Comparative Constitutional Law Class 18 October 23, 2006

The Nehru-Gandhi Political Dynasty Nehru: Independence until 1964 Indira Gandhi 1966 (After Shastri’s death)-1977, Janata Rajiv Gandhi

Non Congress parties Janata National Front 1991 another Congress government formed 1996 BJP government for 13 days; United Front coalition takes power 1998 BJP coalition takes power; continues after election of Congress back in power

Indian Supreme Court Not a separate Constitutional Court – like? Has advisory jurisdiction – like? Stare decisis – bound by own decisions?

Indian Supreme Court Judges How many? How are they appointed? A. 124(2) How long do they hold office? Ethnic, religious, gender distribution, caste distribution?

Current Chief Justice Yogesh Kumar Sabharwal

Change in Constitutional Interpretion over time Positivism To structuralism

Dr BR Ambedkar Chairman of Constituent Assembly drafting committee Dalit – later converted to Buddhism Reservations about parliamentary sovereignty

Example of positivism: Gopalan AK Gopalan v. India constituitonalisty of preventative detention act 1950

Art. 19(d) 19. Protection of certain rights regarding freedom of speech, etc.- (1) All citizens shall have the right to move freely throughout the territory of India- Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of _16[the sovereignty and integrity of India,] the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.] _16

Art Protection of life and personal liberty.- No person shall be deprived of his life or personal liberty except according to procedure established by law.

Amendment How can the Indian Constitution be amended? How many times has it been amended?

Amendment How can the Indian Constitution be amended? Mostly, by bill passed by 2/3 of present voting members of both Lok Sabha and Rajya Sabha (and absolute majority of total membership). A. 368(2). Some other amendments can be made with only a simple majority; some require ratification of at least half of the state legislatues How many times has it been amended?

Amendment How many times has it been amended? 92 times Can it be amended to overrule fundamental rights?

The battle over the right to property Article 31: 1. No one should be deprived of property save by authority of law 2. payment of compensation must be made on acquisition of private property by State for a public purpose Exceptions for certain land reform legislation

Reaction to land reform legislation Kameshwar v. State AIR 1951 Pat 91 (Patna High Court) Reaction to this?

Reaction to land reform legislation First Amendment: A 31-A – extended immunity of land reform legislation from judicial review A 31-B added Ninth Schedule Reaction to this?

Reaction to First Amendment Act 1951) Shankari Prasad v. India, AIR 1951 SC 458 Sajjan Singh v. Rajasthan, AIR 1965 SC 845 Dissent in Sajjan of Hidayatullah J: Fundamental Rights should not be the plaything of a special majority Was this dissent endorsed subsequently?

Golaknath v. Punjab Majority of 6-5 overruled Shankari Prasad and Sajjan. The power to amend the Constitution did not extend to the abrogation of any Fundamental Rights A highly structuralist, activist, non positivist interpretation (though based on a literal interpretation of articles 13(s) and 368) Prospective overruling

Also a battle over compensation Whether payable for deprivation not just acquisition (West Bengal v. Subodh AIR 1954 SC 92) Whether compensation must be equivalent to market value of property obtained (West Bengal v. Bela Bannerji AIR 1954 SC 170) Reaction by Parliament to these decisions?

Another Constitutional Amendment Fourth Amendment – Stated that compensation payable only when property acquired by State/State Corporation, not just on deprivation Adequacy of compensation could not be judicially reviewed Reaction by Court?

Compensation must not be illusory It must bear some relation to value of property. Held Indira Gandhi’s Bank Nationalizationunconstitutional. RC Cooper v. India AIR 1970 SC 564. Parliament then amends constitution (25 th Amendment) to change “compensation” to amount Court responds by insisting that amount must not be illusory Kesavanad Bharati v. Kerala

Indira Gandhi and the Supreme Court What was Indira Gandhi’s reaction to the Golaknath and Bank Nationalization cases?

Constitutional Amendment 24 th Amendment: sought to return to Parliament an unrestricted power of constitutional amendment 25 th Amendment: changes to right to property 26 th Amendment: abolished privy purses of princes Reaction of Supreme Court?

Kesanavand Bharati v. Kerala AIR 1973 SC : Basic structure doctrine 24 th and 25 th Amendments upheld (reserves 26 th ) Interpretive methodology?

Indira Gandhi v. Rajnarain State of Emergency under A. 352 after Allhalabad court declares Indira Gandhi’s election to parliament invalid on the ground of illegal corrupt practices Gandhi’s reaction?

39 th Amendment Provided that disputes regarding election to Parliament of a person who held office of PM at time of election (or appointed afterwards) could not be adjudicated by a court unless authorized by Parliament Was this amendment valid under the basic structure doctrine?

39 th Amendment Provided that disputes regarding election to Parliament of a person who held office of PM at time of election (or appointed afterwards) could not be adjudicated by a court unless authorized by Parliament Was this amendment valid under the basic structure doctrine? 3 held invalid under basic structure doctrine; 2 as usurpation of judicial function by Parliament But held that under amendment to Representation of People Act 1951, Gandhi’s election was valid

Basic Structure Doctrine Still valid: See Minerva Mills v. India AIR 1980 SC 1789 (Parliament tried to eradicate doctrine unsuccessfully by enacting 42 nd Amendment adding 368(4) and 368(5)) SR Bommai v. India AIR 1994 SC 1918 secularism part of basic structure. Art. 356 Dismissal of 3 state BJP governments valid after 1992 destruction of mosque at Ayodha by Hindu extremists (even though later addition to preamble).

Similar battle over meaning of Art 19(1)(f) Guarantees right to acquire, hold, and dispose of property How was this initially interpreted before A 31 was amended to restrict judicial review? Bombay v. Bhanji Munji, AIR 1955 SC 41 How about afterwards? KK Kochuni v. Kerala 1960 SC 1080

Right to Property Removed In 1978 Remove Art. 31, 19(f) replace with Art. 300-A (work of Janata Government which was elected in 1977 election when Indira Gandhi was defeated)