EVOLUTION OF BASIC STRUCTURE DOCTRINE IN INDIA

INTRODUCTION

The constitution empowers the legislative bodies {Parliament / state legislative assemblies} in the country to make laws in their respective jurisdictions. However, this power is not absolute but is subject to judicial review. Power of judicial review makes the Supreme Court guardian of not only fundamental rights but the constitution itself. However, at the time of enactment of the constitution, the Supreme Court derived its power to review the acts via article 13, article 226 and article 245 mainly. Article 13 declares that any law which contravenes any of the provisions of part –III {Fundamental Rights} shall be null and void. Articles 32 and 226 entrust Supreme Court and High Courts with roles of the protector and guarantor of fundamental rights Article 245 states that the powers of both Parliament and State legislatures are subject to the provisions of the constitution.

Once the constitution was in force and the Supreme Court was established, a long struggle started between Judiciary and Parliament, which ultimately culminated in what is known as Basic Structure Doctrine. The gist of this long struggle is that while parliament went on an amendment spree to achieve its socio-economic and political goals, Supreme Court kept reviewing these amendments and striking down those which were not consistent with explicit provisions of the constitution {mainly article 13, 32, 226 and 245}.

Article 245 of the Indian Constitution invests the parliament with the power to make laws subject to the provisions of the constitution. Article 368 Provides the parliament with a special type of power, i.e, to amend constitutional provisions. This power can be exercised by a two-thirds majority in both houses of parliament and, in some cases with the additional consent of half the number of state legislatures. The articles remain silent however upon the exact nature scope and limitation (if any) of the amending power.

HISTORICAL BACKGROUND

After independence the government of India started to implement agrarian reforms with the aim of reforming land ownership and tenancy structures and to implement the socialistic goals of the constitution contained in Article 39(b) and (c) of DPSP which required equitable distribution of resources of production among all citizens and prevention of concentration of wealth in the hands of a few.

A brief history of how the court has viewed its power to examine the validity of amendments to the constitution over the years. laws for agrarian reform know popularly as Zamindari Abolition Acts. were passed in Bihar, Uttar Pradesh, and Madhya Pradesh. The laws were challenged in different high courts by owners of estates on the ground of violation of fundamental rights; mainly on the ground that differential treatment was accorded to landowners in the matter of payment of compensation and that the right to equality under Article 14 was violated.

The Bihar law was struck down the utter Pradesh and Madhya Pradesh laws were upheld by the respective high court when appeals were pending in the Supreme Court the provisional Parliament passed the Constitution (First Amendment) Act.1951. The First Amendment Introduced Article 31-A and 31-B and Inserted the Ninth Schedule into the constitution. Article 31-A protected ‘estate’ law from challenges based on the violation of Fundamental Rights Article 31-B provide that, without prejudice to the generality of the provisions of Article 31-A, any law placed in the ninth schedule would be immune from judicial review on the violation of Fundamental Rights.

what the government exactly did was that it placed 13 laws passed by the states (i.e the law which was passed to abolish zamindari etc.) into the 9th schedule and then put Art 31-B which said that any law place in the 9th schedule shall not be deemed to be void only on the ground that it takes away some fundamental rights. this ensured that laws placed in the 9th schedule are not challenged in supreme court and government can continue with its social engineering and land reforms.

The net result of this enactment was that government found a way to curtail down the power of judicial review. This 9th schedule was such a powerful instrument that starting from 13 acts in 1951, it has now around 284 acts; and the name of these acts can be challenged on the ground that they violate the Fundamental Rights.

BEGINNING OF TUSSLE; IN THE COURT

Sankari Prasad Vs. Union Of India (1952),  The Supreme Court considered a challenge to the first amendment at the instance of the aggrieved landowners. Apart from arguments based on the powers of the provisional parliament to pass the amendment and certain other objections relating to procedure the main attack on the amendment was based on Article 13(2) which prohibited the state from making any ‘Law’ in derogation of Fundamental Rights. The argument was that ‘Law’ must also include an amendment to the Constitution. The court dealt with this argument in precisely one paragraph, holding that there was a clear distinction between an ordinary law made in exercise of legislative power and constitutional Law made in exercise of constituent power that the terms of Article 368 were perfect general and empowered parliament to amend the Constitution without any exception whatsoever, and that on a harmonious interpretation of article 13(2) and 368, the former did not affect amendments to the Constitution.

The question comes up again fourteen year’s later in Sajjan Singh Vs. State of Rajasthan (1965) also before a Constitution Bench. P Gajendragadkar Chief Justice, Speaking for himself and two others upheld Sankari Prasad. However, J. Hidayatullah and J. Mudholkar expressed doubts about the verdict. Hidayatullah J. opined that the many assurances given in part III made it difficult to visualize fundamental rights as more “playthings of a special majority” Mudholkar J. observed that the framers may have intended to give permanency to certain “Basic Feature” such as the three organs of the state, separation of powers etc. He also questioned whether a change in the basic features of the constitution could be defined as an “Amendment” within the meaning of article 368, or whether it would amount to rewriting the constitution itself.

The Position of law was then reversed in I C Golak Nath Vs. The state of Punjab (1967). An Eleven judges bench of the supreme court, by a slender margin of 6 to 5, and by divided majority opinions held that the parliament had no power to amend part III of the constitution. All provisions dealing with Fundament Right were thus placed beyond the reach of the legislature.

The Parliament’s response was immediate and telling. In order to overcome the Golak Nath case, It enacted the Twenty-fourth constitutional Amendment. This provided,  Inter alia, that the prohibition in Article 13 would not apply to on amendment of the constitution under Article 368 it also substituted the words “amendment by way of addition, variation or repeal” for only “amendment” in Article 368. The constitutional validity of the Twenty-Fourth Amendment amongst other’s was strongly challenged in order to obtain a conclusive judicial ruling upon the exact scope, nature, and limitations of the amendment power a thirteen judges bench of the Supreme Court was Constituted.

The Case was Kesavananda Bharati Vs State of Kerala (1973) Eleven separate opinions were delivered in Kesavananda case. The complexity of the issues notwithstanding it may safely be said that by a majority of 7 to 6 the court held that whereas the parliament’s amending power was plenary, and extended to every provision of the constitution (thus overruling Golak Nath), the parliament could not damage or destroy the “Basic Structure” of the constitution. In order to determine the basic structure of the constitution, recourse was had to the preamble the constitutional “Scheme”  the struggle for independence from colonial rule and the drafting history of the constitution chief justice Sikri, in his majority opinion, provided five such “Basic Features” Supremacy of the constitution republican and democratic form of government secular character of the constitution, separation of powers between the executive, Legislature and Judiciary and federal character of the constitution similar lists were prepared by the other majority judges.

The basic structure doctrine was crystallized in three further decisions of the decade, In Indira Nehru Gandhi Vs Shri Raj Narain & Anr (1975), a Constitutional amendment dealing with the election of the prime minister and the speaker was struck down for violating the basic features of democracy (Matthew and Khanna JJ) the rule of law (Ray C.J) and equality (Chandrachud J). In Minerva Mills Vs. Union Of India (1980) the parliament attempted to overturn Kesavananda by inserting the 42nd Amendment, which expressly stated that the amending power was unlimited and not open to judicial review. The amendment was struck down by the court on the ground that the limited amending power of the parliament was itself part of the basic structure. lastly, in Waman Rao Vs. Union Of India (1981) It was held that laws placed in the 9th schedule and thus beyond the pale of fundamental rights review, would nevertheless have to be tested on the touchstone of the basic structure before they were given immunity.

The next two decades saw the consolidation of the doctrine in a series of judgments, which may collectively be called the tribunal’s cases, it was held that judicial review of the supreme court under Article 32 and of the High Court under Article 226 was a basic feature, First enunciated in S.R Bommai Vs. Union Of India, (1994) and then crystallized in the decisions of Ismail Faruqui Vs. Union Of India (1994) and Aruna Roy Vs. Union Of India (2002) the court developed the concept of the basic feature of secularism as an attitude of even-handedness to words all religions. In I.R. Coelho Vs. State Of Tamil Nadu (2007) the court added Article 14, Article 19, Article 21 to the list of Basic features.

CONCLUSION

Now we can say, there is no hard and fast rule for a basic feature of the Constitution. Different judge keeps different views regarding the theory of basic structure. But at one point they have a similar view that parliament has no power to destroy, alter, or emasculate the ‘basic structure’ or framework of the constitution. So for the protection of welfare 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 none is above constitution even parliament and judiciary.

 

 

 

 

 

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