In accordance with the Constitution of India, the Parliament and the state legislatures in the nation have the powers to make laws within the scope of their specified jurisdictions. But this power, however, is not absolute in nature. The Constitution provides the judiciary with powers to adjudicate upon the constitutional validity of all the laws. If a law made by Parliament or the state legislature is in violation of any of the provisions enshrined under the Constitution of India, the Supreme Court has the power to declare such a law made by Parliament to be deemed as invalid or ultra vires.
The makers of the Constitution wanted the Constitution to be an adaptable document as against to a rigid framework, for Governance. Thus, the Parliament was invested with the power to amend the Constitution of India.
Article 368 of the Constitution creates a bit of a stir and makes it appear as the Parliament’s amending powers are absolute in nature and can cover all parts of the Constitution of India. But the Supreme Court has successfully curtailed the legislative enthusiasm of Parliament ever since the independence of the nation from time to time. The Supreme Court with the intention of preserving the original ideals envisioned by the constitution-makers, pronounced that Parliament could not distort, damage, or alter the basic features of the Constitution under the pretext of amending it. The term ‘basic structure’ cannot be found anywhere in the Constitution but its essence is available and that is the beauty of the Indian constitution.
The Supreme Court of India recognized the concept of ‘basic structure’ in the case of Kesavananda Bharati v. the State of Kerala in the year 1973 and since then, the Supreme Court has been the translator of the Constitution and the checking authority of all amendments made by Parliament.
What was the position before the Kesavananda Bharati case?
- The Parliament has been challenged as early as 1951 for its authority to amend the Constitution, specifically the chapter on the fundamental rights of the citizens of India. After the independence of India, many laws were enacted in the states with the aim of reforming land ownership and tenancy structures. These required fair and impartial distribution of resources of production among all citizens of India and prevention of concentration of wealth in the hands of a few.
- The property owners were the ones who were affected by these laws, hence, they petitioned in the courts. The courts struck down the land reform laws saying that they were acting above the fundamental right to property guaranteed by the Constitution.
- Furious by the unfavorable judgments, the Parliament at that time placed these laws in the Ninth Schedule of the Constitution by the First (1951) and Fourth (1952) amendments, which resulted in removing these laws from the scope of judicial review by the independent judiciary.
- Owners of properties then once again challenged the constitutional amendments which then placed land reform laws in the Ninth Schedule before the Supreme Court, saying that they violated Article 13 (2) of the Constitution of India.
- Article 13 (2) ensures the protection of the fundamental rights of all the citizens of India. Hence, the Parliament and the state legislatures were strictly prohibited from making laws that may take away or abridge or infringe the fundamental rights guaranteed to every citizen of India. They argued that any amendment made to the Constitution of India had the status of the law as understood by Article 13 (2).
Golaknath v. State of Punjab
- In the year 1967, an eleven-judge bench of the Supreme Court of India reversed the pre-existing position. Then Chief Justice Subba Rao put forth that Article 368 which contained provisions related to the amendment of the Constitution, merely laid down the amending procedure.
- Article 368 did not grant the power to the Parliament to amend the Constitution. The amending power of Parliament came from other provisions contained in the Constitution of India under various Articles such as Article 245, 246, and 248, which gave Parliament the power to make laws. The Supreme Court stated that the amending power and legislative powers of Parliament were the same essentially. Therefore, any amendment of the Constitution must be deemed law as enshrined under Article 13 (2) of the Constitution of India.
- Most part of the judgment called upon the concept of implied limitations on Parliament’s power to amend the Constitution of India. This view was held that the Constitution gives a place of permanence to the fundamental freedom of the citizen. Article 13, as per the view of the majority of the people, expressed this limitation on the powers of Parliament. Hence, Parliament could not modify, restrict, or impair fundamental freedoms due to this very scheme of the Constitution and the nature of the freedoms granted under it.
- The judges then stated that the fundamental rights were so sacred and supernatural in their importance that they could not be restricted.
- In other words, the Supreme Court of India held that some features of the Constitution form the core and required much more than the usual procedures to change them.
- The term ‘basic structure‘ was introduced for the very first time by M.K. Nambiar while arguing for the petitioners in the landmark case of Golaknath v. the State of Punjab, but it was only until 1973 that the concept surfaced in the text in the written format of the Supreme court’s verdict.
The Need for the Basic Structure Doctrine
- Eventually, the constitutional validity of these amendments was challenged in front of a full bench of the Supreme Court of India. Their decision can be found in eleven separate judgments. Nine judges signed a summary statement that records the most important conclusions reached by them in this case.
- The concept of ‘basic structure’ of the Constitution gained recognition in the majority verdict conclusion. All the judges upheld the validity of the Twenty-fourth Amendment of the Constitution by saying that Parliament had the power to amend any or all provisions of the Constitution.
- All signatories to the summary held that the Golaknath v. State of Punjab case had been decided incorrectly and that Article 368 contained both the powers and the procedure for amending the Constitution.
- However, they were clear that an amendment to the Constitution was not the same as law as per Article 13 (2).
- It is very much needed to point out the major difference that exists between two kinds of functions which are performed by the Indian Parliament:
- It can make laws for the country by exercising its legislative power; and
- It can amend the Constitution by exercising its constituent authority.
Basic Features of the Constitution according to the Kesavanada Bharati case
Chief Justice Sikri explained that the concept of the basic structure included the following:
- The Supremacy of the Constitution of India;
- The Republican and Democratic forms of government;
- The Secular character of the Constitution;
- The Separation of powers between the three bodies i.e. the legislature, executive, and the judiciary; and
- The Federal character of the Constitution.
Justice Shelat and Justice Grover added two more features to the list provided by Justice Sikri which are as follows:
- The authority to build a welfare state contained in the Directive Principles of State Policy;
- The Unity and Integrity of India.
Justice Jaganmohan Reddy said that the elements of the basic features could be found in the Preamble of the Constitution of India and the provisions into which they were translated. These were:
- The Sovereign Democratic Republic;
- The Parliamentary form of Democracy; and
- The three organs of the State.
He further stated that the Constitution of India would not itself be without the fundamental freedoms and the directive principles.
Sardar Swaran Singh Committee and the Forty-second amendment
During the National Emergency in the year 1776, the Indira Gandhi-led Congress party set up a committee under the Chairmanship of Sardar Swaran Singh for studying and questioning amendments of the Constitution in the light of past experiences. Based on its recommendations, the government made many changes to the Constitution of India including the Preamble, through the Forty-second amendment.
The Amendment stipulated the following:
- Gave the Directive Principles of State Policy priority over the Fundamental Rights contained under Article 14 (the right to equality before the law and equal protection of the laws), Article 19 (many freedoms like the freedom of speech and expression, right to assemble peacefully, right to form associations and unions, right to move and reside freely in any part of the country and the right to pursue any trade or profession) and Article 21 (the right to life and personal liberty). Article 31C was amended to prevent any challenge to the laws made under any of the Directive Principles of State Policy;
- It laid down that the amendments made to the Constitution of India made in the past or those likely to be made in the future could not be questioned in any court on any grounds;
- It removed all the amendments made to the fundamental rights from the scope of judicial review; and
- It deleted all limitations on Parliamentary powers to amend the Constitution under Article 368.
It can be established from this article that the final order on the basic structure of the Constitution has not been declared by the Supreme Court of India. It is a scenario that will change in the near future. The idea that there is such a thing as a ‘basic structure’ of the Constitution of India has been well established and its content cannot be completely determined with any measure of finality until a judgment of the Supreme Court spells it out to be.
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