Constitution-Supreme Law of the Land Landmark judgments since Independence bringing about some of the most intricate and fundamental aspects of the Indian Constitution. All Constitutions are the heirs of the past as well as the testators of the future. The very fact that the Constitution of the Indian Republic is the product not of political revolution but of the research and deliberations of a body of eminent representatives of the people, who sought to improve upon the existing systems of administration, makes a retrospect of the constitutional development indispensible for a proper understanding of the Constitution. No other Constitution in the world is like ours. It combines under its wings such diverse people, numbering now more than 100 millions, with different languages and religions and in different stages of economic development, into one nation, no other nation is faced with such vast socioeconomic problems.
The Basic Structure of the Constitution Back and Forth, and Finally There! Preamble
is the key to open the mind of the makers. But it does not mean that the preamble
can override the express provisions of the Act. In Berubaris case Supreme Court held that the Preamble
was not the part of the constitution and therefore it could never be regarded as the
source of substantive powers. Such powers are expressly granted in the body of Constitution. This question as to whether Preamble can be amended under Article 368 was raised for the first time before the Supreme Court in the t he historic case of Kesavanand of Kesavanand Bharati V. State Of Kerala. In this case it rejected the above view and held that
Preamble
of our Constitution is of extreme
importance and the Constitution should be read and interpreted in the light of the grand and noble vision expressed in the Preamble. Attorney general in this case also argued that by the virtue of the amending power in article 368 even
Preamble
can be amended like any other
provisions of the Constitution. However it was contended that amending power in Article 368 is limited. Preamble creates an implied limitation on the power of amendment. Preamble consists the basic structure or the fundamental features of our Constitution. Consequently, the amending power cannot be used so as to destroy or damage the basic structure mentioned in the Preamble. It was then felt that it would be necessary to decide whether I.C. Golak Nath v. State of Punjab [1967] 2 S.C.R. 762 was rightly decided or not? The Supreme Court in this case held that Parliament
has no power to amend the Fundamental Rights of Citizens. However, the question
as to what is the extent of the amending power conferred by Article 368 of the Constitution, apart from Article 13(2), on Parliament? It was claimed that if Parliament can abrogate
fundamental rights such as freedom of speech and expression, freedom to form associations or unions, and freedom of religion. They claim that democracy can even be replaced and oneparty rule established. Indeed, sort of repeal the Constitution; any form of Government with no freedom to the citizens can be set up by Parliament by exercising its powers under Article 368. On the other side it is urged that the power of Parliament is much more limited. It says that the Constitution gave the Indian citizen freedoms which were to subsist forever and the Constitution was drafted to free the nation from any future tyranny of the representatives of the people. These cases raise grave issues. But however grave the issues may be, the answer must depend on the interpretation of the words in Article 368, read in accordance with the principles of interpretation which are applied to the interpretation of a Constitution given by the people to themselves. It must interpret Article 368 in the setting of our Constitution, in the background of our history and in the light of our aspirations and hopes, and other relevant circumstances. In interpretation of Golak Nath's Case, Court held: The provisional Parliament is competent to exercise the power of amending the Constitution under Article 368. The fact that the said article refers to the two Houses of the Parliament and the President separately and not to the Parliament,
does not lead to the inference that the body which is invested with the power to
amend is not the
Parliament
but a different body consisting of the two Houses. The learned
Chief Justice thought that the power to amend in the context was a very wide power and it could not be controlled' by the literal dictionary meaning of the word "amend". He expressed his agreement regarding the applicability of Article 13(2) to Constitution Amendment Acts passed under Article 368. He further held that when Article 368 c onfers on Parliament the right to amend the Constitution, it can be exercised over all the provisions of the Constitution. Thus in Kesavanand Bharati Case the Supreme Court reversed its decision in the Golaknath Case with respect to the power of parliament to amend the Constitution under Article 368. In Minerva Mills v. Union of India: The Supreme Court struck down Art 31-C as amended by Section 4 of the 42
nd
amendment, as unconstitutional on the ground that it destroys the basic
features of the Constitution by totally excluding from challenge to any laws giving effect to the Directive principles of the State
Policy,
even if they were inconsistent with the rights
guaranteed by Art 14 & 19. The Indian Constitution is founded on the bedrock of the balance between Parts III & IV. It explained the relationship between Fundamental Rights and Directive Principles
to be complementary to each other. In case of conflict, a harmonious balance has to
be created. The view of the Court that since the validity of Art- 31 C as originally introduced was upheld in Kesavanand Bharati case and therefore it is valid is not correct. Art 31 C in its amended form was not in existence when its validity was upheld in latter case and therefore, Art 31 C in its amended form cannot be upheld by applying the Kesavanand Bharatis ruling
until Minerva Mills decision is overruled. It nullified the effects of the 42
nd
Amendment, which
had taken away the Supreme Courts power to Judicial Review in certain matters. The Court again identified Judicial Review as a part of the Basic Structure, and clarified that it could not be removed by Parliament.
Minority Rights and Reservation Matters- Who Stole the Creamy Layer? Pandit
Jawaharlal Nehru, who presided over the Congress Expert Committee emphasized
before the Constituent Assembly that the removal of socio-economic inequalities was the highest priority. He believed that only this could make India a casteless and classless society, without which the Constitution will become useless and purposeless. The Founding Fathers of the Constitution were thus aware of the ripples of inequality present in society, decried the notion of caste and ensured that the Constitutional framework contained adequate safeguards that would ensure the upliftment of the socially and educationally backward classes of citizens, thus creating a society of equals. The interpretation of the term "socially and educationally backward", and its constituent classes, was left for future generations to decide. In Ashok Kumar Thakur v. Union of India, the Supreme Court has upheld the 27 percent reservation for OBC in admissions in higher educational institutions like IITs and IIMs. The judgment once implemented the total reservation will come to 49.5% from 2 2.5% for SCs & STs. Chief Justice Balakrishnan said Reservation for admission in educational institutions or for public employment has been a matter of challenge in various litigations in this Court as well as in the High Courts. Diverse opinions have been expressed in regard to the need for reservation. But there has been considerable disagreement as to which category of disadvantaged sections deserves such help, about the form this help ought to take and about the efficacy and propriety of what the government has done in this regard. In Indira Sawhney v. Union of India it was held that the reservation for the backward classes the creamy layer should be excluded; the exclusion makes the class a truly backward class. The very concept of a class denotes a number of persons having certain common traits which distinguish them from others. In a backward class if the connecting link is the social backwardness it should be the same. If some of the members are far too socially advanced then the connecting link between them snaps, they would be misfits in the class. After excluding them alone would the class be a truly backward class. This is commonly known as the Mandal Judgment. It is based upon the principle of equality among equals, enshrined in Article 14 of the Constitution. The Apex Court clarified, however, that these benefits should not be extended to those falling within the creamy layer, an expression which is used to define those in the castes or classes that are defined as backward for the purpose of reservations, who in reality do not suffer from any economic or social hardships.
In Unni Krishnan, J.P. & Ors. Vs. State of Andhra Pradesh & Ors. , it was held that right to establish educational institutions can neither be a trade or business nor can it be a profession within the meaning of Article 19(1)(g). This was overruled in T.M.A. Pai Foundation & Ors. Vs. State of Karnataka & Ors. , wherein it was held that all citizens have the fundamental right to establish and administer educational institutions under Article 19(1)(g) and the term "occupation" in Article 19(1)(g) comprehends the establishment and running of educational institutions and State regulation of admissions in such institutions would not be regarded as an unreasonable restriction on that fundamental right to carry on business under Article 19(6) of the Constitution.
Whether the fundamental right to practice and propagate religion includes the right to convert? It was considered by the Supreme Court of India in the case of Rev Stanislaus vs Madhya Pradesh, AIR 1977 SC 908 in which the constitutional validity of the conversion-prohibiting laws enacted
by Madhya
Pradesh
of Raipur challenged the Madhya
and Orissa was
Pradesh
challenged.
Reverand
Stanislaus
Dharma Swatantrya Act by refusing to register
conversions. The Constitution Bench of the Supreme Court headed by Chief Justice A.N. Ray interpreted the word `propagate' used in Article 25(1) of the Constitution as `defined' in the Shorter Oxford Dictionary - "to spread from person to person, or from place to place, to disseminate, diffuse (a statement, belief, practice etc.)". The Bench observed: "We have no doubt that it is in this sense that the word `propagate' has been used in Article 25 (1), for what the Article grants is not the right to convert another person to one's own religion, but to transmit or spread one's religion by an exposition of its tenets." A distinction was made between the right to propagate and the right to convert. The former was allowed while the latter was seen as not part of the fundamental rights.
Executive Action Use and Abuse Identified! In Indira Nehru Gandhi Vs Shri Raj Narain and Another and Vice Versa, Review Petition in Civil th
Appeal Nos. 887 and 909 of 1975. The 39 to
Parliament
Amendment, Which provided that the election
of any person who was holding the
Prime
Ministers office could not be
challenged in a court of law, was declared unconstitutional and struck down by the Supreme Court. This petition of the election-petitioners sets out the issues framed in the trial Court. It then states facts showing that the Thirty-ninth Amendment of the Constitution as well as some amendments by the Elections Laws (Amendment) Act 40 of 1975. In view of the fact the judge is of the opinion that there is no sufficient ground for reviewing the judgment, this review application was dismissed. The infamous Emergency of 1975 was a result of the judgment.
Similarly S. R. Bommai Case is the landmark judgment on Article 356 of the Constitution. The Supreme Court held in this case that Secularism is a basic feature of the Constitution. The Presidents
order to dissolve a State Assembly under Article 356 is subject to Judicial Review,
and if the court finds the imposition of Presidents rule unconstitutional, it can restore the dismissed State Government. The critical point to remember here is that the scope of judicial review is limited to examining in the state, and not whether Presidents Rule should have been imposed at all or not- the latter decision remains the prerogative of the Executive.
Judgments leading to Judicial Activism Take off the Gown, Pull on the Running Shoes! The Shah Bano case was a milestone in the Muslim women's search for justice and the beginning of the political battle over personal law. A 60-year-old woman went to court asking maintenance from her husband who had divorced her. The court ruled in her favour. Shah Bano was entitled to maintenance from her ex-husband under Section 125 of the Criminal Procedure Code (with an upper limit of Rs. 500 a month) like any other Indian woman. The judgment was not the first granting a divorced Muslim woman maintenance under Section 125. But a voluble orthodoxy deemed the verdict an attack on Islam. The Supreme Court provided for a Muslim womans right to maintenance after divorce. The progress made in this matter, however, was negated by the subsequent legislation passed by the Government that was then in power. It enacted the Muslim Women ( Protection of Rights on Divorce) Act, 1986.The most controversial provision of the Act was that it gave a Muslim woman the right to maintenance for the period of iddat (about three months) after the divorce, and shifted the onus of maintaining her to her relatives or the Wakf Board. The Act was seen as discriminatory as it denied divorced Muslim women the right to basic maintenance which women of other faiths had recourse to under secular law. The Shah Bano Case is one of the most significant lawsuits in the history of Indian Judicial system. In Sunil Batra v. Delhi Administration, a writ- petition was allowed even through a letter by some third person who was moved by the inhuman meted out to a prisoner in jail. This judgment opened the gates to the introduction of P.I.L., or Public Interest Litigation in India. The petitioner contended that s. 56 of the Prisons Act which confers unguided, uncanalised, and arbitrary powers on the Superintendent to confine a prisoner in irons is ultra vires Arts. 14 and 21 of the Constitution. It has been well established that convicts are not by mere reason of the conviction denuded of all the fundamental rights which they otherwise possess. For example a man of profession who is convicted would stand stripped of his right to hold consultations while serving out his sentence; but the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment. Likewise even a convict is entitled to the precious right guaranteed by Art. 21 that he shall not be deprived of his life or personal liberty except according to the procedure established by law.
In a landmark judgment of Vishakha v. State of Rajasthan, the litigation resulted from a brutal gang rape of a publicly employed social worker in a village in Rajasthan during the course of her employment. The petitioners bringing the action were various social activists and nongovernmental organizations. The primary basis of bringing such an action to the Supreme Court in India was to find suitable methods for the realization of the true concept of gender equality in the workplace for women. In turn, the prevention of sexual harassment of women would be addressed by applying the judicial process. The Supreme Court did not wait for Parliament to ratify an international treaty, but went ahead and laid down rules to protect woman from sexual harassment at work place. According to this judgment, each workplace must necessarily have sexual harassment code and policy in place.
Article 21 Cases What does Life Really Mean? In Maneka Gandhi v. Union of India, The right to go abroad is a part of ones fundamental right to life and personal liberty under Article 21.The Supreme Court also laid down the following proposition in this case: Articles 19 and 21 are not watertight compartments. The expression personal liberty in Article 21 is of the widest amplitude, covering a variety of rights, of which some have been included in Article 19 and given additional protection. Hence, there may be some overlap between Articles 19 and 21. As a result, a law falling under the purview of Article 21 must also satisfy the requirements of Article 19. In other words, a law made by the State which seeks to deprive a person of his personal liberty must prescribe a procedure for such deprivation, which must not be arbitrary, unfair or unreasonable. The right to education springs from right to life: In case of Mohini Jain V State of Karnataka, the Supreme Court held that right to education is fundamental right under Article 21 of the Constitution. The right to life under Article 21 and the dignity of the individual cannot fully be appreciated without the enjoyment of right to education. The Court observed: Right to life is compendious expression for all those rights which the Courts must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to life under Article 21 and the dignity of the individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to provide educational facilities at all levels to its citizens. In case of Unni Krishnan V State of Andhra Pradesh the Supreme Court was asked to examine the decision of Mohini Jain's case. In the present case the Apex Court partly overruled given in the Mohini Jain case. The Court held that, the right to education is implicit in the right to life and personal liberty guaranteed by Article 21 and must be interpreted in the light of the Directive Principle of State Policy contained in Articles 41, 45 and 46.The Apex Court, however, limited the State obligation to provide educational facilities as follows. (i) Every Citizen of this Country has a right to free education until he completes the age of fourteen years;
(ii) Beyond that stage, his right to education is subject to the limits of the economic capacity of the state. Further the Supreme Court in M.C. Mehta V State of Tamil Nadu the Supreme Court observed that, to develop the full potential of the children they should be prohibited to do hazardous work and education should be made available to them. In this regard the Court held that, the government should formulate programme offering job oriented education so that they may get education and the timings be so adjusted so that their employment is should not be affected. Again in Bandhua Muti Morcha V Union of India, Justice K. Ramaswamy and Justice Sagir Ahmad, observed, illiteracy has many adverse effects in a democracy governed by rule of law. Educated citizens could meaningfully exercise his political rights, discharge social responsibilities satisfactorily and develop sprit of tolerance and reform. Therefore, education is compulsory...., compulsory education is one of the states for stability of democracy, social integration and to eliminate social evils." The Supreme Court by rightly and harmoniously construing the provision of Part III and IV of the constitution has made right to education a basic fundamental right. In Subhas Kumar v. State of Bihar- The right to pollution- free water and air is a Fundamental Right under Article 21 of the Constitution. The Supreme Court M.C. Mehtas cases: ordered the shifting of 168 hazardous industries operating in Delhi as they posed a danger to the ecology. In another M.C. Mehta case, the Supreme Court directed 292 industries located in Agra to change over to natural gas as industrial fuel in order to protect the Taj Mahal. The Supreme Court in Hussainara Khatoon V. Home Secretary, State of Bihar recognized the right to speedy trial as a Fundamental Right under Article 21. In D.K Basu v. State of west Bengal Supreme Court laid down extensive guidelines against any form of torture or cruel, inhuman or degrading treatment, as a part of the Right to Life under Article 21 of the Constitution. In Peoples Union for Democratic Rights v. Union of India it held that nonpayment of minimum wages to workers amounts to a denial of their rights to live with basic human dignity and is a violation of Article 21.
Judgments involving Directive Principles of State Policy: Not Quite Dump Provisions! The Supreme Court recognized the right to free legal aid through a wide interpretation of the meaning and impact of the Directive Principles of State Policy in Haskot v. State of Maharashtra. The Supreme Court directed the State to evolve a uniform civil code in the country in Sarla Mudgals Case. Supreme Court Advocates on: Article 124 (2), 217(1) (appointment of Judges), Article 2229(1) (transfer of Judges) and Article 216 (number of Judges to be determined by President) leave scope for executive interference. There is a requirement of consultation, by the President, with the Chief Justice of India. In S.P. Gupta v. Union of India case, the Supreme Court held that no primacy need be given to the opinion of the Chief Justice of India; it is the executive that has primacy. This case is also known as the Judge Transfer case.
In Record Association v. Union of India: By a seven to two majority, the Supreme Court overruled S.P. Guptas case and held that in a matter of appointment of Judges of the Supreme Court and the High Courts, the President is bound to act in accordance with the opinion of the Chief Justice of India, as well as personal favouritism, has reduced to a minimum through this judgment.
There are plethora of judgments by the Supreme Court since Independence involving myriad of issues and construed as landmark cases in respective fields!! The Supreme Court on cases involving marriage, adoption, custody of children in cases of separation. In Sunita vs. Ashok directs that all marriages, irrespective religions of the couple, or whether they have been conducted according to religious rites and ceremonies, have to be mandatorily registered. This is applicable to the religions. In Gaurav Nagpal vs. Sumedha Nagpal, the Supreme Court said that a husbands riches cannot be cited as logical reason to get custody of a child by contrasting it with the humble economic condition of the estranged wife, and entrusting a teacher mother the task of bringing up a minor son. The Court said In determining the question as to who should be given custody of a minor child, the paramount consideration is the welfare of the child and not rights of the parents under a statute. In Laxmi Kant Pandey vs. Union of India, the Supreme Court issued comprehensive guidelines to be adhered to by all adoption agencies while giving up a child for adoption to people living abroad. In V.P. Shantha vs. Indian Medical Association it held that the service provided by doctors should also be brought within the ambit of the definition of the term Service under Section 2 (o) of the Consumer Protection Act. It is the same medical negligence case which is mentioned so often. It was also held that your right to health is a Fundamental Right under Article 21. Supreme Court also laid down comprehensive guidelines regarding rape trials, especially those involving child victims in Dr. Praful B. Desai vs. State of Andhra Pradesh . This was much needed and long overdue, because earlier the trials were being conducted in such a way that more trauma was caused to the victim, and in most cases they were too intimidated and humiliated to testify properly. In State of U.P. vs. Munshi Supreme Court holds that promiscuity is not a licence to rape. The Supreme Court also directed that a Committee be formed which would come up with a Model Police Act in Prakash Singh vs. Union of India. It was a PIL directed at overhauling the Police Act, 1881 and bringing about police reforms. Accordingly, the Soli Sorabjee Committee drew up such a Modal law; it is now pending adoption and implementation by the Centre and the States. In Lalita Kumari vs. State of U.P the Supreme Court held that the police is dutybound to register an F.I.R. when a complaint is made. In case they refuse to do so, a complaint is to be made to the Chief Judicial Magistrate, who shall take disciplinary action against the errant personnel, and the latter may even be sent to jail. In T.K. Rangarajan vs. State of Tamil Nadu, It was held by the Supreme Court that Government employees have no legal, moral, constitutional, or fundamental right to go on a strike. The
Supreme Court laid down the legal definition of an idiot in Hari Singh Gond vs. State of Madhya Pradesh (relevant in cases where legal insanity or idiocy is claimed as a defence):An idiot is one who is of non- sane memory from his birth, by a perpetual infirmity, without lucid intervals: and those are said to be idiots who cannot count 20, or tell the days of the week or who do not know their fathers or mothers or the like. And it is for the accused to prove they were idiots or otherwise of unsound mind. The Supreme Court in Epuru Sudhakar vs. State of Andhra Pradesh holds that the Governors power to grand pardon under Section 321 of the Code of Criminal Procedure is not unlimited and is subject to judicial review. This case on a PIL filed because a large number of hardcore convicts had been pardoned on purely political considerations, without there being any reasonable ground. In Abdul Rahim Kolota Sheikh vs. State of Gujarat it was held by the Supreme Court that once the POTA Review Committee has dropped all charges under POTA against an accused, he cannot be prosecuted under POTA; the decision of the POTA Review Committee is binding on the prosecution and the court.
Conclusion: Indian Constitution has made successful attempt to bring about synthesis between concepts of Individual freedom and social Justice. It is an Organic Document which defines the powers and functions of various organs of the state and guarantees to its citizens certain fundamental rights. With a passage of time Supreme Court has rightly come out as Custodian of our Fundamental Rights as guaranteed to us by the Constitution and has always upheld the same. Lastly I would like to quote G.Austins quote :
The Judiciary was to be an arm of the social revolution upholding equality that Indians had longed for.
Bibliography: 1. Constitutional law Of India by J.N Pandey. 2. Jennings Some characteristics of the Indian constitution. 3. Basu Introduction to the Constitution of India. 4. H.M Seervai- Constitution of India. 5. In re: Berubaris, AIR 1960 SC 858 6. Shelat and Grover ,JJ., in Kesavananda Bharati v. state of Kerala, AIR 1973 SC 1461. 7. S.R Bommai v UOI (1994) SCC 1 8. A.K Gopalans Case AIR 1950 SC 27 9. Maneka Gandhi AIR 1978 SC 27. 10. Sunil Batra v. Delhi Administration AIR 1978 SC 1675 11. M.H Haskot v. Home Secretary of Bihar, AIR 1979 SC 1360. 12. M.C Mehta v. Union Of India (1987) 1 SCC 395 13. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299. 14. D.S Nakara V. Union Of India. AIR 1983 SC 130 15. T.M Pai Foundation v. State of Karnataka, AIR 2003 SC 355. 16. Rev Stanislaus vs Madhya Pradesh, AIR 1977 SC 908