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Shankari Prasad v. Union of India (1951)

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Shankari Prasad v. Union of India (1951).

One of the several grounds of challenge was that the expression ‘law’ under
Article 13(2), which prohibits the Parliament from making any laws that abridge
or take away fundamental rights, included not only ordinary laws, but also
amendments. If the court accepted this contention it would have implied that Part
III of the Constitution (which deals with fundamental rights) could never be
amended by the Parliament so as to take away or abridge fundamental rights.
However, a five-judge bench of the Supreme Court unanimously rejected this
argument, asserting that the constitutional scheme provided for a clear
demarcation between ‘ordinary law, which is made in exercise of legislative
power, and constitutional law, which is made in exercise of constituent power’.
The net effect of the Supreme Court’s decision in Shankari Prasad was that
amendments to the Constitution could not be reviewed by courts.

In Sajjan Singh v. State of Rajasthan (1965)


the validity of the Constitution (Seventeenth Amendment) Act, 1964—which
inserted forty-four statutes into the Ninth Schedule— was challenged before
another five-judge bench of the Supreme Court.
Unlike in Shankari Prasad, the Parliament’s right to amend fundamental rights
was not questioned in Sajjan Singh. Instead, the case challenged the Parliament’s
failure to follow the procedure prescribed to amend the Constitution.
As was the case in Shankari Prasad, this petition was also dismissed unanimously
by the judges. However, while three of the five judges agreed that fundamental
rights could not be amended, Justices Mohammad Hidayatullah and Janardan
Raghunath Mudholkar expressed doubts about the correctness of the view
adopted in Shankari Prasad that an amendment to the Constitution was not ‘law’
under Article 13(2) of the Constitution and therefore could not be reviewed by
courts.
In fact, Justice Mudholkar also sowed the seeds for the basic structure doctrine
adopted in Kesavananda when he referred to the ‘intention of the Constituent
Assembly to give permanency to the basic features of the Constitution’19 and
said: ‘It is also a matter for consideration whether making a change in a basic
feature of the Constitution can be regarded merely as an amendment or would it
be, in effect, rewriting a part of the Constitution.
Could the Parliament amend fundamental rights? This issue was raised yet again
in I.C. Golak Nath v. State of Punjab (1967)
Issue- whether constitutional amendments could be passed to take away or
abridge fundamental rights and whether courts could review such amendments?
By a slender majority of 6:5, the Supreme Court ruled that the distinction between
constituent power and legislative power laid down in Shankari Prasad was
unfounded. In other words, constitutional amendments fell within the purview of
‘law’ under Article 13(2) and courts could review them if they violated the
fundamental rights of citizens.
The court found fundamental rights to be so sacrosanct and transcendental that
even a unanimous vote of all members of the Parliament would not be sufficient
to weaken or undermine them.
After effect of Golaknath case-
Parliament sought to reconcile the question of whether constitutional amendments were
‘law’ under Article 13 by passing the Constitution (Twenty-fourth Amendment) Act,
1971 and inserting Article 13(4) to expressly exclude constitutional amendments from
the ambit of Article 13. Through this amendment, the Parliament nullified the Supreme
Court’s decision in Golak Nath and ensured that amendments to the Constitution could
once again not be reviewed by courts even if they violated the fundamental rights of
citizens.

Keshavananda Bharti v State of Kerela (1973)


Petitioners challenged the constitutional validity of the Twenty-fourth, Twenty-fifth and
Twenty-ninth Amendments to the Constitution.
The most critical questions it dealt with were regarding how much amending power
was granted to the Parliament under Article 368 and whether that power was
unfettered, or could courts review amendments?
The petitioners in Kesavananda contended that the challenged amendments nullify
some of the most cardinal principles of our Constitution and the Parliament could not
draw authority from the Constitution to alter those very principles. On the other hand,
the government argued that there was no limit to the Parliament’s amending power
under Article 368—the Parliament could do anything short of repealing the Constitution
itself.

Held-
The views of the majority on each issue were as follows:
1. The Twenty-fourth Amendment to the Constitution was valid.
2. The Twenty-fifth Amendment to the Constitution was valid, except for the clause
ousting the courts’ jurisdiction.
3. The Twenty-ninth Amendment to the Constitution was valid.
4. The Golak Nath judgement, which had asserted that fundamental rights could not be
taken away or nullified by the Parliament, was overruled.
5. There were no implied limitations on the Parliament’s power to amend the
Constitution under Article 368.
Bottomline-
Although the Parliament had the power to amend any part of the Constitution, it
could not use this power to alter or destroy the ‘basic structure’—or framework—of
the Constitution.
All constitutional amendments enacted after the date on which the Kesavananda
judgement was delivered would have to pass the ‘basic-structure filter’ created by the
Supreme Court. The court empowered itself to judge the constitutionality of
amendments and revoke any that compromised the essential features of the
Constitution.
In delineating the basic structure of the Constitution, most judges relied upon the
Preamble, the fundamental rights and the directive principles of state policy. The only
certainty is that judges will be free to mould the ‘basic structure’ corpus to emasculate
any constitutional amendment that strikes at the ‘spirit of Indian democracy’.

Observations on the Supreme Court’s Judgement in Kesavananda


While the Supreme Court’s decision in Golak Nath was the first significant sign of
judicial supremacy in constitutional interpretation, Kesavananda firmly established that
the Supreme Court was unmatched in authority when it came to constitutional matters.
In Kesavananda, the Supreme Court made a strategic retreat over amendments to
fundamental rights, but significantly broadened the scope of its judicial review by
assuming the power to scrutinize all constitutional amendments— not just those
affecting fundamental rights. If the Parliament had an unfettered right to amend the
Constitution, the Supreme Court had a coextensive power to review and invalidate any
amendment that destroyed its basic structure.
By finding certain parts of the Constitution to be basic, indestructible and immune, even
from constitutional amendments, the Supreme Court held that certain parts of the
Constitution bound successive parliaments in India in perpetuity. Yet, the power to
determine the parts of the Constitution that qualify as ‘basic’ rests with the Supreme
Court, whose interpretation is fluid—the court being a perpetual and indissoluble
institution.
Minerva Mills v Union Of India (1980).
Within a couple of years of the Forty-second Amendment Act being passed, the owners
of a textile mill in Karnataka challenged the government’s nationalization of their
undertaking. The mill was nationalized under a statute placed in the Ninth Schedule by
the Parliament.
In Minerva Mills v. Union of India (Minerva Mills),70 the petitioners challenged the
validity of Section 55 of the Fortysecond Amendment Act, which amended Article 368
to transform the Parliament’s amending power over the Constitution (which was limited
by Kesavananda) into an unlimited one.
The Supreme Court unanimously struck down the amendments to Article 368, holding
that judicial review and a limited amending power were basic features of the
Constitution, which, according to the judgement in Kesavananda, could not be altered,
destroyed or nullified. The court’s logic was simple—if a donee was vested with limited
power, it could not be permitted to exercise that very power and convert it into an
unlimited one.
The Supreme Court’s judgement in Minerva Mills established that from the perspective
of the basic structure doctrine, a minimum standard of judicial review was inviolate.72
Minerva Mills was the last case in which the government made a concerted effort to
establish parliamentary supremacy over the Constitution.73 Having failed to scale back
on the basic structure doctrine, Minerva Mills marks the beginning of an era of judicial
supremacy in India, with the Supreme Court firmly entrenched as the final arbiter of
constitutional interpretation in India.

The Ninth Schedule and Judicial Review


Since the insertion of the Ninth Schedule into the Constitution in 1951, 284 statutes (or
segments) have come under its protection. Although it was initially meant to protect
land reform legislation. In many cases, statutes or provisions of statutes which were
struck down as violating fundamental rights could be protected by inserting them into
the Ninth Schedule through constitutional amendments.
I.R. Coelho v. State of Tamil Nadu (2007).
Issue-
Whether after the date of the Kesavananda decision, statutes could be made exempt
from the test of satisfying fundamental rights by their insertion into the Ninth Schedule.
The Supreme Court held that while laws could be added to the Ninth Schedule, once
Article 32 (the right to move the Supreme Court for the enforcement of fundamental
rights) was triggered, they would be subjected to the test of fundamental rights, which
were a part of the basic structure.
The court also asserted that if any legislation added to the Ninth Schedule sought to
nullify the principles of the ‘golden triangle’ of fundamental rights, it would be
declared void.
Therefore, all amendments seeking to insert legislation into the Ninth Schedule would
be subjected to a twofold test:
(1) Did they conform with the basic structure of the Constitution?
and
(2) Did they conform with the fundamental rights as forming a part of the basic structure
under Part III of the Constitution?

The court unanimously concluded that the government could not blatantly exploit the
Ninth Schedule as the ‘black hole’ of the Constitution. Apart from marking a significant
development in the Supreme Court’s basic structure jurisprudence, Coelho has
preserved the supremacy of the judiciary in constitutional adjudication.

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