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ELECTIONS '98
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The Rediff Special/Lal Kishinchand Advani'Those who say the present government seeks to undo the good work done by Dr Ambedkar would do well to study his own views in this regard'
Dr Ambedkar went to add: "What Jefferson has said is not merely true, but is absolutely true.. The (Constituent) Assembly has not only refrained from putting a seal of finality and infallibility upon this Constitution, but has provided a most facile procedure for amending it." He also explained how much more difficult it was in the USA or in Australia or in Canada to amend the Constitution. Those who try to propagate these days that the present Government of India is seeking to undo the good work done by Dr Ambedkar would do well to study Dr Ambedkar's own views in this regard. Until 1967, the Supreme Court had consistently held that any provision of the Constitution could be amended or even scrapped by Parliament if the procedural requirements of Article 368 were fulfilled. But in the famous Golak Nath case, the Supreme Court held that the provision of fundamental rights was unamendable, and if Parliament wanted to amend any such provisions a new Constituent Assembly had to be convened. The Golak Nath decision was superseded in 1971 by the Constitution (24th Amendment) act, 1971. This law provided that the validity of a constitutional amendment shall not be open to question on the ground that it takes away or affects a fundamental right. In 1973, however, the Golak Nath decision was judicially overruled. The Supreme Court delivered a landmark judgment, now known as the Keshavanand Bharati judgment. In this, the court held that though no specific provision (not even one relating to fundamental rights) was unamendable the "basic features" of the Constitution could not altered. Justice H R Khanna said the "basic structure" of the Constitution could not be changed. The Keshavanand judgment is voluminous. The basic and unalterable features identified by the apex court can be listed as follows:
This "basic structure" doctrine propounded by the Supreme Court in the Keshavanand Bharati case has been a major bulwark against attempts to defile and distort the Constitution. When, during the Emergency, the government of the day introduced the 44th Amendment Bill, 1976 (this later became the 42nd Amendment Act). I, then one of the hundreds of political prisoners, had occasion to prepare a pamphlet for the anti-Emergency underground movement with the caption "Not an Amendment, it's a New Constitution." Summing up this 20-page tract which analysed the 42nd Amendment, I wrote: "It is quite clear then that the Constitution (44th Amendment) Bill, 1976, offers to the country not a new amendment, but a new Constitution. The balanced democratic Constitution we have had till now is to be replaced by an executive, authoritarian set-up. That Parliament and the courts will still continue is neither here nor there. When in 1933, Adolf Hitler made the German Reichstag pass the Enabling Act transferring its legislative authority to Hitler's cabinet, one of the clauses of the act ironically read: "No law shall be enacted that affects the position of the Reichstag." Let the Indian Parliament, if it may, indulge in similar delusions about its own position: the people can have no such illusions. If Parliament does pass this Bill, the Constitution which they, the people of India, gave unto themselves on 6 January 1950, would have been buried fathoms deep. A new Constitution will usurp its place." That, indeed, was an attempt to subvert the Ambedkar Constitution. When, after the Emergency, the Janata government came to power, the 44th Amendment was enacted and the distortions made were substantially undone. That the Congress fully participated in this task of effacing the 42nd Amendment was in itself evidence that they realised and admitted that what had been done during the Emergency was wrong.
L K Advani, continued
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