B.V.Acharya, Senior Advocate & former Advocate General for Karnataka.
Constitution of India is hailed as one of the best federal Constitutions in the World. It has adopted parliamentary system of Government based on British model. It provides for three organs of the State viz., Legislature, Executive and Judiciary. It recognize separation of powers, though not with all rigidity. The Constitution has specified the powers, duties and responsibilities of each of the organs. Though each of the organs is equal; by its very nature, functions and power, the judiciary occupies a pre-eminent position. It has the responsibility to see that the other two organs function within the sphere earmarked to them under the Constitution. It has the power to invalidate any legislative or executive action if the same is unauthorized. However, if the judiciary and in particular the Supreme Court acts in excess of authority, there is no remedy available.
Since the Constitution has been in force for the last 70 years, it may be worthwhile to consider the relative status and powers of these organs as it existed at the commencement of the Constitution and as on today.
Legislature Let us first consider the position of the Legislature. By legislature, I mean the parliament, as there is not much of a change so far as State legislatives are concerned. Under the Constitution, the Parliament is empowered to legislate on subjects earmarked in List-I (Central List) and List-III (concurrent List). There has been no noticeable change in the power of the parliament in this regard.
However, in addition to the power to legislate as stated above, the parliament is also authorized to amend the Constitution as provided by Article 368 of the Constitution. Soon after the coming into force of the Constitution the parliament and State legislatures had enacted certain legislations by way of Land Reforms as also providing for reservation in service and admission to educational institutions for schedule castes and tribes and other backward classes. As these enactments were invalidated by the judiciary as unconstitutional being violative of fundamental rights, the parliament with a view to validate them, brought about constitutional amendments. These amendments to the Constitution were unsuccessfully challenged as the Supreme Court upheld the power of the parliament to amend the Constitution without any limitation on such power.
This position continued till about the year 1967 when, for the first time Supreme Court in the case of Golaknath ruled that the parliament had no power to amend Part-III of the Constitution which provided for Fundamental Rights. In the year 1973, in the case of Keshavananda Bharathi Vs State of Kerala (1973 (4) SCC 225) 13 Judge Bench of the Supreme Court considered the question of validity of the Kerala Land Reforms Act as also certain Constitutional Amendments effected by the parliament. The correctness or otherwise of the decision of the Court in Golaknath’s case also came up for consideration. The controversy in the case centered round the power of the parliament to amend the Constitution. For the petitioners it was contended that the power of the parliament to amend the constitution was not unlimited and that there were implied limitations on such power. The plea forcefully put forth was that the power does not include authority to amend the constitution which alters the basic structure / framework of the Constitution. Respondents strongly refutedthis contention and urged that the power to amend conferred by Article 368 is without any limitation or restriction, and implying any such limitation will be doing violence to the language employed.
The court after hearing the matters for about 68 days delivered a split verdict. Seven out of 13 judges (forming the majority) ruled in favour of the petitioners and held that the power does not empower the parliament to effect such amendment which will alter the basic structure of the constitution. It in fact also struck down latter part of Section 31-C (which precluded judicial review of legislationwhich was enacted in furtherance of any of the directive principles of State Policy) on the ground that it altered the basic structure of the constitution as power of judicial review is part of it. Six of the Judges, however, strongly maintained that the power of the parliament to amend any part of the constitution is without any limitation or restriction and that it is a constituent power vested with the parliament. Naturally majority decision angered the executive so much that soon thereafter the Government deviating from the convention, passed orders appointing Justice A.N.Ray as the Chief Justice of India, superseding 3 judges senior to him viz., Justice J.M.Shelat, Justice K.S.Hegde and Justice A.N.Grover. This decision of the Government evoked strong protest from the public and in particular legal fraternity. The three superseded judges resigned, which had no effect on the firm decision of the Government. After Justice A.N.Ray assumed office of the Chief Justice of India an attempt was made to get the majority decision in Keshavananda Bharati case reviewed and a 13 judge was constituted for the said purpose. However, the attempt proved futile on account of strong objection by team of Advocates led by late Sri N.A.Palkhivala and on the second day, as hearing of the review was in progress, the Chief Justice of India simply dissolved the Bench without any formal order. Thus the majority view in Keshavananda’s case became law of the land and continues to be so even now. Yet another attempt to curtail Supreme Court’s power of judicial review was thwarted by the judgment in Minerva Mills case. The net result is, the power of parliament to amend the constitution stood restricted and subsequently few amendments also stood invalidated on the basis of doctrine of basic structure.
Though purely on a point of law the judgment of the Supreme Court in the case of Keshavananda was considered erroneous by a section of the legal experts, the public in general welcomed the decision as it was felt that such a check on the power of the parliament to amend the constitution was quite necessary and imperative. It is widely believed that, but for this decision, by now the parliament would have amended the constitution many times and to such an extent that to-day we would not have had this constitution. In fact this decision virtually saved the constitution and in-turn the country. To-day we have this constitution only because of the decision in Keshavananda Bharati.
For the purpose of this articles, suffice it to say that w.e.f. 1973 parliament was deprived of its very important power of amendment of the constitution without any limitation on account of the decision in Keshavananda Bharati. This is a case of loss of power of parliament and gain for the judiciary as will be explained later.
Daksha Legal 