Palkhivala on the 42nd Amendment Act
Nani Palkhivala was one of India’s leading jurist and economist. Palkhivala was at the forefront of bridging the chasm between jurispudence and the common man, and stood as a staunch defender of individual freedom and fundamental rights. On his 97th birth anniversary, we revisit his critique of the 42nd Amendment Act, published in May 1980. You can read the complete essay here on Indian Liberals.
The Constitution is a part of the priceless heritage of every Indian. Its founding fathers wanted to ensure that even while India remained poor in per capita income, it should be rich in individual freedom. This, however, is not acceptable to certain political parties. The light went out of the Constitution when, in 1976, a few days after Divali-the festival of lights-the Forty-Second Amendment was rushed through Parliament while most of the opposition leaders were languishing in jail without a trial.
It is the light of the Constitution which has been rekindled by the Supreme Court. It is of the utmost importance that the ordinary citizen should understand what was at stake and what has been salvaged for him by the Supreme Court’s judgment. It was held in Kesavananda Bharati’s case (1973) that while Parliament has the power under Article 368 to amend any part of the Constitution (including the chapter on fundamental rights), the power cannot be so exercised as to alter or destroy the basic structure or framework of the Constitution; and this ratio was reaffirmed and applied in Mrs. Indira Gandhi’s case (1976) in which a constitutional amendment to make the Prime Minister’s election to Parliament unassailable in a court of law was declared void. The rationale of the Supreme Court’s judgment in Kesavananda Bharati’s case is simple and cogent. Parliament is only a creature of the Constitution. Periodically, the Lok Sabha is dissolved, and members of the Rajya Sabha retire, while the Constitution continues to reign supreme. If Parliament had the power to destroy the basic structure of the Constitution, it would cease to be a creature of the Constitution and become its master. Article 368 which confers on Parliament the power to amend the Constitution cannot be read as expressing the death-wish of the Constitution or as a provision for its legal suicide. In exercising its amending power, Parliament cannot arrogate to itself the role of the official liquidator of the Constitution. The crucial point is that the people of India are not associated with the amending process at all under Article 368.
This factor is decisive in determining the ambit of the amending power. By contrast, in many countries no amendment of the Constitution can take place without the consent of the people determined by a referendum or by the summoning of a convention or otherwise. As regards constitutional amendments, the will of Parliament is certainly not the will of the people. To equate Parliament with the people is to betray complete confusion of thought. In choosing their representatives, the electorate take into account a vast number of factors which have nothing to do with constitutional amendments. This has been proved time and again in countries where the people’s will is ascertained on a referendum held upon Parliament’s proposal to alter the Constitution.
The myth that Parliament’s will is the people’s will was exploded at the election held in March 1977. Did the Parliament which passed the Forty-Second Amendment and which also approved of the proclamation of Emergency, represent the will of the people? The people gave their resounding verdict in 1977 on those misguided representatives who claimed to be supreme over the Constitution and over basic human values.
The Supreme Court has held that to abrogate the fundamental rights while purporting to give effect to the directive principles is to destroy one of the essential features of the Constitution. Ignorance and arbitrariness, injustice and unfairness, would not be open to challenge on the touchstone of the invaluable human rights if the amended Article 31C were held to be valid. A study of political science leaves no doubt that the philosophy underlying Article 31C is the very quintessence of authoritarianism. All progressive states, democratic as well as authoritarian, profess to act in accordance with the broad principles which are called directive principles of state policy in our Constitution. The basic difference between an authoritarian state and a free democracy is that the former subordinates human freedoms to directive principles of state policy, while the latter achieves the same objectives by methods which respect human freedoms.
The conviction underlying our Constitution is that citizens need protection against their own representatives, because men dazzled by the legitimacy of their ends seldom pause to consider the legitimacy of the means. Articles 14 and 19 enshrine human rights which are universally recognised as essential to a free society-they are almost identical with the provisions in the Universal Declaration of Human Rights which was adopted by the General Assembly of the United Nations on December 10, 1948 and to which India is a signatory. The bogey of a conflict between fundamental rights and directive principles is wholly misconceived. While Part IV (directive principles) contains the directory ends of the state, Part 111 (fundamental rights) indicates the permissible means of giving effect to those ends. There can be no conflict between the directory ends and the permissible means. The only conflict is between the Constitution and those who refuse to accept the discipline of the Constitution. The real question is not of social interest versus the individual’s but whether in the name of social interest the basic human freedoms can be trampled under foot. The three attributes of an authoritarian state are-denial of equality before the law, denial of freedom of speech and the right to dissent, and denial of various personal freedoms which are comprised in the omnibus word “liberty”. The above three attributes of authoritarianism are patently visible in Article 31 C which abrogates the fundamental rights conferred by Articles 14 and 19.
Thirty years ago the Supreme Court had quoted with approval the dictum : “A government which holds the life, the liberty and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power, is after all but a despotism.” The momentous significance of the Supreme Court’s recent judgment is that it will save our people from such despotism in the unfolding future.
