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THE CONSTITUTIONAL CORE AMENDMENT ERA- HISTORICAL OVERVIEW
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THE
CONSTITUTIONAL CORE AMENDMENT ERA- HISTORICAL OVERVIEW
AURTHORED BY - ASHEENA AUGUSTA
The Basic Structure Doctrine keeps
the supremacy of the Constitution. Though this doctrine finds no place in the
script of Indian Constitution it is major pillar of our constitution. The term
basic structure was first coined by the attorney M.K.Nambiar while arguing for
the petitioners in I.C Golaknath v. State of punjab. But it was enshrined only
in the judgement of Kesavanandha bharati v. State of Kerala. By this doctrine
parliament can amend any part of the constitution but without affecting the
basic structure of the constitution. The judicial innovation of the Basic
Structure doctrine can be traced as two phases.ie, Pre Keshavanandhabharathi
case and post Keshavanandhabharati case. The former is based on how the
doctrine is evolved and the later deals with the development of this concept
over the years. The journey to the evolution of the doctrine of basic structure
started by the incorporation of Article 31A and 31B by the First constitutional
Amendment of 1951. Article 31B saves those laws which are included in the 9th
schedule from being challenged as violative of Fundamental rights even if it
violates the Fundamental rights. The Land reforms Act and property laws where
included in the 9th schedule. Prior to this Amendment a person cannot be
deprived of his right to property under Article 19(f) which is a fundamental
right. And according to Article 13 of Indian constitution State shall not make
any laws which abridges the fundamental rights and such laws shall be void. But
when Article 31A and 31B was introduced property acquisition cannot be
challenged as it was included in the 9th schedule. Several controversies took
place at that time due to this revolutionary change. The property owners argued
that the amendments which placed the land reforms laws in the 9thschedule is
violative of article 13(2) of the Indian constitution as law as defined under
Article 13(2) includes fundamental rights. A series of petitions were filed to
decide upon the parliaments power to amend the constitution and whether an amendment
is a law as declared under article 13(2) of Indian Constitution. The Supreme
Court had made several decisions on this matter.
PRE
KESHAVANANDHABHARATHI PHASE
Shankari Prasad Singh Deo v. Union of
India
A petition was filed in the Supreme
Court challenging the validity of Article 31A and 31B of the Constitution as it
is violative of Fundamental rights and Article 13(2) of Indian Constitution. In
this case the Supreme Court held that parliament can amend any part of the
Constitution including the Fundamental rights under article 368 of the
Constitution. And law as declared under Article 13(2) does not include
amendments.
Sajjan Singh v State of Rajasthan
In this case once again tha
parliaments amending power was challenged. The validity of 17th constitutional amendment which added around
44 statutes to the 9th schedule was challenged. Five- judge bench of Supreme
Court dealt with the issue and though upheld the decision in Shankari Prasad
case. Two Judges Hidayatullah and Mudholkar JJ has dessending opinion. It was
for the first time the 'Basic Features' principle was expounded by justice J.R
Mudholkar in 1953 in his dissent. His view was that whether making a change in
the basic feature of Constitution is merely an amendment or it would be
rewriting the Constitution and if it is the latter whether the parliament has
the power to do so.
I C Golaknath v State of Punjab
In this case the writ petitioners
challenged the inclusion of Punjab Security of Land Tennures Act, 1953 and the
Mysore Land Reforms Act in the 9thSchedule. While arguing for the petitioners
it was for the First time the term Basic Structure was named by the attorney
M.K Nambiar. The case was decided by 11-judge bench of the Supreme Court. With
a majority of 6:5 declared that parliament cannot amend the Fundamental rights.
And held that law under Article 13(2) includes amendments made to constitution
and therefore Fundamental rights cannot be amended. The contention that
amending power is a sovereign power and which is outside the purview of judicial
review was rejected by the Supreme Court. In this case for the first time the
concept of Doctrine of Prospective Overruling was introduced. The case was
decided with prospective effect. The result was that the amendments which are
already made to the Constitution remains unaltered. Therefore 1st ,4th and 17th
amendment was not declared void. So effect was that no further amendments can
be made to the Fundamental rights.
24th Constitutional Amendment
After Golaknath's case, the
parliaments amending power was restricted parliament cannot freely amend any
part of the constitution. Therefore inorder restore the earlier position
parliament introduced a new amendment ie, 24th constitutional Amendment. This
amendment gave wide powers to the parliament. A new clause (4) was introduced
to article 13 which states ‘nothing in this Article shall apply to any
amendment of this Constitution made under Article 368’. Which means parliament
amendment is not within the purview of article 13. A new subclause (1) was added
to article 368, ‘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. And earlier amendment could be brought into effect
only when it is passed with two-third majority and with the assent of the
President and the President has the choice to without his assent. But after the
24th amendment President is bound to
give his assent he has no option to withhold the assent. Another clause (3) was
also added to article 368 of the constitution which reaffirmed that ‘nothing in
Article 13 shall apply to any amendment made under this Article'.
25th Constitutional Amendment
This amendment introduced Article 31C
to the Indian Constitution and it gives a supremacy to directive principles of
state policy Article 39(b) and (c) over Fundamental rights contained under
Article 14, 19 and 31. By virtue of Article 31C any law made to give effect to
Directive Principles contained in article 39(b) and (c) cannot be challenged on
the ground that it does not give effect to such principles.
Kesavanandha Bharati v State of
Kerala
The case was filed to challenge the
validity of Kerala Land reforms Act, 1963 but the 29th constitutional amendment
included this Act in the 9th schedule thereby making it outside the purview of
judicial review. The Hon'ble Supreme Court permitted the petitioner to
challenge not only the validity of 29th Constitutional amendment but also 24th
and 25th Constitutional Amendements. The historic judgement was delivered by
13-judge bench with a majority of 7:6. They overruled the decision in Golak
nath v. state of Rajasthan and held that parliaments power to amend the constitution
is very wide and can amend any part of the constitution including the
fundamental rights. But the parliament cannot amend the constitution in such a
way as to destroy or take away the Basic structure or framework of the
constitution. All Judges upheld the validity of 24th constitutional amendment
as they took the view that parliament can amend any part of the Constitution
without affecting the Basic Structure of the Constitution. What constitute the
Basic structure was not declared but an illustrative though not exhaustive list
was provided by the judges.
According to Sikri, C.J., the Basic
Structure constitutes the following elements:
The supremacy of the Constitution.
Republican and Democratic forms of
Government.
Secular character of the Constitution.
Separation of Powers between the
legislature, the Executive, and the Judiciary.
Federal Character of the
Constitution.
Shelat and Grover JJ added the
following:
The mandate to build a welfare state
contained in the Directive Principles of State Policy.
Maintenance of the unity and
integrity of India.
The sovereignty of the country.
Hegde and Mukherjee JJ added the
following:
The sovereignty of India.
The democratic character of the
polity.
The unity of the country.
Essential features of individual freedom.
The mandate to build a welfare state.
Jaganmohan Redd, J was of the opinion
that Preamble lays down the Basic features of the Indian Constitution, they
are:
A sovereign democratic republic.
The provision of social, economic,
and political justice.
Liberty of thought, expression,
belief, faith, and workship.
Equality of status and opportunity.
Justice Khanna included judicial
review also.
POST
KESAVANANDHA BHARATI PHASE
The effectiveness of doctrine of
basic structure was discussed and analysed in various cases after the
Kesavanandhabharati decision.
Indira Nehru Gandhi v Raj Narain
In this case the effectiveness of the
doctrine of basic structure was reaffirmed and re- established. A petition
challenging election of Prime Minister Indira Gandhi was filed before Allahabad
High Court contending that there was electorial malpractise. The Allahabad High
Court upheld the contention and an appeal was filed by the petitioner. While
the appeal was pending before the Supreme Court 39th Constitutional amendment
was passed whereby election dispute relating to election of President, Vice-
President, Prime Minister and speaker of Lok Sabha cannot be adjudicated by the
Supreme Court but a body will be constituted by the parliament which will be
having the power to adjudicate upon disputes regarding the election. This bill
was passed by the Government with a malafide intention to protect Indira
Gandhi. On the next day the Supreme Court while hearing this case, the Advocate
General contended that the petition must be dismissed on the basis of 39th
Constitutional amendment. The 5- judge bench with a majority of 4 judges upheld
the legality of 39th Constitutional amendment. In this case the court stated
democracy as a part of basic structure of the Constitution and included rule of
law and power of judicial review as part of basic structure.
42nd Constitutional Amendment
A committee was constituted under the
Chairmanship of Sardar Swaran Singh and based on the report of this Committee
several changes were adopted in the Constitution including the preamble.
Directive principles of state policy was given supreme power over fundamental
rights article 14,19 and 21. No law made in pursuance of directive principles
of state policy can be challenged. Any amendment made in the past or in future
cannot be challenged in any Court of law. This amendment removed all the
amendments made to the fundamental rights from the purview of judicial review.
And thereby it gives unlimited power of amendment to the parliament under
article 368 of the Indian Constitution.
Minerva Mills v. Union of India
The 42nd Amendment was challenged
before the Supreme Court by the owners of Minerva Mills. The Councel for
petitioners argued that the basic structure as recognised by the Supreme Court
in Kesavanandha Bharati v. State of Kerala was sheilded by the 42nd amendment
by taking away the rights of judicial review. And also another contention was
that it gives unrestricted power of amendment to the parliament and it takes
away the fundamental rights of citizens and therefore Article 31C must be
declared invalid.
Majority held that the amendment to
article 31(C) as unconstitutional as it destroys the balance between the
fundamental rights and directive principle of state policy which is a basic
feature of the Constitution. And Court held that parliament can pass any law to
fullfill the directive principles but that will also be subject to judicial
review.
Chandrakumar v. Union of India
In this case it was held that power
to judicial review of Supreme Court and High Court under article 32 and 226 is
part of basic structure and cannot be taken away by transfering to
administrative tribunals.
Waman Rao v. Union of India
In this case the Supreme Court
decided that the amendments made before 24 april 1973, the date of decision of
Kesavanandhabharati case cannot be reopened and challenged. The decision does
not have reterospective effect. Hence amendments made to the 9th Schedule until
the Kesavananda judgement are valid, and those passed after that date shall be subject
to scrutiny.
Indhira Sawney v. Union of India
The Supreme Court dealt with ambit
and scope of reservation of under privilaged groups under Article 16(4) of the
Indian Constitution. It upheld the legality of 27% reservation of OBC subject
to certain exceptions such as exclusion of the creamy layer, the prohibition of
reservations in promotions, the requirement that the overall amount of
reservations does not exceed 50%, etc.. Rule of law was also added to the list
of basic features of the Constitution.
S.R Bommai v. Union of India
In this case the Supreme Court dealt
with the abuse of Article 356, (imposition of Presidents rule in states) and
held that if the Government policies are against the Basic structure of the
Indian Constitution It would constitute a valid basis for the exercise of
central power under Article 356.
Relevance of Basic Structure Doctrine
This doctrine preserves the spirit of
the Constitutionalism as codified by the founding fathers of our Indian
Constitution. By this doctrine the fundamental principles of our Indian
Constitution remains unaltered by any means. Though the parliament has the
power to amend any part of constitution it cannot amend in such a way as to
effect the basic structure of the constitution. It protects our democracy by
limiting the power of parliament. It also clearly defines the separation of
powers between the legislature, executive and judiciary and Supreme Court has
been given broad powers making it most powerful court in the world.
Criticism on Basic Structure Doctrine
Most important criticism of this
doctrine is that it is not worded in the constitution regarding what
constitutes the basic structure. The doctrine lacks a theoretical framework.
Though various judicial decisions lay down certain illustrative list regarding
what constitutes a basic structure the list is not exhaustive and the list is
extended by more concepts of the constitution by various judicial decisions. In
various cases, the Judges decide according to their own perspective regarding
the basic structure of the constitution based on their subjective satisfaction.
This initiates a doubt as to what all are actually the basic features of the
constitution. Since many years have passed till now there is no clarity
regarding the list of basic structure of the constitution. Now it has been
50years after the Kesavanandhabharati case therefore now it is necessary to
have a theoretical framework as to what constitutes the basic structure of the
Constitution. Arun Jaitley termed it the “tyranny of the unelected” in his
criticism of the NJAC judgment in 2015.Referring to the 2015 verdict which had
invoked the “basic structure” theory, the VP, remarked that the scrapping of
the NJAC Act was “a scenario perhaps unparalleled in the democratic history”.
Basic Structure doctrine: Current
Scenario
The Vice- President Jagdeep Dhankhar
questions the Kesavanandha Bharati verdict which invoked the basic structure
doctrine. He is of the opinion that it is bad precedent that if any authority
questions Parliament’s power to amend the Constitution, it would be difficult
to say “we are a democratic nation”. He says that he does not subscribe to the
basic structure doctrine which maintains that parliament can amend any part of
the constitution but without effecting the basic structure of the constitution.
Several constitutional amendments were set aside based on the basic structure
doctrine invluding the NJAC Act of 2015 with respect of the appointment of
judges in higher judiciary. In NJAC decision the Supreme Court held that the
law violated the principle of independence of the judiciary which was a basic
tenet of the Constitution. Dhankhar is of the view that parliamentary
sovereignity is most essential and cannot be permitted to compromised by the
executive or judiciary. Addressing the 83rd All India Presiding Officers
Conference, he said that the judiciary cannot intervene in lawmaking. His
statement was based on the ongoing debate on the issue of appointment to the
higher judiciary with the government questioning the current Collegium system
and the Supreme Court defending it. Dhankhar said no institution can wield
power or authority to neutralise the mandate of people. In response to
Dhankhar's statement the Hon'ble Cheif justice of India D.Y Chandrachud argued
that Basic structure doctrine is a " north star" which guides
interpretation of the constitution. He said that the adoption of this doctrine
in neighbouring countries like Pakistan, Bangladesh, Nepal is a proof of the
need for such a doctrine.
CONCLUSION
Since 50 years have elapsed after the
Kesavanandha bharati decision till now the doctrine is followed by our
judiciary and which shows the relevance of this doctrine. However it is sad
truism that this even now this doctrine lacks a theoretical framework as well
as not enshrined in the constitution. Even now there is no clarity regarding
what constitutes the Basic Structure of the Indian Constitution. To say there
is an ever ending list regarding the basic features which was introduced by
various judges in various cases it depends upon their perceptions regarding the
matter. All these create a doubt as to what actually constitutes the basic
structure of the Indian Constitution which should be preserved as intact. As we
are celebrating 50 years of this most revolutionary journey of this doctrine,
it is time for clarifying and accurately scripting and having an actual
framework of what actually constitutes the basic structure of Indian
Constitution which shall be preserved.
Article Information
THE CONSTITUTIONAL CORE AMENDMENT ERA- HISTORICAL OVERVIEW
Authors: ASHEENA AUGUSTA
- Journal IJLRA
- ISSN 2582-6433
- Published 2025/03/29
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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