in the ambit of ‘law’ under Article 13(2) and had the power to review them if they seem to violate the fundamental rights. Unfortunately, this decision by the apex court was nullified with Article 13(4) was added to the Constitution through the Twenty-Fourth Amendment, 1971. With the inclusion of this article constitutional amendments were excluded from the scope of Article 13.
What the court wanted to assert through these judgements was, in the garb of amendments, the parliament did not have the powers to amend the essence of the Constitution. If the powers of the parliament were not limited, amendments would be done for political reasons, defeating the very purpose of separation of powers. Hence, all the amendments after Kesavananda Bharati’s case had to pass the filter of basic structure doctrine. For a democracy like India, what would be included in the basic structure? Nation’s most basic values- secularism, representative democracy, and independence of the judiciary. The Parliament’s power to amend cannot be limitless and must always remain coextensive with that of the people.
Criticism of the judgement
One of the major criticisms of the judgement in Kesavananda’s case was that the Constitution nowhere mentions what the basic structure doctrine actually is. Although it is open to a wide interpretation nevertheless it can be said to be an attempt to rewrite the Constitution. Apart from the nexus between the doctrine and constitutional texts, the length of the judgement was also criticised. It does lead to uncertainty about what the different opinions actually mean. Besides the applause, flattery and criticism, in any event of the future, this judgement is surely going to act as a safety valve to preserve the true spirit of Indian democracy. Indeed Upendra Baxi’s words that Kesavananda was ‘the Constitution of the future’ turned out to be near prophetic.
Expanding the meaning of the ‘right to life’
What happens when a certain law is consistent with one fundamental right but not with another? What would happen if you were to visit abroad and your passport is seized at the last moment? This case tells you all about your right to life and liberty. A majority of people had lost their faith in the judiciary when it was held that the detenu could not file a petition for habeas corpus for challenging the legality of his detention.
ADM Jabalpur v. Shivkant Shukla became the starting point of another landmark judgement. It was under the Presidency of Fakhruddin Ali Ahmed when the emergency was declared. The salient feature was the suspension of strict censorship and detention of political prisoners. This indeed became the ‘inflexion point’ in the court’s movement towards a broader interpretation of the fundamental rights. The air of disillusionment was spreading among people who felt that they were being betrayed by their elected representatives and being abandoned by the highest court of authority. It was with the judgement in Maneka Gandhi’s case that the Supreme Court attempted to restore the faith of citizens in the judiciary. The Maneka Gandhi case was concerned with the fundamental right of a citizen to travel abroad. A short introduction to the cases that affected Maneka Gandhi’s case would help in having a clear picture.
The petitioner, in this case, was a social and political worker who filed a petition for habeas corpus seeking his release from detention under Preventive Detention Act, 1950. He cited each of the fundamental rights that were to be cited collectively. The Supreme Court disagreed and implied that when law meets the requirement of fundamental right applying to it, it cannot be contended that the law is against any other fundamental right. It was held that since the conditions set out in Article 22 had been satisfied, the petitioner was not entitled to challenge his detention under any other fundamental right, such as the right to life and personal liberty under Article 21.
In Satwant Singh, the petitioner was a manufacturer, importer and exporter of automobile parts and engineering goods. The nature of his business involved regular overseas travel. The external affairs ministry asked him to surrender his passport on the ground that he was likely to leave India to avoid a trial he was required to face for offences governing imports and exports. He further moved to the Supreme Court, contending that the State’s actions violated his fundamental right under Article 14 and 21. The majority on the bench followed the decision in Gopalan’s case by treating fundamental rights under Article 14, 19 and 21 as different from one another. It further cancelled the government’s order asking the petitioner to surrender his passport.
Maneka Gandhi, daughter-in-law of the former Prime Minister Indira Gandhi was issued a passport in 1976 under the Passport Act, 1920. This case arose immediately after the end of the national emergency after which the Janata party rose to power. Maneka Gandhi was the founder-editor of a magazine named Surya, which she used a tool to restore the image of Congress. In 1977 when she was to leave India to fulfil a speaking engagement, she received a letter that read the Government of India impounds her passport in ‘public interest’.
In Maneka Gandhi, the Supreme Court clearly departed from the straitjacket interpretation of fundamental rights in Gopalan and held that the fundamental rights form an integrated scheme under the Constitution. Emphasizing the need to understand Part III of the Constitution in a holistic manner, the apex court held that the mere fact that a law satisfies the requirement of one fundamental right did not exempt it from the operation of another fundamental right. A law is to satisfy the requirements of all fundamental rights. The simple premise followed in Maneka Gandhi’s case is that an arbitrary law is no law.
Although the judgement clipped the wings of the legislature, unlike other judgements in the same time period, it faced little or no hostility from other branches of the government. It has now become a repository of human rights and fundamental freedoms in India.
The discourse on reservations
Every Indian who is born post-independence once in his lifetime does ponder over, and majorly criticize the policy of reservations in India. Be it reservations in educational institutions or jobs, citizens at some stage of their life wonder, where does the Constitution state that caste-based reservation is mandatory? The objective of having reservations is to promote the representation of the weaker sections in the society. But how did the idea of reserving opportunities on the basis of caste seep into our society? Would reservations above 50 per cent be considered unconstitutional? Should the caste of a person be the only criterion to determine the backwardness of communities? Or should it be the economic indicators that should be taken into account while listing backward classes?
In India, reservations have been closely linked to the prevalent caste system. The ancient varna system made major contributions to this ideology. But though caste-based discrimination was identified as a social evil, it continued to remain under the title of reservations. As an aftermath of the liberalisation of the Indian economy in 1991, the educational background overpowered the physical capital in the labour market. Today, a major population in India is eligible to avail of some form of preferential treatment. Should representations of the weaker sections be reserved on the basis of the caste prevailing in the varna system or should merit be encouraged?
Reservation in the British Raj
It was way back in the year 1902, when the Maharaja of Kolhapur, took the first step to provide reservation for the representation of the backward classes in India. With a two-fold aim to eradicate poverty and increase their representation, he set out to broadly classify and uplift the backward classes. British took a cue from this and developed religion- and- caste-based politics, a tactic which was perceived to be the focus of ‘divide and rule.’
Post-constitutional developments
The first discussion on reservations between the Parliament and the courts took place just a year after the Constitution came into effect. Although Article 14 of the Constitution grants people the right to equality before the law, Article 16(4) allows the state to make ‘any provision for the reservation of appointments of posts’ in favour of the backward classes not represented adequately in services under the state. In reaction, the Parliament amended Article 15 of the Constitution to allow the state to make special provision for the advancement of socially and economically backward classes, SCs, and STs.
Further in 1953, the First Backward Classes Commission(1955) also popularly known as the Kaka Kalelkar Commission was formed. Two years after the conception of this commission, it identified 2399 backward groups. Though Kalelkar himself strongly disapproved of this methodology and conclusion by the commission. The Supreme Court stepped in to settle the tensions arising on the matter of reservations through its judgement in-
In this case, the Madras government had by a G.O reserved seats in the medical and engineering college for different communities in certain proportions on the basis of religion, caste, and race. The State government defends its act by taking the plea of promoting the welfare and social justice for all sections of the society. The Supreme Court held the G.O to be void. The DPSP could not override fundamental rights. To modify the effect of these decisions, Article 15 was amended by the Constitution (1st Amendment Act), 1951 and then clause (4) of Article 15 was inserted.
The Mysore government issued an order under Article 15(4) reserving seats in the medical and engineering colleges in the state. A total of 68% of the seats had now been reserved leaving only a mere 32% for the merit pool. As a result of this order by the government, candidates who had secured fewer marks got admission over the candidates who had secured more marks. The court thus held that the sub-classification made under Article 15(4) between the backward class and the more backward class was not justified. The scope of Article 15(4) states that ‘backwardness’ must be inclusive of both social and educational and not either one of the two. Indeed caste is a relevant factor and must not be the sole ingredient. Clause (4) of Article 15 enables the State to make special and not exclusive provision for the backward classes. The State must pass the test of the advancement of the entire society.
In the later decisions, the court reiterated and developed certain principles laid down in the case of Balaji.
By the late 1980s, there was rampant confusion and uncertainty regarding the constitutional boundaries of India’s reservation policy. Were reservations above the 50% limit constitutional? To answer this, two decades after the first backward classes commission report was published, PM Morarji Desai constituted the second commission in 1979. Under the chairmanship of B.P Mandal, the Mandal Commission was founded. In its report submitted in the year 1980, the Mandal Commission applied eleven relative indicators to ascertain which classes were backward. They marked 3743 backward classes. Ironically this figure was 50% higher than that of the Kalelkar Commission. There was already a 22.5% reservation for SC/ST candidates, introducing another 52 per cent for the OBCs would clearly contravene with the decision of the Supreme Court in Balaji’s case.
This case was also known as the Mandal Commission case, the Supreme Court by 6:3 majority held that sub-classification of backward classes into more backward classes for the purpose of reservations cannot exceed 50 per cent. The classification should be on the basis of the degree of social backwardness. In fact, such classification was necessary for the adequate representation of the backward class into the mainstream world.
Conclusion
This article tries to outline not only the judgements but also the cultural and social developments that lead to the court making such landmark judgements. With the recent amendments in the CAA, cases of police brutality and the reservations for seats in educational and job posts, the basic structure doctrine, the scope and extent of ‘right to life’ and the constitutionality of reservations are being actively discussed. It is important that at this stage of an approaching change in the respective matter, the historical backdrop of these judgements are taken into account. Indeed, the Indian judiciary has time and again proved itself to be the honest guardian of the interests of the citizens and the administration as well and a study of these cases helps in better understanding of how the judiciary acts in the best interest of the citizens.
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