Introduction
“A hundred years scarce serve to form a state; an hour may lay it in the dust.”
Byron
The Indian constitution is regarded as the people of India’s “General Will.” It is not only the fundamental law of the land, but also the living organic by which all other laws are created in accordance with the needs of the nation. A nation’s life is dynamic, living, and organic, and its political, social, and economic conditions are constantly changing. As a result, a Constitution drafted in one era and less than one set of circumstances may be found inadequate in another era and under different circumstances. As a result, it becomes necessary to have machinery or a process by which the constitution can be amended as needed to meet the nation’s current needs. A constitutional battle has been fought in this regard since the beginning of the constitution, both in the courts and within the legislature. Despite the fact that the constitution expressly grants the parliament amending powers, it is the Supreme Court that will ultimately interpret the scope of such power and spell out any limitations, if any, on such amending power. This battle between the legislature and the judiciary gave birth to one of the most important doctrines, the doctrine of Basic Structure, which limits parliament’s amending power. This doctrine was established in the well-known case of Kashvananda Bharti vs. State of Kerala[1], also known as the Fundamental Rights case, in which the court held that article 368 of the Indian constitution did not allow parliament to change the ‘Basic Structure or Framework.’ The basic structure doctrine is a judicial creation that states that certain aspects of India’s constitution are beyond the scope of parliament’s amending powers.
Basic Structure: The Concept
A static constitution becomes a significant impediment to the nation’s progress, because time is not static it changes over time, so do the political, economic, and social conditions of the people as a result, the provision of amendment to the Constitution is made in order to overcome the difficulties that “we the people” may face in the future in the functioning of the Constitution. What sense of national integrity and honour the Constitution makers had 65 years ago, the Parliament today is making every effort to keep itself out of the purview of the judiciary, which serves as the Constitution’s protector This doctrine of basic structure, as developed in the Keshavananda Bharti aims to resolve a legal conundrum that arises in written constitutions as a result of the interaction between the provisions of the Constitution that guarantee fundamental rights and those that allow Parliament to amend the Constitution.
The Judicial Journey of Basic Structure
The power of Parliament to amend fundamental rights was challenged in 1951. Following independence, several states passed land agrarian reform laws with the goal of reforming land ownership and tenancy. Landowners who were harmed by such laws filed a lawsuit, and the courts ruled that the laws were unconstitutional. As a result of the court’s decisions, Parliament added these laws to the ninth schedule of the constitution, making them immune to judicial review through the first and fourth constitutional amendments.
The validity of the Constitution (first Amendment) Act, 1951, which curtailed the right to property guaranteed by Article 31, was challenged in Sankari Prasad Deo vs. Union of India.[2] The argument against the First Amendment’s validity was Article 13 which prohibits the enactment of a law infringing or abrogating the Fundamental Rights, that the term “law” in Article 13 encompasses any law, including a law amending the Constitution, and that the validity of such a law could be judged and scrutinized in light of the Fundamental Rights that it could not infringe. The Supreme Court upheld the First Amendment’s validity by applying a literal interpretation to the Constitution. The Court dismissed the argument and narrowed the scope of article 13 by ruling that. In the absence of any clear and express limitation to the contrary, the Court held that Parliament could amend any provision of the constitution, including fundamental rights, by following the “procedure” set out in Art.368.
The validity of the Constitution Seventeenth Amendment Act, 1964, was called into question in the case of Sajjan Singh v. State of Rajasthan[3]. The challenged amendment had yet another negative impact on property rights. The Supreme Court again dismissed the argument. The majority determined that the Amendment’s “pith and substance” was limited to amending the Fundamental Right in order to assist state legislatures in carrying out the agrarian reform policy. According to the court, the constituent power conferred on parliament by article 368 included the power to revoke fundamental rights under Part III of the constitution.
The question of whether any of the Fundamental Rights could be abridged or taken away by Parliament in exercising its power under article 368 was raised once more in Golak Nath vs. State of Punjab[4]. The constitutional validity of the Constitution’s 1st Amendment Act of 1951, 4th Amendment Act of 1955, and 17th Amendment Act of 1964 were once again vigorously challenged. The decision was reached by eleven judges. The majority now holds (overturning earlier decisions in the cases of Shankari Prasad and Sajjan Singh) that the Fundamental Rights are not amendable through the constitutional amending procedure set out in Article 368, while the minority maintains the Court’s line of reasoning in the two earlier cases. It was pointed out that article 368 only outlined the procedure and did not grant parliament the authority to amend the constitution. Article 368’s marginal heading was mentioned by Chief Justice Subha Roa. Such a power was not expressly conferred by any article or legislative entry in the Constitution, the power to amend the Constitution was found in the residuary legislative power of parliament contained in Art.248. As a result, a constitutional amendment would be considered a “law” under article 13 of the Constitution. The court held that the parliament’s amending and legislative powers were essentially the same, and that any constitutional amendment must be deemed law and fall under the purview of Article 13(2) of the constitution. The bill’s goal was to restore parliament’s original position, which was that it could amend any provision of the constitution by following Article 368’s procedure. As a result, parliament passed the Constitution (24th Amendment) Act in 1971, neutralizing Golak Nath’s Case effect and paving the way for the Keshavananda Bharati case in Indian constitutional history. Parliament amended Article 13 and Article 368 of the Constitution (24th Amendment) Act to assert the legislature’s amending power and to resolve the Golak Nath case. Article 31C was added by the 25th Amendment. The Kerala Land Reforms (Amendment) Acts, 1969 and 1971, were subsequently added to the Constitution’s Ninth Schedule by the Constitution (29th Amendment) Act, making them immune from attack on the basis of fundamental rights violations.
In the case of Keshavananda Bharati vs. State of Kerala, also known as the Fundamental Rights case, these amendments were made by parliament after the Golak Nath case was challenged. In this case, the petitioner challenged the constitutionality of the Kerala Land Reforms Act, 1963, which was passed by the state government. The issues were whether the legislature has unlimited amendment power under Article 368. Is it possible to change fundamental aspects of the constitution? What are the contents of basic features, or what makes up basic features of a constitution? Overturning its earlier decision in the Golak Naths case, a majority of seven judges upheld the constitutional 24th, 25th, and 29th Amendments validity. According to the court, the power to amend under Article 368 is unrestricted. Parliament has the power to amend any part of the constitution, including the preamble, but this power must not be used to change the constitution’s fundamental features. To put it another way, parliament cannot change the fundamental features of the constitution by amending it. In fact, the court did not define the constitution’s basic structure in absolute and unambiguous terms.
Indira Nehru Gandhi v. Raj Narain[5], commonly known as Election Case, was explained by Sikri, C.J., by giving examples of basic structure and observation. Four of the five judges upheld the 39th Amendment’s validity, but only after striking down the section that sought to limit the judiciary’s ability to adjudicate in pending cases. Article 329 A was unanimously repealed by the Supreme Court.
a) The 42nd amendment added clauses (4) and (5) to article 368, stating that an amendment to the constitution made pursuant to article 368 shall not be called into question in any court on any ground and that the legislature’s constituent power shall be unrestricted in any way.
b) Article 31C was changed to give all directive principles precedence over the Fundamental Rights.
These clauses were challenged in the case of Minerva Mills V. Union of India[6], in which the Supreme Court declared them unconstitutional because they obliterated the constitution’s essential features. The court unanimously held that judicial review is a fundamental feature of the constitution that cannot be removed additionally, the changes to article 31 C were overturned, restoring it to its original state as enacted by the 25th amendment in 1971. Fundamental rights occupy a unique place in the lives of civilized society, according to Chandrachudu C.J., who spoke for the majority, and have been variously described as transcendental, inalienable, etc. in Supreme Court judgments, they form the arc of Indian Constitution. The basic structure of the constitution requires the harmony and balance between parts III and IV. Parliament cannot expand its limited amending power into absolute power by exercising it as a limited amending power is one of the foundational features of the constitution, the limitation on that power cannot be eliminated by transforming limited power into unlimited power.
Contents of Basic Structure of Constitution
The courts have not defined the term or expression “basic structure,” but have instead provided basic elements that make up basic structure. In other words, the contents of the basic structure of the constitution have been provided, or what is included in the basic structure of the constitution has been recognized by the judiciary in various cases up to this point. As a result, the Supreme Court has yet to clearly define what basic structure entails. Various elements have been recognized as the basic structure of the constitution since the Keshvananda Bharti case until now. According to Chief Justice Sikri, the constitution’s secular character, separation of powers, and federal character Justice Shelat and Grover added, the mandate to build a welfare state as provided in the directive principles of state policy, as well as the nation’s unity and integrity. The elements of basic structure were found in the preamble.The basic structure elements were observed and identified as the parliament’s limited power to amend the constitution, the harmony and balance between fundamental rights and directive principles, and the power of judicial review. The doctrine of equality under article 14 was recognized as a fundamental element of the constitution. The constitution’s basic structure is defined by its inability to be changed.
The Test of Basic Structure
The doctrine of basic structure is ambiguous in the sense that the judiciary has not provided a clear cut list of which provisions of the Constitution constitute the basic structure, instead leaving it up to the judiciary to decide on a case-by-case basis. Though in the Minerva Mills case, the first attempt was made to lay down the test of Basic structure. A precise formulation of the basic features would be a task of greatest difficulty and would add to the uncertainty of interpreting the scope of Art 368[7], according to H. M. Seervai. In M. Nagraj v. Union of India[8], the Supreme Court attempted to develop a general test for determining whether a constitutional amendment violates the Constitution’s basic structure. The Court held that in order to apply the principle of basic structure, twin tests, namely the “width test”[9] and the “test of identity,” must be met. The Court cited the Keshavanada case, which clarified that an amendment that adversely affects or destroys the wider principles of the Constitution, such as democracy, secularism, equality, or republicanism, or one that changes the Constitution’s identity, is unconstitutional.[10]
In the case of I. R. Coelho[11], it was held that when amending fundamental rights, the test for change in identity must be a change in the essence of the right, not a change in the specific article. The Court went on to say that if the “triangle of Article 21 read with Article 14 and Article 19” is to be abolished, both the “essence of right test” and the “rights test” must be applied. The Court also pointed out that the rights test and the essence of right tests are both part of the doctrine of basic structure’s application. Finally, the “impact test” can be used to see if a law damages the fundamental structure. If the impact of such a law affects any of the rights guaranteed under Part III of the Constitution, the answer to this test will be affirmative, indicating that the law is in violation of the fundamental structure.
Conclusion
The theory of basic structure is firmly accepted and recognized by the judiciary. The contents of the basic structure or the list of the elements of the basic structure of the constitution, however, have not been closed by the courts. It is undeniable that the doctrine of basic structure has benefited the country greatly. One certainty arising from the squabble between parliament and the judiciary is that all laws and constitutional amendments are subject to judicial review, and laws that threaten the fundamental structure are declared unconstitutional and thus ultra vires. The Supreme Court is the final interpreter of the constitution, and Parliament’s amending power is limited. In essence, basic structure theory is a restriction on Parliament’s ability to amend the Constitution. For basic features of the Constitution, there is no hard and fast rule. Different judges hold different views on the theory of basis structure, but they all agree that parliament has no power to overturn the constitution’s “Basic Structure” or framework. There should be no difficulty determining the basic structure theory if the historical background, the preamble, the entire scheme of the constitution, and the relevant provisions thereof, including article 368, are kept in mind.
References:
[1] Kashvananda Bharti vs. State of Kerala A.I.R 1973 SC
[2] Sankari Prasad Deo vs. Union of India (1952) S.C.R
[3] Sajjan Singh v. State of Rajasthan AIR 1965 SC 845
[4] Golak Nath vs. State of Punjab AIR 1967 SC
[5] Indira Nehru Gandhi v. Raj Narain[5] AIR 1975 SC 2299
[6] Minerva Mills V. Union of India AIR 1980 SC 1789,
[7] Seervai, H.M.- Constitutional law of India, Edition 2001, PP. 3161-3162
[8]Seervai. In M. Nagraj v. Union of India (2006) 8 SCC 212
[9] A.I.R. 2007 S.C. 861
[10] ibid. para 102.
[11] I. R. Coelho A.I.R. 2007 S.C. 861
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