NEW DELHI:
A
nine-judge bench
of Chief Justice D Y Chandrachud and Justices Hrishikesh Roy, B V Nagarathna, S Dhulia, J B Pardiwala, Manoj Misra, R Bindal, S C Sharma and A G Masih, which had on Tuesday categorically said that it would not go into the controversy relating to Article 31C, changed tack and asked, "Is it not desirable that
Article 31C
's
validity
is put to rest by an authoritative pronouncement from the nine-judge bench?"
Solicitor general Tushar Mehta said the seven-judge bench in its Feb 2002 order referring interpretation of Article 39(b) to a nine-judge bench had consciously omitted Article 31C from the ambit of consideration as the 13-judge bench in Kesavananda Bharati case in 1973 had upheld the validity of its core principle.
What the Bharati judgment invalidated was the part that barred courts from even scrutinising whether the legislations had any nexus with the objective of Article 39(b) to enjoy the shield.
Smarting under the 'basic structure doctrine' ruling in Bharati case that circumscribed Parliament's power under Article 368 to amend the Constitution, Indira Gandhi govt in Dec 1976, through the infamous 42nd constitutional amendment, expanded Article 31C's ambit by which no legislation furthering any of the goals enshrined in the entire
Directive Principles
chapter could be challenged in court.
SC in Minerva Mills case in 1980 struck down the amendments as violative of the 'basic structure doctrine' but created an ambiguity as to whether Article 31C was struck down in its entirety or only that part which was inserted in 1976. CJI Chandrachud referred to this and said, "Minerva Mills created a conundrum regarding Article 31C."
Mehta stuck to his guns and said within months of Minerva Mills judgment, the SC in Waman Rao case ruled that "Article 31C of the Constitution, as it stood prior to its amendment by Section 4 of the Constitution (42nd Amendment) Act, 1976, is valid to the extent to which its constitutionality was upheld in Kesavananda Bharati. Article 31C, as it stood prior to the Constitution (42nd Amendment) Act does not damage any of the basic or essential features of the Constitution or its basic structure".
The bench asked whether Minerva Mills made any provision for revival of Article 31C after it struck down the entire amended version. Mehta cited the National Judicial Appointments Commission Act that had replaced the court-crafted collegium system for selection of constitutional court judges. He said when the SC struck down NJAC Act, it had ruled that the collegium system automatically revived. He argued that striking down the amended portion of Article 31C would revive the provision as it existed prior to the 1976 amendment.
Attorney general R Venkataramani and senior advocate Rakesh Dwivedi supported Mehta and said once the validity of the provision was upheld by a 13-judge bench, it would not lie within the domain of a nine-judge bench to go into it again. Senior advocate Zal T Andhyarujina will argue on Article 31C's nature of existence in the Constitution on Thursday.
English (US) ·