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| Doctrine of Basic Structure | |||||||
| Paper Id :
16792 Submission Date :
17/09/2022 Acceptance Date :
21/09/2022 Publication Date :
25/09/2022
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| Abstract | The first-step in the direction of constitutional law wisdom is acknowledging and accepting the fact that a self-governing Republic is founded by the Constitution. The Constitution is a natural law. According to Edmund Burke, “A Constitution is an ever developing thing and is continuously ongoing as it embodies the spirit of the nation. The impact of the past enriches it now and makes the future richer than the present.” This paper elucidates upon the doctrine of basic structure as formulated and developed by the Apex Court in various landmark decisions. | ||||||
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| Keywords | Basic Structure, Constitution, Court, Judicial. | ||||||
| Introduction |
The power to amend the Constitution was given by itsframers to the Parliament by making a procedure which is neither too rigid nor too flexible with the underlying goal that amendments will be made by the Parliament for the purpose of coping up with the fluctuatingrequirements and demands of “We ThePeople”. Article 368 of the Constitution of India allows the Parliament to make changes into the provisions of the Constitution, including Article 368itslef. The 'Basic Structure Doctrine' is a doctrine which has been created by judicial activism and which restricts the amending power of the Parliament in such a manner that it cannot make any alterations into the "basic structure of the Constitution". |
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| Aim of study | 1. To study the concept of basic structure. 2. To analyse the Judicial journey of the doctrine of basic structure. 3. To discuss the test of basic structure. 4. To review the essentials of basic structure. | ||||||
| Review of Literature | Essentials of Basic Structure In numerous judgments over the years, the meaning of Basic Structure has been expanded by the judiciary to include a number of elements within the ambit of the doctrine, which is as follows: 1. In the landmark Kesavananda Bharati judgment, the court accepted the following essentials as being part of the ‘basic structure’: a. According to Chief Justice Sikri, basic structure includes constitutional supremacy, republican and democratic form of government, secularism, the separation of powers, and federalism. b. The mandate of establishing a welfare state in accordance with the Directive Principles of State Policy and the unity and integrity of the nation, were two additional features which were added to the list by Shelat, J., and Grover, J.. c. As per Hegde, J., and Mukherjea, J, basic structure included the sovereignty of India, the democratic nature of the polity, the unity of the nation, the fundamental elements of the individual freedoms secured to its citizens, and the mandate of creating a welfare state. d. As perJaganmohan Reddy, J., the Preamble of the Constitution and the constitutional provisions into which they were translated, such as sovereign democratic republic, parliamentary democracy, and three organs of the state contained aspects of the basic features. 2. In Indira Gandhi v. Raj Narain (1975) case, according to Justice K.K. Thomas, the ability for judicial review is a crucial component. Justice Y.V. Chandrachud also stated four fundamental principles that he believed 3. In Minerva Mills judgement, the judges with the concurring opinion from the majority ruled that ‘limiting the amending power’ itself is a basic feature of the Constitution. 4. According to the judgement in the Central Coal Fields case (1980), effective access to justice is a fundamental component of the basic structure. 5. In KihotoHollohon v. Zachillhu (1992) case, the Court hinted toward democracy along with a fair electoral process as being a feature of the basic structure. 6. Further in S. R. Bommai v. Union of India (1994), democracy and federalism, along with secularism were recognised as essential features of the basic structure. 7. In M. Nagaraj v. Union of India (2006), the Court acknowledged the doctrine of equality as an essential feature of the basic structure. |
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| Main Text | Concept of Basic Structure Amendment
to the Constitution has been provided under Part XX of the Constitution in
Article 368[1],three
kinds of amendments are provided which are, amendment by way of simple majority[2];
amendment through a special majority[3];
and amendment by way of special majority along with ratification by half of the
States[4].
A
static Constitution acts as a big hurdle in the way of a nation’s development. Due
to the reason that the time is not static; changes take place in the same manneras
the political, economic and social conditions of the people also goes on
changing. Thus, it is for that very reason that a provision has been made in
order to amend the Constitution for the purpose of overcoming the hardships and
problems of “We the People”. The
doctrine of Basic Structure of the Constitutionwas developed in the landmark
judgment ofKeshavanandaBharti. In this judgment the Court hadseeked to bring a
resolution to a legal conundrum which springs up in a written Constitutionbecause
of the interaction and interchange between those Constitutional provisions
which guarantees the fundamental rights and those which allow the Parliament to
make amendments into the Constitution[5].
In
the Minerva Mills case[6]Chandrachud,
C.J. made the observation that, “the Indian Constitution is founded on the
bedrock of the balance between Parts III and IV. To give absolute primacy to
one to one over the other is to disturb the harmony of the Constitution. This
harmony and balance between fundamental rights and directive principles is an
essential feature of the basic structure of the Constitution.” Judicial
Journey of the Doctrine of Basic Structure: For the first time the issue as to whether there can be
amendment to the fundamental rights under article 368 came up for deliberation
before the Apex Court in the case ofShankari Prasad[7].
In the instant case a challenge was made to the constitutional validity of First
Amendment by way of which Articles 31A and 31B were inserted into the Constitution.
The challenge was made on the ground these articles result in abridging of the
rights which are conferred by Part III of the Constitution and, hence,they are
void. However, this contention was rejected by the Supreme Court and it made
the observation that Article 368 contains the power of amending including the
fundamental rights. Similar view was taken by the court in theSajjan Singh
case[8]. Inthe GolakNath case[9],again
a challenge was made to the validity of the 17th Amendment which inserted
certain acts in Ninth Schedule. It was held by the Supreme Court that the Parliament
had no power of making amendments into Part III of the Constitution. Thus,
theCourt overruled its earlier judgments in the cases ofShankari Prasad and
Sajjan Singh. For the purpose of removing hardships and complexitieswhich were
caused due to the GolakNath judgment, the Parliament enacted the 24th Amendment
Act. In 1973, in the historic and landmark KesavanandaBharati
case[10]the
Supreme Court, for the very first time,gave recognition to the concept of Basic
Structure. From that time onwards, the Supreme Court has been the constitutional
interpretor and the conciliator of all amendments which are made by the Parliament.
In the instant case, a challenge was made to the validity of the 24th and 25th
Amendment Acts. The GolakNath case was overruled by majority of the judges. The
opinion of the majority was that even before the coming into force of the 24th
Amendment, Article 368 contained the power and the procedure of making amendments.
It was declared by the Supreme Court that Parliament was not enabled by Article
368 to make changes into the basic structure of the Constitution and the
amending power cannot be made use of by the Parliament for the purpose of
'damaging', 'emasculating', 'destroying', 'abrogating', 'changing' or 'altering'
the basic structure. This is a landmark judgment not only for the evolution of
constitutional law, but also it acts as a turning point in constitutional
history. The Supreme Court reaffirmed the concept of basic structure
in the case ofIndira Gandhi v. Raj Narayan[11]wherein
the bastic structure doctrine was applied by the Supreme Court and it struck
down clause (4) of Article 329A,which was inserted by way of the 39th Amendment
in 1975, on the ground that it formed a part of the basic structure of the
Constitution and, therefore, it was outside of the scope of the amending power
of the Parliament. In this judgment Justice Y.V. Chandrachudlaid down four
basic features which, according to him,cannot be amended as they constituted
the Basic Structure: 1. The
status of India as a Sovereign democratic republic 2. Equality
of status and opportunity which is given every individual 3. Secularism 4. The rule
of law In the case of Minerva Mills[12]clauses(4)
and (5) of the article 368 were struck down by the Supreme Court by 4:1
majority.These clauses were inserted by way of the 42nd Amendment.The ground for
striking them down was that the essential feature of the basic structure of the
constitution was being destroyed by these clauses. The court ruled that a
limited power to amend is itself a basic feature of the Constitution. In L. Chandra Kumar case[13]it
was unequivocally declared by seven judge Bench"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" Test of Basic Structure: The
Kesavananda Bharati judgment gave a test of ‘basic structure’ which waswas far
from being solid and concrete and only those features became a part of the
basic structure whichwerementioned by the various judges presiding over the
Bench.[14]This
made the doctrine or the tests of basic structure confusing and vague. As has
been lamented by noted jurist H.M Seervai, "a precise formulation of
the basic features would be a task of greatest difficulty and would add to the
uncertainty of interpreting the scope of Art 368”[15] Minerva
Mills case[16]was
the first judgment in which the Court made a cognizant attempt of laying down
the basic structure tests. It was reiterated by majority, at the very outset,
that in accordance with the notion of the Kesavananda Bharati case, basic
structure can be put forward as, "amend as you may even the solemn
document which the founding fathers have committed to your care, for you know
best the needs of your generation. But, the Constitution is a precious
heritage; therefore, you cannot destroy its identity". It
may be commented that the vagueness of this test is as much as the
constitutional identity of Kesavananda Bharti, however, a somewhat different
picture comes out after carrying out an in-depth analysis of these points.
Firstlyone must take into consideration the condition on 'nature of right', it
must be understood as toviolation of what kind of rights take place i.e.,
whether a fundamental right has been violated or a legal right or a
constitutional right. The concept of basic structure consists of both the rights,fundamental
rights which have been guaranteed under Part III of the Consitution as well as
the rights which are entrenched and deep-rooted in the constitutional spirit,
such as the notion of democracy, rule of law etc. Therefore, merely due to the
fact that a right is a fundamental right it does not mean that it will be accorded
any protection. For a right to be a part of the doctrine, it must be an
absolute essential right. In
addition to it, the second test is the issue as to what of extent and depth of violation
can take place.Although after the first test it may seem redundant; it must be understood
that there has to be a simultaneous application of all these tests instead of
applying them in a hierarchical manner. As per the framework of the
Constitution of India the courts are not allowed to take suomotocognizance on
an amendment and, therefore, the courts are barred from analysing an amendment until
and unless it has been brought before its consideration.Hence, by way of the second
test the Indian courts always ensure to counter a situation in which already
damage has been done. There is a proximate link of the second test with the
third one due to the reason that while analysing the extent to which violation
has beendone, the purpose and impact of the violation must be realized and
comprehended. In
the I.R. Coelho case, it was further held by the Court that if the triangle of
Article 21 read with Article 14 and Article 19 is sought to be eliminated not
only the “essence of right test” but also the rights test has to apply. Therefore, if we are to restate the test given in the Minerva Mills, we may come up with the following points “whether the nature of the right is such that it is a fundamental right or a core, condition of natural right of a human being.” The extent and depth of the infringement, purpose for which the infringement is made, overall impact on the basic value or identity of the Constitution. |
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| Methodology | The Methodology is a doctrinal research strategy that outlines the way in which a research work is to be undertaken and, among other things, identifies the methods to be used in it. The present study is done with the help of secondary sources i.e. books, magazines, journals and websites etc. |
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| Conclusion | In the end we can come to the conclusion that no hard and fast rule can be sketched out for determining the basic structure of the Constitution. There have been different opinions of different judgeswith regards to the theory of basis structure. However, they all agree on the point that parliament is notempowered to destroy, alter, or emasculate the 'basic structure' 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."[17]. Therefore, in order to protect the welfare of the 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 no one is over and above the Constitution, not even the Parliament and the Judiciary. | ||||||
| References | 1. Aggarwala, Om Prakash: Fundamental Rights and Constitutional Remedies (3 Vols.)
2. Dhavan, Rajeev;The Basic Structure Doctrine - A Foot note comment, In Indian Constitution; Trends and issues (1978)
3. Dicey, A.V: Law of the Constitution (edited by E.C.S Wade, MacMillan and Co, London)
4. Gajendragadkar, P.B: The Constitution of India (Oxford University Press, 1969).
5. Jain, D.C :Forty-Second Amendment: An Evaluation, in Indian Constitution : Trends and Issues (1978).
6. LauranceH.Tribe :A Constitution we are Amending : In Defence of a Restrained Judicial Role, H.L.R. Vol.97 Dec-1983 p.433
7. Mathew, K.K., Basic Structure and the Constitution (1978) 3 S.C.C. (J).
8. Tripathi, RK, Rule of Law, Democracy and the Frontiers of Judicial Activism, 17, JILS (1975)
9. Victor Rosewater, :"A curious chapter in Constitution - changing" political Science Quarterly 409 (1921)36.
10. Kashyap, Subhash C.- Our Constitution, Edition 2011, Reprint 2014, p. 340. |
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| Endnote | 1. Article 368 of the Indian Constitution reads as: ―Power of the Parliament to amend the Constitution and procedure therefor.- (1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article. (2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill. Provided that if such amendment seeks to make any change in – (a) Article 54, article 55, article 73, article 162 or article 241, or (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or (c) Any of the Lists in the Seventh Schedule, or (d) The representation of States in Parliament, or (e) The provisions of this article, the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent. (3) Nothing in Article 13 shall apply to any amendment made under this article. (4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article [whether before or after the commencement of section 55 of the Constitution (Forty-Second Amendment) Act, 1976] shall be called in question in any court on any ground. (5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article. 2. Amendment by simple majority of each house of Parliament- it is like an ordinary bill. Formation of new States, creation or abolition of Legislative Councils (Arts. 4, 169 and 239-A) is made by such procedure. Thus, amendment at the instance of the States, or amendment by State Legislatures, is included in such category. Amendments under this category are expressly excluded from the purview of Article 368. 3. Means majority of „total members of each House‟ and by a majority of at least two-third „present and voting‟. All amendments, other than those referred in amendment by simple majority, come within this category, e.g., powers of Election Commission 4. The States are given an important voice in the amendment of these matters which are required to be ratified by the legislature of not less than one-half of the States. 5. Jain, M.P.-Indian Constitutional Law, Sixth edition 2010, reprint 2012, p. 1645. 6. (1980) 3 SCC 625. 7. Sankari Prasad Singh v. Union of India, AIR 1951SC 45 8. Sajjan Singh v. State of Rajasthan, (1965) 1 SCR 933: AIR 1965 SC 845 9. GolakNathv.State of Punjab, (1967) 2 SCR 762: AIR 1967 SC 10. KesavanandaBharati v. State of Kerala, AIR 1973SC 1461 11. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SCC 2299 12. Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625. 13. L. Chandra Kumar v. Union of India (1997) 3 SCC 261(at SCC p. 301, Para 78) 14. 7 In Minerva Mills v. Union of India, AIR 1980 SC 1789 the majority judgment concisely discussed the ratio of Kesavananda and jotted down the Basic features regarding the limited amenability of constitution and the balance between Part III and Part IV as pointed out by Sikri, C.J., Shelat and Grover, JJ, Hegde and Mukherjee, JJ, Jaganmohan Ready J and Khanna, J. For a detailed analysis of various features of constitution categorized as 'Basic structure' in Kesavananda one can refer to V.N. Shukla, Constitution of India at 887-889 15. HmSeervai, Constitutional Law of India, 3161-3162 (2001) 16. Minerva Mills Ltd. and Ors.v. Union of India (UOI) and Ors., AIR 1980 SC 1789. 17. H.M, Seervai: Constitutional law of India VOI.II, P. 1568 (2ND ED.) |
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