The Basic Structure of the Constitution (Blog by Group 3)

Presentation by Group 2: P. Verma, M. Sunkara, N. Gupta, R. Chauhan, S. Sharma

Blog by Group 3: C. Bhardwaj, B. Pamidighantam, S. Prem, N. Halakhandi, A. Agarwal, A. Roy

Minutes for 18th April, 2018

Group Two in their presentation on the Basic Structure of the Constitution, explained in the beginning of their presentation that the Constitution must be ever-evolving and emphasised that ours is a living Constitution that requires amendments made to the fluctuating need of the society. They further stressed upon the importance of Articles 13(2) and 368 which elucidate about how the creation of Laws which are inconsistent to the rights conferred by this part shall be deemed to be void and that the Parliament may exercise its’ powers to amend the Constitution, respectively. The Group further placed strong emphasis on the Golaknath case.

The following is a summary of the concepts and themes covered by the Group:

Basic Structure of the Constitution

A culmination of a long struggle between Judiciary and Parliament, 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.

Although 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 define or explain what constituted the basic structure.

The group additionally shared the following photograph pertaining to the development of the basic structure:

Golak Nath v. State of Punjab (1967) 2 SCR 762

In the famous case of Golaknath V. State of Punjab, in the year 1967 the Court ruled that Parliament could not curtail any of the Fundamental Rights in the Constitution.

Beginning with its ruling in the Golaknath case, the Court developed jurisprudence around what was known as the “basic structure doctrine.” According to this doctrine, the Court oversaw preventing the erosion of those enduring values that constitute the essence of constitutionalism.

Although it backtracked six years later, the Court continued to say publicly that in principle no institutional body could alter the democratic essence of the Constitution. Similarly, in property law disputes, the Court did not hesitate to rule on more than one occasion that individuals whose land was taken by the government were receiving inadequate compensation. As the state increasingly failed to deliver on its promises and the public grew tired of the country’s lack of prosperity, more people began turning to the Court as the one legitimate institution with the power to protect their interests.

The Court while scrutinising the arguments, highlighted two core issues and bifurcated the judgement consequently.

The first issue that arose whether amendments qualified as “law” under the meaning of Article 13(2).

Since 1951, questions have been raised about the scope of the constitutional amending process contained in Article 368. In Shankari Prasad Singh v. Union of India , the argument against the validity of the 1st Amendment was that Article 13 prohibits enactment of a law infringing or abrogating the Fundamental Rights that the word “Law” in Art. 13 would include any law; even a law amending the Constitution and, therefore, the validity of such a law could be judged and scrutinized with the reference to the fundamental rights which it could infringe. Here in this case there was a conflict between Arts. 13 and 368. Adopting the literal meaning of the constitution, the Supreme Court upheld the validity of the 1st Amendment. The Court rejected the contention and limited the scope of Art. 13 by ruling that the word ‘Law’ in Art. 13 would not include within its compass a constitution amending law passed under Art. 368. The Court stated on this point: “we are of the opinion that is the context of Art. 13 laws must be taken to mean rules and regulations made in the exercise of ordinary legislative power and not amendments to the Constitution made in the exercise of constituent power with the result that Art. 13(2) do not affect amendments made under Art. 368.”

The Court held that the terms of Art. 368 are perfectly general and empower Parliament to amend the Constitution without any exception. The fundamental rights are not excluded or immunized from the process of constitutional amendment under Art. 368. These rights could not be invaded by legislative organs by means of laws and rules made in exercise of legislative powers, but they could certainly be curtailed, abridged or even nullified by alterations in the Constitution itself in exercise of the constituent power.

There is a clear demarcation between ordinary law, which is made in exercise of legislative power, and constitutional law, which is made in exercise of constituent power. Both Article 13 and 368 are widely phrased and conflict in operation with each other. To avoid the conflict, the principle of harmonious construction should be applied. Accordingly, one of these Articles ought to be read as being controlled and qualified by the other. In the context of Article 13, it must be read subject to Art. 368. Therefore, the word ‘law’ in Art. 13 must be taken to refer to rules and regulations made in exercise of ordinary legislative power, and not to constitutional amendments made in the exercise of the constituent power under Art. 368 with the result that Art. 13(2) do not affect amendments made under Art. 368. The Court, thus, disagreed with the view that the fundamental rights are inviolable and beyond the reach of the process of constitutional amendment. The Court, thus, ruled that Art. 13 refer to a “legislative” law that is an ordinary law made by a legislature, but not to a constituent law that is a law made to amend the constitution. The Court thus held that Parliament could by following the ‘procedure’ laid down in Art. 368 amend any fundamental right.

Again, in Sajjan Singh’s case this issue came up. But the Supreme Court in this case ruled by majority of 3:2 that the “pith and substance” of the Amendment was only to amend the fundamental right so as to help the State Legislatures in effectuating the policy of the agrarian reform. The conclusion of the Supreme Court in Shankari Prasad’s case as regards the relation between Arts. 13 and 368 was reiterated by the majority. it felt no hesitation in holding that the power of amending the Constitution conferred on Parliament under Art. 368 could be exercised over each and every provision of the Constitution. The Court refused to accept the argument that fundamental rights were “eternal, inviolate, and beyond the reach of Art. 368.”

The second conundrum that arose was whether Fundamental Rights could be amended or not.

No Earthly wisdom can foresee every possible situation which may have to be faced in future. Nothing may remain static in the world. Nature demands change. A political society undergoes changes with the passage of time. To face new problems and challenges changes and modifications are called for in all aspects of national life. It is therefore, impossible to make a constitution which can satisfy the needs of the people for all times to come. Changing circumstances will require modification of constitutional provisions. A constitution that denies the right to amend it is likely to be destroyed and replaced by the succeeding generations. It is therefore wise to provide for a mechanism to change the constitution in the Constitution itself. That is why every modern constitution provides for a machinery or process to amend its provisions. The framers of the Indian Constitution provided for a process which is neither too rigid nor too flexible. Article 368 specially deals with amendments, but some other Articles in the Constitution provide for amendments by ordinary legislative process.

Views of Pandit Jawaharlal Nehru Supporting the Amending Provisions

In addition to this, being the keen observers we are with an unquenchable thirst for knowledge (read with a pinch of salt), we further came across the views of our Hon’ble Former Prime Minister Pandit Jawaharlal Nehru who supported the amending provisions and have thus included the same for a better understanding.

“That while we want this constitution to be as solid and as permanent as a structure we can make it nevertheless there is no permanence in Constitutions. There should be certain flexibility. If you make anything rigid and permanent, you stop the Nation’s growth, the growth of a living, vital organic people……

But in any event, we should not make a Constitution such as some other great countries have, which are so rigid that they do not and cannot be adapted easily to changing conditions. Today especially, when the world is in turmoil and we are passing through a very swift period of transition, what we may do today may not be wholly applicable tomorrow.”

Discussion

Q. How would the fundamental rights have panned out if the Keshavnanda Bharti case would not have come up?

A. If the Keshavnanda Bharti case would have never come into the picture than today we would not have right to privacy, right to education. It is due to this case which led to the amendments in the constitution.

Q. If possible, could you differentiate between the Golaknath and Keshavnanda cases?

A. Golaknath case is fundamentally different from the Keshavnanda case. It’s much more radical and in many ways the Golaknath case has rejected the idea of the basic structure of the constitution. Golaknath is saying that there is nothing as basic structure and you cannot not amend anything under Part 3 as constitution is considered to be supreme and you cannot infringe any fundamental rights. Keshavnanda case says that you can amend any part of the constitution as long as it does not infringe the basic structure of the constitution which the judges have decided by looking at the preamble and what it is saying.

Q. Since the basic structure of the constitution is not defined anywhere so does this give judiciary extra judicial powers or act as a judicial overreach?

A. Yes, it gives extra judicial powers to a very great extent. In Indira Gandhi case, the judges have different views upon as to what basic structure is and it largely depends who the judge is. There are certain guidelines as to what basic structure of the constitution is and there is not set code of rules to define the structure it can be interpreted in any manner. Sometimes judges might feel that they need to place more importance on equality rather than freedom of speech and so on and so forth.

Food for Thought

Golaknath case is an example of judicial overreach because it specifically says, “You cannot amend Part 3 and undermined fundamental rights”. In the first 50 years of the Indian Constitution the parliament and the executive learned that there are cases which trigger them to amend it. They were relying on the interplay between judiciary and amendment. Chief Justice Subba Rao rejects the idea of the basic structure or the basic features. The law is not always supposed to be just but also to be formal. Article 368 has no such limitations which the Golaknath interpreted and that’s why Keshavnanda Bharti case overruled it even though it’s following the same principles. Keshavnanda Bharti also establishes basic doctrine and Golaknath also but it is more radical in a way that it completely took away the powers of the parliament. Indian judiciary is considered to be one of the most important organs in the entire world among all the nations.