27 November 2012

The Basic Structure of the Indian Constitution


The debate on the 'basic structure' of the Constitution, lying somnolent in the archives of India's constitutional history during the last decade of the 20th century, has reappeared in the public realm once again.
According to the Constitution, Parliament and the state legislatures in India have the power to make laws within their respective jurisdictions.  This power is not absolute in nature.  The Constitution vests in the judiciary, the power to adjudicate upon the constitutional validity of all laws.  If a law made by Parliament or the state legislatures violates any provision of the Constitution, the Supreme Court has the power to declare such a law invalid or ultra virus. 

 Hence Parliament was invested with the power to amend the Constitution.  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 pronounced that Parliament could not distort damage or alter the basic features of the Constitution under the pretext of amending it.

The phrase 'basic structure' itself cannot be found in the Constitution.
The Supreme Court recognised this concept for the first time in the historic Kesavananda Bharati case in 1973.

Ever since the Supreme Court has been the interpreter of the Constitution and the arbiter of all amendments made by Parliament.

The phrase 'basic structure' was introduced for the first time by M.K. Nambiar and other counsels  while arguing for the petitioners in the  Golaknath  case, but it was only in 1973 that the concept  surfaced in the text of the apex court's verdict

Most importantly seven of the thirteen judges in the Kesavananda Bharati case, including  Chief  Justice Sikri who signed the summary statement, declared that Parliament's constituent power  was subject to inherent limitations.  Parliament could not use its amending powers under Article  368 to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or  framework of the Constitution.

 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.  There was no unanimity of opinion within the majority view either
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 two 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

Hegde, 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 

Only six judges on the bench (therefore a minority view) agreed that the fundamental rights of the citizen belonged to the basic structure and Parliament could not amend it.

In summary the majority verdict in Kesavananda Bharati recognized the power of Parliament to amend any or all provisions of the Constitution provided such an act did not destroy its basic structure.  But there was no unanimity of opinion about what appoints to that basic structure.

Basic Structure concept reaffirmed- The Indira Gandhi Election case

In 1975, The Supreme Court again had the opportunity to pronounce on the basic structure of the Constitution in the Indira Gandhi Election Case.
Basic Features of the Constitution according to the Election case verdict
Each judge expressed views about what amounts to the basic structure of the Constitution
According to Justice H.R. Khanna, democracy is a basic feature of the Constitution and
includes free and fair elections.
Justice K.K. Thomas held that the power of judicial review is an essential feature.

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

 Chief Justice A.N. Ray, opined, strangely, that democracy was a basic feature but not free and fair elections.

 Ray, C.J. held that ordinary legislation was not within the scope of basic features.

Justice K.K. Mathew agreed with Ray, C.J. that ordinary laws did not fall within the purview of basic structure.  But he held that democracy was an essential feature

Justice M.H. Beg disagreed with Ray, C.J.and. Contended that supremacy of the Constitution and separation of powers were basic features as understood by the majority in the Kesavananda Bharati cas.   Beg, J. emphasised that the doctrine of basic structure included within its scope ordinary legislation also.

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

The Forty-second amendment was challenged before the Supreme Court by the owners of Minerva Mills (Bangalore) a sick industrial firm which was nationalised by the government in 1974.

Mr. Palkhivala argued that Section 55 of the amendment had placed unlimited amending power in the hands of Parliament.  The attempt to immunize constitutional amendments against judicial review violated the doctrine of basic structure which had been recognized by the Supreme Court in the  Kesavananda Bharati  and Indira Gandhi Election Cases. 

Chief Justice Y.V. Chandrachud, delivering the majority judgment (4:1), upheld both contentions.  The majority view upheld the power of judicial review of constitutional amendments.  They maintained that clauses (4) and (5) of Article 368  conferred unlimited power on Parliament to amend the  Constitution.  They said that this deprived courts of the ability to question the amendment even if it damaged or destroyed the Constitution's basic structure
The judges, who concurred with Chandrachud, C.J. ruled that a limited amending power itself is a basic feature of the Constitution.  

The majority held the amendment to Article 31C unconstitutional as it destroyed the harmony and balance between fundamental rights and directive principles which is an essential or basic feature of the Constitution


It may be said that the final word on the issue of the basic structure of the Constitution has not been pronounced by the Supreme Court yet.

Nevertheless the sovereign, democratic and secular character of the polity, rule of
Law, independence of the judiciary, fundamental rights of citizens etc. are some of the
Essential features of the Constitution that have appeared time and again in the apex court’s pronouncements
One certainty that emerged out of this tussle between Parliament and the
Judiciary is that all laws and constitutional amendments are now subject to judicial review and laws that transgress the basic structure are likely to be struck down by the Supreme Court.

In essence Parliament’s power to amend the Constitution is not absolute and the Supreme Court is the final arbiter over and interpreter of all constitutional amendments.

No comments:

Post a Comment