Indira Gandhi, daughter of the pragmatic leader, idealistic constitutional democrat, and pioneer of Constituent Assembly who played an eminent role in nurturing secularism after partition, Jawaharlal Nehru. Nehru served the post of Prime Minister for seventeen years. Considering her father as a source of ingenuity she used to witness him which materialized her to serve the chair of Prime Ministership. Hence she served as Prime Minister from January 1966 to March 1977 and again from January 1980 until her assassination in October 1984, making her the second longest-serving Indian prime minister after her father. In 2020 Gandhi was designated as the world’s 100 powerful women by Time Magazine among those who defined the last century. She was known for her political tenacious and unprecedented centralization of power.
During her tenure, she tried to bring several amendments some of them are discussed below.
24th Amendment –
Indira Gandhi instigated 24th Amendment which came into force on 5th November 1971. The Hon’ble Supreme Court in Golaknath v. State of Punjab (AIR 1967 SC 1643) overruled Sankari Prasad v. Union of India. In Sri Sankari Prasad Singh Deo vs Union Of India (1951 AIR 458) 1st constitutional amendment act, 1951 was challenged and Art. 13 and Art. 368 came into conflict. In this case, the court held that Parliament can amend any part of the Indian Constitution and have absolute power. In the Golaknath case court restored the absolute power of parliament to amend any part of the Indian constitution and in addition, held that fundamentals rights cannot be amended ever. This act also provides that when a Constitution amendment bill has been passed by both the house of parliament and forwarded to the president for his assent, he is bound to give his assent. This act also added Art.13(4) and 368(3) where Art. 13 (4) says “Nothing in this article shall apply to any amendment of this Constitution made under article 368.” A new marginal heading was substituted to article 368 in place of the old heading “procedure for amendment of the constitution”. The new heading is “power of parliament to amend the constitution and procedure thereof.24th Amendment Act made clear that provisions in article 13 do not apply to a constitutional amendment made under article 368. From here itself a tussle has been started between Government and Hon’ble Supreme Court. Along with this bank, nationalization took place which also became a matter of dispute between Government and Hon’ble Supreme Court.
25th Amendment-
The 25th Constitutional Amendment act, 1971 curtailed Right to Property and provided that any law made to give effect to the DPSP contained in Art. 39(b) or (c) cannot be challenged on the ground of violation of the rights guaranteed under Art.14, 19, and 31 of Indian Constitution. This act gives an eminent power to the government to compulsorily acquire the property of any person and the price of the property will be decided by the government itself.
29th Amendment-
In subsequent to this, a very crucial case came into a picture named Kesavnanda Bharti v. State of Kerala(AIR 1973 SC 1461). It was the largest bench comprising of 13(ratio was 7:6) judges of Hon’ble SC. Kesavnanda Bharti was the head of Edneer Mutt in Kerala. Kerala Gov. passed a law that attempted to control religiously owned property under the Two-State Land Reform Act. Art. 26 of the Indian Constitution gives power to Indian citizens or trust to manage any religious institution property. The bare reading of Art. 26 is:-
Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law
Nana Palkhiwala, a senior and reputed advocate of Hon’ble SC convinced Kesavnanda Bharti to file a PIL in Kerala HC in the violation of Art.26 by the virtue of Art. 226. The petitioner has challenged the validity of the Kerala land reforms act, 1963, and later during the pendency of petition Kerala Act amended the Act in 1971 and it was placed in the 29th constitutional amendment act. Hence the petitioner challenged the validity of the 24th, 25th, and 29th Amendments to the Constitution. Later this case was transferred to Hon’ble SC where the hearing of court continues to 68 days. Hon’ble SC, in this case, held that Parliament can amend any part of the constitution including fundamental right but the amendment cannot alter its basic structure of the Constitution and also declared Preamble as an integral part of the Indian constitution.
Where basic structure may be said to consist of the following features:
(1) The supremacy of the Constitution;
(2) Republican and Democratic form of Government.
(3) Secular character of the Constitution;
(4) Separation of powers between the Legislature, the executive and the judiciary;
(5) Federal character of the Constitution.
39th and 41st Amendment-
But this case didn’t stop here it has several dimensions. In 1975, Allahabad High Court set aside the Indira Gandhi election which eventually led to the Emergency. The 39th Amendment to the Constitution was to ensure that elections of the president, vice-president, prime minister, and speaker could not be questioned in any court of law but before another forum prescribed by Parliament. Further, any judgment that set aside the election of any of these four functionaries was deemed to be void and all elections of these four functionaries were always to be deemed to be valid in all respects. This amendment was held to be violative of the basic structure and struck down. Justice J.L. Sinha not only set aside Gandhi’s election from Rae Bareli, but also disqualified her from contesting elections for six years.
Aggrieved with struck down of 39th Amendment she again passed the 41st Amendment Bill which prohibited any civil or criminal proceedings against the president, vice-president, prime minister, and all governors. Thus, any person who committed a serious crime could become immune from any criminal action if he held the office of governor for just one day. If the power of Parliament had not been fettered by the basic structure, this would have become law. Including this appointment of the president the term of office will only from 6 months to 12 months and not more than that. But this amendment was also held violative of basic structure and struck down.
She didn’t stop here. She has to suppress all establish a reign of terror and therefore in order to continue as PM declared national emergency from 1975 to 1977 and suspended Articles 14, 21, and 22. People who were illegally detained approached to Hon’ble HC for the enforcement of Fundamental right enshrined under Art. 21 several opposition leaders were detained under MISA Act, 1971 (maintenance of Internal Security Act).
42nd Amendment-
This amendment Act, 1976 was enacted during the period of emergency by Indira Gandhi. This amendment was the most controversial amendment in history and also called mini-constitution as almost every part of the Constitution has been changed including the Preamble. The word ‘Secular’ and ‘Socialist’ was added in the preamble. This amendment gives uncontrolled power to amend the constitution to parliament while reducing the power of Hon’ble HC and SC without Judicial Review.
During this era Judicial independency was in danger and then came a case ADM Jabalpur v. Shivkant Shukla(AIR 1976 SC 1207) popularly known as Habeas Corpus case comprising of 5 judge bench (ratio 4:1). Petitioners were detained under the above-mentioned act during emergency where all the petitioners approached different Hon’ble HC under Art. 226 for issuance of Habeas Corpus Writ and challenged the illegal detention. But the Hon’ble HC did not examine the validity of proclamation hence the case came before the Hon’ble SC by way of appeal against the order of Hon’ble HC. Where Hon’ble SC gave its majority judgment where it held Sec. 18 of MISA Act is valid and when President under Art. 359(1) has suspended the fundamental right to be executed by the court then by the virtue of Art. 226, no one has any locus to file any writ to challenge the illegality of detention order. This judgment was termed as a black day of the Judiciary. In this case, Justice H.R. Khanna played an eminent role by giving dissenting judgment after aware of the fact that he will have to cost his chair of chief Justiceship. He alone held that even if a person’s fundamental right has been taken away then also he/ she can proceed towards the court of law to know the reason behind their detention. He also held that life and liberty cannot be granted on the mercy of executive and rule of law does not allow the government to illegally detain any person.
Mrs. Gandhi angered with the dissenting judgment broke the seniority procedure for appointment of Chief Justice of India and appointed Justice AN Ray by superseding three judges of the court. Justice Khanna during the pendency of this judgment told to his sister that his views in the said judgment will cost the chair of Chief Justiceship of India.
Justice Khanna was the epitome of Judicial Independence. His dissenting judgment has definitely cost the chair but he gained a bucket full of respect across the world. Kushwant singh wrote about Justice Khanna – “so clean a man that he makes angels looks disheveled and dirty”. I am a bit sure that there would be no justice like Justice Khanna.
As every coin has two sides, uniformly Indira Gandhi was not only the part of getting criticized but also praised for her numerous acts. During her nonage, she was called a Goongi Gudiya but later on, she became lionhearted and daredevil which was witnessed by the world. Vengeance and rage drove her politics. She was India’s most powerful prime minister because when it came to using and manipulating power she left even her father, flat on the mat. Mrs. Gandhi’s prestige reached a height of zenith when she led India in a successful December 1971 war against Pakistan.
About author –
This article is authored by Deeba Faryal, She is currently a 5th-year student pursuing BALLB from Balaji Law College, Pune University. She is a learner of law and always keen to learn new things and to revert it back with you guys.
Also Read – Distribution Of Powers in the Indian Constitution
