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BASIC STRUCTURE OF THE CONSTITUION
COMPILED BY
11-Apr-14
VIPUL GAUR LLB. 3RD YEAR
2019
BASIC STRUCTURE OF INDIAN CONSTITUION
LAW
Law is as defined the system of rules which a particular country or community
recognizes as regulating the actions of its members and which it may enforce by the
imposition of penalties.
Law is not static it keeps on changing with time, in order to deal with these changes
AMENDMENT to law becomes the basic ingredient for the purpose. Amendment as the
dictionary defines it as the modification of materials by the addition of supplemental
information; the deletion of unnecessary, undesirable, or outdated information; or the
correction of errors existing in the text1. Amendment is basically done to bring new terms
to the existing laws.
Law is nothing but the interpretation of statues. This interpretation is different for
different learned jurist which creates the difference in the judgement2.
The Constitution of a country represents the Grundnorm-the basic norm-comprising of
fundamental principles, laying down the foundation of a civil society. While on the face
of it, it appears that the Constitution of India 1950 is neither too flexible nor too rigid in
practice; it has been amended almost 98 times in 62 years. The flexibility of the Indian
Constitution has often been criticized as being the bane of our Constitutional system.
_____________________________
1) http://legal-dictionary.thefreedictionary.com/amendment
2) Kesavnanda Bharti v. state of kerela reported in AIR 1973 SC at page no. 225. This case was
decided by a bench of thirteen judges. It was till date the largest bench in INDIA. In the mentioned
case six judges had a similar decision the other six had a separate judgement and Justice
Khanna had an opinion different from all the other jurists, the case was decided with 7:6 majority.
It is also said that the whole of Indian constitution would have been different.
BRIEF HISTORY:-
A careful look at Indian history shows that there were many competing visions for the
future of India in the lead-up to independence. Subhash Chandra Bose, a leader in the
pre-independence Congress Party, favored a stronger, more authoritarian state and
modeled on the fascist governments of the 1930s and 1940s.3 On the other extreme,
Mahatma Gandhi advocated a more decentralized and self-sufficient society.4 Neither
Bose’s nor Gandhi’s vision would gain much traction during the Constitution’s drafting.
Instead, one of the most entrenched debates at the Constituent Assembly and one that
would provide the historical seeds of the basic structure doctrine was between the
similar, but competing ideologies of Jawaharlal Nehru and Sardar Vallabhbhai Patel.5
Nehru and Patel were the two most powerful political leaders of the Congress Party at
the end of British rule.6 Indeed, Nehru became the country’s first Prime Minister only
upon Gandhi’s request that Patel step aside (Patel had been supported by more
members of Congress to lead the party at independence).7 Patel was a proponent of
many of the principles of laissez-faire economics.8 Nehru, on the other hand, believed in
large-scale property redistribution and nationalization to correct past social injustices
and lay the groundwork for a prosperous economy.9 This position was popular amongst
the poverty-stricken electorate, and even today polls indicate that the overwhelming
majority of Indians believe that there should be a limit on possessing a certain amount
of land and property.
It is also said that Pt. Nehru was of the view that no compensation should be given on
land acquisition by government but Sardar Patel demanded full compensation. In the
final version of the Constitution an ambiguity was drawn between both the views. Patel’s
early death in 1950 ensured not only that Nehru would never again be seriously
challenged for the post of Prime Minister, but also that he could more easily push his
original vision of the right to property. When early judicial decisions signaled that the
courts would limit the government’s ability to expropriate property, Nehru’s government
acted swiftly. It accordingly to keep Pt. Nehru’s view at priority passed two amendments
which would give the ball in their court.
____________________________________________
3) Lloyd, I. R. & Susanne, H. R.: In Pursuit of Lakshmi, (University of Chicago Press, 1987) at 69. 4) ibid at 69–70. 5) ibid at 69.
6) ibid at 68–74. 7) ibid at 71–72. 8) ibid at 71.
9) ibid at 70–72;
In 1951, it passed the first amendment to the Constitution which created articles 31A
and 31B.10 These articles would provide the origin of the dispute that would ultimately
create the basic structure doctrine. Article 31A stated that any acquisition of property by
the state through law could not be called into question under the rights to property,
equality, freedom of speech, or freedom to practice one’s profession.11 Article 31B
created the Ninth Schedule, a list of laws inserted in the back of the Constitution.12 Laws
that were placed into this schedule through Constitutional amendment could not be
found invalid by the judiciary on the basis of any of the fundamental rights.13
Parliament had amended the Constitution to shield not only expropriation laws, but
potentially any law from fundamental rights review. With the very idea of meaningful
judicial review under attack, the Court’s potential responses were limited. It could
acquiesce to the amendment, admitting that it could be stripped of its power of judicial
review, and hope a later Parliament would remove the offending articles, or,
alternatively, it could search for a way to defend judicial review. Property owners had
challenged the amendments which placed law reforms in ninth schedule on the ground
it is violated of article 13(2).14
NECESSITY FOR AMENDMENTS
Provisions for amendment of the constitution is made with a view to overcome the
difficulties which may encounter in future in the working of the constitution. The time is
not static; it goes on changing .The social, economic and political conditions of the
people go on changing so the constitutional law of the country must also change in
order toward it to the changing needs, changing life of the people.
_________________________________
10) The Constitution of India 1950 at article 31A and article 31B
11) ibid
12) ibid
13) ibid
14) Article 13 (2)-: "The State shall not make any law which takes away or abribidges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be
void.
If no provisions were made for amendment of the constitution, the people would have
recourse to extra constitutional method like revolution to change the constitution.
The framers of the Indian constitution were anxious to have a document which could
grow with a growing nation, adapt itself to the changing circumstances of a growing
people. The Constitution has to be changed at every interval of time. Nobody can say
that this is the finality. A constitution which is static is a constitution which ultimately
becomes a big hurdle in the path of the progress of the nation.15
POWER TO AMEND THE CONSTITUTION
Article 368 was earlier referred to as the PROCEDURE FOR THE AMENDMENT
OFTHE CONSTITUTION. The power to amend the constitution was given to the Parliament which could change or modify the constitution as per its discretion.
The Twenty fourth amendment16 to the constitution gave article 368 a new dimension and extra powers were given to the Parliament for the amendment of the
constitution. The following changes were done to article 368:-
1) Title was changed to Power to amend the constitution and the procedure thereof.
2) Clause (1) gave the constituent power to the Parliament to amend the constitution by way of addition, variance or repeal any provision of the
constitution.17
3) Clause (2) made it obligatory for the President to give his consent to a bill if it is passed by both the houses.18
_________________________________
15) A R Antulay
16) Article 368 “POWER TO AMEND THE CONSTITUTION AND THE PROCEDURE THEREOF”.
The amendment came in 1971 and it was in effect from 5/11/1971.
17) Article 368 (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 Constituition in
accordance with the procedure laid down in this article
18) Article 368 (2) An amendment to this Constitution may be initiated only by the introduction of a
Bill for the purpose in either House by a majority of the total membership of that house and by
majority of not less than two thirds of the members of that House present and voting, [it shall be
presented to the President who shall give his assent to the Bill and thereupon] 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 241or
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,
(Continued)
The FOURTY SECOND AMENDMENT 19 further amended article 368
expressing the power of Parliament to amend the constitution as unlimited
and absolute. Also the amendments made by the Parliament were excluded
from any interference from any court in INDIA. Thus by this amendment the
Parliament in order to make it more powerful and absolute tried to save its
amendments from judicial review. This amendment was liable to be
challenged as article 3220 of the Constitution give Supreme Court and article
22621 of the Constitution gives High Court the power to enforce the rights and
Parliament by the means of the above mentioned amendment tried to take
this power from the Supreme Court and the High Court and thus tried to
hamper the basic structure of the Indian Constitution.
PROCEDURE FOR AMENDMENT OF THE CONSTITUTION
Broadly speaking there are two modes of amending the Constitution 22
A) Formal method
B) Informal method
Under the informal method, the letter of the law does not change but its
meaning and importance change.This method includes amendment by
1. Changing a well established convention
2. Amendment by change in the interpretation of the provision of the Constitution
_________________________________
(Continued)
The amendment shall also require to be ratified by the Legislature 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.
19) The forty second amendment came into force in 1976 and came into effect from 3-1-
1977, 1-2-1977 & 1-4-1977)
20) Article 32 provides a right to move to Supreme Court for the enforcement of right also
clause (2) of the article gives Supreme Court the power to issue writs including habeas
corpus, mandamus, prohibition, quo warranto and certiorari.
21) Article 226:- Notwithstanding anything in Article 32 every High Court shall have powers,
throughout the territories in relation to which it exercise jurisdiction, to issue to any person or
authority, including in appropriate cases, any Government, within those territories directions,
orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo
warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by
Part III and for any other purpose.
22) “Constitutional law of India” Prof. Narender Kumar Eighth Edition at page 1004.
The law interpreted by the Supreme Court is considered to be a law of land23,
it is also considered to be binding throughout the country in all courts
subordinate to the Supreme Court, but it is also true that a judgement or a
decree passed by the Apex Court is not binding on itself24. So accordingly the
Court can review the judgements given by its jurists and if it finds an error in
its previous decree or judgement it can at any time overrule its earlier
decision. Since is law is just the interpretation of the Constitution, therefore
the constitution remains static but its operation and applications keep on
changing with giving new meaning to the Constitutional provisions.
Under the FORMAL METHOD OF AMENDMENT the written
provisions of the Constitution are amended by the way of either
addition or repeal.
PROCEDURE FOR AMENDMENT IN THE INDIAN
CONSTITUTION
A bill to amend the Constitution may be introduced in either house of
Parliament. It must be passed by each House by a majority of the total
membership og the House and by a majority of not less than 2/3 of the
members present and voting. When a Bill is passed by both the Houses it
shall be presented to the President for his assent who shall give his assent to
bill and thereupon the Constitution shall stand amended25. But such a bill
which seeks to amend the Provisions mentioned in Article 368 requires in
addition to the special majority, ratification by the ½ of the states.
I. AMENDMENT BY SIMPLE MAJORITY: For those amendments that can be effected by simple majority requires
the passing of an ordinary law. The amendments contemplated under
article 4, article 169 and article 239-A and para 7 and 21 of the Fifth and
Sixth Schedules respectively 239-A fall within this class26. ________________________________
23) Article 141:- law declared by the Supreme Court shall be binding on all courts within the
territory of India
24) Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845
25) Twenty Fourth amendment to constitution of India which came in the year 1971
26) Art 4:- Creation of new states or reconstruction of existing states; Art 169(3): - Creation or
abolition of Upper Chambers in the States; and Art. 239-A :- Constitution of Centrally
administered areas.
2) AMENDMENT BY SPECIAL MAJORITY
The amendments which can be effected by a special majority as laid down in
Article 368 (2). All constitutional amendments other than those referred to
above come within this category and must be effected by a majority of the
total membership of each House of Parliament as well as by a majority of not
less than two third of members present and voting.
3) AMENDMENTS BY SPECIAL MAJORITY AND
RACTIFICATION BY STATES
Article which require, in addition to the special majority, ratification by not less
than ½ of the State Legislatures . These are the fundamental matters where
States have important power under the Constitution and any unilateral
amendment by the Parliament may vitally affect the fundamental basis of the
system built up by the constitution. This class of Articles consists of
amendments which seek to make any change in the provisions mentioned in
Article 368.
The following provisions require in addition to special majority, ratification by
the States.
I. The election and manner of election of the President27
II. The extent of the executive power of the Union28
III. The extent of the executive power of the State29
IV. Provisions dealing with the Supreme court30
V. Provisions dealing with the High Courts in the states31
VI. High Courts of Union Territories32
VII. Distribution of legislative power between the Union and the State33
VIII. The representation of States in the Parliament34
______________________
27) Article 54 and article 55.
28) Art. 73
29) Article 162
30) Chap. IV of Part V
31) Chap V of Part VI
32) Art. 241
33) Chap. I of Part XI
34) Fourth Schedule
IX. Seventh Schedule to the Constitution35
X. Article 368 i.e. the power and procedure to amend the Constitution36.
In Kihota Hollohon v. Zachilhu, 37 Para 7 of the Tenth Schedule to the
Constitution inserted by the Fifty second amendment38 to the
Constitution, excluding the jurisdiction of all Courts including the
Supreme Court under Article 136 and the High Courts under article 226
and 227, on the question of disqualification on the ground of defection,
was struck down as unconstitutional since it was not enacted
complying with the requirement of Proviso to Clause (2) of Article 368
which required ratification of the amendment bill by at least half of the
State Legislatures.
In Re, Berurabi union (I)39 it was held that the power to amend the
Constitution conferred on Parliament includes the power to amend article I
and would include the power to cede national territory in favour of a
foreign state.
An amendment may specify the date of its commencement or it may leave
it to the President to bring it into effect from such date as he may notify as
per his will40.
In U.S.A. amendment of the Constitution may be proposed only by
Congress, with the approval of two – thirds of majority of both the Houses
or a convention summoned on an application from two – thirds of the
members of both Houses. The proposed amendment must subsequently
be ratified by at least three- fourths of the total number of the State
Legislatures or by Conventions in three-fourths of the total number of the
States.
_________________________
35) List I, II and III, Schedule VII.
36) Article 368 provides the Power to the Parliament to amend the constitution and its
procedure thereof.
37) AIR 1993 SC 412
38) The fifty second amendment came in the year 1985 and came into effect from 1-3-
1985
39) AIR 1960 SC 845: (1960) 3 SCR 250
40) A.K. Roy v. Union of India, (1982) 1 SCC 271: AIR 1982 SC 710se House
In Switzerland, no amendment to the Constitution can be effected without
resorting to a detailed referendum.
In Australia, the Constitution can be altered only by an Act passed by an
absolute majority in both Houses, or in case House refers to pass it, by an Act
passed by an absolute majority in either House, for the second time, after an
interval of three months. But in either case, the Act must be subjected to a
referendum in each state. If in a majority of the States, a majority of the voters
approve the amendment and if a majority of all the voters also approves, it
shall be presented to the Governor-General for the Royal assent.
The above mentioned points make it clear that the procedure for the
amendment of Constitution is much more difficult in America, Australia and
Switzerland than in India. One can, therefore, safely say that the Indian
Federation will not suffer from the faults of rigidity of Legalism. It is a
distinguishing feature that it is a flexible federation.41
The framers of the Indian Constitution were keen to avoid excessive rigidity.
They were anxious to have a document which could grow with the growing
nation, adapt itself to the changing need and circumstances of a growing
people. The nature of the ‘amending process’ envisaged by the framers of our
Constitution can be best understood by referring the following observation of
late Prime Minister Pt. Nehru, “While we want this Constitution to be solid and
permanent as we can make it, there is no permanence in the Constitution.
There should be certain flexibility. If you make anything rigid and permanent
you stop the nation from growing, of a living, organic people…………………
In any event, we could make this Constitution so rigid that it cannot be
adapted to changing conditions. When the word is in a period of transition
what we may do today may not be wholly applicable tomorrow.”
It is evident from the fact that the framers of Indian Constitution were aware
that if the Constitution would be so flexible, it would then only be a card in the
hands of the ruling party, which could be able to mold it in any way they like,
and also if it would be too rigid then it would be able to cope with the growing
needs of the society. Hence the makers of the Constitution adopted a middle
path. Therefore the Indian Constitution is neither too rigid to accept necessary
changes nor it is too flexible for undesirable changes.
_______________________________
41) Dr. Ambedkar, - CAD Vol. IX, p. 1569
Willis in the book on Constitutional law of United States says, “If no provision
for amendment were provided, there would be constant danger of revolution.
If the method for amendment were too easy, there would be the danger of too
hastily action all the time. In either case there would be danger of the
overthrow of our political institutions. Hence the purpose for providing for the
amendment of the Constitution is to make it possible gradually to change the
Constitution in an orderly fashion as the changes in social condition make it
necessary to change the fundamental law to correspond which such social
changes.” 42
AMENDMENTS TO INDIAN CONSTITUTION
The President of the Constitution Assembly was Dr. Rajendra Prasad. The
session of the Constituent Assembly was held from 14 to 30 August 1947.
The Advisory committee recommended a FEDERAL CONSTITUTION with a
strong centre. After going through various recommendations of the Advisory
Committee and several resolutions of the Assembly and a few Supplementary
Reports of the Advisory Committee a resolution was moved on 29 th August,
1947 for the appointment of Drafting Committee. The drafting committee
prepared a Draft Constitution. The general debate on the Draft Constitution
began on 4th November and lasted upto 9th November, 1948. The clause by
clause consideration of the Draft Constitution commenced on 15 th November,
1948. One hundred and fourteen days were spent on the consideration of the
Draft Constitution. The Drafting Committee, since its election on 29th August,
1947, sat for one hundred and forty- one days. Not only the members of the
Drafting Committee but also other members of the Assembly were vigilant
and scrutinized the Draft in all its details. Not only each article in the Draft ,
but practically every sentence and every word was carefully considered by
the Assembly. The first Draft Constitution as prepared by the Drafting
Committee to the Constituent Assembly contained 315 articles and 8
Schedules. At the end of the Clause – by - clause consideration, it contained
368 articles. In its final form, it contained 395 articles and 8 schedules. On
26th November, 1949 the Constituent Assembly adapted, enacted and gave to
India the Constitution of India.
Till present date there have been as many as ninety eight amendments
_________________________
42) The statement was quoted in the case of Kesavnanda Bharti v. State of Kerala, AIR
1973, SC 1461.
done to the Constitution. The very first amendment was done in 1951 which
came into effect on 18-6-1951 and the last ninety eighth amendment was
done in 2012.
Among the amendments done to the Constitution forty second amendment43
is considered to be mini Constitution, also the forty second amendment added
the words SOCIALIST, SECLUAR to the Preamble.44
The forty second amendment was basically added to remove the difficulties
created by the Supreme Court in its decision in the case of Kesavnanda
Bharti v. State of Kerala45. The amendment added clause (4) and clause (5)
to article 368 of the Indian Constitution46. This amendment was challenged in
the Court and it was held that the Parliament cannot have unlimited amending
powers.
BASIC STRUCTURE
Basic structure is the systematic rules, principals underlying and connecting
provisions of the Constitution. They give coherence and durability to
Constitution. These principals are part of constitutional law even if not
expressly stated. This doctrine has been initially been developed from the
German Constitution.47
The "Basic Structure" doctrine is the judge-made doctrine whereby
certain features of the Constitution of India are beyond the limit of the powers
of amendment of the Parliament of India. Different jurists have a different
______________________________ 43) Forty second amendment act came in 1976 which came into effect from 3-1-1977, 1-2-
1997 & 1-4-1977.
44) Before the forty second amendment act 1976 socialist and secular were not present in
the preamble but after the amendment these were added and the new words were read as
WE THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a [
SOVERIEGN SOCIALIST SECLULAR DEMOCRATIC REPUBLIC]…………………ENACT
AND GIVE TO OURSELVES THIS CONSTITUTION.
45) AIR 1973 SC 1461
46) Article 368 (4), “ No Constitutional amendment ( including the provisions of Part III) or
purporting to have been made under article 368 whether before or after the commencement
of 42nd amendment act 1976 shall be called in question in any court on any ground.
Article 368 (5) declares that there shall be no limitations whatever on the constituent power of
Parliament to amend by way of addition, variation, or repeal the provisions of Constitution
under this Article.
47) Constitutional Law of India, Dr. J.N. Pandey, edition 2013 at page 814.
Opinion as to what constitutes the basic structure. If according to Justice Sikri
Basic Structure is the basic foundation, i.e. , dignity and freedom of human
being , according to justice Khanna Democratic government cannot be
transformed into dictatorship, if it is done it would abrogate the basic structure
of the Constitution.
So basically basic structure does not have a precise definition and may be
some words which could define the basic structure. A Jurist while concluding
on what would be termed as a basic structure would have to understand deep
into what the PREAMBLE to the Constitution speaks or as to what the
amendment seeks to achieve.
In I.R. Coelho v. State of kerala48 Supreme Court held that there are certain
parts of the Constitution including Article 1549, article 2150 r/w article 1451,
article 1952 constitute the core values, which if abrogated would change the
Basic Structure of the Indian Constitution.
In M. Nagraj v. Union of India53 a 5 Judge bench of the Supreme Court
enumerated certain essentials of the basic structure of the Constitution, but
they also made it clear that they were only illustrative and not exhaustive.
Also the basic structure are the principles underlying and connecting the
Constitution which give coherence and durability to the constitution.
AMENDMENT TO FUNDAMENTAL RIGHTS
In Ramesh Thaper v. State of Madras, 54 it was held by the Supreme Court
that, “ freedom of speech and expression” under article 19 (1)(a) was so
comprehensive as to render a citizen culpable even if he advocated murder
and other crime of violence.
After the decision in the above case the First Amendment, 1951 Article 19
Clause (2) was added with new grounds of friendly relations with foreign
_____________________
48) AIR 2007 SC 8617
49) Article 15:- Prohibition of discrimination on grounds of religion, race, caste, sex or place
of birth.
50) Article 21:- Protection of life and personal liberty.
51) Article 14:- Equality before law
52) Article 19:- Protection of certain rights regarding freedom of speech, etc.
53) AIR 2007 SC 71
54) AIR 1950 SC 124
States, public order and incitement to an offence which empowered the state
to impose reasonable restrictions on these grounds on the exercise of the
freedom of speech and expression.
In Kameshwar Singh v. State of Bihar55 the BIHAR LAND REFORMS ACT,
1950 was challenged before the Patna high Court. In 1950, some state
Governments initiated proposals for incorporation of laws relating to agrarian
reforms. These laws contained provisions for the abolishment of zamindari
system, as well, for the compulsory acquisition of property for public purpose.
One such measure was the Bihar land reforms act 1950, enacted by the Bihar
Legislature. The Act, provided for the acquisition by the state of the estates
and tenures of three leading zamindars of the Bihar province.
The Patna High Court struck down the Bihar act as unconstitutional and void
as it contravened the provisions contained in article 14 of the Indian
Constitution.
After the decision of the Patna High court in Kameshwar Singh’s case it came
in to minds of the Central Government that such judicial pronouncements
would be a threat towards the complete zamindari abolition programme. In
order to overcome such a situation the Parliament came up with the 1st
amendment act 1951 by which a new article 31A55 was added to the
Constitution. Also the 1st amendment added article 31 B56 along with the ninth
Schedule to the Constitution.57 Article 31 B immunizes the laws included in
the Ninth Schedule, from any criticism for their inconsistency with any of the
Fundamental Rights.
In State of Madras v. Champakam Dorairajan58 the Supreme Court has laid
down that reservation of seats in public institutions for backward classes and
the Schedule castes and the Schedule tribes offended the fundamental rights
contained in the Article 15 (1) and 29 (2).
To nullify the effect of this decision clause (4) was added to Article 15 which
________________________
55) Article 31 A of the Constitution provides, “Saving of laws providing for the acquisition of
estates.
56) Article 31B of the Constitution provides, “Validation of certain Acts and Provisions”
57) Constitutional law of India by Prof Narender Kumar edition – 2011 at page 1009
58) AIR 1920 SC 226
permits the Government to make special provisions for the advancement of
socially and educationally backward classes of citizens or for the Scheduled
Castes and the Scheduled Tribes.
The 1st amendment act 1951 to the Indian Constitution was challenged before
the Supreme Court under article 32 in the case of SHANKARI PRASAD v.
UNION OF INDIA59. In this case the validity of the Constitution (1st
amendment) Act 1951, which inserted inter alia, Articles 31- A and Article 31
– B of the Constitution was challenged. The amendment was challenged on
the ground that it purported to take away or abridge the rights conferred by
Part III which fell within the prohibition of Article 13 (2) and hence was void. It
was argued that the “State” in Article 12 included Parliament and the word
“law” in Article13 (2), therefore, must include constitutional amendment. The
Supreme, however, rejected the above argument and held that the power to
amend the constitution including the fundamental rights is contained in Article
368, and the word “law” in Article 13 (8) includes only an ordinary law made in
exercise of the Legislative Powers and does not include constitutional
amendment which is made in exercise of constituent power. Therefore a
constitutional amendment will be valid even if it abridges or takes any of the
fundamental rights. The apex Court also distinguished between the ordinary
legislative power and not amendments to the Constitution made in the
exercise of Constituent power.
In State of West Bengal v. Bella Banerjee,60 the West Bengal Legislature
enacted the West Bengal Land Development and Planning Act, 1948y , which
provides for the acquisition of land for the settlement of the refugees from
East Pakistan ( Now Bangladesh). The law further provided that the
compensation to the owners of land so acquired was not to exceed the
market value of the property as on 31st December, 1946. The above
mentioned was according challenged in the court of law. The Supreme Court
The above law to be unconstitutional on the ground that the compensation to
be paid to the owner of the property acquired, bore no relation to the market
value of the property on the date of its acquisition. The court observed that
compensation meant just equivalent of what the owner was deprived of and
that the adequacy of such compensation was justiciable issue to be
adjudicated by the Court.
_______________________
59) AIR 1951 SC 458
60) AIR 1954 SC 170
The fourth amendment to the Constitution was passed in 195561, which inter
alia amended Article 31 (2) to make the question of adequacy of
compensation as non justiciable.
Before the seventeenth amendment62 to the constitution article 31-A provided
that a law in respect to the acquisition by the state of any estate would not be
deemed to be void on the ground that it was inconsistent with the
Fundamental rights contained in Article 14, article 19 or article 31
respectively. The expression estate has been defined differently by different
State’s Statues causing difficulties in regard to transfer of land from one state
to another under the Scheme of Re-organisation of States.
In order to curb the difficulties in defining the word estate differently the
Parliament came up with the Constitution seventeen amendment act which
modified the definition of the term estate in Article 31-A.63 The seventeenth
amendment act also added some of the acts enacted by States in the Ninth
Schedule.64
__________________
61) The fourth amendment to the Constitution came in 1955 and it was accordingly brought
into effect from 27-4-1955.
62) The seventeenth amendment act came in 1963 and it was brought with effect from 5-10-
1963.
63) The term estate has been defined under article 31-A as, “The expression ‘estate’ shall, in
relation to any local area, have the same meaning as that expression or its local equivalent
has in the existing law relating to land tenures in force in that area and shall also include-----
i) Any jagir, inam or muafi or other similar grant and in the states of [Tamil Nadu] and
Kerala, any janman right;
ii) Any land held under ryotwari settlement
iii) And land held or let for purposes of agriculture or for purposes ancillary thereto,
including waste land, forest land, land for pasture or sites of buildings and other
structures occupied by cultivators of land, agricultural labourers and village artisans;
The Expression ‘rights’, in relation to an estate, shall include any rights vesting in a
proprietor, sub proprietor, under proprietor, tenure holder, raiyat, under raiyat or
other intermediary and any rights or privileges in respect of land revenue.
64) The Seventeenth Amendment 1963 added as many as forty four acts enacted by the
State Legislatures.
The validity of the Constitution Seventeenth Amendment Act was
challenged in Sajjan Singh v. State Of Rajasthan .65 The challenge
was on the grounds of procedural non-compliance and not against the
power of the parliament to amend the Fundamental rights. It was
contented that since the Seventeenth amendment (which added forty
four acts to the ninth schedule) was likely to affect the proviso of the
High Court under article 226, it had attracted the Proviso to Article
368, and as impugned Amendment had not been ratified by half of the
State Legislatures, it was invalid. Rejecting the contention the
Supreme Court held that the impugned Amendment did not attract the
provision of Cl. (b) of the Proviso to Article 368. The Court observed
that the impugned Act did not purport to change the provisions of
Article 226 and that it could not be said even to have that effect even
directly or in an appreciable measure. The Supreme Court also
approved the majority judgment in Shankari Prasad v. Union Of
India66 and held that the words “amendment of this Constitution”
means amendment of all the provisions of the Constitution. Chief
justice Gajendragadjar said that if the Constitution – makers intended
to exclude the fundamental rights from the scope of the amending
power they would have made a clear provision in that behalf.
THE GOLAK NATH’S CASE
In 1967 came the most celebrated judicial pronouncement in GOLAK
NATH v. STATE OF PUNJAB.67 In Golak nath case three writ
petitions were involved. One was filed by the son, daughter, and
granddaughters of Golak Nath. In this petition, the inclusion of the
Punjab Security of Land tenures Act, 1953 in the Ninth Schedule was
challenged on the ground that the Seventeenth Amendment by which
it was so added as well as the First and the Fourth Amendments
abridging the fundamental rights were unconstitutional. In the other
two petitions, inclusion of Mysore Land Reforms Act (10 of 1962 as
amended by Act 14 of 1965) had been attacked on the same grounds.
______________________
65) AIR 1965 SC 845
66) AIR 1951 SC 455 at p. 458
67) AIR 1967 SC 1643
Most of the contentions raised on behalf of the petitioners and
respondents summarized in the judgment had already been raised
before the Supreme Court in Shankari Prasad v. Union of India and
Sajjan Singh v. State of Rajasthan cases.
The case was heard by an eleven – Judge bench of the Supreme
Court which by an majority of 6:5 held that the fundamental rights
were outside the amendatory process if the amendment took away or
abridged any of the rights and that the Shankari Prasad case and
Sajjan Singh case conceded the power of amendment over Part III on
an erroneous view of Article 13(2) and Article 368 and to that extent
they were not good law. The judgment was, however, given a
prospective effect and therefore it did not validate any of the
amendments disputed in the case. The judgment proceeded on the
following grounds:-
a) The Constitution incorporates an implied limitation that the
Fundamental rights are out of the reach of the Parliament. It
declares certain rights as fundamental rights; makes all the laws
infringing the said rights, void; preserves only the laws of social
control infringing the said rights and expressly confers power on
Parliament and the President to amend or suspend them in
specified circumstances. The Constitution has given by its scheme
a place of permanence to the fundamental freedoms. In giving to
themselves the Constitution, the people have reserved the
fundamental freedoms to themselves. Article 13 merely
incorporates that reservation. That article is, however, not the
source of the protection of fundamental rights but the expression
of that reservation. The importance attached to the fundamental
freedoms is so transcendental that a Bill enacted by a unanimous
vote of all members of both the House is ineffective to derogate
from its guaranteed exercise.
b) Article 368 does not contain the power to amend but merely
provides the procedure for amending the Constitution. The power
to amend the Constitution is a legislative process and is include
within the plenary legislative power of Parliament.
c) The power to amend the Constitution should be found in the
plenary legislative power of Parliament. As it is clear from Article
245, article 246 and article 248 and entry 97 of List I of the
Seventh Schedule, the residuary power of legislation is vested in
Parliament. The residuary power of Parliament certainly takes in
the power to amend the constitution. Article 4 an Article 169 and
para 7 of the fifth schedule and para 21 of the 6th schedule have
expressly conferred such power. There is, therefore, no inherent
inconsistency between the legislative process and amending
process. Whether in the field of field of constitutional law or
statutory law amendment can be brought only by law. Article 245
and Article 392 do not indicate the contrary intention. As regards
Article 392 apart from limited scope of the Article , which is
intended only for the purpose of removing difficulties and for
bringing about a smooth transition , and order made by the
president could not attract Article 368 as amendment
contemplated by that provision can be initiated only by the
introduction of a billing parliament .
d) Amendments to the constitution either under Article 368 or under
other Articles, are made only by parliament by following the
Legislative process adopted by it in making other laws. An
Amendment of the constitution can be nothing but law. If
amendment is intended to be something other than law, the
constitutional insistences on the legislative processes are
necessary. The word law in article 13 (2) includes constitutional
amendments and, therefore, the fundamental rights are outside
the power of amendment given to the Parliament under Article
368, if such an amendment seeks to abridge or take away any of
the Fundamental rights.
e) The contention that the power to amend is a sovereign power, that
the said power is superior to the legislative power, that it does not
permit any implied limitations and that amendments made in
exercise of that power involves political questions which are
outside the scope of judicial review are outside the scope of
judicial review cannot be accepted. One need not cavil at the
description of an amending power as sovereign power, for it is
sovereign only within the scope of power conferred by a particular
Constitution. When the Articles are conflicting the court has the
jurisdiction to harmonize them. There is nothing in the nature of
the amending power which enables Parliament to override all the
express or implied limitations on that power.
f) If at all the provisions guaranteeing the fundamental rights must be
amended so as to curtail those rights, this could be done only by a
Constituent Assembly which might be convoked Parliament by
enacting a law for that purpose in the exercise of its residuary
power.
In Golak Nath v. State of Punjab , the Supreme Court by majority
of 6 to 5 prospectively overruled its earlier decision in Shankari
Parasad’s and Sajjan Singh cases held that parliament no power
from the date of this decision to amend part III of the constitution
so as to take away or abridge the fundamental rights. Chief Justice
Subha Rao said that the fundamental rights are assigned
transcendental place under our Constitution and, therefore they
are kept beyond the reach of Parliament. The chief justice applied
the doctrine of prospective overruling and held that this decision
will have only prospective operation and therefore the 1st 4th and
17th amendment will continue to be valid. It means that all cases
decided before the Golak Nath’s case would remain valid.
The minority, however, held that the word ‘law’ in Article 13(2)
referred only ordinary law and not a Constitutional amendment and
hence Shankari Prasad’s case and Sajjan Singh’s case were
rightly decided. According to them, Article 368 deals with not only
the procedure of amending the Constitution but also contains the
power to amend the Constitution.
The majority judgment was accepted.
DOCTRINE OF PROSPECTIVE OVERRULING
This doctrine of prospective ruling was evolved by the Supreme
Court68. The doctrine was applied by the Supreme Court in order to
validate the 1ST AMENDMENT, THE FOURTH AMENDMENT
AND THE SEVENTEENTH AMENDMENT of the Constitution.
___________________________
68) the Doctrine of Prospective Ruling was evolved and applied by the Supreme
Court in the case of Golak Nath v. State of Punjab AIR 1967 SC 1643.
The court also observed that the Doctrine had been accepted in
America in all branches of law including constitutional law. The
court further said that it was indisputable that the Court could
overrule its earlier decision. Also, there would not be any valid
reasons as to why the Court should not restrict its ruling to the
future.
The doctrine is modern in operation and is suitable for the fast
growing needs of the changing society. The constitution of India
does not expressly or impliedly speak against the doctrine.
However the doctrine can be invoked only in matters arising under
the Constitution and that it can be applied by only the highest court
in the country i.e., the Supreme Court. It is because of the reason
that only Supreme Court has the Constitutional jurisdiction to
declare law binding on all Courts in the territory of India69.
In Baburam v. C.C. Jacob70 the Supreme Court explained that “the
prospective declaration of law is a device Innovated by the Apex
Court to avoid reopening of settled disputes and to prevent
multiplicity of proceedings”. “It is also a Device” the court said, “to
avoid uncertainty and avoidable litigations.” “By the very object of
prospective declarations of law, it is deemed that all actions taken
contrary to the declaration of law, prior to its date of declaration
are validated” and this was done in the larger public interest, as
the court observed.
In Sarwan kumar v. Madan lal Aggarwal71 the Supreme Court held
that under the doctrine of “prospective overruling” the law declared
by the Court applies to the cases arising in future only and its
application to the cases which have attained finality is saved
because the repeal would otherwise work hardship to those who
had trusted in its existence.
__________________
69) Article 141 of the Indian Constitution declares that the law given by the
Supreme Court would be binding on all courts within the territory of India.
70) AIR 1999 SC 1845
71) AIR 2003 SC 1475
An order of doctrine of Prospective Overruling cannot be declared
void or contrary to law. It has been said by the application of the
doctrine no invalid law has been declared to be valid. All that
happens is that the declaration of invalidity of the legislation is
directed to take effect from a future date.
The TWENTY FOURTH AMENDMENT ACT, 1971
The Parliament in order to remove the difficulties created by the
judgment in Golak nath v. State of Punjab72 came up with the
twenty fourth amendment act.73 The amendment has made the
following changes:
(1) It has added a new clause (4)74 to Article 13
(2) It substituted a new marginal75 heading to Article 368 in place
of the old heading.76
(3) It inserted a new sub- section (1) in Article 368.77
(4) It substituted the words, “ it shall be presented to the President
who shall give his assent to the Bill and thereupon” for the
words, “ it shall be presented to the President for his assent
and upon his assent being given to the bill”. Thus by amending
these lines, it made an obligation on the President to give his
assent for the Bill changing the Constitution.
_______________________
72) AIR 1971 SC 1643
73) The Twenty Fourth amendment was introduced in 1971 which came into
effect from 5-11-1971
74) Article 13(4) provides:- nothing in this article shall apply to any amendment
of this Constitution made under Article 368.
75) Old heading to article 368 read as, “Procedure for the amendment to the
Constitution”
76) The heading after the commencement of the twenty fourth amendment act
read as:-Power of the Parliament to amend the Constitution and the Procedure
thereof
77) Article 368(1) provides ‘notwithstanding anything in this Constitution,
Parliament, may, in the 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.
It has added a new clause (3) to Article 368.78
Thus the 24th amendment not only resorted the amending power
of the Parliament but it also conferred an unlimited power on
Parliament to amend the Constitution by the addition of the words,
“ to amend by way of addition or variation or repeal any provision
of this Constitution in accordance with the procedure laid down in
this Article.”
THE TWENTY FIFTH AMENDMENT ACT 1971
Post Golak nath’s case judgment, some important
pronouncements were made by the Supreme Court in regard to
the right to property contained in Article 31, as it stood then. The
Apex Court in some cases79 applied the doctrine of “just and
equivalent” and observed that the adequacy of compensation and
the relevancy of the principles laid down for determining
compensation, to be paid to a person for debt thriving him of his
property, were justiciable and that the Court could go into the
question that the amount paid was just equivalent of what he was
deprived of.
The above decisions were considered to be a barrier in the
government’s programme introducing socio reforms and would
have stood in a way of implementing the Directive Principles of
State Policy. To curb these difficulties, the Constitutional twenty
fifth amendment act80 was introduced.
The 25th amendment substituted the word “amount” for
“compensation” in Article 31 (2) and it was expressly declared that
“adequacy of the amount” to be given for depriving a person of his
property, would not be called in question in any court. Further, a
_____________________
78) Article 368(3) provided that, “nothing in article 13 shall apply to any
amendment made under this article.”
79) R.C. cooper v. Union of India, AIR 1970 SC 564 ; Madhav Rao Scindia v.
Union of India, AIR 1971 SC 530.
80) The twenty fifth amendment act was introduced in 1971 and was brought
with effect from 20-4-1972.
new Article 31-C81 was inserted in the Constitution to provide
supremacy to the Directive Principles contained in Article 39 (b) &
(c) over Fundamental Rights contained in Article 14, article 19 and
article 31.
THE KESAVNANDA BHARTI CASE: THE
EMERGENCE OF BASIC STRUCTURE
DOCTRINE
The Kesavanada Bharti’s case is also referred to as the
FUNDAMENTAL RIGHTS CASE. This case records till date the
largest bench 82 in the history of Indian judiciary. This case was the
landmark decision of the Supreme Court that outlined the basic
structure doctrine.83 In a sharply divided verdict, by a margin of 7-
6, the court held that while the Parliament has "wide" powers, it did
not have the power to destroy or emasculate the basic elements or
fundamental features of the constitution.
The validity of the twenty fourth and the twenty fifth amendment
was challenged in kesavnanda Bharti Sripadagalvaru v. State of
Kerala84, wherein a writ petition was filed initially to challenge the
validity of the Kerala Land Reforms Act 1963 as amended in 1969.
But as the Act was amended in 1971 during the pendency of the
case and was placed in Ninth Schedule by the twenty ninth
amendment85 the petitioner was allowed to challenge the validity of
the twenty fourth86, twenty fifth87 and twenty ninth amendments to
the Indian Constitution. This petition was heard by a bench of
thirteen judges of the Supreme Court. It was urged by the
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81) Article 31-C provides, “Saving of laws giving effect to certain directive
principle”
82) A bench of thirteen judges including the then Chief Justice of India decided
the case of Kesavnanda bharti v. state of Kerala.
83) http://en.wikipedia.org/wiki/Kesavananda_Bharati_v._State_of_Kerala
84) AIR 1973 SC 1461
85) The twenty ninth amendment act was introduced in 1972 and it came with
effect from 9-6-1972.
86) The Constitution (Twenty Fourth amendment) act 1971 (w.e.f. 5-11-1971)
87) The Constitution (Twenty Fifth amendment) act 1971 (w.e.f. 20-4-1972)
petitioner that if the power to amendment is to be constructed as
empowering Parliament to exercise a full Constituent power of the
people and authorizing it to destroy or abrogate the essential
features or basic elements and fundamental provisions of the
Constitution, such a construction must be held to be
unconstitutional. This is so because
i) Having only such constituent power as is conferred on it by
the Constitution which is given by the people onto
themselves , Parliament cannot enlarge its own power so as
to abrogate the limitations in terms on which the power to
amend was conferred
ii) Being a functionary created under the constitution ,
Parliament can not abrogate to itself the power of
amendment so as to alter or destroy any of the essential
features of the constitution
iii) Purporting to empower itself t take away or abridge all or
any of the fundamental rights , Parliament does not become
competent to destroy the basic human rights and the
fundamental freedoms which were reserved by the people
for themselves when they gave themselves the constitution
iv) Initially having more power to alter or destroy any of the
essential features of the constitution, and also recognizing
implied and inherent limitations on the amending power ,
Parliament has no power to alter or destroy all or any one of
the fundamental rights , or , in other words , Parliament
cannot abrogte the limits of its constituent power by
repealing those limitations and there by purporting to what
is forbidden by those limitations.
All the judges were of the view that the twenty fourth amendment
is valid , and that by virtue of Article 368, as Amended by the
twenty fourth Amendment , Parliament has power to amend any
or all the provisions of the constitutions including those related to
fundamental rights.
However, seven of the Judges Sikri , C.J. , Shelat , Hegde ,
Grover , Jagmohan Reddy, Khanna , Mukherjea , JJ. held that the
power of amendment under Article 368 is subject to certain implied
and inherent limitations , and that in the exercise of amending
power Parliament cannot change the basic structure or framework
of the constitution . Six of the above mentioned judges (excluding
Khanna ) thought that the fundamental rights enshrined in Part iii
relate to the basic structure or framework of the constitution and ,
therefore, are not amendable.
Six of the judges including Ray, Palekar, Mathew, Beg, Dwivedi
and Chandrachaud, JJ., were, by and large, not prepared to
accept any limitation on the plenary power of Parliament to amend
the Constitution. Khanna J., however held that right to property
does not form the part of the basic structure or framework of the
Constitution and titled the balance in forming the majority with Ray,
Palekar, Mathew, Beg, Dwivedi and Chandrachaud, JJ., in its
conclusions.
The basic philosophy underlying the doctrine of non amendability
of the basic features of the Constitution, evolved by the majority in Kesavananda has been beautifully explained by Hedge and Mukherjee, JJ., as follows:
Our Constitution is not a mere political document. It is essentially a
social document. It is based on a social philosophy and every
social philosophy like every religion has two main features,
namely, basic and circumstantial. The former remains constant but
the latter is subject to change. The core of a religion always
remains constant but the practices associated with it may change.
Likewise, a Constitution like ours contains certain features which
are so essential that they cannot be changed or destroyed.
According to Sikri, C.J. the basic structure of the Constitution
consists of the following features:
1) Supremacy of the Constitution
2) Republican and democratic forms of the Government
3) Secular character of the Constitution
4) Separation of powers between the Legislature, the Executive
and the Judiciary
5) Federal character of the Constitution.
According to Shelat and Grover, JJ., the following are the
illustrations of the basic structure of the Indian Constitution, i.e.,
1) Supremacy of the Constitution
2) Republican and democratic form of Government and
sovereignty of the Government
3) Secular and federal character of the Constitution
4) Demarcation of power between the Legislature, the Executive
and the Judiciary
5) Dignity of the individual secured by various freedoms and basic
rights in Part III and the mandate to build a welfare State
contained by Part V
6) Unity and integrity of the nation.
According to Hegde and Mukherjee, JJ., the following are the
examples of the basic structure:
1) Sovereignty of India
2) The democratic character of our policy
3) The Unity of the country
4) Essential features of individual freedoms secured to the
citizens
5) Mandate to build a welfare State.
According to Mr. Jagmohan Ready, J., the basic structure is
1) A sovereign Democratic Republic
2) Parliamentary democracy
However it was also held by the Jurists that the above
mentioned list in only illustrative and not exhaustive.
On the other hand according to justice Ray all the provisions of the
Constitution were essential and no distinction could be made
between essential and non essential features from the point of
view of amendment unless the makers of the Constitution made it
expressly clear in the Constitution itself. In his view an amendment
of the Constitution could make Fundamental, and even radical,
changes to the Constitution and the power of amendment was
unlimited so long as the Constitution existed as an amended
Constitution, that is, an organic instrument which provides for the
making, interpretation and implementation of law. It means that
short of withdrawing a system according to which a state or a
nation is governed, an amendment of the Constitution includes
making fundamental changes to the Constitution.
According to Palekar,J., all the provisions in a Constitution must be
conceded the same character and it was not possible to say that
one was more important or the other is less important. He stated
clearly that so far as the wording of Article 368 were concerned,
there was nothing in it which limited the power of amendment
expressly or by necessary implication, and it was not the function
of the court to invent limitations where there were none.
Khanna, J., concurred with the majority decision but delivered a
separate judgement. He said:
“ The amendment of the Constitution necessarily contemplates
that the Constitution has not to be abrogated. (Indeed this much
has been conceded by the Attorney- General). The word
‘amendment’ postulates that old Constitution survives without loss
of its identity despite the and continues even though it has been
subjected to alterations. As a result of amendment the old
Constitution cannot be destroyed, and done away with; it is
retained even though in its amended form. The words ‘amendment
to the Constitution’ with all their wide sweep and amplitude cannot
have the effect of destroying or abrogating the basic structure or
framework of the Constitution. It would not be competent under the
grab of amendment, for instance, to change the democratic
Government into dictatorship of hereditary monarch nor it would be
permissible to abolish the Lok Sabha or Rajya Sabha. The secular
character of the State according to which the State be
discriminated against any citizen on the ground of religion only
cannot otherwise be done away with. Provision regarding the
amendment of the Constitution does not furnish pretence for
subverting the structure of the Constitution nor can Article 368 be
so constructed as to embody the death wish of the Constitution or
provide sanction for what may perhaps be called its lawful hara-
kiri. Such subversions or destruction cannot be described to be
amendment of Constitution as contemplated by Article 368”.
His lordship further held that the power of amendment under
article 368 does not include the power to abrogate the Constitution
nor does it include the power to alter the basic structure or
framework of the Constitution. Subject to the retention of the basic
structure or framework of the Constitution the power of
amendment is plenary and includes within itself the power to
amend various articles of the Constitution, including those relating
to fundamental rights as well as those which may be said to relate
to essential feature. No part of a fundamental right can claim
immunity from a mandatory process by being described as the
essence or core of that right. The power of amendment would also
include within itself the power to add, alter or repeal the various
articles. There are no implied inherent limitations on the power of
amendment apart from those which inhere and are implicit in the
word ‘amendment’. The said power can also not restricted by
reference to ‘natural or human rights’. Apart from the part of
preamble which relates to the basic structure or frame work of the
Constitution, the preamble does not restrict the power of
amendment.
APPLICATION OF DOCTRINE OF BASIC
STRUCTURE
In Indira Nehru Gandhi v. Raj Narain88 popularly known as the
ELECTION CASE, the Supreme Court applied the doctrine of
basic structure. In this case, the appellant, Mrs. Indira Nehru
Gandhi, the then Prime minister, filed an appeal before the
Supreme Court against the judgment of the Allahabad High Court.
The high court had invalidated the election of the appellant to the
Lok Sabha, on the ground of having committed corrupt practice,
under Representation of People, 1951. During the pendency of the
appeal before the Supreme Court, the Parliament enacted the
Constitution 39th amendment act89 which inter alia inserted a new
Article 329A in the Constitution, to nullify the effect of the High
Court judgment and also withdrawing the jurisdiction of all courts,
including the Supreme Court, over the disputes relating to
elections involving the speaker and the Prime Minister, including
the present appeal pending before the Supreme Court. Cause (4)
of new Article 329 A, which directly concerned this appeal stated
that no law made prior to the commencement of 39th amendment
____________________
88) AIR 1975 SC 2299
89) the thirty ninth amendment was introduced in 1975 and was brought into
effect from 10-8-1975
In so far as it related to the election petitions, apply or would be
deemed to have applied to the election of Prime minister to either
House of the Parliament. It further provided that such election
would not be deemed to be void or ever to have become void and
that notwithstanding any decision of any court before 39th
amendment, declaring such election to be void, such election
would continue to be valid.
The Supreme Court unanimously struck down Clause (4) of Article
329-A. The court thus got an occasion to elaborate the meaning of
the expression “basic structure” of the Constitution. The majority of
the Supreme Court, declared the following features as constituting
to the basic structure of the Indian Constitution
1) Judicial review
2) Free and fair election
3) Rule of law
4) Right to Equality
FORTY SECOND AMENDMENT
THE Government could not reconcile to any limitation,
whatsoever, be read to the constituent power of the Parliament. It
held that the impediments in the growth of the Constitution must
be removed, for the Constitution, to be living, must be growing.
With these considerations90 the Parliament enacted the
Constitutional (forty-second amendment act) 1976.91 This
amendment, inter alia, made the following to changes---
a) It inserted a new clause (4)92 and clause (5)93 in Article 368 to
______________________
90) Objects and reasons, THE CONSTITUTION (42ND AMENDMENT) ACT
1976
91) The forty second amendment was introduced in 1976 and was brought
in effect from 3-1-1977, 1-2-1977 & 1-4-1977
92) Article 368 (4), “ No Constitutional amendment ( including the provisions
of Part III) or purporting to have been made under article 368 whether before or after the
commencement of 42nd amendment act 1976 shall be called in question in any court on any
ground.
(Continued).
the effect that an amendment of the Constitution under article 368
shall not be called in question in any court on any ground and that
there shall be no limitation, whatever, on the constituent power of
Parliament.
b) It amended Article 31 (C) to provide precedence to all Directives
over Fundamental Rights
In Minerva Mills Ltd. v. Union of India94 the above amendments
were challenged. In this case Minerva Mills Ltd. was nationalized
and taken over by Central Government under the Silk Textile
Undertaking (Nationalization) Act 1974 which was added to the 9th
Schedule by the Constitutional (39th amendment act) 1975. With
the result, the petitioner, challenged the constitutionality of
Clauses (4) and (5) of Article 368, along with Section 55 of the
42nd amendment.
The Supreme Court unanimously held that Clauses (4) and (5) of
Article 368 inserted by Section 55 of the 42nd amendment act were
unconstitutional, as beyond the amending power of the Parliament,
as they destroyed the basic structure of the Indian Constitution.
The apex Court also held the following are the basic features of
the Constitution
a) Limited power of Parliament to amend the Constitution
b) Harmony and balance between fundamental rights and
Directive Principles
c) Fundamental rights in certain cases
d) Power of judicial review.
__________________
Continued
93) Article 368 (5) declares that there shall be no limitations whatever on the
constituent power of Parliament to amend by way of addition, variation, or
repeal the provisions of Constitution under this Article
94) AIR 1980 SC 1789
In Waman Rao v. Union of india95 the Supreme Court held that all
amendments to the Constitution which were made before April 24,
1973 (i.e., the date on which the judgment of kesavnanda bharti
was delivered) including those by which the Ninth Schedule to the
Constitution was amended from time to time were valid and
constitutional. But the amendments to the Constitution made on or
after that date by which the Ninth Schedule was amended were
left open to challenge on the ground that they were beyond the
constituent power of Parliament because they damaged the basic
structure to the Constitution.
In S.P. Sampat Kumar v. Union of India96 the constitutional validity
of Art. 323-A and the provisions of Administrative Tribunal Act,
1985 was challenged on the ground that the act by excluding the
jurisdiction of High Court under article 226 and article 227 in
service matters had destroyed the power of judicial review which is
the basic structure of the Constitution. The Supreme Court upheld
the validity of Article 323-A and the act as necessary changes
suggested by the Court were incorporated in the Administrative
tribunal act. It held that though the Act has excluded the judicial
review of High Courts in service matters under article 226 and
article 227 but it has not excluded judicial review under Article 32
and 136, the Act is valid. The amendment does not affect the basic
structure of the Constitution as it has vested the power of judicial
review in an alternative institutional mechanism.
In a landmark judgment in L. Chandra Kumar v. Union of India97, a
seven member Constitution Bench of the Supreme Court has
unanimously while reconsidering the Sampath kumar’s case, has
struck down clause 2(d) of Articles 323A and clause 3 (d) of Article
323-B which provides for the exclusion of the jurisdiction of the
High Court under article 226 and article 227 and Supreme Court
under Article 32 of the Constitution as unconstitutional and invalid
as they damage the power of judicial review which is the basic
feature of the Indian Constitution. The Court held that power of
___________________
95) AIR 1981 SC 271
96) AIR 1987 SC 386
97) AIR 1997 SC 1125
Judicial review over legislative actions vested in High Court under
article 226 and Supreme Court under article 32 of the Constitution
is an integral and essential part of the Constitution and it formed
the basic structure of the Constitution.
In I.R. Coelho v. State of Tamil Nadu98 headed by the then Chief
Justice Y.K. Sabharwal (comprising Ashok Bhan, Arijit Pasayat,
B.P. Singh, S.H. Kapadia C.P. Thakkar, P.K. Balsubramanyan,
Altman Kabil and D.K. Jain, JJ.,) held that any law placed in the
Ninth Schedule after April 24,197499 will be open to challenge. The
court said that even though an act is put in the Ninth Schedule by
a constitutional amendment its provisions would be open to
challenge on the ground that they destroy or damage the basic
feature, if the fundamental rights are taken away or abrogated
pertaining to the basic feature of the Constitution. The ninth
Schedule was introduced to the Constitution through Article 31(b)
by the First Constitutional amendment 1951. The object of the
Ninth Schedule was to save the Land reform Laws enacted by the
various State Governments from being challenged in the Court.
Later on, it became an omnibus and every kind of laws whether it
related to elections, mines and minerals, industrial relations,
requisition of property, monopolies, coal or copper
nationalizations, general insurance, sick industries companies,
Kerala chilies Act, Tamil Nadu reservation of 69% and so on were
inserted in it. No principle underlies this section. In the instant
case, the politicians had challenged the validity of the various
Central and State laws put in the Ninth Schedule including the
Tamil Nadu reservation act. The Court said that the validity of the
Ninth Schedule law has been upheld by the Apex Court and would
not be open to challenge again, nut if a law is held to be violative
of fundamental rights incorporated in the ninth Schedule after the
date of the of the judgment of Kesavnanda Bharti’s case, such a
violation shall be open to challenge on the ground that it destroys
or damages the basic structure of the Indian Constitution.
_________________
98) AIR 2007 SC 8617
99) The date when Kesavnanda Bharti v. Union of India was decided.
The FOLLOWING FEATURES HAVE SO FAR,
BEEN DECLARED TO CONSTITUTE THE
BASIC STRUCTURE OF THE CONSTITUTION
SO AS TO BE BEYOND THE AMENDING
POWER OF PARLIAMENT UNDER ARTICLE
368
1) Supremacy of the Constitution100
2) Republican and democratic form of government101
3) Secular character of the Constitution/ state102
4) Federal character of the Consitution103
5) Sovereignty of India104
6) Judicial review105
7) Free and fair election106
8) Jurisdiction of High Court under Article 226 and Supreme court
under Article 32107
9) Rule of law108
10) Right to equality109
11) Democracy 110
12) The harmony and balance between Fundamental Rights and
Directive Principles of state Policy 111
13) Limited amending power of Parliament112
__________________
100) Kesavnanda Bharti v. Union of India AIR 1973 SC 1461
101) ibid, Indra Nehru Gandhi v. Raj Narain AIR 1975 SC 2299
102) I.R. Coelho v. State of Tamil Nadu AIR 2001 SC 861
103) Kuldip Nayar v. Union of India AIR 2006 SC 3127
104) ibid
105) L. Chandra Kumar v. Union of India AIR 1997 SC 1125
106) Supra at 101
107) supra at 105
108) supra at 102
109) supra at 101
110) P.U.C.L. v. Union of India AIR 2003 SC 2363
111) Minerva mills ltd. v. Union of India AIR 1980 SC 1789
112) ibid
14) Separation of power between executive legislature and
judiciary113
15) Independence of judiciary114
16) Parliamentary democracy115
17) Multi party democracy116
CRITICISM OF DOCTRINE OF BASIC STRUCTURE
Doctrine of basic structure has been vehemently criticized. It
has been said that the court has not precisely defined as to
what are the essential features of the basic structure and if this
doctrine is accepted every amendment is likely to be
challenged on the ground that it effects some or other essential
features of the basic structure. In other words, it was urged ,
that the amending power of the parliament can not be
subjected to this vague uncertain doctrine.
It is, however, submitted that the criticism of the doctrine of
basic structure can not be justified on the ground that it lays
down a vague and uncertain test. The basic structure of the
constitution is not a vague concept . The fact that a complete
list of essential elements constituting the basic structure cannot
be enumerated is no ground for denying that these do not exist.
There are many concepts of law which cannot still be defined
precisely, but they do exists and play vey important part in our
law .
______________________ 113) I.R. Coelho v. State of Tamil Nadu AIR 2001 SC 861
114) State of Bihar v. Bal mukund Shah AIR 2000 SC 1296
115) Kuldip nayar v. Union of India AIR 2006 SC 3127
116) ibid
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