“The Executive and Parliament have unmistakably been invested with the power of a giant. The hope is that they will not exercise that power like a giant. It has to be used, as Justices Hegde and Mukherjee have pointed out, in a manner that gives no room for legitimate complaint that it was exercised with an evil eye or an uneven hand. The ultimate guarantor of such fair application of power is, of course, the people.”
APRIL 26, 1973
Supreme Court’s judgement
I HE MAJORITY VERDICT OF THE 13-JUDGE BENCH OF THE SUPREME Court on Parliament’s power to amend any provision of the Constitution and on certain related matters will have a mixed reception among the people. Many will feel that the long struggle of great and selfless national leaders to secure for the people not only Independence but also a stable constitutional framework that would ensure for them the basic human rights which could not be withdrawn under any circumstances has after all become all but vain within less than three decades of such free existence. The architects of the Constitution most of whom were also the fighters in the battle for freedom from foreign rule had no doubts about what they wanted the Fundamental Rights enshrined in the Constitution to be. Their intentions were crystallised in what Jawaharlal Nehru himself told the Constituent Assembly. He spoke of those Rights as “something that you want to make permanent in the Constitution”, and in saying so, he was but in line with the considered opinion of the free world’s great jurists. “The very purpose of a Bill of Rights”, in the words of Justice Jackson of the U.S. Supreme Court, “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the Courts. One’s right to life, liberty and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to the vote; they depend on the outcome of no elections”. The point is further brought out in the statement of Justice Frankfurter that “man being what he is, cannot safely be trusted with complete immunity from outward responsibility in depriving others of their rights”. And that is the very rationale of a Bill of Rights which seeks to protect the people against “all kinds of fanatics and extremists, none of whom can be trusted with unlimited power over others”. Such protection can by no means lie in their forbearance, but has to be ensured by the limitations wisely imposed by the Constitution.
And yet it is such violations of basic human rights, which had to be prevented or thwarted through the specific enunciation of some clauses in our Constitution, that were sought to be given full approval by certain of the recent Constitution amendments. Those who argue that the hands of coming generations cannot be permanently fettered by any Constitutional restrictions forget that there are certain basic human values that no generation can deny, if they would still be deemed a part of a civilised society. It is in the light of those inviolable guidelines that the attempts to whittle down the basic rights and the majority verdict of the Supreme Court have to be viewed. The 13 Judges have been unanimous in reversing the earlier ruling in what is known as the Golaknath Case and upholding the power of Parliament to amend any part of the Constitution, thereby validating the 24th Amendment to the Constitution. But the more important feature is that nine of the Judges have done so with the vital reservation that this power to amend even the Fundamental Rights (conferred by Article 368) does not enable Parliament “to alter the basic structure or framework of the Constitution”. What this specific limitation imposed by the majority of the Judges means in practice, only time and further battles of writs before the courts can show. But it is still a blessing that the Supreme Court has safeguarded the right to go to it to plead for justice and protection, wherever the executive or Parliament undermines a basic right to such an extent that it amounts to an alteration of the basic structure of the Constitution. By resisting the pointed attempts to deny the jurisdiction of courts in such matters as the Government acquiring a citizen’s property in the public interest for an “amount” and making the whole essay non-justiciable, the majority verdict would seem to have minimised the tyrannical impact of the provision. In the words of Mr. Justice Hegde and Mr. Justice Mukherjee, “while it was no more open to the court to consider whether the amount fixed or to be determined was adequate, it was still open to the court to consider whether the amount in question had been arbitrarily determined or whether the same was an illusory return for the property taken”.
Thus in upholding the validity of both the 24th and 25th Amendments, some limitations at least against the arbitrary exercise of the power to amend the Constitution or to enact confiscatory legislation have been imposed and the power of judicial review retained. These limitations are particularly significant in the partial invalidation of that part of the 25th Amendment which was brought into the Constitution as Article 31-C to confer sweeping powers of legislation even on State legislatures for passing any law infringing Fundamental Rights in the name of implementing the Directive Principles embodied in Article 39(B) and (C). The ruling of the Chief Justice, Mr. Sikri, that Article 31C amounts to indefensible delegation of an amending power that is the prerogative of Parliament to the State legislatures brings out only one of its objectionable features. As such the invalidation of that part of the Article which denies the jurisdiction of the court to go into the legitimacy and bona fides, as it were, of the legislative declaration of intention comes as a silver lining, however thin, in the overhanging clouds of hasty, discriminatory and expropriatory attempts of passing majorities in the legislatures.
The net effect of the rulings of the highest court of the land still amounts to the upholding of a considerable enlargement of the powers of Parliament. But it is not as if the Constitution, even before the 24th and 25th Amendments to it, had not provided for “reasonable restrictions on the citizen’s Fundamental Rights in the public interest. The people may feel that what the government of the day is seeking is not merely the power to impose such reasonable restrictions but even palpably unreasonable ones. It would indeed be unfortunate if that were to come true. The executive and Parliament have unmistakably been invested with the power of a giant. The hope is that they will not exercise that power like a giant. It has to be used, as Justices Hegde and Mukherjee have pointed out, in a manner that gives no room for legitimate complaint that it was exercised with an evil eye or an uneven hand”. The ultimate guarantor of such fair application of power is of course the people. A proper awakening among them has to be persistently promoted by the education of public opinion by the enlightened citizenry all the time, even as the executive and the legislatures are persuaded to take up broad-minded and mature attitudes in their governance of the land. Only that way can the real content of democracy be preserved.
Reference:
The First 100
A Selection of Editorials, 1878-1978, THE HINDU, VOLUME I