Basic Structure of the Indira Gandhi Election case

In 1975, The Supreme Court again had the opportunity to pronounce on the basic structure of the Constitution. A challenge to Prime Minister Indira Gandhi’s election victory was upheld by the Allahabad High Court on grounds of electoral malpractice in 1975. Pending appeal, the vacation judge- Justice Krishna Iyer, granted a stay that allowed Smt. Indira Gandhi to function as Prime Minister on the condition that she should not draw a salary and speak or vote in Parliament until the case was decided. Meanwhile, Parliament passed the Thirty-ninth amendment to the Constitution which removed the authority of the Supreme Court to adjudicate petitions regarding elections of the President, Vice President, Prime Minister and Speaker of the Lok Sabha. Instead, a body constituted by Parliament would be vested with the power to resolve such election disputes. Section 4 of the Amendment Bill effectively thwarted any attempt to challenge the election of an incumbent, occupying any of the above offices in a court of law. This was clearly a pre-emptive action designed to benefit Smt. Indira Gandhi whose election was the object of the ongoing dispute.


Amendments were also made to the Representation of Peoples Acts of 1951 and 1974 and placed in the Ninth Schedule along with the Election Laws Amendment Act, 1975 in order to save the Prime Minister from embarassment if the apex court delivered an unfavourable verdict. The mala fide intention of the government was proved by the haste in which the Thirty-ninth amendment was passed. The bill was introduced on August 7, 1975 and passed by the Lok Sabha the same day. The Rajya Sabha (Upper House or House of Elders) passed it the next day and the President gave his assent two days later. The amendment was ratified by the state legislatures in special Saturday sessions. It was gazetted on August 10. When the Supreme Court opened the case for hearing the next day, the Attorney General asked the Court to throw out the case in the light of the new amendment.

Counsel for Raj Narain who was the political opponent challenging Mrs. Gandhi’s election argued that the amendment was against the basic structure of the Constitution as it affected the conduct of free and fair elections and the power of judicial review. Counsel also argued that Parliament was not competent to use its constituent power for validating an election that was declared void by the High Court.

Four out of five judges on the bench upheld the Thirty-ninth amendment, but only after striking downthat part which sought to curb the power of the judiciary to adjudicate in the current election dispute.[19] One judge, Beg, J. upheld the amendment in its entirety. Mrs. Gandhi’s election was declared validon the basis of the amended election laws. The judges grudgingly accepted Parliament’s power topass laws that have a retrospective effect.


Basic Features of the Constitution according to the Election case verdict:

Again, each judge expressed views about what amounts to the basic structure of the Constitution:

According to Justice H.R. Khanna, democracy is a basic feature of the Constitution andincludes free and fair elections.

Justice K.K. Thomas held that the power of judicial review is an essential feature.

Justice Y.V. Chandrachud listed four basic features which he considered unamendable:

  • sovereign democratic republic status
  • equality of status and opportunity of an individual
  • secularism and freedom of conscience and religion
  • ‘government of laws and not of men’ i.e. the rule of law

According to Chief Justice A.N. Ray, the constituent power of Parliament was above the Constitution itself and therefore not bound by the principle of separation of powers. Parliament could therefore exclude laws relating election disputes from judicial review. He opined, strangely, that democracy was a basic feature but not free and fair electionsRay, C.J. held that ordinary legislation was not within the scope of basic features.

Justice K.K. Mathew agreed with Ray, C.J. that ordinary laws did not fall within the purview of basic structure. But he held that democracy was an essential feature and that election disputes must be decided on the basis of law and facts by the judiciary.

Justice M.H. Beg disagreed with Ray, C.J. on the grounds that it would be unnecessary to have a Constitution if Parliament’s constituent power were said to be above it.[20] Judicial powers were vested in the Supreme Court and the High Courts and Parliament could not perform them. He contended that supremacy of the Constitution and separation of powers were basic features as understood by the majority in the Kesavananda Bharati case. Beg, J. emphasised that the doctrine of basic structure included within its scope ordinary legislation also.

Despite the disagreement between the judges on what constituted the basic structure of the Constitution, the idea that the Constitution had a core content which was sacrosanct was upheld by the majority view.


The Kesavananda Review Bench

Within three days of the decision on the Election case Ray, C.J. convened a thirteen judge bench toreview the Kesavanada verdict on the pretext of hearing a number of petitions relating to land ceiling laws which had been languishing in high courts. The petitions contended that the application of landceiling laws violated the basic structure of the Constitution. In effect the Review bench was to decidewhether or not the basic structure doctrine restricted Parliament’s power to amend the Constitution. The decision in the Bank Nationalisation case was also up for review.

Meanwhile Prime Minister Indira Gandhi, in a speech in Parliament, refused to accept thedogma of basic structure. [21]

It must be remembered that no specific petition seeking a review of the Kesavananda verdict filedbefore the apex court- a fact noted with much chagrin by several members of the bench. N.N.Palkhivala appearing for on behalf of a coal mining company eloquently argued against the move toreview the Kesavananda decision. Ultimately, Ray, C.J. dissolved the bench after two days ofhearings. Many people have suspected the government’s indirect involvement in this episode seekingto undo an unfavourable judicial precedent set by the Kesavananda decision. However no concerted efforts were made to pursue the case.

The declaration of a National Emergency in June 1975 and the consequent suspension offundamental freedoms, including the right to move courts against preventive detention, diverted theattention of the country from this issue.


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