Is the power given under the constitution greater than the constitution?

- Fundamental rights under Part 3 of the Constitution cannot be abrogated or curtailed by Parliament

- A secret plan to change the constitution is beginning to smell

Some of the greats of the world have said in one way or another that those who do not learn from the past are condemned to repeat it. Karl Marx went further to say that history repeats itself, first as tragedy and then as Persia.

Three constitutional experts have been at the center of the debate in recent weeks. Rajya Sabha Chairman and Vice-President of India Shri. Jagdeep Dhankhar (born in 1951), Lok Sabha Speaker Shri. Om Birla (born 1962) and Minister of Law and Justice Department Shri. Kiran Rijju (born 1971). Mr. Dhankhar must have experienced the crisis days of 1975 to 1977. Mr. Birla must have heard and read about it and Mr. Rijju must have studied his history.

In 1967, in Golaknath v. State of Punjab, a property dispute case, the Supreme Court ruled by a margin of 6:5 that the fundamental rights under Part III of the Constitution of India cannot be abrogated or curtailed by Parliament. The main issue here was property and not liberty. So this discussion became ideological.

Non-modifiable specifications

There was nothing in the judgment in the case of Kesavananda v. Government of Kerala (1973) to cause fear. In this case also the main issue was related to property. The court upheld the Kerala Land Reforms Act and the petitioner lost the case. The Court also recognized the power of the Parliament to protect the basic foundations of the Constitution, to amend the Constitution including fundamental rights. There was no room for dispute in the basic fundamentals observed by the Court.

Who can find fault with the conclusion that federalism, secularism and an independent judiciary are the distinctive foundations of the Constitution? This debate continued, but the debate was less ideological than the one raised by Golaknath.

The reason behind the declaration of Emergency on 25 June 1975 was an incident unrelated to the power of Parliament to amend the Constitution. This incident is the decision of the Election Tribunal to annul the election of Prime Minister Indira Gandhi. Nani Palkhiwala accepted this judgment on behalf of Indira Gandhi and I am sure, she would have succeeded in reversing the judgment by appealing to the Supreme Court. However, over-aggressive measures such as constitutional amendments were taken which might have turned India into a dictatorial and repressive country.

There was a judiciary which was the protector. The ADM Jabalpur case was one of the most controversial in the history of the Supreme Court. Only Justice H. against Tarap on the freedom given in the Constitution R. Khanna was standing. Some High Court judges refused to follow the Supreme Court judgment and upheld individual liberty.

Confusion of two issues

I believe that Mr. Dhankhar, Mr. Birla and Shri. Rijju must have read the history from 1967 to 1977. Mr. Dhankhar is confusing two separate issues. Whether Parliament can amend each and every provision of the Constitution and whether it is beyond the ambit of judicial review is one issue and whether the Supreme Court's decision to strike down the 99th Constitutional Amendment and the National Judicial Appointments Commission Act was correct is another issue. One can argue that the right decision was taken for Kesavananda Bharti and one can also argue that the NJAC case was wrongly decided. Many legal experts hold such views.

Mr. The issue raised by Dhankhar raises several questions which are important for the ideology of India as a federal, democratic republic. The collegium system which Shri. He has further complicated the debate by demanding a seat for the government in which Rijju is seeking to abolish. A covert plan to change the constitution is beginning to smell like it is taking shape.

Supremacy of Parliament

Assuming we believe that Parliament is supreme over the Constitution, I have a few questions:

- You would agree with breaking up a state into many Union Territories right? (like Jammu and Kashmir)

- Do you agree that freedom of speech, freedom to live in any part of the country and freedom to do any business should be abolished?

- You will approve a law that treats men and women as unequal, right?

-Do you want List 2 (State List) to be removed from the Seventh Schedule and all legislative powers vested in Parliament only?

-Would you like to make it compulsory for every Indian to learn a particular language?

-You would agree to treat an accused as a criminal until he is proven guilty, right?

Today, Parliament cannot make such laws. It requires judicial review. On the contrary, such laws cannot be reviewed or annulled by the courts under the principle of parliamentary supremacy and judicial tolerance.

Fifty years after the verdict, Kesavananda Bharati is embroiled in a controversy that has rocked India and hindered progress. I believe that there is an angel who protects the country, the constitution and the people.