Dharmashastra National Law University, Jabalpur (DNLU) in association with the Confederation of Alumni for National Law Universities Foundation (CAN Foundation), hosted an insightful Online Lecture with Justice G.S. Sandhawalia, Judge, Punjab & Haryana High Court, Mr. Ujjal Bhuyan, Judge, Bombay High Court as Keynote Speakers along with Mr. Vikramjit Banerjee, Additional Solicitor General & Senior Advocate, Supreme Court of India on the 7th of February, 2021. The Panelists deliberated on the topic of “Parliament & The Judiciary on Constitutional Amendments: Shifting Paradigms”.
Prof. Balraj Chauhan paid reverence to all the guests and panelists for the day. He welcomed the dignitaries who have contributed to the ‘science of law’, as he believes. He described Justice Sandhiawala as an epitome of modesty, knowledge and intellect. He also remarked that Justice Sandhiawala’s attempts for curbing noise pollution and his generous attitude towards the poor is laudable. Justice Bhuyan’s heart, he said, beats for the common man. He complimented his lectures which can effectively help one develop intellectual integrity.
Justice Sandhawalia termed the discussion as an important one pertaining to shift of the Apex Court and the view of the Apex Court. The Constitution, Parliament and the State legislatures in India have the power to make laws within their respective jurisdiction; the Judiciary, Executive and the Legislature being the three pillars on which the effective functioning of the democracy is rested. The balance as opposed to conflict is necessary to achieve the ultimate public welfare and the smooth functioning of the Constitutional Machinery.
He stated that judicial appointments were not dictated by the Executive. A change came when Justice S.R. Das was going to retire. Letter was written by the then President to the Home Minister that there was no Judge from Tamil Nadu in the Supreme Court. Thus, appointments made at communal and regional lines were always initiated at the behest of the Government in power. The member of Law Commission then sent a note against such factors and said that the High Courts should not become a site of a communal museum in the name of representations of a caste or community, and at the cost of the efficiency and merit of the Courts. Policy of supersession and transfers was also initiated to support the politically motivated ideals.
Speaking on Judicial Review, he said that the power of Judicial review stems from the United States: Article 5 of the US Constitution provides two ways to make changes and amendments to the Constitution. -. Conventional Method calls for application from the Legislature of 2/3rd states and for convention proposing Amendments for ratification and when ratified, it is added to the Constitution.
Justice Sandhawalia was of the opinion that the tussle between Parliament and Judiciary can be seen after taking a look at the Amendments and new legislations. He referred to Pandit Nehru’s Constitutional Debates on 8th of November regarding the Article 368 of the Constitution. Our Constitution is striking a balance between flexibility and rigidity. Dr. Ambedkar referred to American Constitution and said that the only limitation is the majority of no less than 2/3rd members. The power to amend is supreme on basis of elected adult suffrage, was in the mind of founding members.
He quoted Palkhiwala, “Power of Amendment as a power cannot be construed as authorizing destruction of other powers conferred by the same instrument and if there is no limit, it can destroy the Judicial power. At that time Congress Government had enacted several laws in states with the aim of reforming land ownership and tenancy structures. In 1950, in AK Gopalan[1] Case, the Apex Court freedom was removed by the state as per the system set up by law.
Thus, it was held in his conclusion that the judgment was only an expression of certain doubts which had assailed regarding the questions of paramount importance to the citizens of the Country to know that whether the Basic Features of the Constitution under which we live, are to endure for all times or at least for the foreseeable future.
The Apex Court constituted the Bench of 11 Judges to hear the case of IC Golaknath vs State of Punjab[2] in 1967 for testing the validity of the 1st, 4th and the 17th Amendment had to be challenged on account to the earlier decisions in Shankari Prasad and in Sajjan Singh and until and unless these are overruled the petitioners could not have succeeded. The Court then, while shifting major instances got in the principle of Prospective Overruling the earlier judgments, since by overruling the earlier judgments and the earlier Amendments being declared unconstitutional, the difficulty that Courts were facing was that all land reforms legislation made from 1950 to 1967, would be rendered invalid.
The political players of the various segments in the country, we notice sometimes are more interested in fulfilling their individual aspirations. The ease of the process of the amending of the Indian Constitution is due and is to one party dominance in the Centre and the state. Thus, it has been observed that in spite of the assurances given in Part III of the Constitution, the Amendment of the Constitution would become a play thing of this special majority.
This is how he summarised the portions from 1950 till the judgment in Sajjan Singh, where also as we have noticed it was only by 6:5 where the Court shifted its view from 1950. But for two decades, the view prevailed that the Constitution was Supreme.
“History is there, but it should not repeat itself”
As he touched on the British Constitution and the power of the Parliament. In the UK, the power of Parliament is Supreme. So, since we have borrowed heavily from the UK Constitution so the Courts at that stage were of the view that an elected government would not as such, harm the people or the Constitution or the Parliament itself on account of maybe some of its policies that it wanted to implement. As we noticed, the net result was that a Constitutional Amendment even if it abolished certain Fundamental Rights, it was held not to be questioned if the Amendment was passed with the requisite majority. Resultantly, we can see any ruling party which has 2/3rd majority can amend the Constitution to any extent and the Judiciary could not interfere. At that stage, the Apex Court could not apprehend the possibility of the Parliament doing anything that could damage the Constitution. The fundamental principle at that stage being, the Parliament on whom such power had been conferred would not abuse it.
But the doubt was that the Fundamental rights would become the toy of the majority in Parliament. Justice Hidayatullah observed that the Part III of the Constitution gives us so many assurances and that it would be difficult to say that they were playing the special majority. The most common part of the Constitution will stand on the same footing as any other provisions.
If we could hold that the Parliament has the unlimited power to amend then it could also abolish the position of President, it can bring the concept of federalism, could Fundamental Rights be abrogated and the Democratic Republic could be converted into one party system.
The Session concluded with Vote of Thanks delivered by Mr. Ankit Swarup, EC Member, CAN Foundation.
