Fundamental Rights and the Constitutional Amendments (1947-1977)--II

 

Prof. Makkhan Lal

 

 

 

The Constitution of India came in force on 26 January 1950. In the Constitution, Fundamental Rights (Part-III of the Constitution) of the citizens and the Independent Judiciary have been considered as most sacred and precious. The fundamental rights of a citizen clearly envisages that the rule of law, right to personal liberty, freedom from arbitrary arrest and detention, right to dissent which implies freedom of speech and expression of individual as well as press, and the right of aggrieved person to go to the court of law. In this article we shall have a look at the some of the amendments that had crucial bearing on the overall the functioning the constitutional provisions.

 

The Beginning:

 

One may be surprised to know thatwithin four months of the Constitution in place, on 12 May, 1950 Jawaharlal Nehru placed the draft of the first Constitutional Amendmentin the parliament and this was concerning Art.19 (Fundamental Right of the Part-III of the Constitution). Before we proceed further let us see what this article deals with:

 

Art.19. Protection of certain rights regarding the freedom of speech etc. –

(1) All Citizen shall have the right—

(a) to freedom of speech and expression;

 (b) to assemble peaceably and without arms;

(c) to form associations or unions;

(d) to move freely throughout the territory of India;

(e) to reside and settle in any part of the territory of India; and

 

(f) to acquire, hold and dispose of property (deleted by 44th Amendment w.e.f. 20.6.1979)

 

(g) to practice and profession, or to carry on any occupation, trade or business

 

 

It is this part of the Constitution which provides the dignity and power to the people to fight injustice and restricts the government from doing away with the self-respect and the liberty of the people. It has been the experience from around the world that governments have made efforts to take away precisely such constitutional provisions that provide dignity, self-respect, freedom of various kinds to the peopleand make the people and the country into party’s slaves and the country itself into a despotic state.

 

Because of his functioning style Jawaharlal Nehru and so also the provincial governments came in for very severe criticism by the opposition parties as well as by the press. Nehru wanted to amend the Article.19 to curve the freedom of speech to deal with the criticism. Nehru was also very disturbed because of adverse decisions by High Courts and Supreme Courts in the cases of zamindari abolition, nationalization of road-transport etc. Many party leaders, especially Sardar Patel (to whom he already had written letters and was unhappy that Patel did nothing to suppress the criticism), intervened and said to Nehru not to resort to such an amendment as it is too early for any such action. Further the current parliament is only the provisional one which had made the Constitution and perhaps does not have the power to amend it. So we must wait for the new parliament to be constituted and let that parliament take up the amendment(s).  But after a few months, in February 1951 he constituted a Cabinet Committee to look into the matter of criticism in the press and by the opposition leaders and how to deal with it. The Committee was attended, besides Nehru, by such stalwarts as C. Rajagopalachari, Maulana Azad, Jagjivan Ram, K.M. Munshi, B.R. Ambedakar and others.1He invited suggestions from his colleagues. G.B. Pant, then Chief Minister of Uttar Pradesh wrote that freedom of speech is being “wantonly abused….venomous and filthy attacks are being made… against the centre and state governments…. maliciously and in an extremely vulgar and indecent manner.”2

 

To the government’s efforts to usher in various economic reforms in including land reforms setback came from various High Courts and Supreme Court decisions against many laws framed to meet that end. Unfortunately a few of the laws transcended the line of peoples Fundamental Rights. Many Congress leaders and the Chief Ministers of some of the States requested Nehru that “reasonable restrictions”3 must be imposed on any of the Art.19. Jawaharlal Nehru asked the Law Minister Dr. Bhimrao Ramji Ambedkar (though Nehru had written to him earlier on 19 October, 1950)to prepare a draft of the amendment of the Constitution in the light of Congress leaders’ suggestions.  Ambedkar warned that doing so would be against the letter and spirit of the Fundamental Right enshrined in the Constitution. But Nehru insisted and asked Ambedkar the same day that he should prepare the amendment draft bill to be placed before the parliament in the same session.

 

Once the draft bill was ready, it was sent to Dr. Rajendra Prasad, President of India, for his perusal. President raised serious objections to the draft bill. Citing his understanding of various High Courts and Supreme Court decisions, Prasad said that no occasion for amending the Fundamental Rights had arisen. Amendments should come only if it was found impossible to bring the impugned provisions of law in conformity with the Constitution.  Further, the President said that such an amendment should not be hurriedly pushed in. Enough time should be given for discussions and wider consultations on such a vital bill.4

 

Nehru ignored the advise of Dr. Rajendra Prasad and Sardar Patel was no more on scene to restrain him.  On 12 May 1951 he laid the Amendment Bill on the table of the parliament. Leaders like H.V. Kamath, Hriday Nath Kunjru, Syama Prasad Mukherjee and many others said in one voice that this is not an amendment but complete abrogation Art.19. Due to very strong opposition to the bill Nehru agreed to refer it to a Parliamentary Committee. After an extensive amendment in the bill it was passed as The Press (Objectionable) Act, rather than as an amendment toArt.19.

 

After the independence, as mentioned earlier, the Government of India and the State governments started implementation of agrarian reforms which entailed taking away large chunks of lands from landlords and giving ownership rights to the tenants without giving much compensation. This action of the government was challenged in various High Courts as the reforms directly violated the Fundamental rights granted under Articles 14, 19 and 31, especially the right to property (see 19(f) above). Bihar Land Reform Act, 1950 was the first enactment on agrarian reform that was challenged in Patna High Court.5The petition was allowed and the law regarding the land acquisition declared void. To overcome this problem and to shield it from future interference of the Courts with regards to such laws under the provisions of the Fundamental Rights, Art.31A and 31Band Schedule Nine were inserted in the Constitution.  Several other Articles were amended. This was the First Amendment which became effective on 16th June, 1951.

 

Subsequently, questions were raised whether under Art.368 parliament has power to amend any article under Fundamental Rights and the validity of newly inserted Art.31B was challenged as it abridged the rights conferred under Art.13.6 On various technical ground the petitions was disallowed and the amendments were held valid. In a way Supreme Court validated Government’s actions.

 

It would be important to quote here Art.13 of the Constitution as we shall find it appearing in the article again and again. The Art.13 says:

 

13. Laws inconsistent with or in derogation of the fundamental rights

(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void

 

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void

 

(3) In this article, unless the context otherwise requires –

 

(a)    law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law;

(b)   laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas

 

(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368 Right of Equality (Inserted in the Constitution through 24th Amendment Act.1971)

 

Article 13 is the key provision as it is due to this article the Fundamental Rights cannot be infringed upon by the government either by enacting a law or through administrative action and if the case is otherwise it makes them justiciable. 

 

However, the issue was soon back in the Supreme Court when through the 17th Amendment was passed and came in force on 20 June 1964 i.e. just about three week after the death of Jawaharlal Nehru. In this Art.31 was amended to curtail the Fundamental Rights and 46 bills were placed in the 9thSchedule to exclude the scrutiny by the courts. The bill mainly dealt with land reforms.

 

The 17th Amendment was challenged through a writ petition popularly known as Golak Nath v State of Punjab.7The case was heard by and 11 judges bench presided by the Chief Justice K. Subba Rao. The government counsel argued that under Art.368 Parliament has unlimited power to amend any part of the Constitution including even Part-III and take away whatever has been guaranteed under this Part.

 

The case was decided by a majority of 6:5. The majority decision overturned the earlier judgments given in the cases of Kameswar Prasad, Sankari Prasad, Sajjan Singh etc. The judgment invalidated also the amendment in Art.31. It was held by the majority judgment thataccording to Art.13(2),“The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.” Therefore, all constitutional amendments thus far which were in contravention or which had made an exception to Fundamental Rights were declared to be void. The Majority judgment laid down emphatically that under no circumstances any provision enshrined in the Fundamental rights can be amended. So a blanket ban on amending any provisions in Part-III of the Constitution. The judgment further said that amending powers of the parliament is not unlimited. In fact, it isvery limited.

 

Middle phase

 

In between the Golak Nath case and Keshavananda Bharati casethere are two important cases that need to be briefly discussed before we come to KeshavanandaBharaticase, the penultimate landmark in the history of Indian jurisprudence.

 

It is well known that in order to pursue her socialist policies Mrs. Gandhi took several populist measures in the realm of economy. In the name of having greater resources at the disposal of the Government she nationalized 14 private banks which had almost 85 percent of the total bank deposits. For this Government promulgated an ordinance effective from the midnight of 19 July, 1969, though an Act was passed within three day by the parliament to replace the ordinance.

 

A writ petition was filed21 July, 1969 by Mr. Rustom Cavasjee Cooper challenging the ordinance/Act. The case is also popularly known as the Bank Nationalization case.8In view of the gravity of the issue the petition was heard by a constitution bench of 11 judges.The importance of the case can be understood by the fact that form the petitioners side the advocates were  Nani A. Palakhiwala, Former Chief Justice of Bombay High Court and former Education and then Foreign Minister of Mrs. Gandhi’s Cabinet,  M.C. Chagla, A.J. Raja, N.N. Palkhiwala, and R.N. Bannerjee.  From the defence side advocates were such stalwarts as Attorney General Niren De, Solicitor General Jagdish Swaroop, former Attorney General M.C. Setalvad (popularly known as Mr. Law), former Attorney General C.K. Daphtary and R.H. Dhebar.

 

The petitioner challenged the validity of ordinance and argued of violation of Fundamental and Constitutional rights. Further, it was argued that the Constitution guarantees the right to compensation as per the Art.31(2), that is, the equivalent money to be paid for the property compulsorily acquired.

 

The case was decided by a majority of 10:1. Of the 11 judges bench only Justice A.N. Ray dissented. In its majority judgment the court held the Ordinance-Act to be valid i.e. within the legislative power of the governemnt. It, however, declared the ordinance void on merit. It did not denationalize the banks but increased the compensation of such banks.

 

Another case that needs to be discussed briefly here is the Abolition of Privy Purses (to the former rulers of erstwhile independent states). When India became a free nation it consisted of British ruled territories and 563 independent States (Maharajas, Rajas, Nawabs and Nizams). It was the persuasive and diplomatic skills of Sardar Patel and his right hand man V.P. Menon that all the rulers agreed to merge their independent states into India. Patel had promised not only the honour to them but even a meagre financial pension to keep them afloat. Patel got the entire arrangement incorporated into the Constitution as Art. 291 and 362 to guarantee the payment of Privy Purses and also to preserve the personal rights, privileges and the honours of the rulers. The Privy Purses amounts varied from Rs.43 lakh a year to the Nizam of Hyderabad to just Rs.192 a year to the ruler of Kaodiya. Of the 563 rulers 398 were getting less than 50,000 a year. The total burden to the exchequer was Rs.6 crore in 1947 which was progressively reduced and in 1970 it was barely Rs.4 crore. It would indeed have been over in a decade or so. Still what does Rs.4 crores mean for the unification of the country?

The All India Congress Committee passed a resolution on 25 June, 1967 to abolish the Privy Purses. The 24th Amendment bill was introduced in Lok Sabha in 1970 and passed but got defeated in Rajya Sabha. Having failed in Parliament Mrs. Gandhi got issued a Presidential Ordinance to derecognize all the erstwhile rulers. Madhav Rao Sindhia, who later joined Congress, filed a writ petition in Supreme Court.9

The case was heard by 11 judges bench presided Chief Justice M. Hidayatulla. The Judgment came on 15 December, 1971. Palkhiwala won the case for the petitioners by an overwhelming majority. Majority 9:2 held that government’s action abolishing Privy Purse was wrong. Only two judges – A.N. Ray and G.K. Mitter gave dissenting judgements.

 

Piqued by the judgment of Supreme Court the Congress government retaliated by affecting 24th Amendment in the Constitution altering the Art.13 of the Constitution. The details of Article.13 have been enumerated above.

 

Through 24th Amendment a clause (clause 4) was added to the Art-.13 of the Part III of the Constitution. The added clause read:

 

“Nothing in this article shall apply to any amendment of this Constitution made under article 368”.

 

With the addition of this one small sentence to the Constitution the government of the day got armed with unlimited powers to amend the Constitution to the extent of its destruction and take away the liberty and freedom of the citizens of India.

 

In this way the Supreme Court judgment in Golak Nath case was overruled. Once again Once again Nani Palkhiwala came forwardto save the citizens, and the Constitution. This entire effort is best known as Kesavananda Bharati v. Kerala Governmentcase in the Supreme Court of India.10     

 

Before we go further something needs to be said about this case. The Kesavananda Bharati case is considered as one of the greatest contribution to the constitutional jurisprudence. This case was heard by the largest bench(13 judges) of Supreme Court that has ever been constituted, took the longest time – five months of regular hearing (68 working days) – that any case has ever been heard in Supreme Court and the vastest material ever brought together in a single case formed the record. Nani Palkhiwala4 led the petitioners’ team. In view of 24th and 25th Amendments, overturning Golak Nath case, three points were urged in Kesavananda Bharati case:

 

1. Golaknath case was rightly decided and the Parliament should be held not to have the power to abridge any fundamental right, having regard to article 13 as it stood before the amendment. The 24th amendment that made article 13 subject to article 368 is invalid;

 

2. Whole of art. 31C (which was added in 25th amendment) abrogate for certain purpose the fundamental rights in articles 14, 19 and 31 of the constitution is invalid;

 

3. In any event Parliament in exercise of its amending power cannot alter or destroy the basic structure or the framework of the constitution so as to make the constitution loose its identity and the later part of the article 31C which excludes judicial scrutiny is invalid.11

 

The above three points in simple terms dealt with:

(a) fundamental rights of the citizens;

(b) the basic structure of the Constitution; and

(c) the role of judiciary in the event of (a) and (b) being destroyed by the Parliament.

 

In the monumental judgment, the Supreme Court ruled that the Parliament does not have the power to destroy the basic structure of the Constitution, and in the event of any amendment judicial scrutiny can be done, if required. The judgement came seven vs. six.

 

The impact of Kesavananda Bharati’s case can be understood by the facts that not only 39thand, 41st and 42nd Amendments were held void but also the judgment in Mrs. Gandhi’s case (Raj Narain vs. Mrs. Indira Gandhi election petition) was on the basis of this judgement.

 

In two and a-half years i.e. since Kesavananda Bharati’s case was decided no less than 58 Acts were put in the Ninth Schedule with a view to exclude scrutiny by the court with reference to Fundamental Rights.

 

 

During the emergency the government made an oral request to the Chief Justice of India in to reviewthe judgment in Kesavananda Bharati’s case because it was this judgment that the government of the day was finding difficult to reconcile with. Mr. Palkhiwala filed a seven pages proposition in opposition to the Government’s plea.12 Censorship in force would not allow this proposition to be published in any Newspaper. The hearing began On 10November 1975. Palkhiwala raised the objection on the constitution of bench itself. He argued that in the last two and a-half years nothing has happened which could necessitate the review. This is totally inappropriate time to review the case as in the country there is an atmosphere of fear and all the opposition leaders are in jail. Further it would be inappropriate to review a judgment of 13 judges’ bench by another 13 judges’ bench. This is going to set bad precedent and how can we stop another review of this bench’s judgment by another 13 judges’ bench in future? After two days of hearing on 12 November 1975 when the bench assembled at 10 a.m. the Chief Justice, Ajit Nath Ray,tersely said in loud voice just two words “Bench Dissolved”.

 

It is amazing that this case is not found referred to in any law books, case files and so on. Not even in AIR and SCC.

 

The nation owes it to Nani Palkhiwala and his colleagues that design of the then government did not succeed and the 13 judges bench constituted to hear the Government’s appeal to overturn the judgment in Keshavananda Bharati case was dissolved after hearing the arguments extending over two days and attempts of the government of the day to confer upon itself an unlimited power of amending the constitution and escaping the judicial scrutiny happily failed.   

 

References:

1.      Granville Austin, 1999, Working A Democratic Constitution, p. 42. Austin quotes Ministry of Law File No.F/34/51-C. Present author relies on Austin’s testimony.  It may be mentioned here that Austin’s book has been considered so authentic that it has been quoted in several Supreme Court judgments.

 

2.      G.B. Pant’s Letter of 5th march 1951, File 3 NAI. Also see in Granville Austin, 1999, Working A Democratic Constitution, p. 42.

3.      Granville Austin, 1999, Working A Democratic Constitution, p. 43-44.

4.      Granvuille Austin, 1999, Working A Democratic Constitution, p. 45.

5.      Kameswar Singh Vs. State of Bihar, AIR, 1951.

6.      Sankari Prasad Vs. Union of India, AIR1951 SC 458; Sajjan Singh v. State of Rajasthan AIR 1965 SC 845.

7.      Golak Nath Vs. State of Punjab (1967) 2SCR 1976 SC 1643.

8.      Rustom Cavasjee Cooper Vs. Union of India, 1970 AIR 564, 1970 SCR (3) 530.

9.      Madhav Rao Sindhia Vs. Union of India, AIR 530, 1971 SCR (3) 9.

10.  (Kesavananda Bharati and Ors. Vs. State of Kerala, AIR1973 SC 1461; AIR 1973 4 SCC 225.

11.  N.A. Palkhiwala, 1997, We the People, p. 184. Also see Soli Sorabji and A.P. Datar, 2012, Nani Palkhiwala: The Courtroom Genius, pp. 103-41; Granvuille Austin, 1999, Working A Democratic Constitution, pp. 258-77; AIR 1973 SC1461: (1973) 4 SSC 225.

12.  N.A. Palkhiwala,1997, We the People, pp.186-87.

 

 

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