Defenders of Constitution & Defenders of the territorial Integrity

When a soldier goes to war, he enters a covenant with the country: I will go and defend every inch of our motherland and if necessary, lay down my life defending every inch of the territory.I do this as consequenceof the oath I have taken to defend the country against external aggression. The President and my Commander-in-Chief defend the Constitution and liberties and the fundamental rights enshrined in the constitution for my family I am leaving behind as a consequence of the oath of office:

The oath of office for the President of India :

I, [Name] , do swear in the name of God/solemnly affirm that I will faithfully execute the office :of President (or discharge the functions of the President) of India and will to the best of my :ability preserve, protect and defend the Constitution and the law and that I will devote myself to :the service and well-being of the people of India.

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Many soldiers laid down their lives defending 1/2 inch of barren land no one wants or needs. His commander-in-chief and the PM and the ministers and all the government functionaries failed to defend the Constitution and the fundamental rights and gave up even with out a fight. Not just gave up, but invented ingenious way to deny it to the family of the soldier who died defending the territory. The soldier fulfiulled the part of the covenant but the his commander-in-Chief failed him in keeping their part of the covenant.

The best of their ability with which they defended the constitution and the abridgement of fundamental rights by the Ninth Schedule was just not god enough and at best was a compromise on the basic structure of the constitution and the fundamental rights.



If the soldiers were to have a Ninth Schedule equivalent for the territory the soldier was defending, every time he could have put the ground that is occuppied by the enemy in a "Ninth Schedule" equivalent and could have saved his life by not fighting for it!
Instead, the soldier fought vigorously and laid down his life. He did not compromise by some clever definiton of equivalent of the 9th Schedule.


It is a fraud on the soldier who fell fighting for every inch of territory he was defending because those who were to defend the fundamental rights and freedom guaranteed in the constitution have yielded with out even a single fight and his family lost the "fundamental rights" for more than 50 years! Law makers made laws (250 of them) against the express intent of the Constitution of India against the spirit of Article 13 of the Constitution of India and those who had taken oath to protect the constitution of India did not do any thing substantial to stop this violation of the Constitution.


Read the provisions of the constitution once again:

13. Laws inconsistent with or in derogation of the fundamental
rights.—(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.



13(1) says that all existing laws that violates fundamental rights are null and void.
13(2) The State shall not make any law that violates the fundamental rights. It does not give any escape route like NINTH SCHEDULE to circumvent 13(2)

And our rulers (not the original constitution framers) made the first amendment to the constitution circumventing 13(2) to deny the fundamental rights to their citizens and the Commander-in-Chiefs did not defend the fundamental rights vigorously enough!



Constitution framers could not have been more clear than the way they defined it in 13(1) and 13(2) in no uncertain terms!

A Defender of Constitution and Fundamental Rights:

Nani Palkhivala

Palkhivala had a deep respect, indeed reverence, for both the constitution, and for the cardinal principles he saw embedded in it: "The Constitution was meant to impart such a momentum to the living spirit of the rule of law that democracy and civil liberty may survive in India beyond our own times and in the days when our place will know us no more."

Nani saw the constitution as a legacy that had to be honored while simultaneously being flexible. Quoting Thomas Jefferson, he said, the constitution must go "hand in hand with the progress of the human mind". He was however a firm opponent of politically motivated constitutional amendments (His favourite quotation was from Joseph Story, who said: "The Constitution has been reared for immortality, if the work of man may justly aspire to such a title. It may, nevertheless, perish in an hour by the folly, or corruption, or negligence of its only keepers, the people.").

The culmination of Palkhivala's success before the Supreme Court came in the famous Kesavananda Bharati vs. The State of Kerala case [AIR 1973 S.C. 1461, (1973) 4 SCC 225]:

Parliament had added the Ninth Schedule to the Constitution through the very first constitutional amendment in 1951 as a means of immunizing certain laws against judicial review. Under the provisions of Article 31, which themselves were amended several times later, laws placed in the Ninth Schedule could not be challenged in a court of law on the ground that they violated the fundamental rights of citizens. This protective umbrella covered more than 250 laws passed by state legislatures with the aim of regulating the size of land holdings and abolishing various tenancy systems. The Ninth Schedule was created with the primary objective of preventing the judiciary - which upheld the citizens' right to property on several occasions - from derailing the Congress party led government's agenda for a social revolution.

In the now famous ruling, on April 24, 1973, a Special Bench comprising 13 Judges of the Supreme Court of India ruled by a majority of 7-6, that Article 368 of the Constitution "does not enable Parliament to alter the basic structure or framework of the Constitution.". Moreover, it reiterated a decision of a Special Bench of 11 Judges, by a majority of 6-5, on February 27, 1967, that "Parliament has no power to amend Part III of the Constitution so as to take away or abridge the fundamental rights" (I.C. Golak Nath vs. The State of Punjab, AIR 1967 S.C. 1643, (1967) 2 SCJ 486).

The court propounded what has come to be known as "the basic structure" doctrine, which rules that any part of the Constitution may be amended by following the procedure prescribed in Article 368, but no part may be so amended as to "alter the basic structure" of the Constitution.

Later, in Minerva Mills Ltd. v. Union of India, [(1980) 3 SCC 625], Palkhivala successfully moved the bench to declare that clause (4) of Article 368 of the Constitution which excludes judicial review of constitutional amendments was unconstitutional.

I salute you, Nani Palkhivala, the Defender of the Constitution!