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This article is written by Sreeya Chowdary Kesanapalli, a student of Gitam School of Law, Visakhapatnam
The constitution of India is one of the most captivating documents on this planet. No other country has a constitution as broad as ours and is the largest constitution in the world. However, despite being so comprehensive, this document is so interesting because it is extremely flexible. The Constitution affirms India to be a sovereign, socialist, secular, democratic republic, ensuring justice, equality and freedom for its citizens and endeavouring to promote brotherhood. The fathers of our constitution made it so, they wished that the constitution would not only serve the country to grow, but it would also grow alongside it. Thus, the government can amend the constitution depending on various concerns brought up.
The constitution was adopted by the constituent assembly on 26th November 1949 and was legally enforced on 26 January 1950, the day marked and celebrated as Republic Day in India. The chief architect of the Indian Constitution is B.R Ambedkar. The Constitution of India was originally written in two languages, that are English, and Hindi and each member of the Constituent assembly signed both copies. It shall be noted that there were as many as 2000 amendments made to the first draft of the Indian Constitution.
The Basic Structure Of The Constitution
According to the Constitution, Parliament and the state legislatures in India have the power to make laws within their own jurisdictions. This power is not absolute in nature—the Constitution vests in the judiciary the power to adjudicate upon the constitutional validity of all laws. If a law made by Parliament or the state legislatures violates any provision of the Constitution, the Supreme Court has the power to declare such a law invalid or ultra vires. This check despite, the founding fathers wanted the Constitution to be an adaptable document rather than a rigid framework for governance. Hence Parliament was provided with the power to amend the Constitution. So the Article 368 of the Constitution gives the impression that Parliament’s amending powers are absolute and encompass all parts of the document. However, the Supreme Court has acted as a brake to the legislative enthusiasm of Parliament ever since independence. With the intention of preserving the original ideals envisioned by the constitution-makers, the apex court pronounced that Parliament could not damage or alter the basic features of the Constitution under the pretext of amending it.
The “Basic Structure” doctrine is the judge-made doctrine whereby certain features of the Constitution of India are beyond the limits of the amending powers of the Parliament. Though the Court held that the power of Parliament to amend the Constitution was impliedly limited by the doctrine of basic structure, it did not clearly explain what constitutes a basic structure.
Amendment Of Indian Constitution Under Article 368
Under Article 368 of the Indian Constitution, the Parliament is empowered to amend it and its procedures. Amendments to the Indian Constitution are not easy to produce and require compliance with other provisions. Article 368 grants Parliament some powers allowing it to amend it while keeping its fundamental form just the same. Article 368 of the Constitution of India cites two types of amendments to the Constitution of India. The form of amendment is by a simple legislative majority (Lok Sabha & Rajya Sabha), the second type of amendment is by a special parliamentary majority, and the third type is with the approval of a special majority and by half the total state.
Reason For Amendment
Time is not static; it’s continuing to change. The Constitution needs to be revised. People’s social, cultural, and political situation is starting to modify. If the constitutional changes were not made, we would not be able to encounter future difficulties, and it would become a hurdle in the path of development. There is an explanation of why our founding fathers made the constitution as robust as it is today. It is to ensure the plans are changing with the country’s growth. Therefore, according to Article 368, Parliament’s powers to amend the constitution are unlimited in respect of parts of the constitution which it wishes to amend.
Procedure Of Amendment Of The Constitution
To amend the Constitution a bill in order may be introduced by any House of the Parliament and must be passed by each House by a majority of the total membership of that House and by a majority of not less than 2/3 of the members of that House who are present and are voting. After being passed by both the Houses, it will be presented to the President, and he shall give his assent to the Bill. The Constitution is amended in this process.
- Kesavananda Bharti Vs. State of Kerala, 1973
The apex court managed the issue – that whether the Parliament can correct any piece of the Constitution and what was the cutoff to that power? After the phenomenal judgment of Golaknath versus Province of Punjab, the urgent Parliament to pick up its lost incomparability and self-governance passed arrangement of Amendments to by implication overrule whatever was chosen for Golaknath’s situation. The Indira Gandhi government returned in the lower house with gigantic lion’s share in 1971 races and afterwards passed the 24th Amendment in 1971, 25th Amendment in 1972 and 29th Amendment in 1972.
The seat by most of 7:6 overruled the dispute of the recommendation of law propounded in Golak Nath versus the State of Punjab, 1967 and held that Constitutional revision isn’t ‘law’ inside the importance of Article 13 and that however no piece of the Constitution, including Part III involving fundamental rights, was past the correcting power, the essential structure of the Constitution couldn’t be annulled even by the constitutional change. It was battled that what respects the fundamental structure, it will be chosen from case to case. Consequently, it was held that the Judiciary can strike down a revision passed by the Parliament that argument with the fundamental structure of the Constitution. The court maintained the whole 24th Constitutional (Amendment) Act, 1971, while the initial segment of the 25th Constitutional (Amendment) Act, 1972 intra vires and a second piece of the ultra vires act, was found. The court that grasped social designing and gauged the interests of the two defendants held that neither one of the parliaments has the ability to weaken the Constitution’s Basic Structure, nor would it be able to renounce the command to make a government assistance state and an impartial society. In Golaknath, the court found that the response to the issue was left unanswered. How much the intensity of Parliament is revised. Regulation OF BASIC STRUCTURE was the reaction which the court deducted.
This teaching put forward that however, Parliament has the privilege to change the whole Constitution yet subject to the condition that they can’t in any way meddle with the highlights so fundamental to this Constitution that without them it would be spiritless.
Basic Features of the Constitution according to the Kesavananda verdict
Each judge laid out separately, what he thought were the basic or essential features of the Constitution. There was no unanimity of opinion within the majority view either.
Sikri, C.J. explained that the concept of basic structure included:
• supremacy of the Constitution
• republican and democratic form of government
• secular character of the Constitution
• separation of powers between the legislature, executive and the judiciary
• federal character of the Constitution
Shelat, J. and Grover, J. added two more basic features to this list:
• the mandate to build a welfare state contained in the Directive Principles of State Policy
• unity and integrity of the nation
Hegde, J. and Mukherjea, J. identified a separate and shorter list of basic features:
• sovereignty of India
• democratic character of the polity
• unity of the country
• essential features of the individual freedoms secured to the citizens
• mandate to build a welfare state
Jaganmohan Reddy, J. stated that elements of the basic features were to be found in the Preamble of the Constitution and the provisions into which they translated such as:
• sovereign democratic republic
• parliamentary democracy
• three organs of the State
He said that the Constitution would not be itself without the fundamental freedoms and the directive principles.
Only six judges on the bench (therefore a minority view) agreed that the fundamental rights of the citizen belonged to the basic structure and Parliament could not amend it.
- Minerva Mills Case, 1980
Minerva Mills in the territory of Karnataka was a material industry associated with the large scale manufacturing of silk garments and addition gave the overall population a market. However, the Central government was uncertain that the business met the standards to be characterized as a debilitated industry. In 1970, the Central Government consisted of a Committee U/s 15 of the Industries (Development and Regulation) Act, 1951 to create a full definite report inspecting Minerva Mills’ undertakings. Consequently, on 19 October 1971, the Central Government depending on the Committee’s assessment, appointed a National Textile Corporation Limited (a substance under the 1951 Act) to assume control over the administration of Minerva Mills u/s 18A of the 1951 Act.
However, the applicant couldn’t challenge the part of the 39th Constitutional (Amendment) Act, 1975, since the Parliament had before embedded Nationalization Act, 1974 into the Ninth Schedule which meant that any test on the said act was outside the domain of legal audit, and this cure was banished by 42nd Amendment. Later, the fundamental issue for this situation was to check the constitutionality of the 42nd Constitutional (Amendment) Act, 1976.
For this situation, the judgment was a choice that gladly confirmed the unique quality of the fundamental system of our Constitution. For this situation, the Validity of Constitution under the 42nd amendment which was bury alia accommodated the prohibition of legal audit of constitutional changes and the Court also held that the Limited amending power of the Parliament is a part of the basic structure doctrine.
“Our Constitution is established on a pleasant overall influence among the three wings of the state specifically the Legislature, the Executive and the Judiciary. It is the capacity of the Judges nay their obligation to articulate upon the legitimacy of laws,” attested the court.
As a conclusion it might be said that the doctrine of basic structure of the Constitution is an eminent Constitutional concept that has been formally engrafted upon the Constitution by the judiciary through the interpretative processes. The doctrine is well created and it has maintained a balance between the rigidity and the flexibility of the Constitution. The basic structure doctrine is the single most significant factor that has made the survival of our Constitution possible in its pristine form. It has served us well by effectively foreclosing the possibilities of uncalled for tampering of the Constitution, abrogation of the primordial rights necessary for the development of human personality, weakening the hold of Rule of Law and upholding balance between different organs of the State.
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