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India's road to Republic: When judiciary had to draw the line which shaped the Constitution

Editors Note: As India readies to celebrate its 69th Republic Day on 26 January, this five-part series will examine how India's Constitution came to be, how it has been contested over the years and what potential challenges lie ahead.

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On commencement of the Constitution on 26 January 1950, India's last Governor General, Chakravarti Rajagopalachari administered the oath of office to Rajendra Prasad, the first President of India. India had become a sovereign republic with a constitution of her own and the minute the Constitution came into effect, the Government realised, that it needed amendment.

The original constitution contained a right to property, this right to property meant that Jawaharlal Nehru’s flagship policy of land reform would become impossible. Across the country, courts were striking down land reform laws based on the fact that they deprived citizens of their property rights, as guaranteed in the Constitution. So the first amendment was passed in the year 1951, creating the ninth schedule; laws under the Ninth Schedule would be immune to challenge on the ground that they violated the fundamental rights: or to put it mildly, an exceptions' clause was introduced and in there went all the land reform laws. These laws would change the face of India. Tenant would become landlord and peasant would become a property owner. Nehru would try and bring about an India that was not irrigated by the clouds but by large dams that would not just water the fields but also generate hydroelectric power to light up the cities and villages.

 Indias road to Republic: When judiciary had to draw the line which shaped the Constitution

Jawaharlal Nehru signing the Constitution of India. Wikimedia Commons

Then came the war with China in 1962, when war time measures were adopted. India interned her Chinese population in camps fearing that they may be foreign spies. The China towns of Bombay and Calcutta that had been there ever since boats sailed from those ports suddenly became empty. There was no Constitution for these Indian citizens of Chinese origin, when war time came. For many it was a grim reminder of what they had faced at the hands of the Japanese when they had taken Singapore and Malaya during World War Two. These families had fled to India for security then. Now the Indians were doing this to them. This remains a great stain in the history of India, something we owe an apology for. An apology that is yet to come from the Parliament or the people.

But perhaps the biggest challenge to the Constitution came with the 24th Amendment. Some background, in the case of IC Golaknath vs State of Punjab, 1967 AIR 1643 an eleven judge bench of the Supreme Court held that a law amending the constitution was an "ordinary law" and therefore it couldn’t be in conflict with the fundamental rights. This meant that it was beyond the power of Parliament to amend the fundamental rights.

This caused Parliament to amend the Constitution once more in the year 1971 via the twenty fourth amendment, that said that Parliament had unlimited power to amend the Constitution. This amendment was challenged by the head of the Edneer Mutt in Kerala. A priest by the name of Kesavananda Bharati sued the State of Kerala when the Government of Kerala passed land reform bills that affected the administration of the property of the mutt. He claimed that the Constitution protected his right as a religious mutt to manage his own affairs. It was in this case, reported as Kesavananda Bharati vs State of Kerala, (1973) 4 SCC 22, that a thirteen judge bench decision of the Supreme Court would finally settle the issue on amendments to the Constitution.

The Supreme Court, held that Parliament did have the power to amend all parts of the Constitution but it could not alter its basic structure as outlined by the preamble. The meaning of the judgement is still the subject matter of much debate and no one quite really knows what the basic structure actually is. But to keep it simple for our readers, the basic structure is the framework of the Constitution. The core principles around which it is built. Tomorrow if Parliament declared India a monarchy, it would violate the basic structure. But if the Parliament amended a Fundamental Right in public interest, it would not. All parts of the Constitution are open to amendment, so long as the Constitution continues to remain the Constitution and is not an entirely new one.

The Emergency of 1975-1977 was a trying time for the Constitution. The courts fell in line with the government of the day in the famous case of ADM Jabalpur vs SS Shukla 1976 AIR 1207 and held that a person could not move court to have their detention reviewed while the emergency was in effect. This is often considered a stain in the history of the Constitution. But in fact, a clinical analysis of the judgement will find that the reasoning is sound. ADM Jabalpur a judgement that is most hated in India, is considered a very good law by courts in Malaysia and Singapore, who are often guided by Indian precedent.

ADM Jabalpur’s key finding was that all rights flowed from the Constitution and post its commencement the people no longer retained any inherent rights of their own. This finding would hold good till the year 2017 when in the Right to Privacy case, Justice KS Puttaswamy(Retd) vs Union Of India And Ors WP(C) 494 of 2012, the Supreme Court formally overruled it and recognised that the right to life flowed from the virtue of the fact that people were alive and not from the Constitution.

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Post the Emergency, we saw the golden age of judicial review, and it began with a woman who had her passport taken away from her. The lady in question was Menaka Gandhi and the Passport Officer had impounded her passport. While doing so, he gave her no reasons and didn’t call for an explanation. She got upset by this and moved the Supreme Court, effectively saying that the Passport Officer was behaving in a way that was unbecoming of public servants under the tenets of the Constitution.

Before her case, the law stated that if a person followed a procedure spelt out by the law, the person could do as they liked. This was the doctrine of procedural due process outlined in the case of AK Gopalan vs State of Madras AIR 1950 SC 27 but in Menaka Gandhi vs Union of India 1978 AIR 597 the Supreme Court said, this was not so. The procedure followed, had to be one that was in conformity with natural justice as outlined in Articles 14 (Equality), 19 (Freedom) and 21 (Life). In Gopalan’s case the Supreme Court held that each article of the Constitution was complete in itself and had to be read in isolation. In Menaka’s case they read Article 14,19 and 21 together to create the doctrine of substantive due process. The court asked the passport officer to give Maneka a chance to explain her situation. Today we know that right as a "Right to a hearing." No authority can take any action against a citizen of India without giving them a hearing first, and recording reasons for their action.

Henceforth, many judgments have followed that have reshaped our Constitution. These include cases that grant us the right to work, the right to clean air, the right to food, the right to health, and the right to rehabilitation. The Supreme Court, in order to preserve judicial independence after the emergency took a more active role in the process of the appointment of judges. No more was a judge of the Supreme Court appointed by the Executive, the apex court would effectively appoint its  own judges to ensure that they would protect the Constitution from the Executive.

But all would not be well, in the coming years, there would be many questions raised about India’s Constitution. The ability of this system to deliver stable governments, the failure of its checks and balances and if we could ever, if we needed to, enact another one.

Click here to read Part I — 69th Republic Day: Making of the Indian Constitution and country's path to complete Independence

Click here to read Part II — The long walk to the Republic: Constituent Assembly wasn't elected by the people, but worked like a model Parliament

Click here to read Part III — How the Republic was born: BR Ambedkar-led Drafting Committee replaced the British monarch with the Constitution

Click here to read Part V — 68 years of India's Constitution: Repeated amendments have meant document today is fundamentally different from the one enacted

Updated Date: Jan 26, 2018 15:11:22 IST