Author: Shivansh Dwivedi, (B.Com.LL.B) 3rdYear Law Student at Nirma University Institute of Law.
Introduction:
The Constitution has always proved to be a boon when it comes to the protection of natural and fundamental rights of the citizens of India and whenever the question of supremacy between the Constitution and parliament is put forth the answer has been an echoing sound of constitutional supremacy. The constitution builds a foundation with the help of the doctrine of separation of power where it has created independent sovereign bodies i.e. Executive, Legislative, and Judiciary, and has conferred them with independent powers and powers to keep a check and balance on each other's activities.
Article 13 of the constitution states that no prevailing laws can be inconsistent with the third part of the constitution and also that the state cannot make any law that is inconsistent with the same, making it a rigid part of the constitution. But the framers of the Indian constitution wanted it to be an adaptable document and therefore they vested the parliament with powers to amend the constitution. Conferring such immense powers without any restriction and controlling authority can have some grave repercussions.
Basic Structure Doctrine and Constituent Powers of Parliament :
In 1975, these parliamentary powers were used in the most undemocratic and unconstitutional manner possible by the then Prime Minister of India Indira Gandhi. A petition was filed against Indira Gandhi for using unfair practices for winning the 1971 general elections. In this case, the Allahabad High Court held her guilty for misusing government machinery in the elections and declared the elections as cancelled the court also barred her from contesting another election for the next six years and ordered her to vacate the position of Prime minister. As she approached the apex court against this judgment and the court allowed her case to be heard, the very next day she forcefully declared emergency. In the name of this emergency, many great leaders of the opposition were arrested and many senior journalists were jailed. Any person who opposed emergency was taken into police custody, reportedly 11 lakh people were forced into jail without any reasonable cause.[i] This emergency is called the darkest phase of Indian democracy.
To prevent and nullify this or any kind of attack on the democracy and constitution of India the doctrine of separation of power was adopted by the constitution-makers. This doctrine is inculcated in the constitution in such a manner that the functioning of the doctrine and democracy of the country is directly proportionate to each other. For the protection of the same, the constitution has given the powers to the judiciary for nullifying any action, law, or policy of the government which is violating the constitution. The constitution has provided constituent powers to the parliament for amending the document according to the dynamic nature of the country. These powers were conferred to the parliament to make the constitution a more adaptive document rather than a rigid document. Article 368 of the constitution gives an impression that parliament has absolute amending powers which covers the entire document as it says that “Nothing in article 13 shall apply to any amendment made under this article.”[ii] But ever since independence the Apex court has acted as a brake over the enthusiasm of parliament towards amending the constitution. With the intention of preserving the original ideals envisioned by the constitution-makers, the apex court pronounced that Parliament could not distort, damage, or alter the basic features of the Constitution under the pretext of amending it.[iii]
This misunderstanding of parliament having absolute powers of amending the entire constitution was cleared and profoundly explained by the Supreme Court in the case of IC Golakhnath vs. State of Punjab. In this case, an eleven judge bench was formed and the court along with overruling its previous judgment also held that article 368 does not contain a power to amend the constitution but only prescribes a procedure for it and that article 13(2) prevents passing of any law that abridges or take away the fundamental rights from the citizens. The court also stated that “Fundamental Rights included in Part III of the Constitution are given a "transcendental position" under the Constitution and are kept beyond the reach of Parliament.”[iv] Through this judgment, it was upheld by the apex court that article 368 does not confer amending powers of the constitution but only provides a procedure for it. Later, in 1973 the Supreme Court made this point even more explicit and exhaustive in the case of Kesavanand Bharti vs. State of Kerala[v]. With the largest bench comprising of thirteen judges, the court held that article 368 does not enable Parliament to amend the basic structure of the constitution. Along with defining the basic structure of the constitution the court explained the importance of article 13 and held that the basic structure is a sacrosanct part of the constitution and cannot be amended.
An attack on Constitutional Supremacy and Indian Democracy:
After the ruling of Kesavanada Bharti vs. State of Kerala (1973) emergency was declared by the then Prime Minister Indira Gandhi in 1974 and during this 21-month long emergency Constitutional (Forty-Second Amendment) Act, 1976 was passed. This amendment Act added the 4th and 5th clause in article 368 stating 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.[vi]
(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.[vii]
These clauses took away the challenging and questioning powers of the citizen and also removed limitations over constituent powers of parliament to amend the constitutions resulting in the death of the democracy of India.
But as always the Supreme Court acted as a brake on such undemocratic activities. The court in the case of Minerva Mills vs. UOI struck down article 4 and 55 of the Constitutional (Forty-Second Amendment) Act, 1976, and declared clause 4 and 5 of article 368 as unconstitutional and invalid. The court said that the constitution is the donor of such amending power and the donee cannot exercise that power to convert the limited power into an unlimited one. Justice Y.V. Chandrachud said that “Three Articles of our Constitution, and only three, stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power. They are Articles 14, 19 and 21. Constitutional (Forty Second Amendment) Act, 1976 has removed two sides of that golden triangle which affords to the people of this country an assurance that the promise held forth by the preamble will be performed by ushering an egalitarian era through the discipline of fundamental rights, that is, without emasculation of the rights to liberty and equality which alone can help preserve the dignity of the individual”.[viii]And not only explained the position of the constitution but also explained the need and importance of preventing the basic structure because the basic structure is something that preserves the rights, liberties, and equality of the citizens, making the constitution the supreme power of the country as preserving basic structure the constitution has pulled the country out of monarchy into democracy.
Conclusion:
In the case of Kesavanada Bharti vs. State of Kerala the court, while defining the basic structure of the constitution said that constitutional supremacy is the first and foremost part of the basic structure and that there can be no law superior to the constitution. There have been attempts when parliament tried to overpower the constitution but failed because the constitution is the ultimate source of authority and the legislature cannot exercise a power that is not conferred upon it by the constitution. All the above landmark judgements have upheld constitutional supremacy over parliamentary sovereignty as the constitution builds a framework and parliament should act within that frame. The Constitution of India is an idea and parliamentary actions ought to be the roads to achieve that idea and should not be the source to change it.
[i] Adrija Roychowdhury, four resons why Indira Gandhi declared emergency, THE INDIAN EXPRESS, (June 19, 2021) https://indianexpress.com/article/research/four-reasons-why-indira-gandhi-declared-the-emergency-5232397/. [ii] INDIA CONST. art.368, cl. 3. [iii] Venkatesh Nayak, The basic structure of Indian constitution, CONSTITUTIONNET, (June 19, 2021) https://constitutionnet.org/vl/item/basic-structure-indian-constitution. [iv] IC Golakhnath vs. State of Punjab & Anr., 1967 AIR 1643. [v] Kesavanand Bharti vs. State of Kerela., AIR 1973 SC 1461. [vi] INDIA CONST. art. 368, cl. 4. [vii] INDIA CONST. art. 368, cl. 5. [viii] Minerva Mills Ltd. and Ors. v. Union Of India and Ors. AIR 1980 SC 1789.
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