Defining The Core: The Struggle To Safeguard Democracy

Defining The Core: The Struggle To Safeguard Democracy

“The rule of law and the independence of the judiciary underpin our democracy and lie at the heart of our way of life. They are the very cornerstone of our freedoms.”

-David Lidington

The struggle for independence of India and the emancipation of her citizens from the shackles of tyranny did not conclude with the hoisting of the tricolour on 15th August, 1947. Nor did it culminate with the formulation of the Constituent Assembly, the drafting of the consecrated tome of law – the Constitution of India, and the subsequent transition of our nation into a democracy. The fight for freedom and liberty is an endless battle that demands unanimous struggle against every sort of oppression that vitiates the social fabric of our nation, and in turn, pushes us back to suzerainty. Safeguarding the ethos of the hard-earned state of Swaraj is as significant as it was to brawl for home rule, infringers being circumscribed or alienated.

The founding fathers of our nation envisaged the picture of a welfare state for us—an India where the rule of law will prevail under all circumstances. In pursuit of this utopian dream, the Constitution of India was formulated, which guaranteed the rights and outlined the duties of every citizen of the Republic. Although dominant on papers, this supreme document was never left unaffected by political influence and executive interference. Nevertheless, on 24th April, 1973, all the major threats to this sacrosanct instrument of jurisprudence were disposed of by the Hon’ble Supreme Court of India in the monumental “Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr.” verdict.

The idea of freedom was not the same for every segment of the society that participated in the struggle for independence. For the farmers, freedom was the emancipation of their brethren from the absolutism of Zamindari. Likewise, for the tribals, it was their liberation from the clutches of the dikkus, or the person residing in urban suburbs. For the women freedom fighters, the notion of independence wasn’t limited to the thought of positioning the natives of India in the parliament. For them, their inclusivity in policy formulation and an equal say in the country’s decision-making processes were of utmost importance. And when all the sections of the society contributed to the struggle for liberation, it was their right to have equal opportunities to fulfill their dreams in post-independent India. But owing to certain disagreements that existed in the Constitution itself, the design of providing a level playing field for everyone was far-fetched. One such contradiction existed between the Fundamental Right to Property (Art. 19(1)(f) and Art.31) and the Directive Principle of State Policy dictating the governing authorities to promote equal distribution of wealth in the society (Art 39 (b) and Art. 39 (c)). This juxtaposition of thoughts gave birth to major hindrances in introducing land reforms across the length and breadth of India. The entire windings of the case under consideration revolved around this single contrast in legislation.

Amidst all turmoils stood Nanabhoy Palkhivala,
an advocate who was firm in his resolve.

Establishing the prevailing circumstances at the preset itself, on one side of the storyline stood the then Prime Minister of India, Indira Gandhi and her government, whereas on the other side perched K. Kamraj, Morarji Desai, and other rebels of the grand old party. The judiciary, too, was divided into two latent segments. Amidst all these turmoils stood Nanabhoy Palkhivala, an advocate who was firm in his resolve that he won’t let the Supreme Court favour the Government’s stance on certain specific matters, inter alia, Fundamental Rights of the citizens being one of them.

After independence, several laws were enacted in the states to reform the tenancy structures across the nation and curb the Zamindari Pratha. It was done in keeping with the ruling Congress party’s electoral promise of implementing the socialistic goals of the Constitution. This paved the way for a series of amendments by the Parliament and subsequent challenges in the Supreme Court in several cases- the most important ones amongst which are as follows:

Sankari Prasad v. Union of India (1951)

A 5-Judge Bench of the Supreme Court of India decided that the constitutional scheme provided for a clear distinction between ‘ordinary law’ and ‘constitutional law’. Hence, the fundamental rights were within the ambit of the amending powers of Article 368.

Sajjan Singh v. State of Rajasthan (1965)

The Court upheld the power of Parliament to amend any part of the Constitution, including that which affects the fundamental rights of citizens. However, in this case, two dissenting judges raised doubts about whether the fundamental rights of citizens could become a thing of merriment for the majority party in Parliament.

I.C. Golaknath v. State of Punjab (1967)

The issue of whether Parliament could amend fundamental rights was yet again raised in the Supreme Court. An 11-Judge Bench was constituted to examine whether Constitutional amendments could be passed to snatch the fundamental rights.

The Supreme Court of India prospectively overruled its judgment in ‘Sankari Prasad’ and ‘Sajjan Singh’ and held that Parliament could not amend Part Ill of the Constitution to abridge or take away any of the Fundamental Rights. The Supreme Court took an interesting view that Article 368 merely lays down the procedure for an amendment to the Constitution, thus, deciding that amendments which ‘take away or abridge’ the fundamental rights cannot be passed.

After the landmark case of Golaknath v. the State of Punjab, the Parliament passed a series of amendments- the 24th Amendment, 25th and 29th Amendment to disembowel the judgment of the Golaknath case. These amendments came to be challenged in the prodigious Kesavananda Bharati case.

The main petitioner- his holiness, Kesavananda Bharati, was the chief of Edneer Mutt, a religious sect in the Kasaragod district of Kerala. Bharati had certain pieces of land in the sect, which he owned in his name. The state government of Kerala introduced the Land Reforms Amendment Act, 1969. According to the act, the government was entitled to acquire some of the sect’s land, of which Kesavananda was the owner.

On 21st March, 1970, Bharati moved to Supreme Court under Section 32 of the Indian Constitution for enforcement of his rights which were guaranteed under Article 25 (right to practice and propagate religion), Article 26 (right to manage religious affairs), Article 14 (right to equality), Article 19(1)(f) (freedom to acquire property) and Article 31 (compulsory acquisition of property). When the court still considered the petition, the Kerala Government passed another act, namely the Kerala Land Reforms (Amendment) Act, 1971. The petitioner contended that the power under Article 368 with its ‘unlimited’ amending powers is against the spirit of democracy in India.

On the other hand, the respondent contended that the supremacy of the Parliament is the basic principle of the Indian Legal System, so it has unlimited power to amend the Constitution. The State also contended that to deliver the rights and the directions guaranteed to the citizens of India, the Parliament must exercise its power to amend the Constitution without any limitations.


With the pronouncement of the Basic Structure Doctrine,
the Supreme Court innovated a unique way of
limiting the powers of the parliament.

After meticulously listening to both sides, the Supreme Court, in its final verdict, held that I.C. Golak Nath v. the State of Punjab, 1967, which supported the fact that the fundamental rights were beyond the amending powers of Parliament) stands overruled. The Constitution (Twenty-fourth Amendment) Act, 1971 which gave power to Parliament to amend any part of the Constitution) was valid under all circumstances. Article 368, as amended, was valid. However, it did not confer power on the Parliament to alter the basic structure or framework of the constitution. Also, the court did not spell out thoroughly what the basic structure/framework was, except that some judges gave a few examples. The amendment of Article 31C encapsulating the phrase “and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy” was held ultra vires.

On 24th April 1973, this judgment introduced the ‘Basic Structure Doctrine’ of the Constitution of India. Each judge laid out separately their interpretation of the basic or essential features of the Constitution. There was no unanimity of opinion within the majority view either. However, the boundaries to prevent the amorphous and arbitrary use of power by the majoritarian regime were finally established by the Apex Court. With the pronouncement of the Basic Structure Doctrine, the Supreme Court innovated a unique way of limiting the powers of the parliament. This landmark case will always be hailed as the “case that safeguarded democracy.”

-Ajitesh Harshit

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