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Saturday, January 25, 2014

Parliamentary Democracy: The road we travelled: Basic Structure,-Module-III-(Lecutres for the SC/ST,Minority Entry-in-Serive Coaching Centre, Kannur University)



Theory of basic structure: a limitation on amending power

The question whether fundamental rights can be amended under article 368 came for consideration in the Supreme Court in Shankari Prasad case.[3] in this case validity of constitution (1st amendment) act, 1951 which inserted inter alia , articles 31-A and 31-B of the constitution was challenged. The amendment was challenged on the ground that it abridges the rights conferred by part III and hence was void. The Supreme Court however rejected the above argument and held that power to amend including the fundamental rights is contained in Article 368and the same view was taken by court in Sajjan Singh case.
In Golak Nath case,the validity of 17th Amendment which inserted certain acts in Ninth Schedule was again challenged. The Supreme Court ruled the parliament had no power to amend Part III of the constitution and overruled its earlier decision in Shankari Prasad and Sajjan Singh case. In order to remove difficulties created by the decision of SC in Golak Nath case parliament enacted the 24th Amendment act. The Supreme Court recognized BASIC STRUCTURE concept for the first time in the historic Kesavananda Bharati[6] case in 1973. Ever since the Supreme Court has been the interpreter of the Constitution and the arbiter of all amendments made by parliament. In this case validity of the 25th Amendment act was challenged along with the Twenty-fourth and Twenty-ninth Amendments. The court by majority overruled the Golak Nath case which denied parliament the power to amend fundamental rights of the citizens. The majority held that article 368 even before the 24th Amendment contained the power as well as the procedure of amendment. The Supreme Court declared that Article 368 did not enable Parliament to alter the basic structure or framework of the Constitution and parliament could not use its amending powers under Article368 to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or framework of the constitution.
This decision is not just a landmark in the evolution of constitutional law, but also a turning point in constitutional history.

Basic Features of the Constitution according to the Kesavanada verdict each judge laid out separately, what he thought were the basic or essential features of the Constitution.
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 three 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
#  Sovereignty of the country.
Unegde, 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
#  Justice - social, economic and political
#  Liberty of thought, expression, belief, faith and worship
#  Equality of status and the opportunity.

Basic Structure concept reaffirmed- the Indira Gandhi Election case In Indira Gandhi v. Raj Narayan the Supreme Court applied the theory of basic structure and struck down cl. of article 329-A,which was inserted by the 39th Amendment in 1975 on the ground that it was beyond the amending power of the parliament as it destroyed the ? basic feature? of the constitution. The amendment was made to the jurisdiction of all courts including SC, over disputes relating to elections involving the Prime Minister of India.
Basic Features of the Constitution according to the Election case verdict Again, each judge expressed views about what amounts to the basic structure of the Constitution: Justice Y.V. Chandrachud listed four basic features which he considered unamendable:
#  Sovereign democratic republic status
#  Equality of status and opportunity of an individual
#  Secularism and freedom of conscience and religion
#  'government of laws and not of men' i.e. the rule of law
Justice H.R. Khanna- ?democracy is a basic feature of the Constitution and includes free and fair elections.?

Basic structure doctrine reaffirmed - the Minerva Mills

In Minerva Mills case[10] the Supreme Court by majority by 4 to 1 majority struck down clauses(4) and (5) of the article 368 inserted by 42nd Amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the constitution. It was ruled by court that a limited amending power itself is a basic feature of the Constitution
In L. Chandra Kumar case, a larger Bench of seven Judges unequivocally declared "That the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure".
Conclusion

Now we can say, there is no hard and fast rule for basic feature of the Constitution. Different judge keep different views regarding to theory of basis structure. But at one point they have similar view that parliament has no power to destroy, alter, or emasculate the 'basic  structure' or framework of the constitution. ?If the historical background, the preamble, the entire scheme of the constitution and the relevant provisions thereof including article 368 are kept in mind then there can be no difficulty, in determining what are the basic elements of the basic structure of the constitution. These words apply with greater force to doctrine of the basic structure, because, the federal and democratic structure of the constitution, the separation of powers, the secular character of our state are very much more definite than either negligence or natural justice.?[12].So for the protection of welfare state, fundamental rights, Unity and integrity of the nation, Sovereign democratic republic and for Liberty of thought, expression, belief, faith and worship, interpretation of judiciary is mandatory. We can say none is above constitution even parliament and judiciary.

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