How has our constitutional law evolved in the last 75 years?

To understand how our Constitution has fared in the last 75 years of its existence, we need to look at how the Legislature, Executive, and Judiciary have conducted themselves vis-à-vis the respective roles assigned to them by the Constitution. Frequent turf wars between the Legislature and Judiciary, which began from the very year the Constitution came into effect, sometimes resulted in landmark decisions, often in missed opportunities and many a time in abject capitulation to the government in power. The Judiciary has often gone beyond its adjudicating powers and stepped into the Executive and Legislature domains, directly taking over the Executive’s administrative duties¹ or making or nudging the Legislature to make laws where needed, in an activism mode.² Executive apathy in administering laws, both in the letter and in the spirit of the Constitution, gave rise to the tradition of Public Interest Litigation (PILs) from the 1970s onward. PILs could be filed by individuals or organisations under the Writ Jurisdiction on behalf of groups/ communities who are not in a position to access justice due to economic or other disadvantages.

We have seen how rule-of-law principles are ingrained in our Constitution, creating the framework for governing a democratic nation. If we go over some of the important cases which have landed up in courts challenging the Parliament’s law-making or how the Executive has implemented (or not) the laws, and how well or poorly the Judiciary has exercised its immense powers as the final arbiter of the Constitution, we would have a fair idea how the three arms of the State have measured up to the Constitutional standards.

Case: Indira Nehru Gandhi v. Raj Narain (1975): In this famous case from the Emergency period, the Supreme Court nullified the 39th Constitutional Amendment (1975) for violating the principles of judicial review, the supremacy of the Constitution, the separation of powers, and the right to equality.

The backstory: Indira Gandhi won the 1971 general elections against Raj Narain. Raj Narain petitioned the Allahabad High Court alleging that Indira Gandhi had indulged in electoral malpractices. The High Court in 1975 found Indira Gandhi guilty of these allegations, invalidated her election and disqualified her from holding any public office for six years. Indira Gandhi appealed to the Supreme Court, which temporarily stayed her removal from Prime Ministership till the case was decided.

Even before her case could be decided by the Supreme Court, the government declared a National Emergency under Article 352, suspending Fundamental Rights. The Parliament then passed the 39th Constitutional Amendment, which inserted Article 329A, validating Indira Gandhi’s election retroactively and placing the elections of the President, the Prime Minister, and the Speaker of the Lok Sabha outside the purview of judicial review. The Supreme Court cited the Basic Structure Doctrine to strike down the 39th Amendment for violating:

• Judicial Review - by stripping the Judiciary of its power to scrutinise laws, including Constitutional amendments, and excluding courts from adjudicating election disputes (Article 13);
• Supremacy of the Constitution - by elevating an individual to a position of power who could not be touched by constitutional standards (Article 13);
• Separation of Powers - by validating an election that was found invalid by the Judiciary;
• Fundamental Right to freedom of speech and expression - by insulating a specific politician’s election from legal challenge (reading free and fair elections as integral to Article 19(1)(a);
• Equality before law - by placing certain public officials above the law through a discriminatory and unreasonable classification (Article 14).

Footnotes

1. T.N. Godavarman Thirumulpad v. Union of India & Others (1995) - This is a “continuous mandamus” where the Supreme Court is managing all matters relating to forests for the last 30 years. ↩

2. Vishaka v. State of Rajasthan (1997) - The Supreme Court established the “Vishaka Guidelines” on protection of women from sexual harassment at the workplace, as there was no law in place. These guidelines served as the legal framework in India till the government enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. ↩