Basic structure debate in constitution

Introduction

The decision of the Supreme Court in Keshwanand Bharti Vs. State of Kerela, displays the meaning of the term "Basic Structure"┬?, as addition or change modification, alteration and variation but not, destruction, which a repeal or abrogation would imply. In the light of this meaning, the observation of the Supreme Court as to the doctrine, can be divided in two types of assertions as under:

i. That every provision of the Constitution can be amended provided in the result the foundation and structure of the Constitution remains the same. In other w6rds basic structure cannot be amended.

ii. That the amendment of the Constitution can nor have the effect of destroying or abrogating the basic structure or frame-work of the Constitution, meaning thereby that basic structure or essential features of the Constitution cannot be destroyed.

The picture of a "╦ťdemocratic republic' which the Preamble envisages is democratic not only from the political but also from the social standpoint; in other words, it envisages not only a democratic form of Government but also a democratic Society, infused with the spirit of Justice, Liberty, Equality and Fraternity. The ideal of the democratic republic enshrined in the Preamble of the Constitution can be best explained with reference to the adoption of universal suffrage and the complete equality between the any arbitrary distinction between man and man in the political sphere. In order to ensure the "╦ťpolitical' justice held out by the Preamble, it was essential that every person in the territory of India, irrespective of his proprietary or educational qualifications, should be allowed to participate in the political system like any other person. That this democratic republic stands for the good of all the people is embodied in the concept of a "╦ťWelfare State', which inspires the directive principles of State Policy. The economic Justice assured by the Preamble can hardly be achieved if the democracy envisaged by the constitution were confined to a "political Democracy"┬?. In the words of Pandit Nehru:

"Democracy has been spoken of chiefly in the past, as political democracy, roughly represented by every person having a vote. But a vote by itself does not represent very much to a person who is down and out, to a person let us say, who is starving or hungry. Political democracy, by itself, is not enough except that it may be used to obtain a gradually increasing measure of economic democracy, equality and the spread of good things of life to others and removal of gross inequalities."┬?

Amending Power of Parliament (Restriction on parliament power of amending provisions in the Constitution and Judicial Review)

The amending power of the parliament is limited to the limit of not violating the basic structure of the Constitution. The basic structure of Constitution can be amended but cannot be destroyed. In so far as the will of the people is concerned that their fundamental rights conferred by the Constitution of India and must be safeguarded, protected and shall not be violated or infringed by any means. The people shall not be discriminated socially, economically and religiously. Their Human Rights must be Honoured and celebrated.

The framers of the Indian constitution were also aware of that fact that if the constitution was so flexible it would be like playing cards of the ruling party so they adopted a middle course. It is neither too rigid to admit necessary amendments, nor flexible for undesirable changes. India got independence after a long struggle in which numerous patriots sacrificed their life. They knew the real value of the freedom so they framed a constitution in which every person is equal and there is no discrimination on the basis of caste, creed, sex and religion. They wanted to build a welfare nation where the social, economical, political rights of the general person recognize. The one of the wonderful aspect of our constitution is Fundamental rights and for the protection of these rights they provided us an independent judiciary. According to constitution, parliament and state legislature in India have the power to make the laws within their respective jurisdiction. This power is not absolute in nature.The constitution vests in judiciary, the power to adjudicate upon the constitutional validity of all the laws. If a laws made by parliament or state legislature violates any provision of the constitution, the Supreme Court has power to declare such a law invalid or ultra virus. So the process of judicial scrutiny of legislative acts is called Judicial Review. 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 has acted as a brake to the legislative enthusiasm of Parliament ever since independence. With the intention of preserving the original ideals envisioned by the constitution-makers. To Abraham Lincoln, democracy meant a Government of the people, by the people and for the people. So in democratic nation whenever any law passed by parliament violates any provision of constitution or takes away any fundamental rights of the person, the Supreme Court has right and power to strike down that law or act. According to me, this jurisdiction of Supreme Court is essential for protection of basic features of the constitution.

Elements of Basic Structure (as per the Judges of Keshwanand Bharti Case)

The Supreme Court itself was called upon to rule on the scope of the Parliament's power to amend the Constitution, and it evolved the "╦ťBasic Structure' doctrine in the much-cited decision in Keshavananda Bharati v. State of Kerala. By a narrow majority of 7-6, it was ruled that Parliament's power of amendment was not absolute and it could not amend the "╦ťBasic structure' of the Constitution, which in the opinion of the judges consisted of elements such as democracy, rule of law, secularism, separation of powers and judicial review.

The Basic Structure Doctrine - that the limits are set by the basic structure of the constitution or the law itself any legislation contrary to the basic structure is no-law. Amendments after amendments have now come to amending the fundamental rights and perhaps taking them the very heart of our Constitution, away. The principle of Basic Structure which began with the Golak Nath case got propounded with Kesavananda Bharti v. State of Kerala. In this judgment, the Supreme Court held that while the Parliament is entitled to abridge any fundamental right or amend any provision of the constitution, in exercise of its amending power, it cannot alter or destroy the basic structure or framework of the Constitution. Then the journey of amendment qua the fundamental rights and basic structure travelled through many a judgment and has finally touched a pivotal pronouncement in IR Coelho (dead) by LRs v. State of Tamil Nadu (AIR 2007 SC 861). It has been said that this judgment de-mystified the doctrine of basic structure to a great extent by providing a strong linkage with fundamental rights. The judgment in IR Coelho put the basic doctrine on firmer footing. By reason of being a unanimous judgment of nine judges of the apex court, it has declared the law (Article 141: the law declared by the Supreme Court shall be binding on all courts within the territory of India). However, the unquestionability of the basic doctrine would draw flak in as much as it can be argued that the doctrine itself is conceptually unsound, for if the Parliament in its constituent capacity does not have plenary power, the power to amend the Constitution would be reduced to the status of the removal-of-difficulties clause. That apart, the doctrine has served well for our evolution as a democracy, however, we cannot bind the future eternally. As Justice Khanna said, "no generation had a monopoly of wisdom"┬?. Further, the question of how does something which emerges out of a judicial majority become part of the basic structure will hover around, whenever further discussions are brought to the table.

Basic Structure

i. Cannot be amended

The basic structure what the Supreme Court thinks that it is by not defining the Basic Structure the Supreme Court has kept its power open. The basic Structure is at the "╦ťHeart of the Constitutional Scheme. Parts of basic structure of the constitution.

1. Supremacy of the Constitution.

2. Sovereignty of the Country

3. The mandate to build a Welfare State

4. Secularism

5. Democratic form of Government

6. Parliamentary form of Government

7. Republican nature of Government

8. Fair and Free Elections

9. Judicial Review

10. Balance between the fundamental rights and the directive principles.

The above given list is only illustrative but not exhaustive. Part III of the constitution defines the fundamental rights of the people. This part III contains the articles from 12 to 32. The fundamental rights are modelled on Bills of rights of US constitution and the Fundamental rights are considered essential for the functioning of a modern democracy. Part III of the Constitution is called the "╦ťcornerstone' of Indian democracy. Fundamental rights are called "╦ťFundamental because they are considered to be essential for a individual to attain his fullest physical intellectual and spiritual structure.

(ii)-Cannot be destroyed

The amending power of the parliament is limited to the limit of not violating the basic structure of the Constitution. In so far as the will of the people is concerned that their fundamental rights conferred by the Constitution of India and must be safeguarded, protected and shall not be violated or infringed by any means.The people shall not be discriminated socially, economically and religiously. Their Human Rights must be Honoured and celebrated.

Nature of Fundamental rights:

Fundamental rights are rights enjoyed by the individuals. They are enforceable against the state (i.e., binding on the state) and are not enforceable against individuals except on two accounts

i. Right against exploitation.

ii. Right against untouchability.

Fundamental rights are regarded as the limitations upon the powers of the state. They aimed to prevent the state from becoming totalitarian. They are enforceable against the executive and legislature. They are called negative obligations of the state, because most of them are negatively worded and restrain the State from performing certain acts.

However fundamental rights are not unlimited rights but are restricted rights (Rights can be restricted under certain reasonable grounds)

a. In the interest of the Security of the Country

b. Maintenance of Public Order, Decency or Morality

c. Promotion of the well being of the Socially and economically backward classes or SCs and STs etc.,

d. Sovereignty and integrity of the country.

e. Friendly relations with foreign states.

The constitution authorizes the Parliament to impose new restrictions upon law. The restrictions imposed by the Parliament is subject to Judicial review. Two distinction between the Fundamental rights and the other legal rights. Fundamental rights are one set of rights. There are others as well:

  • Rights under Constitution, Eg.Art.326, 301, 300-A
  • Rights outside Constitution (Neither fundamental nor legal) i.e. Amended rights, Acts etc.,

In the case of fundamental rights if they are violated, the aggrieved individual has the right to approach the Supreme Court directly for enforcing his fundamental right. The time period within which the Supreme Court rules the judgment will be in short. If other legal rights are violated then the individual has the right to approach the High Court by filing a Writ Petition under Art.226 of the Constitution or by filing an Ordinary Suit in the Subordinate Courts. As adumbrated supra the basic structure of the fundamental rights conferred upon the people of constitution of India or right to equality before law, prohibition of Discrimination on grounds of religion, race, caste, sex or place of birth, equality of opportunity in matters of public employment, abolition of untouchability, abolition of titles.

Right to Freedom

1. Protection of Certain rights regarding freedom of speech etc.,

2. Protection in respect of conviction for offences.

3. Protection of life and personal liberty.

4. Protection against arrest and detention in certain cases

5. Prohibition of traffic in Human beings and forced labour

6. Prohibition of employment of children in factories etc.,

Right of Freedom of Religion

i. Freedom of conscience and free profession, practice and propagation of religion.

ii. Freedom to manage religious affairs.

iii. Freedom as to payment of taxes for promotion of any particular region.

iv. Freedom as to attendance at religious instruction or religious worship in certain educational institutions.

v. Protection of interest of minorities.

vi. Right of minorities to establish and administer educational institutions.

If any law is passed by the parliament against the fundamental rights, then the law is void abinitio i.e., the law becomes void before the Judicial review. The state shall not make any law that will abridge or affect any of the fundamental rights if such a law is made by the Government it becomes void and unconstitutional to the extent of its inconsistency.

Fundamental rights are unamendable and are given a ranscendental (Overloading).

In SANKARI PRASAD VS UNION OF INDIA 1951, 1st Amendment Act 1951 the Supreme Court as observed that "If fundamental rights are unamendable, it will lack dynamism and will lag behind the changes in the society.

In SAJJAN SINGH VS STATE OF RAJASTAN 1965 The Supreme Court as observed that "the fundamental rights are also subject to amendment by the Parliament and there by the Court maintained the dynamism."┬?

In GOLAKHNATH VS STATE OF RAJASTHAN 1965, The Supreme Court has overruled its earlier decision. It has observed that "the Fundamental rights has been given a transcendental position. No authority including the parliament can amend the fundamental Rights."┬?

Further the Supreme Court has held that, "the Parliament enjoys only one power, i.e. the ordinary legislative power because Article 368 gives only the procedure to amend and that it does not confer the amending power."┬?

Art.368 (3) was included in the constitution which says, nothing in Art.13 shall apply to an amendment made under Art.368. The 24th Amendment Act was challenged before the Supreme Court in KESAVANDA BHARATHI VS STATE OF KERALA 1973. The case was heard by a bench consisting of 13 judges, highest no. of judges deciding a case in the history of Supreme Court of India. The Supreme Court in that case has upheld the 24th Amendment Act as constitutionally valid. I.e., it over ruled its previous decision in the GOKULNATH CASE and further observed that Art.13(4) and At.368(3) are constitutionally valid and it further observed that the parliament enjoys two types of power and the parliament cannot change its ordinary legislative power by any law but can change its constituent legislative power. The amending power of the parliament is limited to the limit of not violating the basic structure of the Constitution. In so far as the will of the people is concerned that their fundamental rights conferred by the Constitution of India and must be safeguarded, protected and shall not be violated or infringed by any means. The people shall not be discriminated socially, economically and religiously. Their Human Rights must be Honoured and celebrated.

Published in The Law Weekly, 8.11.2008

Conclusion

The Supreme Court itself was called upon to rule on the scope of the Parliament's power to amend the Constitution, and it evolved the "╦ťBasic Structure' doctrine in the much-cited decision in Keshwanand Bharati v. State of Kerala. By a narrow majority of 7-6 it was ruled that Parliament's power of amendment was not absolute and it could not amend the "╦ťBasic structure' of the Constitution, which in the opinion of the judges consisted of elements such as democracy, rule of law, secularism, separation of powers and judicial review.

The Basic Structure Doctrine - that the limits are set by the basic structure of the constitution or the law itself: any legislation contrary to the basic structure is no-law. Ref: Kesavananda case. Basic Structure doctrine as a limitation-Kesavananda Bharati. Development of the Basic Structure Doctrine. Constituent power of the Supreme Court. Waman Rao, Minerava Mills, etc. Indira Gandhi Vs. Raj Naraya : Judicial Consensus on Basic Structure ├ů┬áLegislative and Judicial Attempts to Buy the Basic Structure Doctrine: Legitimation of the Basic Structure Doctrine. Special Bench to Reconsider the Basic Structure Issue. Forty-second constitutional Amendment. Forty-fourth constitutional Amendment. Minerva Mills and subsequent developments of the Basic Structure Doctrine. Responsibility of the Court: Activism Vs. Restaurant.

Amendments after amendments have now come to amending the fundamental rights and perhaps taking them the very heart of our Constitution, away. The principle of Basic Structure which began with the Golak Nath case got propounded with Kesavananda Bharti v. State of Kerala and Another (AIR 1973 SC 1461; (1973) 4 SCC 225). In this judgment, the Supreme Court held that while the Parliament is entitled to abridge any fundamental right or amend any provision of the constitution, in exercise of its amending power, it cannot alter or destroy the basic structure or framework of the Constitution. Then the journey of amendment qua the fundamental rights and basic structure travelled through many a judgment and has finally touched a pivotal pronouncement in IR Coelho (dead) by LRs v. State of Tamil Nadu (AIR 2007 SC 861). It has been said that this judgment de-mystified the doctrine of basic structure to a great extent by providing a strong linkage with fundamental rights. The judgment in IR Coelho put the basic doctrine on firmer footing. By reason of being a unanimous judgment of nine judges of the apex court, it has declared the law (Article 141: the law declared by the Supreme Court shall be binding on all courts within the territory of India). However, the unquestionability of the basic doctrine would draw flak in as much as it can be argued that the doctrine itself is conceptually unsound, for if the Parliament in its constituent capacity does not have plenary power, the power to amend the Constitution would be reduced to the status of the removal-of-difficulties clause. That apart, the doctrine has served well for our evolution as a democracy, however, we cannot bind the future eternally. As Justice Khanna said, "no generation had a monopoly of wisdom"┬?. Further, the question of how does something which emerges out of a judicial majority become part of the basic structure will hover around, whenever further discussions are brought to the table.