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The Supreme court judgement on the SC/ST act and
the subsequent review petition file by the govt on it has again brought forward
the tug of war between the Executive and the Judiciary. Therefore, it is right
time to go through the history of this contest and the various amendments and
judgements related to this matter. Also, Polity is an important component of
the GS paper of UPSC Civil services prelims, as for the last 7 years the
average weightage for polity questions is 15 marks and last year it was 22
marks making one of the make or break subjects for IAS Preparation.
Round 1
The issue starts right at the start of independent
India, when the Govt was carrying out Redistribution of land to implement the
socialistic principles envisioned in the constitution. Subsequently this move
was challenged in the court of Law based on Article 13 – Laws
inconsistent with or in derogation of the fundamental rights as
then Right to Property was a Fundamental right under Article 31. {this
was repelled by 44th amendment – 1978} and the
courts were giving decisions against the government.
The Govt therefore introduced the First Amendment
bill which added the 9th schedule to the constitution and all
the property related laws were put in this schedule. (please read other
provisions of this amendment as well from “Indian Polity by LAXMIKANT”,
this is important for IAS Preparation)
9th Schedule – Laws put under this
schedule cannot be challenged in the court of law.
The Supreme upheld this amendment in the Shankari
prasad (1953) and Sajjan Singh (1965) judgements.
Round 2
Golaknath Case (1967) – In the face of the 1953
Punjab Security and Land. Tenures Act, the state government held that the
brothers could keep only thirty acres each, a few acres would go to tenants and
the rest was declared ‘surplus’. This was challenged by the Golak Nath family
in the courts on the grounds of Article 14 and article 19 (f) and (g) –
Equality) and the case was referred to the Supreme Court. The question raised
was whether an amendment should be considered as a law as defined under article
13 of the constitution.
The SC decided that Amendment is a law, and all
laws can be reviewed by the court. The Judgement stated that Parliament cannot
amend the Fundamental Rights.
The Govt’s response to the Golaknath case was 24th and
25th amendment to the constitution. (Art 13 and 368)
24th amendment – 1) Parliament can
amend any part of the constitution including Fundamental rights.
2) Amendment is not a law
3)Compulsory for President to give his assent to
constitution amendment bill.
25th Amendment – 1) Curtailed the
Right to property by stating that laws relating to property cannot be
challenged n the grounds of Equality.
2) Provided that any Law made to give effect to
Directive Principles contained in article 39 (b) or (c) cannot be challenged on
the grounds of violation of rights guaranteed under article 14, 19 and 31.
Round 3
Kesavanand Bharti Case – In this case, Swami HH
Kesavanand Bharati challenged Kerala govt attempts to impose restriction on his
property under article 26 – Right to manage Religiously owned property without
Government Interference. This case also challenged the 24th, 25th and
29th Amendments passed by the Govt.
The Court Ruled that the 3 amendments challenged
were valid and confirmed that the Govt has the power to amend any part of the
Constitution including FR, as long as it does not alter the Basic Structure of
the constitution. Hence a new Concept the Basic Structure Doctrine was
introduced by the SC to curtail the amending powers of the Parliament.
Basic Structure has not been defined by the SC,
however it is based on the principles given in the Preamble. Over the years, SC
has confirmed the following as the part of the Basic Structure of the
constitution –
1. Judicial Review
2. Republic
3. Secular nature of the state
4. Article 14 and 19 of the constitution
5. Supremacy of the constitution
6. Welfare State
7. Free and Fair Elections
8. Unity and Integrity of the Nation
9. Parliamentary system
10. Separation of Powers. Etc.
The Basic Structure Doctrine was first used on the
Raj Narain v/s Indira Gandhi Case, where SC struck down the 29th Amendment
claiming, it prohibited Judicial Review which is a part of the Basic structure
of the Constitution.
Round 4
Govt passed the 42nd Amendment
which gave superior powers to the Parliament to amend the constitution. It
altered the Amending procedure and Scope.
SC Struck Down the 42nd Amendment
on the grounds that a Limited Amending Power itself is a part of Basic
Structure of the Constitution in the Minerva Mills Judgement 1980.
The Current situation is Govt can amend any part of
the constitution, provided it does not affect the Basic Structure of the
Constitution, which is to be Decided by the SC.
The last major chapter in the above war was 99th Amendment,
which established NJAC (National Judicial Appointments Commission) to replace
the collegium system. The Supreme struck Down the amendment, stating it
violated the Separation of Power’s principle (Executive Overreach) and
Independence of Judiciary.
We hope this post was useful for your IAS Preparation.
All the Best.
