Nine judges of the Supreme Court sat for five days from October 30 to hear arguments regarding the scope of power of Parliament to amend the Constitution. However, a 13-judge bench of the Supreme Court considered the same question of the scope of the amending power under Article 368 in 1973 in the celebrated case of Keshavanand Bharti.

Soon after the judgment in Keshavanand, Nani Palkhivala, who appeared in the case, wrote, “The effect of the majority judgment of the Supreme Court may be summed up thus: Parliament cannot, in the exercise of  its amending power, alter the basic structure or   framework of the Constitution...The  amending power  cannot  be  so exercised as to make the Constitution suffer a loss of identity”. The majority decision of the five-judge bench in the Golaknath case had taken the view that even an amendment of the Constitution under Article 368 could be questioned on the violation of a fundamental right. This was overruled in Keshavanand and it was held that the constituent power of Parliament could not be questioned on the violation of a fundamental right and the only limitation was that such an amendment could not alter the basic structure of the Constitution.

One of the points before the nine judges of the Constitution bench is whether an Act which was struck down by courts on the ground of violating fundamental rights could be validated by a constitutional amendment by putting it in the Ninth Schedule and giving it immunity from judicial review. People have created through the Constitution the three organs–executive, legislature and judiciary–and have assigned functions to them. None of these three organs are above the people and all of them derive their authority from the Constitution. The Constitution envisaged that Supreme Court judges would also be selected and appointed by the executive.

Therefore, it could also be said that the judiciary indirectly derives its authority from the people of India.

However, in 1993, a Supreme Court judgment took this authority of selecting judges away from the executive and appropriated it on behalf of the judiciary. It was held that the selection of judges to the apex court and High Courts was to be decided by senior judges of the Supreme Court. Thus, Supreme Court judges are selected by the judiciary itself, without any direct or indirect involvement of the people. It is in this context that the question arises whether it is open to the Supreme Court to strike down a constitutional amendment, including an Act in the Ninth Schedule which gives it immunity from judicial review.

Any exercise of such power by the Supreme Court would be destructive of the most important basic feature of the Constitution, namely constituting   of   India   into   a democratic republic.

When  the   Constituent Assembly discussed this power of amendment of the Constitution by Parliament, B R Ambedkar said: “The purpose of a Constitution is not merely to create the organs of the State but to limit their authority because if no limitation was imposed upon the authority of the organs, there will be complete tyranny and complete oppression. The legislatures may be free to frame any law; the executive may be free to take any decision; the Supreme Court may be free to give any interpretation of the law. It would result into utter chaos”.

It was clear that the role of the judiciary was to control the executive and the legislature from exceeding their powers. However, even the apex court was not absolutely supreme and if the people of India felt and expressed their views through the two-third majority of Parliament, the Supreme Court could be overruled by resort to the ultimate power to amend the Constitution. In a democratic republic, no non-elected body can claim for itself a power to finally decide the questions of moment for the people. It is time that the Constitution is amended to give an effective voice to the people in selection of judges so that the interest of the poor and the downtrodden is adequately safeguarded by the Supreme Court.

TOI