PRESERVING FUNDAMENTAL PRINCIPLES: ANALYSING CONSTITUTIONAL AMENDMENTS AND BASIC STRUCTURE DOCTRINE BY - TRIVENI HAZRA
PRESERVING FUNDAMENTAL PRINCIPLES:
ANALYSING CONSTITUTIONAL AMENDMENTS AND BASIC STRUCTURE DOCTRINE
AUTHORED BY
- TRIVENI HAZRA
MAHARASHTRA
NATIONAL LAW UNIVERSITY, AURANGABAD
ABSTRACT:
-
The Constitution,
referred to as the “General Will” of the people, is a fundamental law that
establishes the roles and authority of the various state agencies. Not only is
it the fundamental law of the land, but it also serves as the basis for all
other laws that must be made in accordance with the needs of the country.
Because a nation’s history is not static, a constitution written in one age and
under one set of circumstances may be deemed inappropriate or insufficient in
another era and under different circumstances. If the Constitution prevents
such desirable and necessary reforms from occurring, it will not be able to
withstand the pressure. The authors of the Indian Constitution incorporated
Article 368 as a statutory procedure to allow for constitution modification. The
Basic Structure Doctrine is a pivotal element in Indian constitutional law,
ensuring that the core principles of the Constitution remain inviolate amidst
legislative amendments. Originating from the landmark Kesavananda Bharati case
in 1973, this doctrine asserts that while Parliament holds the power to amend
the Constitution, it cannot alter its fundamental framework. This paper analyses
the evolution of Doctrine, its application in significant cases and its role in
safeguarding the essential features of Constitution. By examining the cases and
the doctrine's implications, the paper underscores its importance in
maintaining the balance between constitutional flexibility and the preservation
of foundational principles.
KEY WORDS: - Constitution, Article 368,
Judicial Interpretation, Constituent Assembly, Basic Structure.
INTRODUCTION:
The Constitution, which is “Supreme
Law of the state” is enforceable against both the government and the populace.
It serves a variety of purposes in a contemporary welfare state. One of these
roles might be to act as a clearinghouse for a number of societal political
fundamentals. In terms of substance, the Constitution can reflect these ideals
by prohibiting governmental interference with religious freedom, and in terms
of procedure, it stipulates that government can only punish persons for
criminal activities after a trial at which the defendant has been represented
by his counsel. In terms of their constitutional obligations, the legislative,
executive, and judicial branches of a contemporary welfare democracy are all on
an equal footing. However, when one organ claims to have more power over the
other and to perform constitutional tasks more effectively, this stance changes
with time. On the other hand, alterations to a constitution could be brought about
by political or self-serving objectives. Because a constitution establishes the
“political game’s” rules, individuals in authority may be tempted to alter the
rules in order to strengthen their position, maintain their hold on power. Such
adjustments might erode democracy altogether. In order to resolve any future
issues that may arise in the functioning of the Constitution, provisions for
amending the Indian constitution have been made. No generation has the
exclusive right to form the government in accordance with their needs. Although
there is no express restriction on the power of the parliament to amend the
constitution set forth in Article 368.[1] The
preservation of fundamental principles within a constitutional framework is
crucial for maintaining the integrity and stability of a nation’s legal and
political system. Central to this effort is the Basic Structure Doctrine, a
judicial principle that prevents the alteration of the essential features of a
constitution through amendments. Originating from the landmark judgment in
Kesavananda Bharati v. State of Kerala[2] by
the Supreme Court of India, this doctrine asserts that while the parliament has
wide powers to amend the constitution, it cannot destroy or emasculate its
basic structure. Over time, the judiciary has played a pivotal role in
interpreting and enforcing this doctrine, balancing the need for constitutional
flexibility
MEANING OF AMENDMENT:
In common usage, an amendment refers
to a formal change or addition proposed or made to a law, contract,
constitution, or other legal documents. In the context of constitutional law,
an amendment typically involves altering, adding, or repealing specific
provisions within a constitution to address new issues, resolve ambiguities, or
adapt to changing political, social, or economic conditions. The process for
making amendments often requires a special procedure that is more rigorous than
the process for passing ordinary legislation, reflecting the significance and
potential impact of such changes. This may include steps such as supermajority
approval in the legislature, ratification by a certain number of states or
provinces, or approval by a public referendum, depending on the country's legal
framework.
METHOD OF AMENDMENT: -
The modern era is dynamic. It is very
likely that a constitution that was created in one age and under a certain
context will be deemed insufficient in a later era and within a different
context.
Underlying principles of the constitution
could be viewed as outmoded by the following generation. As a result, it
becomes essential to have some tools or a procedure that would allow the
constitution to be periodically modified to suit changing national requirements.
Both informal and formal procedures can be used to periodically update the
constitution to changing conditions. The formal technique is the constitutional
process, while informal methods include judicial interpretation and
conventions.
I.
Formal method
Almost every constitution contains a
formal process for amending it. The procedure may be simpler in certain nations
than in others, and as a result, the constitutions are sometimes categorized as
flexible or rigid. A flexible constitution is one that can be amended
relatively easily, just like enacting a regular law. The British Constitution,
which can be changed by a regular Act of Parliament, is the best illustration
of such a constitution. Thus, there is no distinction between the constituent
process and regular legislative process.
It is believed that the process for
amending the constitution should ensure that fundamental principles be changed
only after careful examination and deliberation. Thus, the legislative and
constituent processes can be distinguished; the former refers to the creation
of a regular law, while the latter refers to the change of the constitution. A
constitution will lose all permanence and supremacy if it is simply amendable
by passing a regular law.
Perhaps the most significant means to
modify the constitution to reflect new information is through formal amendment.
In this regard, judicial interpretation may be somewhat helpful, but it cannot
alter the underlying law's wording, and some desired changes might not be
possible without amending the constitution verbatim. There may be instances
when the rules established by the courts seem to go against social norms and
political demands, in which case they may need to be altered. The numerous
revisions made to Article 31 of the Indian Constitution, which deals with the
fundamental right to property, to get around an unfavourable judicial reading
thereof, serve as an illustration of such a circumstance.
II.
Informal methods
·
Judicial
Interpretation: -
Although the constitutional text
remains unchanged in this situation, its interpretation does. In the
constitution, words that have one meaning in one context may have a slightly
different meaning in another. The courts have a deciding influence in this
process because it is their job to interpret the constitution.
The best example is United States,
where the Supreme Court occasionally gave words and phrases in the constitution
new meanings in order to make the document from the laissez-faire era of the
18th century serve the needs of a vast, expanding, and highly industrialized
civilization of the twentieth century without making many formal changes to its
text.
In India as well, the judicial
interpretation process is ongoing. The Supreme Court has left the door open for
changes in constitutional interpretation so that the Indian Constitution can be
adjusted to new circumstances by finding that it can occasionally review its
decisions.
·
Conventional
and Constitutional Usage: -
The development of conventions,
traditions, and observances may alter how constitutional provisions are
applied. This is yet another instance of a gradual transformation and subtle
shift. where the constitutional text is unchanged in terms of form and wording,
where there is no obvious change on the surface, but where there has been a
change in the way the provisions operate and function.
One way such conventions work is that
they can effectively repeal a constitutional provision without really doing so.
Two, a Convention may function by
shifting authority granted by the constitution to one authority to another.
Three, a Convention may amend a
constitution by adding to one of its clauses.
PROCESS OF
AMENDMENT:
The Indian Constitution provides a
detailed process for amendments, allowing for changes to adapt to evolving
needs while protecting the document's fundamental principles. Amendments to the
Indian Constitution are covered under Article 368, which outlines the procedure
and types of amendments. They can be categorized into three broad types:
1. Simple Majority Amendments:
These amendments pertain
to provisions that can be altered by a simple majority of members present and
voting in both Houses of Parliament. This type of amendment does not fall under
the scope of Article 368.
Examples: Changes related
to the formation of new states, alterations in the boundaries of states,
creation or abolition of Legislative Councils in states, and certain aspects of
citizenship.
2. Special Majority Amendments:
These require a special
majority for their passage. This means that the amendment must be approved by a
majority of the total membership of each House of Parliament, and by a majority
of not less than two-thirds of the members of that House present and voting.
Examples: Provisions
related to the Fundamental Rights, Directive Principles of State Policy, and
other significant articles such as Article 368 itself.
3. Special Majority and Ratification by
States:
Certain amendments
require, in addition to a special majority in Parliament, ratification by at
least half of the state legislatures. This type of amendment is used for
changes that affect the federal structure of the country.
Examples: Amendments
involving the election of the President, the extent of executive power of the
Union and the States, the distribution of legislative powers between the Union
and the States, nt, and the powers of the Supreme Court and High Courts.
AMENDMENT
TO FUNDAMENTAL RIGHTS:
The Constitution, enshrines a set of
Fundamental Rights that guarantee civil rights to all citizens, ensuring
equality, freedom, and justice. These rights, listed in Part III of the
Constitution, form the cornerstone of India's democratic framework. However,
the dynamic nature of society and the state necessitates occasional amendments
to the Constitution, including its Fundamental Rights.
From its inception, the Indian
Constitution included mechanisms to amend its provisions, recognizing the need
for adaptability. Article 368 grants Parliament the power to amend the
Constitution. However, this power has been a subject of intense debate,
particularly regarding the extent to which Fundamental Rights can be amended.
Key Amendments to Fundamental Rights
·
First
Amendment (1951): Introduced restrictions on freedom of speech and expression
to ensure public order and protect against abuses.[3] It
also added Article 31A and 31B to protect land reform laws from judicial
review.[4]
·
Fourth
Amendment (1955): Modified property rights under Article 31 and clarified
compensation provisions for property acquisition.[5]
·
Twenty-fourth
Amendment (1971): Asserted Parliament's authority to amend any part of the
Constitution, including Fundamental Rights (Article 13 and 368).[6]
·
Forty-second
Amendment (1976): Restricted judicial review and prioritized Directive
Principles over Fundamental Rights.[7]
Judicial Advocacy:
The First Amendment Act, 1951,
introduced Articles 31A and 31B to protect land reform laws from being
challenged on the grounds of violation of Fundamental Rights.
The constitutionality of the First Amendment
was challenged, arguing that it violated the Fundamental Rights guaranteed by
the Constitution.
The Supreme Court upheld the
amendment, stating that Parliament has the power to amend any part of the
Constitution, including Part III. The court interpreted Article 368 as giving
Parliament the constituent power to amend the Constitution without
restrictions.
The Seventeenth Amendment Act, 1964,
further protected laws related to land reforms from judicial review by
including them in the Ninth Schedule.
Petitioners argued that the amendment
violated the Fundamental Rights and the basic framework of the Constitution.
The Supreme Court reaffirmed its
decision in Shankari Prasad, holding that Parliament could amend any provision
of the Constitution, including Fundamental Rights. The court noted that the
power to amend the Constitution was comprehensive and could include changes to
Part III.
The petitioners challenged the validity
of the Seventeenth Amendment Act, 1964 and the main question was whether
Parliament had the power to amend Fundamental Rights.
In a landmark judgment, the Supreme
Court overruled its earlier decisions in Shankari Prasad and Sajjan Singh. The
court held that Parliament could not amend Fundamental Rights. It invoked the
doctrine of prospective overruling, declaring that the Parliament would have no
power from the date of the judgment to amend Fundamental Rights.
Kesavananda Bharati v. State of
Kerala (1973)
The case challenged the
Twenty-fourth, Twenty-fifth, and Twenty-ninth Amendments, which sought to
override the Golaknath ruling and asserted Parliament’s power to amend the
Constitution.
The issue was whether there were any
limitations on Parliament's power to amend the Constitution under Article 368.
The Supreme Court held that while
Parliament had wide powers to amend the Constitution, including Fundamental
Rights, it could not alter the “basic structure” of the Constitution. This
landmark judgment established the Basic Structure Doctrine, ensuring that
essential features like the supremacy of the Constitution, democratic and
secular character, and the integrity of the nation remained inviolable.
BASIC
STRUCTURE DOCTRINE:
The Basic Structure Doctrine is a
judicial principle in Indian constitutional law that limits Parliament’s power
to amend the Constitution. It was established by the Supreme Court in the
landmark case of Kesavananda Bharati (1973). The doctrine holds that while
Parliament can amend most parts of the Constitution, it cannot alter or destroy
its “basic structure” or fundamentalrights. This includes essential elements
such as the supremacy of the Constitution, the principles of secularism and
democracy, and the separation of powers among the legislative, executive, and
judicial branches. The doctrine emerged to prevent potential abuse of power by
the legislature, ensuring that amendments do not undermine the core values and
principles enshrined in the Constitution. It has been invoked in several key
cases to strike down amendments deemed to violate the basic structure, thus
playing a crucial role in maintaining the Constitution's integrity and balance
of power.
The Apex Court in different cases has
laid down what the basic features in the Constitution:
Kesavananda Bharti v. State of Kerala,
I.
Rule
of Law
II.
Judicial
Review
III.
Democracy.[11]
Indira Nehru Gandhi v. Raj Narain[12]
(1975)
The case involved the Thirty-ninth
Amendment, which sought to place the election of the Prime Minister and the
Speaker of Lok Sabha beyond the scrutiny of the judiciary.
The Supreme Court struck down the
amendment, affirming that judicial review is part of the basic structure of the
Constitution. The judgment reinforced the Kesavananda Bharati decision,
emphasizing that amendments must respect the basic structure.[13]
In the Minerva Mills Ltd. v.
Union of India[14]
(1980) case, the Supreme Court of India reaffirmed and expanded upon the Basic
Structure Doctrine. The Court held that the basic structure cannot be altered
by amendments, even under Article 368. In this case, the Court identified and
emphasized several key components as part of the Constitution’s basic
structure, including:
1. Limited power of the Parliament to
amend the Constitution.
2. Fundamental Rights in certain cases.
3. Judicial Review
4. Harmony and Balance between Fundamental
Rights and Directive Principles.[15]
S.P. Sampath Kumar Etc vs Union Of
India & Ors,[16]
In S.P. Sampath Kumar, the Supreme
Court upheld the establishment of administrative tribunals under the
Administrative Tribunals Act, 1985, but emphasized that such tribunals must
provide an effective alternative to the High Courts.
L. Chandra Kumar v. Union of India[17]
In L. Chandra Kumar, the Supreme
Court expanded on this principle, ruling that the power of judicial review
vested in the High Courts and the Supreme Court under Articles 226 and 32,
respectively, is an integral part of the basic structure. The Court held that
the exclusion of judicial review by administrative tribunals was
unconstitutional. It mandated that decisions of these tribunals should be
subject to scrutiny by the High Courts.
42nd Amendment Act and
Article- 368:
After Kesavananda Bharati case and Indira
Nehru Gandhi case 42nd Amendment Act 1976 was passed which
incorporated clause (4) and (5) under Article 368.
- Article 368(4): This clause stated that no amendment to the
Constitution, including amendments that affect fundamental rights, made
under Article 368 could be questioned in any court on any ground.[18]
- Article 368(5): This clause declared that there shall be no limitation
on the constituent power of Parliament to amend the Constitution under
Article 368.[19]
These provisions were intended to
give Parliament unrestricted power to amend any part of the Constitution,
including fundamental rights, and to prevent judicial review of such amendments.
Minerva Mills v. Union of India[20]
However, these clauses were later
nullified by the Supreme Court’s ruling in the Minerva Mills Ltd. v. Union
of India (1980) case, which reaffirmed the Basic Structure Doctrine and
struck down these provisions as unconstitutional.
Waman Rao v. Union of India[21]
(1981)
The case questioned the validity of
amendments to the Constitution that placed certain laws in the Ninth Schedule,
shielding them from judicial review. The Supreme Court ruled that laws placed
in the Ninth Schedule after the Kesavananda Bharati judgment were open to
judicial review if they violated the basic structure. This reinforced the idea
that the Ninth Schedule is not immune to the basic structure test.
IR Coelho v. State of Tamil Nadu[22]
This case dealt with the validity of
the Ninth Schedule laws. The Supreme Court held that any law placed in the
Ninth Schedule after April 24, 1973 (the date of the Kesavananda Bharati
judgment), could be reviewed and struck down if it violated the basic structure
of the Constitution.
CONCLUSION:
The legitimacy of the Basic Structure
Doctrine has been contested and its constitutionality has been questioned by numerous
critics of judicial overreach and numerous constitutional experts. The Indian
judiciary may have gone over the line from the outside, but it did so to
protect the foundational principles upon which our nation was founded. The
Preamble, which outlines the goals and aspirations of both the country's
citizens and the country's founding fathers or framers, gives clear insight
into the vision of founding fathers.
The Basic Structure Doctrine stands
as a vital safeguard in the Indian constitutional framework, ensuring the
preservation of fundamental principles amidst legislative and political
changes. Established by the Supreme Court in the landmark Kesavananda
Bharati case and subsequently reinforced in cases like Minerva Mills,
S.P. Sampath Kumar, and L. Chandra Kumar, IR Coelho the doctrine
asserts that while Parliament has the power to amend the Constitution, it
cannot alter its core structure.
This doctrine's significance lies in
its role as a protector of the Constitution's essential features, including the
supremacy of the Constitution, the rule of law, the separation of powers, and
the fundamental rights of citizens. By restricting Parliament's amending power,
the Basic Structure Doctrine ensures that the foundational values of the Indian
Republic—such as democracy, secularism, and federalism—are maintained and
cannot be eroded by transient political majorities.
The Basic Structure Doctrine is not
merely a judicial innovation but a crucial constitutional safeguard. It
embodies a commitment to preserving the enduring principles that define the
Indian state, ensuring that the Constitution remains a living document, capable
of evolving while retaining its core ethos. This balance between change and
continuity is fundamental to the stability and integrity of India's
constitutional democracy. We should understand that the foundation of this
democracy is the constitution. Although it was revolutionary of our founding
fathers to include mechanisms for amending the constitution, it is crucial that
such provisions not be abused. The fabric of our democracy could be torn by
misuse leading to an overabundance of legislative or executive power.
[1] INDIA CONST. art. 368.
[2] Kesavananda Bharati Sripadagalvaru
... vs State Of Kerala And Anr, (1973) 4 SCC 225.
[8] Shankari Prasad v. Union of India,
AIR 1951 SC 458.
[9] Sajjan Singh v. State of
Rajasthan, AIR 1965 SC 845.
[10] Golak Nath v. State of Punjab, AIR
1967 SC 1643.
[11]
J.N. PANDEY, CONSTITUTIONAL LAW OF INDIA 844 (Central Law Agency 2020)
[12]
Indira Nehru Gandhi v. Raj Narain. AIR 1975 SC 2299.
[13]
PRITHIVI RAJ1 AND MURTAZA S. NOORANI- Constitutional Amendment: A Critical
Analysis, volume 2| issue 3, 2020, https://www.ijlsi.com/wp-content/uploads/Constitutional-Amendment-A-Critical-Analysis.pdf,
(last visited 21st July. 2024, 23:41).
[14]
Minerva Milk v. Union of India, (1980) 2 SCC 591.
[15] See J.N. PANDEY, supra note 11.
[16] S.P. Sampath Kumar Etc vs Union of
India & Ors, 1987 SCC SUPL. 734.
[17] L. Chandra Kumar vs Union Of India
And Others, 1997 (3) SCC 261.
[20] Minerva Mills Ltd. & Ors vs
Union Of India & Ors, 1981 SCR (1) 206.
[21] Waman Rao v. Union of India, AIR
1981, 2 SCC 362, 1981 2 SCR 1.
[22] I.R.Coelho (Dead) By Lrs vs State
Of Tamil Nadu & Ors, AIR 2007 SC 861.