Pramod Singh

Indian Polity – Basic Concepts

The Indian Constitution is unique in its contents and spirit. Though borrowed from almost every constitution of the world, the constitution of India has several salient features that distinguish it from the constitutions of other countries.

It should be noted at the outset that a number of original features of the Constitution (as adopted in 1949) have undergone a substantial change, on account of several amendments, particularly 7th, 42nd,44th, 73rd and 74th Amendments. In fact, the 42nd Amendment Act (1976) is known as ‘Mini- Constitution’ due to the important and large number of changes made by it in various parts of the Constitution. However, in the Kesavananda Bharati case1 (1973), the Supreme Court ruled that the constituent power of Parliament under Article 368 does not enable it to alter the ‘basic structure’ of the Constitution.

SALIENT FEATURES OF THE CONSTITUTIONThe salient features of the Constitution, as it stands today, are as follows:

Lengthiest Written Constitution Drawn From Various Sources Blend of Rigidity and Flexibility Federal System with Unitary Bias Parliamentary Form of Government Synthesis of Parliamentary Sovereignty and Judicial Supremacy Integrated and Independent Judiciary Fundamental Rights Directive Principles of State Policy Fundamental Duties A Secular State Universal Adult Franchise Single Citizenship Independent Bodies Emergency Provisions Three-tier Government

Food for thought

What is an unwritten constitution?

Name some countries with unwritten constitution.

Basic Structure of the Constitution

What do you mean by basic structure?

What is the necessity to amend the constitution?

Times & Life of Nation - Not Static Constitution - Living Organism Constitution- Drafted in one era, often inadequate for another Change in political, social and economic conditions of a nation Right of every generation to mould its future

The basic structure doctrine is an Indian judicial principle that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the Parliament Key among these "basic features", are the fundamental rights granted to individuals bythe constitution. The doctrine thus forms the basis of a limited power of the Supreme Court to review and strike down constitutional amendments enacted by the Parliament which conflict with or seek to alter this "basic structure" of the Constitution. The basic structure doctrine applies only to constitutional amendments. The basic features of the Constitution have not been explicitly defined by the Judiciary, and the claim of any particular feature of the Constitution to be a "basic" feature is determined by the Court in each case that comes before it. The basic structure doctrine does not apply to ordinary Acts of Parliament, which must itself be in conformity with the Constitution.

The question whether Fundamental Rights can be amended by the Parliament under Article 368 came for consideration of the Supreme Court within a year of the Constitution coming into force. In the Shankari Prasad case1 (1951), the constitutional validity of the First Amendment Act (1951),which curtailed the right to property, was challenged. The Supreme Court ruled that the power of the Parliament to amend the Constitution under Article 368 also includes the power to amend Fundamental Rights. The word ‘law’ in Article 13 includes only ordinary laws and not the constitutional amendment acts (constituent laws). Therefore, the Parliament can abridge or take away any of the Fundamental Rights by enacting a constitutional amendment act and such a law will not be void under Article 13.

But in the Golak Nath case2 (1967), the Supreme Court reversed its earlier stand. In that case, the constitutional validity of the Seventeenth Amendment Act (1964), which inserted certain state acts in the Ninth Schedule, was challenged. The Supreme Court ruled that the Fundamental Rights are given a ‘transcendental and immutable’ position and hence, the Parliament cannot abridge or take away any of these rights. A constitutional amendment act is also a law within the meaning of Article 13 and hence, would be void for violating any of the Fundamental Rights.

The Parliament reacted to the Supreme Court’s judgement in the Golak Nath case (1967) by enacting the 24th Amendment Act (1971). This Act amended Articles 13 and 368. It declared that the Parliament has the power to abridge or take away any of the Fundamental Rights under Article368 and such an act will not be a law under the meaning of Article 13. However, in the

Kesavananda Bharati case3 (1973), the Supreme Court overruled its judgement in the Golak Nathcase (1967). It upheld the validity of the 24th Amendment Act (1971) and stated that Parliament is empowered to abridge or take away any of the Fundamental Rights. At the same time, it laid downa new doctrine of the ‘basic structure’ (or ‘basic features’) of the Constitution. It ruled that the constituent power of Parliament under Article 368 does not enable it to alter the ‘basic structure’ ofthe Constitution. This means that the Parliament cannot abridge or take away a Fundamental Right that forms a part of the ‘basic structure’ of the Constitution.

Again, the Parliament reacted to this judicially innovated doctrine of ‘basic structure’ by enacting the 42nd Amendment Act (1976). This Act amended Article 368 and declared that there is no limitation on the constituent power of Parliament and no amendment can be questioned in any court on any ground including that of the contravention of any of the Fundamental Rights. However, the Supreme Court in the Minerva Mills case4 (1980) invalidated this provision as it excluded judicial review which is a ‘basic feature’ of the Constitution. Applying the doctrine of ‘basic structure’ with respect to Article 368, the court held that:

“Since the Constitution had conferred a limited amending power on the Parliament, the Parliamentcannot under the exercise of that limited power enlarge that very power into an absolute power.Indeed, a limited amending power is one of the basic features of the Constitution and, therefore, the limitations on that power cannot be destroyed. In other words, Parliament cannot, under article368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic features. The done of a limited power cannot by the exercise of that power convert the limited power into an unlimited one”.

Again in the Waman Rao case5 (1981), the Supreme Court adhered to the doctrine of the ‘basicstructure’ and further clarified that it would apply to constitutional amendments enacted after April24, 1973 (i.e., the date of the judgement in the Kesavananda Bharati case).

ELEMENTS OF THE BASIC STRUCTURE

The present position is that the Parliament under Article 368 can amend any part of the Constitution including the Fundamental Rights but without affecting the ‘basic structure’ of the Constitution. However, the Supreme Court is yet to define or clarify as to what constitutes the ‘basic structure’ of the Constitution. From the various judgements, the following have emerged as ‘basic features’ of the Constitution or elements / components / ingredients of the ‘basic structure’ of the constitution:

Supremacy of the Constitution Sovereign, democratic and republican nature of the Indian polity Secular character of the Constitution Separation of powers between the legislature, the executive and the judiciary Federal character of the Constitution Unity and integrity of the nation Welfare state (socio-economic justice) Judicial review Freedom and dignity of the individual Parliamentary system

Rule of law Harmony and balance between Fundamental Rights and Directive Principles Principle of equality

Shankari Prasad vs. UoI Case (1951) Challenged validity of 1st Amendment Act(1951) which inserted Art 31-A, 31-B and 9th Schedule. Supreme Court held that

power to amend constitution including FRs is contained in Art 368, and Article 13 (2)includes ordinary law and not constitutional amendment

↓↓

Golaknath Case (1967) SC questioned the amending power of Parliament to theconstitution. It held the amendment to the constitution invalid. (CJI-Justice Subba

Rao) ↓↓ 24th Amendment 1971 by Parliament Added word „Power ‟ to Article 368and thus this Article described specifically the “Power of Parliament to amend the

constitution and procedure there of”. Also incorporated Article 368 (3) which providesthat nothing in Article 13 shall apply to any amendment made under this article.

↓↓

Keshvanand Bharti Case (1973) Challenged the 24th amendment; SC laid down theBasic Structure Doctrine. It said that Parliament has power to amend the

constitution provided Basic structure of constitution is not harmed. This case is alsoknown as “Fundamental Rights Case”. (CJI-Justice Sikri)

↓↓42nd Amendment (1976) Gave unlimited amending powers to Parliament & also

gave DPSP overriding power over FRs

↓↓

44th Amendment (1978) Re-established pre-42nd position i.e. Article 39 (b) & (c)having over-riding effect over FRs.

↓↓

Minerva Mills Case (1980) Challenged 42nd Amendment; SC enlisted features ofbasic structure of constitution

(Present position is that Parliament is not authorized to limit the operation of Articles14, 19 and 21 which form the part of basic structure of the constitution.)

Discuss the kind of majority in the Parliament.

The types are:

Simple majority Absolute Majority Effective majority Special majority

Discuss the concept of separation of powers.

Discuss the concept of division of powers.