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Tracing the history

Within a year and half of commencement, the Constitution was amended.

india Updated: Apr 13, 2006 13:02 IST

Never has the confrontation between legislature and the judiciary been as serious as in recent times. Whether it is Parliament's power of expelling tainted members exposed in the sting operations, the Supreme Court ruling dealing with minority educational institutions or Jharkhand, judicial intervention has often triggered confrontation with the legislature.

The problem manifested itself from the very beginning. Within a year and half of commencement, the Constitution was amended to nullify certain judicial decisions and forestall future judicial actions.

Matters came to a head over the judicial interpretation of the property clauses of the Constitution, which led to the enactment of the Constitution (Fourth Amendment) Act in 1955. Judiciary was severely criticised in Parliament on that count.

The fact that constitutional provisions allow Parliament to amend the Constitution, court's decision could be circumvented. Since the Constitution could be amended by a majority vote of two-thirds of the members present and voting and an absolute majority of the total membership in each House of Parliament, the ruling party could easily muster such majority. The court's decisions could not obstruct the reforms in the property rights.

In late sixties, the court became bolder, and it challenged Parliament's power to amend Constitution. This brought about a major confrontation between the judiciary and legislature.

In 1967, the Supreme Court, by a thin majority of 6-5, held in Golaknath v. Punjab that Parliament could not amend Constitution to take away or abridge fundamental rights. This decision was severely criticised.

Parliament retaliated by passing the 24th amendment, which explicitly stated that the House was not limited in its power of constitutional amendment. When that amendment was challenged, the court, in its 13-bench verdict held in Kesavanand Bharati v. state of Kerala that although Parliament could amend every provisions of the Constitution, it could not alter the basic structure of the Constitution.

This decision seemed most unsustainable and contrary to the theory of judicial review. It established the supremacy of a non-elected body (read court) against the elected one (read Parliament).

However, during the emergency in 1975, the ruling Congress passed draconian amendments with the help of its comfortable majority and absence of any Opposition. As a result the limitation upon Parliament's power of constitutional amendment acquired legitimacy.

The Supreme Court struck down in Indira Gandhi v. Raj Narain a constitutional amendment, which sought to validate the election of the Prime Minister, earlier set aside by the Allahabad High Court on some technical ground, deemed destructive of the basic structure of the Constitution.

The post emergency period (1977-98) is known as the period of judicial activism because it was during this period that the court's jurisprudence blossomed with doctrinal creativity.