The debate on the 'basic structure' of the Constitution, lying slumberous within
the archives of India's constitutional history throughout the last decade of the
twentieth century, has reappeared within the public realm.While fitting the
National Commission to Review the operating of the Constitution (the
Commission), the National Democratic Alliance government (formed by a coalition
of twenty four national and regional level parties) declared that the
fundamental structure of the Constitution wouldn't be tampered with
Venkatachalaiah, Chairman of the Commission, has stressed on many occasions that
associate degree inquiry into the fundamental structure of the Constitution lay
on the far side of the scope of the Commission's work.
Several political parties:
Notably the Congress (I) and therefore the 2
Communist parties that are within the opposition -- have created it clear that
the review exercise was the government's ploy to hunt legitimacy for its style
to adopt radical constitutional reforms, destroying the fundamental structure of
Much of the general public dialogue has been a victim of partial cognitive state
as even literate circles of urban Bharat are unsure of the ramifications of this
idea, which was heatedly debated throughout the 1970s and 1980s. The subsequent
discussion is an endeavour to chart the waters of that amount rendered turbulent
by the ability struggle between the legislative and therefore the judicial arms
of the State.
According to the Constitution, Parliament and therefore the state legislatures
in Bharat have the ability to create laws at intervals in their individual
jurisdictions. This power isn't absolute in nature. The Constitution vests
within the judiciary, the ability to adjudicate upon the constitutional validity
of all laws. If a law created by Parliament or the state legislatures violates
any provision of the Constitution, the Supreme Court has the ability to declare
such a law invalid or ultra vires. This check still, the creation fathers needed
the Constitution to be an associate degree variable document instead of a rigid
framework for governance.
Thus Parliament was endowed the ability to amend the
Constitution. Article 368 of the Constitution offers the impression that
Parliament's amending powers are absolute and comprehend all components of the
document. But since independence, the Supreme Court has served as a check on
Parliament's appetite for legislation. With the intention of protecting the
initial ideals visualised by the constitution-makers, the apex court pronounced
that Parliament couldn't distort, injure or alter the basic structure of the
Constitution underneath the pretext of amending it.
The phrase 'basic structure'
itself can not be found within the Constitution. The Supreme Court recognised
this idea for the primary time within the historic Kesavananda Bharati case in
1973. Ever since the Supreme Court has been the interpreter of the Constitution
and therefore the arbiter of all amendments created by Parliament.
The Pre-Kesavananda Position
Parliament's authority to amend the Constitution, significantly the chapter on
the basic rights of voters, was challenged as early as in 1951. Once
independence, many laws were enacted within the states with the aim of reforming
land possession and residency structures. This was to keep with the ruling
Congress party's electoral promise of implementing the socialistic goals of the
Constitution [contained in Article 39 (b) and (c) of the Directive Principles of
State Policy] that needed just distribution of resources of production among all
voters and bar of concentration of wealth within the hands of some.
homeowners -- adversely littered with these laws -- petitioned the courts. The
courts affected down the land reforms laws voice communication that they
transgressed the basic right to property secure by the Constitution. Piqued by
the unfavourable judgements, Parliament placed these laws within the Ninth
Schedule of the Constitution through the 1st and 4th amendments (1951 and 1952
respectively), thereby effectively removing them from the scope of review.
[Parliament added the Ninth Schedule to the Constitution through the 1st
Amendment in 1951 as a method of immunizing bound laws against review. Under the
provisions of Article 31 ,which themselves were amended many times later, laws
placed within the Ninth Schedule -- relating acquisition of personal property
and compensation due for such acquisition -- can not be challenged in a court of
law on the basis that they profaned the basic rights of voters.
covers quite 250 laws passed by state legislatures with the aim of regulating
the dimensions of land holdings and abolishing varied residency systems. The
Ninth Schedule was created with the first objective of preventing the judiciary
- that upheld the citizens' right to property on many occasions - from derailing
the Congress party junction rectifier government's agenda for a social
Property homeowners once more challenged the constitutional amendments that
placed land reforms laws in the Ninth Schedule before the Supreme Court, voice
communication that they profaned Article 13 (2) of the Constitution.
Article 13 (2) provides for the protection of the basic rights of the subject.
Parliament and the state legislatures are clearly prohibited from creating laws
that will remove or lessen the basic rights sure to the subject. They argued
that any modification to the Constitution had the standing of a law as
understood by Article 13 (2). In 1952 (Sankari Prasad Singh Deo v. Union Of
) and Sajjan Singh v. State of Rajasthan
(1955) the Supreme Court rejected
each argument and upheld the ability of Parliament to amend any part of the
Constitution as well as that which affects the basic rights of voters.
considerably although, two dissident judges in the case Sajjan Singh v. State of
(1955) raised doubts whether or not the basic rights of voters may
become a toy of the bulk party in Parliament.
The Golaknath Case
In 1967 the associate degree eleven-judge bench of the Supreme Court reversed
its position. Delivering its 6:5 majority judgement within the Golaknath v.
State of Punjab case
Justice Subba Rao placed forth the curious position that
Article 368, that contained provisions associated with the modification of the
Constitution, merely ordered down the amending procedure. Article 368 failed to
confer upon Parliament the ability to amend the Constitution.
The amending power
(constituent power) of Parliament arose from alternative provisions contained
within the Constitution (Articles 245, 246, 248) that gave it the ability to
create laws (plenary legislative power).
Thus, the apex court commanded that the
amending power and legislative powers of Parliament were basically an
equivalent. Therefore, any modification of the Constitution should be deemed law
as understood in Article 13 (2).
The majority judgement invoked the idea of inexplicit limitations on
Parliament's power to amend the Constitution. This read commands that the
Constitution offers an area of permanency to the basic freedoms of the subject.
In giving the Constitution to themselves, the folks had reserved the basic
rights for themselves.
Article 13, in line with the bulk read, expressed this
limitation on the powers of Parliament. Parliament couldn't modify, prohibit or
impair elementary freedoms because of this theme of the Constitution and
therefore the nature of the freedoms granted thereunder.
The judges declared
that the basic rights were therefore inviolable and transcendental in importance
that they may not be restricted though such a move were to receive unanimous
approval of each house of Parliament. They determined that a Constituent
Assembly might be summoned by Parliament for the aim of amending the basic
rights if necessary.
In alternative words, the apex court commanded that some provisions of the
Constitution lay at its core and needed far more than the standard procedures to
The phrase 'basic structure' was introduced by Manjeri Narayanan Nambiar and
alternative counsels defended the petitioners within the Golaknath case, however
it had been solely in 1973 that the idea surfaced within the text of the Supreme
Nationalization Of Banks And Abolishment Of Privy Purses
Within some weeks of the Golaknath finding the Congress party suffered serious
losses within the parliamentary elections and lost power in many states.
Although a non-public member's bill - tabled by lawyer Nath Pai - seeking to
revive the ascendance of Parliament's power to amend the Constitution Was
introduced and debated each on the ground of the house and within the committee,
it may not be passed because of political compulsions of the time.
chance to check parliamentary ascendence given itself another time once
Parliament introduced laws to produce larger access to bank credit for the
agricultural sector and guarantee equal distribution of resources of production
- Nationalising Banks And
- Derecognising Erstwhile Princes In A Bid To Require Away Their Privy
Purses, That Were Secure In Perpetuity - As A Sop To Accede To The Union -
At The Time Of India's Independence.
Parliament reasoned that it had been implementing the Directive Principles of
State Policy however the Supreme Court affected down each move. By now, it had
been clear that the Supreme Court and Parliament were hostile over the relative
position of the basic rights vis-à-vis the Directive Principles of State
Policy.At one level, the battle was concerning the ascendance of Parliament
vis-à-vis the ability of the courts to interpret and uphold the Constitution.
At associate degree another level the rivalry was over the quality of property
as a elementary right enviously guarded by an affluent category abundant smaller
than that of the big impoverished plenty for whose profit the Congress
government claimed to implement its socialist development programme.
Less than two weeks later, the Supreme Court struck down the President's order
derecognising the princes, in a very fast move to secure the mandate of the
folks and to bolster her own stature Prime Minister Gandhi dissolved the Lok
Sabha and ordered a snap poll.
For the primary time, the Constitution itself became the electoral issue in
India. 8 of the 10 manifestos within the 1971 elections immersed changes within
the Constitution so as to revive the ascendance of Parliament. A.K. Gopalan of
the political party of Bharat (Marxist) visited the extent of claiming that the
Constitution be done away with lock stock and barrel and get replaced with one
that enshrined the important sovereignty of the people.
The Congress party came
back to power with a common fraction majority. The citizens had supported the
Congress party's socialist agenda, that among alternative things spoke of
creating basic changes to the Constitution so as to revive Parliament's ascendence.
Through a spate of amendments created between July 1971 and June 1972 Parliament
sought-after to regain lost ground. It fixed for itself absolutely the power to
amend any part of the Constitution as well as Part III, coping with elementary
rights. Even the President was created duty absolute to provide his assent to
any modification bill that passed each house of Parliament. Many curbs on the
proper property were passed into law.
The right to equality before the law and
equal protection of the laws (Article 14) and therefore the fundamental freedoms
secure underneath Article 19 were created subordinate to Article 39 (b) & (c)
within the Directive Principles of State Policy. Privy purses of erstwhile
princes were abolished and a complete class of legislation coping with land
reforms was placed within the 9th Schedule on the far side the scope of review.
Emergence Of The Basic Structure Concept: The Kesavananda Milestone
Inevitably, the constitutional validity of those amendments was challenged
before a full bench of the Supreme Court (thirteen judges). Their findings may
be found in eleven separate judgements. 9 judges signed an outline statement
that records the foremost vital conclusions reached by them during this case.
Granville Austin quotes that there are many discrepancies between the points
contained within the outline signed by the judges and therefore the opinions
expressed by them in their separate judgements. Yet, the seminal construct of
'basic structure' of the Constitution gained recognition within the majority.
All judges upheld the validity of the ordinal modification language that
Parliament had the facility to amend any or all provisions of the Constitution.
All signatories to the outline control that the Golaknath case had been set
incorrectly which Article 368 contained each the facility and therefore the
procedure for amending the Constitution. However they were clear that a
modification to the Constitution wasn't an equivalent as a law as understood by
Article 13 (2).
It is important to signifies the refined distinction that exists
between 2 forms of functions performed by the Indian Parliament:
- It will build laws for the country by exertion its legislative power and
- It will amend the Constitution by exerting its constituent power.
Constituent power is superior to standard legislative power. Unlike the British
Parliament which is a sovereign body (in the absence of a written constitution),
the powers and functions of the Indian Parliament and State legislatures are
subject to limitations set down within the Constitution. The Constitution
doesn't contain all the laws that govern the country. Parliament and therefore
the state legislatures build laws from time to time on numerous subjects, at
intervals in their several jurisdictions.
The General framework for creating
these laws is provided by the Constitution. Parliament alone is given the
facility to create changes to the current framework beneath Article 368. Unlike
standard laws, amendments to constitutional provisions need a special majority to
be passed by the Parliament.
Another illustration is helpful to demonstrate the distinction between
Parliament's constituent power and law creating powers. in keeping with Article
21 of the Constitution, no one within the country perhaps empty his life or
personal liberty except in keeping with procedure established by law.
Constitution doesn't lay down the small print of the procedure as that
responsibility is unconditional with the legislatures and therefore the govt.
Parliament and therefore the state legislatures build the required laws
identifying offensive activities that an individual could also be captive or
sentenced to death.
The chief lays down the procedure of implementing these laws
and therefore the suspect person is tried in a court of law. Changes to those
laws could also be incorporated by a straightforward majority choosing the
concerned state assembly. there's no ought to amend the Constitution so as to
include changes to these laws. However, if there's a requirement to convert
Article 21 into the basic right to life by abolishing corporal punishment, the
Constitution could need to be appropriately amended by Parliament utilizing its
Most importantly, 7 of the 13 judges within the Kesavananda Bharati case,
together with Justice Sikri the outline statement, declared that Parliament's
constituent power was subject to inherent limitations. Parliament couldn't use
its amending powers beneath Article 368 to 'damage', 'emasculate', 'destroy',
'abrogate', 'change' or 'alter' the 'basic structure' or framework of the
Basic Options Of The Constitution In Keeping With The Kesavananda Finding:
Each justice set out singly, what he thought were the fundamental or essential
options of the Constitution. There was no agreement of opinion at intervals the
bulk read either.
Chief Justice Sikri Explained That The Construct Of Basic Structure Included:
Justice Shelat And Justice Grover Added Two More Provisions To The
- Supremacy Of The Constitution
- Republican And Democratic Type Of Government
- Secular Nature Of The Constitution
- Separation Of Powers Between The Legislature, Executive And The
- Federal Character Of The Constitution
Justice Hegde And Justice Mukherjea Introduced A Separate And Shorter
List Of Basic Features:
- The Mandate To Create A State Contained Within The Directive
Principles Of State Policy
- Unity And Integrity Of The State
Justice Jaganmohan Reddy declared that parts of the fundamental features were to
be found within the Preamble of the Constitution and therefore the provisions
into that they translated such as:
- Sovereignty Of India
- Democratic Character Of The Polity
- Unity Of The Country
- Essential Options Of The Individual Freedoms Secured To The
- Mandate To Create A State
- Sovereign Democratic Republic
- Parliamentary Democracy
- 3 Organs Of The State
He affirmed that the Constitution wouldn't be itself while not the basic
freedoms and therefore the directive principles.
Only six judges on the bench (therefore a minority view) agreed that the basic
rights of the subject belonged to the fundamental structure and Parliament
couldn't amend it.
The Minority Read
The minority read delivered by Justice A.N. Ray (whose appointment to the
position of justice over and higher than the heads of 3 senior judges, shortly
after the pronunciation of the Kesavananda verdict, was widely thought of to be
politically motivated), Justice M.H. Beg, Justice K.K. Mathew and Justice S.N.
Dwivedi additionally agreed that Golaknath had been set incorrectly.
the validity of all 3 amendments challenged before the court. Ray, J. control
that every one component of the Constitution was essential and no distinction
can be created between its essential and non-essential components. All of them
agreed that Parliament might build elementary changes within the Constitution by
exerting its power beneath Article 368.
In outline the bulk finding in Kesavananda Bharati recognized the facility of
Parliament to amend any or all provisions of the Constitution provided such an
act didn't destroy its basic structure. However there was no agreement of
opinion concerning what appoints thereto basic structure. Although the Supreme
Court terribly nearly came back to the position of Sankari Prasad (1952) by
restoring the ascendency of Parliament's amending power, in result it
strengthened the facility of review rather more.
Basic Structure Construct Reaffirmed: The Mrs.Gandhi Election
In 1975, The Supreme Court once more had the chance to pronounce on the basic
structure of the Constitution. A challenge to Prime Minister Indira Gandhi's
election success was upheld by the Allahabad supreme court on grounds of
electoral malpractice in 1975. Pending appeal, the holiday judge-Justice Avatar Iyer, granted a stay that allowed Smt. Mrs. Gandhi to perform as Prime Minister
on the condition that she shouldn't draw a pay and speak or choose Parliament
till the case was set.
Meanwhile, Parliament passed the 39th Amendment to the
Constitution that removed the authority of the Supreme Court to adjudicate
petitions concerning elections of the President, Vice-President, Prime Minister
and Speaker of the Lok Sabha. Instead, a body deep-seated by Parliament would be
unconditional with the facility to resolve such election disputes.
Section 4 of
the Amendment Bill effectively defeated any commit to challenge the election of
an incumbent, occupying any of the higher offices in a court of law. This was
clearly a pre-emptive action designed to benefit Smt. Mrs. Gandhi whose election
was the cause of the continued dispute.
Amendments were additionally created to the illustration of Peoples Acts of 1951
and 1974 and placed within the Ninth Schedule beside the Election Laws Amendment
Act, 1975 so as to save lots of the Prime Minister from embarrassment if the
apex court delivered an unfavourable judgement.
The intention of the government.
was proved by the haste within which the 39th amendment was passed. The bill was
introduced on 7th August,1975 and passed by the Lok Sabha on an equivalent day.
The Rajya Sabha (Upper House) passed it the following day and therefore the
President gave his assent 2 days later.
The amendment was sanctioned by the
state legislatures in special Saturday sessions. It had been gazetted on 10th
August. Once the Supreme Court opened the case for hearing the following day,
the Attorney General asked the Court to throw out the case within the light of
the new amendment.
Counsel for Raj Narain was the political opponent difficult Mrs. Gandhi's
election argued that the modification was against the fundamental structure of
the Constitution because it affected the conduct of free and fair conduct of
elections and therefore the power of review. Counsel additionally argued that
Parliament wasn't competent to use its constituent power for corroborative an
election that was declared void by the High Court.
4 out of 5 judges on the bench upheld the 39th amendment, however solely when
putting down that part that wanted to curb the facility of the judiciary to
adjudicate within the current election dispute. One judge, Beg, J. upheld the
amendment in its totality. Mrs. Gandhi's election was declared valid on the idea
of the amended election laws. The judges grudgingly accepted Parliament's power
to pass laws that have a retrospective result.
Basic Features Of The Constitution In Keeping With The
Election Case Finding
Again, every judge expressed views concerning what amounts to the basic
structure of the Constitution:
According to Justice H.R. Khanna, democracy could be a basic feature of the
Constitution and includes free and fair elections.
Justice K.K. Thomas says that the facility of review is a vital feature.
Justice Y.V. Chandrachud Listed Four Basic Provisions That He
Thought Of Unamendable:
- Sovereign Democratic Republic Standing
- Equality Of Opportunity And Status For All People
- Secularism And Freedom Of Conscience And Faith
- The Rule Of Law
According to justice A.N. Ray, the constituent power of Parliament was higher
than the Constitution itself and thus not certain by the principle of separation
of powers. Parliament might so exclude laws relating election disputes from
review. He opined, strangely, that democracy was a basic feature however not
free and fair elections. Ray, C.J. controlled that standard legislation wasn't
at intervals the scope of basic options.
Justice K.K. Mathew in agreement with Ray, C.J. that standard laws didn't fall
at intervals the view of basic structure. However, he said that democracy was a
vital feature in which election disputes should be selected by the idea of law
and facts by the judiciary.
Justice M.H. Beg disagreed with Ray, C.J. on the grounds that it might be
supererogatory to possess a Constitution if Parliament's constituent power were
aforesaid to be higher than it. Judicial powers were unconditional within the
Supreme Court and therefore the High Courts and Parliament couldn't perform
He contended that ascendency of the Constitution and separation of powers
were basic features as understood by the bulk within the Kesavananda Bharati
case. Beg, J. emphasised that the school of thought of basic structure enclosed
at intervals its scope standard legislation additionally.
Despite the disagreement between the judges on what deep-seated the fundamental
structure of the Constitution, the thought that the Constitution had a core
content that was inviolate was upheld by the bulk read.
The Kesavananda Review Bench
Within 3 days of the judgement on the Election case Ray, C.J. convened a 13
decide bench to review the Kesavanada finding on the pretext of hearing a
variety of petitions with reference to land ceiling laws that had been
languishing in high courts. The petitions contended that the applying of land
ceiling laws desecrated the fundamental structure of the Constitution.
the Review bench was to decide whether or not the fundamental structure school
of thought restricted Parliament's power to amend the Constitution. The choice
within the Bank Nationalisation case was additionally up for review.
Meanwhile Prime Minister Gandhi, in an exceedingly speech in Parliament, refused
to just accept the dogma of basic structure.
It should be remembered that no specific petition seeking a review of the
Kesavananda decision was filed before the apex court- a fact noted with a lot of
chagrin by many members of the bench. N.N.Palkhivala showing for on behalf of a
coal company, eloquently argued against the move to review the Kesavananda call.
Ultimately, Ray, C.J. dissolved the bench after 2 days of hearings. Many folks
have suspected the government's indirect involvement during this episode seeking
to undo the associate degree unfavourable judicial precedent set by the
Kesavananda verdict. However, no joint efforts were created to pursue the case.
The declaration of a National Emergency in June 1975 and therefore the
subsequent suspension of fundamental rights, together with the proper to
manoeuvre courts against preventive detention, pleased the attention of the
country from this issue.
Sardar Swaran Singh Committee And Therefore The Ordinal Modification
Soon after the declaration of National Emergency, the Congress party recognised
a committee under Sardar Swaran Singh to check the question of amending the
Constitution within the light-weight of past experiences. Supporting its
recommendations, the government incorporated many changes to the Constitution
together with the Preamble, through the 42nd Amendment (passed in 1976 and came
into force on 3rd January, 1977).
Among Alternative Things The Amendment:
- Gave the Directive Principles of State Policy precedence over the basic
Rights contained in Article 13 (right to equality before the law and equal
protection of the laws), Article 19 (various freedoms like freedom of speech
and expression, right to assemble peacefully, right to create associations
and unions, right to move about and reside freely in any part of the country
and therefore the right to pursue any trade or profession) and Article 21
(right to life and private liberty). Article 31C was amended to ban any
challenge to laws made under any of the Directive Principles of State
- Ordered down that amendments to the Constitution created within the past
or those possible to be created in future couldn't be questioned in any
court on any ground;
- Removed all amendments to basic rights from the scope of review and
- All restrictions on Parliament's ability to change the Constitution
under Article 368 were eliminated.
Basic Structure School Of Thought Reaffirmed: The Minerva Mills And Waman Rao Cases
Within 2 years of the restoration of Parliament's amending powers to close
absolute terms,the ordinal amendment was challenged before the Supreme Court by
the house owners of Minerva Mills (Bangalore) a firm that was nationalised by
the Indian government in 1974.
The petitioners' attorney and well-known constitutional expert, Mr. N.A.
Palkhivala, decided not to challenge the government's action simply in terms of
infringement of the fundamental right to property.He presented the issue instead
in terms of Parliament's ability to change the Constitution.
Mr. Palkhivala argued that Section 55 of the amendment had placed unlimited
amending power within the hands of Parliament. The commitment to immunise
constitutional amendments against review desecrated the school of thought of
basic structure that had been recognised by the Supreme Court within the
Kesavananda Bharati and Mrs. Gandhi Election Cases. He contended that the
amended Article 31C was constitutionally dangerous because it desecrated the
Preamble of the Constitution and the fundamental rights of voters. It
additionally took away the ability of review.
Chief Justice Y.V. Chandrachud, delivering the bulk judgement (4:1), upheld each
contentions. The majority upheld the ability of review of constitutional
amendments. They maintained that clauses (4) and (5) of Article 368 bestowed
unlimited power on Parliament to amend the Constitution. They affirmed that this
disadvantaged courts of the flexibility to question the modification
notwithstanding it broke or destroyed the Constitution's basic structure.
The judges, concurred with Chief Justice Chandrachud ruled that a restricted
amending power itself is a basic feature of the Constitution.
Justice Bhagwati the dissentant decided additionally in agreement with this read
stating that no authority, however lofty, might claim to be the only decider of
its power and actions under the Constitution.
The majority found the amendment to Article 31C unconstitutional because it
destroyed the harmony and balance between fundamental rights and directive
principles that is a fundamental or basic feature of the Constitution. The
modification to Article 31C remains a dead letter because it has not been
repealed or deleted by Parliament. However, cases governed by it are decided in
the same manner as they were before the 42nd amendment.
In another case with reference to an analogous dispute involving agricultural
property the apex court ordered that each constitutional amendment made once
after the date of the Kesavananda Bharati judgement was open to judicial review.
All laws placed within the 9th Schedule once the date of the Kesavananda Bharati
judgement were additionally receptive to review within the courts.
They'll be challenged on the grounds that they are on the far side of
Parliament's constituent power or that they have broken the fundamental
structure of the Constitution. In essence, the Supreme Court affected a balance
between its authority to interpret the Constitution and Parliament's power to
It may be aforesaid that the ultimate word on the difficulty of the basic
structure of the Constitution has not been pronounced by the Supreme Court- a
situation that's unlikely to vary within close to future. whereas the idea that
there's such an issue as a basic structure to the Constitution is well
established. Its contents cannot be utterly determined with any live of
definiteness till a judgement of the Supreme Court spells it out.
With the sovereign, democratic and lay character of the polity, rule of law,
independence of the judiciary, basic rights of voters etc. are a number of the
basic provisions of the Constitution that have appeared time and once more
within the apex court's pronouncements.
One thing that emerged out of this tussle between Parliament and the judiciary
is that each law and constitutional amendment is currently subject to review and
laws that transgress the fundamental structure are possible to be reviewed by
the Supreme Court. In essence, Parliament's power to amend the Constitution
isn't absolute and therefore the Supreme Court is the final arbiter over and
interpreter of all constitutional amendments.
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