Supreme Court's supramacy

Two Supreme Court judgements, 1) I C Golaknath, Ors Vs State of Punjab (AIR 1967SC 1643 (1967) 2 SCJ 486)(Special bench of the Supreme Court) delivered on Feb 27,1967 with a 6:5 majority ruled that, “Parliament has no power to amend Part III of the Constitution so as to take away, abridge, curtail the Fundamental Rights. This is the pericardium of the written Indian Constitution; the 2) Keshavanda Bharati Vs State of Kerala (AIR 1973 SC 1461 (1973) 4 SCC 225) which was heard by the 13 judge bench of the Supreme Court, delivering its judgement on April 24, 1973 with 7:6 majority introduced the ‘basic structure doctrine’ by which any article of the Constitution can be amended with altering its basic structure. 6 judges held that “Article 368 does not enable Parliament to abrogate or take away fundamental rights, including the right to property, because there are in Article 368 inherent or "implied limitations" in that it does not empower Parliament to alter or destroy the "basic structure" of the Constitution.” While the other six gave unbridled power to Parliament to amend any clause in the Constitution. Now the 13th judge, “. Subject to the retention of the basic structure, the power of amendment is plenary and includes within itself the power to amend the various articles of the Constitution, including those relating to fundamental rights as well as those which may be said to relate to essential features." Prof. Dietrich Conrad, a German jurist remarked that any amending body organized within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its constitutional authority." Article 79(3) of the Basic Law of the Federal Republic of Germany, adopted on May 8, 1949, , bars explicitly amendments to provisions concerning the federal structure and to "the basic principles laid down in Articles 1 and 20 (on human rights and the "democratic and social" set-up). The cardinal principle of the Constitution was to reiterate the Rule of Law as its guiding principle, for if there was no rule of Law, then there is no equality before Law. Chapter III guarantees fundamental rights. The golden triangle of Article 14, 19 and 21 is the basic feature and the touch stone of the basic structure doctrine is Art 21 read with Art 14, 19. When the Supreme court gave unbridled power to Parliament to alter the Constitution , the Government amended Art 368 by inserting clauses (4) and (5) which proclaimed the sovereignty of parliament (5) of 386 and restricted any amendment to be questioned by any Court of Law (4 of 386). The judicial review (Article 32 and 226) which was centre piece of the Basic structure doctrine enunciated by the Judges was sought to be taken away by the 42 nd amendment during the internal emergency which was declared in 1976. Schedule 9 was blanket cover for government which again was beyond the pale of Courts. However, clause (4), (5) of Art 368 was over ruled by the bench headed by Y V Chandrachud in the Minerva Mills Case in 1980. The 44th amendment by Morarji Desai government, removed ‘Right to property’ which was a fundamental Right -19(i)(f) and Art 31 out of Part III and made as Article 300 c. This change made the citizen forfeit remedy under Art 32 as 300 A is not a fundamental right. The SC also held that 9th Schedule inclusion can come under judicial review, if need be. The major innovations introduced by the Indian Supreme Court like the ‘basic structure doctrine’ and ‘public interest litigation’ has won kudos for it in the juristic circles. The Courts need to play an equally important role to bring down the Cases, end litigations, pronounce judgments, while upholding the Rule of Law.