Basic Structure of Constitution

• Since the adoption of Indian Constitution, debates have started regarding thepower of the Parliament to amend key provisions of the Constitution.
• In the early years of Independence, the Supreme Court conceded absolute power to Parliament in amending the Constitution,as was seen in the verdicts in Shankari Prasad case (1951) and Sajjan Singh case (1965).
  • In boththe cases the court had ruled that the term “law” in Article 13 must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power under Article 368.
  • This means Parliament had the power to amend any part of the constitution including Fundamental rights.
  • Article 13(2) reads, “The State shall not make any lawwhich takes away or abridges the right conferred by this Part (Part-III) and any law made in contravention of this clause shall, to the extent of contravention, be void.”
• However, in the Golaknath case (1967),the Supreme Court held that Parliament could not amend Fundamental Rights, and this power would be only with a Constituent Assembly.
  • The Court held that an amendment under Article 368 is “law” within the meaning of Article 13of the Constitution and therefore, if an amendment “takes away or abridges” a Fundamental Right conferred by Part III, it is void.
• To get over the judgments of the Supreme Court in the Golaknath case (1967), RC Cooper case (1970), and Madhavrao Scindia case (1970),the then government headed by Prime Minister Indira Gandhi had enacted major amendments to the Constitution (the 24^th, 25^th, 26^th and 29^th).
• All the four amendments brought by the government were challenged in the Kesavananda Bharati case.

Kesavananda Bharati case

• In Kesavananda Bharati case, a relief was sought against the Kerala government vis-à-vis two state land reform laws,which imposed restrictions on the management of religious property.
  • The case was challenged under Article 26,concerning the right to manage religiously owned property without government interference.
  • Question underlying the case:Was the power of Parliament to amend the Constitution unlimited? In other words, could Parliament alter, amend, abrogate any part of the Constitution even to the extent of taking away all fundamental rights?
• The Constitutional Bench in Kesavananda Bharati case ruled by a 7-6 verdict that Parliament could amend any part of the Constitution so long as it did not alter or amend the basic structure or essential features of the Constitution.
• However, the courtdid not define the term ‘basic structure’, and only listed a few principles — federalism, secularism, democracy — as being its part.
• The ‘basic structure’ doctrine has since been interpreted to include
  • the supremacy of the Constitution,
  • the rule of law,
  • Independence of the judiciary,
  • doctrine of separation of powers,
  • sovereign democratic republic,
  • the parliamentary system of government,
  • the principle of free and fair elections,
  • welfare state, etc.
• An exampleof application of basic structure is the SR Bommai case (1994).
  • In this case the Supreme Court upheld the dismissal of BJP governments by the President following the demolition of the Babri Masjid, invoking a threat to secularism by these governments.
• Arguments related to Basic structure
  • Critics of the doctrine have called it undemocratic, since unelected judges can strike down a constitutional amendment. At the same time, its proponents have hailed the concept as a safety valve against majoritarianism and authoritarianism.
• Origin:The basic structure theory was first introduced by Justice Mudholkar in the Sajjan Singh case (1965) by referring to a 1963 decision of the Supreme Court of Pakistan.
  • Chief Justice Cornelius of Pakistan had held that the President of Pakistan could not alter the “fundamental features” of their Constitution.

Previous Year’s Questions

Mains:

1. What was held in the Coelho case? in this context, can you see that reviews of review is of key importance amongst the basic features of the Constitution? (2016) 
2. What constitutes the doctrine of basic features as introduced into the constitution of India by the judiciary? (2000)
3. What according to the Supreme Court constituted the basic features switch it up held in case is known as (1997)

1. keshav nanda Bharti vs state of Kerala (1973) and 
2. Minerva mills vs union of India (1997) 

Answers: 

1. In IR Coelho state of Tamil Nadu, the apex court observe that even though and act as put in the 9th schedule by a constitutional amendment, its provisions would be opened to challenge on the ground that they destroy or damage the basic feature of structure of the constitution, for instance, if the fundamental rights are taken away or abrogated. if the validity of any 9th schedule law has already been upheld by this court, it wouldn’t be opened to challenge such law again on the principles declared by this judgement. However, if allow held to be violated of any rights in Part 3 is subsequently incorporated in the 9th schedule after 24th April, 1973, such a violation/ infraction shall be opened to challenge on the ground that it destroys or damages the basic structure as indicated in article 21 read with article 14 and article 19 on the principles lying there under. 

Broadly speaking, judicial review in India raises 3 aspects: 

• judicial review of legislative action. 
• judicial review of judicial decision. 
• judicial review of administrative action. 

judiciary apps as the protector of the fundamental rights of the citizens by limiting the states’s ensesses  through the principle of judicial review. It works according to the principle of constitutionalism. principle of judicial review, check the constitutionality of any law, if anything like any administrative decisions, law or regulation, it’s taken away from the purview of judicial review, then it will be against the basic structure doctrine. 

resale review is among the most important part of the constitution as it promotes the rule of law in the country and protects citizens from arbitrary decisions of the government. for example, the verdict of Supreme Court, in which declared section 66 (A) of the IT act, as it infringes on the article 19 (freedom of speech and expression), which has been frequently used by the state against citizens voicing on the social media. judgements of this sort, show the importance of judicial review, as one of the most important feature of the Indian constitution. 

 2. the supreme court’s decision in the Keshavananda bharati versus state of Kerala, one of the milestones in the history of jurisprudence, evolved the doctrine of basic features of the constitution. the Government of India claimed that it had the rights, as a matter of law to change or omit the whole. 

fabric of the constitution through the instrumentality of parliaments amending power and that it should be trusted to exercise this seminal right wisely. it is argued that unlimited power of amendment is necessary to meet the democratically expressed will of the people and that the peoples representatives should be trusted not to abrogate in basic freedoms. 

as the effect of the majority judgement of the Supreme Court, the parliament cannot in the exercise of its amending power, alter the basic structure of framework of the constitution. in Keshavananda Bharti’s case, The second part of article 31 C; in Mrs Indira Gandhi’s case B article 329 A(4) and in Minerva mills case, sections 4 and 55 of the 42nd amendment act were struck down precisely because it affected the basic structure of the constitution. 

these judgements of the Supreme Court somehow give the impression that there is a confrontation between parliament and judiciary. the parliament should exercise restraint in amending the constitution. the judiciary must also maintain that in defending the doctrine of the basic structure, it should not impose stringent limitations on the governance in its efforts to cater to the demands of the people, which keeps on changing with time. 

basic features rtos which are vital to the constitutional scheme and which give the constitution its identity and integrity. it is a fair assumption that those who seek to amend the constitution would have at least sufficient understanding to perceive its basic structure. 

 3. in the keshav nanda Bharti case 1973, the Supreme Court overruled its judgment indigo loknath case 1976. it upheld the validity of the 24th amendment act 1971 and stated that parliament is empowered to a bridge or takeaway any of the fundamental rights. it laid down a new doctrine of the basic structure of the constitution. it ruled that the constituent power of parliament under article 368 does not enable it to alter the basic structure of the constitution. 

this means that parliament cannot take away a fundamental right that forms a part of the basic structure of the constitution. the Supreme Court in the Minerva mills case 1980, invalidated the provision of immunity from the judicial review of the parliaments power of amendment under article 368 and declared judicial review as a basic feature of the constitution. after the keshav nanda Bharti case, the doctrine of basic structure is adhered to by the Supreme Court with regard to the amendment of the constitution.