The Supreme Court’s Judgment on the Constitution (42nd Amendment) Act, 1976

By N. A. Palkhivala

Summary

In this Forum of Free Enterprise booklet — a reprint of his two-part Indian Express article of 16 and 17 May 1980 — N. A. Palkhivala welcomes the Supreme Court’s judgment striking down sections 4 and 55 of the Constitution (Forty-Second Amendment) Act, 1976. He reads the decision (the Minerva Mills case) as ‘rekindling the light of the Constitution’ that, in his telling, went out in 1976 when the amendment was rushed through Parliament during the Emergency while opposition leaders were jailed without trial. Palkhivala casts the Supreme Court as the watchdog of the Constitution against a Parliament that sought to make itself the master rather than the creature of the fundamental law.

The core of his argument rests on the basic-structure doctrine from Kesavananda Bharati’s case (1973), reaffirmed in Mrs. Indira Gandhi’s case (1976): Parliament’s amending power under Article 368 cannot be used to alter or destroy the basic framework of the Constitution. He insists that the will of Parliament is not the will of the people, that constitutional amendments in many countries require a referendum, and that excluding judicial review of amendments affecting the basic structure would be ‘the death-wish of the Constitution’. He illustrates the contempt for the rule of law with the 1975 Forty-First Amendment Bill, which sought lifelong immunity for the President, Prime Minister, and Governors. He closes by warning that a government holding the life, liberty, and property of its citizens under unlimited control is ‘but a despotism’, and that the recent judgment saves the people from such despotism.

Key points

• Reprint of Palkhivala’s two-part Indian Express article (16 & 17 May 1980), issued as an FFE booklet dated 20 June 1980.

• Celebrates the Supreme Court striking down sections 4 and 55 of the Constitution (42nd Amendment) Act, 1976 (Minerva Mills).

• Anchors the argument in the basic-structure doctrine of Kesavananda Bharati (1973), reaffirmed in Indira Gandhi’s case (1976).

• Holds that Article 368’s amending power cannot destroy the Constitution’s basic framework.

• Argues the will of Parliament is not the will of the people; many constitutions require a referendum to amend.

• Cites the 1975 Forty-First Amendment Bill granting lifelong immunity to President/PM/Governors as contempt for the rule of law.

• Frames the Supreme Court as watchdog of the Constitution against a Parliament seeking to become its master.

• Closes by equating unlimited governmental power with despotism.

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