AK Gopalan was a Communist leader who was detained in the Madras Jail in 1950 under the Preventive Detention Law. By writ of Habeas Corpus pursuant to Article 32 of the Indian Constitution, he challenged his detention while arguing that Sections 7, 8, 10, 11, 12, 13, and 14 of the Act violates Articles 13, 19, and 21 of the Indian Constitution and therefore the said Act is ultra vires of the basic fundamental provisions as enshrined under the Constitution of India. The petitioner further posed the issue of the Indian Constitution’s ‘procedure defined by statute’ clause.
The case involved the following issues:
- Whether section 7, 8, 10, 11, 12, 13 and 14 are ultra-virus and violates the Art. 13, 19 and 21.
- Whether article 19 and 21 are interrelated to each other in the protection of life and liberty.
- Whether the detention of the petitioner under the Preventive Detention Act, 1950 is illegal.
- Whether article 22 is the complete code in itself while dealing with the preventive detention cases.
On the other hand, while rejecting the petitioner’s arguments, the Hon’ble Supreme Court of India contended that Article 22 of the Indian Constitution is a self-contained Code and that he was detained according to the procedure established by law. The court further held that if a person’s liberty is taken away by the State in accordance with the procedure established by law i.e. if the detention was as per the procedure of law then it cannot be said that it violates the provisions contained in Article 14, 19 and 21 of the Constitution of India. In this particular case, the Supreme Court took a narrow view of Article 21 of the Constitution of India. While applying the doctrine of severability, the apex court declared section 14 as void as it finds it to be unconstitutional and violative of the fundamental rights. Court asserted the principle of procedure established by law and declared the application of due process clause and international human rights charters inapplicable in Indian premises. Further, the court declared sections 7, 8, 10, 11, 12, and 13 as intra-virus the constitutions, hence valid. Finally, the Court found that the detention was legal and hence writ was disposed of accordingly.
In this case, the First Constitution Amendment Act, 1951 was challenged on the ground that it violates the Part-III of the constitution and therefore, should be considered invalid. Through this amendment act, certain laws were brought which were curtailing right to property. In this case the argument which was put forward was that as per article 13, no law can infringe or abrogate fundamental rights so how can the constitutional amendment can violate it?
It was held by the Apex court that the power conferred by Constitution under Article 368 to Parliament to amend the laws is very wide and it also includes the power to take away the fundamental rights guaranteed under Part III of Indian Constitution. Further, the Supreme Court unanimously held that, “The terms of article 368 are perfectly general and empower Parliament to amend the Constitution without any exception whatever. In the context of article 13, “law” must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power, with the result that article 13 (2) does not affect amendments made under article 368.”
In the instant case the Petitioner Golak Nath and his family owned more than 500 acres of land in Punjab. However, during then the state government made a legislation ‘Punjab Securities and Land Tenures Act’ wherein under this Act, Golak Nath and his family were not allowed to keep more than 30 acres of land. Thus, Golak Nath filed a writ petition under Article 32 of the Indian Constitution challenging the validity of the legislation and that his fundamental right to property was being violated. The issue was whether the parliament has the power to amend the fundamental rights enshrined under Part III of the Constitution of India or not. The petitioners argued that the parliament had no power to amend fundamental rights, while the respondents argued that our constitution was never meant as static and non-flexible by the constitution-makers.
In this case, the apex court overruled the judgement given in case of Sajjan Singh by the majority of six : five and held that the amendment under Article 368 is ‘law’ within the meaning of Article 13(2). It was further ruled by the Hon’ble court that Legislature does not enjoy the power to amend Part III of the Constitution to take away or abridge fundamental rights. The Supreme Court contended that Fundamental Rights are not amendable as stated under Article 13 and also stated that Article 368 gives the procedure to amend the Constitution but does not confer on Parliament the power to amend the Constitution. Golaknath’s majority view reflects the uneasiness and uncertainty in their minds regarding the then Parliament’s course. Numerous legislation that had in one pretext or another breached populous’ FR’s have been passed since 1950 ‘s Parliament by invoking Article 368. The majority were doubtful that if Sajjan Singh remained the law of the land, then a time could come when all the FRs adopted by our Constituent Assembly would be diluted and eventually extinguished by amendments. Sajjan Singh and Shankari Prasad overruled this possible extinction of FR’s in mind and fearing the eventual transition of Democratic India to the majority of Totalitarian India. Therefore, to check this colourable exercise of power and save Democracy from autocratic actions of Parliament, the majority held that Parliament cannot amend Fundamental Rights.
One of the most celebrated case ‘His Holiness Kesavnanda Bharti Sripadagalavaru vs. State of Kerala, 1973 as decided by a bench of 13 judges. In this case, the apex court dealt with the issue – that whether the Parliament can amend any part of the Constitution and what was the limit to that power? After the unprecedented judgment of Golaknath vs. State of Punjab the desperate Parliament in order to gain its lost supremacy & autonomy passed series of Amendments to indirectly overrule whatever was decided in Golaknath’s case. The Indira Gandhi government returned in lower house with huge majority in 1971 elections and then passed 24th Amendment in 1971, 25th Amendment in 1972 & 29th Amendment in 1972.
The bench by the majority of 7:6 overruled the contention of the proposition of law propounded in Golak Nath vs. the State of Punjab, 1967 and held that Constitutional amendment is not ‘law’ within the meaning of Article 13 and that though no part of the Constitution, including Part III comprising of fundamental rights, was beyond the amending power, the basic structure of the Constitution could not be abrogated even by the constitutional amendment. It was contended that what regards to the basic structure, it will be decided from case to case. Thus, it was held that the Judiciary can strike down an amendment passed by the Parliament that conflicts with the basic structure of the Constitution. The tribunal upheld the entire 24th Constitutional (Amendment) Act, 1971, while the first part of the 25th Constitutional (Amendment) Act, 1972 intra vires & 2nd part of the ultra vires act, was found. The court that embraced social engineering and weighed the interests of both litigants held that neither Parliament has the power to emasculate the Constitution’s Basic Structure, nor can it revoke the mandate to create a welfare state and an equitable society. In Golaknath, the court found that the answer to the issue was left unanswered. The degree to which the power of Parliament is amended. DOCTRINE OF BASIC STRUCTURE was the response which the court deducted.
This doctrine implies that though Parliament has the prerogative to amend the entire Constitution but subject to the condition that they cannot in any manner interfere with the features so fundamental to this Constitution that without them it would be spiritless. To understand the essence of this doctrine it is of importance to understand Hegde & Mukherjeajj, who in their opinion have very beautifully explained this Doctrine. In their opinion Indian Constitution is not a mere political document rather it is a social document based on a social philosophy.
It was the landmark case that created history and led to the imposition of Emergency in India from 1975 to 1977. The case questioned the powers of the judiciary, a showcase of how Parliament expected the judiciary to kneel down before them. Parliament tried to establish its supremacy in the course of this case but put in place by the judiciary. This case questioned so many integral aspects of the Constitution such as its Basic structure, power of jurisdiction of courts, separation of three organs of the state that are: Legislative, executive and judiciary, functions of Legislature, right to free and fair elections, rule of law and judicial review and lastly, political justice.
In the 1971 Lok Sabha General Elections, Raj Narain was the political contestant against Indira Gandhi for the Rae Bareilly Constituency. Indira Gandhi won the election and Congress, with a sweeping majority, won the House. After the outcome of the elections, however, Raj Narain filed a petition before Allahabad High Court alleging that Election malpractices had been carried out by Indira Gandhi. Subsequently, on 12 June 1975, under Justice Jagmohanlal Sinha, the High Court of Allahabad found Indira Gandhi guilty of misusing state machinery u/s -123(7) of the Representative of Peoples Act, 1951. The court therefore ruled that Indira Gandhi cannot serve as the nation’s prime minister, and that she was unable cannot run in elections for another six years. Aggrieved by this decision, Indira Gandhi went to the Supreme Court to appeal this judgement of the Allahabad High Court. However, at that point in time, SC was on leave and granted a conditional stay on execution on 24 June 1975. Later, the Supreme Court ordered the parties to appear before it on 11 August 1975 while granting conditional stay, but on 10 August 1975 the President of Emergency-stricken India passed the 39th Constitutional (Amendment) Act, 1971 by inserting Article 329-A to fully bar the Supreme Court’s jurisdiction from entertaining the matter. This amendment made it unjustifiable in the courts to elect the President, Prime Minister, Vice-President and Speaker of the Lok Sabha.
The Supreme Court of India applied the theory of basic structure and accordingly struck down Clause (4) of Article 329-A which was inserted by the 39th Amendment in 1975 because it is beyond the Parliament’s amending power, as it destroys the basic structure of the Indian Constitution. Indira Gandhi after being found guilty of using corrupt practices for election by the Allahabad High Court, made several amendments to the Constitution which ultimately removed all the grounds on which she was charged guilty, she was thereby acquitted by a five-judge bench of the Supreme court.
On 7 November 1975, the court gave its verdict. This was the first case when the supreme court applied the landmark decision of Kesavananda Bharti while upholding the petitioner’s claim and ruled Article 329A’s impugned Clause 4 as unconstitutional. Justice Yeshwant Vishnu Chandrachud said that the amendment was found to be in violation of the Separation of Power concept as it carefully transferred a pure judicial role into the hands of the legislature. Moreover, it was certain that the amendment was also in violation of Article 14, as it created an unfair role for individual members against others.
In this case, the view expressed involving Article 21 in A.K. Gopalan’s Case was revisited after 28 years. The main issue involved was whether the right to go abroad is a part of personal liberty under Article 21 and whether the Passport Act prescribes a ‘procedure’ as required by Article 21 of the Constitution. Passport Act, 1967 empowers the authorities to impound the passport of certain individual if such action is necessary in the interest of sovereignty and integrity of India, the security of India, friendly relations of India with any foreign country, or general public. The reasons of such impoundment are also to be communicated the affected party however in the interests of the general public these reasons can be withheld. In the immediate case the authorities on July 4th 1977 issued a notice of impoundment of the passport of Petitioner who was a known journalist citing reasons as in the interest of general public. As soon as the petitioner got the notice of such impound, she reverted back to the authorities asking for specific detailed reasons as to why her passport shall be impounded. The authorities however, answered that the reasons are not to be specified in the interest of the general public. Therefore, the petitioner approached Supreme Court u/a 32 for the enforcement of Fundamental Right mentioned u/a 14 against the arbitrary action of the authorities. Following were the issues raised by in the present case:
- Is there any nexus between the provisions mentioned under Articles 14, 19 & 21?
- Scope of the word “Procedure Established by Law.”
- Whether right to travel abroad resides in Article 21.
- Whether a legislative law that takes away Right to life is reasonable.
It was contended by the apex court that the right to go abroad is a part of the right to personal liberty under Article 21 and also ruled that mere existence of an enabling law was not enough to restrain personal liberty. The procedure according to the Hon’ble court has to be ‘fair, just and reasonable, not fanciful, oppressive or arbitrary’. Further, the court held that section 10(3)(c) of Passport act, 1967 is void because it violates article 14 of Indian constitution because it confers vague and undefined power to the passport authority. it is violative of Article 14 of the Constitution since it doesn’t provide for an opportunity for the aggrieved party to be heard. It was also held violative of Article 21 since it does not affirm to the word “procedure” as mentioned in the clause, and the present procedure performed was the worst possible one. The Court, however, refrained from passing any formal answer on the matter, and ruled that the passport would remain with the authorities till they deem fit.
Minerva Mills in the state of Karnataka was a textile industry involved in the mass production of silk clothes and also provided the general public with a market. However, the Central government was suspicious that the business met the criteria to be defined as a sick industry. In 1970, the Central Govt, constituted a Committee U/s 15 of the Industries (Development and Regulation) Act, 1951 to produce a full detailed report examining Minerva Mills’ affairs. Subsequently, on 19 October 1971, the Central Government relying on the Committee’s opinion, empowered a National Textile Corporation Limited (an entity under the 1951 Act) to take over the management of Minerva Mills u/s 18A of the 1951 Act.
However, the petitioner was not able to challenge the aspect of the 39th Constitutional (Amendment) Act, 1975, since the Parliament had earlier inserted Nationalization Act, 1974 into the Ninth Schedule which means that any challenge on the said act was outside the purview of judicial review, and this remedy was barred by 42nd Amendment. Thus, the main issue in this case was to check the constitutionality of 42nd Constitutional (Amendment) Act, 1976.
In this case, the Supreme Court’s judgement was a decision that majestically and proudly reaffirmed the supremacy of the fundamental framework of our Constitution. The judgement was issued at a time when the world’s largest democracy had just emerged from the shackles of the notorious Emergency, and courtesy of the ADM Jabalpur decision, the judiciary was in its darkest hour. In this case, the Validity of Constitution under the 42nd amendment which was inter alia provided for the exclusion of judicial review of constitutional amendments and expressly conferred unlimited amendment power to the Parliament was challenged as it was considered that they are violative of the basic structure of the Constitution.
The Court again in this case by the majority of 4 : 1 struck down clauses (4) and (5) of Article 368 holding that they violated the basic structure of the Constitution. It was held by the Hon’ble court that since the Parliaments power is limited as to the amendments they can make, in this judgement also it was held that the Constitution is supreme and not the Parliament. The court held that the newly introduced Clause 4 and 5 were actually inserted to bar the courts to entertain any challenge on the question of validity of the constitutional amendments.
“Our Constitution is founded on a nice balance of power among the three wings of the state namely the Legislature, the Executive & the Judiciary. It is the function of the Judges nay their duty to pronounce upon the validity of laws,” asserted the court.
This unanimous judgement given by a 9-judge bench led by Chief Justice Sabharwal is also known as the Ninth Schedule Case. This judgment upheld the validity of the Doctrine of Basic Structure proposed in the case of Kesavananda Bharti. The fundamental question before the Court was whether it was permissible for Parliament, on the basis of the doctrine of the basic structure, to insert laws into the Ninth Schedule after the Kesavananda Bharati case in order to render them immune from judicial review. It is important to mention here that since the Ninth Schedule was introduced, various elements of agrarian reform legislation were placed in it, but with the advent of time, various other pieces of legislation were arbitrarily and indiscriminately placed in the Ninth Schedule to make them immune from judicial review, despite the fact that most of them had nothing to do with the agrarian or the socio-economy reforms.
Thus, the fundamental question decided in this case was whether on and after 24/4/1923 (Kesavananda Bharti’s judgment), when the doctrine of the basic structure was proposed in the State of Kerala, it was permissible for the parliament under Article 31-B to immunise laws by inserting them into the ninth schedule and thus outside the purview of the courts and, if so, what was its effect on the power of judicial review of the court.
The Apex Court while acknowledging the judicial mandate relating to the doctrine of the basic structure and the power of judicial review, held that after 24 April 1973, the laws laid down in the Ninth Schedule would not enjoy full immunity, but that the court would examine the nature and extent of the infringement of a fundamental right by a statute. Further, the court also asserted that the constitutional validity of the laws of the ninth schedule could be determined by applying the direct test of impact and effect, i.e. the test of rights, which requires that the determinative factor is not the form of a law, but its effect. It is the court that must decide whether this interference is justified and whether the basic structure is violated or not. As stated, the court’s role is “to determine whether invasion was necessary by the court and, if so, to what extent.” This position then serves to shift the determination of the need for the law from the Parliament to the courts for decision. It also allows the courts the flexibility of both the rights test and the essence of rights test in dealing with the validity of such cases.
In this case, the petitioner, Shayara Bano was married for 15 years. However, in 2016, her husband divorced her through talaq–e-bidat (triple talaq), an Islamic practice that permits men to arbitrarily and unilaterally effect instant and irrevocable divorce by pronouncing the word ‘talaq’ three times at once in oral, written or, more recently, electronic form. The petitioner argued before the apex court that the three practices i.e. triple talaq, polygamy, and nikah halala (the practice requiring women to marry and divorce another man so that her previous husband can re-marry her after triple talaq) –were unconstitutional. She further argued that they violated several fundamental rights under the Constitution of India i.e. Articles 14 (equality before the law), 15(1) (prohibition of discrimination including on the ground of gender), 21 (right to life) and 25 (freedom of religion). The petition also highlighted as to how these traditional practices of Islamic men hinder the Muslim Women’s rights as well.
The court with a 3:2 ratio, where the majority held that the practise of Triple Talaq is unconstitutional and violates Muslim women’s fundamental rights. It found that Triple Talaq practise is not essential to religion. Therefore, according to the majority, it was held that under Article 25 of the Indian Constitution, triple talaq was not to be protected as it is not an essential element of the religion. In fact, this is regarded as a sinful practise by the Hanafi school of Muslims. Further, it was contented by the apex court that this form of Talaq is arbitrary and violates the fundamental rights as enshrined under Article 14 of the Indian Constitution. Thus, it is condemned.
The constitutional validity of Section 377 of the Indian Penal Code, 1860 (Section 377) was the central issue of the case, insofar as it applied to the consensual sexual behaviour of adults of the same sex in private. Section 377 was entitled ‘Unnatural Offenses’ and stated that ‘anyone who voluntarily has carnal intercourse with any man, woman or animal against the order of nature shall be punished with life imprisonment or imprisonment of either description for a term of up to ten years, and shall also be liable to a fine.’
The instant case as delivered by a five-judge bench gave a historic decision on Section 377 of Indian Penal Code, which decriminalised homosexuality. It was contended by the Apex court that the existing provision u/s 377 of the Indian Penal Code criminalises sexual acts of adults in private i.e. criminalises homosexual intercourse, it was held that it is violative of Articles 14, 15, 19 and 21 of Indian Constitution.
It was stated by the Hon’ble court that since fundamental rights are the basic structure and any other provision which violates the provisions under Part III shall be deemed to be ultra-vires and hence Section 377 was given constitutional morality and homosexuality was decriminalised accordingly.
Further, the Supreme Court reversed the Delhi High Court verdict in 2013 in it Suresh Koushal judgment and held that the decision of decriminalizing homosexuality can only be done by the Parliament and not the Court. It also held that Section 377 criminalises certain acts and not any particular class of people. It also alluded to the minuscule number of people who were members of the LGBTI community and the fact that only a fraction amongst them had been prosecuted under Section 377. Subsequently, on 6th September, 2018 the five-judge Bench partially struck down Section 377 of the Indian Penal Code, decriminalising same-sex relations between consenting adults. LGBT individuals are now legally allowed to engage in consensual intercourse. The Court has upheld provisions in Section 377 that criminalise non-consensual acts or sexual acts performed on animals.
- (1950) SCR 88
- (1952) SCR 89
- AIR 1967 SC 1643
- AIR 1973 SC 1961
- (1975) SC 2299
- AIR 1978 SC 597
- AIR 1980 SC 1789
- (2007) 2SCC1
- (2017) 9 SCC 1
- (2018) 10 SCC 1
This article has been written with inputs from Ms. Arushi Lamba during her course of internship at B&B Associates LLP. Ms. Arushi is a 4th-year law student of Panjab University, Chandigarh.