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The Evolution of the Basic Structure Doctrine and Judicial Review

After dozing off in the last ten years of the 20th century in the archives of India's constitutional history, the discussion of the "basic structure" of the Constitution has resurfaced in public discourse. The National Democratic Alliance government, which was founded by a coalition of 24 national and regional level parties, promised not to alter the fundamental framework of the Constitution when it established the National Commission to Review the Working of the Constitution (the Commission). The Chairman of the Commission, Justice M.N. Venkatachalaiah, has repeatedly stated that the Commission is not equipped to conduct an investigation into the fundamental framework of the Constitution.

Numerous political parties, most notably the Congress (I) and the two oppositional Communist parties, have stated unequivocally that the government used the review process as a ruse to gain support for its plan to enact radical constitutional amendments, which would have destroyed the document's fundamental framework.

Since this concept was hotly disputed in the 1970s and 1980s, even literate groups in urban India are unaware of its implications, therefore much of the public discourse has suffered from partial amnesia. The conversation that follows is an attempt to map out the stormy seas of that era caused by the conflict between the State's judicial and legislative branches.

The Indian Constitution grants the legislatures of the states and Parliament the authority to enact legislation within their respective domains. There is a limit to this power. The judiciary is granted the authority by the Constitution to determine whether any statute is constitutional. The Supreme Court has the authority to deem a statute passed by Parliament or state legislatures to be unconstitutional or exceeding its authority if it breaches any provision of the Constitution.

Despite this check, the founding fathers intended the Constitution to be a flexible charter rather than a strict system of laws. As a result, Parliament was given the authority to change the Constitution. The Constitution's Article 368 conveys the idea that Parliament has unrestricted authority to modify the entire text.

However, since independence, the Supreme Court has served as a check on Parliament's ardent desire for legislation. The supreme court declared that Parliament may not, under the guise of altering the Constitution, distort, harm, or modify the fundamental elements of the document in order to uphold the original objectives that the framers intended to establish. The term 'fundamental structure' is not included in the Constitution itself. This idea was initially acknowledged by the Supreme Court in the landmark Kesavananda Bharati case of 1973. Since then, the Supreme Court has interpreted the Constitution and decided all cases involving changes proposed by Parliament.

The Golaknath Verdict
An eleven-judge Supreme Court court changed its mind in 1967. Chief Justice Subba Rao presented an odd argument in the Golaknath v. State of Punjab case7, stating that Article 368, which contained provisions pertaining to constitutional amendment, only established the process for modifying the document. The majority decision in the case was 6:5. Parliament did not receive the authority to modify the Constitution through Article 368. Other clauses in the Constitution (Articles 245, 246, 248) that granted Parliament the authority to enact laws gave rise to Parliament's amending power (constituent power) (plenary legislative power). As a result, the supreme court decided that Parliament's legislative and modifying powers were virtually equivalent. As a result, any change to the Constitution must be interpreted in accordance with Article 13(2) as law.

The notion of implied restrictions on Parliament's authority to modify the Constitution was cited in the majority ruling. According to this perspective, a citizen's fundamental freedoms are guaranteed by the Constitution. The people had reserved the fundamental rights for themselves when they wrote the Constitution. The majority opinion holds that Article 13 articulated this restriction on Parliament's authority. This very structure of the Constitution and the nature of the freedoms provided under it meant that Parliament could not alter, restrict, or degrade basic freedoms. Even if such a move were to win unanimous consent from both chambers of Parliament, the justices ruled that the fundamental rights were too sacred and transcendental to be curtailed.

Nationalisation of Banks and Abolition of Privy Purses
The Congress party experienced significant defeats in the parliamentary elections and lost control of numerous states shortly after the Golaknath verdict. Due to political constraints at the time, a private member's bill submitted by Barrister Nath Pai that sought to reinstate Parliament's exclusive authority to change the Constitution was not able to pass. The bill was discussed and debated both on the house floor and in the Select Committee. However, when Parliament adopted rules to ensure equitable distribution of income and production resources and to give the agricultural sector better access to bank financing, the chance to challenge legislative sovereignty arose once more. These laws were made by:
  1. Nationalising banks and
  2. Derecognising erstwhile princes in a bid to take away their Privy purses, which were promised in perpetuity - as a sop to accede to the Union - at the time of India's independence.

Despite Parliament's justification that it was carrying out the Directive Principles of State Policy, the Supreme Court invalidated both of its actions. It was evident by now that the Supreme Court and Parliament couldn't agree on how important the fundamental rights were in comparison to the Directive Principles of State Policy. The conflict, on the one hand, concerned Parliament's primacy over the judiciary's authority to interpret and enforce the Constitution.

Another point of controversy concerned the protection of property as a fundamental right, which was allegedly being carried out by the Congress administration for the benefit of the vast poor masses, not as much as by an affluent class.

Despite Parliament's justification that it was carrying out the Directive Principles of State Policy, the Supreme Court invalidated both of its actions. It was evident by now that the Supreme Court and Parliament couldn't agree on how important the fundamental rights were in comparison to the Directive Principles of State Policy. The conflict, on the one hand, concerned Parliament's primacy over the judiciary's authority to interpret and enforce the Constitution.

Another point of controversy concerned the protection of property as a fundamental right, which was allegedly being carried out by the Congress administration for the benefit of the vast poor masses, not as much as by an affluent class.

Emergence of the Basic Structure Concept- the Kesavanada milestone
The constitutionality of these amendments was inevitably contested before the entire Supreme Court bench (thirteen judges). Eleven distinct judgments contain their verdict. The summary statement that nine judges signed enumerates the key decisions they made in this case. Granville Austin observes that there are a number of differences between the judges' judgments as stated in their individual judgements and the points included in the summary that they signed. However, the majority decision acknowledged the revolutionary idea of the Constitution's "basic structure."

The Twenty-fourth Amendment was affirmed by all judges, who stated that Parliament possessed the authority to modify any or all of the Constitution's provisions.

Basic Structure concept reaffirmed- the Indira Gandhi Election case
The Supreme Court was given the chance to comment on the fundamental framework of the Constitution once more in 1975. In 1975, the Allahabad High Court upheld a challenge to Prime Minister Indira Gandhi's election victory on the grounds of electoral malpractice. Smt. Indira Gandhi was able to serve as prime minister while the case was for appeal, thanks to a stay that was granted by vacation judge Justice Krishna Iyer. However, she was not authorized to receive a salary or cast a vote in Parliament until the matter was resolved. Concurrently, the Thirty-ninth Amendment to the Constitution was passed by Parliament, eliminating the Supreme Court's jurisdiction over cases pertaining to elections for the positions of Speaker of the Lok Sabha, President, Vice President, and Prime Minister.

In order to protect the Prime Minister from humiliation in the event that the highest court rendered a decision that was not in his favor, amendments were also made to the Representation of Peoples Acts of 1951 and 1974, which were then added to the Ninth Schedule together with the Election Laws Amendment Act, 1975. The haste with which the Thirty-ninth Amendment was passed demonstrated the government's mala fide intentions. On August 7, 1975, the measure was introduced, and the same day, the Lok Sabha passed it. The following day, the Rajya Sabha, also known as the House of Elders, passed it, and two days later, the President gave his approval. In extra Saturday sessions, the state legislatures ratified the amendment. August 10 was the gazetted date.

The Kesavananda Review Bench
Three days after the Election case ruling, C.J. called a thirteen-judge bench to reconsider the Kesavanada ruling under the guise of considering other land-ceiling legislation petitions that had been pending in higher courts. The petitions argued that the fundamental principles of the Constitution were broken by the implementation of land ceiling regulations. The Review Bench was essentially tasked with determining whether the basic structure concept limited Parliament's ability to modify the Constitution. There was also an opportunity to review the ruling in the Bank Nationalization case.

In the meantime, Prime Minister Indira Gandhi rejected the basic structure doctrine during a speech in parliament. Remember that there was never a particular petition filed before the highest court asking for a review of the Kesavananda verdict´┐Ża point that some members of the bench expressed great displeasure over. Speaking on behalf of a coal mining firm, N.N. Palkhivala persuasively opposed the proposal to reexamine the Kesavananda ruling. Two days of proceedings later, Ray, C.J. dissolved the bench. Many have speculated that the government was indirectly involved in this incident in an effort to overturn the unfavorable legal precedent made by the Kesavananda ruling. Nevertheless, there were no organized attempts to follow up on the case.

The country's focus was diverted from this issue when a National Emergency was declared in June 1975, and as a result, certain fundamental freedoms were suspended, notably the ability to petition courts to challenge preventative imprisonment.

Basic structure doctrine reaffirmed- the Minerva Mills and Waman Rao cases

The proprietors of Minerva Mills (Bangalore), an ailing industrial company that the government nationalized in 1974, contested the Forty-second Amendment in the Supreme Court less than two years after Parliament's amending powers were restored to nearly unlimited terms.

Renowned constitutional attorney and petitioners' counsel, Mr. N.A. Palkhivala, declined to contest the government's conduct on the grounds that it violated the fundamental right to property. Rather, he presented the issue in terms of Parliament's authority to make constitutional amendments.

Mr. Palkhivala said that the amendment's Section 55 had given Parliament unrestricted amending authority. The Kesavananda Bharati and Indira Gandhi Election Cases rulings by the Supreme Court recognized the theory of basic structure, which was broken by the attempt to shield constitutional revisions from judicial review. He further argued that the modified Article 31C infringed citizens' fundamental rights and the Preamble to the Constitution, making it unconstitutional. It also eliminated the judicial review's authority.

Both arguments were supported by Chief Justice Y.V. Chandrachud, who delivered the majority decision (4:1). The majority opinion maintained the authority of judges to evaluate revisions to the constitution. They argued that Parliament has unrestricted authority to modify the Constitution through clauses (4) and (5) of Article 368. They claimed that even in cases where the amendment altered or completely destroyed the fundamental framework of the Constitution, judges would no longer be able to challenge it.

The judges decided that a limited amending power is a fundamental component of the Constitution, agreeing with Chandrachud, C.J.

No authority, no matter how exalted, may claim to be the only arbiter of its power and conduct under the Constitution, according to Bhagwati, J., the dissenting judge.

The majority ruled that the Article 31C modification was invalid because it upset the fundamental right-directive principle balance, which is a vital aspect of the Constitution. Since Parliament has not removed or revoked the change to Article 31C, it is still a dead letter. However, cases falling under it are decided in the same manner as they were before the 42nd Amendment.

The Supreme Court ruled in a different case involving a comparable disagreement over agricultural land that any constitutional changes made after the Kesavananda Bharati ruling were subject to judicial review. Following the Kesavananda Bharati ruling, all laws included in the Ninth Schedule became subject to judicial review. They may be contested on the grounds that they violate the fundamental principles of the Constitution or go beyond the authority granted to Parliament. Essentially, the Supreme Court achieved a balance between Parliament's ability to modify the Constitution and its own jurisdiction to interpret it.

Written By: Akanksha

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