The judgement of the Supreme Court, in the case of Minerva Mills v. Union of India was a verdict which majestically and proudly reaffirmed the supremacy of the basic structure of our Constitution. The judgement was delivered at a time, when the world’s largest democracy had just recovered from the shackles of the infamous Emergency and the judiciary was in its darkest hour, courtesy, the ADM Jabalpur verdict.
Bearing the testimony to a resilient judiciary, Minerva Mills was a crucial pronouncement which would go a long way in cementing a recently evolved Basic Structure. Today, as we sit to pen down this piece, the Minerva Mills judgement celebrates its fortieth anniversary, in an era which its judges envisaged to be egalitarian without the emasculation of the rights to liberty, equality and dignity of the individual.
Through this piece, we seek to apprise the reader how Minerva Mills revived the declining significance and relevance of the Basic Structure after the coming into force of the 42nd Amendment. Whether this conceivable significance, envisaged by Minerva Mills has actually been achieved today or not, is a sentiment which we leave up to the reader to decide.
The Build-Up to the case: A chronology of the Power Tussle between the Supreme Court and The Parliament
During Prime Minister Indira Gandhi’s tenure from 1966-1977, the Constitution was amended on a record number of 25 instances. There was a visible power tussle between the Judiciary and the Parliament, which was amply illustrated by the creation of 3 eleven-judge benches, and a thirteen-judge bench, in quick succession which is indeed a rarity in India’s Constitutional History.
Illustratively, a sharply divided Bench in IC Golaknath v. State of Punjab by a 6:5 majority had dealt a striking blow to the Parliament, by ruling that fundamental rights were unamendable and could not be meddled with, by the Parliament. In an attempt to nullify the Golaknath verdict, Parliament was quick to pass the 24th Amendment to the Constitution in 1971, essentially asserting that its powers to amend the Constitution were immensely broad and unrestricted.
Thereafter, an attempt was made by Parliament to nationalize 14 banks, by passing the Banking Companies (Acquisition and Transfer Of Undertakings) Ordinance, 1969 which was subsequently converted into an Act. An eleven-Judge bench in Rustom Carasjee Cooper v. Union of India invalidated this attempt by striking down the Act. Another attempt was made by Parliament to abolish the Privy Purses. This move, again, triggered the formation of a 11-Judge Bench, which proceeded to strike down this attempt, in Madhav Rao Scindia v Union Of India. However, these verdicts, were subsequently diluted by the 25th and the 26th Amendment to the Constitution of India, thus shifting the scales of power towards the Parliament once again.
In 1973, came the watershed moment, when a 13-Judge Bench of the Supreme Court, in the case of H.H Kesvananda Bharati v State of Kerala, evolved the doctrine of Basic Structure. While recognizing the power of the Parliament to amend the Constitution, the Bench passed an injunction against it, from altering the basic structure which in turn remained undefined and only to be interpreted on a case to case basis.
The case of Indira Nehru Gandhi vs Shri Raj Narain, became the first case, where the Apex Court applied the doctrine of basic structure. The 39th Amendment had inserted Article 329-A in the Constitution, and clauses (4) and (5) of this article barred the judicial review of elections for President, Prime Minister, Vice President and the Speaker of The Lok Sabha. These clauses were struck down for being in flagrant violation of the basic structure.
In an attempt to shift the scales back in favour of the Parliament, and subsequently dominate the power spectrum once and for all, the Government massively overhauled the entire Constitution by passing the 42nd Amendment Act.
This move was viewed as the wrath of the Parliament and an act of vengeance as it corroded the basic structure by pouring the venomous acid of the 42th Amendment Act.
The Emergency came to an end and a new Government was installed at the Centre. The new Government brought in the 44th Amendment, to undo the damage of Emergency and the 42nd Amendment.
However, it did not seem enough, as the Basic Structure still did not get the relevance it deserved and redoing the rigours of the Emergency-era Amendment, still remained an unfinished business. Consequently, the task of achieving both these objectives was taken up in 1980 by the Supreme Court, in the case of Minerva Mills v. Union of India.
Minerva Mills v. Union Of India: an analysis in anecdotes
The gravamens of the challenge in Minerva Mills, were Sections 4 and 55 of the 42nd Amendment Act, 1976. Minerva Mills was a textile company which had been nationalized and taken over by the Government on account of being grossly mismanaged.
The petitioners had also challenged the constitutional validity of Sick Textile Undertakings (Nationalisation) Act, 1974. However, it had been placed under the Ninth Schedule by the 39th Amendment Act, and therefore was not amenable to judicial review.
Section 55 of the Amendment Act had amended Article 368 of the Constitution by inserting clauses (4) and (5), to provide unbridled power to the Parliament to amend the Constitution. Section 4 amended Article 31-C to shield laws which aimed at advancing the Directive Principles from being challenged in court for violating Articles 14, 19, or 21.
This essentially translated to a situation where DPSP’s were placed at a higher pedestal than the fundamental rights and judicial review was blocked.
This amendment had effectively nullified the decision in Kesvananda Bharti, which precluded the Parliament, from interfering with the basic structure, while amending the Constitution.
Leading the challenge was India’s Constitutional maverick, Nani Palkivala, while the Government was defended by its Attorney General L.N Sinha and ASG K.K Venugopal (as he was then). Nani Palkivala, with his eloquence and acerbic wit, tore into the impugned sections of the 42nd Amendment Act, and argued that giving primacy to the Directive Principles over fundamental rights, demolished the basic structure. According to him, the principles embedded in the Directive Principles could only be achieved through permissible means, without infringing the provisions of Part III of the Constitution.
Delivering a crushing blow, Nani Palkhivala fiercely submitted that the concepts of justice, liberty and equality were deeply encapsulated in Articles 14 and 19, and making them subordinate to the Directive Principles would change the face and scheme of the entire Constitution. He submitted that such an amendment was beyond the amending power of the Parliament and was liable to be struck down.
Meanwhile the Centre argued that the amendments made to Article 31C did not damage the basic structure, but rather enforced it. It went on to argue that the State is under an obligation to take steps for promoting the welfare of the people and deprivation of some of the fundamental rights for the purpose of achieving this goal cannot possibly amount to a destruction of the basic structure of the Constitution.
The 5-Judge Bench delivered a thumping 4:1 verdict and declared Sections 4 and 55 of the 42nd Amendment Act, 1976 to be ultra vires the Constitution of India.
They ruled that “to destroy the guarantees given by Part III (Fundamental Rights) in order to purportedly achieve the goals of Part IV (Directive Principles) is to plainly subvert the Constitution by destroying its basic structure.
The bench noted that to give absolute primacy to Part IV over Part III is to disturb the harmony of the Constitution. The Bench described the fundamental rights to be transcendental, inalienable and primordial and further observed that sacrificing them at the altar of DPSPs would rob the Constitution of its identity.
A harmonious equation had to be carved between the Fundamental Rights and Directive Principles in order to ensure their peaceful co-existence within the constitutional scheme. The harmony between Parts Ⅲ and Ⅳ had to be preserved in order to prevent them from striking a discordant note with each other.
This balancing act between the two was held to be an essential part of the basic structure. Following the ratio in Kesvananda Bharti, it was held that Parliament could not assume itself to possess absolute and unlimited power to amend the Constitution. Terming it as a futile exercise, the judgement put a cap on the wide sweep of Article 368, thereby preventing any further damage to the basic structure.
The Minerva Mills judgement reaffirmed the significance of Part III of the Constitution of India, and went on to describe Articles 14, 19, 21 as the golden triangle of the Indian Constitution.
The reasoning of the Court is instructive and deserves to be quoted in full.
“Three Articles of our Constitution, and only three, stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power. They are Articles 14, 19 and 21. Article 31C has removed two sides of that golden triangle which affords to the people of this country an assurance that the promise held forth by the preamble will be performed by ushering an egalitarian era through the discipline of fundamental rights, that is. without emasculation of the rights to liberty and equality which alone can help preserve the dignity of the individual.”
Finally, and as an aside, the decision of the Supreme Court became even more significant as it marked the beginning of a departure from the concept of a “committed judiciary” which had become the norm in the dark years of the Emergency, and which practically thwarted any implementation of the principles of independence of the judiciary.
This was amply illustrated by Justice Y.V Chandrachud’s majority opinion where he departed from his views in Kesvananda Bharti case where he formed a part of the dissenting clan.
While Minerva Mills marked the beginning of the departure from the norm of a committed judiciary, there still existed certain creases which remained to be ironed out. One such instance was Justice P.N Bhagwati’s letter to the Prime Minister.
While Minerva Mills was being argued, Justice Bhagwati, in a departure from convention and the principles of judicial ethics, wrote a congratulatory letter to Prime Minister Indira Gandhi for her re-election, in which he praised her “iron will….uncanny insight and her dynamic vision”. His letter to the Prime Minister necessarily posed serious questions on the independence of the judiciary and ran counter to the narrative which the Court in Minerva Mills was attempting to establish.
Interestingly, Justice Bhagwati remained the sole dissenting voice in the Minerva Mills case. In his dissenting opinion, he gave primacy to the Directive Principles and allowed them to regulate fundamental rights. This has been analysed forthwith.
Justice Bhagwati’s Dissent: A Red ‘Letter’ Day
The reason why we regard Justice Bhagwati’s dissent as significant, is because this dissent came from a judge who had pioneered the introduction of PIL’s in India and redefined the Indian jurisprudence with his progressive verdicts in Maneka Gandhi v Union of India and E.P Royappa v State of Tamil Nadu.
While Justice P.N Bhagwati fraternized with the majority by striking down Section 55, he dissented from them by upholding the amendment made to Article 31C.
Justice Bhagwati was in fact anguished with the fact that the judges didn’t get enough time to review each other’s drafts. Chintan Chandrachud in his book "The Cases That India Forgot" mentions that Justice Bhagwati had cited a passage from Justice Chandrachud’s dissenting judgement in the Kesavananda Bharti's case, to substantiate his decision to uphold the amendments made to Article 31C.
Justice Chandrachud, in his Kesvananda Bharti verdict had noted that “the basic object of conferring freedoms on individuals [through fundamental rights]’ was to achieve the objectives set out in the directive principles.” He had further emphasized that fundamental rights and directive principles of state policy both shared an equally important position within the constitutional framework.
Justice Bhagwati accepted the arguments made by the centre and opined that, laws giving effect to a Directive Principle with a view to achieve the constitutional goal of socio- economic justice, cannot be held violative of the basic structure, even if they infringe the right to equality under Article. 14 or any fundamental right guaranteed under Article 19.
He also held that Directive Principles enjoy a very high place in the constitutional scheme and it is only within this socio-economic framework, that the Fundamental Rights are intended to operate. According to him, these rights can become meaningful and significant for the poor and the downtrodden, provided that they operate under the supervision of the socio-economic structure of the Directive Principles.
He therefore, gave impetus to the Directive Principles and neglected the essence of the sacrosanct rights guaranteed by Part III of the Constitution of India.
Conclusion
Eminent jurist and former Solicitor General of India, late T.R Andhyarujina, in his book, “The Kesavananda Bharati Case- The untold story of struggle for supremacy by Supreme Court and Parliament”, records that, a different Constitution Bench in Sanjeev Coke Marketing v. Bharat Coal Limited, questioned the verdict in Minerva Mills and disagreed with its reasoning.
The reason for their protest was that the Bench in Minerva Mills undertook an academic exercise on an issue which was not essentially a part of the case and which was totally uncalled for.
This prompted the legendary constitutional law scholar, H.M Seervai to launch a scathing attack on this judgment. In his voluminous magum opus, Constitutional Law of India, while analysing the judgment in Sanjeev Coke, he wrote that judges, who do not find themselves in agreement, with the majority in Minerva, should not discuss a question, which is not under consideration. He further wrote that such acts are antithetical to judicial discipline and a judgment like Sanjeev Coke should never be delivered again.
In a nutshell, the landmark verdict in Minerva Mills, with its emancipatory force, strengthened the foundational core on which the edifice of the basic structure was built. This was illustrated later in a Seven-Judge Bench verdict of L Chandra Kumar v. Union of India, which relied on Minerva Mills to explicitly incorporate judicial review as a non-derogable part of the basic structure. This was further illustrated in a 9-Judge Bench verdict in I.R Coelho (Dead) v. State Of Tamil Nadu where the Court countenanced the ratio in Minerva Mills and held that the “golden triangle” of Articles 14, 19 and 21 was an inseparable part of the basic structure of our Constitution.
As Brutus remarked in Act 4 Scene 3 in the play Julius Caesar, “We must take the current when it serves, or lose our ventures”, the Apex Court in Minerva Mills utilized this current and resurrected the faith in the institution by timely playing the pivotal role of a “sentinel on the qui vive”.
This judgment was a perfect tribute to the basic structure doctrine, which continues to save our democracy from potential Parliamentary onslaughts. As the dazzling bright sun emerged from the horizon, the basic structure experienced a befitting reincarnation.
(Tanishk Goyal is a student at the West Bengal National University of Juridical Sciences and Rishabh Narain Singh is a student at Faculty of law, Allahabad University)