L A W  A N D  J U S T I C E

Whimsicalities of Law
Joginder Singh Toor

GOLAk Nath's case raised a storm in the annals of constitutional law and its dust covered the Constitution for over years. The question it raised still remains unsettled.

The Constituent Assembly, while drafting the Constitution, took every care to safeguard the rights granted to the citizens of India, by making a special provision in Article 13 that any law in force, in the territory of India, if found inconsistent with the provisions of the Constitution shall, to the extent of inconsistency, be void. Further provided that State shall not make any law, which takes away or abridges the rights, conferred by the Constitution.

Golak Nath, a Brahmin from Bengal, having embraced Christianity, could not bear the pressure of his Kuleen Brahmin family, shifted to Jalandhar in Punjab and became the mission head. He held properties that came under the axe of the Punjab Security of Land Tenures Act declaring 418 acres of land as surplus. His appeal to Financial Commissioner, Punjab and civil writ petition before the Punjab High Court failed. The same was challenged in the Supreme Court of India under Article 32 as violative of his fundamental rights.

In the petition the challenge was to the 17th Constitutional Amendment whereby the Punjab Security of Land Tenure Act was placed in the 9th Schedule, which protects any law, placed in 9th Schedule from being challenged in any court.

The question arose as to the scope of Article 13, if it covers in its ambit, an amending law passed under Article 368 of the Constitution including Chapter III containing fundamental rights, and if it takes away or abridges the fundamental rights can it be said to be violative of Article 13 and struck down as void. In two earlier cases i.e. Shankari Parasad's 1951 and Sajjan Singh's case 1965, the Supreme Court had held that Parliament had the power to amend the fundamental rights. The majority of 11 judges Bench hearing Golak Nath's case held that Parliament's power to amend the Constitution could not be used to abridge the fundamental rights in part, because an Act amending the Constitution is law within the meaning of Article 13.

The courts decision in this case according to Granville Austin, "which reversed precedents was masterpiece of unintentional timing, for it gave Mrs Gandhi a cause and an enemy in her guest for renewed power. Mrs Gandhi's Government felt that its 10 Point Program could not be achieved nor its socialism slogan could wholly or partly be secared without infringing property rights which the judgement had protected.

"Thus the Golak Nath's case began the great war as distinct from earlier skirmishes, over parliamentary versus judicial supremacy" observes G.Austin. And, branding the property lobby by Mrs Gandhi as anti-socialist gave rise to political upheavals in the late sixties and early seventies.

Swami Keshwa Nand Bharti head of a 'Muth' challenged the Kerala Govt.'s land reforms Acts to impose restrictions on management of 'Muth' properties. Before challenging the same in the Supreme Court, Nani Palkhiwala, when contacted, opined that it could be the basis for major Supreme Court judgement. Keshwa Nand filed the petition under Article 29, which later involved major issues like validity of 24th, 25th and 29th Constitutional amendment and the validity of placing the Reforms Act of the Kerala in the 9th Schedule.

One of the questions again raked up was, whether the law amending the Constitution is a law within the meaning of Article 13.  The majority of the 13 judges bench held that law in Article 13(2) refers to the exercise of an ordinary power and does not include constitutional amendment under Article 368.  Golak Nath's case was overruled. The Constitution 24th amendment was passed to get over the decision of the Supreme Court in Golak Nath's case expressly empowering the Parliament to amend any provision of the Constitution including those relating to fundamental rights and further making Article 13 of the Constitution inapplicable to an amendment of the Constitution under Article 368. Golak Nath's case was hindrance in this attempt, which was removed in Keshwa Nand Bharti's case thereby giving Parliament the power to amend any provision of the Constitution including Part-III but restricting the power not to change basic structure of the Constitution.

The concept of basic structure of the Constitution was considered vague and a petition was filed for review of Keshwa Nand's case, which was listed to be heard by a 15 judges constitutional bench. Justice V.K.Krishna Iyer was the member of the Bench. In an article published in the Popular Jurist, Justice Iyer mentioned that after one of the hearings he inadvertently expressed to another colleague judge that he feels that there is some force in the petition. Somehow this was conveyed to the then Chief Justice presiding over the Constitution Bench, the Chief Justice, on the next date of hearing when the Bench met, the lawyers were to argue and the court room was packed, the Chief Justice suddenly announced the dissolution of the bench. This indeed was a rare decision, selfdom taken without taking other colleagues at the bench into confidence. The controversy regarding the basic structure remains unsettled. The question when law is law and when it is not shall continue to bog the minds of the people.  Yet this is no academic exercise and its impact on the people’s lives and property is real.

[Joginder Singh Toor is a senior lawyer at the Punjab and Haryana high Court. Jogindersingh_toor@yahoo.com]

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