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Doctrine of Basic Structure - Constitutional Law

Written by: Himanshu Tyagi - First year LLB. Student - ILS Law College, Pune
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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".

    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.

    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

    [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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