Prof. Satya Narayan Misra* in Bhubaneswar, March 21, 2024: It was Justice John Marshall of USA who had presciently observed: “A constitution is framed for ages to come and it is designed to approach immortality. Its course cannot always be tranquil.” The Indian constitution unveiled in 1950, those designed to be immortal, has witnessed 106 amendments and spat between the governing elite and the Supreme court, about the validity of such amendments.

More importantly, the custody of the constitution has been a matter of raging debate since its inauguration. Within months of Indian constitution’s inauguration, a struggle began between the Supreme Court and the parliament helmed by socialist Nehru, who believed that the constitution has a shared custody between the parliament and the Supreme Court. In particular, the pursuit of social revolution which was embodied in the directive principals to promote distributive justice prompted Nehru to bring in land reform laws which he wanted to beyond judicial reach.

Under his daughter Indira, however, her predominant view was that the custody of the constitution remained with the Parliament as vox populi. Under Mr Modi there is a perception that it accepts Supreme Court’s judgment, as in electoral bond case, grudgingly and would like to take full custody of the Constitution, given its authoritarian character as with Indira. As the Nehru government began working on the new Constitution, it became transparent that reconciling judicial implementation and parliament custody of the constitution will not be easy.

Chief Justice Kenia said at the inauguration, “The court must be quiet untouchable by legislature in the performance of its duty. For the court, this would demand that its members are able jurists, that its processes are effective and its decision rational and clear”. Mr Setalvad, the first attorney journal, said at the inauguration of the court, “like all human institution the Supreme court will earn reverence through truth.

The first test over custody of the constitution started with the interpretation of the word ‘compensation’ in article 31 which dealt with Right to Property. For the supreme court’ it was a fair equivalent value of property taken, and not nominal value as the parliament was proposing while taking over private property. The government brought in the first amendment to the Indian Constitution in 1951, when Nehru said, “Even the most powerful and independent judiciary should not decide about high political, social or economic question. It is for the parliament to decide the law”.

The first amendment incorporated the 9th schedule where the land reform laws of various states were exempted from judicial review. Justice Mahajan called 9th schedule,” A lamentable departure from Nehru’s apparent trust in the Judiciary”. Surprisingly, Chief justice Patanjali Shastri in Shankari Prasad case (1951) upheld the first amendment as constitutional. By this pronouncement, the court ceded to the parliament a significant custody of the constitution.

With unassailable majority of 350 parliamentary seats, Indira Gandhi in 1971 brought in the 24th amendment that proposed to give full powers over the constitution for, “addition, variation or repeal”. The 25th amendment denied the Apex Court’s jurisdiction over government’s decisions to implement distributive justice over right to equality (article 14) and freedom (article 19). Article 31 C, sought to give effect to a socialist policy which could not be questioned in the court.

Kumar Mangalam, the law minister tellingly observed, “the clear objective of the amendment is to subordinate the rights of the individual to the urgent socio-economic needs of the society”. The law commission led by Justice Gajendra Gadkar, issued a special report that “Article 31 C should be eliminated”. The commission saw no justification for excluding Judicial Inquiry as to whether there is any rational nexus between the law passed and the objective to be achieved. Among those who did foresee the amendments’ sinister design and danger was Nani Palkiwala.

In the Keshvanand Bharti case (1973) while the court accepted Parliament’s power to amend including the fundamental rights, it ring-fenced a basket of basic provisions like federalism, secularism, democracy, separation of powers and judicial review from Parliament’s powers. Piqued by the doctrine, Mrs. Gandhi superseded three senior judges to appoint Justice A.N. Roy as CJI. The subsequent amendment, 38th and 39th, retro-actively barred judicial review of presidential ordinances and took away election petition against the prime minister out of judicial preview.

Article 39 was struck down as offensive of the principle of rule of law and equality. In the second amendment (1976), it brought in two new clauses (4) & (5), in article 368, which proposed full powers to the parliament for amendment and pre empted judicial review of such amendments. In the Minerva mills case (1980) the court unequivocally struck down the two obnoxious provisions and took full custody of the constitution by reasserting that parliament is not supreme in matters of constitutional amendments and judicial review cannot be snuffed away as the Supreme Court is the custodian of the Constitution, to interpret and save it from possible defacement.

The issue of custody is never finally settled as the contestants are the most powerful institution of the government. The balance in a system of checks and balances is never firmly horizontal yet a written constitution as nation’s foundational document is not only law but also a law above the law, for other laws should be inconsonance with it. Therefore, the supreme court of the land is the logical primary custodian for that constitution, its interpretation and guardian.

Despite occasional self-inflicted wounds, as in Shankari Prasad case (1951), ADM Jabalapur case (1976) and SP Gupta Case (1980), the Court has been the bastion of the constitution and has the authority to measure amendments against the template of the basic stricture doctrine. In this exercise unless the court strives to assure that the constitution, the law applies fairly to all citizens, the court cannot be said to have fulfilled its custodial responsibility.

A case in point is the Citizenship Amendment Act (CAA) introduced recently to accelerate the path way to Indian citizens who were prosecuted in Afghanistan, Bangladesh and Pakistan who arrived in India by 2014. By allowing Hindus, Sikhs, Buddhist and Christians and not Muslims, religion has been overtly used as a criterion for citizenship. The UNCHR has called the CAA fundamentally discriminatory and many believe that along with NCR that it will render many Muslims as stateless. By adding section 2 after clause 6 of Art 5, the 11th march CAA notification will treat Hindus, Sikhs, Buddhist and Christians who entered India on or before 31 December, 2014 as not to be treated as illegal migrants. The case will come up for hearing on 9th April.

Quite manifestly the Act goes against the provision in the Art 15 of the constitution that the state will not discriminate on the basis of language, gender, caste or religion. The interpretation of the Supreme Court would be keenly watched when religious fundamentalism has reared its head as never before and general elections are on the anvil.

* Prof Misra teaches Constitutional law in a Law School