Author: Karthik k & Geethika K


  1. The appeal and the cross-appeal arose out of the dispute as to the validity of the elections of Smt. Indira Nehru Gandhi from Rae Bareli Constituency in the General Parliamentary Elections of 1971. The respondent was the nearest rival and he successfully challenged the election of the High Court which gave its verdict on June 12, 1975. The election was challenged on seven grounds, out of which two were upheld. Hence, this appeal.
  2. During the pendency of the cross-appeal. Parliament amended the Election Laws (Amendment) Act, 40 of 1975, which came into force on August 6, 1975, and it virtually sealed the controversy in the appeal and the cross-appeal by amending the provisions of law retrospectively and expressly governing the appeals pending in the Supreme Court.[1]
  3. On August 10, 1975, the Constitution (Thirty-Ninth Amendment) Act was passed.[2] It introduced two new Articles: Article 71 and Article 329-A and it put in the ninth schedule three acts The Representation of People Act. 43 of 1951; The Representation of People (Amendment) Act, 58 of 1974; and The Election Laws (Amendment) Act, 40 of 1975.[3]


In the initial proceeding by Shri Raj Narain in the High Court of Allahabad;

  1. The defendant i.e. Smt.Indira Gandhi obtained the assistance of the Gazetted Officers of the Government of Uttar Pradesh for furthering her election prospects.
  2. She obtained the assistance of Shri Yashpal Kapoor, a gazetted officer in the Government of India holding the post of Officer on Special Duty in the Prime Minister’s Office for the same purpose.
  3. The successful candidate procured the assistance of the armed forces for arranging her flights by Air Force airplanes and helicopters.
  4. Her election agent, Shri Yashpal Kapoor, and others distributed clothes and liquor to induce the voters to vote for her.
  5. She and her election agent appealed to the religious symbol of Cow and Calf.
  6. Her election agent and others procured vehicles for the free conveyance of voters to the polling stations.
  7. She and her election agent incurred and authorized expenditure in violation of Section 77(3) of the Representation of People’s Act read with Rule 90 of the Conduct of Election Rule, 1961.

In the review proceedings under the Supreme Court;

  1. The constitutional validity of the 39th Amendment and Acts 58 of 1974 and 40 of 1975 based on the basic structure doctrine.
  2. The constitution of the House which passed the 39th Constitutional Amendment was challenged.
  3. 39th Amendmentabrogates the principle of ‘Separation of Powers’.


In the review proceedings under the Supreme Court;

Arguments invalidating 39th Amendment, i.e. the first issue

  1. The power to control whether the decision is valid or invalid lies with the Supreme Court under the exercise of Article 368 and Article 136. The jurisdiction of judicial determination is taken away, and, therefore, the democratic character of the Constitution is destroyed.[4]
  2. The Amendment destroys and abrogates the principle of equality. Since there is no rational bias for differentiation between persons holding higher offices and those others elected to the parliament.
  3. The rule of law is the basis for democracy and judicial review. The fourth clause makes the provisions of Part VI of the Representation of the People Act inapplicable to the election of the Prime Minister and the Speaker.
  4. Clause (4) destroys not only judicial review but also the separation of power. The order of the High Court declaring the election to be void is declared valid. The cancellation of the judgment is a denial of political justice which is the basic structure of the Constitution.

Arguments for the Second Issue;

  1. Several members of the parliament of the two houses were detained byexecutive order. Hence, the Amendment is unconstitutional subject to the fact that there were arbitrary detentions of Members of Parliament.
  2. Judicial review is a very important part of the Indian Constitution and accrues to be included in the basic structure of the Indian Constitution, as held in the case of Keshavananda Bharati (AIR 1973 SC 1461).[5]
  3. If the constitutionality of the 39th Amendment is upheld, then the parliament shall have the right to adjudicate issues related to the election, while the constitution provides for the judiciary to deal with disputes related to elections.


  1. The majority decision is not an authority for the proposition that there could be no free and fair elections without the judicial review.
    1. That validation of elections is a process well known to democratic forms of the Government.
    1.  That the law maybe constitutional even if it related to a single individual if, on account of special reasons, the single individual can be treated as a class in itself
    1. The amending powers of the Legislature have already been discussed in the Keshavananda case and the Sankari Prasad case. Hence, the contention regarding the 39th Amendment not being an exercise of the constituent power should not be allowed.[6]
    1. Article 14 is not violated, citing Article 31B and Article 33.[7]
    1. What a constitution should contain depends on the permanency is intended to be accorded to a particular provision included in the Constitution.
    1. The exclusion of Judicial Review is atleast permissible in those fields where originally the Constitution did not provide for or contemplate judicial review.
    1. If the election law does not apply, as it ceases to apply under Article 329A(4) it is the function of the legislature to declare whether or not a particular election is good or bad.[8]
    1. Rule of Law is not a part of the basic structure of the Constitution and apart from Article 14, our constitution recognizes neither the doctrine of equality nor the Rule of Law.

 Arguments put forth by Shri A.K. Sen:

  1. The Amendment follows the well-known pattern of all validation Acts by which the basis of judgments or orders of competent courts and tribunals is changed and the judgments and orders made are ineffective.
  2. The effect of validation is to change the law to alter the basis of any judgment, which might have been given based onthe old law and thus to make the judgment ineffective.
  3. A formal declaration that the judgment rendered under the old Act is void is not necessary. If the matter is pending in an appeal the appellate court has to give effect to the altered law and reverse the judgment. If the matter is not pending in appeal, then the judgment ceases to be operative and binding as res judicata.
  4. The constituent power has retrospectively changed the law in so far as it relates to the election. The constituent authority could have left the application of the changed law either to the Parliament or to any other body. But it has chosen to assume the duty of determination on this particular case for itself.
  5. The determination of election disputes and the validity of elections is not an exercise of judicial power.
  6. The rigid separation of powers as in the case of the United States of America is not present in the Indian Context.
  7. Since the power is being exercised by the constituent authority the separation of powers is not an issue that should be entertained.
  8. The constituent power is a “superpower” and shall act as the judicial, executive, and legislative power all at once.
  9. 39th Amendment does not violate the principle of Equality since it based on the rational classification.
  10. Assuming that equality is the basic feature of the Constitution, it shall be limited to “Equality of Status and Opportunity,” as enshrined in the preamble of the country.
  11. “Free and Fair elections” does not postulate that there must be a constitutional provision for determining election disputes by a separate tribunal or court.
  12. Assuming that Republican democracy is a Basic Structure to the Indian Constitution, validation of one election does not abrogate the same.
  13. A constitutional amendment need not necessarily relate to the structural organization of the State.

Ratio Decidendi

  • The Supreme Court, in this case, added the following feature as ‘Basic Features” to the list of basic features laid down in Keshavananda’s Case. These are –
  • Rule of Law
  • Democracy, that implies free and fair elections
  • Judicial Review
  • Jurisdiction of Supreme Court under Article 32.


In the initial proceeding by Shri Raj Narain in the High Court of Allahabad;

Out of the seven issues raised the first five were ruled in the favour of respondent while the High Court of Allahabad held the respondent violating the last two issues which were:

  • Her election agent and others procured vehicles for the free conveyance of voters to the polling stations.
  • She and her election agent incurred and authorized expenditure in violation of Section 77(3) of the Representation of People’s Act   read with Rule 90 of the Conduct of Election Rule, 1961.
  • Therefore, allowing the appeal, the High Court of Allahabad held the election of the Respondent invalid, subject to the issues raised by the Appellant.

In the review proceedings under the Supreme Court;

  • That Clauses (4) and (5) of Article 329-A are Unconstitutional and therefore void.
  • There is no merit in the contention that the Constitutional amendment is bad because it was passed when some members of the Parliament were in detention. The legality of the detention orders cannot be canvassed in these appeals collaterally. And from a practical point of view, the presence of 21 members of the Lok Sabha and 10 members of the Rajya Sabha who were in detention could not have made a difference to the passing of the Amendment.
  •  It was held that there was no merit on the contention that the doctrine of separation of power has been abrogated.

Obiter Dicta

  1. The basic Structure concept reaffirmed in this case. The Supreme Court applied the theory of basic structure and struck down Clause (4) of Article 329-A,which was inserted by the 39th Amendment in 1975 on the ground that it was beyond the amending power of the parliament as it destroyed the basic feature of the constitution. The amendment was made to the jurisdiction of all courts including SC, over disputes relating to elections involving the Prime Minister of India.
  2. The clause struck down by the Court on the ground that it violated free and fair elections which were an essential feature that formed the Basic Structure of the Indian Constitution. The exclusion of judicial review in election disputes in this manner resulted in damaging the Basic Structure.
  3. The Supreme Court held clause (4) of the Constitution 39th Amendment Act, 1975 as unconstitutional and void on the ground that it was an outright denial of the Right to Equality enshrined in Article 14, It was held by the Court that these provisions were arbitrary and were calculated to damaged and destroy the Rule of Law.
  4. Justice H.R. Khanna held that democracy is the Basic Structure of the Constitution and it includes free and fair election which cannot be violated.


The Judiciary is considered one of the strongest pillars around which a nation is governed and the powers vested with the courts have always being talked about being the talk of the paparazzi since time immemorial. The phenomenon of glorification of the Judiciary is predominantly because of the fact that that the manner in which the judiciary renders justice is dynamic in nature and takes into consideration all the essentials. However, herein I believe the Judiciary while delivering this judgement did not consider a dynamic approach. The Apex Court herein allowed the executive to take over the system which could be clearly made out from the fact that the then Prime Minister, Smt. Indira Nehru Gandhi declared emergency fearing the fact that she would lose the reins of power. The Prime duty to safeguard the constitution rests on the apex court but the apex court herein was negligent to shift the responsibility saying this to be a matter of the parliament. The Hon’ble Supreme Court should have considered interpreting the amendments in light of the chain of events that had taken place at that point of time. The amendments were exclusively brought in to safeguard the personal interests of Indira Gandhi. The Basic feature of Indian Democracy i.e. free and fair elections were tampered with the highest adjudicating body of the country not upholding the basic values of the Constitution. Thus, had the apex court adopted a cumulative consideration of everything happening at that point of time the black era of Emergency would have been out of picture, thereby upholding the basic features of the Constitution of India.


Free & fair elections are the foundation of a parliamentary democracy. Parliament sought to manipulate this fundamental concept so that they could get the right to validate an illegitimate mandate. We could only picture and dread the creativity that might have taken this regressive change to the Indian Constitution. It has been very courageous for the judiciary to come up with such a brave and important decision alongside the emergency turmoil where it has been proved that the Indian Constitution will not bend its knees against such a malicious bunch of politicians. For such a significant verdict against the mighty Indira Gandhi administration, the Supreme Court has to be honored. The Parliament modified the Constitution by the 42nd Constitutional (Amendment) Act, 1976, also known as Mini-Constitution, in search of the above-mentioned goal.

[1] The Election Laws (Amendment) Act, 1975 Act no. 40 Acts of Parliament, 1975 (India).

[2] The Constitution (Thirty-Ninth Amendment) Act, 1975 Act no. 43 Acts of Parliament, 1975 (India).

[3] The Representation of People Act, 1951 Act no. 43 Acts of Parliament, 1975 (India); The Representation of People (Amendment) Act, 58 of 1974.

[4]INDIA CONST. art. 368 & 136.

[5]Keshavananda Bharti v. State of Kerela A.I.R 1973 S.C 1461 (India).

[6]Shankari Prasad Singh Deo v. Union of India A.I.R. 1951 S.C 458 (India).

[7]INDIA CONST. art. 14, 31B & 33.

[8]INDIA CONST. art. 329(4).

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