In this article we will be discussing all about the basic structure doctrine, how it came into the picture and what is it all about and what are the basic structure of the Indian Constitution.
The discussion over the constitution’s ‘basic structure,’ sitting somnolently in the records of the political past of India during the last decade of the 20th century, has reappeared in the public domain. Through the creation of the National Commission for Evaluating the Functioning of the Constitution (the Committee), the Government of the National Democratic Alliance (formed by a coalition of 24 national and regional parties) announced that the basic framework of the Constitution should not be altered. The Chairman of the Commission, Justice M.N. Venkatachalaiah, has stressed on many occasions that an examination into the fundamental framework of the Constitution is outside the Commission’s reach Play.
Many political forces, especially Congress (I) and the two rival Communist parties, made it clear that the examination exercise was the government’s attempt to gain approval for its plan to implement sweeping constitutional amendments, thus undermining the document ‘s fundamental framework.
Most of the national discourse has been a target of selective amnesia as even metropolitan India’s literate communities remain unsure about the implications of this definition, which was fiercely discussed throughout the 1970s and 1980s. The subsequent review is an effort to map the waters of the time made tumultuous by the battle of control between the state’s legislative and judicial weapons.
The Constitution states that Parliament and the Indian state assemblies have the right to create legislation under their respective jurisdictions. By fact, the control is not total. Within the courts, the Charter has the authority to determine the substantive legitimacy of all statutes. The Supreme Court has the right to find such a statute null or ultra vires whether a law enacted by Parliament or the state legislatures contradicts some clause of the Constitution.
Notwithstanding this test, the founding fathers intended the Constitution to be more an adaptable text than a fixed governing structure. Therefore Parliament was empowered to change the Constitution. Article 368 The idea provided by the Constitution is that the amending powers of Parliament are total and include all sections of the text. But since democracy, the Supreme Court has been serving as a restraint upon Parliament’s constitutional zeal. With the purpose of protecting the constitution-makers’ initial principles, the supreme court ruled that under the excuse of amending it, Parliament should not misrepresent, impair or change the fundamental features of the Constitution. The actual term ‘simple framework’ cannot be included in the Constitution itself. This idea was first accepted by the Supreme Court in the landmark case Kesavananda Bharati in 1973. Since then the Supreme Court has become the translator of the Constitution and the arbiter of all Parliament’s changes.
The Pre Kesavananda Position
The power of the Parliament to change the Constitution, and in particular the chapter on citizens’ constitutional rights, was questioned as early as 1951. Many reforms were passed in the States following independence with the intention of changing land ownership and rental systems. It corresponded to the
Ruling the electoral pledge of the Congress Party to enforce the democratic aims of the Constitution [contained in Section 39(b) and (c) of the Directive on State Principles] demanding the equal allocation of output capital to all people and the avoidance of the accumulation of property in the hands of a few. Landowners — who are negatively impacted by these rules — appealed to arbitration. The courts also struck down the laws on land reforms, claiming they also transgressed the legally granted basic right to lands. By the First and Fourth Amendments (1951 and 1952 respectively), piqued by adverse rulings, Parliament inserted certain statutes in the Ninth Schedule of the Constitution, essentially eliminating them from the reach of judicial scrutiny.
[Using the very first provision in 1951, Parliament introduced the Ninth Schedule to the Constitution as a way of immunizing such laws from judicial scrutiny. Within the terms of Article 31, which were themselves revised many years later, legislation imposed in the Ninth Schedule — related to the purchase of private property and reimbursement owed for such purchase — cannot be questioned in a court of law on the basis that they breached citizens’ constitutional rights. This legislative blanket encompasses more than 250 legislation enacted by state governments aimed at restricting the scale of land ownership and the elimination of separate lease schemes.
The Ninth Schedule was created with the primary objective of preventing the judiciary-which upheld the right of citizens to property on several occasions-from derailing the government’s agenda for a social one led by Congress party Revolution. Property owners again opposed constitutional changes that put the laws on land reforms in the Ninth Schedule before the Supreme Court , arguing that they ignored Clause 13(2) of the Constitution. Article 13(2) provides for the defense of citizens’ fundamental rights.
Parliament and state governments are specifically forbidden from creating legislation which can abolish or abridge the fundamental rights which are granted to the person. We claimed that every constitutional reform has the value of a statute as provided for in Article 13(2). The Supreme Court dismissed all claims in 1952 (Sankari Prasad Singh Deo v. Union of India) and 1955 (Sajjan Singh v. Rajasthan) and affirmed Parliament’s authority to change every aspect of the Constitution including that which affects the constitutional rights of people. Significantly however, in the case of Sajjan Singh v. Rajasthan, two dissenting judges posed questions as to whether citizens’ constitutional freedoms might become a majority party issue in Parliament.
The Golaknath Verdict
In 1967 a Supreme Court panel of eleven judges overturned its position. Delivering its 6:5 majority judgment in the case Golaknath v. State of Punjab7, Chief Justice Subba Rao placed forward the strange stance that Article 368, which included clauses pertaining to constitutional amendment, The amending procedure was merely laid down. Article 368 did not grant the right to change the Constitution upon Parliament. Parliament’s amending power (constituent power) emerged out of certain provisions of the Constitution (Articles 245, 246, 248) which gave it the power to make Legislation (plenary legislative power) shall be considered law as provided for in Article 13(2).
The majority decision cited the notion of implicit limits on the authority of Parliament to change the Constitution. That view held that the Constitution gives the citizen ‘s fundamental freedoms a place of permanence. The voters had secured the basic freedoms for themselves in granting the Constitution. According to the majority opinion, Article 13 articulated the restriction on Parliament ‘s forces. Regardless of this very scheme of the Constitution and the essence of the liberty given under it, Parliament does not alter, limit or impede basic freedoms. The judges claimed the human freedoms were too sacrosanct and so sacred.
It is transcendental in nature that they should not be limited even though this change had to be accepted overwhelmingly by both houses of Parliament. We noted that Parliament may convene a Constituent Assembly with a view to amending the constitutional rights if necessary.
Under other terms, the supreme court found that certain of the constitution ‘s characteristics lie at its heart and had to modify them even further than the normal procedures.
The term ‘simple framework’ was first coined by M.K. Nambiar and other counsel in the Golaknath trial, while appearing for the petitioners, but it was only in 1973 that the term came to light in the decision of the supreme court. The Congress party sustained severe defeats in the general polls and lost control in most states within a few weeks of the Golaknath verdict. While a private member’s bill-tabled by Barrister Nath Pai-aiming to preserve the independence of Parliament’s right to change the Constitution was presented and discussed both at the house floor and in the Select Committee, it could not be enacted because of the political compulsions of the period. But the opportunity to test parliamentary supremacy once again arose when Parliament introduced legislation to give the agricultural sector greater access to bank credit and ensure a fair distribution of wealth and resources manufacture.
A) nationalization of corporations, and
B) derecognizing former princes in an attempt to withdraw their private bags expected in
Perpetuity-as a sop for accession to the Union-at the time of the independence of India.
Parliament claimed that it was applying the State Policy Directive but the Supreme Court reversed all changes. Through now, it became evident that the Supreme Court and Parliament were at loggerheads over the substantive status of the constitutional rights with respect to the State Policy Directive Principles. On one point the fight was for Parliament’s dominance over the courts’ right to read and maintain the Constitution.
In another point the conflict was jealously regarding the sanctity of land as a human right guarded by an wealthy elite far smaller than the vast poor masses for whose gain the Congress government sought to introduce the capitalist growth plan. Less than two weeks after the Supreme Court overthrew the President’s order derecognizing the princes, Prime Minister Indira Gandhi disbanded the Lok Sabha in a swift bid to win the people’s vote and boost her own reputation, and called a snap election.
The Constitution itself was the constitutional issue in India for the first time. Seven of the ten manifestos in the 1971 elections called for revisions to the Constitution to preserve legislative hegemony. A.K. Gopalan of the Communist Party of India (Marxist) went so far as to suggest that the Constitution would be repealed with lock stock and barrel, and supplemented by one that enshrined the people’s true supremacy. By a two-thirds vote the Congress party returned to government.
The public had supported the radical policy of the Congress Party, which talked among other issues regarding bringing structural reforms to the Constitution to preserve the sovereignty of Parliament. Parliament tried to recover lost ground through a series of reforms introduced between July 1971 and June 1972. This retained the full authority to change every portion of the Constitution, even Part III, concerned with human rights.9 Only the President was obliged to give his assent to any bill of legislation approved by both legislative houses. Many curbs on the land in question have been signed into legislation. The right to equality before the law and fair security of the rules (Article 14) and the basic freedoms secured under Article 191 is made subject to Section 39(b) & (c) of the Directive on State Values.
The emergence of the Basic Structure Concept- the Kesavanada milestone
Inevitably, a full court of the Supreme Court (thirteen judges) opposed the procedural legitimacy of such changes. A decisions can be contained in 11 independent judgments.13 Nine judges signed a written document detailing the most relevant conclusions they had made
For the above situation. Granville Austin argues that there are some inconsistencies between the arguments in the document signed by the judges and the views articulated by the judges in their respective judgments.14 However, in the majority decision, the fundamental principle of the ‘simple form’ of the Constitution was accepted. Both the judges affirmed the twenty-fourth amendment’s legality, stating that Parliament has the right to change some or more of the constitutional clauses. Both the signatories to the report believed that the case of Golaknath had been incorrectly resolved, and that Article 368 included both the authority and the process to change the Constitution. They were also adamant that a constitutional change was not the same as a statute as Article 13(2) had known. [The slight disparity that occurs between two styles of roles undertaken by the Indian Parliament should be noted:
A) it may legislate for the nation by using its constitutional authority15 and
B) that the Constitution can be changed by using its constitutional control.
Constituent power predominates over ordinary legislative power. Unlike the British Parliament, which is a legislative entity (without a formal constitution), the rights and duties of the Indian parliament and state legislatures are subject to the statutory limits. The Constitution does not include all the laws which rule the country. Parliament and the state governments, under their respective territories, render legislation on different topics from time to time. The Constitution provides the general framework for making those laws.
Parliament alone has the right under Article 368 to make adjustments to the structure. Unlike ordinary rules, changes to legislative requirements allow Parliament to pass with a qualified majority. The example is helpful to illustrate the contrast between the legislative authority of the Parliament and the forces to enforce legislation. Under Article 21 of the Constitution, no individual in the country can be deprived of his or her life or personal liberty except in compliance with the procedure laid down by statute. The Constitution does not stipulate the specifics of the process, since the states and the executive are liable for that. Parliament and the state legislators create the legislation appropriate to define offensive acts for which a individual can be incarcerated or sentenced to death.
The government carries out the process for applying such regulations and the complainant is prosecuted in a court of law Changes to those laws may be incorporated in the relevant state legislature by a simple majority vote. The Constitution does not need to be amended to incorporate changes to these laws. However, if there is a requirement to turn Article 21 into the universal right to life by abolishing the death penalty, Parliament will have to change the Constitution accordingly power of Constituent.
Most notably, seven of the thirteen judges in the Kesavananda Bharati trial, including Chief Justice Sikri who signed the summary declaration, stated that fundamental limits were placed on the constituent authority of Parliament. Parliament does not use its amending powers provided for in Article 368 to ‘harm,’ ’emasculate,’ ‘destruct,’ ‘abrogate,’ ‘adjust’ or ‘alter’ the ‘primary structure’ or the Constitutional system.
Basic Features of the Constitution according to the Kesavanada verdict
Each judge set out individually what he felt was the constitution ‘s basic or necessary features. In the general perception there was no unanimity of thought either. Sikri, J.C. Explained that the fundamental structure definition comprised:
• Constituent dominance
• Republican and republican rule
• Secular Political Form
• Division of powers between legislators, managers and judiciaries
• Federal Judicial Form
Shelat and J. Grover, J. Added to that list two more basic features:
• Mandate to create a welfare society laid out in the State Policy Directive
• Collective solidarity and dignity
Hegde and J. Mukherjea, and J. Separate and shorter list of core features identified:
• India’s Sovereignty
• Liberal Polity Personality
• Regional solidarity
• Vital features of human liberty granted to residents
• Act to Create a Welfare State
Reddy Jaganmohan, P. This claimed that elements of the basic characteristics were to be identified in the Preamble to the Constitution and in the clauses to which they were interpreted, such as:• Parliamentary democracy
• Three Public Departments
He said without the basic rights and the values of the Law, the Constitution will not be itself.
Just six judges on the court (thus a minority view) accepted that the people’ constitutional freedoms applied to the legal system, that that could not be changed by Parliament.
The minority view
The dissenting opinion of Justice A.N. Ray (whose elevation to the rank of Chief Justice above and above the heads of three senior judges, shortly after the Kesavananda judgment was delivered, was generally viewed as politically motivated), Justice M.H. Beg, Justice K.K. Mathew and Justice S.N. Dwivedi also concluded that Golaknath had been unfairly determined. They maintained that all three amendments contested before the court were correct. Jones, J. A. This claimed that all aspects of the Constitution were necessary and that there should be little difference between its important and non-essential sections.
We also accepted that by using its authority under Article 368, Parliament might bring substantive improvements to the Constitution.
In summary, the majority decision in Kesavananda Bharati recognized Parliament’s right to change any or more of the constitutional provisions given that such an act would not undermine its fundamental foundation. Yet there was no universal consensus about what appoints to the basic framework. While the Supreme Court quite nearly returned to Sankari Prasad ‘s place (1952) by restoring the hegemony of the amending power of Parliament, in fact it consolidated the right of judicial review even further.
Basic Structure concept reaffirmed- the Indira Gandhi Election case
In 1975, the Supreme Court again got a opportunity to rule on the constitution ‘s fundamental form. In 1975 the Allahabad High Court dismissed a appeal to the election win of Prime Minister Indira Gandhi on the basis of democratic malpractice. The holiday judge- Justice Krishna Iyer, pending appeal, granted a stay that allowed Smt to. Indira Gandhi is to serve as prime minister on condition that she will not have to earn a paycheck and talk or vote in Parliament before the case has been resolved. In the meanwhile Congress adopted the thirty-ninth legislative amendment
This eliminated the Supreme Court ‘s power to adjudicate cases surrounding the appointment of the President , Vice-President, Prime Minister and Lok Sabha Speaker. Alternatively, a tribunal appointed by Parliament should be entrusted with the authority to settle these election conflicts. Chapter 4 of Amendment Bill essentially blocked any effort to contest an incumbent’s victory, holding each of the above-mentioned positions in a court of law. Clearly this was a pre-emptive move meant to support Smt. Indira Gandhi, whose election was the subject of ongoing controversy.
Amendments were also rendered to the 1951 and 1974 Representation of Peoples Acts and included in the Ninth Schedule along with the 1975 Election Laws Amendment Act to shield the Prime Minister from humiliation if an adverse decision was issued by the supreme court. The government’s mala fide motive was illustrated by the urgency with which the Thirty-ninth amendment was enacted. The bill was presented on 7 August 1975 and approved the next day by Lok Sabha. The next day it was approved by the Rajya Sabha (Upper House or House of Elders), and two days later the President gave his assent. The law was adopted on a separate Saturday by the State legislators
Meetings. On 10 August it was gazetted. As the Supreme Court revived the lawsuit the following day, the Attorney General requested the Court to withdraw the complaint in view of the current litigation Corrigendum. Counsel for Raj Narain who was the political foe opposing the election of Mrs. Gandhi claimed that the amendment was against the constitution ‘s fundamental framework as it impaired the operation of free and equal elections and the right of judicial review. Counsel also claimed that it was not Parliament Competent to use the legislative authority to uphold an election which the High Court ruled invalid.
The Thirty-ninth amendment was upheld by four of the five bench judges, but only after striking down the section which sought to limit the judiciary’s power to adjudicate in the current election dispute. Beg, J. One person. That amendment was upheld in its entirety.
Basic Features of the Constitution according to the Election case verdict
— judge once again articulated opinions about what corresponds to the constitution ‘s fundamental structure:
Democracy is a basic function of the Constitution and is, according to Justice H.R. Khanna
Elections are free and equal.
Justice K.K. Thomas held that an essential feature was the power of judicial review.
Justice Y.V. Chandrachud identified four fundamental features that he found unamended:
• Status as a Federal Democratic Republic
• Justice of rank and equal ability
• Secularism and the expression of faith and conscience
• ‘Rule of Law and not of Man’ i.e. the rule of law
According to Chief Justice A.N. Ray, Parliament’s legislative authority was beyond the Constitution itself, and therefore not constrained by the concept of division of powers. Consequently, Parliament should exempt laws related to election controversies from judicial scrutiny. Strangely enough, he believed that democracy it was an integral function but it was not free and equal elections. X, J.C. It held that ordinary legislation did not fall within the scope of the fundamental features.
Justice K.K. Mathew went along with Ray, C.J. The ordinary law did not come under the remit of the general framework. Yet he maintained that equality was a core function, and that the judiciary would rule on election conflicts on the basis of law and evidence. Justice M.H. Beg disapproved of Ray, C.J. Under the basis that it would be inappropriate to create a Constitution if the legislative authority of Parliament is assumed to be beyond it.20 Judicial functions is vested in the Supreme Court and should not be exerted by the High Courts and the assembly. He argued that in the case of Kesavananda Bharati, superiority of the Constitution and division of powers were basic aspects as known by most.
Given the dispute between the judges on what formed the constitutional framework of the Constitution, the majority opinion supported the notion that the Constitution had a central substance that was sacrosanct.
The Kesavananda Review Bench
After three days after the Electoral court ruling Ray, C.J. The thirteen judge bench had assembled to revisit the Kesavanada decision on the basis of hearing a host of pleas related to land ceiling laws that had languished in high courts. The petitions argued that land usage was the ceiling legislation infringed the underlying legislative system. The Review bench was in turn to determine whether or not the basic structure law limited the power of Parliament to amend the Constitution. The judgment was still up for discussion in the event of the nationalization of the Bank.
While, Prime Minister Indira Gandhi declined to acknowledge the ideology of the fundamental concept in a speech in Parliament.
It should be recalled that there was no unique petition requesting a review of the Kesavananda judgment filed before the supreme court- a reality noted by many bench members with much chagrin. N.N.N. Palkhivala, who appeared for a coal mining firm, protested eloquently against the change
Reference Decision Kesavananda. In the end Line, C.J. After two days of trials the court split. Many people have assumed the overt intervention of the government in this case, trying to reverse an adverse judicial precedent set by the Kesavananda ruling. However no organized
Efforts to prosecute the argument have been made.
The June 1975 declaration of a National Emergency and the consequent revocation of fundamental freedoms, including the right to transfer courts toward pre-trial detention, distracted the country ‘s focus from this issue.
Sardar Swaran Singh Committee and the Forty-second amendment
Soon after the National Emergency Declaration, the Congress Party organized a committee under Sardar Swaran Singh’s chairmanship to research the question of amending the Constitution in the light of past experiences. The legislature, based on its findings, introduced many statutory amendments, including the Preamble, into the forty-second amendment (passed in 1976 and put into force on January 3, 1977). The amendment contains among other things: A) gives priority to the Guideline Values of Public policy over human rights
Included in Article 14 (right to equality before the law and fair security of the law), Article 19 (various rights, such as freedom of speech and expression, right to lawfully meet, right to join organizations and unions, right to travel and live openly in every part of the world and right to practice every occupation or profession) and Article 21 (right to life and personal independence). Article 31C has been revised to prohibit any opposition to laws
Pursuant to some of the State Policy Directives;
b) maintaining that changes to the Constitution introduced in the past or expected to be enacted in the future will not, on any basis, be brought into doubt in any court;
(C) delete from the field of judicial scrutiny and all changes to human rights
d) the abolition of all restrictions on the authority of Parliament to change the Constitution under Article 368.
Basic structure doctrine reaffirmed- the Minerva Mills and Waman Rao cases
Within less than two years of restoring the amending powers of the Parliament to near absolute terms, Minerva ‘s owners challenged the Forty-second amendment before the Supreme Court Mills (Bangalore), a sick industrial firm nationalized by the government in 1974.23 Mr. N.A. Palkhivala, a renowned constitutional lawyer and petitioner’s counsel, chose not to challenge the government ‘s action merely as a violation of fundamental property rights. Then, he presented the question with regard to the authority of Parliament to change the Constitution.
Mr Palkhivala claimed that Paragraph 55 of Amendment 24 put unrestricted amending authority in Parliament’s hands. Attempt to block constitutional amendments from judicial review
Violated the fundamental institutional theory accepted in the Kesavananda Bharati and Indira Gandhi Election Cases by the Supreme Court. He also argued that the modified Article 31C was legally terrible as it breached the legislative preamble and citizens’ basic rights. It also had the power of judicial review taken away.
Chief Justice Y.V. Chandrachud, delivering the majority judgement (4:1), upheld both contentions.
The majority view upheld the power of judicial review of constitutional amendments. They maintained
that clauses (4) and (5) of Article 368 conferred unlimited power on Parliament to amend the
Constitution. They said that this deprived courts of the ability to question the amendment even if it
damaged or destroyed the Constitution’s basic structure. The judges who gathered to Chandrachud, C.J. Has stated that a restricted amending authority is itself a basic function of the Constitution.
Then Bhagwati, J. The dissenting judge also agreed with the opinion that no government, no matter how high, could pretend to be the supreme judge of its Constitutional strength and acts.
The majority holds the amendment to Article 31C unconstitutional since it violated the peace and equilibrium between human rights and the values of the law, which is an important or basic function of the Constitution.26 The amendment to Article 31C remains a dead letter because it has not been revoked or removed by Parliament. In another case surrounding a related controversy involving agricultural land, the supreme court held that all constitutional reforms introduced after the date of the Kesavananda Bharati judgment were subject to judicial review.
All laws imposed in the Ninth Schedule after the date of the Kesavananda Bharati judgment were also subject to judicial review. They could be questioned on the basis that they are outside the constitutional authority of Parliament, or whether they have violated the constitution ‘s fundamental framework. The Supreme Court, in effect, found a compromise between its right to read the constitution and the ability of the parliament to change it. It may be seen that the Supreme Court has not pronounced the last word on the question of the constitution ‘s fundamental framework-a situation which is unlikely to alter in the immediate future.
Summary
It may be seen that the Supreme Court has not pronounced the last word on the question of the constitution ‘s fundamental framework-a situation which is unlikely to alter in the immediate future. Although the principle that there is such a thing as a fundamental framework to the Constitution is well-established the contents cannot be completely decided in some finality measure until a Supreme Court decision sets it out. There is one fact that resulted from this tussle between Parliament and the judiciary is where all legislation and legislative changes are still open to judicial scrutiny, and the Supreme Court is apt to enact regulations where violate the fundamental framework. The authority of Parliament to change the Constitution is in fact not full, and the Supreme Court is the sole arbiter and reader of all constitutional changes.
For more Blogs – CLICK HERE.
Lawyers Gyan is now on Telegram (t.me/LAWYERSGYAN). Follow us for regular legal updates. Follow us on Instagram, LinkedIn, Facebook & Twitter or join our WhatsApp group.
Disclaimer:
Lawyers Gyan has no control over above-listed items as it is directly from the customer or taken from other sources. Despite our best efforts, some of the content may contain errors. You can trust us, but please conduct your own checks too. In case of any discrepancy please write to lawyersgyaan@gmail.com.
