HJ - Pol Science Project
HJ - Pol Science Project
Indian Constitution
Introduction
The debate on the 'basic structure' of the Constitution, lying somnolent in the archives of India's
constitutional history during the last decade of the 20th century, has reappeared in the public
realm.While setting up the National Commission to Review the Working of the Constitution (the
Commission), the National Democratic Alliance government (formed by a coalition of 24 national
and regional level parties) stated that the basic structure of the Constitution would not be
tampered with. Justice M.N. Venkatachalaiah, Chairman of the Commission, has emphasised on
several occasions that an inquiry into the basic structure of the Constitution lay beyond the scope
of the Commission's work.
Several political parties -- notably the Congress (I) and the two Communist parties which are in
the opposition -- have made it clear that the review exercise was the government's ploy to seek
legitimacy for its design to adopt radical constitutional reforms thus destroying the basic structure
of the document.
Much of the public debate has been a victim of partial amnesia as even literate circles of urban
India are unsure of the ramifications of this concept, which was hotly debated during the 1970s
and 1980s. The following discussion is an attempt to chart the waters of that period rendered
turbulent by the power struggle between the legislative and the judicial arms of the State.
According to the Constitution, Parliament and the state legislatures in India have the power to
make laws within their respective 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 notwithstanding, the founding fathers wanted the Constitution to be an adaptable
document rather than a rigid framework for governance. Hence Parliament was invested with the
power to amend the Constitution. Article 368 of the Constitution gives the impression that
Parliament's amending powers are absolute and encompass all parts of the document. But 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 distort, damage or alter the basic
features of the Constitution under the pretext of amending it. The phrase 'basic structure' itself
cannot be found in the Constitution. The Supreme Court recognised this concept for the first time
in the historic Kesavananda Bharati case in 1973. Ever since the Supreme Court has been the
interpreter of the Constitution and the arbiter of all amendments made by Parliament.
[Parliament added the Ninth Schedule to the Constitution through the very first amendment in
1951as a means of immunising certain laws against judicial review. Under the provisions of
Article 31, which themselves were amended several times later, laws placed in the Ninth
Schedule -- pertaining to acquisition of private property and compensation payable for such
acquisition -- cannot be challenged in a court of law on the ground that they violated the
fundamental rights of citizens. This protective umbrella covers more than 250 laws passed by
state legislatures with the aim of regulating the size of land holdings and abolishing various
tenancy systems. The Ninth Schedule was created with the primary objective of preventing the
judiciary - which upheld the citizens' right to property on several occasions - from derailing the
Congress party led government's agenda for a social revolution.
Property owners again challenged the constitutional amendments which placed land reforms
laws in the Ninth Schedule before the Supreme Court, saying that they violated Article 13 (2) of
the Constitution.
The majority judgement invoked the concept of implied limitations on Parliament's power to
amend the Constitution. This view held that the Constitution gives a place of permanence to
the fundamental freedoms of the citizen. In giving the Constitution to themselves, the people had
reserved the fundamental rights for themselves. Article 13, according to the majority view,
expressed this limitation on the powers of Parliament. Parliament could not modify, restrict or
impair fundamental freedoms due to this very scheme of the Constitution and the nature of the
freedoms granted under it. The judges stated that the fundamental rights were so sacrosanct and
transcendental in importance that they could not be restricted even if such a move were to
receive unanimous approval of both houses of Parliament. They observed that a Constituent
Assembly migh tbe summoned by Parliament for the purpose of amending the fundamental
rights if necessary.
In other words, the apex court held that some features of the Constitution lay at its core
and required much more than the usual procedures to change them.
The phrase 'basic structure' was introduced for the first time by M.K. Nambiar and other
counsels while arguing for the petitioners in the Golaknath case, but it was only in 1973 that the
concept surfaced in the text of the apex court's verdict
All judges upheld the validity of the Twenty-fourth amendment saying that Parliament had the
power to amend any or all provisions of the Constitution. All signatories to the summary held that
the Golaknath case had been decided wrongly and that Article 368 contained both the power
and the procedure for amending the Constitution.
However they were clear that an amendment to the Constitution was not the same as a law as
understood by Article 13 (2).
[It is necessary to point out the subtle difference that exists between two kinds of functions
performed by the Indian Parliament:
a) it can make laws for the country by exercising its legislative power[15] and
Constituent power is superior to ordinary legislative power. Unlike the British Parliament
which is a sovereign body (in the absence of a written constitution), the powers and functions of
the Indian Parliament and State legislatures are subject to limitations laid down in the
Constitution. The Constitution does not contain all the laws that govern the country. Parliament
and the state legislatures make laws from time to time on various subjects, within their respective
jurisdictions. The general framework for making these laws is provided by the Constitution.
Parliament alone is given the power to make changes to this framework under Article 368 [16].
Unlike ordinary laws, amendments to constitutional provisions require a special majority vote in
Parliament.
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
Hegde, J. and Mukherjea, J. identified a separate and shorter list of basic features:
• sovereignty of India
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:
• parliamentary democracy
He said that the Constitution would not be itself without the fundamental freedoms and
the directive principles.[17]
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.
In summary the majority verdict in Kesavananda Bharati recognised the power of Parliament to
amend any or all provisions of the Constitution provided such an act did not destroy its basic
structure. But there was no unanimity of opinion about what appoints to that basic structure.
Though the Supreme Court very nearly returned to the position of Sankari Prasad (1952) by
restoring the supremacy of Parliament's amending power, in effect it strengthened the power
of judicial review much more.[18]
Summary
It may be said that the final word on the issue of the basic structure of the Constitution has not
beenpronounced by the Supreme Court- a scenario that is unlikely to change in the near future.
While theidea that there is such a thing as a basic structure to the Constitution is well established
its contentscannot be completely determined with any measure of finality until a judgement of the
Supreme Courtspells it out. Nevertheless the sovereign, democratic and secular character of
the polity, rule oflaw, independence of the judiciary, fundamental rights of citizens etc. are
some of theessential features of the Constitution that have appeared time and again in the
apex court's pronouncements. One certainty that emerged out of this tussle between
Parliament and thejudiciary is that all laws and constitutional amendments are now subject to
judicial review and lawsthat transgress the basic structure are likely to be struck down by the
Supreme Court. In essenceParliament's power to amend the Constitution is not absolute and the
Supreme Court is the finalarbiter over and interpreter of all constitutional amendments.
[1] Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461.2
[2] Originally, the Constitution guaranteed a citizen, the fundamental right to acquire hold and
dispose of property underArticle 19f. Under Article 31 he could not be deprived of his property
unless it was acquired by the State, under a lawthat determined the amount of compensation he
ought to receive against such an acquisition. Property owned by anindividual or a firm could be
acquired by the State only for public purposes and upon payment of compensationdetermined by
the law. Article 31 has been modified six times -- beginning with the First amendment in 1951 --
progressively curtailing this fundamental right. Finally in 1978, Article 19f was omitted and Article
31 repealed by the Fortyfourthamendment. Instead Article 300A was introduced in Part XII
making the right to property only a legal right. Thisprovision implies that the executive arm of the
government (civil servants and the police) could not interfere with the citizen'sright to property.
However, Parliament and state legislatures had the power to make laws affecting the citizens'
right toproperty.]
[3] Later on, laws relating to the nationalisation of certain sick industrial undertakings, the
regulation of monopolies and restrictive trade practices, transactions in foreign exchange,
abolition of bonded labour, ceiling on urban land holdings, the supply and distribution of essential
commodities and reservation benefits provided for Scheduled Castes and Tribes in Tamil Nadu
were added to the Ninth Schedule through various constitutional amendments.
[4] Article 13 (2) states- "The State shall not make any law which takes away or abridges the
rights conferred by this Part and any law made in contravention of this clause shall, to the extent
of the contravention, be void." The term Part refers to Part III ofthe Constitution which lists the
fundamental rights of the citizen.
[5] Sankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458
[8] Quoted in Granville Austin, Working a Democratic Constitution, The Indian Experience,
Oxford University Press, New Delhi,1999, p. 235.4
[12] The Constitution (Twenty-sixth amendment) Act 1971 and The Constitution (Twenty-ninth
amendment) Act 1972,respectively