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.
