The Basic Structure Doctrine Vis-À-Vis The Written Constitution - A Journey Of Five Decades
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Category: Constitutional & Human Rights
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THE BASIC STRUCTURE DOCTRINE VIS-À-VIS THE
WRITTEN CONSTITUTION: A JOURNEY OF FIVE DECADES Ms. Ana Sisodia, Assistant Professor, Sardar Patel Subharti Institute of Law, Swami Vivekanand Subharti University, Meerut. Prof. (Dr.) Vaibhav Goel Bhartiya, Dean, Sardar Patel Subharti Institute of Law, Swami Vivekanand Subharti University, Meerut.
ABSTRACT
The Constitution of India is a written document with a provision of amendment, if needed. The face of the Indian Constitution i. e. the Preamble has set our identity as a Sovereign, Socialist, Secular, Democratic, Republic, which is mandatory for the rudimentary functioning of the nation. But time and again it has been observed that for political motive the existence of the Constitution was distorted and even the Courts were not allowed to exercise its power of judicial review. That essentially implied that the written Constitution will have paramount importance and will have no impact on its originality due to judicial pronouncements . But in the case of Kesavananda Bharati, the doctrine of Basic Structure was propounded to settle down the relationship between fundamental rights and directive principles of State Policy.
Even it was concluded that Constitution cannot be amended if it violates the Basic Structure. However, even after almost 5 decades of its foundation it has been observed that it surpass the written Constitution which may sometimes hinder the constitutional development and disrupts the federal pattern of the nation. In other words, this can be considered as a hindrance over dynamism and living nature of the Constitution. Therefore, this Article is an attempt to analyse the doctrine of Basic Structure in present perspective and to examine the issues and challenges which are annexed to this much debatable doctrine. Keywords: Amendment, Basic Structure, Constitution, Kesavananda Bharati, Preamble.
INTRODUCTION
The Constitution of India, the highest living document of the country, narrates India, i. e. Bharat, as the world’s largest Democracy, where “We, the People” possess rights in the name of Justice, Liberty, Equality, Fraternity & Dignity of the individual and citizens at large. One staunch identity of the lex loci or the law of the land is the existence of Fundamental Rights which are placed under Part III of the Indian Constitution. To name all the Fundamental Rights, these are Right to Equality, Right to Freedom, Right against Exploitation, Right to freedom of Religion, Cultural and Educational Rights and Right to Constitutional Remedies. Among all the rights, Article 21 exemplifies in itself the entire Human Rights Jurisprudence with an obligation on the State to ensure Right to life with dignity in wider sense.
Here State may come up with legislations to fulfil its obligation in spirit of the letter keeping in mind the due process doctrine as under American Constitution. 1To ascertain the due process while legislation, Directive Principles of State Policy (DPSPs) are to be followed and even such objectivity has been visualised by the Constitutional framers who have incorporated Article 13(2)2 in the Constitution, to make sure that State does not deprive the citizens of their basic rights. However, irrespective of the presence of the Doctrine of Ultra Vires, in 1951 itself the eyebrows were raised with an interrogative sign on the issue that whether the Fundamental Rights can be curtailed by the Legislature ignoring Part IV while amending the Constitution under Article
368. If yes then whether the amending power is absolute or is it under scrutiny within the
framework of DPSP? Furthermore, the question arises that can the Sacrosanctity of the much worshipped Fundamental Rights and therefore the identity of the Constitution be taken away by the Union Legislature while amending the Constitution or enacting a new law? The question can be answered by an analysis of 7 decades of the Execution of the Constitution along with pronouncement of the Apex Court on the issue. A NEW DIMENSION AND CONSTITUTIONAL INTERPRETATION This was from 1951 continued to 1971 till the 24th Amendment took place. The controversy started from the case of Sankari Prasad case and continued for abut 2 decades. To understand 1Maneka Gandhi v. Union of India, 1978 AIR 597. 2INDIA CONST. art. 13, cl. 2.
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 varied view point with the objective of the present research detailed analysis of cases is been done, which is as follows: Sri Sankari Prasad Singh Deo v. Union of India3- The framers of the Indian Constitution have not only taken into account the Civil or Political rights of an individual but have also given considerable importance to the social and economic rights for our overall well-being. Therefore, through Directive Principles of State Policy via various provisions such as, Article 38(2)4 which directs the State to take appropriate measures to “..... eliminate inequalities in status, facilities and opportunities.....
”, Article 39 (b)5& (c)6 which mandate at equal distribution of material resources of the community so that the economic system does not collapses due to concentration of wealth in the hands of have not’s, similarly, Article 467, which aims to culminate any social injustice or exploitation which may take place against the Weaker Section of the society, the State in 1950-1951 has attempted to advance certain agrarian reforms to uproot the evil of Zamindari system from our Country. In this progression, Article 31A and 31B were added to the constitution. Article 31A states that if State makes any law providing for the acquisition of any Estate, it shall not be declared void on the ground that it curtails any right conferred by Part III of the Constitution.
Similarly, Article 31B, made those Acts or Regulations that were placed under IX Schedule, immune from being declared Void on contravening the provisions of Part III. Thus, the validity8 of these Amendments was challenged on the ground that it abridges the Fundamental Right to Property as placed under Article 19(1)(f) and having recourse to the limitation imposed on the State as per Article 13(2). It was contented that "The State" includes Parliament (Article 12) and "law" must include a Constitutional Amendment,9 and therefore, The Constitution (First Amendment)
31951 AIR 458.
4INDIA CONST. art. 38, cl. 2. The State shall, in particular, strive to minimize the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. 5INDIA CONST. art. 39, cl. b. That the ownership and control of the material resources of the community are so distributed as best to sub serve the common good. 6INDIA CONST. art. 39, cl. c. That the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment. 7INDIA CONST. art. 46. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections.
- The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. 8https://www. india. gov. in/my-government/constitution-india/amendments/constitution-india-first-amendmentact-1951, (July 19, 2021, 12:07 PM). 9https://indiankanoon. org/doc/1706770/, (July 19, 2021, 12:55 PM).
Act, 1951, is unconstitutional as it takes away the Fundamental Right of the citizen. However, the Apex Court upheld that there is delineation between an Ordinary law made out of the common legislative process and a Constitutional Law, which evolves as a result of the constituent power of the Parliament. The Court further went on stating, that if keeping Fundamental Rights outside the Amending power of the Parliament would have been the intention of the fore-fathers, then they would have specifically provided for the same, as one can witness in Japanese Constitution (Article 11) or American Constitution (Article 5). Thereon the Supreme Court went to declare the aforesaid amendment as valid and Constitutional. Sajjan Singh v.
State of Rajasthan10- In the case at hand, six writ petitions were filed under Article 32 of the Constitution, in which the validity of the Constitution (17th Amendment) Act, 196411 was defied. Certain Acts related to land reforms were placed under the IX schedule, whose constitutionality was challenged. The Court with a majority of 3:2 reiterated the same opinion as expressed in Sankari Prasad case, respectively. I. C. Golaknath & Ors. v. State of Punjab & Anrs. 12- This is yet another landmark case that touched the cornerstone of the ambit of Article 36813. The pronouncement in Sankari Prasad and Sajjan Singh did not for once and all finished the debate concerning the authority of the Parliament to amend the Fundamental Rights by walking down the often taken route of Article 368.
As the Court in this case itself highlighted that, “Fundamental rights are the primordial rights necessary for the development of human personality14”. The dispute arose when Petitioner, who once owned 500 Acres of property in Punjab, was now only allowed to possess 30 acres of land after the enactment of Punjab Security and Land Tenures Act, 1953, and the rest was considered as Surplus by the State Government. This made the petitioner to challenge the impugned Act through which his property was snatched away, and he was debarred from exercising his Fundamental Right to Property, as it then exist under
101965 AIR 845.
11https://indiankanoon.org/doc/1308308/, (July 7, 2021, 8:34 AM).
121967 AIR 1643.
13INDIA CONST. art. 368.Power of Parliament to amend the Constitution and procedure therefor. 14https://indiankanoon.org/doc/120358/, (July 20, 2021, 13:44 PM).
Article 19(1)(f), along with Right to practise any profession and Right to Equality. Henceforth, the Constitution (17th Amendment) Act, 1964 was once again challenged as it placed the Punjab Act of 1953 under the ninth schedule. The issue persistent before the Court was to adjudicate over the amending powers of the Parliament under Article 368 and whether can it curtail the Rights guaranteed under Part III and still walk free from Judicial Review under Article 13(2)? The Court with a majority of 6:5 adjudged thati. Under Article 368 only procedure to amend the Constitution is specified and not the Power to amend. ii. The Parliament derives this power from Arts. 245, 246 and 248 read with item 97 in List I. The residuary power of the Parliament certainly incorporates in itself the power to amend the Constitution. iii.
The Constituent assembly could have provided an express power on the Parliament, it so minded. Therefore the Court was of the view that Art. 368 is not a complete code in itself and so there is no discrepancy between amending power and legislative process, thus, both of them falling under the category of “law” for the purpose of Article 13(2). Amending is a legislative process. iv. However sovereign the amending power is, but it is not free from restrictions. Court also held that Article 368 does not concern itself with political questions, and thus, is not beyond the scope of judicial review. v.
Court was of the view that Constitution (17th Amendment) Act, 1964 which abridged the fundamental right of the citizen was unconstitutional, but having regards to the earlier decisions of the Court in this respect and other social and economic far reaching impact it may hold, the court decided to apply the doctrine of prospective overruling to it, as evolved by the Courts in USA. vi. The Constitution (First Amendment) Act, 1951, Constitution (Fourth Amendment) Act, 1955, and the Constitution (Seventeenth Amendment) Act, 1964, were declared violative of the Fundamental Rights. But, on the basis of earlier decisions of this Court, they were valid, having regards to the application of Prospective Overruling. vii. But for future references, Parliament will have no power to amend Part III. viii.
The Court however, also provided a way to amend the Fundamental Rights when a national demands need to be met. It went on illustrating that a Constituent Assembly can be created by relying on the residuary power of the Parliament, to make a new Constitution or for radically changing it. The judgment came as a ray of hope against the autocracy of the law makers which was felt completely self centered ignoring the intention behind the provisions of directive Principles. The Apex Court focused on the prominence of the Fundamental Rights and restricted its scope to amend the basic features of the Indian Constitution. However, there were certain loopholes in the judgment, it is contended that the inclination of the Court to favour the creation of a Constituent Assembly will make the process rigid and devastating.
Nevertheless, the landmark judgement has a far reaching impact and lead to a never ending tussle between the Judiciary & the Legislature. Thereby infuriating the Indian Parliament to come up with Constitution (24th Amendment) Act, 1971, to overcome the effect of I. C. Golaknath case. Bank Nationalization case15- Through Banking Companies (Acquisition and Transfer of Undertakings) Ordinance, 1969,14 private banks were nationalized. Subsequently the Ordinance got converted into an Act, whose constitutionality was challenged before the Court. By 10:1 majority, the Apex Court held that the Constitution mandates for appropriate “compensation” to be paid which should be equivalent to the property which has been acquired by the government.
Therefore the issue that whether the Banking Companies (Acquisitions and Transfer of Undertakings) Act, 1970 is valid or not was answered by the majority in negative and the Act was struck down for violating its own provisions as the government failed to provide adequate compensation to the banks who have been nationalized and taken over by the central government. Privy Purses Case16- Basically, Privy Purse was a sum that was paid to the royal and erstwhile ruling families because they agreed to merge their princely States within India in 1949 and lost their sovereign rights. The order of the President to derecognize the rulers and their privilege was declared unconstitutional by the Supreme Court as violative of their rights embodied under Article 19, 15Rustom Cavasjee Cooper v. Union of India, 1970 AIR 564. 16Maharaj adhiraja Madhav Rao Jiwaji Rao Scindia Bahadur v.
Union of India, 1971 AIR 530.
21 & 31, respectively. The series of cases after I.C. Golaknath shook the foundation of then
ruling government, which incited it to make certain Amendments as soon it came back to power after dissolution of Lok Sabha. Some of the important amendments are discussed as below. LEGISLATIVE INTENT AND CONSTITUTIONAL AMENDMENTS It was by now well established in Golaknath case that Parliament is not empowered to curtail the Fundamental Rights even to give way to the implementation to Directive Principles of State Policy. Therefore, the Parliament came up with the 24th Constitutional Amendment. Constitution (24th Amendment) Act, 1971
1971 was the time of the new Lok Sabha with the previous faces who were unsatisfied with the
Golaknath Judgment. Perhaps their objective was to nullify the impact of the judgment. Therefore to halt the impact of the abovementioned judgment the government came up with Constitution (24th Amendment) Act, 1971in the following manneri. Clause (4) to Article 13and clause (3) to Article 368 was added to ascertain that Article 13 will have no impact on the amending powers of the Parliament. A combine reading of the Articles make the intention of the Parliament lucid and clear to demarcate the boundaries between the law developed out of normal legislative process and the one established out of the amending power of the legislature, for the purpose of Article 13(2). ii. The marginal heading of the Article 368 was altered as, “Power of Parliament to amend the Constitution and procedure therefor. ” Constitution (25th Amendment) Act, 1971i.
The amendment made certain changes to Article 31, by providing that no property will be acquired unless an “amount” will be paid as fixed by such law. ii. No such law as mentioned above shall be objected on the ground of inadequacy. iii. Section 3 of the Amendment added Article 31C17 to the Constitution which highlighted that notwithstanding anything contained in Article 13, if any policy of the State gives priority to the 17Saving of laws giving effect to certain directive principles. implementation of article 39 (b) & (C) over the application of Article 14, 19 & 31, it will not be declared void, thereby, placing Directive Principles of State Policy above Fundamental Rights. iv. These amendments were made so as to nullify the aftermath of the judgment in Bank Nationalization case.
Constitution (26th Amendment) Act, 1971- To overcome the judgment of the Apex Court in Privy Purse case the Parliament added Article 363-A which emphasised on the abolition of the recognition and Privilege of Privy Purse which was provided to the ex-rulers of Indian States. Constitution (29th Amendment) Act, 1972- Through this Amendment, the Kerala land reforms (Amendment) Act, 1969 & 1971 were placed under IX Schedule, which resulted in dawn of constitutional era. SETTLEMENT OF THE ISSUE WITH KESAVANANDA BHARATI CASE Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr18- This case is a constitutional antiquity & probably the one that changed the entire judicial and political perspective by defining the basic structure of the Indian Constitution.
Six writ petitions challenged the constitutional validity of the above three mentioned Amendments, as they were alleged to take away the Fundamental Right of Property available to the citizens. Henceforth, once again the debate as to the power of the Parliament to amend the Fundamental Rights and its limitations, if any, started to take over. The Petitioner was the chief of Edneer Mutt, a religious sect in Kerala and used to hold certain acres of land in the sect in his own name. After passing of the Kerala Land Reforms Amendment Act, 1969, the Petitioner was deprived from some of his land, which led him to challenge the law.
Since his Right to property was directly associated with the Parliament’s power to amend the Constitution in general and Fundamental rights in particular, therefore, the constitutional validity of 24th, 25th& 29th Constitutional Amendments as mentioned above, were 18(1973) 4 SCC 225. also challenged being in infringement of Article 25,26, 19(1)(f), 14 & 31. The main issue before the Court was whether the Parliament can amend the Fundamental Rights to any extent? In addition to it the Court has also retreat the position to the impugned 24th, 25th& 29th Constitutional Amendments. The case was adjudicated by a 13th Judges Bench with 11 individual view-points (judgments) which can be summarised in following words: • The Court overruled the judgment of Golaknath case and the doctrine of “Basic Structure” was born.
• Fundamental Rights can be amended in the interest of socio-economic needs of the society, but it does not mean that the Parliament can hamper the identity of the Constitution by derecognizing the basic structure. • Constitution 24th (Amendment) Act, 1971 was declared constitutional. • Constitutional Amendment is not law for the purpose of Article 13. • He further held that the above mentioned structure is built on the “basic foundation, i. e. , the dignity and freedom of the individual...... This cannot by any form of amendment be destroyed. ”19 • Section 2 of Constitution 25th (Amendment) Act was also declared valid. • Section 2(a) and 2(b) along with the first part of section 3 of the 25th Amendment were uphold as valid. However, the second part of section 3 was declared unconstitutional. • The Supreme Court upheld the validity of 29th Amendment, 1971.
• However, when it came to conclude and define as to what constitute the Basic Structure the determination of the bench was scattered in this respect: a. As per Justice Sikri, Separation of powers, Supremacy and federal character of the Constitution, Republican and Democratic attribute of the Government, Secular 19https://indiankanoon. org/doc/257876/, (July 23, 2021, 11:15 AM).
Constitution, are some essential features. b. Shelat J. and Grover J. added Dignity of the individuals and Unity, integrity & sovereignty of the nation along with existence of Welfare State as Basic Structure. c. Justice Hedge and justice Mukherjee opined these as Basic Structure: • Unity of the country. • Sovereign and democratic republic. • Individual freedom. d. Justice Jaganmohan Reddy stated as follows: • Sovereign, democratic and republican nature • The equality of the status • Social, economic and political justice • Liberty of thoughts and expression • Belief, faith and worship Seven of thirteen judges in the case at hand, including Chief Justice Sikri, acknowledged that Parliament's constituent power to amend the Constitution was subject to certain inherent limitations; therefore, it is not absolute.
In disguise of Article 368, the Parliament cannot 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or framework of the Constitution, respectively. 20However, the experience sharing of the intellectuals and newspaper reporting clearly indicates the dissatisfaction of the government. Out of 13, 6 were with the minority opinion. 703 pages judgment revealed a sharply divided court and by water thin majority of 7:6 silently indicated many unsaid stories about political influence over judiciary. 20https://constitutionnet. org/vl/item/basic-structure-indian-constitution, (July 23, 2021, 13:09).
Indira Gandhi V. Raj Narain21- In 1975 the Apex Court got an opportunity to reiterate the doctrine of Basic Structure in the present case in which the victory of Mrs. Indira Gandhi in Lok Sabha elections was challenged as being succumbed by electoral malpractices. Allahabad High Court upheld the allegations against her but Justice Krishna Iyer, in the capacity of a vacation judge, granted a stay and allowed her to function as the Prime Minister provided on certain conditions annexed to the office. During the pendency of the challenge, the Parliament passed Constitution 39th Amendment Act, and added Article 329A which restraint the power of the Supreme Court to adjudge petitions related to the electoral dispute of certain offices, including that of Prime Minister and the same was supposed to be vested in a body constituted by the Parliament.
The Parliament further went on to place certain amendments made to Representation of People Act, 1951 and other related laws to 9th Schedule thereby keeping it safe from judicial scrutiny. However, it was contended that this malafide action of the Parliament in haste to safeguard the Prime Minister from adverse consequences is against the very basic structure of the Indian Constitution in the nature of free and fair elections. Though again, the bench did not give any coherent definition as what may consist of the basic structure of the Constitution, however, individually judges hold different understanding in this respect. For say, Justice H. R. Khanna held democracy to be the basic structure inclusive of free and fair elections, which is sine qua non of any egalitarian society. Justice K. K. Mathew holds judicial review to be the indispensable feature.
Similarly, according to Justice Y. V. Chandrachud, equality of status and opportunity, identity of the country as Sovereign, Democratic, & Republic State, Secularism & Freedom of Religion along with Rule of Law are some essential postulates of basic structure. Justice A. N. Ray held that Constituent power is sovereign as the Constitution flows from the same power and it is independent of the doctrine of separation of powers. He opined that democracy is an essential attribute of basic structure. However, Justice M. H. Beg disagreed with Justice Ray over the supremacy of constituent power over the Constitution. He contended that Supremacy of Constitution & Separation of Powers is the basic feature as drawn from the Kesavananda judgment. After the declaration of national emergency by then Congress ruling government, a committee 21AIR 1975 SC 865.
was established under the chairmanship of Sardar Swaran Singh to study and analyse various parameters of the Constitution ranging from DPSPs to amending powers of the Parliament. The statement of object & reasons to the Constitution Act of 197622 unwrap as, “A Constitution to be living must be growing. 23” It further went on placing on the record the aim of the legislature to remove the difficulties which have arisen on the way of socio-economic development, creating a solid identity of the Nation as socialist & Secular State, and creating presumption in favour of the constitutionality of the legislative enactment by amending Article 368. However, few amendments made to the Indian Constitution by virtue of Constitution Act of
1976 have been debatable and subjected to great controversies. Few of them are as under-
(i) Section 4 of the Constitution Act of 1976 positioned Directive Principles of State Policies over Fundamental Rights by amending Article 31-C24 . (ii) It curtailed the powers of the High Court by adding Article 32A25. (iii) Section 55 of the Constitution Act of 1976 restricted the jurisdiction of the Courts to exercise its power of judicial review by adding clause 426& clause 527 to Article 368. Minerva Mills Ltd. & Ors v. Union of India & Ors28- In the present case, the petitioners challenged the constitutional validity of certain provisions of the Sick Textile Undertakings (Nationalisation) Act, 1974 through which the company in the name of Minerva Mills Ltd. was nationalised and there hence taken over by the Central Government.
The constitutionality of the Constitution (Thirty Ninth Amendment) Act,1975 was also confronted through which the disputed Nationalisation Act was placed in Entry 105 2242nd Constitutional (Amendment) Act, 1976. 23https://legislative. gov. in/constitution-forty-second-amendment-act-1976,(July 28, 2021, 13:44). 24In article 31C of the Constitution, for the words, brackets, letters and figures "the principles specified in clause (b) or clause (c) of article 39", the words and figures "all or any of the principles laid down in Part IV" shall be substituted. 25INDIA CONST. art. 32A. Constitutional validity of State laws not to be considered in proceedings under article 32.
-Notwithstanding anything in article 32, the Supreme Court shall not consider the constitutional validity of any State law in any proceedings under that article unless the constitutional validity of any Central law is also in issue in such proceedings. " 26INDIA CONST. art. 368, cl. 4. No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976] shall be called in question in any court on any ground. 27INDIA CONST. art. 368, cl. 5. For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.
281980 AIR 1789.
under IX schedule and therefore deferred from the judicial scrutiny. Section 4 and 55 of the Constitution (Forty Second Amendment) Act, 1976 was also disputed and following issues were raised- (i) Whether these Sections of the aforementioned Act are beyond the amending power of the Parliament under Article 368 and therefore void? (ii) Whether DPSPs can have superiority over the Fundamental Rights? On the first issue, the Court with a majority of 4:1 held that Article 368(5) is prima facie unconstitutional as it demolishes the very pillars on which the preamble rests by empowering the Parliament to exercise its constituent power without any "limitation whatever29". The Constitution has bestowed a limited amending power on the legislature and therefore not absolute so as to abrogate the democracy. In fact, the Court recognised limited amending power as an essential feature.
On a similar note, Clause 4 of Article 368 is unconstitutional too, as both of the clauses are interlaced to each other. Where on one hand, Clause 5 implicate to eliminate all restrictions on the amending power of the Parliament, Clause 4 on the other divests the Court to question any such impugned amendment. On the second issue, the Court adjudicated that to decide whether DPSPs can be prevalent over Fundamental Rights, it is essential to determine that whether Article 14 & 19 are a part of the basic feature of the Constitution and if the answer is affirmative then it cannot be nullified.
The Court reiterated that the Directive principles of State Policy is of significant importance to realise the needs of the common being in the society, but it doesn’t means that these goals should be achieved by outstanding the Fundamental Rights, the latter being inalienable and constitute the ark of the Constitution. 30 The Court went on harmonizing Fundamental rights with that of DPSPs and said that they both are like two wheels of a chariot, one no less important than the other31. Thereby, rendering, harmony between the Fundamental Rights and DPSPs as the basic feature of the Indian Constitution. Therefore, the amendment to Article 31C was declared unconstitutional. However, in the minority judgment Justice Bhagwati disagreed to the fact that in case of 29https://indiankanoon. org/doc/1939993/, (July 28, 2021, 20:19). 30Kesavananda Bharati v. State of Kerela, (1973) 4 SCC.
31Minerva Mills Ltd. v. Union of India, (1980) 2 SCC 591. conflict between DPSPs and Fundamental Rights, giving primacy to the former over latter will anyhow damage the basic structure of the constitution, thereby declaring amended Article 31C as valid. Waman Rao and Ors v. Union of India and Ors. 32- The validity of Article 31A, 31B and unamended 31C of the Indian Constitution was challenged on the ground that it deprives a person to relish the guaranteed Fundamental rights thereby violating the basic structure of the Constitution. But to the contrary the bench with a majority of 4:1 upheld the validity of the alleged provisions after undertaking an in depth sight of the 1st Amendment Act, respectively. The Court was of the view that these Articles serve to protect the underlying socio economic disparity in the society.
The Court further held that the laws placed under IX Schedule before the pronouncement in Kesavananda Bharti case cannot be called into question in any Court for violating the Fundamental Rights. However, the laws placed after the pronouncement would be valid only it is stand the canons of the Basic Structure doctrine. S. P. Sampath Kumar v. Union of India33- Article 323-A which placed the administrative tribunals beyond the jurisdiction of all Courts except for Supreme Court was declared constitutional. The Court stated that the Parliament can formulate alternate mechanism for judicial review without obstructing the way of basic structure. P. Sambamurthy v. State of A. P. 34- The Court unanimously invalidated clause (5)35 of Article 371-D added by 32nd Amendment of the Constitution. The Court held that the proviso which permitted the government to annul any 32(1981) 2 SCC 362.
33(1987) 1 SCC 124.
34(1987) 1 SCC 362.
35INDIA CONST. art. 371-D, cl. 5. The order of the Administrative Tribunal finally disposing of any case shall become effective upon its confirmation by the State Government or on the expiry of three months from the date on which the order is made, whichever is earlier: Provided that the State Government may, by special order made in writing and for reasons to be specified therein, modify or annul any order or the Administrative Tribunal before it becomes effective and in such a case, the order of the Administrative Tribunal shall have effect only in such modified form or be of no effect, as the case may be. order of the tribunal is an explicit example of the State arbitrariness and thus, violation of the Rule of Law, indispensable to any democracy. L. Chandra Kumar v.
Union of India36- Article 323-A and 323-B that excluded the jurisdiction of the Supreme Court under Article 32 and High Court under Article 226 to that extent were declared void. I. R. Coelho v. State of Tamil Nadu37- A unanimous decision of the 9 judges bench of the Supreme Court in the ninth schedule case, is well founded for ending the prolonged tussle between the government and judiciary which finally rested on the principle that the amending powers of the parliament are subject of judicial review. The Ninth Schedule was added by virtue of first Amendment to the Indian Constitution and various laws related to agrarian reforms were placed under it, which made them immune from judicial examination. However with the advent of time, extensive misuse of the same was witnessed which resulted in a sustained tug of war between the executive and the judiciary.
As a result of this pronouncement, no law arbitrarily placed under ninth schedule after 24th April, 197338 can be provided blanket protection. If any law placed under the same will be found against the touchstones of Article 21 including Article 14 & 19, it will be declared ultra vires the Constitution. RELEVANCE OF BASIC STRUCTURE DOCTRINE IN PRESENT PERSPECTIVE The doctrine of Basic Structure, even after almost 5 decade of its pronouncement, has not been incorporated in the Constitution via Constitutional Amendments stating its significance and role. In this span about 50 amendments have been made and the said doctrine has been pleaded in more than 100 cases before the apex Court. To a layman it is complicated to understand the law without its incorporation in the legislation. Therefore, despite its pronouncement in 1973 36(1997) 3 SCC 261.
37AIR 2007 SC 861.
38The date on which Kesavananda Bharati v. State of Kerela was decided. in the Fundamental Rights Case, there has been a constant tussle between the Judiciary and executives. Lately, in Supreme Court Advocates on Record Association v. Union of India39 the National Judicial Appointment Commission was declared unconstitutional as it has been held to be violative of independence of judiciary, an indispensable feature of the Constitution. However, the same has been criticised by a section of intellectuals for overreaching sphere of legislature on the part of judicial organ of the State. This benchmarks a need to create a definite definition of the Basic Structure so that it may exist in harmony with the overall legislative development of the nation.
Likewise in the recent past, the enactment of CAA, 2019 has been staunchly criticised in a number of petitions before the Apex Court on the ground of violation of Secularism-as a basic feature, however the centre replied to the same that the classification is not based on the basis of religion rather basis of the classification is “religious persecution”. In Mohd. Sayeed Noori v. State of Maharashtra (2019), the Supreme Court was swamped with petitions regarding the sustainability and constitutionality of the reservation provided to Marathas by placing them in the category of backward classes via Maharashtra Socially and Educationally Backward Classes Act, 2018. The reliance was placed on Indra Sawhney II (1999) where the concept of equality was enshrined by the Court. Similarly in Youth for equality v.
Union of India (2019),Constitution (103rd Amendment) Act, 2019, which provides reservation for EWS has been challenged for violating 50% reservation ceiling as put forth by Mandal Commission case40, respectively. In Nasifa Khan v. Union of India41, Nikah-Halala and polygamy has been challenged for being in contravention of Article 14, 15, 21 and 25 of the Indian Constitution. Similarly in Yasmeen Zuber Ahmad Peerzade v. Union of India42, permission was sought for muslim women to enter the mosque for offering prayers. In both of the cases concerning personal laws basic structure was involved in the light of right to equality and dignity, respectively. 39(2016) 5 SCC 1.
40IndraSawhney v Union of India, AIR 1993 SC 477. 412019. 422019.
In another case43, where revocation of Jammu & Kashmir special status was challenged by plenty of petitions, it was argued that the stand of the government of removal of Article 370 was against the basic structure doctrine. In fact it seems that basic structure doctrine is being used for political colours rather than constitutional mandates. The Government stand of removal of these Articles was with due process, and to respect the sentiments of those who have refugees in their own country due to special status of their native state. In yet another pending case44 before the Supreme Court, which questioned the validity of much heated farm laws, the basic structure doctrine was pleaded in light of independence of judiciary and on many other aspects.
Therefore, as a lawperson question arises about the implication of a judgment after 49 years with no legislative action but with a pivotal tool to approach the Apex Court on the basis of Doctrine with undefined, limitless and a water thin majority judgment.
CONCLUSION
The Doctrine of Basic Structure is undoubtedly an indispensable part of the Indian Constitution. After the Commencement of the Constitution there has been a constant conflict between the legislature and the Judiciary as to who will rule whom. Since the Birth of “Bharat, a Union of States45”, the country has faced tremendous ups and downs through which the supreme document which has been provided to us by the forefathers has suffered more than a government. The entire journey from Shankari Prasad to I. R. Coelho has just uplifted the solemn rights bestowed to “we, the People” by the Drafting Committee. Erstwhile Kesavananda Bharti, the standards were inclined towards the power of the Parliament to amend anything and everything even to the extent of abrogating the guaranteed Fundamental Rights by surpassing the judicial check of Article 13.
Though, an attempt was made in Golaknath case to restore the guardianship power in the hands of Judiciary which can ascertain the protection of fundamental Rights from the draconian Acts of the Parliament. However, the executive was not ready to accept the dominance of judiciary in its functioning. This resulted in a number of Constitutional
43 Shah Faesal v. Union Of India on 2 March, 2020.
44 T.N. Prathapan v. Union of India and Anr., 2019.
45INDIA CONST. art.1, cl. 1.
Amendments (as discussed in the Article) been tabled by the Executive on the floor of the house to nullify the effects of judicial pronouncements. It was only in the benchmark case of Kesavananda that the Bench with 7:6 majority held that Parliament can amend anything but not the Basic Structure. However the question as to what may constitute the Basic Structure has not been clarified by the Court, even in the subsequent pronouncements. Moreover, the doctrine of Basic Structure is not free from criticism on the ground that it is not rational to classify the law of the land into essential and non-essential features. There can be no provision of the Indian Constitution which is unnecessary in its spirit.
It can also be argued that if gradually all the attributes of the Indian Constitution will be declared as a part of Basic Feature then it would lead to rigidity and the death of the Constitution. The Constitution is a living document, which has to stand the test of time and society. The Supreme Court has gone far from start, and as the protector of the rights of the people, it has uphold Secularism,46 Rule of law,47 and free & fair elections48 to be the basic structure of the Indian Constitution. Also, it is pertinent to note that since the very inception of this substantial Doctrine, there has not been any profiling attempt to codify it. This instead of proving a boon might end up creating obstacles in the path of much needed reforms, whether politically, socially or judicially.
Therefore, it is high time for the all the three organs of the State to come up with a definite parameters for better functioning of the Doctrine of Basic Structure. However, the importance of the Doctrine of Basic Structure is inevitable which has a far reaching impact on the Constitutional developments, Indian Polity & citizens and their rights at large. 46(1994) 3 SCC 1.
47S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124. 48Kuldip Nayar v. Union of India, (2006) 7 SCC 1.