Minerva Mills Judgment: A Case Behind The Survival Of Indian Judiciary

Baglekar Akash Kumar[i]

Even though the decision of India’s largest-ever bench of 13-judges sitting in Keshavananda Bharti v. State of Kerala[1] has laid down the ‘basic structure theory’, which is the most notable judgment in our Post-Constitutional history of 70-years, but the decision of 5-judge constitutional bench delivered on 9th May 1980 in Minerva Mills Ltd. v. Union of India[2] is one such judgment which had not only affixed a stamp of ‘basic structure theory’ in our constitutional jurisprudence, but also the case that can be seen as a reason behind the survival of our Indian Judiciary till now.

The above made statement would be substantiated through the elaborate discussion of the case-law itself.

When Mrs Indira Gandhi (Former Prime Minister of India), declared Emergency on 25^th June 1975, she brought in two draconian Constitutional Amendment Acts viz., 39^th and 42^nd respectively during the course of Emergency, which noted legal jurist H.M. Seervai called as a ‘Constitutional Outrage’.

Constitutional (39^th Amendment) Act, 1975 was undone in Indira Gandhi v. Raj Narain[3] and Constitutional (42^nd Amendment) Act, 1976 was undone in Minerva Mills Ltd. v. Union of India[4]. Both the cases made ‘Basic structure theory’ look like a living concept.

What was challenged in Minerva Mills case was Section 4 & Section 55 of the Constitutional (42^nd Amendment) Act, 1976. Section 4 amended Article 31-C of the Constitution which in simple terms means that all the laws passed to achieve the directive principles of state policy could not be challenged in court of law as being violative of either Article 14 or 19 or 31. Section 55 added clauses 4 & 5 to Article 368, which if encapsulated say that no amendments already made to the constitution and to be made in future can be challenged in the court of law and it also tried to make Article 368 useful only for academic study. In other sense, Mrs Gandhi tried to undo Keshavananda Bharti legislatively this time what it cannot do judicially in Keshavananda Review Case, the 13-judge bench which Chief Justice A.N. Ray constituted without any litigant seeking for original judgment’s review.

Two Dates

An order was passed declaring Sections 4 & 55 of the Constitutional (42^nd Amendment) Act, 1976 as unconstitutional on May 9, 1980[5] by the four judges with Justice P.N. Bhagwati saying that he will declare his stand later with a reasoned order and the reasoned order was given on 31^st July, 1980[6] by both the majority and minority judges.

May 9 1980, was the last working day of the Supreme Court before vacation, hence the unreasoned order was passed by the majority and this was pointed out by Justice Bhagwati in his partly dissenting judgment, that there was no ‘free and frank exchange of thoughts’[7]. He also points out that the arguments in the case commenced on October 22, 1979, and ended on November 16, 1979, but no course of action was decided and just two days before on May 7, 1980, he was informed of passing the unreasoned order to which he disagreed.

This unreasoned order of the majority was even criticized by the great legal luminaries[8], but we have to see the political situation in the country at that time when this judgment was delivered.

First, it was the time when Mrs. Indira Gandhi led Congress (I) resuscitated back to power in January, 1980 elections after defeating the Janta Party Government.

Second, Justice P.N. Bhagwati was the only judge sitting in that case to become the next Chief Justice of India as per seniority norm after Justice Y.V. Chandrachud retires in 1985, hence his inclination to toe the line of ruling party in order to get Chief Justiceship was obvious. This point would stand clearly exposed if we know that one letter was written by Justice Bhagwati to Ms. Indira Gandhi in January, 1980 congratulating her for her victory in general elections and also praising her pro-poor programmes.

Third, Justice Y.V. Chandrachud who was also under the fear of losing Chief Justiceship, as it is widely said by the jurists while deciding what is called as the most devastating decision in Indian Judicial history in ADM Jabalpur v. Shivakant Shukla[9], where Article 21 was said to be unworkable during the times of Emergency. He might have sensed that if vacations were passed by, Justice Bhagwati would get the time to persuade two other judges to dissent along with him.

Sensing all this, an unreasoned order was passed which in my respectful submission was valid at the peculiar circumstances of that time, which should never happen again.

Nani Palkhivala’s Advocacy at pinnacle

This case also led the India’s greatest Advocate Nani Palkhivala to show once again his high form of advocacy.

Justice Rohinton Nariman (His lordship who was freshly enrolled at Bar was the only junior Advocate who assisted Nani Palkhivala in this case) in one of his speech[10] said that, When Nani Palkhivala was India’s Ambassador to the USA, he promised to the nation that “whatever was left by Constitutional (42^nd Amendment) Act, 1976 which was undone by Constitutional (44^th Amendment) Act, 1978, he would come personally and undo it in the court.”

Palkhivala’s use of simple language made the court to go in for his submissions. He said “Article 31C has turned Constitution on its head. Whereas, Fundamental Rights which are enforceable in court of law are made unenforceable and Directive Principles of State Policy which are not to be enforced are made enforceable”.

On an occasion, when Justice N.L. Untwalia, was extolling about ‘Socialism’. Palkhivala patiently listened and was beating his cheeks with two fingers to show that he was nervous and slowly asked, “Have Your Lordships quite well finished?” Justice Untwalia replied, “Yes, I am finished!” Palkhivala again slowly said, “Not even a lunatic would ever jump a wall from West Berlin to East Berlin” – loudly emphasizing the word lunatic.

Further, if we closely see this case, Minerva Mills was a public limited company which challenged certain provisions of Sick Textile Undertakings (Nationalisation) Act, 1974 and one Government order which took over its management. It also challenged Constitutional (39^th Amendment) Act, 1975 which inserted the Nationalisation Act as Entry 105 in the 9^th Schedule of the Constitution which raises a question about validity of Article 31-B of the Constitution.

It would be apt to mention that Article 31-B, Article 31-A, unamended Article 31-C of the Constitution were upheld by another 5-judge Constitutional bench led by Chief Justice Y.V. Chandrachud in Waman Rao v. Union of India[11]. In this case also unreasoned order was passed on May 9, 1980[12] followed by a reasoned order on November 13, 1980[13]. Justice Bhagwati who adorned the bench in both the cases gave one single reasoned order in Minerva Mills case[14].

Coming back to point, Sections 4 & 55 of the Constitutional (42^nd Amendment) Act, 1976 had no relevance with the facts of the case. When Palkhivala was countered with this objection, he said, “this Constitutional (42^nd Amendment) Act, 1976 wants to take away the power of Judges”. This was like provoking the judges who in this case decided only on point of validity of Sections 4 & 55 of the Constitutional (42^nd Amendment) Act, 1976[15].

Another attractive submission which he made was that, “while Article 359 suspends the enforcement of fundamental rights during the emergency, Article 31-C virtually abrogates them in normal times”[16].

Academic Question?

The then Attorney-General of India, Lal Narain and Additional Solicitor-General of India, K.K. Venugopal (presently he is Attorney-General of India) raised a preliminary objection in this case by arguing that, “the subordination of fundamental rights by the directive principles of state policy is an academic question which the courts cannot decide”.

This preliminary objection was accepted by both the majority and minority judges. Then the question might arise how Constitutional (42^nd Amendment) Act, 1976 was nullified? The majority decision simply followed, although impliedly, the spirit of the constitution by referring to our freedom struggle for ensuring fundamental rights to its people. By this the majority decision scored highest marks in this academic question exam.

The majority judges, unknowingly upheld Justice Vivian Bose dissent in S. Krishnan v. State of Madras[17], who in his magniloquent words said “Look past the mere verbiage of the words and penetrate deep into the heart and spirit of the Constitution. What sort of a State are we intended to be? Have we not here been given a way of life, the right to individual freedom, the utmost the State can confer in that respect consistent with its own safety? Is not the sanctity of the individual recognised and emphasised again and again? Is not our Constitution in violent contrast to those of States where the State is everything and the individual but a slave or a serf to serve the will of those who for the time being wield almost absolute power? I have no doubts on this score. I hold it, therefore, to be our duty, when there is ambiguity or doubt about the construction of any clause in this chapter on fundamental rights, to resolve it in favour of the freedoms which have been so solemnly stressed”. Justice Bose further said, “I cannot bring myself to believe that the framers of our Constitution intended that the liberties guaranteed should be illusory and meaningless or that they could be toyed with by this person or that. They did not bestow on the people of India a cold, lifeless, inert mass of malleable clay but created a living organism, breathed life into it and endowed it with purpose and vigour so that it should grow healthily and sturdily in the democratic way of life, which is the freeway”.

What if no Minerva Mills case?

I often wonder that what if no Minerva Mills case, what about our Basic Structure theory and in particular, Indian Judiciary? ‘Basic structure theory’ would have died its natural death and ‘Indian Judiciary’ would have been made a mere puppet in the hands of the ruling dispensation of that day for the simple reason that even if we answer to the so-called academic question, we would find that ‘courts were obliquely told to step aside from enforcing fundamental rights of the citizens’ and this would have happened not by any major constitutional amendment, but just by a simple Executive Order, because under our Constitutional scheme, the executive power of the Union and State Governments extends even to make laws under Articles 73 & 154 of the Constitution respectively.

Even if any future court tried to nullify Sections 4 & 55 of the Constitutional (42^nd Amendment) Act, 1976, the doctrine of ‘prospective overruling’ would have come and haunt it.

The concepts of ‘public interest litigations’, ‘judicial activism’, ‘privacy’, ‘transformative constitutionalism’, etcetera, etcetera wouldn’t have seen the light to the day.

(Views expressed are personal and not intended to hurt anyone)

[1] (1973) 4 SCC 225.

[2] (1980) 2 SCC 591 & (1980) 3 SCC 625.

[3] AIR 1975 SC 1590.

[4] See SUPRA note 2.

[5] (1980) 2 SCC 591.

[6] (1980) 3 SCC 625.

[7] Ibid at Page 665, Para 78.

[8] Refer Nani Palkhivala: The Court Room Genius written by Soli Sorabjee and Arvind P. Datar, Page 185.

[9] (1976) 2 SCC 521.

[10] https://youtu.be/NBPfxeJX6co

[11] (1980) 3 SCC 581 & (1981) 2 SCC 362.