SHOULD WE ALTER OUR CONSTITUTION?

By N. A. Palkhivala

Summary

Written during the Emergency and reprinted from the Illustrated Weekly of India (4-10 January 1976), N. A. Palkhivala’s pamphlet is a constitutional alarm bell. He opens with the wry observation that, however acute the recession, the law-making industry remains in perpetual boom, and argues that what India needs is respite from the Niagara of Rules and Notifications rather than fresh amendments. The Supreme Court and High Courts, he insists, must never be deprived of their power under Articles 32 and 226 to interpret the Constitution and shield citizens from executive excess. He invokes Lord Atkin in Eshugbayi Eleko’s case to defend the British-derived tradition that judges must not shrink from confronting the executive, and offers contemporary illustrations—the Bombay Police Commissioner’s blanket ban on assemblies of five or more, struck down on 18 December 1975, and the startling proposition in Bhanudas Krishna Gawde’s case that a detenu could not contest even an order forbidding him to eat.

The argumentative core is a defence of the Supreme Court’s April 1973 ruling in Kesavananda Bharati that Parliament cannot alter or destroy the Constitution’s basic structure. Palkhivala enumerates the essential features that make up that structure: supremacy of the Constitution, sovereignty and integrity of India, the republican and democratic form of government, fundamental rights, the secular state, an independent judiciary, the dual federal structure, and the balance among legislature, executive and judiciary. Against this baseline he assesses a circulating proposals paper that he hopes is not Congress-sponsored: it would replace the Westminster system with a presidential one virtually uncontrolled by the Constitution, install a politically dominated ‘Superior Council of the Judiciary’ that would reduce the higher judiciary to (quoting Justice Staple) ‘mice squeaking under the Home Minister’s chair’, delete Articles 13 and 32, and make Parliament’s interpretation of the Constitution final and binding on all courts.

He pairs this with the already-passed Forty-first Amendment Bill granting the President, Prime Minister and Governors lifelong civil and criminal immunity for acts done in office, which he calls a proposal without parallel in civilized jurisprudence. Citing Indira Gandhi’s own February 1975 dictum that ‘democracy does not include freedom to wreck democracy’, and a December 1975 UK case in which a counsel’s casual threat to the Court of Appeal produced an immediate official apology, Palkhivala urges that the Government publicly disavow these proposals and submit any further amendment to free public debate. He closes with Joseph Story’s warning that the Constitution will either descend to future generations ‘in its masculine majesty’ or, shorn of its strength, ‘become an idle mockery, and perish before the grave has closed upon the last of its illustrious founders.‘

Key points

• Opens with the aphorism that the law-making industry is in perpetual boom regardless of recession, and that India needs respite from new laws, not more amendments.

• Defends the Supreme Court’s and High Courts’ jurisdiction under Articles 32 and 226 as the citizen’s irreducible protection against executive excess, citing Lord Atkin’s judgment in Eshugbayi Eleko.

• Illustrates executive overreach with the Bombay Police Commissioner’s order banning assemblies of five (struck down 18 December 1975) and counsel’s argument in Bhanudas Krishna Gawde’s case that a detenu could be denied food without remedy.

• Treats Kesavananda Bharati (April 1973) as a constitutional bulwark and lists nine essential features of the Constitution’s basic structure that Parliament cannot destroy.

• Attacks an anonymously circulating ‘Some Suggestions’ paper that proposes a presidential system uncontrolled by the Constitution, a Superior Council of the Judiciary politically dominated by the President and Parliament, and deletion of Articles 13 and 32.

• Condemns the Forty-first Amendment Bill (passed by the Rajya Sabha in August 1975) granting lifelong civil and criminal immunity to the President, Prime Minister and Governors as without parallel in civilized jurisprudence.

• Argues that the proposals would reduce the Supreme Court and High Courts to mere appendages of the administration and make fundamental rights, including freedom of religion and minority protections, unenforceable.

• Calls on the Government to publicly disavow sponsorship of these proposals and to permit free public debate before any further amendment, invoking Joseph Story’s warning about the survival of constitutional government.

---

Generated by the v1.5 extraction pipeline. Awaiting editorial review.