Latest news with #SeventeenthAmendment
Express Tribune
a day ago
- Politics
- Express Tribune
Constitutionalism — a lost sanctity
To destroy a people, you must first sever their roots. — Aleksandr Solzhenitsyn Any religious place of worship and its holy book are revered as sacred by their followers. In much the same way, a state and its governing document 'Constitution' holds a sacrosanct place in the hearts of their citizens and constitutionalists. Just as any adulterated alteration of holy scriptures incites the fury of the faithful; likewise, any malicious amendment to the sacred document of the 'Constitution' provokes outrage in a society that firmly believes in upholding democratic principles. The journey of constitutional process in Pakistan has been nothing short of a rollercoaster ride. From the prolonged delay in framing and adopting the first Constitution to the recurring adventurism of experimenting with the adoption of a Presidential or a Parliamentary form of government, and from the question over a Federal versus a unitary system, to the abrupt military takeovers and undemocratic overreach of power by elected civilian representatives, Pakistan's constitutional trajectory has been fraught with ambivalence. Growing up in a household where political conversations were the main course of every table-talk, I was unknowingly familiarised with unsettling phrases like 'abrogation', 'suspension', 'reframing', and the most loathed of all, the Eighth Amendment (inserted by the then military dictator, President Ziaul Haq to strengthen his grip on power and suppress political dissent) that left an unconscious, yet profound impact on my understanding of constitutionalism. As a political science student, I observed the Seventeenth Amendment saga (brought in by the then President, General Pervez Musharraf in collusion with so-called democratic-minded religious and political parties) with a personal interest from the comfort of my couch, viewing it as an academic learning experience. However, I remained oblivious of the gravity of its repercussions. Years later, after spending nearly a decade in the professional arena, the passage of the 26th Constitutional Amendment (introduced in the backdrop of post-9th May political and military tug-of-war) felt like a direct punch to my face – finally making me realise the devastating impact of these calculated executive and legislative maneuvers. I find myself jolted by the ongoing tremors of this Amendment – an impact intensified by the rather unfortunate than fortunate experience of being position at the heart of it all, working on matters closely tied to its aftermath. Simply put, Constitutional Amendments in the past by the military dictators were focused on consolidation and legitimisation of their authoritarian regimes, whilst the civilian governments concentrated in strengthening the executive branch. However, the insertion of the 26th Amendment has had the effect of targeted weakening of the judicial branch; it has virtually glued the judicial institution with the executive in blatant violation of the fundamental constitutional mandate of trichotomy of powers and independence of judiciary as enshrined in Clause (3) of Article 175 of the presently enforced 1973 Constitution. Reflecting on my political science lectures, I am, rightly or wrongly, reminded that the Constitution not being merely a legal document but a foundational covenant between the rulers and the ruled; valued as a social contract between the State and its citizens, if that is the correct version, then who grants corridors of power the authority to unilaterally bend its clauses while expecting absolute obedience by the governed. It is an elemental legal principle that a contract loses its legitimacy when one party manipulates its terms to its advantage while disregarding the consent of the other. With the advent of the 21st century's sophisticated standards, overt military coups becoming increasingly unpopular. In their place, a far more alarming trend of employing covert methods to dominate the ruthless game of thrones has emerged, which stems from the nations' most revered legal scripture itself. In the guise of upholding the constitutional spirit and rule of law, state actors systematically set legal machinery into motion, weaving legal frameworks into a silken trap. They wield the axe of 'amendment' like executioners, striking down democratic norms and enclosing them in a gilded cage, all under the banner of legitimate governance. Thus, authoritarian forces are granted the licence to seize power under the illusion of constitutionality, gradually hollowing out state institutions like termites devouring the foundations of a grand structure, all while flawlessly maintaining the façade of constitutional integrity. This wave of Constitutional adventurism leading us down the path of legal debacle and ultimate frustration compels me to question my very choice of entering the legal profession, especially as I stand witness to a judiciary that mirrors a disarmed soldier on the battlefield, a toothless prey confronted by a fierce and unrelenting executive. The survival of a nation does not merely depend upon its military might or economic prosperity, but hinges on an unwavering commitment to the principles enshrined in its primitive framework. The Constitution, like faith, must be honoured, protected and upheld – for once its sanctity is lost, the risk is not just the erosion of legal provisions, but the very soul of the nation itself.
Indian Express
04-05-2025
- Politics
- Indian Express
How a landowner challenged Rajasthan's land ceiling law to protect his 175 acres — and lost
About 70 km from Jodhpur, in Pali district's Deoli village, was Sajjan Singh's 175 acres of agricultural land. In 1964, he was a khatedar tenant, a landholder who paid a nominal annual rent to the Rajasthan government when the state introduced a new law that capped land holdings. The land ceiling meant that a family of five could not own more than 25 acres. Singh had to challenge the Rajasthan Tenancy Act and the crucial Seventeenth constitutional Amendment that backed such ceilings and kept them out of the purview of judicial review. The case — Sajjan Singh v State of Rajasthan raised a question that we continue to debate even in the 75th year of the Constitution — what is the extent of Parliament's power to amend the Constitution and the role of the judiciary to guard against encroachment of fundamental rights. On October 30, 1964, a five-judge Bench of the Supreme Court reaffirmed its view that Parliament has the power to amend any part of the Constitution, and upheld the Amendment and the consequent laws. 'It appears unreasonable to suggest that the Constitution-makers wanted to provide that fundamental rights guaranteed by the Constitution should never be touched by way of Amendment,' then Chief Justice PB Gajendragadkar wrote. Singh and the sanctity of fundamental rights were on the losing side. However, two judges — Justices R Mudholkar and M Hidayatullah — expressed doubts on Parliament's power to abrogate rights. The dissenting view would in later cases shape the course of constitutional history. The case Since the Constitution came into force in 1950, the Jawaharlal Nehru government's land and agrarian reforms laws were met with resistance from the Supreme Court on the grounds that they breached fundamental rights. In the First Amendment itself, Parliament had introduced Articles 31A and 31B, the first provision stated that no land acquisition law would be deemed void because it violated any of the fundamental rights. In 1954, Parliament brought in the Fourth Constitutional Amendment, expanding Article 31A, which then stated that laws providing for 'the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights' cannot be deemed void because they were inconsistent with Articles 14 (the right to equality), 19 (rights from speech to practicing trade) or 31 (right to property, which was later repealed and replaced by Article 300A in 1978). In the Seventeenth Amendment, Parliament sought to expand the definition of estate to include any jagir, inam or muafi (in the States of Madras and Kerala, any janmam right) and any land held under ryotwari settlement. The widening of the definition was to undo the effect of the SC striking down the Kerala land ceiling law in 1961 on the grounds that the term 'estate' did not include the lands of ryotwari pattadars. On May 27, 1964, a special session of Parliament was called in to introduce the crucial Seventeenth Amendment. The Amendment was passed with 318 ayes to 31 noes, and the Lok Sabha was adjourned. Incidentally, just minutes later, it was announced that Nehru was dead. Sajjan Singh's son, Virendra Singh. Special Arrangement Sajjan Singh, an influential Rajput landowner born in 1921, was the first to move the Supreme Court. His father, Thakur Madho Singh, was the aide-de-camp (a personal assistant of sorts) to Maharaja Umaid Singh of Jodhpur and was granted the thikana (estate) of Deoli in Pali. The 175 acres included land in Tikhi village, Jalore, and Deoli in Pali. In search of a male heir, Sajjan Singh had married thrice and in his twilight years, he had adopted his nephew Virendra Singh. Associated with the Swatantra Party and the Congress, Virendra Singh was a pradhan, a zila pramukh and in 1972, a Member of the Legislative Assembly (MLA) from Pali's Sumerpur. He died in an accident in 1987. In the 1951 Sankari Prasad case, the Supreme Court had upheld the First Amendment and said that there was a clear demarcation between ordinary law, which is made in exercise of legislative power, and constitutional law, which is made in exercise of constituent power. Therefore, a constitutional amendment had to be treated differently even if it violated fundamental rights. Sajjan Singh's case was an opportunity for the Supreme Court to relook at Sankari Prasad's case. The First Amendment, after all, was brought in by the provisional Parliament, which at that time had no Rajya Sabha and therefore did not follow the due procedure prescribed by Article 368 for amending the Constitution. Chief Justice Gajendragadkar and two other judges disagreed that Sankari Prasad must be reconsidered. 'In the present case, if the arguments urged by the petitioners were to prevail, it would lead to the inevitable consequence that the Amendments made in the Constitution both in 1951 and 1955 would be rendered invalid and a large number of decisions dealing with the validity of the Acts included in the Ninth Schedule which have been pronounced by different High Courts ever since the decision of this court in Sankari Prasad's case was declared, would also be exposed to serious jeopardy,' the majority opinion said. However, two judges opened a window. Justice Hidayatullah's opinion, even while upholding the Amendment, wondered how far Parliament could go. 'The Constitution gives so many assurances in Part III (that deals with fundamental rights) that it would be difficult to think that they were the playthings of a special majority.' Justice Mudholkar, in his opinion, wrote about harmonising a parliamentarian's duty of allegiance to the Constitution with the power to make an amendment to it. He also cited a judgment of the Pakistan Supreme Court, which did not allow its President to make 'an alteration in a fundamental feature of the Constitution'. Although Sajjan Singh lost the case that bears his name, it paved the way to the landmark 1973 Kesavananda Bharati ruling that established the 'basic structure' test to balance Parliament's power to amend the Constitution. The difference of opinion among the five judges in Sajjan Singh's case echoes even today. Just last month, Vice-President Jagdeep Dhankhar said Parliament is supreme and that elected representatives are the final arbiters of the Constitution. He was speaking in the context of the April 8 Supreme Court ruling that set timelines for Governors and the President to grant assent to Bills. In the past, Dhankhar and several other legal scholars have criticised the Supreme Court for striking down the constitutional Amendment setting up the National Judicial Appointments Commission (NJAC) and have argued that the judiciary ought to have recognised Parliament's power to amend the Constitution. Senior advocate Raju Ramachandran, a 'qualified critic' of the basic structure doctrine, says 'a constant creative tension' between Parliament and the judiciary is good for democracy. A later part of the series will focus on the 1967 case, I C Golaknath v State of Punjab, that reversed the Sajjan Singh ruling. The debate on the right to property, perhaps the most contested fundamental right, was settled only in 1973, with the Kesavananda ruling. But the larger questions continue. 'No generation has a monopoly on wisdom. As long as the critique is well articulated, these are issues to be revisited in every generation,' Ramachandran says. 1964 Sajjan Singh v State of Rajasthan The case: Sajjan Singh, an influential Rajput landowner from Rajasthan, challenged the state's land ceiling law to protect his 175 acres of agricultural land. He also challenged the Seventeenth Amendment to the Constitution, brought in 1964, which protected land ceiling laws from judicial scrutiny on the grounds that it violated fundamental rights. A five-judge Bench of the Supreme Court reaffirmed its view that Parliament has the power to amend any part of the Constitution and upheld the Amendment and the consequent laws. Relevance today: The central question that divided judges 3:2 in Sajjan Singh's case remains relevant even today — what is the extent of Parliament's power to amend the Constitution and the role of the judiciary to guard against encroachment of fundamental rights.
