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What and Why Law: It is very difficult
to state a single and accurate definition of the term ?law? as it is a general
term and has different connotations for different people. On the one hand a
common man may think of law as a set of rules he has to obey on the other hand
for a judge, it is nothing but a set of guiding principles to be applied in
deciding the cases. Law is everywhere, if you examine the human being life, there
is ? Law Of nature?. One day everyone has to die and no one is immortal on this
earth. God treats everyone equally and all the creations of god are regulated by
uniform law. Same as law is necessary for the protection, peace, development and
prosperity of any nation. Without law there can be no order and without order
there can be no peace and progress. Without law society will be the part of
jungle. Everyone will be wild, violent, and greedy and mighty has right will
prevail. That?s why law is mandatory for preventing injustice. According to
Blackstone, law in its most general and comprehensive sense signifies a rule of
action and is applied indiscriminately to all kinds of action whether animate or
inanimate, rational or irrational.[1] and in the words of Austin A law is a rule
of conduct imposed and enforced by the sovereign. Thus these rules of conduct
are essential for peaceful & prosperous living of the people in the country.
Necessity of Amending Provisions in the
Constitution
Provisions for amendment of the constitution is made with a view to overcome the
difficulties which may encounter in future in the working of the constitution.
The time is not static; it goes on changing .The social, economic and political
conditions of the people go on changing so the constitutional law of the country
must also change in order toward it to the changing needs, changing life of the
people. If no provisions were made for amendment of the constitution, the people
would have recourse to extra constitutional method like revolution to change the
constitution.[2]. The framers of the Indian constitution were
anxious to have a document which could grow with a growing nation, adapt
itself to the changing circumstances of a growing people. A R Antulay: ?The Constitution has to be changed at every interval of
time. Nobody can say that this is the finality. A constitution which is
static is a constitution which ultimately becomes a big hurdle in the
path of the progress of the nation?.
Restriction on parliament power of Amending Provisions in the
Constitution and Judicial Review
The framers of the Indian constitution were also aware of that fact that
if the constitution was so flexible it would be like playing cards of
the ruling party so they adopted a middle course. It is neither too
rigid to admit necessary amendments, nor flexible for undesirable
changes.
India got independence after a long struggle in which numerous patriots
sacrificed their life.
They knew the real value of the freedom so they framed a constitution in
which every person is equal and there is no discrimination on the basis
of caste, creed, sex and religion. They wanted to build a welfare
nation where the social, economical, political rights of the general
person recognize. The one of the wonderful aspect of our constitution is
Fundamental rights and for the protection of these rights they provided
us an independent judiciary. According to constitution, parliament and
state legislature in India have the power to make the laws within their
respective jurisdiction. This power is not absolute in nature. The
constitution vests in judiciary, the power to adjudicate upon the
constitutional validity of all the laws. If a laws made by parliament or
state legislature violates any provision of the constitution, the
Supreme Court has power to declare such a law invalid or ultra virus. So
the process of judicial scrutiny of legislative acts is called Judicial
Review. Article 368 of the Constitution gives the impression that
Parliament's amending powers are absolute and encompass all parts of the
document. But the Supreme Court has acted as a brake to the legislative
enthusiasm of Parliament ever since independence. With the intention of
preserving the original ideals envisioned by the constitution-makers.
To Abraham Lincoln, democracy meant a Government of the people, by the
people and for the people. So in democratic nation whenever any law
passed by parliament violates any provision of constitution or takes
away any fundamental rights of the person, the Supreme Court has right
and power to strike down that law or act. According to me this
jurisdiction of Supreme Court is essential for protection of basic
features of the constitution.
Theory Of Basic Structure
The question whether fundamental rights can be amended under article
368 came for consideration in the Supreme Court in Shankari Prasad case.[3]
in this case validity of constitution (1st amendment) act, 1951 which
inserted inter alia , articles 31-A and 31-B of the constitution was
challenged. The amendment was challenged on the ground that it abridges
the rights conferred by part III and hence was void. The Supreme Court
however rejected the above argument and held that power to amend
including the fundamental rights is contained in Article 368and the same
view was taken by court in Sajjan Singh case.[4]
In Golak Nath case,[5]the validity of 17th
Amendment which inserted certain acts in Ninth Schedule was again
challenged. The Supreme Court ruled the parliament had no power to amend
Part III of the constitution and overruled its earlier decision in
Shankari Prasad and Sajjan Singh case. In order to remove difficulties
created by the decision of SC in Golak Nath case parliament enacted the
24th Amendment act. The Supreme Court recognized BASIC STRUCTURE concept
for the first time in the historic Kesavananda Bharati[6] case in 1973.
Ever since the Supreme Court has been the interpreter of the
Constitution and the arbiter of all amendments made by parliament. In
this case validity of the 25th Amendment act was challenged
along with the Twenty-fourth and Twenty-ninth Amendments. The court by
majority overruled the Golak Nath case which denied parliament the power
to amend fundamental rights of the citizens. The majority held that
article 368 even before the 24th Amendment contained the power as well
as the procedure of amendment. The Supreme Court declared that Article
368 did not enable Parliament to alter the basic structure or framework
of the Constitution and parliament could not use its amending powers
under Article368 to 'damage', 'emasculate', 'destroy', 'abrogate', 'change'
or 'alter' the 'basic structure' or framework of the constitution. This
decision is not just a landmark in the evolution of constitutional law,
but a turning point in constitutional history.
Basic Features of the Constitution according to the Kesavanada verdict
each judge laid out separately,
what he thought were the basic or essential features of the
Constitution.
Sikri, C.J. explained that the concept of basic structure included:
# Supremacy of the Constitution
# Republican and democratic form of government
# Secular character of the Constitution
# Separation of powers between the legislature, executive and the
judiciary
# Federal character of the Constitution
Shelat, J. and Grover, J. added three more basic features to this list:
# The mandate to build a welfare state contained in the Directive
Principles of State Policy
# Unity and integrity of the nation
# Sovereignty of the country.
Unegde, J. and Mukherjea, J. identified a separate and shorter list of
basic features:
# Sovereignty of India
# Democratic character of the polity
# Unity of the country
# Essential features of the individual freedoms secured to the citizens
# Mandate to build a welfare state
Jaganmohan Reddy, J. stated that elements of the basic features were to
be found in the Preamble
Of the Constitution and the provisions into which they translated such
as:
# Sovereign democratic republic
# Justice - social, economic and political
# Liberty of thought, expression, belief, faith and worship
# Equality of status and the opportunity.
He said that the Constitution would not be itself without the
fundamental freedoms and the directive principles. [7]
Former Chief Justice K. Subba Rao in an article on the two judgments
Golaknath and Kesavananda Bharati, expressed the view:
"The existence of a remote judicial control may only act as a brake
against hasty and unreasonable legislative and executive action and as a
form of guarantee to the public against instability. The stability of
the Constitution stabilizes the State."[8]
Basic Structure concept reaffirmed- the Indira Gandhi Election case
In Indira Gandhi v. Raj Narayan[9] the Supreme Court applied the theory
of basic structure and struck down cl.(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.
Basic Features of the Constitution according to the Election case
verdict
Again, each judge expressed views about what amounts to the basic
structure of the Constitution: Justice Y.V. Chandrachud listed four basic features which he considered
unamendable:
# Sovereign democratic republic status
# Equality of status and opportunity of an individual
# Secularism and freedom of conscience and religion
# 'government of laws and not of men' i.e. the rule of law
Justice H.R. Khanna- ?democracy is a basic feature of the Constitution
and includes free and fair elections.?
Basic structure doctrine reaffirmed - the Minerva Mills
In Minerva Mills case[10] the Supreme Court by majority by 4 to 1
majority struck down clauses(4) and (5) of the article 368 inserted by
42nd Amendment, on the ground that these clauses destroyed the essential
feature of the basic structure of the constitution. It was ruled by
court that a limited amending power itself is a basic feature of the
Constitution
In L. Chandra Kumar case [11] a larger Bench of seven Judges
unequivocally declared
"That the power of judicial review over legislative action vested in the
High Courts under Article 226 and in the Supreme Court under Article 32
of the Constitution is an integral and essential feature of the
Constitution, constituting part of its basic structure".
Conclusion
Now we can say, there is no hard and fast rule for basic feature of the
Constitution. Different judge keep different views regarding to theory
of basis structure. But at one point they have similar view that
parliament has no power to destroy, alter, or emasculate the 'basic
structure' or framework of the constitution. ?If the historical
background, the preamble, the entire scheme of the constitution and the
relevant provisions thereof including article 368 are kept in mind then
there can be no difficulty, in determining what are the basic elements
of the basic structure of the constitution. These words apply with
greater force to doctrine of the basic structure, because, the federal
and democratic structure of the constitution, the separation of powers,
the secular character of our state are very much more definite than
either negligence or natural justice.?[12].So for the protection of
welfare state, fundamental rights, Unity and integrity of the nation,
Sovereign democratic republic and for Liberty of thought, expression,
belief, faith and worship, interpretation of judiciary is mandatory. We
can say none is above constitution even parliament and judiciary.
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Bibliography
Books
Basu, D.D., Commentary on the Constitution of India, 1970
Seervai, H.M., Constitutional Law of India, 1983
Chagla, M.C., Role of Judiciary in Parliamentary Democracy, 1974
Pandey, J.N., Constitutional law of India
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[1] Salmond 'Jurisprudence' p.20 (11th edition)
[2] Kesavananda Bharati v. State of Kerala, AIR 1973SC 1461
[3] Sankari Prasad Singh v. Union of India, AIR 1951SC 458
[4] Sajjan Singh v. State of Rajasthan, (1965) 1 SCR 933: AIR 1965 SC 845
[5] Golak Nath v.State of Punjab, (1967) 2 SCR 762: AIR 1967 SC
[6] Kesavananda Bharati v. State of Kerala, AIR 1973SC 1461
[7] His Holiness Kesavananda Bharati Sripadagalavaru v State of Kerala and
Another 1973 (4) SCC pp. 637-38.
[8] (1973) 2 SCC (Journal), p. 1 at p. 27
[9] Indira Nehru Gandhi v. Raj Narain, AIR 1975 SCC 2299
[10] Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625.
[11] L. Chandra Kumar v. Union of India (1997) 3 SCC 261(at SCC p. 301, Para 78)
[12] H.M, Seervai: Constitutional law of India VOI.II, P. 1568 (2ND ED.)
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The author can be reached at :
himanshutyagi@legalserviceindia.com
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