Comparative Legal Systems

• Comparative: Deconstructing the word Adjective involving the systematic observation of the
similarities or dissimilarities between two or more branches of science or subjects of study.
Comparison between the comparable. Example: Comparative Law- Comparative Law describes the
comparison of various laws; it is not a distinct body of law.
• Macro comparison is concerned with entire legal systems; micro-comparison deals with specific
institutions or specific problems. Comparative Law thus goes beyond the mere study of foreign legal
systems.
• It is an enormous task to try to compare the laws of all the different jurisdictions
• The world contains a vast number of national legal systems. The United Nations brings together
representatives of more than 190 states, but these states are far outnumbered by legal networks,
since not all states—notably federal ones—have accomplished unification within their own
frontiers.
• However, the difference should not be exaggerated. First, adequate knowledge of foreign law is an
indispensable prerequisite of every legal comparison.
• Second, even mere― knowledge of foreign law necessarily contains a comparative element, if only
because the comparatist regularly looks at another legal system from (and often for) the perspective
of her own particular legal system. Foreign law is thus regularly understood and explained
automatically in relationship to one’s own law. Legal Systems: What are they? Why do we need to
compare them?
• A legal system is a procedure or process for interpreting and enforcing the law.
• Need for comparison: comparison of legal systems – the discovery, explanation and evaluation of
similarities and differences – is only one of several themes of the contemporary discipline of
Comparative Law.
• A second theme concerns the influence between legal systems, especially the → reception of law,
whether of individual legal institutions or of entire legal systems.

Basics of Comparative Legal Systems

Comparative Legal Systems and Comparative Constitution Law: Features and Scope

• As an area of study Comparative Constitution law covers fundamental constitutional developments,

concepts, and debates surrounding the evolution and functioning of the constitution/s in a
country/set of countries.
• Major developments have occurred in the subject due the decolonization (After the WWII) and later
after the end of cold war (wave of constitutional democracy in Eastern and Central Europe, South
America and Africa) when many countries asserted their independence while figuring out their
governance models.
• Constitutional Borrowings: Many of these new constitutions have ‘imported’ constitutional norms
from abroad. ex. The constitution of S. Africa says that the country’s Constitutional Court consider
foreign law when interpreting the domestic Bill of Rights.
• Internationalization of the constitutional Law: Through implementation of the provisions of
international covenants such as the European Convention on Human Rights. Through such
covenants are not formally or technically constitutions, their provisions—particularly as
interpreted by court s such as the European Court of Human Rights—are the functional equivalent
of constitutional norms.
 o The UN Conventions
o Multilateral Treaty Arrangements
• Comparing Legal Systems: What to do with the variety? How to approach diversity? Can a
parliamentary democracy be compared to a presidential one? Or, a federal republic to a unitary one?
Moreover, what about differences in ideology or national identity? Can constitutional rights
deployed in a libertarian context be profitably compared to those at work in a social welfare context?
Is it perilous to compare minority rights in a multi-ethnic state to those in its ethnically
homogeneous counterparts?
• Role of Utopia
• Comparative constitutional inquiry became particularly relevant in the aftermath of the revolutions
in the United States and France. The Founding Fathers and the French revolutionaries had to invent
a new organization of the state and they could rely only to a limited extension pre-existing
structures. The empirical evidence offered by comparison was both a source of inspiration and of
legitimation.
• American Revolution: 1776 -1786
• French Revolution: 1789
• Comparative constitutional law scholarship emerged as an academic discipline after the Second
World War.
• In post-Second World War Europe comparative constitutional law was influenced by the East/West
divide.
• Foreign constitutional systems were oft en studied as part of Soviet legal studies, and, respectively
studies on Western bourgeois state law. Comparative law was understood as the study of foreign
systems, with a heavy ideological accent. Carl J. Friedrich: A German Scholar, initiated a paradigm
shift by emphasizing on the constitutionalisation of modern government and stressing the
importance of judicial review.
• He kept the focus on power as a central issue for the study of political science in the modern time
but used the constitutional law comparatively.
• ‘If constitutional law begins to ask what people actually do under a particular constitution, and not
merely what battle of words they engage in for the settlement of conflicts among them, the
constitutional lawyer becomes a political scientist (one hopes).’
• He shifted the focus away from the previous value oriented enquiry into the governance to the
scientific methods based approach in comparative constitution law.
• The post-war period was characterized by an international human rights revolution, with various
waves of state formation and democratization, coupled with increasing judicialization of
constitutional law. Bernhard Schwartz: American Constitutional Law
• In the transition from comparative government studies to comparative constitutional law as an
academic discipline within the ambit of legal scholarship the interest in the subject matter proved
to be primarily ideological.
• A principal intent was to boost liberal constitutionalism against totalitarianism, and the elaboration
of this new field was more the result of dissatisfaction with the prevailing positivistic method* in
law and government scholarship than an attempt to carve out a discipline or subdiscipline within
jurisprudence.

*Positivist Method: study of society that relies specifically on scientific evidence, such as
experiments and statistics, to reveal a true nature of how society operates.*

• Comparison was intended to highlight theoretical trends and and the object of the comparison
became primarily government practice as the source and consequence of public law. Comparative
 constitutional law as an academic discipline has been slowly and gradually integrated into legal
education. In the United States, Thomas Franck wrote a path-breaking volume that responded to the
experiences of decolonization and resulting state-building that intended to present the
transplantation of Anglo-American constitutional law into the newly developing countries of Africa
and Asia.
• In France, comparative constitutional law as an academic subject was only gradually accepted in the
legal curricula, though it was present as a political science subject matter. Like in Germany, the
increased interest in comparative constitutional law was originally accommodated within national
constitutional law.
• With the increased juridicization of constitutional law, that is, with the recognition that
constitutional problems can be solved increasingly with the adjudicative tools of the rule of law
state, legal interest in comparison was increasingly accommodated within a stand-alone discipline.
• Universalism
• Constitutional Borrowings and Transplantations.

Basic Perspectives in Comparative Legal Systems

Constitution: Highest law in a country.

• Checks and balances are kept in place to keep its basic principles intact. American constitution is
one of the most rigid constitutions in the world. The UK ‘s constitution is unwritten and flexible.
India’s constitution is a unique mixture of rigidity and flexibility. Amendment procedures are
aligned with the significance of a particular part. Ex The concept of ‘basic Structures’: the constituent
power of Parliament under Article 368 does not enable it to alter the ‘basic structure’ of the
Constitution. What are these basic structures? SC will decide as it is the guardian of the constitution.
Some provisions under the BS are (M. Laxmikant’s book ‘Indian Polity’ chapter 11). Procedure of
Amendment in the constitution: Art. 368 (Chapter 10 from Laxmikant’s book):
• Constitutional Amendment: three types: Simple majority, special majority (more than 50% of the
constitution falls under this category), special majority with ratification by the states (mostly federal
provisions)
• Constitutionalism: Constitutionalism is the idea, often associated with the political theories of John
Locke and the founders of the American republic, that government can and should be legally limited
in its powers, and that its authority or legitimacy depends on its observing these limitations.
(Stanford Encyclopedia)
• It is a collection of ideas which revolve around the principle that the government should adhere to
the fundamental law of the land; constitution.
• Thomas Paine advocated for the constitutionalism in late 18th century. According to him, ‘The
constitution of a country is not the act of its government, but of the people constituting its
government.’ It followed for Paine that , a constitution is a thing antecedent to a government, and a
government is only the creature of a constitution.
• Political incumbents can be constitutionally punished for unconstitutional actions. King’s ministers
could be impeached by the parliament for unconstitutional actions.
• Political power never flows equally for all even in the democracies so to ensure the fulfillment of
higher principles of justice and human welfare constitutions are considered above the government
under the concept of constitutionalism.
• Rule of Law: Authority and influence of law in a society. Power shall be exercised in accordance with
the law in a society. Political authority shall drive its authority from the law and not the other way
around.
• Rule of law is one of a number of overlapping ideas, including constitutionalism, due process,
legality, justice, and sovereignty, that make claims for the proper character and role of law in well-
ordered states and societies.
• Earlier Marxists and critical theorist criticized the perspective but over a period of time a general
understanding has been developed among the scholars from different perspectives upon the
concept of Rule of law.
• Democracy
• Sovereignty
• Rights, duties and liberties
• Federalism: Separation of power
• Unitary System: Decentralization of power

Making of the Constitution: Balancing India and Bharat & Philosophy of

the constitution
• Balancing Bharat with India: Two Options:
1. To mimic the already functioning democratic systems; UK, US, France etc.
2. To Device an Indian Democratic System
• Priorities of the leaders and the People:
1. To maintain and enhance the unity and integrity of the country.
2. To ensure a democratic polity
3. To device a social- economic system to better the lives of the people.
• The Seamless web: Included above three priorities and set the path for India’s constitution making.
Seamless web in this context means that these three principles are interwoven together; we not
knowing where the boundary of the one principle ends and another’s starts. An organic unity among
these three principles, strain or too much emphasis on one of them would affect the smooth
functioning of the constitution.
• Traditional Law versus the Modern System: INM was also a social reform movement. The obsolete
traditions had to made a way for a new integrated system of a modern state.
• Philosophy of the Indian Constitution: It reflects the seamless web which is at the heart of the
constitution.
• Constitution isn’t just a collection of laws. The laws mentioned inside the constitution are a result of
a lengthy evolution of various ideas, values, norms and ethical interpretations. These principles
form the spirit of any constitution. We need to study these core values of the constitution for its
smooth functioning and better interpretations. Following points encapsulate the philosophy of the
Indian Constitution:
1. The Objectives Resolution adopted during the December 1946:
a. Equality, liberty and justice
b. Safeguards for disenfranchised
c. Unity and integrity of India
d. democratic republic
 2. Socialism: Economic and social equality, no discrimination on the basis of gender and social
identities, mixed economic model.
3. Liberalism: Individual freedom
4. Gandhism: Philosophy of Ahimsa and Decentralization of power
5. Secularism: Equal treatment to all the religions instead of ‘wall of separation’ between the state
and religion.
6. Experiences of the Indian National Movement: Social reforms

(*To write answers list the examples from the constitutional provisions which according to you fall
under above titles)

• The philosophy of the seamless web infuses the Constitution, and is especially apparent in certain
provisions:

- Unity and integrity are mentioned in the Constitution's Preamble, which establishes India as a 'Union
of States', and the Constitution's highly centralized federalism had unity and integrity as its purpose.

- The country shall be a 'sovereign democratic republic' says the Preamble, and the framers adopted
adult suffrage because it would engage all in the common enterprise and, being democratic, it would
help break the mold of traditional society. - The essence of the democracy and social reform strands is
to be found throughout the Constitution: in the democratic political institutions and processes of the
parliamentary system, in adult suffrage, and in the independent judiciary; and in Parts III and four of
the Constitution, which lay down the 'Fundamental Rights' and the 'Directive Principles of State Policy‘.

Separation of Powers
• Separation of powers is a doctrine of constitutional law under which the three branches of
government (executive, legislative, and judicial) are kept separate. This is also known as the system
of checks and balances, because each branch is given certain powers so as to check and balance the
other branches. Checks and balances are constitutionally sanctioned in the US constitution.
• Such a separation, limits the possibility of arbitrary excesses by government, since the sanction of
all three branches is required for the making, executing, and administering of laws.
• Though the doctrine is an Ancient one, it was developed and theorized by Montesquieu in 18th
century.
• Montesquieu: French political philosopher was among the first modern thinkers to talk about the
separation of powers in 1748; book: The Spirit of Laws. John Lock had talked about the division of
powers between the Monarch and parliament in the context of the English political system.
• Montesquieu was influenced by the Roman Republic and the English constitution and took this
principle further, his theory influenced the SoP principles in the American Constitution.
• Separation of powers forms a vital part of modem constitutionalism. It has influenced the structures
of governments tremendously. There are three main functions of die government executive,
legislative and judicial. These functions of government are performed by three organs.
• The legislative organ of the government makes laws, executive enforces that and judiciary
adjudicates upon it.
• The purpose underlying the separation of powers doctrine is to diffuse governmental authority so
as to prevent absolutism and guard against arbitrary and tyrannical powers of the state, and to
allocate each function to the institution best suited to discharge it.
• ‘It is essential for establishment and maintenance of political liberty that the government be divided
into three branches of departments, the legislature, the executive, and the judiciary. To each of these
three branches there is corresponding identifiable function of government, legislative, executive,
and judicial. Each branch of government must be confined to the exercise of its own function and
not allowed to encroach upon the functions of the other branches. Furthermore, the persons who
compose these three agencies of government must be kept separate and distinct. In this way each of
the branches will be a check to others and no single group of people will be able to control the
machinery of the state.’ - Montesquieu Three aspects of the Separation of powers:
1. The same persons should not form part of more than one of the three organs of Government, e.g. the
Ministers should not sit in Parliament.
2. One organ of the Government should not control or interfere with the exercise of its function by
another organ, e.g. the Judiciary should be independent of the Executive or that Ministers should not
be responsible to Parliament.
3. That one organ of the Government should not exercise the functions of another, e.g. the Ministers
should not have legislative powers.Separation of Powers in the US Constitution
• The doctrine of Separation of Powers forms the foundation on which the whole structure of the
Constitution is based. It has been accepted and strictly adopted in U.S.A. Article I; Section 1 vests all
legislative powers in the Congress. Article II; Section 1 vest all executive powers in the President
and Article III; Section 1 vests all judicial powers in the Supreme Court.
• To prevent one branch from becoming supreme, protect the minority from the majority, and to
induce the branches to cooperate, governance systems that employ a separation of powers need a
way to balance each of the branches. Typically this was accomplished through a system of " checks
and balances", the origin of which, like separation of powers itself, is specifically credited to
Montesquieu.
• The checks and balances system in place. The Supreme Courts was not given power to decide
political questions so that there was not interference in the exercise of power of the executive
branch of government. Also overriding power of judicial review is not given to the Supreme Court.
The President interferes with the exercise of powers by the Congress through his veto power. He
also exercises the law-making power in exercise of his treaty-making power. He also interferes in
the functioning of the Supreme Court by appointing judges.
• The judiciary interferes with the powers of the Congress and the President through the exercise of
its power of judicial review. It can be said that the Supreme Court has made more amendments to
the American Constitution than the Congress.
• Legislature: Congress has the sole power to legislate for the United States. Under the non delegation
doctrine, Congress may not delegate its lawmaking responsibilities to any other agency.
• In this regard, the Supreme Court held in the 1998 case Clinton v. City of New York that Congress
could not delegate a "line-item veto" to the President, by which he was empowered to selectively
nullify certain provisions of a bill before signing it.
• Executive power is vested, with exceptions and qualifications, in the president by Article II, Section
1, of the Constitution. By law the president becomes the Commander in Chief of the Army and Navy,
Militia of several states when called into service, has power to make treaties and appointments to
office -- "...with the Advice and Consent of the Senate"—receive Ambassadors and Public Ministers,
and "...take care that the laws be faithfully executed" (Section 3.)
• By using these words, the Constitution does not require the president to personally enforce the law;
rather, officers subordinate to the president may perform such duties. The Constitution empowers
the president to ensure the faithful execution of the laws made by Congress. Congress may itself
terminate such appointments, by impeachment, and restrict the president. The president's
 responsibility is to execute whatever instructions he is given by the Congress. Congress often writes
legislation to restrain executive officials to the performance of their duties, as authorized by the laws
Congress passes.
• Judicial power — the power to decide cases and controversies — is vested in the Supreme Court
and inferior courts established by Congress. The judges must be appointed by the president with
the advice and consent of the Senate, hold office for life and receive compensations that may not be
diminished during their continuance in office.
• If a court's judges do not have such attributes, the court may not exercise the judicial power of the
United States. Courts exercising the judicial power are called "constitutional courts." Congress may
establish "legislative courts," which do not take the form of judicial agencies or commissions, whose
members do not have the same security of tenure or compensation as the constitutional court
judges.
• The doctrine of separation finds its home in U.S. It forms the basis of the American constitutional
structure.Separation of Powers in the UK
• U.K. follows a Parliamentary form of government where the Crown is the nominal head and the real
legislative functions are performed by the Parliament. The existence of a cabinet system refutes the
doctrine of separation of powers completely. It is the Cabinet which is the real head of the executive,
instead of the Crown. It initiates legislations, controls the legislature, it even holds the power to
dissolve the assembly. The resting of two powers in a single body, therefore denies the fact that
there is any kind of separation of powers in England.Separation of powers and Checks and Balances
in Indian Constitution.
• Indian Constitution does not make any absolute or rigid separation of powers of the three organs
owing to its pro-responsibility approach rather than having stability at the centre stage.
• Indian Supreme Court in Ram Jawaya Kapur v. State of Punjab, the Court through Mukherjee J. held
that, “The Indian Constitution has indeed not recognized the doctrine of separation of powers in its
absolute rigidity, but the functions of different parts or branches of the government have been
sufficiently differentiated and consequently it can very well be said that our Constitution does not
contemplate assumption, by one organ or part of the state, of functions that essentially belong to
another.
• A more refined and clarified view taken in Ram Jawaya‘s case can be found in Kartar Singh v. State
of Punjab, where Ramaswamy J. stated, It is the basic postulate under the Indian Constitution that
the legal sovereign power has been distributed between the legislature to make the law, the
executive to implement the law and the judiciary to interpret the law within the limits set down by
the Constitution.
• The functional classification and sufficient demarcation, as is held by the Supreme Court, indeed
does not suggest the application of the doctrine in its absolute terms. Rather it just gives a slight
glimpse as to the character of the Indian Constitution which it shares with the ‘pure doctrine‘.
• Executive in India, like any other Westminster system, is a subset of legislature and virtually there
is a fusion between them, thus generally no friction arises between them. The Constitution of India
has indeed adopted the British Parliamentary system, wherein the political executive controls the
Parliament.

The Nehru Era (1950 to 1966)

– Establishment of a representative democracy 1950 (First election 1952): The trinity of a charismatic
national leadership, a mass party, and civil-services complemented by the already functioning
legislatures, executives, and courts.

– There were conflicts, over issues of great magnitude, among strong leaders, and among the
Constitution's institutions. These were resolved through adjustments in power relationships, personal
and institutional, and through establishing constitutional practices and adopting conventions from the
Constitution's sources, especially from Britain and the United States.

Power relations and adjustments:1. The President and the Council of Ministers Issue/s of disagreement:
Prasad read the Constitution literally, attributing to the presidency greater authority than that of the
nearly--powerless head of state under the Westminster Model.

- Letter to B. N. Rao (Constitutional Advisor of the Constituent Assembly) about the clarification on the
role of President.

- Another letter after his election as the President he sought clarity on his powers which was provided
by the then Attorney General point by point.

- Article 74 of the constitution: President shall act on the aid and advice by the Council of Ministers.

- The refusal to accept the advice will result into the breakdown of constitutional machinery.

- In August 1950, he wrote to Deputy Prime Minister Sardar Patel asserting that the President could
advise ministers 'not on matters of detail but generally on matters of policy'. Patel also clarified the
nominal nature of the position of the President.

- First Amendment: Bihar Zamidari Abolition Bill

- 1951: Hindu code billTHE COUNCIL OF MINISTERS AND PARLIAMENT/Executive and Legislature
Issues of Concern: Use of Ordinance, Fragmented opposition

What is an Ordinance:

- In justification of the ordinance-making power of the President, Dr BR Ambedkar said in the

Constituent Assembly that the mechanism of issuing an ordinance has been devised in order to enable
the Executive to deal with a situation that may suddenly and immediately arise when the Parliament is
not in session.

- Article 123 of the Constitution empowers the President to promulgate ordinances during the recess
of Parliament. These ordinances have the same force and effect as an act of Parliament, but are in the
nature of temporary laws (6 months).

- Conditions: a. It is not a parallel power of legislation (meaning: ordinance can’t be promulgated when
both the houses are in session).

- b. President’s satisfaction is justiciable on the ground of malafide.

- c. An ordinance can be issued only on those subjects on which the Parliament can make laws. And an
ordinance is subject to the same constitutional limitation as an act of Parliament. Hence, an ordinance
cannot abridge or take away any of the fundamental rights.

- d. Every ordinance issued by the President during the recess of parliament must be laid before both
the Houses of Parliament when it reassembles (6 weeks).In the year 1950 more than 21 ordinances
were promulgated. And the then speaker of the House G. V. Mavalankar wrote to Nehru and protested
about the government's 'inherently undemocratic' practice of promulgating ordinances instead of
bringing bills. Nehru cited the necessity of those legislations and parliament’s slow functioning
hampering the work of nation building. So, the precedence of promulgating ordinances for executive
convenience was set in motion even though the Nehru government never misused this power to subvert
the parliament. Another issue was of weak opposition and fragmented criticism of the government
policies. It was arrested with ‘umbrella features of the congress system’.

THE EXECUTIVE AND THE JUDICIARY

– The relationship between these branches of government was at once mutually respectful and highly
conflicted.

– The respect was between the individuals involved and the institutions. The conflict was over the
constitutionality of legislation and the Supreme Court's power of judicial review.

– Granville Austin, “Nehru would rail at lawyers and stamp his foot at the courts; yet he did not denigrate
the judiciary as a vital institution in a democracy, nor did he attempt to tamper with it’s independence.
He supported it. Instead, he would lead Parliament to amend the Constitution to nullify the effect of
Supreme Court interpretations. With Nehru's departure from the scene, the respect would disappear
and the conflict intensify.”

• After the constitution’s inauguration, the constitutional ideals were tested against the government
of the day's perception of national needs.
• The three principles of seamless web came under strain due to the incompatibility among them.
Parliament and judiciary often disagreed on the interpretation of the constitutional provisions with
regard to upholding the constitutional ideals.
• Protecting national integrity through preserving political stability was thought to be in conflict with
the democratic rights to freedom of expression and personal liberty.
• The social revolutionary goals of the Directive Principles of State Policy were found to conflict with
the right to property. Several provisions of the Fundamental Rights conflicted among themselves
and with the Constitution's provisions for remedial treatment of disadvantaged citizens.
• During the Nehru years, remedies for these conflicts were sought, in part, through the First, Fourth,
Sixteenth, and Seventeenth Amendments to the Constitution. To be continued….

Parliament and Judiciary 1950 – 1966

As discussed earlier: Three main issues came between Parliament and judiciary:

1. Democracy v/s unity and integrity of India (Freedom of Speech and Expression and Life and liberty
v/s Unity and integrity of India.)

2. Social Revolution v/s Democracy (Right to property v/s land reforms and equality v/s special
treatment of disadvantaged groups)

Solutions were sought through constitutional means and mutual institutional respect, independence
and integrity in the form of Constitutional Amendments such as 1 st, 4th, 7th, and 16th.

Right to Property versus Directive Principles of State Policy and the Judicial Response during the Nehru
Era
Background: Indian National Movement was a positive struggle aimed at not just ending the foreign
rule from India but also ushering a modern era based on democratic principles of freedom, economic
equality, ending traditional social and economic inequalities, modern education and the Gandhian
principles of good moral citizenry.

• The imperialist world wars had convinced Indian leadership of the inherent flaws of the capitalist
model of development which rested on monopolization of resources and concentration of wealth at
the cost of deep income gaps among the population.
• The Indian Parliament (Executive and Legislature) had a general agreement about the development
path a free India will take. The purpose was to go for a middle path between socialism and
capitalism. To avoid the worst of both. Capitalism offered fast growth but it risked the economic
subjugation of its people and the country to the developed world. The socialism (like that of the
USSR) would probably risk tyranny and end the very freedoms of the people the national movement
desired to achieve.
• The purpose was to achieve freedom of the Indian people; political, social and economic. This
required a total redistribution of resources as Indian economy was plagued with Jamindaari and
jagirdaari systems, agriculture (upon which most of the population depended) was controlled by
few rich landlords and kings.
• Peasants had no ownership rights. The system was tragically oppressive to the largest section of the
society. The commercialization of the agriculture had created serious scarcity of food production
resulting into frequent famines. The redistribution of agricultural land was the need of the hour to
do away with the exploitative middle men systems, oppressive taxation regimes and to end the
misery of a majority of the Indian population which worked on land. ‘Land to the actual tiller’ had
been the long standing slogan of the INM. This required taking away the property from jamindaars
and jagirdaars and distributing it to the peasants.
• The de-industrialization has destroyed the traditional organic patron client relationships and
machine made British good had destroyed the handicrafts. The new industries were not capable
enough to compete with western industries in an open global market.
• The Indian National Congress (INC) adopted mixed economic model for economy which was to
incorporate a mixed public – private partnership in industrialization while limiting the options of
concentration of wealth and monopolies. The government listed the strategically important
industries such as iron, coal, steel, power etc. under state control to ensure their accessibility to
public and use their output for public good. The directive principles of state policy laid out the
framework for socio-economic revolution (Read DPSP chapter from laxmikant’s indian polity) This
required for government to nationalize/take over some private companies operating in these
sectors. But it would go against the right to property.
• Common consensus among the leaders and the policies of the executive: Soon after assuming office
of the President and VP Prasad and Radhakrishnan said (respectively) that the government's aim
was 'to end poverty ... to abolish distinction and exploitation' and 'for the removal of all social
disabilities ... of man-made inequalities and injustices and [to] provide for all equality of
opportunity'.
• K. Santhanam brought together the strands of the seamless web in an article in the Hindustan Times.
The meaning of the social revolution, he wrote, was to get India 'out of medievalism based on birth,
religion, custom and community and reconstruct her social structure on modern foundations of law,
individual merit, and secular education’.
• Gandhi and Ambedkar had made insistent efforts to end untouchability and other forms of
discrimination. Sardar Patel and Rajendra Prasad had helped lead satyagrahas for peasant rights.
Nehru was, as he said of himself in 1929, a "'socialist and a republican.
• In 1931 Karachi Resolution: Had said that 'key industries and services, mineral resources, railways,
waterways [and] shipping' were to be government controlled, and the government was to safeguard
the interests of 'industrial workers' and women and children.
• 1934, Congress socialist party called for 'elimination of princes and landlords and all other classes
of exploiters without compensation' and 'redistribution of land to peasants'.
• Reasons for such strong attitude against the kings, landlords (and at times industrial classes) by
some sections of the INC leadership was the inherent disappointment of the INM with these classes
due to their weak or no support for the nationalist cause of independence. Many of these landlords
subjected their own people to horrors of poverty and discrimination while supporting the British
policies for their own gains.
• The social revolution was put at the top of the national agenda by the Constituent Assembly when it
adopted the Objectives Resolution, which called for social, economic, and political justice, and
equality of status, opportunity, and before the law for all people. The Directive Principles of State
Policy had made explicit the 'socialist', as well as the social revolutionary, content of the
Constitution.
• The Planning Commission was established within a month of the Constitution's inauguration, to
determine 'the machinery' for implementing the Directive Principles, and to assess national
resources and for their effective and balanced use.
• The Industrial Policy of 1948: Had said that the equitable distribution of wealth, not the distribution
of poverty' should be the criterion for government participation in industry and for 'the conditions
in which private enterprise should be allowed to ‘operate'. Government would be 'exclusively
responsible ... [for] new undertakings' in areas like coal and steel, it would plan for and regulate
eighteen other items; and government had the right to require existing industrial undertakings.
• This predilection of the Indian leadership towards socialism was a result of the personal histories
of the leaders most of whom were foreign educated and they had come to understand the Laski’s
views (of political freedoms as only necessary and not sufficient for the to the survival of any
democracy, therefore, political change shall be followed by equitable distribution of the resources
among the citizens to make democracy last) as central for India’s development after the British raj.
Secondly, due to the rise of socialism as an anti – thesis to the capitalism, most of the upper class
leaders of the independence movement looked down on industrialists and persons 'in trade', much
as did their English class-conscious counterparts.
• Many leaders of the independence movement disdained the industrialists for their typically weak
support for the independence movement and the merchants and shopkeepers for their reputations
as exploiters-as moneylenders, manipulators of commodity prices, and food adulterers.
• Misguided British Permanent settlement had put landlords as in charge of the land they had not
worked at or worked for.
• The political consensus was in favor of somewhat socialist managing of the economy or the ‘State
led development model’ of Indian Economy (Those interested in details please go through Ashutosh
Varshney’s book ‘Democracy, Development and the Countryside’ and Atul Kohli’s ‘State Directed
Development’).
• Socialism in the form of a government directed economy was thought necessary to mobilize national
resources for development, to assure some balance in development among the country's regions,
and because the private sector could muster neither the necessary capital nor the manpower to
undertake huge enterprises like dams and steel plants.
• Problems at hand: Provisions in the Fundamental Rights allowed personal conduct that seemed to
endanger political stability and national unity and integrity (check out our previous discussion on
FoS&E versus political stability).
• Demands of the social revolutionary strand of the seamless web would run head-on into other
provisions in the Rights chapter with, additionally, critical implications for the democracy strand.
'The Supreme Court ruled unconstitutional government legislation and rules changing property
relations and removing the 'man-made inequalities' of which Vice-President Radhakrishnan had
spoken. Remedy again was sought in amending the Constitution.
• The hierarchical social system, its predominantly agricultural economy, and its vital interest in the
seamlessness of the web: individual interest against the national interest (FRs versus political
stability and social economic equality); one individual's rights against another's; government's role
in reforming society (uniform civil code, Hindu code bill, reservation etc.); and conflicts between
'law' and 'justice'. What was to be the judiciary's share in "'ordering the life of a progressive people"?
• Other than freedom of speech, the specific issuer; addressed in the First Amendment were the
individual's right to enjoy his property versus government's authority to take it under its 'police
power' or for social revolutionary purposes, and the subordinate issue of any compensation due for
the taking.
• What compensation?, money or other?, how much? Scale to decide the amount? Is it to be paid once
or periodically? These were the issues which became central to government’s land reform
legislations in the court.
• How to reconcile property relations under the constitution. The 1948 congress working committee
resolution called for eliminating all mediators between the government and the tiller.
• Several provincial governments had begun to move on property issues. Legislators of the United
Provinces, for example, passed a resolution in 1946 that endorsed zamindari abolition, appointed a
zamindari abolition committee chaired by Premier C. B. Pant, and began drafting abolition
legislation. The Bombay government established a land reform committee under Premier Morarji
Desai.
• Centre and state level legislatures were busy drafting various bills aiming at redistribution of land.
Meanwhile the landlords and kings were lobbying at state capitals and in Delhi. Prez Prasad was
approached by the Bihar zamidars but he held his constitutional position and told them that the
advisory of the council of ministers was binding on him eventhough he conveyed their problems to
the cabinet.
• Constituent assembly faced these problems about deciding the matters of compensation. What did
the word mean or imply: 'full' or just' or 'equitable' compensation, or simply what a legislature
prescribed it to be?'. All the leaders agreed on abolition of zamidari but differed on compensation
issues.
• Nehru favored minimum compensation, Patel and John Mathai (HM and FM) wanted the
compensation to be just and fair and Prasad tilted towards zamidars and wanted proper
compensation to be given to them.
• During August 1949, Assembly members reached the compromise that became Article 31 of the
Constitution's Fundamental rights. In essence, this said that no person could be deprived of his
property except by authority of law, and no property (including anyone's interest in company,
commercial, or industrial undertakings) could be acquire for public purposes unless the law
provided for compensation and either fixed the amount of, or specified the principles upon which,
the compensation would be determined. Such state bills were to have the President's assent; and
any bill passed and assented to could not be questioned in court as contravening the compensation
clause.
• Nehru told Assembly members that, eminent lawyers have told us that ' "on a proper construction
of this clause (clause 2, the compensation clause) normally speaking, the judiciary should not and
does not come in.
• Nehru also said that equity applied to the community as well as to the individual and that no
individual could override the rights of the community at large.
• The assembly already had adopted the property clauses of what would become the 'freedoms'
article, Article 19, namely that citizens had the right to acquire, hold, and dispose of properly, subject
to 'reasonable restrictions' in the interests of the general public or to protect the interests of a
Scheduled Tribe. Citizens also had the right to practice any profession and to carry on any
occupation, trade or business. All the Constitution's property provisions later came at the center of
disputes between the government and the judiciary.
• Judiciary’s stand on government’s social revolution acts when they went to the courts: For months
before 26 January 1950 there had been rumblings against zamindari abolition and other land reform
legislation in Bihar by the Maharaja of Darbhanga and others. The Maharaja had challenged a Bihar
act in a district court and in the Patna High Court. Hearings on the validity of several acts had begun
in other high courts.
• On 11 May 1950, the Allahabad High Court ordered the state government to desist from
nationalizing certain private motorbus operations in a case concerning the individual's right to own
and operate a business.
• On 5 June, the Bihar High Court in Patna struck down as unconstitutional the Bihar Management of
Estates and Tenures Act, 1949. The Act provided for 'taking over' zamindars' estates, including coal
mines, managing them and sending profits to the zamindar, and eventually 'acquiring' them. The
Act's purpose was to avoid paying compensation at the time of taking over.
• On 7 June, the judiciary reinforced the government's sense that its entire social revolutionary
programme was endangered. As, the Madras High Court, acting on a petition of a Miss Champaknam
Dorairajan, a Brahmin, struck down as unconstitutional under Article 29 (2) a local regulation giving
preference to lower caste persons in entrance to medical schools.
• In August 1950, the substance of the challenge to the government's takeover of textile mills in
Bombay produced further anxieties in New Delhi about the nationalization of industrial property
although the government won this particular case in the high court there.
• Under the Essential Supplies Emergency Power Act, 1946, the Bombay government had appointed
a controller for the mills of the Sholapur Spinning and Weaving Company, which the owners had
closed down that August. On 9 January 1950, by special ordinance under Section 42 of the 1935 Act
(Governor General's Legislative Powers), the central government took over management of the
mills, and the next day the Bombay government constituted a Board of Management for them.
• The owners challenged this 'taking' on the grounds that it violated their fundamental right to
property because they received no compensation. New Delhi noted the argument even though the
Bombay High Court rejected the petition, ruling in August 1950 that only when the government
acquires or takes possession of a property is it obliged to pay compensation and that the right of
management of a company is not property.
• Meanwhile hearing on two more property related cases had begun at the Calcutta HC; one of them
was (the famous) Bela Benerjee case. was a test of government 'police power' to take over property
for another kind of public purpose-in this instance for housing refugees from East Pakistan-and the
compensation due.
• Thus was the social revolution set back or in difficulty on three property issues: 'taking' under police
power; nationalization of a trade or business, with obvious implications for government control of
 the economy; and abolition of zamindari and on its policy of 'positive discrimination' for the
disadvantaged.
• While the internal discussions for a solution had begun at the executive level regarding the
compensation matters, on 25 January 1951, the Lucknow and Allahabad benches of the Uttar
Pradesh High Court, acting on petitions filed by zamindars, issued restraining orders prohibiting the
state government from issuing 'notifications' and from acquiring their property under its Zamindari
and Land Reforms Act, which the UP legislature had passed on 16 January.
• Nehru wrote to the chief ministers that the judiciary's role was unchallengable, 'but if the
Constitution itself comes in our way, then surely it is time to change that constitution.
• In spring of 1951 the Patna High Court struck down the Bihar Land Reforms Act 1950), ruling it
unconstitutional on the ground that the differing rates of compensation for different categories of
zamindars violated Article 14, which guaranteed citizens equality before and equal protection of the
law. Because of this, the court could examine the bill's compensation provisions despite the bar in
Article 31 (2). This was particularly a devastating blow to the government which had spent months
of deliberation between the state and central government to circumvent the constitutional question
arising from the act.
• On 22 March 1951, the Calcutta High Court ruled against the state government in the Bela Banerjee
case. The state had acquired land under a 1948 law, took title to it, and gave it to a cooperative
society for the building of shelter for refugees from East Pakistan. The court held that the owner's
fundamental right under Article 31 had been violated because the compensation did not amount to
a 'just equivalent' of the market value of the land. For the governments in Calcutta and New Delhi,
this was another devastating blow both to policy and to the expectation that careful constitutional
drafting would keep the judiciary away from compensation issues.
• Reacting to the Patna High Court's invalidation of the Bihar bill, Law Minister Ambedkar on 14
March 1951 sent the Cabinet Committee on the Constitution, the one Nehru had established in
February, a lengthy note. He said that Article 31 (2) should be amended so that nothing should
prevent government from prescribing different principles for compensation for different classes of
property, or should affect the validity of any existing law, or any law by which government would
resume title to land, or law regarding food supply.
• He suggested that the doctrine of government's 'police power' be made explicit by adding an article
to the Constitution expressing the general doctrine, and that Articles 14 and 31 should not be subject
to it. He added his opinion that the Supreme Court ought not to be invested with absolute power to
determine which limitations on the Fundamental Rights were proper, for Parliament ought not to
be placed in a position of having to undertake over time the inevitable task of constantly amending
the Constitution.
• The amending bill, introduced in Parliament on 12 may 1951 by Prime Minister Nehru, now
contained the provisions regarding freedom of expression and agricultural and
commercial/industrial property and most of its final content on special treatment for the
disadvantaged.
• Two days earlier, the government had received the good news that the UP High Court had lifted the
restraining orders of the previous January and had upheld the constitutionality of the state's
zamindari abolition Act.
• Criticizing the bill, S. P. Mookerjee spoke for many of its opponents. Why 'this indecent haste', he
asked, when the Supreme Court had not considered the matter? The issue was not zamindari
abolition, but that the Constitution was being treated as 'a scrap of paper'. Because the Prime
Minister says we cannot wait, is the remedy to arm the executive with arbitrary powers?
• Nehru reacted sharply. The whole object of the articles in the Constitution, which the amendment
was intended to reinforce, he said, was 'to take away, and I say so deliberately, to take away the
question of zamindari and land reform from the purview of the courts'.
• Bill was referred to the standing committee which took due consideration of the opposition’s
demands and amended a few provisions.
• When the bill passed on 2 June after four days of debate, 228 votes to 20, Nehru characterized it as
a 'great gain' that presaged future actions. We must go beyond zamindari abolition, he wrote to the
chief ministers, and pointed out that several states already had set a ceiling for holdings. Cooperative
farming should be the next aim, he said.
• But the President had reservation regarding the clarity over his powers (check out our previous
discussions).
• The first amendment (1951): The First Amendment Act amended articles 15, 19, 85, 87, 174, 176,
341, 342, 372 and 376. It inserted articles 31A and 31B.
• It inserted Ninth Schedule to the Constitution to protect the land reform and other laws present in
it from the judicial review.
• First Amendment Act had set the precedent of amending the Constitution to overcome judicial
pronouncements to implement the programmes and policies of the Government.
• It placed reasonable restrictions on fundamental rights and added three more grounds of
restrictions on freedom of speech such as public order, friendly relations with foreign states and
incitement to an offence.
• Article 19(1)(g) of the Constitution confers the right of citizens of India to practice any profession
or to carry on any occupation, trade or business. The Amendment expressly provided that State
trading and nationalization of any trade or business by the state is not being invalid on the ground
of the violation of the right to trade or business.
• In response to the verdict on State of Madras v. Champakam Dorairajan case (1951), it made
provision for special treatment of educationally and socially backward classes by adding the 9th
schedule to the Constitution. It prevented the acts listed in the 9th Schedule from being subjected to
judicial review.
Political Science lecture: August 25, 2020

Right to Property as originally given in the constitution: Article 19(1)(f) and 31

• Art. 19(1) (f) guaranteed to the Indian citizens a right to acquire, hold and dispose of
property. Art 19 (5), however, permitted the state to impose by law reasonable restrictions
on this right in the interests of the general public or for the protection of any Scheduled
Tribe.
• Article 31: "no person shall be deprived of his property save by authority of law." Article
31 A and B were added after 1st amendment to pave way for the land reforms and to
accommodate government’s state led development model.

Continuing: Social Revolution v/s Democracy (Right to property v/s land

reforms and equality v/s special treatment of disadvantaged groups)

• The first amendment was passed after much reluctance of the President to give his assent.
On the other hand the Zamidars had decided to approach the SC challenging the first
amendment’s constitutionality.
• From Bihar, Uttar Pradesh, and Madhya Pradesh (where the zamindari abolition law had
been upheld by the high court), they came to the Supreme Court to attack the amendment's
constitutionality in the Shankari Prasad case.
• Their lawyers argued that the amendment was void because it had been passed by a
unicameral parliament, and thus did not comply with the amending process described in
Article 368; that a constitutional amendment could not abridge the Fundamental Rights
because it was a law within the meaning of Article 13, and that the amendment having
affected the jurisdiction of the high courts (Article 368(b)) should be declared void because
it should have been ratified by one-half the states.
• Justice Patanjali Sastri, speaking for the majority, upheld the amendment on the ground
that it had been enacted validly and that Parliament had unlimited power of
amendment.
• The Maharaja of Darbhanga's suit against the Bihar Land Reform Act reached the Supreme
Court in the spring of 1952 on the government's appeal against the Patna High Court's
decision of 12 March 1951. Three judges of a five-judge bench upheld the high court
verdict, ruling the Act invalid even though the First Amendment had placed the Act in the
Ninth Schedule, supposedly beyond court scrutiny.
• To do this, the majority reached outside Article 31 (2) and the other Fundamental Rights
and based their ruling on the entry in the Concurrent List which provided that real
principles for compensation had to be fixed, and Bihar had done this wrongly.
• Justice S. R. Das dissented, holding that the First Amendment did protect the Act from
judicial scrutiny. Coming so soon after enactment of the First Amendment, the decision
'was bound to seem an act of judicial defiance of the legislature sitting as a constituent
body. On the same day the court bench unanimously upheld the UP and Madhya Pradesh
zamindari abolition acts.
• Critical Evaluation of the first amendment: The First Amendment was consequential far-
beyond its immediately visible content. It established the precedent of amending the
Constitution to overcome judicial judgments impeding fulfilment of the government’s
perceived responsibilities to the seamless web and to particular policies and programmes.
Although this precedent was long lived, the accompanying example of respecting the
judiciary and protecting its independence even while disagreeing with did not. The
amendment's language giving it retrospective as well as prospective effect was used by
Indira Gandhi to render constitutional, actions that at the time of their commission had been
both illegal and unconstitutional.
• The Ninth Schedule was the amendment's most radical component. This constitutional
vault into which legislation could be put, safeguarded from judicial review, the judges
being denied the key, was distasteful to several of the cabinet members who voted to
introduce the amendment in Parliament.
• As we saw later 9th schedule became widely used by the Indira Gandhi’s executive to avoid
judiciary. It wasn’t limited to the land reforms laws only as Nehru had anticipated.
• Finally in Golaknath case 1973 the Judiciary brought it under the judicial review when it
ruled that laws placed under 9th schedule prior to 1973 will not come under judicial review
but after 1973 laws placed under 9th schedule will come under judicial review.
• Fourth and 17th Amendments: The First Amendment failed to solve the problems
between the FRs and the executive and the judiciary. 4th and 17th amendments exclusively
dealt with the right to property issues.
• Governmental and public frustration with unsuccessful efforts at keeping the social
revolutionary and democracy strands of the seamless web in harmony marked this period.
Socialists outside the congress and within the party were impatient. JP Narayan asked
Nehru to adopt 14 point socialist agenda to effectively implement land reforms and ensure
economic equality. Nehru feared the backlash from the conservatives in the party and wrote
back to JP ‘we have to grow into the things’.
• There were calls to effectively deal with the judiciary which had stalled the social
revolution but the overall commitment of the executive to ensure judicial independence
remained intact.
• Parja Socialist Party had declared the non-violent struggle/satyagraha to bring the land
reforms.
• Govt’s efforts were frustrated (particularly) by the three Supreme Court decisions in
December 1953:
1. On 11 December, the Court upheld the Calcutta High Court judgment in the Bela
Banerjee case (regarding the taking of land to be used for rehabilitation of refugees),
ruling that 'compensation' meant 'a just equivalent of what the owner has been
deprived of.
2. On 17 December 1953, the same judges in the Subodh Gopal Bose case (concerning
the right to hold property under Article 19) asserted the court's authority to consider
the rightness of compensation.
3. Dec. 18, the court overturned the Bombay High Court's decision in the Sholapur Mills
case, agreeing with an aggrieved shareholder that placing the company under
government-appointed agents was a deprivation of property for which compensation
under Article 31 was due, but for which he had not been paid. Taking over
superintendence of the company was in substance taking over the company itself, said
the court.
• The fourth Amendment Made the scale of compensation given in lieu of compulsory
acquisition of private property beyond the scrutiny of courts. Authorized the state to
 nationalize any trade. Included some more Acts in the Ninth Schedule. Extended the scope
of Article 31 A aiming at savings of laws from judiciary.
• Seventeenth Amendment Act, 1964: Prohibited the acquisition of land under personal
cultivation unless the market value of the land is paid as compensation. Included 44 more
Acts in the Ninth Schedule.
Political Science

Date: 26 August 2020

Background for the Seventeenth Amendment:

• 17th Amendment was brought upon by definitional variations of estate and local
nomenclature of land ownership. Jagirdari system was not uniform across India so there
were various terms of local languages which had to be accommodated in legal definitions
of the same.
• The land reform were moving slow and judicial pronouncements kept the executive and
legislature busy in solving the constitutional questions involving social revolution and
democracy through constitutional means. Meanwhile, in Kerala the CPI government had
come to power with a strong agenda to implement land reforms. There too the executive
and judiciary were embroiled in a constitutional debate through litigation.
• On 5 December 1961, the Supreme Court had held that the taking of lands under the Kerala
Agrarian Relations Act of 1961 was not protected from judicial scrutiny by Article 31A,
despite the Fourth Amendment, because the lands did not come within that article's
definition of 'estate'.
• The Court therefore could apply Article 14 (equality before and equal protection of the
law). It did so and ruled the Act unconstitutional on the ground that the 'slab system smaller
compensation for larger holdings, same issue that had upset the Bihar Zamindari Abolition
and Agrarian Reforms Act-was unfair.
• The Seventeenth Amendment was framed to overcome the definitional problem by
broadening the definition of 'estate' to include tenure systems such as inam, jagir, land held
under ryotwari settlement-the equivalents of 'estate' in 'local' law.
• 17th Amendment provided further that where any law makes any provision for the
acquisition by the State of any estate and where any land comprised therein is held by a
person under his personal cultivation, it shall not be lawful for the State to acquire any
portion of such land as is within the ceiling limit applicable to him under any law for the
time being in force or any building or structure standing thereon or appurtenant thereto,
 unless the law relating to the acquisition of such land, building or structure, provides for
payment of compensation at a rate which shall not be less than the market value thereof.
• The expression "estate" shall, in relation to any local area, have the same meaning as that
expression or its local equivalent has in the existing law relating to land tenures in force in
that area and shall also include-
(i) any jagir, inam or muafi or other similar grant and in the States of Madras and Kerala,
any janmam right;
(ii) any land held under ryotwari settlement;
(iii) any land held or let for purposes of agriculture or for purposes ancillary thereto,
including waste land, forest land, land for pasture or sites of buildings and other structures
occupied by cultivators of land, agricultural laborers and village artisans.
• Several State laws were put under the 9th schedule.
• Soon challenged, the constitutionality of the amendment was upheld by the Supreme Court
in the Sajjan Singh case. The court's principal points were that Article 13(2) did not apply
for there was a clear distinction between ordinary law and a constitutional amendment; that
'the power conferred by Article 368 includes the power to take away the Fundamental
Rights guaranteed by Part 111'; and that 'the expression "amendment of the Constitution"
plainly and unambiguously means amendment of all provisions of the constitution.

The Amendment did not solve all the questions as we will see later on in the Golaknath case and
others. With Sajjan Singh case the amendment power of the legislature was marked limitless. This
became an issue of contention between the judiciary and executive under Indira Gandhi.

Nehru Era: Parliament and Judiciary relations

➢ Socialism and Democracy: The Congress Party, and the Congress-controlled

government, often had reiterated broadly reformist and socialist policies during the Nehru
years. The Congress's socialist pattern of society resolution of 1955 remained a guiding
principle for its policies.
➢ Agrarian Reorganization of India took a hit due to the slow pace of the land reforms and
the constitutional questions involved in it.
➢ Towards the end socialists within the congress felt impatient and demanded strict
implementation of the welfare policies while the court and the legislature maintained their
institutional boundaries and constitutional balance.
➢ Independent and Assertive Judiciary
➢ Seamless web under strain but stayed resilient.
Political Science III

August 27, 2020

Constitutional Status of the Judiciary

• Indian Constitution provides for an independent judiciary to interpret the constitution. It

provides for the constitutional safeguards such as the salaries of the judges shall be from
the consolidated fund of India to limit the political influence. The removal process of a
judge is complex and through.
• The first Chief Justice of India emphasized that the Court should interpret the Constitution
'"with an enlightened liberality" ' and administer the law with ' "goodwill and sympathy for
all" and to do this it will be “quite untouchable by the legislature or the executive authority
in the performance of its duties".
• Felicitating CJI, the AGI M. C. Setalvad quoted Oliver Wendell Holmes on the '"organic
living"' character of constitutions and advised that the Court's foremost task would be
interpreting the Constitution as a "means of ordering the life of a progressive people".
• The original 7 judges of the SC were all very experienced in the field of law and justice
and had years of experience under the British. The justice system remained independent
from executive interference under the British as long as imperial interests weren’t involved.
This helped in smooth institutional transition to an independent justice system of an
independent India.
• Judicial Independence: Appointments: The President appoints the judges of the Supreme
Court after consultation with the Chief Justice of India (CJI) and other Supreme Court and
high court judges as he may wish. He appoints high court judges after consultation with
the CJI, the chief justice of the high court to which the individual is to be appointed, and
the governor of the state.
• Whether the governor, when making his recommendations, may act in his discretion or
only on the advice of the chief minister soon would become controversial.
• It became a convention that the President would consult the outgoing CJI about his
successor, although this was largely a formality so long as the senior-most judge routinely
 became Chief Justice. All judges, therefore, are appointees of the government, which
means of the Prime Minister and the cabinet, placing upon them primary responsibility for
the quality and the independence of the judiciary.
• This constitutional process left undecided the influence of the institutions and individuals
participating in it; it could not do otherwise.
• The CJI during the Nehru period had virtually a veto over appointment decisions, a result
of the conventions and practices of the time and the Chief Justices' strength of character.
• Granville Austin, “At its most obvious, intellectually inferior judges were thought likely to
produce bad law and poor justice. But judges of any ability could be affected by the
'extraneous influences' that Indians believed so prevalent in their society. These could come
from a language or regional group, from family, caste, or clan. The public and the legal
community during the Nehru years were more suspicious of such influences than of
pressure on judges from government acting from its own ideological motivations, whether
'conservative' or 'socialist'. Executive influence would assume prominence after Indira
Gandhi became Prime Minister.
• The transfer of judges remained ambiguously unclear which did not impact the judicial
independence in the initial years but became a bitter disagreement between judiciary and
executive in the later years.

Times of Indira Gandhi

• A new era marked by confrontation over institutional and personal power, began with the
arrival Indira Gandhi.
• Her consolidation of power occurred with sidelining the syndicate and taking control of
the congress party (resulting into a split in the INC). The federal relations suffered due to
the centralization of the center-state relations at the central executive level. The
confrontation with the judiciary came with three rulings of the court: Golak Nath, Bank
nationalization, and Privy purses.
• Parliament's assertion of its power further to restrict Fundamental Rights and to amend any
part of the Constitution; the Court's reassertion of its power of judicial review; and Mrs
Gandhi’s long-brewing direct attack on the Court.
• Individual rights were pitted against the society's need for a social revolution, as they had
been in Nehru's time, the increased central authority over the states ended the 'bargaining
federalism’ of the Nehru years, and the 'federal' structure of the Congress disappeared as
many ministers became New Delhi's instruments, the Prime Minister gained control of the
Congress Party machinery.
• The balance between the tree organs and the seamless web’s three principles was shaken
as IG took control over the congress parliamentary party. The executive branch came to
dominate the parliament that it lost the identity of its own.
• Two strands of the seamless web were strained and the third one fared better. Democracy
and unity and integrity came under the strain and socialism fared comparatively better.
August 31, 2020

Executive and Judiciary Relations 1967 – 1973: Debate over supremacy

The personalization of power by Mrs Gandhi resulted into legislature’s power getting concentrated
in the hands of executive (due to the number of INC MPs), executive’s power moved to PMO and
PMO’s power was extensively held by Mrs Gandhi and her close advisors. In such scenario the
institutional balance tipped towards executive at the cost of legislature. The judiciary which
remained fully independent during the Nehru years came under the executive attack as its
judgments into property cases seemed to come into conflict with executive’s renewed thrust to
socialist goals.

• The Nehru era delicate balance and mutual respect was gone as the disputes couldn’t reach
constitutional conclusions (Amendments) due to the conflict over whether the parliament’s
authority over amendment procedures was supreme. Could the absolute majority executive
change everything from the constitution if it wanted to? What was the scope of Article 368
in this regard? Could the judiciary stop parliament from exceeding its limits? What were
those constitutional limits?
• Indira Gandhi’s socialist innovation was aimed at enhancing and consolidating her power.
And a conflict with judiciary was foreseeable as executive tried to supersede the judiciary.
Meanwhile a new generation of more energized leadership had emerged within the party
which aimed at quick solutions for the executive policies.
• A harbinger of the new power relationship came in the inability of the syndicate leadership
from the states (Kamraj of Madras, Atulya Ghosh of Bengal, S. K. Patil Bombay,
Nijalingappa of Mysore and N. Sanjeeva Reddy of Andhra) to arrange a new leader after
Shastri as they had after Nehru in 1964.
• Congress parliamentary party selected Mrs Gandhi after a secret ballot in 1966 as the leader
after 8 state CMs had declared for her. She defeated Morarji Desai who was not liked by
the syndicate. He was personally unpopular in the party due to his pride and stubbornness.
• Many viewed her as a transitional PM till the 1967 general election. She was faced with a
challenge to assert her dominance within the party to lead it through the 1967 election.
• The internal self-destructive factionalism resulted in INC losing majorities in 8 states and
25 seats from its previous majority in the Lok Sabha. The rest of the year was replete with
state level political scramble for power amidst trading loyalties and shifting alligiences of
the state MLAs.
• Instead of ousting IG the INC let her continue to lead the party as the alternative would
have been Morarji Desai. So the party compromised and IG became PM, Morarji Desai
was appointed Deputy PM and the FM. And the party started its path of socialism to re-
gain the lost political clout. Because the AICC had reached the conclusion that party lost
due to the lack of speed implementation of the socialist policies.
• The congress working committee adopted a 10 point resolution which aimed at
nationalization of banks and insurance, putting limits on urban property and income and
abolishing the privy purses for the princes, establishing a monopolies commission. CWC
said this was possible only through following the constitution through its letter and spirit.
• Now the congress was ideologically spilt among the old leadership who were as socialist
as the PM led by the Nijalingappa the then party president and left leaning ‘young Turks’
of the party. The later were heard by the PM at the Faridabad session of the party. The PM
emphasized on taking decisive steps to fulfill the goals of a just and equal society
meanwhile she kept her options open by not ideologically fully committing to either side.
She used this split to target the old guards.
• In the next meeting of the party in Bangalore the PM sent a note through Fakkhruddin ali
Ahmad outlining the socialist plan based on those 10 points. The old guards had their
apprehensions. She had termed this note as ‘hurriedly compiled stray thoughts’ and the
memorandum was adopted by the INC. Now the power struggle among the Party leaders
and IG turned into ‘principle’. This known as the Stray Thoughts Memorandum.
• In May 1969 the the office of the President had fallen vacant due to the death of Zakir
Hussain, VV Giri became the acting prez. Mrs. Gandhi considered Giri friendly and wanted
him to be the party’s nomination for the prez election but the old guards supported the
candidature of Sanjiva Reddy (whose socialist credentials were questioned by IG at the
Banglore session). When it came to the voting V.V. Giri lost the nomination to Sanjiva
Reddy at the congress parliamentary board meeting. Kamraj, Patil, Desai voted for Reddy.
Nijalingappa and Jagjivan Ram (Agri minister) abstained Chavan (HM) voted for Reddy
 where as IG and F. A. Ahmad voted for Giri. IG was furious and came back to Delhi
sidelined by the syndicate D. P. Mishra, Umma Shankar Dikshit and Kumaramangalam
advised her to give the conflict a look of ideology. . She turned to the Bank Nationalization
as a weapon. She spared the HM Chavan as he had socialist image and a good standing in
Maharashtra but still took away HM from him. She turned against FM Desai who she
termed as pro business and anti poor. But if she had declared her nationalization policy
Desai would have agreed but she divested him (16 july) of FM position and he resigned
(19th) clearing the way for her.
• In the evening of 19th july the President VV Giri promulgated the ordinance nationalizing
14 banks.
September 1-2, 2020

Political Science

Golaknath Judgement, Bank Nationalization, Abolition of the Privy Purses and

the Radical Amendments

(Sources: Granville Austin’s book, For simple language and clarity Wikipedia, shodhganga,
swayam articles have been used)

• Split in the Congress 1969: India's grand old party, the Congress, faced its first major
split as the old guard led by party President, S. Nijalingappa expelled Prime Minister Indira
Gandhi from the party for "fostering a cult of personality". The "Syndicate", as the senior
members were called, could not quite come to terms with the fact that Indira-had a mind
of her own.
• The friction persisted when Mrs Gandhi’s personalized pursuit for power clashed with that
of the syndicate.
• The split was occasioned by the Presidential election where party’s official nominee N.
Sanjeeva Reddy (chosen by the syndicate and elected as the official party nominee despite
Mrs. Gandhi’s opposition)
• The break was complete when Indira after proposing N. Sanjeeva Reddy's name for
president ship asked Congressmen to "vote according to their conscience". V.V. Giri, the
rebel Congress candidate won. And Indira Gandhi’s control over the party became
complete.
• On 12 November 1969, the Prime Minister of India Indira Gandhi was expelled from the
Congress party for violating the party discipline. The party finally split with Indira Gandhi
setting up a rival organization, which came to be known as Congress (R). In the All India
Congress Committee, 446 of its 705 members walked over to Indira's side. The Indian
National Congress (Organisation) was also occasionally informally referred to as the
Syndicate and the Indira faction by "Indicate". K Kamaraj and later Morarji Desai were the
leaders of the INC(O).
• The congress was split into two factions, both claiming to be the true heir for Nehruvian
legacy of socialism as Indira Gandhi headed the first minority government of the country
with 210 in LS and 107 in RS. Her govt. was supported from the outside by CPI, DMK and
independents. At the Bombay session in party president Jagjivan Ram gave a dignified
speech and his personality gave it a tone of integrity and respect. The socialist rhetoric was
at its peak with Chavan’s 10 point programme later being adopted as the resolution they
aimed at nationalization of financial institutions, full implementation of the land reforms
by 1970, govt. control over the trade of major strategic items etc.
• Indira at this time enjoyed the full support of the new socialist bloc while the syndicate was
relegated to periphery by calling the conformists and anti-socialists.
• Meanwhile, the Golaknath Judgment had arrived. Timing helped IG to pick up the pace
against everything challenging her position by utilizing the socialism rhetoric.
• Golaknath Judgment: The Supreme Court, by thin majority of 6:5, held that a
constitutional amendment under Article 368 of the Constitution was an ordinary 'law'
within the meaning of Article 13(3) of the Constitution. The majority did not believe there
was any difference between ordinary legislative power of the parliament and the inherent
constituent power of parliament to amend the Constitution. The majority did not agree with
the view that Article 368 of the Constitution contained "power and procedure" to amend,
but instead believed that the text of Article 368 only explained the procedure to amend the
constitution, the power being derived from entry 97 of the List I of the VII Schedule to the
Constitution.
• Since according to Article 13(2), the parliament could not make any law that abridges the
Fundamental Rights contained in Part III of the Constitution, a constitutional amendment,
also being an ordinary law within the meaning of Article 13, could not be in violation of
the fundamental rights chapter contained in the Constitution of India. Therefore, all
constitutional amendments thus far which were in contravention or which had made an
exception to fundamental rights chapter of the Constitution were said to be void.
• The judgement reversed Supreme Court's earlier decision which had upheld Parliament's
power to amend all parts of the Constitution, including Part III related to Fundamental
Rights. The judgement left Parliament with no power to curtail Fundamental Rights.
• The Bank Nationalization: Indira Gandhi announced the nationalization of fourteen
banks in 1969. Even though this decision was subsequently challenged in the Supreme
Court, which declared the order void, the judicial order was circumvented subsequently by
an ordinance, which overcame the disabilities mentioned by recasting the original order.
Though bank nationalization was established through parliamentary legislation only later,
for all practical purposes, the fourteen banks began functioning as nationalized entities in
1969.
• In 1970 Cooper vs Union of India: In 1970, the Supreme Court, in its judgement on Rustom
Cavasjee Cooper v. Union Of India, popularly known as the Bank Nationalization case,
held that the Constitution guarantees the right to compensation, that is, the equivalent
money of the property compulsorily acquired. The Court also held that a law which
seeks to acquire or requisition property for public purposes must satisfy the requirement of
Article19(1)(f). These restrictions were overcome by the 25th amendment.
• 24th Amendment 1971: The Constitution (Twenty-fourth Amendment) Act, 1971, enables
Parliament to dilute Fundamental Rights through Amendments of the Constitution. The
24th Amendment came into force on 5 November 1971. The Indian press characterised the
24th Amendment as being too sweeping in its ambit, and of dubious legality. The
Amendment was also opposed by jurists, and all the surviving members of the Constituent
Assembly at the time. The Supreme Court upheld the validity of the 24th Amendment in
Kesavananda Bharati v. State of Kerala in 1973.
• Amendment of article 13 In article 13 of the Constitution, after clause (3), the following
clause shall be inserted, namely:—"(4) Nothing in this article shall apply to any amendment
of this Constitution made under article 368." Amendment of article 368 Article 368 of the
Constitution shall be re-numbered as clause (2) thereof, and—(a) for the marginal heading
to that article, the following marginal heading shall be substituted, namely:—
• "Power of Parliament to amend the Constitution and procedure therefor.";
(b) before clause (2) as so re-numbered, the following clause shall be inserted, namely:—
"(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its
constituent power amend by way of addition, variation or repeal any provision of this
Constitution in accordance with the procedure laid down in this article.";
• (c) in clause (2) as so re-numbered, for the words "it shall be presented to the President for
his assent and upon such assent being given to the Bill", the words "it shall be presented to
the President who shall give his assent to the Bill and thereupon" shall be substituted;
(d) After clause (2) as so re-numbered, the following clause shall be inserted namely:—
• "(3) Nothing in article 13 shall apply to any amendment made under this article".
• 25th Amendment: The Constitution (Twenty-fifth Amendment) Act, 1971, curtailed the
right to property, and permitted the acquisition of private property by the government for
public use, on the payment of compensation which would be determined by the Parliament
and not the courts. The amendment also exempted any law giving effect to the article 39(b)
and (c) of Directive Principles of State Policy from judicial review, even if it violated the
Fundamental Rights.
• Article 39: certain principles of policy to be followed by the State: The State shall, in
particular, direct its policy towards securing
• B. that the ownership and control of the material resources of the community are so
distributed as best to subserve the common good;
• C. that the operation of the economic system does not result in the concentration of wealth
and means of production to the common detriment;
• Amendment of article 31 In article 31 of the Constitution—
(a) for clause (2), the following clause shall be substituted, namely:—"(2) No property
shall be compulsorily acquired or requisitioned save for a public purpose and save by
authority of a law which provides for acquisition or requisitioning of the property for
an amount which may be fixed by such law or which may be determined in accordance
with such principles and given in such manner as may be specified in such law; and no
such law shall be called in question in any court on the ground that the amount so fixed
or determined is not adequate or that the whole or any part of such amount is to be
given otherwise than in cash:

In simple terms Parliament will decide the compensation and the acquisition is out of the
preview of the courts.
• Provided that in making any law providing for the compulsory acquisition of any property
of an educational institution established and administered by a minority, referred to in
clause (1) of article 30, the State shall ensure that the amount fixed by or determined under
such law for the acquisition of such property is such as would not restrict or abrogate the
right guaranteed under that clause";
• (b) after clause (2A), the following clause shall be inserted, namely:—
• "(2B) Nothing in sub-clause (f) of clause (1) of article 19 shall affect any such law as is
referred to in clause (2)".
• 3. Insertion of new article 31C After article 31B of the Constitution, the following article
shall be inserted, namely:—
• 31C. Saving of laws giving effect to certain directive principle. Notwithstanding anything
contained in article 13, no law giving effect to the policy of the State towards securing the
principles specified in clause (b) or clause (c) of article 39 shall be deemed to be void on
the ground that it is inconsistent with, or takes away or abridges any of the rights conferred
by article 14, article 19 or article 31; and no law containing a declaration that it is for giving
effect to such policy shall be called in question in any court on the ground that it does not
give effect to such policy:

• Provided that where such law is made by the Legislature of a State, the provisions of this
article shall not apply thereto unless such law, having been reserved for the consideration
of the President, has received his assent.

• Privy Purses Abolition: A motion to abolish the privy purses, and the official
recognition of the titles, was originally brought before the Parliament in 1970 and passed
in the Lok Sabha, but failed by one vote to reach the required two-thirds majority in the
Rajya Sabha, with 149 voting for and 75 against.

• On September 6, 1970, the President of India passed an order in respect of each of the
rulers of former Indian states. In exercise of the power vested in him under Article 366(22)
of the constitution, the president directed that with effect from the date of his order all
rulers ceased to be recognised as the rulers. This resulted in the forthwith stoppage of the
 privy purses received by the rulers (Madhav Rao Scindia Case) and the discontinuance of
their personal privileges. Writ petitions under Article 32 of the constitution were filed by
some of the rulers as test cases to question the orders. The Supreme Court ruled in favour
of the rulers.
• It was again proposed before Parliament in 1971, and was successfully passed as the 26th
Amendment to the Constitution of India in 1971.[1] Then Prime Minister Indira Gandhi
argued the case for abolition based on equal rights for all citizens and the need to reduce
the government's revenue deficit.
 September 3, 2019

Political Science

Kesavananda Bharti Judgment an attempt to restore the institutional balance

Background

• The Twenty-fourth Amendment went beyond Nath Pai's simple bill that
Parliament could amend any part of the Constitution. It excluded amendments
from the reach of Article 13-Parliament could make no law infringing the
Fundamental Rights. It empowered Parliament to amend any part of the
Constitution 'by way of addition, variation or repeal', and it amended another
clause in Article 368 to require that the President 'shall' give his assent to any
constitutional amendment bill presented to him for assent.
• The Twenty-fifth Amendment was devoted to the property article of the
Fundamental Rights (Article 31) and the status of the Rights overall. The word
'amount' replaced 'compensation' for compulsorily acquired property, and the
courts were barred from questioning the 'amount' on grounds that it was not
adequate or paid other than the cash.
• It also inserted the new Article 31C including the escape clause (term used by
Austin) that no law declaring its purpose to be fulfilling the Directive
Principles in Article 39(b) and (c) could be challenged in court on the ground
that it did not do so.
• The fundamental rights of equality before the law (Article 14), the 'freedoms'
of article 19, and the property terms of Article 31 were to be made subordinate
to the two most classically socialist of the Directive Principles, and an entire
category of legislation was placed beyond judicial review.
• The Kesavananda case embodied two issues critical in parliamentary
democratic governance: one substantive one institutional.
• Substantively the view that the Constitution had given Parliament
unlimited constituent power-that is, unlimited power to amend the
Constitution-confronted the view that the judiciary, with the Supreme
Court at its head was the Constitution's ultimate interpreter-and therefore
protector.
• Institutionally, perforce, the confrontation took place, as in the past between
the Court and Parliament-and, because Mrs Gandhi led the Parliament at this
time, the confrontation boiled down to one between Mrs Gandhi and the
Court. In Kesavananda, the Court emerged victorious, in both confrontations,
asserting its institutional role vis-a-vis Parliament in constitutional matters
and strengthening its power of judicial review through the basic structure
doctrine. Thereby the Court rescued the democracy strand of the seamless
web.
• Kesavananda case: The case had originated in March 1970 when Swami
Kesavananda head of a monastery-like establishment in Kerala called a muth,
challenged Kerala government's attempts, under two state land reform acts, to
impose restrictions on the management of church property.
• A local lawyer wrote to J. B. Dadachanji, advocate at the Supreme Court,
about 'the Case. Dadachanji shared the letter with N. A. Palkhivala, who said
they should take the case, for it could be the basis for a major Supreme Court
Judgment.
• Although the state government invoked its authority Article 31 in both the
1963 and 1969 Land Reform Acts, Dadachanji and Palkhivala convinced the
Swami who had never met, into fighting his petition under Article 29,
concerning the right to manage religiously owned property without
government interference, The grander issues of Parliament's power to amend
the constitution rose as court proceedings evolved. For example, while it was
pending, Parliament enacted the Twenty-fourth, Twenty-fifth and Twenty-
ninth Amendments-the latter placing the 1969 Kerala Land reforms Act in the
Ninth Schedule. The Swami believed that for his initial petition to succeed he
must challenge the constitutionality of three amendments. A five-judge bench
in August 1972 allowed this and it was decided that thirteen judges should
hear the case, making the superior to the bench of eleven that had heard Golak
Nath.
September 04, 2020: Political Science

Emergency

Main Source: Working a democratic constitution by Granville Austin

Background: Suppression of Judges: On 25 April 1973, the day after the Kesavananda
decision, within minutes of arriving home from attending a retirement party for Chief Justice S M
Sikri, Justice Shelat received an urgent telephone call from Justice Hegde: All-India Radio's five
o'clock news bulletin had announced that A. N. Ray had been appointed the new Chief Justice of
India. The President had passed over Shelat, Hegde, and Grover, who, by the convention of
seniority, were next in line for the position.

The Prime Minister had struck a blow at democratic constitutionalism, for, by attempting to make
the Court obedient to her government, she was unbalancing the power equation among the three
branches of government and distorting the seamless web. It was an act of extreme centralization
of power. The government's vigorously proclaimed motive for the supersession was furtherance
of the social revolution, for which an accommodating Supreme Court was needed. No doubt,
several members of the cabinet were so moved, but the critics alleged that Prime Minister's motive
was personal, she and her closest associates intended to protect her personal political fortunes. The
purposes of and the process for the event, is called the 'supersession of judges'.

The four judges (Including the CJI Sikri who was to retire the next day) presented their handwritten
letters of resignation to the President.

Between the 24 April decision of the Political Affairs Committee of the cabinet to appoint A. N.
Ray, H. R. Gokhale's visit later in the day formally to offer him the positron, and the news
broadcast the next evening, Mrs Gandhi had to overcome President V. V. Giri’s objections to the
supersession. When she presented the papers for his signature on the morning of 25 April she
discovered that Giri did not like the idea of appointing Ray. He was not confident of Ray's
suitability for the responsibility, and he wanted particularly to avoid the adverse publicity he
expected the supersession to generate. He suggested appointing Justice Shelat whose term would
end in two months with his mandatory retirement while the government prepared public opinion
for a possible supersession of Justice Hegde, who was next in seniority after Shelat, Law Minister
Gokhale, who Mrs Gandhi summoned from an adjoining room, explained to the President that
seniority in appointing Chief Justice was not the practice in other countries and that no provision
in the Constitution required the President to consult a retiring Chief Justice about his successor.

Despite this, the President advised that the appointment be reconsidered. The Political Affairs
Committee did so that noon, and its reaffirmed decision was taken immediately to the President
who, silenced if not convinced, assented to Ray's appointment. Additionally, Giri wished to
respond to the four judges' resignation letters with personal letters of regret. Following Gokhale's
and the Home Secretary's advice, he did not convey his personal regrets to then judges.

The Kesavananda case had triggered the suppression but the deeper cause lay in the detail of a
case: Indira Gandhi Election case, resulting from Raj Narain's election petition alleging that she
had indulged in corrupt practices during her 1971 parliamentary election campaign, Mrs Gandhi's
counsel had appealed from the Allahabad High Court to the Supreme Court against the admission
of certain evidence. The Supreme Court had ruled the evidence admissible. The judge who led the
bench was Kawnoor Sadananda Hegde: a Member of Parliament, judge on the Mysore High Court
in 1957 and the Chief Justice of High Court before joining the Supreme Court in 1967. The Prime
Minister and her advisers did not want Hegde on the Supreme Court if she brought an appeal to it
from an adverse decision in the Allahabad High Court. And the way to do this was to supersede
Hegde in favor of a Chief Justice who would set a bench that did not include Hegde were her
appeal to come to the Court.

Although Justice A. N. Ray was next m line after Grover, he was widely believed to have been
selected for other reasons. As the lone dissenter, he had ruled for the government in the Bank
Nationalization case and been one of two dissenters (with G. K. Mitter) in the Princes case. "The
boy who wrote the best essays got first prize," remarked former Attorney General C. K Daphtary"
when asked. 'Why Ray? When asked by Inder Gujaral, Mrs Gandhi replied, Jyoti Basu [a Bengali
and leader of the Communist Party Marxist said he's a reliable radical, and as a judge in Bengal he
was a liberal. Kumaramangalam recommended Ray, according to most accounts because he was
expected to be 'pliable' as well as liberal.
Raj Narayan Case 1971 – 1975: Raj Narain was the political contender against Indira Gandhi for
Rae Bareilly Constituency in 1971 Lok Sabha General Elections. Mrs. Gandhi won the election &
congress won the house with sweeping majority. However, after the results of the polls, Raj Narain
filed a petition before High Court of Allahabad contending that Indira Gandhi has performed
Election malpractices.

On 12 June1975, The High Court of Allahabad speaking under Justice Jagmohanlal Sinha found
Indira Gandhi guilty of misusing government machinery u/s-123(7) of Representative of Peoples
Act, 1951.[1] Therefore, the court held that Indira Gandhi cannot continue as the Prime Minister
of the nation, further, she cannot contest elections for another six years. Aggrieved by this decision
Indira Gandhi went to appeal this ruling of Allahabad High court in Supreme Court. However, SC
being in vacation at that point of time granted a conditional stay on execution on 24 June 1975.

Thereafter, a state of emergency was declared by the then President Fakhrudeen Ali Ahmad citing
internal disturbance but the real reason that led to the emergency was the High court judgment in
Raj Narain v. Uttar Pradesh.

39th Amendment: The Supreme Court while granting conditional stay ordered the parties to
appear before it on 11 August 1975 however on 10 August 1975 the President of emergency –
stricken India passed 39th Constitutional (Amendment) Act, 1971 by inserting Article 329-A to
altogether bar the jurisdiction of Supreme Court from entertaining the matter. This amendment
made the elections of President, Prime Minister, Vice-President and the Speaker of Lok Sabha
unjustifiable in the courts of law.

Therefore, this 39th Amendment was challenged in the Supreme Court in Indira Gandhi v. Raj
Narain

The court gave its decision on November 7, 1975. It must be kept in the mind that this was the first
case when the landmark decision of Kesavananda Bharti was applied by the apex court.The apex
court upheld the contention of the petitioner and declared the impugned Clause 4 of Article 329A
unconstitutional.
In the words of Mathew J. the said clause destroyed essential democratic feature of the Constitution
viz. the resolution of an election dispute by ascertaining the adjudicative facts and applying the
relevant laws. He was of the opinion that a healthy democracy can only function when there is
possibility of a contest of free & fair elections. The impugned amendment destroyed that
possibility therefore it is violative of Basic feature of Constitution.

Chandrachud J. found the said amendment violative of the principle of Separation of Power as it
intently transferred a pure judicial function into the hands of legislature. Further, he was certain
that the said amendment is also violative of Article 14 as it creates an unequal position for specific
members against others.

Ray C.J. found another basic feature violated by the said amendment i.e. rule of lawwhereas Justice
Khanna found the violation of norms of free & fair elections. The bench also found the said
amendment violative of the principles of natural justice i.e. Audi Altrem Partem since it denies the
right of fair hearing who is challenging the election of the members mentioned under the
amendment. Democracy is a basic feature of Indian Constitution. The amending body i.e.
Parliament is not empowered to pass a retrospective law validating an invalid election. This
exercise is nothing but an example of despotic use of unrestrained and unfettered power.

The said amendment ought to transfer such determining powers to the Parliament. However, a
legislative body cannot find adjudicative facts like a judicial body therefore, in the opinion of
bench the impugned amendment is nail in the coffin of democracy.

Therefore, on the varied reasons the court struck down the 39th (Amendment) Act, 1975 finding
it unconstitutional and violative of Basic Structure of the Constitution.

The importance and the aftereffects of the judgments can be well and clearly understood from the
quick passage of 42nd Amendment Act, 1976 which made the challenge of Amendments in the
court of law impossible (however this amendment was struck down in Minerva Mills). The
parliament in its desperation and fury on the judiciary passed a law by the virtue of which the
courts lost the power to question any amendment of the constitution.

To be continued…
September 7, 2020

Political Science

Emergency and 42nd Amendment

• On Prime Minister Indira Gandhi told the nation in a radio broadcast that with Parliament
not in session, the President had declared an emergency because of turmoil and incipient
rebellion in the country.
• There had been mass arrests of opposition leaders and others in New Delhi and in many
states. A government-ordered electricity cut off prevented Delhi's newspapers from
publishing the news; a Home Ministry 'order' imposed censorship: before noon on the 26th.
• The Constitution's Fundamental Rights were suspended, public gatherings and meetings of
more than five persons banned, and preventive detention provisions made more stringent.
A few days later, the Prime Minister announced the Twenty-Point Programme of social-
economic reforms. Soon, talk of changing the Constitution began.
• The government justified the Emergency as necessary not only to preserve order but also
to save democracy, protect the social revolution, and preserve national integrity-in sum, to
preserve the seamless web.
• The rebellion threatening the country, Mrs Gandhi said, was the manifestation' of the deep
and wide conspiracy ... brewing ... ever since she began to introduce certain progressive
measures of benefit to the common man and woman of India'.
• The government's action was not utterly without justification. Opposition parties'
frustration with Mrs Gandhi's imperturbability and their own powerlessness had boiled
over. The two sides' behavior had combined to stretch democracy until it snapped. Riots
and civil disobedience during past months had brought the governments of Gujarat and
Bihar to their knees.
• Claiming to have established parallel government in Bihar, Jayaprakash Narayan was
calling for a march on Delhi. Morarji Desai threatened to surround the Prime Minister's
house if she did not leave office during the appeal against her conviction for election
campaign fraud.
• The Prime Minister feared that the country was lapsing into chaos, and some reasonable
persons shared this anxiety. Because conditions had become so unsettled, many citizens
welcomed the Emergency for several months after it was declared. Calm was restored,
bureaucrats became more responsive, and food prices came down for a time.
• But, by winter, fear settled over the people that the twentieth century was witnessing
another example of the ease with which a ruthless government can subdue the democratic,
but frightened people.
• During this process, central and state governments rejected political compromise and came
to rely on preventive detention for controlling social discontent. As this was going on, the
ideal of the social revolution had dimmed.
• Property relations had pitted the executive and the legislature against the courts, resulting
in bitter conflicts and major constitutional changes. Successive promises to the electorate
exceeded each other in their grand scopes.
• The power which was increasing flowing from the institutions to the persons now rested
with people like the PM herself and her son Sanjay Gandhi (who had no constitutional
position in the government).
• According to Austin, “For most parties and candidates, elections had become pursuits of
power-unrelated to gaining office for the genuine pursuit of programme. For the opposition
parties 'extra-parliamentary' methods had become a way of political life; for the
government high-handedness had become habitual.
• The country manifestly was not doing well in the early 1970s. Inflation was growing, the
prices of essential commodities were increasing, and there was a dearth of these
commodities. Oil prices, as a result of the 1973 Arab-Israeli war, rose from US $2.06 per
barrel to US $11.45.
• State trading in food grains promoted government had failed causing scarcity and hurting
the poor.
• Heavily regulated private industry for years had not been producing enough jobs to absorb
the rural unemployed.
• Awareness of government organizational inability to implement reform was spreading. A
national railway strike called in May 1974 by union leader George Fernandes would have
shut-down a country dependent on trains. His promised derailment of food trains could
 have brought starvation. Fernandes's detention and that of thousands of railway workers
prevented this, while increasing class and political bitterness. Railways Minister L. N.
Mishra was later assassinated.
• Govt.’s harsh crackdown: To cope with rising disturbance and to combat economic decline,
the government introduced several harsh measures. In September 1974 it expanded by
ordinance the reach of the 1971 Maintenance of Internal Security Act (MISA), adding
smuggling to the activities to which MISA pertained (originally national security),
permitting preventive detention for up to one year before review by an Advisory Board,
and permitting 'detentions of up to two years. Parliament enacted 'The Conservation of
Foreign Exchange and Preventing of Smuggling Activities Act' (known widely by the
acronym COFEPOSA, pronounced coffee-posa). It allowed detention for hoarding and
smuggling but persons could be arrested and were arrested-months before a detention
order, itself, was issued.
• Later that year the President issued an order under the still-existing emergency of 1971
suspending the right to move the courts for protection of certain Fundamental Rights so
long as the emergency was in force. Another order suspended for persons detained under
COFEPOSA the 'right to appeal to the courts for protection of rights.
• The President also promulgated ordinances to combat inflation including imposing forced
savings on individuals.
• Dissatisfactions boiled over in Gujarat and Bihar. Riots by engineering students in Gujarat,
who linked campus discontents to public ones over food scarcity and prices, spread over
the state. The central government imposed President's Rule in February 1974 and
suspended the legislature. Bihar-noted for its poverty, faction-ridden government, police
excesses, and rule by ordinance as the executive by-passed the legislature-also was in a
condition of upheaval.
• ]ayaprakash Narayan announced he would leave his retirement; Gandhian social work to
return to politics and lead the students. He pressed for dismissal of the Bihar government
as corrupt and for recall of the legislature and for electoral reform while vowing to establish
a 'parallel government' for the state.
• He advocated spreading the Bihar movement to other parts of India, and he began
organizing for the parliamentary elections, due in the winter of 1976.
 • The suspended Gujarat legislature had later been dissolved under President's Rule and Mrs
Gandhi twice had postponed, fresh elections to it. Morarji Desai on 7 April announced an
indefinite fast to force elections by May. The Prime Minister capitulated and set elections
for 10 June. From the euphoria of 1971 and 1972 to 1975’s turmoil had sent the PM into
nervous ‘control mode’ as she did not know how to cope.
• In essence, neither side-was acting democratically or responsibly. The opposition was
using unparliamentry insurrectionary methods of widespread strikes and fast onto death.
The Prime Minister possessed neither the desire to - compromise nor the sensitivity to
understand that her opponents both felt and had genuine grievances.

Democracy was extinguished as emergency proclaimed: The government attacked liberty first,
this being the most dangerous to itself. Detentions began during the early hours of 26 June 1975
even before the President's proclamation was published in the Gazette of India later that day.
Before dawn, Jayaprakash Narayan, Morarji Desai, and other opposition politicians, totaling 676,
had been arrested.

• By the Emergency's end, nearly 111,000 persons had been detained under MISA and the
Defence of India Act/Defence of India Rules. Amendments to MISA made after the
declaration of the Emergency' completely metamorphosed the character of MISA .,. [and]
led directly to large scale abuse of authority'. Of the some 35,000 persons detained under
MISA alone during the Emergency, 13,000 allegedly were connected to political parties
and banned (i.e. communal) organizations, and their detentions were based on the 'slightest
suspicion', and for criticizing the Emergency in meetings at private homes. The overall
purpose of the detentions was to silence all opposition.
• The suspension of constitutional protections enabled these violations of personal liberty.
On 27 June, a presidential order suspended the Right to move the courts for enforcement
of the fundamental rights. Articles guaranteeing citizens equality before and equal
protection of the law (Article 14), no deprivation of life or liberty except by procedure
established by law (Article 21), and no detention without being informed of the grounds
for it (Article 22). Meetings of five or more persons were banned, under Section 144 of the
Criminal Procedure Code.
• Three days later an ordinance amended the Defence of India Act, adding 'internal
emergency' to the Act's title and preamble, empowering government to make temporary
amendments in other laws, and allowing the imposition of censorship under the Emergency
proclamation and the President's order of 27 June. A Home Ministry order of 26 June had
already instituted censorship.
• Granville Austin page 310, 311, 312.
• Protective Amendments during the Emergency: 38th Amendment: the Thirty-eighth
Amendment, on 22 July 1975 and it received presidential assent ten days later. This barred
judicial review of proclamations of emergency whether made to meet external, internal, or
financial threats (Article 360 for the latter). The amendment also barred judicial review of
overlapping emergency proclamations, of ordinances promulgated by the President or by
governors, and of laws enacted during emergencies that contravened the Fundamental
Rights.
• The 39th Amendment, protected Mrs Gandhi's prime ministership by preempting any
Supreme Court action that might result from its hearings on her election case, which were
to begin four days after the bill's introduction on 7 August. Testifying to the Prime
Minister's control, the Lok Sabha passed the amendment the same day after two hours'
debate' . In the RajyaSabha it received equally expeditious treatment the next day and two
days later, the President assented to the bill, state legislatures very efficiently having
ratified it in special Saturday sessions. It removed from the Supreme Court authority to
adjudicate election petitions.
• It inserted a new Article in the Constitution (Article 329A) that, in a masterpiece of dense
wording, laid down that elections of the Prime Minister and the Speaker of the Lok Sabha
could be decided only by an 'authority' or 'body' established by Parliament by law, no
longer by the Supreme Court. Furthermore, an election petition against a member of
Parliament would 'abate' were that individual tow become the Prime Minister or the
Speaker. Also, no law about election petitions passed prior to the amendment was
valid, and any judicial "declaration s voiding elections were invalid. Additionally, the;
amendment took from the Supreme Court and placed in a body to be established by
Parliament the authority to resolve disputes concerning the elections of the President and
the Vice-President.
• Elections of "the President, Vice-President, and Speaker were included in the amendment,
along with the Prime Minister's.
• 41st Amendment BILL: On August 11, 1975 the election case hearing was to begin in the
SC. Two days before this amendment was brought in. According to this, no criminal
proceedings whatsoever could lie in court who is or who had been president, prime minister
or governor for acts done by him whether before he entered upon his office or during his
term of office. No civil proceeding against persons holding these offices, the bill continued,
'shall be instituted or continued during his term of office in any court in respect of any act
done or purporting to be done by him in his personal capacity' before or after he entered
office. The Rajya Sabha passed the bill the day it was introduced. It was placed on the table
in the Lok Sabha in January 1976, where it lapsed upon the dissolution of the Lok Sabha
in early 1977.
• Response from the judiciary: The Supreme Court opened its hearings on the Election
case on 11 August only to adjourn them to allow Raj Narain to prepare his challenge to the
Thirty-ninth Amendment. When hearings resumed on 25 August, Narain's attorney, Shanti
Bhushan, attacked the retrospective character both of the amendment and Election Laws
Amendment Act as violating the basic structure doctrine. Sen argued for Mrs Gandhi that
there was no case to try, given the revised election laws.
• The five to four majority decision handed down by the judges in their separate opinions on
7 November validated Mrs Gandhi's 1971 election to Parliament, but it struck down part
of the Thirty-ninth Amendment. The court accepted the concept that laws could be changed
with retrospective effect to make legal actions that previously had been offences under law.
Thus, it upheld the Prime Minister's election because she had violated no law.
• SC Struck down the Thirty-ninth Amendment's Clause 4, which inserted new Article
329A, with its special protection for the election of the Prime Minister and the Speaker,
the five justices gave different reasons, The Chief Justice Ray held that validating the Prime
Minister's election through Article 39A was not by applying law and therefore offended
the rule of law, Khanna said the article violated the principle of free and fair elections,
which, being essential in a democracy, were part of the basic structure, Mathew rejected
the article saying that an essential feature of democracy is the resolution of election
disputes by judicial power using law and the facts, Chandrachud said the article was
 destructive of equality and of the rule oflaw because it applied a different election law to
the Prime Minister than to others,41 Justice Beg dissented front the others by upholding
the amendment in its entirety, The basic structure doctrine had passed its first post-
Kesavananda test. Excepting Beg, the four judges had upheld it, although A. N, Ray did
this by holding that it was not necessary to challenge the Kesavananda decision.
• Mrs Gandhi's government acted to curtail its power of judicial review by overturning the
basic structure doctrine laid down in Kesavananda and upheld by four of the five judges
ruling in her Election case. Later, she transferred a dozen and a half high court judges to
punish them for ruling against the government in preventive detention cases. This occurred
in the context of the famous Habeas Corpus case meanwhile, Mrs Gandhi's associates
floated their personal schemes for 'reforming' the judiciary.
 September 8, 2020

Political Science

Basic Structure Revisited: The Kesavananda Review Bench, Habeas Corpus

Case and 42nd Amendment

Three days after the Supreme Court reaffirmed the basic structure doctrine in the Election case,
Chief Justice A. N. Ray convened a thirteen judge bench to overturn the doctrine. Govt. had refused
to accept the ‘dogma’ (as Mrs Gandhi put it) of the basic structures. The Attorney Gen. Niren De
had said he would review the doctrine brought in by the Kesavananda case as it was unclear. The
Law Minister H. R. Gokhale spoke of the need for a new constitutional framework. In a magazine
interview Mrs Gandhi spoke of reforming the judicial system.

• The govt. went to the SC on the ground that it hear a number of writ petitions. Petitions
charging that laws applying in land ceiling cases violated the basic structure, were
languishing in high courts, it was claimed? The Chief Justice issued a written order that
on 10 November 1975 the Court would hear arguments on two points: whether or not the
basic structure doctrine restricted Parliament's power to amend the Constitution, and
whether or not the Bank Nationalization case had been correctly decided. The Court
ordered parties to submit arguments on these points only, and it directed the Attorney
General and the state advocates general to attend the hearing.
• A segment of the Supreme Court bar at this time ardently supported the Prime Minister's
policies toward the judiciary. Likely, some of them urged their views on the government
and the Chief Justice. Chief Justice Ray, claimed De, sought the review.
• Ray had sided with govt.’s position on a number of occasions including the Bank
nationalization, privy purses and the kesavanada case.
• Govt.’s position: 1. Basic structure as a limit on the govt.’s amendment power had created
problems and confusions leading to land reforms acts being questioned in the various
HCs.
• Judge Khanna took the opportunity to expose 'this utter fallacy'. He told De that, in the
Kesavananda ruling, he had expressly said that the right to property was not included
 within the basic structure of the Constitution. ' He then asked, 'Has this theory of basic
structure impeded or come in the way of legislating any socio-economic measure?' De
answered in the negative and then confusingly: 'No, that is not the only question. You
don't require the power for amending non-essential parts of the Constitution'.
• Pages 331, 332, 333 from Granville Austin for the entire debate. As the debate went on
the govt. seemed to be finding legal grounds for backing up its arguments.
• When the judges assembled in the Chief Justice's chambers on the morning of 12
November before entering the courtroom to resume the hearings, Ray informed them that
he had decided to dissolve the bench. Amid sighs of relief and agreement, the judges filed
into the courtroom to hear Ray publicly announce his decision. The Court had protected,
or at least not relinquished, its institutional power.
• Stung by her defeat, Mrs Gandhi threatened retaliation. Three days after the dissolution,
one of her long-time supporters, Uma Shankar Dikshit, Minister of Transport, told a
meeting of Congress workers in Kanpur that if the Supreme Court debarred the
government from making changes in the Constitution, a new constituent assembly might
have to be convened to rewrite the Constitution to guarantee 'social and economic justice'.
The government, Dikshit said, was making every effort to run the country according to
the Constitution, but if the Constitution became an obstacle to 'ensuring the basic needs
of the people ... the government would not hesitate to make drastic changes' in it.

Habeas Corpus Case: The Habeas Corpus case captures the Emergency as nothing else: Its
authoritarian and geographical reach; its inefficiencies; its meanness and occasional magnanimity;
its evocations of judicial philosophies and degrees of courage among judges and lawyers; its
testing of officials’ consciences and their willingness to submerge them m duty; Its restraint
compared with authoritarian regimes and periods of authoritarian rule in other countries.

The Supreme Court opened hearing in the case on 15 December 1975 and handed down its
decision in 28 April 1976. The case originated with the many preventive detentions made
around the country in the early hours of 26 June. That day, in the city of Bangalore, the
Commissioner of Police ordered the arrest of A. B. Vajpayee, 1. K. Advani, and
Subramaniam Swamy of the Jana Sangh Party, S. N. Mishra of the Congress (0) , and
 Socialist Party member Madhu Dandavate under the Maintenance of Internal Security Act.
All were in the city on official business as members of a parliamentary delegation.
Even though the police claimed that they had detained them after considering the material
presented to it, actually the material was acquired later and the leaders had been detained
first. Additionally, detention orders under MISA were served on these members of
Parliament only on the evening of 26 June, although they had been arrested in the morning.
In other words, a political 'sweep' was under way. The police in Bangalore made arrests
only on New Delhi's orders, and with no 'application of mind' as required by law.
The Karnataka bar and local attorneys reacted sharply. The bar passed a resolution calling
for withdrawing the Emergency, for the release of those arrested, and for a boycott of the
state's courts on 4 July. Some lawyers from Bangalore joined lawyers from New Delhi,
with the advice of K S. Hegde, drafted writ petitions for the detunes.
These asked the Karnataka (Bangalore) High Court to quash the detentions on the ground
that the continuance of the emergency of 1971-after the end of the India-Pakistan war and
the Shimla Pact in 1972-was unconstitutional as was the 25 June declaration of internal
emergency.
Advani subsequently added another ground for ruling the Emergency unconstitutional: the
President had signed the proclamation before the cabinet had approved it and thus without
the advice of his council of ministers.
Pages 334 -343 of Austin.
After a perilous back and forth between the judiciary and the govt. where each judicial
order was met another attempt to circumvent or neutralize the order by the govt. Finally,
several HCs took stand on the Habeas Corpus complaints and gave orders against the govt.
This further aggravated conflict between the judiciary and the executing resulting into the
transfer of 15-20 judges as a retaliation from the govt. for their adversarial judgments.
Page 344 -347.

The most important constitutional development of the Emergency, other than its very imposition,
was the enactment of the Forty-second Amendment. Coming in November 1976, the amendment
demonstrated the progression of the Prime Minister and her govern men t from having near-
absolute power without a coherent programme-other than the protection of her prime ministry-to
power expressed through fundamental constitutional change. There is no evidence that any grand
plan to 'reform' the Constitution existed before the Emergency or that it was proclaimed as a means
to facilitate such change. Early utterances were merely rhetorical flexing. Law Minister H. R.
Gokhale told the Lok Sabha in early August 1975 that it was time to consider fundamental changes
in the constitutional framework. Mrs Gandhi remarked that 'we have adopted the Anglo-Saxon
juridical system, which often equates liberty with property [inadequately providing] for the
needs of the poor and the weak '. With the Emergency in place, however, half-digested schemes
and ideas proliferated, and an influential set of recommendations emerged.

❖ Sawaran Singh Committee: Congress President Borooah on 26 February 1976 appointed

a committee 'to study the question of amendment of the Constitution in the light of ...
experience'. Commonly referred to as the Swaran Singh Committee after its chairman, the
committee had two other, unannounced purposes: to manage the proliferating suggestions
for amendment and to control the process for considering them, and, While doing this, to
serve the Prime Minister's interests.
❖ Recommendations: After announcing that the Constitution 'has functioned without any
serious impediment', the committee report turned to the topic it had 'hotly discussed',
changing to a presidential system. The report declared the parliamentary system 'best suited
to the country because it 'ensures greater responsiveness to the voice of the people.
❖ The constitutional validity of legislation might be challenged, the committee said, but
central laws should be open to challenge only in the Supreme Court. Constitutional cases
should be heard by no fewer than seven judges in the Supreme Court and five in high
courts; decisions should be by two-thirds majority. Swaran Singh, among others, favoured
this, disapprovingly pointing out in a speech that Golak Nath had been decided by only one
vote. Sawaran Singh went on to say that 'It should be reasonably presumed that normally
no legislature will over-step the limits laid down on it in the Constitution.
❖ Focusing on the high courts, where Mrs Gandhi's transfer of judges had begun, the
committee recommended leaving intact their authority to-issue writs for protection of
citizens' fundamental rights (Article 226), but removing their authority to issue prerogative
writs for 'any other purpose' .
 ❖ The committee's most radical move against the courts came in its recommendation that
Article 31C be expanded so that legislation to implement any of the Directive Principles
of State Policy could not be questioned in court as infringing the Fundamental Rights.
❖ The committee isolated the courts further through its proposal that all matters concerning
the land reforms, 'the revenue', the ceiling on urban property, and procuring and distributing
essential commodities should go before the tribunals and not to the courts.
❖ The committee made several other significant recommendations to the AlCC. One was that
a state of emergency could be declared, and lifted, in only a part of India. In another, it said
that the central government should have the power to deploy police and similar forces
'under its own superintendence and control' when helping a state government preserve
order. This was something state chief ministers had protested during the committee's
consultations with them, preferring the existing arrangement in which federal forces came
under state control once they entered the state.
❖ Turning to election issues, the committee proposed that a separate, nine-member body--
with its members appointed equally from the Lok Sabha, and the Rajya Sabha, and by the
President-should adjudicate questions of disqualification of members of Parliament and the
President and Vice-President, instead of leaving disputes to be resolved by a body
established by Parliament, as the Thirty-ninth Amendment had provided in new Articles
329A and 71.
❖ The fundamental duties should be incorporated in the constitution to ensure discipline in a
democracy.
❖ At the All India Congress Committee meeting on 29 May 1976 Swaran Singh moved the
lengthy 'Resolution on Amendment', laden with social revolutionary language, and spoke
on it and the committee's recommendations which were accepted after some changes
proposed during the meeting discussions.

42nd Amendment: Building on the Swaran Singh Committee proposals, the amendment's twenty
pages of clauses had four main purposes:

❖ 1. to further protect from legal challenges Mrs Gandhi's 1971 election to Parliament and
future elections of her and her followers;
 ❖ 2. to strengthen the central government visa-vies the state governments and its capability
to rule the country as unitary, not a federal, system;
❖ 3. to give maximum protection from judicial challenge to social revolutionary legislation-
whether intended sincerely or to cloak authoritarian purpose;
❖ 4. 'to trim' the judiciary, as one Congressman put it, so as to 'make it difficult for the Court
to upset her policy in regard to many matter

A few of the amendment's changes were aimed at bringing generally supported reforms, and would
be retained by the votes of both Congress and Janata Party members of Parliament when other
provisions in the amendment were repealed in 1978.

❖ In the category protecting social revolutionary legislation from judicial challenge, the
amendment-after adopting the Sawaran Singh Committee's expansion of Article 31C
giving all the Directive Principles precedence over the Fundamental Rights and its
assignment to tribunals of tax, land reform etc. matters-added a replacement Article 226.
❖ The new article prohibited high courts from issuing stay orders relating to 'any work or
project of public utility'. No court was to have any jurisdiction over tribunals, although the
Supreme Court could accept appeals from them, and cases pending before a court could be
transferred to a tribunal.
❖ A new Article 32A prohibited the Supreme Court from considering the constitutionality of
a state law unless the validity or' a central law was also at issue-thus cutting deeply into the
citizen's recourse to Article 32 to protect his fundamental rights. High courts -still could
determine the constitutionality of state laws.
❖ The Swaran Singh report's suggestion that Parliament be empowered to legislate against
abuses of the 'freedoms' in Article 19 seems to have lain behind the amendment's Article
31D, prohibiting 'anti-national activities'.
❖ According to this potentially totalitarian provision, no law for this purpose was to be
unconstitutional because inconsistent with Fundamental Rights Articles 14, 19 and 31.
❖ Among the activities defined as anti-national, in addition to advocating secession from the
nation, were questioning the sovereignty and integrity of India, intending to create internal
disturbance, and intending to 'disrupt harmony' among society's various groups.
❖ Sanjay Gandhi's enmity toward any political opposition likely contributed to the article's
inclusion. 'There was full support in the party for banning anti-national activities,' Sheila
Dikshit recollected; 'the problem was defining them.
❖ The amendment entirely excluded the courts from election disputes. It failed to include the
committee's recommendation that a nine-member body decide on disputed elections of the
President, Vice-President, Prime Minister, and Speaker. The amendment placed the
decision about disqualification for membership in Parliament and in a state legislature had
a person been found guilty of corrupt practices in an election unrestrictedly in the hands of
the President and the governor by providing that either had only to consult the Election
Commission (new Articles 103 and 192).
❖ Under the original Constitution, the President and the governor on such occasions were
bound by the advice of the Election Commission. In legislatures having Congress Party
majorities, with governors appointed by the central government, and with the President
bound to act on the advice of the council of ministers, basically Indira Gandhi would decide
disputes relating to corrupt practices in elections nationwide. In an echo of Mrs Gandhi's
Election case-going beyond the Thirty-ninth Amendment-the amendment provided that no
court could require production before it of the government's Transaction of Business Rules.
❖ The amendment strengthened New Delhi's power visa-vies the states in several ways. It
incorporated the Swaran Singh Committee recommendation that federal forces operate
under federal control when in a state to preserve order, making no mention, as had the
committee, of consulting the state government concerned before sending the forces.
❖ Its changes to the 'Emergency Provisions' went far beyond the committee's
recommendation by enabling Parliament to make laws for any state if the security of India
were threatened by activities in that state related to those in the area under emergency
(Articles 353 and 358).
❖ Similarly, a new proviso to Article 359 permitted laws to be made and executive action to
be taken contravening the Fundamental Rights in states not under emergency. Centre-state
relations were altered also by denying high courts the authority to rule on the
constitutionality of central laws (new Articles 226A and 228A).
❖ Further 'trimming' the judiciary, the amendment incorporated the Swaran Singh
Committee's recommendation that Supreme Court and high court benches that would rule
 on the constitutionality of' state or central laws must have seven and five judges,
respectively, and take decisions by two-thirds majorities (new Articles 144.4 and 228A).
❖ The Forty-second Amendment said that amendments could not be questioned 'in any court
on any ground'; that amendments to the Fundamental Rights were beyond review; and that
there shall be no limitation on Parliament's power to amend the Constitution 'by way of
addition, variation or repeal'.
❖ The Supreme Court had been divested of much of its original jurisdiction. The high courts
had been hobbled. Parliament had unfettered power to preserve or destroy the Constitution.
Parliament now sat in judgment over the elections of its own members and those of the
President and Vice-President.
❖ The President had to assent to Parliament's enactments as presented by the council of
ministers-an addition to Article 74 not along the Swaran Singh proposals, making rigid a
convention hitherto minimally flexible.
❖ Neither the central nor state governments were restrained from acting in their respective
legislatures by quorum requirements for the amendment abolished these.
❖ A single government supporter in an otherwise empty house could pass a bill. Parliament's
and the legislatures' terms had been extended to six years from five. Finally, the council of
ministers had extraordinary powers given by the amendment's final clause. This provided
that if there were any difficulties in giving effect to the Constitution as amended, 'the
President may, by order', for up to two years, adapt or modify the provision to remove the
difficulty.
❖ The original Constitution contained such a 'removal-of-difficulties clause' to ease the
transition from the 1935 Act. But for Hiren Mukhejee and others, the time of Prasad, Nehru,
and Patel was not 1976. 'Please don't revive the Henry VIII memory,' said he. There should
not be in the Constitution anything that 'even remotely smacks of any potentially
authoritarian device.

Conclusion: Contrary to many countries newly independent after the world war which were born
authoritarian or soon became so, Indian democracy flourished in its first twenty years its roots
from the pre-independence, nationalist movement growing ever stronger. This was so even while
Nehru and others occasionally showed ambivalence about the effectiveness of a democratic
constitution for fostering social revolution and preserving national integrity.

Things changed drastically in the 1970s when impatience increased with the imperfections to
which all democracies are subject, and the frustration and shame over slow implementation of
social revolutionary programmes. The casualness toward democratic institutions that became
popular within government - among those believing that social-economic reforms should be
pursued even at the expense of democracy initially did little harm but increased tolerance to
authoritarianism culminated into the events of emergency and the 42nd amendment.

The government justified its stand by describing it as a necessary step to preserve the seamless
web. But the emergency pushed India into a semi – dictatorial system for those two years. More
than a hundred thousand people detained, forced sterilization, slum removal, constitutional
changes did not turn India into a complete dictatorship. Emergency retrained from shooting the
opponents, abolishing the SC, absolute adherence to ideology like the socialist dictatorships at the
time. The reason can be attributed to the time tested Indian struggle for freedom, the experience of
the arbitrary rule was still present in the minds of many leaders and the authoritarian tendencies of
Mrs Gandhi were severely resisted by the judiciary (mainly the HCs) during the emergency. There
was no socio-economic reform done to compensate the absence of democracy which made
resistance even stronger. The seamless web was stretched but not destroyed.

Mrs Gandhi's wrenching of the seamless web brought the repudiation of the Emergency, her
government's downfall, and the repeal of the Forty-second Amendment. So was proved what the
founding fathers and mothers knew: that the character of the country depended upon the integrity
of the web, which depended on the health and strength of its individual strands.
September 9, 2020

Political Science

Janata Party in Power and the 44th Amendment: Restoring the Constitution

The Prime Minister announced the elections to a surprised public on 18 January 1977, although
Parliament's extension of its tenure the previous November made elections legally unnecessary.
Her justification was that the government was reporting to the people on its programs and wanted
their approval. This move was termed in the Hindustan Times as her “unwavering commitment to
the democracy and its ideals”. According to several political analysts such as Granville Austin, S.
Kaviraj, Balvir Arora, Mrs Gandhi went for election because she was sure that she will win. All
her advisors had told her this. Even the intelligence input didn’t assess the gravity of popular
discontent. The public mandate went against her and she lost to a Janata Party led coalition.

▪ Janata Party formed India’s first coalition government in 1977 after the fresh election were
called. The Janata party was officially launched on 23 January 1977 when the Janata
Morcha, Charan Singh's Bharatiya Lok Dal, Swatantra Party, the Socialist Party of India
of Raj Narain and George Fernandes, and the Bharatiya Jana Sangh (BJS) joined together,
dissolving their separate identities.
▪ The elections held between16 and 20 March dealt the Congress party a massive defeat
everywhere. Party lost all the seats in Bihar and UP and got very few seats in Gujarat,
Haryana, Himachal, J&K, Punjab, MP, Maharashtra, Rajasthan, Orissa, Kerala, TN, and
WB. It did well in AP, Karnataka, Manipur and Assam. Of the 542 seats, Janata Party won
270 and its closest ally the Congress for Democracy got 29, the Congress won 153 seats.
34 ministers lost their seats including the PM who lost to Raj Narain. Sanjay Gandhi also
lost.
▪ Mrs. Gandhi accepted the mandate graciously and her last act was to ask the acting
president D B Jatti to pass the order revoking emergency and to accept the resignation of
the congress govt. on 22 march. As the Janata Party and government proceeded toward
their destinies, the Congress Party was undergoing death and reincarnation under the
 masterful hand of lndira Gandhi, which would assist Janata's demise and her return to
office.
▪ The principal tasks of Morarji Desai's government were to repeal legislation damaging to
the Fundamental Rights and to restore a democratic Constitution through a comprehensive
amendment.
▪ Amending the Constitution confronted the government with tactical as well as substantive
issues. Effective parliamentary tactics were critical to reform, for the Janata had to gamer
enough votes to pass the restorative amendment-a two-thirds majority in each House, plus
ratification by half the state assemblies. The Lok Sabha, with its large Janata majority,
posed no problem. But in the Rajya Sabha, in May 1977, Congress members of various
shades held 154 of the 244 seats. The Janata Party held only twenty-seven seats. Clearly,
Morarji Desai's government would need Congressmen's and other's votes to enact any
amendment and even to pass some legislations.
▪ The Rajya Sabha elections of 3 April 1978 changed the picture somewhat-and the crucial
Forty-fourth Amendment was voted on in December 1978 (way later than anticipated) due
to this seat arrangement. Indira Gandhi's newly-formed faction the Congress(1) had sixty
seats, the Congress(0) fifty-three, Janata sixty-nine, and various other parties, sixty-one.
Two-thirds of the memberships, if Janata and Congress(0) members voted solidly for an
amendment, Desai's government still would need at least forty votes from the other, smaller
parties to pass it.
▪ The great substantive issue on everyone’s mind was whether the Forty-second Amendment
should be repealed entirely with one stroke of the pen, or its provisions repealed selectively.
If it were not to be repealed by a 'one-line amendment', which of its provisions were to be
saved? If repeal were to be selective, should some provisions receive priority? Which
approach would combine the substance and tactics necessary to gain support from
Congressmen and, after the January 1978 split, from members of the Congress (I)?
▪ In May 1977, Desai appointed a parliamentary affairs committee to be the forum for
considering substantive changes. Then, in August, he inexplicably established a cabinet
subcommittee to deal with the same issues. Charan Singh was chairman and Bhushan and
Advani were members of both committees. Ravindra Varma, Minister of Parliamentary
Affairs and Labour, was the fourth member of the first committee and P. C. Chunder,
 Minister of Education, Culture and Social Welfare, the fourth member of the
subcommittee.
▪ After prolonged deliberations it was decided that 42nd amendment will be looked upon line
by line and comprehensive action was needed to restore the constitutional balance.
▪ Restorative Amendments: 43rd and 44th. In an attempt to reach consensus among various
parties 43rd amendment bill included the few most agreeable aspects to be restored, the
bulk was left to 44th amendment.
▪ 43rd Amendment 1977: The 43rd Amendment repealed six articles – 31D, 32A, 131A,
144A, 226A and 228A – that had been inserted into the Constitution by the 42nd
Amendment. Articles 145, 228 and 366 were amended to facilitate the omission of these
six articles.
▪ Article 31D had enabled Parliament to legislate on matters concerning "anti-national
activities" and "anti-national associations". Article 32A prohibited the Supreme Court from
considering the constitutional validity of State laws in writ proceedings for the enforcement
of Fundamental Rights. Article 226A placed a similar prohibition on High Courts from
considering the constitutional validity of Central laws. Article 131A barred High Courts
making judgments on the constitutional validity of Central legislation, giving exclusive
jurisdiction for such laws to the Supreme Court.
▪ Article 144A required that the Supreme Court could only declare a Central or State law as
unconstitutional if the decision was made by a bench with at least 7 judges, and backed by
a special majority of two-thirds of the bench. Article 228A required that a High Court could
only declare a State law as unconstitutional if the decision was made by a bench with at
least 5 judges, and backed by a special majority of two-thirds of the bench.
▪ It restored the jurisdiction of the Supreme Court and the High Courts, which had been
curtailed under the 42nd Amendment.
▪ 44th Amendment: It comprehensively amended several provisions from the 42nd
Amendment.
▪ Fundamental Rights: The right to property was taken away from the category of
fundamental rights and made as a legal right. Article 19(1)(f), which guaranteed the citizens
the right to acquire, hold and dispose of property and article 31 relating to compulsory
acquisition of property were omitted.
▪ DPSPs: A new directive principle had been inserted in article 38, which provided that State
shall secure social order for the promotion of the welfare of the people.
▪ Presidential Power: Article 74(1) was amended to include a provision that President may
require the Council of Ministers to reconsider any advice tendered to him but the President
has to act in accordance with the advice tendered after such reconsideration. Earlier, the
President has to act in accordance with the advice tendered by the Council of Ministers.
▪ Parliament & Parliamentary Functioning: Article 83 and 172 was amended to restore the
terms of the House of the People and the State Assemblies to five years. Earlier the 42nd
CAA had extended the life of Lok Sabha and Rajya Sabha from 5 to 6 years.
▪ Parliamentary Privileges: Article 103 and 192 relating respectively to decisions on
questions as to disqualification of members of Parliament and of State Legislatures had
been replaced to provide that the decision on the question as to disqualification, by the
President in the case of a member of a State Legislature, will be in accordance with the
opinion of the Election Commission.
▪ Power of High Courts: Article 226 was amended to restore to the High Court their power
to issue writs for any other purpose besides the enforcement of fundamental rights. Article
227 was amended to restore to the High Court their power of superintendence over all
courts and tribunals within its territorial jurisdiction.
▪ It omitted the provisions which took away the power of the court to decide the election
disputes of the president, the vice-president, the prime minister and the Speaker of the Lok
Sabha.
▪ Federalism: Article 257A which was related to power of Central government to send its
armed forces or other forces of the union to address a grave situation there was omitted.
▪ Emergency Provisions: Article 352 was amended with the following changes: The ground
of “internal disturbance” was substituted by the ground of “armed rebellion”. Proclamation
of Emergency can be issued only when the security of India or any part of its territory is
threatened by war or external aggression or by armed rebellion. Internal disturbance not
amounting to armed rebellion would not be a ground for the issue of a Proclamation. A
provision was included stating that the President will not issue a Proclamation of
Emergency unless the decision of the Union Cabinet that such a Proclamation may be
issued has to be communicated to him in writing.
▪ Proclamation of Emergency has to be approved within a period of one month (instead of
two months) by resolutions of both Houses of Parliament and has to be passed by a majority
of the total membership of each house and by a majority of not less than two-thirds of the
members present and voting in each House instead of a simple majority. For continuance
of the Proclamation of Emergency, approval by resolutions of both Houses will be required
every six months.
▪ Proclamation of Emergency will be revoked whenever the House of the People passes a
resolution by a simple majority disapproving its continuance.
▪ Quorum: Ten percent or more of the Members of Lok Sabha can request a special meeting
for considering a resolution for disapproving the Proclamation.
▪ State Emergency: It made it more Federal Article 356 relating to the President’s power to
issue a proclamation in case of failure of constitutional machinery in a State is amended
with the following provisions: The provision with regard to the breakdown of the
constitutional machinery in the States was amended so as to provide that a Proclamation
issued under article 356 would be in force only for a period of six months in the first
instance and that it cannot exceed one year ordinarily.
▪ However, if a Proclamation of Emergency is in operation and the Election Commission
certifies that the extension of the President’s rule beyond a period of one year is necessary
on account of difficulties in holding elections to the Legislative Assembly of the State
concerned, the period of operation of the Proclamation can be extended beyond one year.
This is subject to the existing limit of three years.
▪ These changes were made to ensure that democratic rule is restored to a State after the
minimum period which will be necessary for holding elections.
▪ Article 358 relating to the suspension of Article 19 was amended in the following manner:
The provisions of Article 19 will become suspended only in case of a Proclamation of
Emergency issued on the ground of war or external aggression and not in the case of a
Proclamation of Emergency issued on the ground of armed rebellion. Enforcement of rights
under Article 20 and 21 cannot be suspended during the operation of National Emergency
Political Science

10 September 2020

Executive and Judiciary relations during the Janata Party rule

Janata Party led coalition had come to power with the promise of restoring the constitutional
balance among various branches of the government. As the 43 rd and 44th amendments reaffirmed
that commitment, JP struggled with the everyday governance issues just like its predecessors.
Many of its responses also showed the continuities with the governance patterns which existed
before.

Its performance on restoring the judiciary’s independence was successful. It successfully restored
the balance between FRs and DPSPs to a large extent. The lack remained on the centre – state
relationships and decentralization issues. The preventive detention issues it achieved relative
success.

Fundamental Rights: As soon as the JP govt. come to power it started undoing the emergency
wrong against the FRs to restore the rule of law. The prolonged external emergency which was
still going on after the 1971 war with Pakistan was called off. With this the Defense India Act
stopped being operational and FRs were restored. Secondly, the Information and Broadcast
Minister L. K. Advani while highlighting the importance of criticism and free press for the
successful functioning of the democracy moved the objectives bill to call off the Publication of
Objectionable Matter Act and the Parliamentary Proceedings (Protection) Act, which also restored
the Protection of Publication Act of 1956.

The statement for the second bill said that it is 'of paramount importance that proceedings in
Parliament should be communicated to the public' and the mass media should be able to publish
'substantially true reports of proceedings ... without being exposed to any civil or criminal action.

Later, the government lifted the ban on imported publications. Within a few days, the government
took from the cabinet secretariat and the Prime Minister's secretariat various organizations and
functions. Mrs Gandhi had centralized there. Law Minister Bhushan followed these in June with
a bill that repealed President Ahmed's 3 February ordinances setting up nine-member election
'authorities' and thus restored to the Supreme Court the power to decide disputes concerning
elections of the President, Vice-president, Prime Minister, and Speaker.

The challenging task came from restoring the liberty. The government had promised during the
election to do away with MISA. But by now the belief that preventive detention was a necessary
and convenient tool for effective governance had found roots in the Indian governing circles.
Madhu Limaye put it as JanAta government had many former congressmen therefore their
response to such issues also remained the same. MISA was finally repealed in 1978. But before
that Preventive detention had receive a lot of public attention due to the events in the J& K where
Abdullah govt. had passed restrictions on press and public safety acts. On the other hand, PM
Desai had defended one such act of the MP govt. saying that anti-social and violent elements had
to be restrained for the better functioning of the state apparatus.

Government also introduced a Code of Criminal Procedures Amendment bill in the parliament to
keep preventive detention with some additional safeguards for the FRs but after much debate and
opposition it was withdrawn in 1978.

Later, in October 1979, Charan Singh's carctaker government promulgated the Prevention of Black
Marketing and Maintenance of Essential Commodities Ordinance, which included provision for
preventive detention while restricting its use to preventing actions endangering supplies. There
were safeguards along the lines of the earlier attempt to amend the Criminal Procedure code.
President Sanjiva Reddy, many chief ministers, 2nd several political parties, reportedly opposed
the ordinance. Mrs Gandhi's government after her victory in the January 1980 parliamentary
elections, replaced the ordinance with an Act of Parliament on 12 February l980.

Judicial Independence: The principle of judicial independence that from the beginning of the
country's constitutional experience had had the status of holy writ whether or not profaned in
practice-was again tested during the Janata years.

Morarji Desai’s unwavering commitment to the idea of judicial independence was put to test when
the several members of the party asked for executive’s interference in the judiciary to undo the
emergency wrong in the appointment of the CJI after Justice Ray. The immediate successor on the
basis of seniority was Justice Khanna but on 28 January 1977 the President of India had superseded
Justice Khanna and appointed justice Beg as the CJI.

Justice Khanna had resigned in protest. The PM and his law minister resisted interfering in the
judiciary. Justice Khanna himself thought that even if the intentions are pure but this will solidify
the precedence of executive interference in the judiciary.

Justice Khanna was made the chairperson of the law commission and Justice Beg continued as the
CJI.

The second challenge came from within the judiciary when Justice Beg was to retire. Two senior
most judges of SC (Who had took govt.’s side during the Habeas Corpus case and also were on
the bench which upheld the validity of the emergency proclamation) Y. V. Chandrachud (senior
most) and P. N. Bhagwati, the former appointed to the Supreme Court in August 1972 and the
latter in July 1973. Personally competitive, they had come from competitive high courts, Bombay
and Gujarat, respectively. Jayaprakash Narayan as early as mid-July 1977 wrote to Shanti Bhushan
(Law Minister) about this succession. Said Narayan, it seems to me most unfortunate if either
becomes Chief Justice on the ground of seniority. I recognize a matter of principle is involved, and
that we did object to Mrs Gandhi's supersession. But this is different because nonpartisan: these
men abdicated their duty when they found for the government in the Habeas Corpus case. No doubt
the country would support you, Narayan concluded. Bhushan replied on 31 July that the Habeas
Corpus judgment was 'unsupportable besides being unfortunate', but the matter was complex and
needed the 'utmost care' in handling.

The SC was divided on the issue and so were the HCs. But the finally the executive resisted the
demand from within the party and from some of the legal fraternity people and appointed the senior
most judge Y. V. Chandrachud as the next CJI.

Thirdly, the Desai government further supported judicial independence by reversing the transfers
of high court judges Mrs Gandhi had made during the Emergency. Law Minister Bhushan
announced this in the Lok Sabha on 5 April 1977, saying that judges wishing to return to their high
courts could do so, but the government would not compel them to return. However, the Supreme
Court would later hold that a judge's consent was not a necessary condition for his transfer.
Judicial independence was most significantly affected during this period by the Supreme Court,
itself. In what amounted to a declaration of independence, the Court invented for India the concept
of 'public interest litigation'.

Due to the presence of several activist judges-who perhaps subconsciously were compensating for
the Court's record during the Emergency-the Court became an active, not just a reactive, protector
of the Fundamental Rights and the social revolution. On 5 February 1979 the court, acting in
response to a habeas corpus petition filed by private citizen and senior advocate, Mrs K. Hingorani,
ordered the release on personal bonds of thirty-four prisoners held in Bihar jails. Imprisoned for
periods of two to ten years, the men claimed that their detention was unlawful because they had
been held without trial for longer than their sentences would have been had they been tried and
convicted. The court also ordered the state government to provide it with information about
'undertrials' not mentioned in the petition.

Two benches were involved. One consisted of Justices V. R. Krishna Iyer and 0. Chinnappa Reddy,
the second of Justices P, N. Bhagwati, R. S. Pathak, and A. D. Ghoshal. Of the five men, Krishna
Iyer, Chinnappa Reddy, and Bhagwati would come to be considered the trend-setters in public
interest litigation. A month later, in a similar action, a bench consisting of Bhagwati and Justice
D. A. Desai ordered prisoners to be released from Delhi's Tihar jail. Such detentions, the Court
said, were illegal under Article 21, and a speedy trial was every citizen's right. Further, the court
ordered the governments of Uttar Pradesh, Karnataka, West Bengal, Meghalaya, and Jammu and
Kashmir to provide it with information about undertrials in their states.

Closer to what would become the model for future public interest litigation was a September
decision the same year, again by Justices Krishna Iyer and Chinnappa Reddy. The case originated
with the citizens in Ratlam Municipality who, 'tormented by stench and stink' of open drains,
moved a magistrate under Section 133 of the Criminal Procedure Code to do his duty to the public
by remedying the situation. The magistrate ordered the municipality to offer a plan within six
months. The sessions (criminal) court reversed the magistrate, and the citizens' appeal was upheld
by the high court and again by the Supreme Court. Doing so, Krishna Iyer and Reddy ordered the
municipality to build latrines and provide good water, and they instructed the local magistrate to
prosecute municipal officers if they failed to comply. Procedural rules should infuse life into
substantive rights, said Krishna Iyer in the decision. At issue were the 'problems of access to justice
for the people beyond the blinkered rules of "standing" of British-Indian vintage'. The centre of
gravity way shifting from the individualism of locus sfandi 'to the community orientation of public
interest litigation ... to force public bodies ... to implement ... plans in response to public
grievances', Krishna Iyer said. With the Directive Principles of State Policy having found statutory
expression, continued Krishna Iyer, 'the court will not stand idly by and allow municipal
government to become a statutory mockery'. The number of public interest litigation cases grew
for a time during the eighties, then declined, and have risen dramatically in the mid-nineties.
September 15, 2020

Political Science

Parliament and Judiciary during Indira 2.0

Indira Gandhi's Congress (I) roundly defeated the Janata Party in the elections of 3-6 January 1980.
Major constitutional issues of her 1980s term were the independence of the judiciary and the
caliber of judges and debate about changing from a parliamentary to a presidential system-with its
obvious implications for the relationship between the legislative and the executive branches of
government. The basic structures doctrine was confirmed again by the judiciary during this period.

The social revolution strand of the seamless web received routinely rhetorical attention, but the
government slightly loosened its grip on economic activity. The democracy and the national unity
and integrity strands dominated public debate.

Mrs Gandhi had won her own Lok Sabha seat by two hundred thousand votes, campaigning on the
assertion that the Congress (1) could '"set the country once again on one path of dynamic,
meaningful and orderly social change ... [while] ensuring stability" '. Sanjay Gandhi won Amethi
constituency. The Congress (I) overall won 353 seats. Janata was reduced to thirty-one sears, the
two communist parties to fifty-seven and the DMK to sixteen."

The Prime Minister's personal ascendancy was unchallenged: her cabinet was dependent upon her,
for of the nine principal ministers, six were serving as such for the first Lime; three previously had
been closely associated with her as central ministers. Later additions followed this pattern, a
national broadcast after taking the oath of office on 14 January, Mrs Gandhi proclaimed that her
government had 'only one adversary-social and economic injustice'. She added, 'our commitment
to democracy, socialism and secularism is a matter of faith.’

Talks of the presidential system: Andhra Pradesh Chief Minister Chenna Reddy, while releasing
the Telugu version of the Constitution in Hyderabad talked about convening a constituent assembly
to change to the presidential form of Government. He repeated the sentiment a few days later in
New Delhi. Chenna Reddy had been close enough to Sanjay Gandhi and the Prime Minister so his
assertion didn’t come without the knowledge of the Prime Minister or her son. Mrs. Gandhi was
promoting Sanjay Gandhi to succeed her; therefore making congress party a dynasty party.
Remaining doubts were cleared when after Sanjay’s death her focus shifted to Rajiv Gandhi who
wasn’t interested in politics.

Mrs Gandhi on 25 October 1980 told the All-India Conference of lawyers that she welcomed its
debate on the system of go vernment. Classic to her style she kept her options open and let the
discussion go on.

The supporters highlighted the efficiency of the presidential form of govt. and the detractors feared
the dictatorship.

Judiciary was apprehensive about Mrs. Gandhi’s plans as her supports were attacking the SC and
its judicial review powers as a hindrance to governance. A. R. Antulay, chief minister of
Maharashtra after June 1983, along with proposing a presidential system, deplored the Supreme
Court's power of judicia1 review.

Mrs Gandhi reiterated her position in Calcutta in January 1961. 1 '"There is no proposal to change
the present system. What we want is to make the system more efficient ... to bring in the system
responsive to the people”. The debate died down only after her death.

Judiciary and Parliament: The Minerva Mills Case

The Minerva Mills, a unit of the National Textiles Corporation. Claiming that the privately-owned
mills were ill-managed, the government assumed management of them in 1971 and then
nationalized them under the Sick Textiles Undertakings (Nationalization) Act in 1974. Five years
later, this mill became the focus of a renewed battle over parliamentary versus judicial supremacy
when, in the first Minerva Mills case, the mills' previous owners challenged elements of the 1971
takeover and the 1974 nationalization and the constitutionality of provisions of the three
constitutional amendments.

The case bridged the two governments. The Supreme Court confirmed the basic structure doctrine
through this judgment in 1980.
The counsel N. Palkhivala's strategy was by not to fight the nationalization or the basis property
rights (read pages 499 to 507 from Granville austin’s book). At around the time the case was filed,
Nani Palkhivala, India’s foremost constitutional litigator who also appeared against the Congress
government in the Kesavananda case, was appointed ambassador to the United States by the Janata
government. Soon after his appointment was announced, Palkhivala said in a telephone interview
to the New York Times: ‘My thinking does indeed seem to be in line with the thinking of President
Carter, and the American people, on things like human rights.’ However, Palkhivala soon felt the
urge to return to India to protect human rights through the courts, and resumed practice in time to
argue the Minerva Mills case on behalf of the previous owners.

At its heart, the case involved the government’s nationalization powers and the right to property.
However, the fundamental right to property under the Constitution had just been deleted in
accordance with the Janata Party’s election manifesto. The precise reasons for which the right was
deleted are unclear, although it was speculated that the manifesto pledge was made to secure the
political support of the communist parties and others.

Palkhivala devised the strategy of arguing the case by challenging the Congress government’s
amendments to the Constitution rather than the Janata amendments. Instead of arguing that the
(Janata government’s) constitutional amendment deleting the right to property was itself
unconstitutional because it violated the basic structure of the Constitution, he used the case as a
vehicle to challenge constitutional amendments passed during Indira Gandhi’s tenure as prime
minister.

The Congress government had secured amendments to Article 368 of the Constitution to give
Parliament unfettered powers to amend the Constitution and also to take away the jurisdiction of
the courts to review such amendments. Therefore, the first issue for the court’s consideration in
the Minerva Mills case was whether the amendments to the Constitution adding two new clauses
to Article 368 (with a view to nullifying the Kesavananda judgement) were valid. (If these
amendments were invalid, then the Janata government’s amendments deleting the right to property
as a fundamental right would also be open to judicial scrutiny.) Palkhivala aimed to do in the
Supreme Court what the Janata government failed to do politically – nullify the Congress
government’s constitutional amendment overruling the Kesavananda judgement. The specific
circumstances of the Bangalore mill soon fell into the background, with the vexed question of
whether there were any limits at all on Parliament’s power to amend the Constitution once again
taking centre stage.

The amendments to Article 368 presented a formidable obstacle to the Kesavananda judgement.
The reason for this was that although seven of the thirteen judges in the Kesavananda case held
that Parliament lacked the power to alter the basic structure of the Constitution, they arrived at this
conclusion for different reasons.

While some of the judgements were based on the idea that the word ‘amendment’ could not mean
replacement with a practically new and different Constitution, others noted that the limitation on
Parliament’s power to amend the Constitution was implied in the scheme of the Constitution. By
specifically clarifying that the power to ‘amend’ was boundless, the Congress government’s
amendments appeared to decisively address the first set of judgements.

Palkhivala formulated three powerful arguments in seeking to convince the Supreme Court to
dislodge the amendments. First, ‘the donee of a limited power cannot, by the exercise of that very
power, convert the limited power into an unlimited one’. To do so would allow Parliament, a
creature of the Constitution, to become its master. Second, the limited amending power was itself
a basic feature of the Constitution. Following the court’s decision in the Kesavananda case,
Parliament had no authority to disturb that feature. Third, by stating that no court would have the
power to pronounce upon the validity of a constitutional amendment, the amendment damaged the
balance of power between the judiciary and Parliament.

Palkhivala used the Minerva Mills case as a platform to challenge another Emergency-era
amendment to the Constitution. The Congress government had secured an amendment to Article
31C of the Constitution which protected from the scrutiny of two fundamental rights (the rights to
equality and freedom) all laws that gave effect to any of the directive principles under the
Constitution. In other words, no law that gave effect to one or more of the directive principles
could be struck down by a court on the basis that it violated, say, the right to freedom of speech or
the right to equality.
Palkhivala’s argument against this amendment was based on principle and pragmatism. Article
31C embodied the ‘quintessence of authoritarianism’: the difference between authoritarianism and
democracy was that ‘the former subordinates human freedoms to directive principles of state
policy, while the latter achieves the same objectives while respecting human freedoms’. In
practical terms, to limit Article 31C to laws that gave effect to directive principles was
meaningless, as the directive principles covered the whole spectrum of governance. Almost every
law enacted by the government could be associated, in one way or another, with a directive
principle.

The time the Minerva Mills case arose for hearing, Morarji Desai’s Janata Party government had
fallen and a ‘caretaker’ government (led by Prime Minister Charan Singh) was in place until the
conclusion of the next general elections.

Attorney General L.N. Sinha and Additional Solicitor General K.K. Venugopal argued the case on
behalf of the government. In Sinha and Venugopal, Palkhivala faced formidable opposing counsel.
Sinha was a stalwart of the bar who was ‘hero-worshipped’ by young lawyers at the time.
Venugopal was a rising star who would go on to practise at the Supreme Court for over five
decades and be appointed attorney general by the Modi government in 2017.

As law officers during the Charan Singh government, Sinha and Venugopal were in the precarious
position of defending constitutional amendments that were made by the Congress government
during the Emergency.

Judgment: By this judgement, the court declared two changes made in the Constitution by the 42nd
Amendment Act 1976 to be null and void. By the 42nd Amendment, changes were made in :
Article 368 of the Constitution (which provides for power and procedure for amendment of the
Constitution). Clause 4 and 5 were added to this Article 368, which were as follows: (4) No
amendment of this Constitution (including the provisions of Part III) made or purporting to have
been made under this article whether before or after the commencement of section 55 of the
Constitution (Forty-second Amendment) Act, 1976 shall be called in question in any court on any
ground. (5) For the removal of doubts, it is hereby declared that there shall be no limitation
whatever on the constituent power of Parliament to amend by way of addition, variation or repeal
the provisions of this Constitution under this article. The court ruled both these clauses
unconstitutional as – the 13 judge bench in Keshavananda Bharti case had put limitations on the
power of Parliament to amend the Constitution, through the Doctrine of Basic Structure these
changes restricted the court’s power of ‘Judicial Review‘, which was adjudged to be a part of Basic
Structure, and hence, was inviolable. 2. By the 25th Amendment Act 1971, Article 31C was
inserted in the Constitution which provided for precedence of Article 39(b) and 39(c), i.e. two of
the directive principles, over Article 14, 19 and 31 (fundamental rights). This was upheld by the
court in Keshavananda Bharti case. But by the 42nd amendment, Article 31C was amended to give
precedence to all the directive principles over Article 14, 19 and 31. The court declared this change
as unconstitutional.
Sept. 16

Political Science

The Preventive Detention and FRs in the 1980s

From 1980, central and state governments enacted or reenacted laws providing for preventive
detention, banning strikes, and threatening freedom of speech. The justifications for such
legislation typically were the public interest or protection of national security and integrity. The
context of such laws was the political instability (violent secession movement in Punjab) and the
economic troubles of India demanded strict policies against smuggling, hoarding and derailment
of economic activities. The draconian powers which state had acquired during the emergency were
difficult to let go.

It was Charan Singh's caretaker government, however, that had reinstituted preventive detention
after the Janata government had refrained from doing so. It promulgated an ordinance on 5
October 1979 providing for detention to prevent black-marketing and to ensure the
maintenance of commodity supplies essential to the community.

His reasons were to tackle the problems brought by the rise in prices to ensure stability of his
government. President was hesitant in signing the ordinance since all but two CMs had opposed it
at the CMs’ Conference held some time ago. But the PM was adamant. Later, Mrs Gandhi’s govt.
in 1980 turned this ordinance into an act while the opposition staged a walk out.

Under this comparatively mild law, the advisory boards to be established to review detentions were
to be constituted as prescribed by the Forty-fourth Amendment- i.e. according to the
recommendations of the chief justice of the appropriate high court. The board chairman was to be
a serving judge of the court, and its two or more other members should be serving or retired judges
of any high court. Within ten days the detenu was to be informed of the grounds for his detention
and was allowed to make representations against them. But the government was not required to
disclose facts considered 'against the public interest to disclose'. Within three weeks the
government was to place its case before the advisory board, which could call for further
information and hear the detenu. Within seven weeks from the date of detention the board either
should uphold the detention or invalidate it. Detentions could last six months.

National Security Act (passed on 27 December 1980): Was particularly oppressive in its
provisions. It marked the return of draconian preventive detention laws. Under this act Detentions
were sanctioned to prevent an individual from acting in a manner prejudicial 'to the maintenance
of public order', to the defense or security of India, to relations with foreign powers, to protect the
maintenance of essential supplies and services. But the law's intent was far more inclusive. It was
to combat ' "anti-social and anti-national elements including secessionist, communal and pro-caste
elements"' and elements affecting ' "the services essential to the community.

The abuse of this law was feared as it went further in its differences from the Blackmarketing Act.
Now the state government could appoint the advisory board without the high court chief justices's
recommendations, and its members, except for the chairman, could either be high court judges or
persons 'qualified' to be so, which included any advocate who had practiced for ten years in a high
court. An individual might be detained for a year and then detained again, without prior release, if
'"fresh facts had arisen".

The Supreme Court upheld the Act's constitutionality at the end of December 1981.

The President in April and June 1984, promulgated two ordinances amending the National
Security Act-both these ordinances were later replaced by Acts of Parliament.

• The first ordinance allowed a detention order to be submitted to an advisory board four
months and two week after the detention and allowed the board to take five months and
three weeks to give its opinion-that is, ten months in jail on executive whim. Individuals
might be detained for two years.
• The second ordinance outdid this. It said that before or after its promulgation a person
detained on two or more grounds, each ground qualifying as a separate detention, could
not have his detention rendered invalid if 'one or some' of the grounds were 'vague, non-
existent, not relevant, riot connected or riot proximately connected with such person, or
invalid for any other reasons whatsoever'.
 • ‘This lawless law' was explained as necessary to deal with the "'extraordinary situation"' in
parts of the country and as needed "'to deal stringently with anti-national, extremist and
terrorist elements ... in the larger interests of India"'. The extraordinary situations included
the Punjab, where, in July, the army invaded and occupied the Golden Temple and
remained into October. Late that month, two Sikhs of Indira Gandhi's security guard
murdered her. Locally, as it had nationally during Mrs Gandhi's Emergency, democracy
had failed.

Terrorist and Disruptive Activities Act (TADA) 1985: It empowered the government to make
rules as necessary and 'expedient' for 'prevention of and coping with terrorist acts and disruptive
activities'; to prevent the spread of reports 'likely to prejudice maintenance of peaceful conditions';
to regulate 'the conduct of persons in respect of areas the control of which is considered necessary';
and to require persons 'to comply with any scheme for the prevention, or coping with, terrorist acts
and preventive activities.

• Terrorist and disruptive activities were loosely defined. This gave executive a free hand in
compromising the FRs of the citizens. Under this act terrorist activities also included
even peaceful expression of views about sovereignty and territorial integrity'.
• It permitted detention for up to six months without charge; provided for trials before
designated courts 'in camera and adopting procedures at variance with the Criminal
Procedure Code'; and said that if the person detained came from an area the government
had declared to be a terrorist affected area 'the burden of proving that he has not committed
a terrorist act in on him'.
• It reversed the cardinal principle of justice ‘innocent till proven guilty’ into ‘guilty until
proven innocent’.

Following the suit various state legislatures had passed their own preventive detention laws parallel
to the centre's, as they often had since 1950. They had enacted particularistic preventive detention
laws: for the broad control of crimes (Bihar 1980-81); against communal and dangerous activities
(Maharashtra 1981, Tamil Nadu 1982, Andhra Pradesh 1986) ; and anti-social activities (Gujarat
1985).
Parliament had passed, with many states following suit, laws banning strikes and allowing arrests
without a warrant and providing for sum mar^ trials (the 'essential services' acts).

Mrs. Gandhi had said she wanted 'to assure workers that this ordinance is not against them ... [W]e
will never do anything to suppress them or create difficulties ... . But it is necessary that the public
services are kept going. Attempting to deal with the situation in Punjab, Parliament passed laws
other than those already mentioned such as those establishing special courts for disturbed areas,
the Armed Forces (Punjab and Chandigarh) Special Powers Act, and the Fifty-ninth and
Sixty-third Amendments to the Constitution (in 1988 and 1989, respectively), which gave the
central government special emergency powers in Punjab.

63rd Amendment said that during a Punjab emergency, there was no protection from Article
21.

Oppressiveness being infectious, it spread to other civil liberties such as freedom of speech. The
legislatures of Bihar and Tamil Nadu in 1982 passed laws restricting press freedom. The Bihar
Act, reportedly passed in five minutes, provided for fines and imprisonment for possessing, selling,
or publishing pictures, advertisements, or reports that are "'grossly indecent or ... [are] scurrilous
or intended for blackmail" '. Publication was permissible if the material was expressed '"in good
faith" '.

Postal Bill 1986 to 2002: During 1986 and 1988, the central government ventured, itself, into
curbing the press and civil liberty other than through preventive detention. On 11 November 1986
Rajiv Gandhi's government introduced in the Lok Sabha what came to be known as the Postal Bill.
With its passage by the Rajya Sabha on 10 December, the central and state governments were
empowered to direct that in the interests of public safety or tranquility, the security of India, or on
the occurrence of any public emergency, any postal article or class of postal articles 'shall be
intercepted or detained or shall be disposed of' as authority may direct.

The president Gyani Jail Singh first returned the bill and then sat on it till the new president
assumed office. Jail Singh’s differences had peaked in 1987 with Rajiv Gandhi govt. over the
events in Punjab. The new President R. Vanktaraman sent the bill back to the Rajya Sabha. The
bill remained pending there till 2002, when finally on the recommendation of the RS, LS withdrew
it.

Defamation Bill 1988: The Rajiv Gandhi government again attacked the Fundamental Rights
when in August 1988 it attempted passage of the so-called 'Defamation Bill'. The allegations of
corruption against the Prime Minister (regarding weapons purchased for the army), his close
associates, and other ministers had been current for months. Parliamentary elections were due in a
year, and the bill was, said a news magazine, 'an act of desperation'.

• The bill's Statement of Objects and Reasons said it proposed to make an offence 'the
publication of imputations falsely alleging commission of offences by any person'.
Freedom of speech must not 'degenerate into license', said the Statement.
• The 'draconian character' of the bill was exemplified, said the Times of India as it put 'the
onus of proof that no defamation was caused upon the accused'.
• The government rammed the bill through the Lok Sabha on 3G August after an
acrimonious debate over substance. The opposition charged that, in the process,
Parliament's rules of procedure had been violated. The uproar caused Rajiv Gandhi to
announce that the bill would not be introduced in the Rajya Sabha. The Defamation Bill
thus achieved the dubious distinction of being the first bill since independence to be
withdrawn by a government after passage in the Lok Sabha.

In several areas of the country state government were unable to cope with internecine conflicts
between local factions or insurrectionary violence, They came to depend on central government
forces to contain or subdue he violence and preserve a measure of government authority. Yet,
although the Terrorist and Disruptive Activities Act, extended nationally in much of the country it
was not extensively employed. Only in several states did repression under the act resulted in the
virtual extinction of the democracy, notably in Jammu and Kashmir, the Punjab, Assam, and
elsewhere in the Northeast. Rajiv Gandhi's government inherited both the ugly conditions in these
areas and his mother's failed policies in the Punjab and Kashmir, which he attempted to redress.
That the responsibi1ity for these conditions rested both with local militants - secular and religious
- and with New Delhi for its divide-and-rule meddling in state affairs did not lessen their
precariousness. Nevertheless, repression became a substitute for reform. Authoritarian methods
were the easy way out, demanding less intelligence, less political effort, and no recognition that
your opponent might have a point. Repression was power without perspective, an imperium, not
the statesmanship the country needed.
September 21, 2020

Political Science

Transfer of Judges Issues: First Judges Case 1981

After 1980 the issue of judicial independence came to the surface again. Major sub-issue was the
transfer of HC judges. At the heart of this entire debate was the philosophical problem of judicial
independence. Could judiciary be perfectly independent in a democracy as an unelected body? The
answer lay in intricacies of democratic governance which requires all three pillars to work in
synchronization but without unconstitutionally interfering in each other’s domain. Such system
works on the integrity, commitment, and wisdom of the people in charge of these pillars. Judiciary
can only enjoy approximation to independence depending upon the aforementioned three.

• The subtopics in this discourse on judicial reforms were: whether or not considerations
of caste figured in the appointments of judges or in their behaviour on the bench; the
susceptibility of high court judges to influences from local parties, private or governmental,
including actual bribery; the intrusion of family relationships into a court's functioning,
especially the matter of a judge's close kin practicing as advocates in his high court; long
unfilled vacancies on high courts, often believed to be an executive branch technique for
diminishing the courts' capabilities; and the manipulation of appointments by executive
branches in New Delhi and the state capitals with the intention of influencing judicial
decision-making. Some of these topics remain relevant even today.
• Poacher turning into a gate keeper? Mrs. Gandhi’s renewed attempt to reform judiciary
had a genuine concern at its core that was the reason that the law commission which
comprised mostly of Mrs. Gandhi’s critics supported the call for reforms. But her history
with the judiciary (1973 and 1978 suppression of judges, previous retributive transfer of
the HC judges) invited a sharp criticism of her motives behind such reforms. Her
genuineness was called into question especially with her Law Minister Shiv Shankar's
order, within weeks of the government's taking office, closing down the special courts and,
coincidentally with this, his remark that ' "the judiciary continued to be a vestige of British
imperialism and it should be reorganized'
• Govt. plan: 1. Chief Justice of HC shall be from outside its jurisdiction. S/he could be
appointed through transfer or appointment. 2. 1/3 of all the judges of HCs shall be from
outside.
• Two events: Justice Sriwastva’s term extension: Justice Sriwastava; an additional judge
of the Allahabad High Court resigned, declaring himself opposed to a transfer of judges
policy "'aimed at creating fear and a sense of instability"' in the minds of judges, and
protesting that the extension of his own tenure as an additional judge for only four months
was due to political considerations, particularly his alleged connections with Mrs Gandhi's
enemy, Raj Narain. The governor of Uttar Pradesh had written to the Law Ministry that-
his extension was not desirable because he 'might be susceptible to political bias and
pressure"'. Doing this, the governor had bypassed the normal procedure of consulting the
court's Chief justice. Shiv Shankar denied in the Rajya Sabha that questions had been
asked about Srivastava's party connections. He said on this occasion that regional and caste
considerations affected recommendations for judicial appointments; that the judicial
system might break down, if 'extraneous considerations' continued to play 'a vital role' in
appointments; and that if the members were serious about judicial independence, they
should consider having one-third of a high court's judges from outside the state.
• The Law Minister wrote in August 1980 to chief ministers and high court chief justices
that more individuals from the Scheduled Castes and Tribes should be considered for
judgeships. Although this was a constructive suggestion, it nevertheless strengthened
perceptions that the government had designs on judicial independence.
• The Bar Council of India (the Indian Express, A. G. Noorani, K. K. Katyal also agreed)
opposed one-third the number of judges coming from out of state as potentially dangerous
to judicial independence.
• The Hindu, on the other hand, thought such anxieties 'entirely misplaced'. The policy of
having judges from out of the state would promote national integration, and they would not
be swayed by local considerations or 'regional passions', the newspaper said.
• These recommendations weren’t without substance as the Law Commission under Justice
Khanna (a victim of executive’s high headedness) had recommended these transfer and
appointment recommendations along with providing safeguards for the judicial
independence.
• The Bar Council of India in a 'National Seminar' expressed a more favourable view of
transfers than it had earlier and suggested a mechanism for high court appointments. The
initiative for the appointment of judges should come from a collegium of 'three senior-most
judges of the High Courts and two leading advocates nominated by the Bar. The chief
minister could discuss with the collegium any objections to its recommendation, but its
recommendation would be final. If the chief minister unduly delayed forwarding the
nomination to the governor for transmittal to the President, the recommendation could go
to the President through the Chief Justice of India. High court chief justices should be
selected by a collegium composed of the Chief Justice of India, two of his senior
colleagues, two chief justices of high courts, and two senior members of the bar. 'Ordinarily
the group's recommendation must be accepted by the Executive', the seminar said. And the
power of transfer 'remains only with the judiciary'.
• Everyone had a point. As Shiv Shankar was saying, one-third of judges and chief justices
from out of state might protect judicial independence by helping judges resist pressures
from local groups, but local or government manipulation of' sitting judges (and their initial
placement on the bench) still could mock these goals. The Bar Council's and the Law
Commission's recommendations would have served the same purpose while greatly
reducing opportunities for executive branch mischief. The Bar Council's involvement of
local lawyers in the selection of judges would have provided an antidote to judicial self-
centeredness, but risked increasing the effect of bar politics on selections. All in all, the
Law Commission seemed to have the better scheme. Arguably, judges from out of state
might contribute to national integration through fostering uniformity in the judicial process.
• First Judges Case: Background: Transfer of K. B. N. Singh and M. M. Ismail: On 5
January 1981, Chief Justice of India Chandrachud telephoned K. B. N. Singh, the chief
justice of the Bihar High Court in Patna, to tell him he was to become chief justice of the
Madras High Court. To make room for him, the then chief justice in Madras, M. M. Ismail,
was notified he was being transferred to the Kerala High Court. The transfers had been
initiated the previous December in correspondence between Chandrachud and Shiv
Shankar. The Chief Justice then had declared I himself 'opposed to the wholesale transfers
of Chief Justices', but said that transfers might be made for 'strictly objective reasons'.
Ismail resigned in protest in a letter to the President; the Tamil Nadu Chief Minister, M.
 G. Ramachandran, protested sending a judge from Patna who did not know Tamil; and two
advocates filed petitions challenging Ismail's and K B. N. Singh's transfers. A Supreme
Court bench of Justices Bhagwati and Baharul Islam, acting on the petition challenging
Ismail's transfer, on 3 February ordered that the status quo be maintained: Ismail was free
to remain in Madras or go to Kerala; Singh should continue as chief justice in Patna.
• First Judges Case or S.P. Gupta Case: Disputes regarding tenure were added to the
transfer controversies. In February and March 1981, additional judges in four high courts
whose two-year terms were to expire were given tenure extensions of several months
instead of either being given longer extensions (to help cope with arrears in these courts)
or being made permanent puisne judges. Writ petitions resulted and an advocate of the
Allahabad High Court, S. P. Gupta, filed a writ petition concerning permanent
appointments for three additional judges of that high court. Several of these petitions
also challenged a circular sent by Law Minister Shankar to all the chief ministers
(excepting those in the northeastern states) and to the governor of Punjab. This threw
kerosene on existing flames when it became public knowledge in mid-April that the
circular asked the recipients to obtain from the additional judges in the state's high court
'their consent to be appointed permanent judges in any other high court' (they might
indicate three courts in order of preference) and to obtain from potential judges 'their
consent to be appointed to any other high court in the country'. The written consents and
preferences were to be sent to Shiv Shankar within two weeks. This circular was sent
without consulting the CJI. CJI protested against it.
• Nine of the petitions concerning judges' transfers or the continuations in service of
additional judges were grouped together to be heard as the S. P. Gupta or the Judges, case
by a seven-judge bench of the Supreme Court between 4 August and 19 November 1981.
• A seven Judges Bench of Supreme Court extensively considered the issues of
Independence of Judiciary in relation to the appointment and transfer of Judges, the issue
of appointment of the Additional Judges of the High Court, the issue of the privilege of the
Government against disclosure of State documents and the scope of judicial review of the
powers exercised by the President.
• While deciding the issue of the locus standi (right to bring an issue to the court) of the
petitioning lawyers who had challenged the Circular of the Law Minister and short-term
 extensions of Additional Judges on ground of attack on the independence of the judiciary,
Justice P.N. Bhagwati while upholding their right to do so held that where the effected
persons are really helpless, the Supreme Court will not insist on a regular writ petition to
be filed by the public spirited individual espousing their cause. The Court will readily
respond even to a letter addressed by said individual espousing the public cause.
• A bunch of cases were decided together in the present case which were raised in two
batches of writ petitions filed in different High Courts which were transferred under Article
139-A to the Supreme Court since they raised common issues of great constitutional
importance. One writ was also filed in the Supreme Court. Several more related issues were
raised and discussed during the hearing. Each of the Judges delivered a separate judgment.
• The judgement declared that the “primacy” of the CJI’s recommendation on judicial
appointments and transfers can be refused for “cogent reasons.” The ruling gave the
Executive primacy over the Judiciary in judicial appointments for the next 12 years
until the second judges case.
• The Court held that ‘where there is difference of opinion among the Constitutional
functionaries in regard to the appointment of a judge in a High Court, the opinion of none
of the Constitutional functionaries is entitled. However, Government of India should come
to its own decision as to which opinion it should accept in appointing a particular person
as a Judge… where a judge of the Supreme Court is to be appointed, the Chief Justice
of India is required to be consulted, but again it is not concurrence but only
consultation and the Central Government is not bound to act in accordance with the
opinion of the Chief Justice of India.
• The ultimate power of appointment rests with the central Government and that is in
accord with the Constitutional practice prevailing in all democratic countries. To the
contention of the petitioners that Clause 2 of Article 124 used the word “may” and hence
the Central Government may or may not consult the judges of the High Court and the
Supreme Court in appointing judges; And when it does not, the opinion of the Chief Justice
of India should be held final- The Court said that the word “may” in the Article only makes
it optional to the Central Government as to which of the judges it should consult. It does
not make it optional for the Central Government to consult or not. Hence the Central
Government must consult but ultimately the power of appointment should rest on the
Central Government. The case also suggested that there should be a collegium of judges
for appointment and transfer of judges. This case upheld the Primacy of Executive in
appointment and transfer of judges.
September 22, 2020

Political Science

Continuing…

Judicial Reforms: Judges Appointment and Transfer

The government announced the first element of its transfer policy in January 1983. High
court chief justices would be drawn from out of state, and seniority within his or her own
court and suitability were to be the criteria. A chief justice with only one year until
retirement would not be subject to transfer, and a senior puisne judge with only one year
until retirement might become chief justice in his own court. The initial reactions to this
policy were negative. S. P. Gupta Case judgement was criticized for handing over the power
to the executive to meddle with the judiciary.

• Jagan Nath Kaushal the new Law Minister provided Parliament with the guidelines
of the new policy in August. He announced that the government had 'recently
accepted the Law Commission's recommendation that one-third of high court judges
should come from out of the state. This was to be achieved both through initial
appointments and transfers and 'in accordance with the constitutional provisions which
provide for an elaborate procedure of consultation.
• During the following five years, the government transferred thirty high court chief
justices. An uneasy truce over transfers stayed in force for a decade.
• Mrs Gandhi's years as prime minister ended with glory neither for the executive's policies
toward the judiciary, nor the judiciary's treatment of itself.
• The basic issues reappeared in the nineties: writ petitions from Supreme Court lawyers
that worked their way up to a special bench of nine judges.
• The most basic issue of all was the rampant suspicion with which the judicial and the
executive branches regarded each other.
• Second Judges Case: In The Supreme Court Advocates-on-Record Association (SCARA)
Vs Union of India, 1993, a nine-judge Constitution Bench overruled the decision in S P
 Gupta, and devised a specific procedure called ‘Collegium System’ for the appointment
and transfer of judges in the higher judiciary.
• The Court ruled that, ‘In the 'selection and appointment of judges to the Supreme
Court and the high courts as well as transfer of judges from one high court to another
high court ... the opinion of the Chief Justice of India ... is entitled to have the right of
primacy', ruled the majority in the lead judgement by Justice J. S. Verma.
• Judicial review of transfers was to be limited to whether or not there was adequate
participation by the Chief Justice of India.
• The role of the CJI is primal in nature because this being a topic within the judicial family,
the executive cannot have an equal say in the matter. Here the word ‘consultation’ would
shrink in a mini form. Should the executive have an equal role and be in divergence of
many a proposal, germs of indiscipline would grow in the judiciary.
• Ushering in the collegium system the recommendation should be made by the CJI in
consultation with his two senior most colleagues, and that such recommendation should
normally be given effect to by the executive.
• It added that although it was open to the executive to ask the collegium to reconsider the
matter if it had an objection to the name recommended. If, on reconsideration, the
collegium reiterated the recommendation, the executive was bound to make the
appointment.
• The judgement also said that the primacy of the Chief Justice's opinion 'is, in effect,
primacy ... formed collectively ... after taking into account the views of his senior
colleagues who are required to be consulted by him for the formation of his opinion'.
As to transfers of high court judges, 'the initiation of the proposal for the transfer of
a judge/chief justice should be made by the Chief Justice of India aIone. The Chief
Justice was to follow 'suitable norms' in the matter of transfers, including those
specified in the ruling.
• Delivering the judgement on 6 October 1993 was a bench consisting of S. Ratnavel
Pandian, who presided, and Justices A. M. Ahmadi, Kuldip Singh, J. S. Venna, M. M.
Punchhi, Yogeshwar Dayal, G. N. Ray, A. S. Anand, and S. P. Bharucha. Siding with
Pandian were Justices Verma, Dayal, Ray, Anand and Bharucha. Justice Punchhi
held that the Chief Justice's role 'primal' but participatory. Ahmadi held that there
 could be no such primacy unless the Constitution were amendad. Kuldip Singh
expressed no view on this issue.
• Critics argue that the system is non-transparent since it does not involve any official
mechanism or secretariat. It is seen as a closed-door affair with no prescribed norms
regarding eligibility criteria or even the selection procedure. There is no public knowledge
of how and when a collegium meets, and how it takes its decisions. Lawyers too are usually
in the dark on whether their names have been considered for elevation as a judge.
• Some weeks later, in December 1993, Prime Minister P. V. Narasimha Rao chaired a
meeting of chief justices and the Chief Justice of India, which decided that one-sixth of
high court chief justices and one-third of judges be from out of state.
• As a result, Chief Justice of India M. N. Venkatachaliah set up a 'peer committee' of
two Supreme Court judges, two high court chief justices, and the chief justice of the
high court concerned with the transfer from his court 'to finalize norms' for transfer.
• On 13 April 1994, the President, Shankar Dayal Sharma, announced the transfer of
fifty high court judges. Criticism came from a few bar associations, but many
associations and most editorial comments welcomed the transfers under the new
procedures, for, as the Hindu headlined, hopefully, arbitrariness had been 'ruled out’.
• Third Judges Case: The third judges case was not an actual case. The Article 143 of the
Constitution of India confers upon the President of India the power to refer to the Supreme
Court for its opinion on the questions of law or fact which have arisen or are likely to arise
and which are of such a nature and of such public importance that is expedient to obtain
such opinion. In exercise of this power, the President of India on 23rd July, 1998 made
the reference to SC seeking clarity on the collegium system of appointments.
• The court clarified that the collegium would comprise CJI and four senior-most colleagues,
in appointments to the Supreme Court. And, the CJI and two senior-most colleagues in the
case of appointments to the high courts. Additionally, for HCs, the collegium would consult
other senior judges in the SC who had previously served in the HC concerned. On whether
these views of the consultee-judges are binding on the collegium or not, the judgments are
silent.
• Functioning of the collegium: The President of India appoints the CJI and the other SC
judges. For other judges of the top court, the proposal is initiated by the CJI. The CJI
 consults the rest of the Collegium members, as well as the senior-most judge of the court
hailing from the High Court to which the recommended person belongs. The consultees
must record their opinions in writing and it should form part of the file. The Collegium
sends the recommendation to the Law Minister, who forwards it to the Prime Minister to
advise the President. The Chief Justice of High Courts is appointed as per the policy of
having Chief Justices from outside the respective States. The Collegium takes the call on
the elevation.
• The government of 1998-2003 had appointed the Justice M N Venkatachaliah
Commission to opine whether there was need to change the Collegium system. The
Commission favoured change, and prescribed a National Judicial Appointments
Commission (NJAC) consisting of the CJI and two senior most judges, the Law
Minister, and an eminent person from the public, to be chosen by the President in
consultation with the CJI.
• NJAC: In 2015 the SC has struck down the NJAC which was the result of 99 th
Constitutional Amendment. The NJAC proposed to make the appointment of high court
and Supreme Court judges and chief justices more transparent. They were to be selected
by the commission, whose members were to be drawn from the judiciary, legislature and
civil society.
• It was to replace the collegium. With the NJAC amendment, Articles 124 A, B and C were
added to the Constitution to make the NJAC valid. Articles 124 A and B define the NJAC,
its members and their duties, while Article 124 C empowers Parliament to make laws in
the future to regulate the procedure for the appointment of judges.
• The NJAC was to consist of: The CJI as the chairperson. The next two senior most Supreme
Court judges. The law and justice minister and, two eminent persons, to be selected by a
committee comprising the CJI, Prime Minister and leader of the opposition.
• The SC called it as an attempt to undermine the judicial independence and struck it down.

Meanwhile the SC has come to realize the genuine demand of transparency in the judicial
procedures. It has taken some steps such as: the apex court recently declared that it would make
public, on the court’s website, its various decisions. The information to be made public include:
its verdicts on persons nominated for elevation as judges to the high courts. Its choices of
candidates for elevation to the Supreme Court. Its decisions on transfer of judges between different
high courts. These will be accompanied by the reasons underpinning the collegium’s choices.
September 24, 2020

Political Science

Indian Judiciary in the age of Globalization and Coalition Politics: Rajiv

Gandhi Era

Rajiv Gandhi succeeded his mother as Prime Minister in 1984. He led the Congress (I) to a massive
victory in the following year. Congress (I) won ¾ majority in the Lok Sabha. In the following five
years his government produced mixed results in solving the political crisis India was going
through. He took the first steps to open up the Indian economy by relaxing the license raj and
introducing information technology revolution in business. India introduced its first Education
policy in 1986. The anti – defection law was brought in to curb the opportunist switching of
loyalties by the MPs and MLAs.

• During his five-year tenure as prime minister, Rajiv had signed peace accords with
insurgent groups in Mizoram, Assam and Punjab in an effort to end insurgency and
violence in these states. In 1985, the Punjab accord, also known as the Rajiv-Longowal
Accord, was signed with Harchand Singh Longowal, who was the president of the Akali
Dal. In the same year, a pact was signed with the All Assam Students Union (AASU). A
year later, the Mizo Peace Accord was signed with Laldenga, the founder of the Mizo
National Front.
• Mizoram Pact or Mizo Peace Accord: The Mizoram Accord was signed between the Mizo
National Front and the Government of India on June 30, 1986. The MNF was a secessionist
movement to protest against the negligence and indifference of the Government of India to
the people of Mizoram at the time of a severe famine, mautam, during the late 1950s. After
a major uprising followed by years of struggle in underground activities. MNF was a
militant movement. The Rajiv Gandhi government initiated a peace process where the
terms and conditions of its surrender were discussed in exchange of peace in the region and
Mizoram’s full statehood. Major terms and conditions were:
✓ The Mizo National Front should surrender all arms, ammunition, and
equipment to the government.
 ✓ The MNF should amend its constitutions so as to conform to the Indian
constitution.
✓ The MNF should detach itself from support from Tripura National
Volunteer, People's Liberation Army of Manipur and other allied
revolutionary organizations.
✓ The government should provide necessary settlement and rehabilitation to
all underground personnel.
✓ The government should take action to make Mizoram, which was then a
Union Territory, to a full-fledged state.
✓ The territory of Mizoram should be specified according to the North Eastern
Areas (Reorganization) Act, 1971.
✓ After normalcy is established, the President of India should hold election
for the Mizoram Legislative Assembly.
✓ Assistance should be given to the state government according the case of
"Special Category State".
✓ Border trade would be legalized upon agreement with neighboring countries
(namely Bangladesh and Myanmar).
✓ The Inner line Regulation (which restricted unauthorized visit or stay in
Mizoram) should remain in force.

Mizo Peace Accord was a successful agreement which ensured peace to return in the Mizoram
state and still remains one of the most successful political agreements in the independent India.

• Rajiv – Longowal Pact 1985: The Prime Minister, Rajiv Gandhi, and Akali Dal leader,
Sant Harchand Singh Longowal, signed an eleven-point peace accord on 24 June’ 85, with
a view to solving the sectarian conflict in Punjab which led to the storming of Golden
Temple, desertion by some 5000 personnel of Sikh regiment, assassination of Mrs. Gandhi
and massacre of approximately 2000 civilians of Sikh community. The terms of the accord
were following:
✓ Compensation to innocent persons killed. Along with ex-gratia payment to
those innocent killed in agitation or any action after 1-8-1982,
compensation for property damaged will also be paid.
 ✓ All citizens of the country have the right to enroll in the army and merit will
remain the criterion for selection. (This was to put the rumors about
discouraging sikh number in the army to rest).
✓ Enquiry into November incidents. The jurisdiction of Mr. Justice Ranganath
Mishra commission enquiring into the November riots of Delhi would be
extended to cover the disturbances at Bokaro and Kanpur also.
✓ Rehabilitation of those discharged from the army. For all those discharged,
efforts will be made to rehabilitate and provide gainful employment.
✓ The government of India agreed to consider the formulation of an All-India
Gurudwara Bill. Legislation will be brought forward for this purpose in
consultation with Shiromani Akali Dal, others concerned and after fulfilling
all relevant constitutional requirements.
✓ The notifications applying the Armed Forces Special Powers Act, Punjab
will be withdrawn. Existing special courts will try only cases relating to the
following type of offences:
a. Waging war
b. Hijacking
✓ Other provisions were related to river water sharing, transfer of Chandigarh
to Punjab and hindi speaking Punjab territories to Haryana, promotion of
Punjabi by the central govt. etc.
✓ The accord fell apart after the assassination of Longowal by the Sikh
extremists.

Assam Accord 1985: The signing of the Accord led to the conclusion of a six-year agitation that
was launched by AASU in 1979, demanding the identification and deportation of illegal
immigrants.

✓ It said all signatories have been “most anxious to find a satisfactory solution to the problem
of foreigners in Assam”, and that AASU had, through a memorandum dated February 2,
1980, conveyed to then Prime Minister Indira Gandhi its “profound sense of apprehensions
regarding the continuing influx of foreign nationals into Assam and the fear about adverse
effects upon the political, social, culture and economic life of the State”.
✓ Indira began a dialogue with the AASU/AAGSP, and talks were held at the levels of the
PM and Home Minister during 1980-83. Formal discussions resumed in March 1985, when
Rajiv Gandhi was PM. Earlier, several rounds of informal talks had been held in 1984.
✓ The Accord was finally signed later in 1985, “keeping all aspects of the problem including
constitutional and legal provisions, international agreements, national commitments and
humanitarian considerations”.
✓ At the heart of the Accord was the “Foreigners Issue” (Clause 5), and “Safeguards and
Economic Development” (Clauses 6 and 7). There were some “Other Issues” (Clauses 8-
12), and a section on “Restoration of Normalcy” (Clauses 13 and 14).
✓ The Home Ministry was the nodal Ministry for the implementation of the Accord. In 1986,
a new Department was set up in the Government of Assam, called “Implementation of
Assam Accord Department”, to implement the various clauses of the Memorandum of
Settlement.
✓ It was agreed that “for purposes of detection and deletion of foreigners, 1.1.1966 shall be
the base data and year”, and that “all persons who came to Assam prior to 1.1.1966,
including those amongst them whose names appeared on the electoral rolls used in 1967
elections shall be regularised”.
✓ Foreigners who “came to Assam after 1.1.1966 (inclusive) and upto 24th March, 1971 shall
be detected in accordance with the provisions of The Foreigners Act, 1946, and The
Foreigners (Tribunals) Order, 1964”, and their names “will be deleted from the electoral
rolls in force”.
✓ “Such persons”, it was agreed, “will be required to register themselves before the
Registration Officers of the respective districts in accordance with the provisions of The
Registration of Foreigners Act, 1939, and The Registration of Foreigners Rules, 1939”.
✓ While, “On the expiry of a period of ten years following the date of detection, the names
of all such persons which have been deleted from the electoral rolls shall be restored”, “all
persons who were expelled earlier, but have since reentered illegally into Assam shall be
expelled”.
✓ Under Clause 5.8, “Foreigners who came to Assam on or after March 25, 1971 shall
continue to be detected, deleted and practical steps shall be taken to expel such foreigners.”
✓ “Constitutional, legislative and administrative safeguards, as may be appropriate shall be
provided to protect, preserve and promote the culture, social, linguistic identity and
heritage of the Assamese people.” (Clause 6)
✓ The Assam Accord has come to occupy the heart of the CAA NRC debate in the recent
months where the government has assured that the safeguards provided to the Assam
people will stay in place but the protesters have taken the streets fearing the citizenship and
residence of the non-muslim migrants in Assam through CAA.
• The Indo-Sri Lanka Agreement was signed on July 29, 1987. The agreement is
popularly referred to as the Rajiv-Jayewardene Accord, after its architects — Prime
Minister Rajiv Gandhi and President J.R. Jayewardene. Indian Peace corps were sent to
mediate between Sri Lanka security forces and LTTE but soon after landing they were
confronted with a bloody political conflict lacking support from Sri Lanka. The Rajiv-
Jayewardene Accord was perhaps too ambitious in its scope as it sought to collectively
address all the three contentious issues between India and Sri Lanka: strategic interests,
people of Indian origin in Sri Lanka and Tamil minority rights in Sri Lanka. Its success
depended on sustained political support from both the countries. So the Accord got
sidelined when political leaders who were unhappy with the Accord came to power in both
countries almost at the same time. As a result, the Tamil minorities, who had put their faith
in it, were in limbo. These unsavoury developments have clouded the understanding of the
positive aspects of the Accord. After all, it was the Accord that enabled Sri Lankan Tamils
to gain recognition for some of their demands in Sri Lankan politics and in the Sri Lankan
Constitution. After sacrificing the lives of over 1,200 of its soldiers, India felt cheated when
President Ranasinghe Premadasa joined hands with the LTTE to send the Indian troops out
of Sri Lanka before they had completed their job.
• Under Rajiv’s rule, the SAARC (South Asian Association for Regional Cooperation) was
founded in 1985 and signed by Afghanistan, Bangladesh, Bhutan, Nepal, Maldives and Sri
Lanka. Rajiv is also credited for giving importance to science and technology. He brought
in computers and spoke of liberalisation. The telecom industry witnessed a breakthrough
under his government with the initiation of Mahanagar Telephone Nigam Limited in 1986.
He was hailed as the Father of information technology and telecom revolution of India as
 it was during his time that the Centre for Development of Telematics (C-DOT) and PCO
(public call office) booths were established.

Individual versus community rights: The concept of a right relates to the freedom from interference
by other individuals or the government. Individual rights refer to the liberties of each individual to
pursue life and goals without interference from other individuals or the government. A community
is a group of people with common interests and values. A community can be ethnic, religious

Shah Bano Case: In April 1978, a 62-year-old Muslim woman, Shah Bano, filed a petition in court
demanding maintenance from her divorced husband Mohammed Ahmad Khan, a renowned lawyer
in Indore, Madhya Pradesh. Khan had granted her irrevocable talaq later in November. The two
were married in 1932 and had five children — three sons and two daughters. Shah Bano’s husband
had asked her to move to a separate residence three years before, after a prolonged period of her
living with Khan and his second wife.

Shah Bano went to court and filed a claim for maintenance for herself and her five children under
Section 123 of the Code of Criminal Procedure, 1973. The section puts a legal obligation on a man
to provide for his wife during the marriage and after divorce too if she isn’t able to fend for herself.
However, Khan contested the claim on the grounds that the Muslim Personal Law in India required
the husband to only provide maintenance for the iddat period after divorce.

Iddat is the waiting period a woman must observe after the death of her husband or divorce before
she can marry another man. The length of the iddat period is circumstantial. The period is usually
three months after either of the two instances. In case the woman is pregnant, the period carries on
until the childbirth.

Khan’s argument was supported by the All India Muslim Personal Law Board which contended
that courts cannot take the liberty of interfering in those matters that are laid out under Muslim
Personal Law, adding it would violate The Muslim Personal Law (Shariat) Application Act, 1937.
The board said that according to the Act, the courts were to give decisions on matters of divorce,
maintenance and other family issues based on Shariat.
After detailed arguments, the decision was passed by the Supreme Court of India in 1985. On the
question whether CrPC, 1973, which applies to all Indian citizens regardless of their religion, could
apply in this case. Then Chief Justice of India Y.V. Chandrachud upheld the decision of the High
Court that gave orders for maintenance to Shah Bano under CrPC. For its part, the apex court
increased the maintenance sum.

The case was considered a milestone as it was a step ahead of the general practice of deciding
cases on the basis of interpretation of personal law and also dwelt on the need to implement the
Uniform Civil Code. It also took note of different personal laws and the need to recognise and
address the issue of gender equality and perseverance in matters of religious principles.

Justice Y.V. Chandrachud said in his decision: “Section 125 was enacted in order to provide a
quick and summary remedy to a class of persons who are unable to maintain themselves. What
difference would it then make as to what is the religion professed by the neglected wife, child or
parent? Neglect by a person of sufficient means to maintain these and the inability of these persons
to maintain themselves are the objective criteria which determine the applicability of section 125.
Such provisions, which are essentially of a prophylactic nature, cut across the barriers of religion.
The liability imposed by section 125 to maintain close relatives who are indigent is founded upon
the individual’s obligation to the society to prevent vagrancy and destitution. That is the moral
edict of the law and morality cannot be clubbed with religion.”

The following events were unfavourable to a great extent with the then Rajiv Gandhi Congress
government, elected in 1984, passing the Muslim Women (Protection on Divorce Act), 1986. This
law overturned the verdict in the Shah Bano case and said the maintenance period can only be
made liable for the iddat period. The new law said that if a woman wasn’t able to provide for
herself, the magistrate had the power to direct the Wakf Board for providing the aggrieved woman
means of sustenance and for her dependent children too. Shah Bano’s lawyer Danial Latifi had
challenged the Act’s Constitutional validity. The apex court, though upholding the validity of the
new law, said the liability can’t be restricted to the period of iddat. One of the key points of
relevance in the verdict that set it apart from previous cases was the recognition of women’s claim
for treatment with equality and dignity, particularly in cases of marriage. Significantly, Shah Bano
later withdrew the maintenance claim she had filed.
October 05, 2020

Political Science

President’s rule: S. R Bommai Case

Article 355 states that it is the duty of the Centre to ensure that the government of every state
is carried on in accordance with the provisions of the Constitution. It is to perform this duty,
the Centre takes over the government of a state under Article 356 in case of failure of
constitutional machinery in state.

Ground of imposition: on two grounds - one mentioned in Article 356 and another in Article
365:

Article 356 – If the President is satisfied that a situation has arisen in which the government of a
state cannot be carried on in accordance with the provisions of the constitution. Here he can act
either on a report of the governor of the state or otherwise* too (i. e, even without the governor’s
report).

Article 365 – whenever a state fails to comply with or to give effect to any direction from the
Centre.

Proclamation of President’s Rule under Article 356 of the Constitution stands for six months. This
timeframe can be extended up to three years, in phases. President's Rule can be revoked at any
time by the President and this does not require Parliament's approval.

According to the 44th Amendment Act of 1978, President's rule can only be extended over a year
every 6 months under the following conditions:

— The Election Commission certifies that elections cannot be conducted in the state concerned.

— There is already a national emergency throughout India or in the whole or any part of the state.
In case President’s Rule has been evoked because of a breakdown of coalition or a hung Assembly,
it is not the end of the road for any political party. With the Assembly in suspended animation,
stakeholders can approach the Governor any time with the required proof of support to prove
majority on the floor of the House. The EC notification on the election is treated as the new
Assembly having been constituted.

President’s rule: Irritant in Centre – State relations: Till 2002 on 102 occasions proclamations
were made under article 356 to impose president’s rule. Allegedly the president’s rule has been
used for political purposed in due to the discontents of federalism in India and the turmoil
of a diverse polity. For example, President invoked the 'otherwise'* clause in article 356(1) while
imposing president's rule: First time in 1977 when the president's rule was imposed in 9 states,
viz., Uttar Pradesh, Bihar, Rajasthan, Madhya Pradesh, Punjab, Orissa, West Bengal, Haryana and
Himachal Pradesh by the union government headed by the Janata Party. Second time was in 1980
when the president's rule was imposed in 9 states by the Union Government headed by the
Congress (I) Party, viz., Uttar Pradesh, Bihar, Rajasthan, Madhya Pradesh, Punjab, Orissa, Tamil
Nadu, Gujarat and Maharashtra.2 Third time was in 1991, when the president's rule was imposed
in Tamil Nadu by the Union Government headed by the Janata Dal (Socialist) Party under the
hegemony of Sri Chandrasekhar.

The imbalance in centre – state relations was felt by the central government due to the
centralizing tendencies of the executive under Mrts Gandhi which rendered states almost
powerless visa vies the centre.

Sarkaria Commission was set up in 1983 by the central government of India. The Sarkaria
Commission's charter was to examine the central-state relationship on various portfolios and
suggest changes within the framework of Constitution of India. The Commission was named as
such it was headed by Justice Ranjit Singh Sarkaria (Chairman of the commission), a retired judge
of the Supreme Court of India. The other members of the committee were Shri B. Sivaraman
(Cabinet Secretary), Dr S.R. Sen (former Executive Director of IBRD) and Rama Subramaniam
(Member Secretary). The commission recommended many steps to improve centre – state relations
in legislative, executive and financial spheres. On the president’s rule or the use of article 356 it
recommended that:
 • This article should be used very sparingly and as a matter of last resort. It can be invoked
only in the event of political crisis, internal subversion, physical breakdown, and non-
compliance with the constitutional directives of the centre.
• Before that, a warning should be issued to the errant state in specific terms and an alternate
course of action must be explored before invoking it.
• The material fact and grounds on the basis of which this article is invoked should be made
an integral part of the Proclamation; it will ensure effective Parliamentary control over the
invocation of President Rule.
• The Governor’s report must be a ‘speaking document’ and it should be given wide
publicity.
• So the Sarkaria Commission was an important attempt to streamline the centre-state
relations.
• It has become a reference point for any discussion on centre-state relations and it has been
frequently referred to even by the judiciary.
• On its recommendation, the Inter-State council was established in 1990 and it has
considered its recommendations.
• However, many of its important recommendations have not been implemented and tensions
in federal relations are a recurrent feature.

S. R. Bommai Case: SR Bommai was the Karnataka Chief Minister between August 1988 and
April 1989. He led a Janata Dal government, which was dismissed on 21st April 1989 when
President’s Rule (Article 356) was imposed in Karnataka. Until that time, imposing Article 356 on
states ruled by the opposition parties (to the one at the centre) was a common practice. In this
particular case, the Bommai-led government was dismissed on the grounds that he had lost his
majority because of several defections (that were politically motivated and master-minded). Even
though Bommai presented the then Governor P Venkatasubbaiah with a copy of the resolution
passed by the Janata Dal Legislature Party, he was denied an opportunity to prove his majority in
the house. Bommai first went to the Karnataka High Court against the Governor’s decision.
However, his writ petition was dismissed by the High Court. Then, Bommai moved the Supreme
Court of India.
In March 1994, a nine-judge constitutional bench of the SC gave the landmark judgement, which
would go on to become one of the most widely cited one with respect to Article 356 and its arbitrary
usage by the Central government.

The SR Bommai case raised questions on the proclamation of President’s rule in a state. The
Supreme Court had to discuss the grounds and the extent of the imposition of President’s rule in a
State. Questions were also raised whether the imposition of President’s rule is challengable.

This verdict put restrictions on the centre for imposing the President’s Rule on states.

• The power of the President to dismiss a government of a state is not absolute. It said that
the President should use this power only after his proclamation (of imposing President’s
Rule) has been approved by both Houses of the Parliament. Until then, the President can
only suspend the Legislative Assembly.
• In case the proclamation does not get the approval of both the Houses, it lapses at the end
of a period of two months, and the dismissed government is revived.
• The suspended Legislative Assembly also gets reactivated.
• The SC also stated that the proclamation of the imposition of Article 356 is subject to
judicial review.

This case ended the practice of arbitrarily dismissing the state government by the central
government. Earlier, political parties used this mechanism given in the Constitution to get political
mileage and settle scores with opposition parties. The Bommai verdict restricted this practice to a
large extent.

• The verdict also stated in no uncertain terms that the test of majority of the government
should be done in the floor of the Assembly and is not subject to the Governor’s opinion.
In this case, there was no question of a constitutional amendment but even so, the concept
of basic doctrine was applied.
• The Supreme Court held that policies of a state government directed against an element of
the basic structure of the Constitution would be a valid ground for the exercise of the central
power under Article 356. This was with reference to the dismissal of the BJP governments
in the north Indians states after the 1992 Babri Mosque demolition. The court held that
secularism is the basic structure of the Indian constitution. Therefore, the court upheld the
dismissal of the BJP governments in UP, MP and Rajasthan in 1993.

The center – state relations have confronted the delicate balance of the constitution between
the federal and unitary principles. In reality the constitution of India has vested more
powers in center’s hands. Therefore, whenever there is a strong ideologically driven
executive at the center and the parties other than the one which at the centre control state
legislatures the centre – state relations come under strain.
October 07, 2020

Political Science

Recommendations of the Constitution Review Commission

Need for the review of the constitution (?): During the emergency Indira Gandhi had (whatever
may have been her motivation), in an interview approvingly quoted Thomas Jefferson's well
known dictum about the desirability of reviewing a country's Constitution every 20 years.

▪ Several Congress-ruled states had gone a step further and, in a chorus, demanded the setting
up of a constituent assembly for wholesale review of the Constitution.
▪ However, the same Congress Party was now (During NDA’s initiative to review the
constitution) a strident opponent of any review of the Constitution, though in its own
regime it did not fight shy of undertaking more than 70 amendments of the Constitution.
▪ Other political parties, now in the opposition, too had not been opposed to any desirable
amendments of the Constitution on ideological grounds and had, while in power, at the
centre, taken steps to amend the Constitution on several more occasions.
▪ At one stage, the socialist party too had advocated setting up of a fresh constituent
assembly.
▪ Against this back- ground, if there is a political will, it should not be difficult to look at the
larger issues with an open mind and in a spirit of give and take and make the Constitution
a living document reflecting the hopes, aspirations and demands of a rapidly changing
society.

The National Commission to Review the Working of the Constitution (NCRWC) submitted its
report on March 31, 2002. Of the total recommendations (248) made by the NCRWC, 58 involved
amendment of the Constitution, 86 pertained to legislative measures and the rest required executive
action. The report also contained four notes of dissent.
The NCRWC report was received by most sections of society, including the political parties, with
very little enthusiasm. It was meted out the treatment of neglect, even by the political parties which
were the constituents of the National Democratic Alliance (NDA). There were not even
rudimentary signs of any debate and discussion on the relevant issues which had such a large
significance for national life.

Important Recommendations:

1. Amendment of Article 19 (1) to read, "All citizens shall have the right to freedom of
speech and expression which shall include the freedom of the press and other media, the
freedom to hold opinions and to seek, receive and impart information and ideas";
2. A pre requisite to Article 19 (2) should be added as under: "Provided that, in matters of
contempt, it shall be open to the court to permit a defense of justification by truth on
satisfaction as to the bonafides of the plea and it being in public interest";
3. Article 21 be amended to say, "No one shall be subjected to torture or to cruel, inhuman
or degrading treatment or punishment" and "every person who has been illegally deprived
of his right to life or liberty shall have an enforceable right to compensation";
4. A new Article 21 B be inserted, "Every person has a right to respect for his private and
family life, his home and his correspondence". This is to be subject to reasonable
restrictions by the state in the interest of security of the state, public safety or for the
prevention of disorder or crime.
5. A new Article 30 A should be added regarding access to courts and tribunals so as to
provide reasonably speedy and effective justice.
6. A new Article 47 A, to read, "The state shall endeavor to secure control of population by
means of education and implementation of small family norms".
Several such amendments on which there should have no difference of political agendas.
They could have been implemented by the NDA or the subsequent governments but the
general political apathy towards the commission resulted in the neglect towards its
recommendations. Reason: the open public discourse was not created around the review
commission's formation, therefore, the opposition and the public memory the issue
remained as a peripheral topic.
More divergent opinions could have emerged on the following recommendations:
These include matters having a large bearing on cleanliness in national life and
preservation of the faith of the common man in democracy. A large cross-section of
people, intelligentsia, social thinkers, non-government organisations (NGOs) and others
would have preferred adoption of these long overdue changes. But the main question was
how to bridge the increasing divide between the political parties and the society at large.
Some of the recommendations of NCRWC in this category included among others:
• The Constitution should provide for appointment of Lok Pal but the prime minister
should be kept out of the purview of the Lok Pal. Article 105 (2) be amended to
clarify that the immunity enjoyed by members of parliament does not cover corrupt
acts committed by them in connection with the duties in the House or otherwise.
• Article 194 (2) may also be similarly amended in relation to the members of state
legislature; every holder of a political position must declare his assets and liabilities
along with those of his close relations; each legislator should declare his assets and
liabilities each year and a final statement at the end of his term.
• The council of ministers to comprise only 10 per cent of the popular House.
• Other political offices not to exceed 2 per cent of the total strength of the lower
House.
• Appointment of a parliamentary ombudsman, supplemented by a code of ethics.
• Minimum period for which the state legislatures and parliament should transact
business each year; enactment of a fiscal responsibility act at the centre and in the
states.
• Privileges of legislators should be defined and delimited; the members of
parliament local areas development scheme (MPLADS) being inconsistent with
the spirit of the Constitution in many ways should be discontinued immediately;
• Constitution should contain a provision obliging the states to establish the
institution of Lok Ayukta; enactment of a public interest disclosures act, popularly
known as whistle-blower act.
• Enactment of a law for forfeiture of 'benami' property of corrupt public servants as
well as non- public servants; enactment of a law for confiscation of illegally
acquired assets; creation of a fiscal domain for panchayats and municipalities;
transfer of full administrative and functional control over staff to local bodies by
 enacting suitable legislation by the states; Comptroller and Auditor General be
empowered to conduct the audit or to lay down the accounting standards for
panchayats; and so on.

The next major set of recommendations pertained to electoral reforms. While on some of these,
there could be a divergence of views and serious reservations, there were a number of other
recommendations which are unexceptionable. Some of these include:

• Precautions and procedures for preparation of electoral rolls, introduction of electronic

voting machines in all constituencies; ceiling for election expenses to be fixed by election
commission from time to time, all expenses to be included therein, statutory audit of
expenses, cross-checking by income tax, etc;
• Every candidate to contest only from one constituency; election code to come into effect
as soon as elections are announced, and the code to be given sanctity of law and its violation
should attract penal action.
• Vote of a defector to topple the government be treated as invalid, power to decide matters
pertaining to defection be with the election commission, defectors should lose their
membership and must resign and contest fresh elections, a defector to be debarred from
holding public office for the duration of his remaining term or until next election,
whichever is earlier;
• Enactment of a political parties (registration and regulation) act; enactment of legislation
for regulation of contributions to political parties; and domiciliary requirement to be
essential in the case of membership of Rajya Sabha. The commission had also made
important recommendations to deal with the menace of criminalization of politics.
• Its recommendations in this behalf are that the Representation of the People Act (RPA)
should be amended to disqualify anyone charged with an offence punishable with
imprisonment for a maximum term of five years or more, on the expiry of a period of one
year from the date the charges were framed.
• The disqualification to remain in force till the conclusion of the trial. In case of conviction,
the bar should apply during the period he is undergoing sentence and for a period of six
years after completion of the sentence.
 • There should be a permanent bar in case of conviction for any heinous crime like murder,
rape, smuggling, decoity, etc. In case of corrupt practices, the position prevailing before
the 1975 amendment of RPA should be relevant.

Commission’s stand on judiciary: One would have expected a high level commission such as
NCRWC to go in-depth into the complex issues in the field of judicial administration in the
country, particularly since a majority of its members were judges of the superior courts or jurists.
The report of NCRWC, however, was not sufficient on this score.

• The NCRWC had not recommended review and amendment of the Contempt of Court Act.
This was particularly striking in view of the fact that the commission had recommended
that the privileges of legislatures and parliament be defined and delimited!
• Parliamentarians are averse to codifying or restricting their own privileges because the
courts enjoy unlimited powers to punish for contempt of court.
• The only two recommendations of the commission on this subject were to restrict the power
of the courts to punish for con- tempt to the Supreme Court and the high courts and not to
extend it to other co-tribunals or authority by inserting a proviso in Article 129;
• To add a proviso to Article 19 (2) to the effect that, "in matters of contempt, it shall be
open to the court to permit a defense of justification by truth on satisfaction as to the
bonafides of the plea and it being in public interest".
• The question of setting up of a national judicial commission (NJC) had been under
discussion for several years but did still not see any consensus emerging on the subject.
• The NCRWC had recommended the setting of a NJC but its composition - chief justice of
India (CJI) as chairman, two senior most judges of the Supreme Court, union law minister
and one eminent person to be nominated by the president in consultation with the CJI –
was too heavily weighted in favour of those occupying high judicial positions.
• The NCRWC had recommended that a committee of the proposed NJC be constituted to
examine complaints of deviant behaviour of judges and that, after the report of such a
committee, recourse be taken to the provisions of the Judges (Inquiry) Act, 1968. However,
we are still a long way off from any consensus on the subject.
• With the pendency of crores cases in courts, judicial delays, time-consuming court
procedures and the exorbitant cost of litigation had become subjects of great concern. Any
review of the working of the Constitution couldn’t be said to be complete without their
thorough analysis.
• NCRWC failed to make any significant and wide-ranging recommendations to usher in
judicial reforms and curtail long and frustrating delays in court litigation.

The review commission recommendations did not receive the due attention of the subsequent
governments. Some of its subjects were later on under different circumstance saw the light of
the day such as lok ayuktas and RTI etc but over and all the NCRWC recommendations still
remain shelved.
October 09, 2020

Political Science

The Jain Hawala case, NOTA Judgment – 2013, Illegalizing convicted MPs and
MLAs (Lily Thomas v Union of India)

As the politics succumbed to unethical practices the Supreme Court of India through a series of
judgments maintained the high standards of democratic justice in the country. A few of such cases
include the long running Jain Hawala case which shook the politics in the 1990s when major
leaders from the most prominent political parties were exposed, the famous NOTA judgment of
2013 and the Lily Thomas v Union of India case.

Jain Hawala Case: In 1991 Hawala Scam is said to be the biggest scam in the independent India.
In 1991, an arrest linked to militants in Kashmir led to a raid on hawala brokers, revealing evidence
of large-scale payments to national politicians. It involved 115 of the top politicians and the
bureaucrats. Around 650 million rupees were allegedly received by those accused in the form of
kickbacks for getting things done. The scam also indicated (however without proof) a link between
that money and the terrorist activities in Kashmir. Leaders such a S. R. Bomai, L. K. Advani,
Bhajan Lal, N. D. Tiwari, V. C. Sukla, Sharad Yadav, Balram Jakhar etc were accused. The scandal
surfaced following sporadic CBI raids on hawala operators in Delhi in 1991, with the discovery of
incriminating documents - two diaries and two files - from Bhilai-based industrialist S.K. Jain's
employee J.K. Jain's residence. Even at that preliminary stage, investigators concluded-by
studying entries contained in the diaries - that there had been payoffs of up to Rs 65 crore to 115
persons.

The supreme court proceeding did not relate to the hawala case per se, but rather to the suspicious
transfer of the CBI Director Joginder Singh and the rampant misuse of political power to curb the
investigations of the CBI and Revenue department. In its judgment, delivered on 18 December
1997, the court, through judges S.P.Bharucha and S.C.Sen gave a ruling consisting of a 26 points
list of pronouncements, the most important of which made it impossible for politicians in the
government to remove the Director of the CBI for 2 years, thus ensuring that the CBI and its
officers would have freedom to carry out their work without political interference

How the Supreme Court Mounted Pressure on the CBI: A Timeline (source : India Today report)

October 10, 1993: Supreme Court admits a public-interest petition filed by Rajinder Puri and
Vineet Narain asking it to direct the CBI to expedite probe into the Jain hawala case.

December 15, 1993: The Court directs the CBI and the Directorate of Enforcement (DOE) to reply.

November 29, 1994: The Court directs the CBI to hasten investigations and file progress reports.

December 5, 1994: The Supreme Court admonishes CBI : "If we are meant only to punish people
for petty offences and let those who spend lakhs of rupees on birthday parties go scot free, then
we'd better close down the courts. It appears that the Jains are too hot to handle and the only way
to keep them quiet is to let them do what they want. It is difficult to believe that a thing so simple,
which even a thanedar from a police station could solve, is beyond the CBI's calibre." The CBI
director is directed to attend hearings.

March 26, 1995: The CBI is criticised by the Court for letting N.K. Jain travel abroad. The Court
says: "Why didn't you take prompt action? What prevented the CBI from going to a higher court
in appeal against a lower court's order?"

April 18, 1995: The Court directs all agencies concerned to cooperate with the CBI and the DOE
and tells the CBI not to seek concurrence from anyone.

September 5, 1995: Supreme Court praises CBI for raids on Arif Mohammed Khan, Lalit Suri and
Pradeep Singh and says: "You are going in the right direction. Do not be afraid of criticism or
attack. But your investigation should also appear to be conducted without colour or bias."

November 30, 1995: Reacting to the CBI's filing of charge-sheets against 13 public-sector
bureaucrats on November 28, the Court says: "There are many others who are involved in this
case. Catch the big fish."
January 16, 1996: Reacting to the CBI's proposal for seeking government sanction to charge-sheet
three cabinet ministers, the Court remarks: "If there is any delay from any quarter in procuring
permission, we shall intervene.”

Supreme Court judgements during the time of coalition politics have changed the face of Indian
polity and law. Public reliance on the SC for justice and the crisis of polity during the coalition era
created a circumstantial imbalance in the executive and judiciary relations in the public perception.

Lily Thomas MLA Disqualification Case: This case pertains to the disqualification of Members
of Parliament or the Legislature as the case may be and was pronounced by a two-judge bench
comprised of Justices A.K. Patnaik and S.J. Mukhopadhaya in the year 2013. Two petitions were
filed before the Supreme Court, one by Advocate Lily Thomas and the second by Lok Prahari,
through its General Secretary S.N. Shukla, both of which pertained to the question of whether
MLAs or MPs should be disqualified after they are convicted in a criminal case.

The criminalization of politics is an issue that affects the very core of a democratic setup as it
pertains to the fairness of the election process. The number of criminals that get elected in the state
and the central legislature has increased manifold since India’s independence.

According to the Association for Democratic Reforms, in the year 2004, 24% of the MPs had
criminal cases pending against them, the number was 30% in 2009, it shot up to 34% in 2014,
while the number stands at 43% in the Parliament that was elected in the year 2019.

These figures picture an alarming situation with regard to where we are headed if things continue
to go in the same direction. The Parliament over the years has failed to enact a law to set rules
which would govern the penalties if legislators have criminal records or convictions. This,
however, should not be a surprise because of the vested interests of people sitting in the Parliament.

For now, the Representation of the People Act, 1951 is the legislation that governs the
disqualification of elected legislators.
The RP Act under Sections 8(1), 8(2), 8(3) provides that if a legislator is convicted of certain
offences which are provided in these sections, he/she shall stand disqualified from being a
lawmaker.

However, sub-section (4) of Section 8 of the Act provides that notwithstanding anything in sub-
section (1), sub-section (2) or sub-section (3) in Section 8 of the Act, a disqualification under either
subsection shall not, in the case of a person who on the date of the conviction is an MP or an MLA,
take effect until 3 months have elapsed from that date or, if within that period an appeal or
application for revision is brought in respect of the conviction or the sentence, until that appeal or
application is disposed of by the court.

It is this subsection i.e., 8(4) that stands challenged by way of the instant writ petitions.

Therefore, the Court had to determine whether Section 8(4) is ultra vires to constitutional
provisions.

Petitioners’ arguments: The petitioners through their counsel Senior Advocate Fali. S. Nariman
argued that the opening words of clause (1) of Articles 191 & 102 of the Indian Constitution make
it evident that the same disqualifications are provided for an individual being chosen as a member
of either House of Parliament, or the State Assembly or Legislative Council of the State and for
an individual being a member of either House of Parliament or of the Legislative Assembly or
Legislative Council of a State and so, the disqualifications for an individual to be elected as a
member of either House of the Parliament or of the Legislative Council or Legislative Assembly
of the State and for an individual to continue as a member of either House of Parliament or of the
Legislative Assembly or Legislative Council of the State can’t be different.

In support of their arguments, the petitioners cited a constitutional bench judgement of the
Supreme Court in Election Commission of India v Saka Venkat Rao whereby the Court had held
that the disqualifications were the same for both standing in an election and continuing as a
member.

The petitioners thus prayed that Section 8(4) be struck down as ultra vires because the Parliament
lacks the legislative power to enact such a provision.
State’s arguments: The state represented by the learned Assistant Solicitor General (ASG) Mr
Siddharth Luthra contended that the validity of Section 8(4) has already been upheld by the
constitutional bench of the apex court in K. Prabhakaran v P. Jayarajan. The ASG also argued that
the frequency of acquittals in the higher courts is very high and as such, it is for this reason that
Parliament had provided for Section 8(4).

MLA Disqualification Case Judgment: The apex court in its judgement held that Section 8(4) is
indeed ultra vires to the constitutional provisions.

It also accepted the contention of the petitioners that the grounds for disqualification of a candidate
and a member are the same. Thus, Parliament has exceeded its powers by bringing in Section 8(4).

The Court further observed that the sitting members who have already benefitted from Section
8(4) would not be affected by this judgment. However, if any sitting member of Parliament or state
legislature is convicted by virtue of subsections 1, 2 and 3 of Section 8, he/she shall stand
disqualified by virtue of this judgement.

The Supreme Court, in February 2020, passed another judgement whereby all candidates both at
the state and central level would have to publish their criminal records if they want to stand in
elections. This order was passed in the case of Rambabu Singh Thakur v Sunil Arora & others.
While such rulings from the apex court are an earnest attempt to cleanse politics, this deep-rooted
evil continues to ail the Indian democratic setup. Criminalisation, along with money power and
muscle power, has turned the Indian electoral system into a cesspool. The attempt at cleansing
politics from criminalisation is incomplete without strong legislation in this sphere along with
giving the Election Commission more autonomy to deal with this issue.

NOTA Judgment of the Supreme Court: the Supreme Court in a landmark judgment on
September 27, 2013 allowed voters to cast negative votes and reject all candidates as unworthy of
being elected. The voter could press the NOTA button on the EVM, it said, directing the Election
Commission to provide this option on EVMs and ballot papers in a phased manner and also asked
the Centre to give its support to make this happen.
The court said that the right to vote and the right to say “none of the above” both constitute a basic
right of the voters. “When a large number of voters will press NOTA button, it will force political
parties to choose better candidates. Negative voting would lead to systemic change in polls,” it
said, observing that the implementation of the option was akin to the “abstain” option given to
MPs and MLAs during voting in the Parliament and state assemblies. If the right to vote is a
statutory right, then the right to reject candidates is a fundamental right to speech and expression
under the Constitution, it held.

“For democracy to survive, it is essential that the best available men should be chosen...for proper
governance of the country. This can be best achieved through men of high moral and ethical values
who win the elections on a positive vote,” said a bench comprising Chief Justice of India (CJI) P
Sathasivam and justices Ranjana Desai and Ranjan Gogoi.

In the written judgment, the CJI said: “Giving right to a voter not to vote for any candidate while
protecting his right of secrecy is extremely important in a democracy.”

In a fifty-page judgment, the bench stated that negative voting would foster purity and vibrancy of
elections and ensure wide participation as people who are unsatisfied with the candidates in the
fray would also turn up to express their opinion, rejecting unscrupulous elements and
impersonators.

The right to reject candidates in elections is a part of the fundamental right to freedom of speech
and expression granted by the Constitution to Indian citizens; democracy is all about choice, and
the significance of the right of citizens to cast negative voting is massive, it said. It said that the
secrecy of votes cast under the NOTA option must be maintained by the Election Commission.
However, the judgment did not delve into a situation where the votes cast under this option
outnumber the votes received by the candidates. The path- breaking verdict was part of a series of
judgments passed by the apex court to instate electoral reforms, meant to further empower the
voters in exercising their franchise and help cleanse the political system of the country.
For the first time, the principle of the right to reject was recognized. A quality change in the
boisterous Indian elections was brought in. The ballot paper now has the option of “none of the
above” or in general parlance NOTA. It was first introduced in the general elections of 2014 and
subsequently in the assembly elections. The idea was to strengthen the democracy further.
October 12

Political Science

Modi Era: Attempts to Reform the Judiciary and the Judicial Resistance

“Today when we are talking about maintaining a balance between the three arms of the
Constitution, we must remember that this balance is the backbone of the Constitution. Legislature,
executive and judiciary should operate within their boundaries.”

- Prime Minister Narendra D. Modi, National Law Day, 2017

The Supreme Court of India grew considerably in power and stature during the two decades since
1990, earning the epithet “the most powerful court in the world”. During this period, the Supreme
Court conferred on itself the primacy in judicial appointments through the invented system of
‘collegium’, and substantially expanded its judicial review powers to intervene in several issues
which were traditionally reserved for the executive. The weapon of “continuing mandamus” was
sharpened by the Court, using which it passed orders and formulated guidelines on issues of social
welfare, environment protection, electoral reforms etc.

Continuing Mandamus: is used by courts for continuous monitoring of the executive performance
with respect to the court order.

The growth in power of the apex court was in tune with the corresponding decline in the
assertiveness of central executive, which was mostly stitched together by hotchpotch alliances.
The apex court emerged as the last bastion of hope in the eyes of public, who were disillusioned
with political executive. The judiciary was seen as playing an activist role to compensate the
inaction of the executive, which was perceived to be weak, compromised and corrupt.

But the 2014 elections changed the scenario. For the first time in past 30 years, the electorate
returned a mandate with absolute majority. And for the first time after donning the activist-
reformist role, the judiciary was encountering a government, which was strong on its feet in terms
of numbers.
Judicial appointments: Post-2014, there has been a considerable shift in the power dynamics over
judicial appointments. Immediately after coming to power, the NDA government sought to
establish who will get to call the final shots over judicial appointments.

Gopal Subramanium Case: The central government split up collegium recommendations to

reject the proposal for elevation of senior advocate Gopal Subramanium. The then CJI R.M. Lodha
responded strongly to this act of the Centre, and wrote to the law minister that the government
should not adopt such “unilateral segregation” in the future.However, Gopal Subramanium’s
abrupt withdrawal of consent avoided a possible escalation of the confrontation between the two.
He said that he was targeted for his role as amicus curiae in the Sohrabuddin fake encounter case.

National Judicial Appointments Commission'(NJAC): Refer to my previous notes for the

details.

The amendment had a very short life, as within 10 months, it was struck down by a constitution
bench of the Supreme Court by a 4:1 majority. Rather than constitutional wisdom, what is
discernible in the majority judgment is the anxiety of the judiciary to preserve its own primacy in
judicial appointments. The judgment acknowledged that the collegium system needed reforms,
and said that a new Memorandum of Procedure (MoP) for judges’ appointment was to be
formulated.

Ever since the striking down of Constitutional amendment introducing NJAC, things have not been
very smooth between the Centre and the Collegium. The then Union minister Arun Jaitley lashed
out at the NJAC judgment terming it “tyranny of the unelected”. The major bone of contention
between the two wings was the finalization of MoP for appointment of judges.

Because of the stand-off between the government and the Collegium about MoP finalisation,
judicial appointments got delayed. The Centre dragged its feet on the Collegium recommendations
regarding judges’ appointments and transfers, leading to a spike in unfilled vacancies in high courts
across the country. Many high courts such as the ones in Calcutta and Karnataka are now
functioning with half the sanctioned strength, and lawyers have resorted to strike calling for filling
up of vacancies.
In 2016, the Centre’s delay in processing the Collegium recommendations caused much anguish
to the then CJI T.S. Thakur. While speaking at a public function in which PM Narendra Modi was
also attending, CJI Thakur made an emotional appeal to the Centre to act promptly on judicial
appointments and, in fact, broke down to tears during his speech. The stand of has brought the old
issues of constitutional separation of power into the lime light again.

To be continued…