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August 19, 2019

Will Indian SC toe its legacy of nullifying laws passed by its legislators?

Top Story

August 19, 2019

LAHORE: Now that some retired Indian bureaucrats and military officers like former Air Vice Marshal Kapil Kak, retired Major General Ashok Mehta, former IAS officers, Hindal Haidar Tyabji, Amitabha Pande and Gopal Pillai, and former member of the home ministry’s Group of Interlocutors for J&K, Radha Kumar, etc have moved their country’s Supreme Court over abrogation of Article 370 and consequent bifurcation of Held Kashmir, it remains to see how the arbiters across the border react to the situation, where the Premier Narendra Modi-led government has surely altered its Constitution’s “basic structure”.

Terming the presidential order on abrogation of Article 370 as “constitutionally invalid”, the petition states thatthis presidential act required the Constituent Assembly of Jammu and Kashmir to recommend a presidential notification under Article 370(3) declaring that Article 370 shall cease to be operative”.

Research tells us that the Indian apex court has a history of nullifying many laws passed by the country’s legislators and has often been hailed globally for its independence. In August this year, the incumbent Indian President Ram Nath Kovind had abrogated certain provisions of the country’s Constitution, which previously gave special status and autonomy to the state of Jammu and Kashmir. The move came after both houses of the Indian parliament had passed a resolution in this connection.

While the Lok Sabha (Indian Lower House of Parliament) had passed the “Jammu and Kashmir Reorganisation Bill 2019” by 370 votes, as well as the resolution supporting the presidential order revoking Article 370, the Rajya Sabha (Indian Senate) had passed this bill (through a voice vote) with 125 being in favour and 61 against it. There was also one abstention during the Senate voting on the subject.

The act of the Indian government had prompted former Indian-Occupied Kashmir Chief Minister Omar Abdullah assert that the “decision would have far-reaching and dangerous consequences”.

Another former Held Kashmir chief minister Mehbooba Mufti, who was placed under house arrest, also took to social networking website twitter to hit out against the abrogation. A divided and thus weakened Indian National Congress-led Opposition, however, slated the Narendra Modi-led regime for destroying the equilibrium in the region and “dismembering the state”.

For example, a prominent lawmaker Ghulam Nabi Azad has lashed out at New Delhi by saying, “Today BJP has murdered the constitution as well as democracy through the scrapping of Article 370. The very article that gave special status to J&K and linked it to the country has today been done away with mercilessly”. Brief history of cases where Indian apex court had struck down laws passed by the national legislators: The first government-judiciary conflict had arisen after the Indian Supreme Court had started invalidating the “Land Reform Acts” after independence, to the dismay of the Jawaharlal Nehru regime. The Indian parliament hence passed the First Amendment to the Constitution in 1951, followed by the Fourth Amendment in 1955, to protect its authority to implement land redistribution.

The apex court countered these amendments in 1967 when it ruled in “Golaknath v State of Punjab Case” that parliament had no powers to abrogate fundamental rights. In 1970, the court invalidated the “Banks Nationalisation Bill”, besides rejecting a presidential order abolishing the titles and privileges of the former rulers of India’s old princely states.

In reaction, the Indian parliament passed an amendment in 1971, empowering itself to amend any constitutional provision. It also passed the 25th Amendment, negating court decisions pertaining to land compensation and abolished the princely privileges.

The Indian Supreme Court judgment in the “Kesavananda Bharati case” of 1973 established the “Doctrine of Basic Structure”. According to this verdict, the Indian Constitution has certain basic features which hold a transcendental position and which cannot be altered either by the parliament or Supreme Court.

The judgment stated that although these amendments were constitutional, the court still reserved for itself the discretion to reject any changes made by the parliament, through which the Constitution’s basic structure was altered.

In the “Indira Gandhi v Raj Narayan case” of 1975, the Supreme Court applied the theory of basic structure and observed that the amending power of the parliament only destroyed the ‘basic feature’ of the Constitution.

But despite being bogged down during the Indian Emergency period of 1975-77, in which Indira Gandhi had even tried to dishearten the highest judiciary by appointing a junior judge as the chief justice superseding senior judges like Justice Khanna, the apex court of India did not cease to exercise its power of judicial review.

In the “Minerva Mills case” of 1980, the Indian Supreme Court had again struck down an amendment on the ground that it destroyed the basic structure of the Constitution. In the “Mandal Commission case”, the Supreme Court had ruled that the parliament had amended the Constitution beyond its scope.

It was in 2007 that the then Indian premier Manmohan Singh was quoted as saying: “The dividing line between judicial activism and judicial overreach was a thin one”. But the then Indian chief justice Balakrishnan had declared that the tension between the judiciary on one hand, and the legislature and the executive on the other, was natural and desirable.

In its 2007 judgment in the “Coelho v Tamil Nadu case”, the Indian Supreme Court had reaffirmed the basic structure doctrine by ruling that a constitutional amendment entailing the violation of any fundamental rights could be struck down depending upon its impact and consequences.

The verdict clearly imposed further limitations on the constituent power of the parliament with respect to the principles underlying certain fundamental rights. On July 11, 2013, the Indian Supreme Court had overturned another law.

It had charge-sheeted members of parliament on conviction for offences, saying they would be immediately disqualified from holding membership of the House without being given three months’ time for appeal, as was the case before. Basically, the court had ruled against the provision of appeal period. About five years ago, on September 26, 2014, the Indian Supreme Court had declared as unconstitutional the National Tax Tribunal Act under which a national tribunal was set up to decide tax-related cases by taking away the jurisdiction of High Courts in such matters.

A five-judge Constitution Bench comprising Chief Justice of India RM Lodha and Justices JS Khehar, J. Chelameswar, AK Sikri and Rohinton Nariman had held that it was the ultimate encroachment on the exclusive domain of the superior Courts of Record in India.

In March 2015, India’s Supreme Court had struck down a controversial law that made posting “offensive” comments on social media a crime punishable by jail. The decision came after a two-year campaign by free speech activists, led by a law student. British media house “The Guardian” had reported: “In a decision that surprised many, judges said an amendment to India’s Information Technology Act known as Section 66-A was unconstitutional and a restriction on freedom of speech. “The public’s right to know is directly affected by Section 66-A,” said Justice R F Nariman, reading out the judgment. The law, which received presidential assent in 2009, makes posting information of “grossly offensive or menacing character” punishable by up to three years in jail. Campaigners claimed that it was repeatedly misused by police”.

It had added: “This month, police in Uttar Pradesh state had arrested a teenager for a Facebook post which they said “carried derogatory language against a community” wrongly attributed to a powerful local politician. Other cases include a university professor detained for posting a cartoon about the chief minister of the state of West Bengal”.

In October 2015, the Indian Supreme Court had struck down the 99th Constitutional Amendment that had changed the procedure for appointment of judges. The 99th Constitutional Amendment, which provided the formation of the National Judicial Appointments Commission, was declared unconstitutional.

In its ruling, the Indian Supreme Court had observed that the system to appoint judges had existed in the Constitution prior to the 99th Constitutional Amendment.

In September 2018, the Indian apex court had decided that same-sex relations were no longer a criminal offence in India. The apex court had struck down the language in Section 377 of India’s penal code, a relic of the British colonial rule, which punished “carnal intercourse against the order of nature” with 10 years to life in prison. The judges unanimously ruled that consensual same-sex relationships were no longer a crime, deeming Section 377 “irrational, arbitrary and incomprehensible”.

And in January 2018, India’s Supreme Court had overturned a ban on a Bollywood film imposed by four states ahead of its countrywide release. The Chinese “Xinhua” news agency had reported: “The ban on film “Padmaavat” was imposed by the western states of Rajasthan and Gujarat as well as northern state of Haryana and central state of Madhya Pradesh, citing law and order problems after protests by the Rajput community. But a three-judge bench, headed by Chief Justice Dipak Misra, did strike down the ban after the producers of the film approached the court”. The court had ruled: “We direct that there shall be a stay of operation on the notification and orders issued and we also restrain other states from issuing such notifications or orders in this matter. The states “are obliged” to maintain law and order”.

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