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Insight into the "basic structure" of Congmen
Insight into the "basic structure" of Congmen

Surya Prakash
The Pioneer
February 26, 2000


Title: Insight into the "basic structure" of Congmen
Author: Surya Prakash / New Delhi
Publication: The Pioneer
Date: February 26, 2000

The first thing Indira Gandhi did after imposing the emergency was to push through the 39th Amendment to bar courts, with retrospective effect, from entertaining election petitions against the Prime Minister.

This was to overcome the verdict of the Allahabad High Court, which had found her guilty of corrupt electoral practice.

The extraordinary aspect of this episode was the speed with which this deed was accomplished. The Bill was introduced in the Lok Sabha on August 7, 1975 and, much against rules, debated and passed the same day. It was passed by the Rajya Sabha on August 8 and, hold your breath, ratified by the Assemblies of 17 states the very next day. Then an obliging President gave his assent on August 10 and an even more obliging bureaucracy notified it that very day.

This Amendment knocked out the principle of equality before law enshrined in Article 14. But this was just the beginning. The basic features of the Constitution were subjected to much greater bombardment in the 42nd Amendment that was passed by Parliament in November, 1976, after the Lok Sabha had extended its life.

This Amendment, which mutilated the Constitution, was done after a party committee headed by Swaran Singh conducted a spurious constitutional review. It introduced a new Article to deal with "anti-national activity" (a euphemism for political opponents), put constitutional amendments beyond judicial review, stripped the High Courts of their powers and bolstered the emergency powers of the executive.

But the most obnoxious clause was the one which empowered the President to make, by order, necessary provisions, "including any adaptation or modification of any provision of the Constitution, for two years from the date of his assent to this Act, for the purpose of removing difficulties in giving effect to the provisions of the Constitution as amended". In other words, the Congress majority in Parliament in 1976 did away with the elaborate procedure for amending the Constitution and empowered the President to do so by executive order.

Today, the Congress party has a string of objections to the proposed constitutional review. Here is a glimpse of what Congressmen said in Parliament in 1976 on some constitutional matters:

ON THE RIGHT TO AMEND THE CONSTITUTION

Indira Gandhi: Shri Gokhale and others quoted Jawaharlal Nehru's admonition to the Constituent Assembly not to tie down future generations. So, revision and adjustment in changing conditions are part and parcel of our constitution. Those who want to fix it in a rigid and unalterable frame do not know the spirit of our Constitution and are entirely out of tune with the spirit of new India. Vasant Sathe: We are sovereign. We have the constituent power ..... and we do not want anybody to tell us this or that.

A R Antulay: The Constitution has to be changed at every interval of time. Nobody can say that this is the finality. A constitution which is static is a constitution which ultimately becomes a big hurdle in the path of the progress of the nation.

N K P Salve: The means of amendment of the Constitution are the very means of conservation and preservation of the Constitution. The sovereign legal rights of Parliament are unhampered or unimpeded by any doctrine of eternal immutability of the basic structure.

Swaran Singh: We cannot shirk that responsibility. We should not at all be apologetic about changing the Constitution.

C M Stephen: Now the power of this Parliament (through the 42 Amendment) is declared to be out of bounds for any court. It is left to the courts whether they should defy it. I do not know whether they will have the temerity to do that but if they do..... that will be a bad day for the judiciary. The committee of the House is sitting with regard to the enquiry into the conduct of judges and all that. We have got our methods, our machinery.

D B Chandre Gowda: The framers of the Constitution ..... rightly thought that the future generation would not accept the Constitution as accepted by them on November 26, 1949.

Priyaranjan Das Munshi: The government has shown the courage and wisdom to bring in such a bold measure and those who brought this mesure should be considered as the greatest patriots of the country for all time to come.

ON THE DOCTRINE OF BASIC STRUCTURE

Indira Gandhi: We do not accept the dogma of the basic structure. Sardar Swaran Singh remarked that some judges have imported the phrase "basic structure". I would not say they have imported it. Since it does not exist in any other Constitution, they have invented it.

N K P Salve: The concept of basic structure is something so utterly vague, abstract, ambiguous and undentifiable that one cannot understand what exactly is sought to be preserved by preservation of the basic structure.

Swaran Singh: Now, what is the basic structure? The word "basic" and the word "structure" do not occur in the Constitution. They (the courts) say: You cannot add to the Preamble; it will alter the rhythm of the Preamble. This expression is something very interesting. First the basic structure, now the rhythm. Is it that we are sitting here as poets in order to look to the rhythm?

H R Gokhale: First of all, I do not agree .....with the proposition that there is something like the basic features which could not be amended. Everything in the Constitution is capable of amendment. What is not defined cannot exist. Therefore, I am not worried at all with regard to the contention that the so-called non-existent basic features are not capable of amendment.

Vasant Sathe : The Supreme Court itself has not defined what the basic structure is.

D B Chandre Gowda: This House (Lok Sabha) has more authority than even the Constituent Assembly to go into the basic features of the Constitution.

C K Jaffer Sherief : Parliament has got the inherent right to amend the Constitution and it will have to be preserved. If we want to be true to our people, I suggest that the right to property should go. Article 311 should be dropped.

ON THE HIGHER JUDICIARY

Swaran Singh: Unfortunately, the courts transgressed the limits prescribed for them. It is a crude sort of invasion.

N K P Salve: In the life of every nation ....there comes a time when the Constitution has to be saved from the court and the court from itself.

Priyaranjan Das Munshi : Until and unless we have the capacity to change the class character and concept of judicial wisdom of the country in regard to the central law and the state laws, this will continue.

These quotes from the debates of Parliament provides a glimpse of the basic structure of Congressmen. Their supine nature, specially when the Nehru-Gandhis are in power, has led to untold constitutional atrocities.

In the light of their weighty arguments in favour of radical constitutional change and against the doctrine of basic structure, Sonia Gandhi and the Congress Party will have to disown Indira Gandhi and publicly atone for the party's sins, if they are to make a credible intervention in the current debate on constitutional reform. Otherwise, the past will haunt the party and deprive it of the moral right to lead the campaign for preservation of the basic features of the Constitution.
 



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