Basic Structure Of The Constitution

This Article provides a Brief legal analysis of the Indian Constitution's Basic Structure theory.

 

In the final decade of the 20th century, the dispute over the "fundamental form" of the Constitution was dormantly stored away in the archives of India's constitutional history. The National Democratic Alliance government, which was formed by a coalition of 24 national and regional level parties, declared that the fundamental framework of the Constitution would not be altered when it established the National Commission to Review the Working of the Constitution. The Chairman of the Commission, Justice M.N. Venkatachalaiah, has emphasized numerous times that it is outside the purview of the Commission's job to look at the fundamental design of the Constitution.

 

Numerous political parties, most notably the Congress (I) and the two Communist parties that are in the opposition, have made it clear that the government used the review exercise as a ruse to gain support for its plan to adopt radical constitutional reforms that would destroy the document's fundamental structure. Even literate urban Indian circles are unsure about the implications of this concept, which was extensively argued during the 1970s and 1980s, making much of the public discussion a victim of partial amnesia. The discussion that follows is an attempt to navigate the tumultuous seas of that time caused by the struggle for dominance between the state's legislative and judicial branches.

 

The Constitution of India grants the state legislatures and Parliament the authority to enact legislation within their respective regions. This power is not inherently absolute. The judiciary is granted authority by the Constitution to rule on the constitutionality of all laws. The Supreme Court has the authority to declare a statute to be ultra vires or invalid if it breaches any provision of the Constitution adopted by Parliament or state legislatures. Despite this check, the founding fathers wished for the Constitution to be a flexible guide for government rather than a rigid one. As a result, Parliament was given the authority to modify the Constitution. 

 

According to Article 368 of the Constitution, Parliament has complete authority to change every aspect of the text. But since independence, the Supreme Court has served as a check on Parliament's appetite for legislation. The top court ruled that under the guise of modifying the Constitution, Parliament could not alter, destroy, or distort any of the fundamental principles of the document in order to preserve the original goals envisioned by its authors. There is no reference to "fundamental structure" in the Constitution itself. The landmark ‘’Kesavananda Bharati Case’’ from 1973 marked the first time the Supreme Court acknowledged this idea. Since that time, the Supreme Court has served as both the Constitution's translator and the final judge of all parliamentary revisions.

 

It was contested that Parliament had the power to change the Constitution, particularly the section on citizens' fundamental rights, as early as 1951. After the states gained their independence, various laws were passed in order to change the systems of property ownership and tenancy. This was in line with the socialistic objectives of the Constitution [found in Article 39(b) and (c) of the Directive Principles of State Policy], which called for an equitable distribution of production resources among all citizens and the prevention of wealth concentration in the hands of a select few. 

 

Property owners filed court petitions after being harmed by these laws. The courts invalidated the land reform measures on the grounds that they violated the Constitution's fundamental guarantee of property rights. By including these statutes in the Ninth Schedule of the Constitution through the First and Fourth Amendments (1951 and 1952, respectively), Parliament responded angrily to the unfavorable rulings by virtually removing them from the purview of judicial review.

 

To protect certain legislation from judicial review, Parliament created the Ninth Schedule to the Constitution by the very first amendment in 1951. The provisions of Article 31 prohibit challenging laws listed in the Ninth Schedule relating to the acquisition of private property and compensation due for such acquisition in a court of law on the grounds that they infringed upon citizens' fundamental rights. These provisions themselves were amended numerous times later. More than 250 state legislature-passed legislation that limit the extent of property holdings and do away with various tenancy systems, are protected under this umbrella. The main goal of the Ninth Schedule was to stop the judiciary, which had hitherto protected the citizens' right to property, from thwarting the Congress party-led government's plans for a social revolution.

 

The Supreme Court heard a new case from property owners who claimed that the constitutional amendments that placed land reform regulations in the Ninth Schedule violated Article 13 (2) of the Constitution. The protection of a citizen's fundamental rights is provided for in Article 13(2).

 

It is categorically forbidden for Parliament and state legislatures to pass laws that could limit or revoke the fundamental rights that are guaranteed to every citizen. They claimed that, as defined by Article 13, any modification to the Constitution had the status of a law. The Supreme Court rejected both arguments in the cases of ‘’Sankari Prasad Singh Deo v. Union of India’’ in 1952 and ‘’Sajjan Singh v. Rajasthan’’ in 1955, upholding Parliament's freedom to change any provision of the Constitution, including those that harm people' fundamental rights. 

However, it is noteworthy that two justices who dissented from the majority opinion in the Sajjan Singh v. Rajasthan case questioned whether the dominant party in Parliament could use the citizens' fundamental rights as a political football.

 

A Supreme Court bench of eleven judges changed its stance in 1967. Chief Justice Subba Rao presented the peculiar argument that Article 368, which contained provisions connected to the alteration of the Constitution, just set down the amending method in the ‘’Golaknath v. State of Punjab case’’, which was decided by a 6:5 majority. Parliament was not given the authority to modify the Constitution by Article 368. Other sections in the Constitution (Articles 245, 246, and 248) that granted Parliament the authority to create legislation gave rise to the amending power (constituent power) of Parliament (plenary legislative power). As a result, the Supreme Court determined that Parliament's modifying and legislative powers were basically equivalent. As a result, any changes to the Constitution must be interpreted in accordance with Article 13(2).

 

The concept of implied restrictions on Parliament's ability to modify the Constitution was used in the majority judgment. According to this point of view, the Constitution permanently secures a citizen's basic liberties. The fundamental rights had been set aside by the people when they granted themselves the Constitution. According to the majority opinion, Article 13 expressed this restriction on Parliament's authority. Due to the very structure of the Constitution and the nature of the freedoms guaranteed by it, Parliament could not change, restrict, or otherwise affect fundamental liberties. 

 

The justices ruled that even if a restriction received the unanimous support of both houses of Parliament, it could not be implemented since fundamental rights were so sacred and transcendentally important. They noted that if necessary, Parliament might call a Constituent Assembly to discuss modifying the fundamental rights. In other words, the Supreme Court ruled that some aspects of the Constitution were fundamental and could not be changed simply by following the established procedures.

 

In their arguments on behalf of the petitioners in the Golaknath case, M.K. Nambiar and other attorneys used the phrase "basic structure" for the first time. However, it wasn't until 1973 that the phrase appeared in the text of the Supreme Court’s ruling. 

 

The Congress party suffered significant defeats in the legislative elections and lost control of numerous states a few weeks after the Golaknath judgement. Despite being introduced and discussed on the floor of the house and in the Select Committee, a private member's bill introduced by Barrister Nath Pai that sought to reinstate Parliament's supremacy over the power to amend the Constitution was unable to be passed because of the political imperatives of the day. However, when Parliament introduced rules to achieve equal wealth and resource distribution and to give the agricultural sector better access to bank financing, the chance to challenge legislative authority once more emerged. These measures included:

 

(a) Bank nationalization 

b) Refusing to recognize former princes in an effort to seize their Privy purses, which were guaranteed in perpetuity as an inducement to join the Union at the time of India's independence.

 

The Supreme Court invalidated both actions, despite the justification offered by Parliament that it was carrying out the Directive Principles of State Policy. By this point, it was obvious that the Supreme Court and Parliament disagreed on how the Directive Principles of State Policy related to the fundamental rights. On one level, the conflict centered on Parliament's primacy over the courts' authority to interpret and uphold the Constitution.

 

On another level, the conflict centered on the sanctity of property as a fundamental right that was zealously protected by a wealthy class that was much smaller than the vast majority of impoverished people who the Congress government claimed to be serving through the implementation of its socialist development program.

 

Prime Minister Indira Gandhi dissolved the Lok Sabha and scheduled a snap election less than two weeks after the Supreme Court invalidated the President's decree derecognizing the princes in an effort to win the support of the populace and boost her personal stature.

 

The Indian Constitution itself was made the primary election topic for the first time. In order to reinstate Parliament's sovereignty, eight of the ten manifestos for the 1971 elections demanded constitutional amendments. According to A.K. Gopalan of the Communist Party of India (Marxist), the Constitution should be completely scrapped and replaced with one that upholds the true sovereignty of the people. A two-thirds majority allowed the Congress party to retake control. The Congress party's socialist platform, which included among other things calling for fundamental Constitutional amendments to reestablish Parliament's supremacy, had won the support of the electorate.

 

Between July 1971 and June 1972, a flurry of amendments were introduced by Parliament in an effort to make up lost ground. The ability to change any provision of the Constitution, including Part III, which deals with fundamental rights, was restored to the government.  Even the President has been made obligated to sign any modification bill that has been approved by both chambers of Parliament. On the right property, a number of curbs were enacted into law. The Directive Principles of State Policy make Article 39(b) &(c) supersede the rights to equality before the law and equal protection of the laws (Article 14) and the fundamental freedoms granted in Article 19. Former princes' privy purses were abolished, and a whole category of laws addressing land reforms was added to the Ninth Schedule and exempted from judicial scrutiny.

 

Unavoidably, the constitutionality of these modifications was contested before the Supreme Court's full bench (thirteen judges). Eleven distinct judgments contain their verdict. The key judgments made by the nine judges in this case are summarized in a summary statement that each judge signed. Granville Austin points out that there are a number of differences between the judges' individual judgments and the points made in the summary they signed. Nevertheless, the majority judgment recognized the fundamental idea of the Constitution's "basic structure."

 

All judges upheld the twenty-fourth amendment's legality, stating that Parliament has the authority to change any or all Constitutional clauses. The Golaknath case had been ruled incorrectly, according to all signatories to the summary, and Article 368 provided both the authority and the process for altering the Constitution. However, they made it very apparent that a Constitutional amendment was not the same as a law, as defined by Article 13(2) of the Constitution. It is vital to draw attention to the minute distinction between two categories of tasks carried out by the Indian Parliament:

 

a) It has the ability to enact laws for the nation by using its legislative authority.

b) By using its constituent power, it may modify the Constitution.

 

Ordinary legislative power is inferior to constituent power. The powers and duties of the Indian Parliament and State legislatures are subject to restrictions outlined in the Constitution, in contrast to the British Parliament, which is a sovereign body (in the lack of a codified constitution). Not all of the country's laws are outlined in the Constitution. In their different spheres of authority, the state legislatures and the parliament both occasionally pass legislation on a variety of topics. The Constitution offers a general framework for enacting these laws. Article 368 gives Parliament the only authority to alter this framework. Amendments to constitutional provisions must get a special majority vote in Parliament, unlike ordinary laws.

 

To further illustrate the distinction between the constitutive and enacting powers of Parliament, consider another example. No one in the nation may be deprived of their life or personal liberty, except in accordance with a legal process, as stated in Article 21 of the Constitution. The Constitution does not specify the specifics of the method because the legislatures and the administration are in charge of doing so. The essential legislation defining offensive conduct for which a person may get a prison sentence or the death penalty are created by Parliament and state legislatures. 

 

The accused is brought before a court of law, and the executive sets out the process for putting these laws into action. Changes to these laws may be enacted by the relevant state legislature with a simple majority vote. To integrate changes to these provisions, the Constitution does not need to be amended. However, the Constitution may need to be appropriately changed by Parliament utilizing its constitutional competence if there is a need to transform Article 21 into the fundamental right to life by removing the death sentence.

 

In the Kesavananda Bharati case, seven of the thirteen judges, including Chief Justice Sikri, who signed the summary statement, declared that the constitutive authority of Parliament was subject to inherent restrictions. The "basic structure" or framework of the Constitution may not be "damaged," "emasculated," "destroy," "abrogate," "modify," or "alter" by the employment of the amending powers granted to Parliament under Article 368. 

 

Each judge outlined what he believed to be the fundamental or essential elements of the Constitution separately. Even among the majority view, there was no consensus.

 

Sikri, C.J. outlined the components of the basic structural concept as follows:

• The Constitution's primacy

 

• Democratic and republican forms of government

 

• The Constitution's secular nature

 

• The judiciary, executive branch, and legislature all have separate authorities.

 

• The Constitution's federal nature

 

Two more fundamental characteristics were added to this list by Shelat and Grover:

• The Directive Principles of State Policy's directive to establish a welfare state

 

• The nation's integrity and cohesion

 

A distinct and condensed list of fundamental characteristics was determined by Hegde and Mukherjea:

• Indian sovereignty

 

• The political system's democratic nature

 

• The nation's cohesiveness

 

• Fundamental aspects of the personal liberties guaranteed to citizens

 

According to Jaganmohan Reddy, J., the Preamble to the Constitution and the provisions into which they were translated contained components of the fundamental principles, such as:

• Independent democratic nation

 

• Parliamentary government

 

• Three State institutions

 

He claimed that without the guiding principles and essential liberties, the Constitution would not exist at all.

 

The minority opinion, which was supported by only six judges, was that Parliament could not modify the basic structure because the fundamental rights of the citizen were a part of it.

 

In their minority opinion, Justices M.H. Beg, K.K. Mathew, and S.N. Dwivedi agreed that the Golaknath case had been decided incorrectly. Justice A.N. Ray, whose appointment to the position of Chief Justice shortly after the Kesavanand verdict was announced over and above the heads of three senior judges, was also of this opinion. All three of the modifications that were being contested in court were upheld as genuine. According to Ray, J., there is no difference between the Constitution's essential and non-essential components because all of its components are necessary. They all agreed that by using its authority under Article 368, Parliament could alter the Constitution fundamentally.

 

In conclusion, the majority decision in Kesavananda Bharati recognized Parliament's right to amend any or all parts of the Constitution so long as doing so did not change the Constitution's fundamental design. However, there remained disagreement regarding what belongs in that fundamental framework. By reinstating the primacy of Parliament's amending power, the Supreme Court very nearly reversed its decision in Sankari Prasad (1952), but in reality, it enhanced the power of judicial review considerably more.

 

The Supreme Court once more had the chance to issue a ruling on the fundamental framework of the Constitution in 1975. In 1975, the Allahabad High Court upheld a challenge to Prime Minister Indira Gandhi's election victory based on allegations of electoral fraud. Smt. Indira Gandhi is permitted to serve as prime minister while an appeal is pending thanks to a stay that the vacation judge, Justice Krishna Ayer, gave under the condition that she refrain from receiving a salary and refrain from speaking or voting in Parliament until the matter is resolved. While this was going on, the Supreme Court's ability to decide petitions pertaining to the elections of the President, Vice President, Prime Minister, and Speaker of the Lok Sabha was eliminated by the passage of the Thirty-ninth Amendment to the Constitution by Parliament. 

 

Instead, the authority to settle such electoral issues would be granted to a commission established by Parliament. Any attempt to contest the election of an incumbent, holding any of the aforementioned offices, in a court of law was effectively blocked by Section 4 of the Amendment Bill. This was unmistakably a preventative measure meant to help Smt. Indira Gandhi, whose election was the focus of the current conflict.

 

The Election Laws Amendment Act, 1975 was added to the Ninth Schedule along with amendments to the Representation of Peoples Acts of 1951 and 1974 in order to protect the Prime Minister from embarrassment in the event that the Supreme Court rendered a disfavorable decision. The haste with which the Thirty-ninth amendment was passed served as evidence of the government's bad intentions. The Lok Sabha approved the bill the same day it was introduced on August 7, 1975. The Rajya Sabha (Upper House or House of Elders) approved it the following day, and two days later the President granted his approval. In extra Saturday sessions, the state legislatures approved the amendment. It became official on August 10. The Attorney General requested that the lawsuit be dismissed in light of the new amendment when the Supreme Court heard the matter the next day.

 

Raj Narain's legal representative claimed that the amendment violated the Constitution's fundamental principles because it had an impact on the ability of judges to conduct independent investigations and hold free and fair elections. Raj Narain was Mrs. Gandhi's political rival who challenged her election. Counsel further contended that Parliament lacked the authority to use its constituent power to validate an election that the High Court had ruled was invalid.

 

The Thirty-ninth Amendment was supported by four of the five judges on the bench, but only after they overturned the provision that aimed to limit the judiciary's ability to rule on the present election dispute. Beg, J., a single judge, upheld the amendment completely. Based on the revised election laws, Mrs. Gandhi's election was recognized as legitimate. The court reluctantly agreed that Parliament had the authority to enact laws that would apply retroactively. According to the election case ruling, the fundamental elements of the Constitution. Once more, each judge discussed what could be considered the fundamental design of the Constitution:

 

According to Justice H.R. Khanna, democracy—which includes free and fair elections—is a fundamental component of the Constitution.

 

According to Justice K.K. Thomas, the ability for judicial review is a crucial component.

 

Justice Y.V. Chandrachud outlined four fundamental characteristics that he believed could not be changed:

• Status as a sovereign democratic republic

 

• Individual opportunity and status equality

 

• Secularism, religious and moral freedom

 

• The rule of law, or "government of laws and not of men"

 

The idea of separation of powers was not applicable to Parliament since it had constitutive authority that was independent of the Constitution itself, according to Chief Justice A.N. Ray. Therefore, Parliament could prevent judicial scrutiny of laws pertaining to election-related conflicts. Strangely, he believed that democracy was a fundamental principle but that free and fair elections were not. Ordinary legislation, according to Ray, C.J., was not covered by fundamental characteristics.

Ray, C.J. and Justice K.K. Mathew both agreed that basic structure did not apply to ordinary statutes. But he believed that democracy was a necessary component and that the judiciary should settle election-related disputes on the basis of the law and the evidence.

 

Justice M.H. Beg disagreed with Ray, C.J. on the grounds that if Parliament's constituent power were claimed to be superior to it, a Constitution would not be necessary.

 

Parliament and the High Courts were unable to use their judicial authority because it was granted to the Supreme Court. He argued that the majority in the Kesavananda Bharati case correctly viewed the supremacy of the Constitution and the separation of powers as fundamental principles. Beg, J. emphasized that ordinary law was included in the theory of basic structure's purview.

 

The majority opinion reaffirmed the notion that the Constitution had a core substance that was sacred, despite the justices' divergent opinions on what made up the fundamental structure of the document.

 

A thirteen-judge bench was gathered within three days of the Election case Ray ruling to examine the Kesavanada ruling under the guise of considering many land ceiling law-related petitions that had been pending in high courts. The petitions argued that the Constitution's fundamental principles were being broken by the application of land ceiling legislation. The Review bench was essentially tasked with determining whether or not the basic structure doctrine constrained Parliament's ability to modify the Constitution. Additionally, the judgment in the Bank Nationalization case was subject to reconsideration.

 

In the meantime, Prime Minister Indira Gandhi vehemently refuted the basic structural orthodoxy during a speech in Parliament. It must be kept in mind that there was no explicit petition asking the Supreme Court to review the Kesavananda ruling, which several judges on the bench noted with much dismay. N.N. Palkhivala, who was speaking on behalf of a coal mining firm, persuasively opposed the request to revisit the Kesavananda ruling. Ultimately, following two days of hearings, Ray, C.J. dissolved the bench. Many have assumed that the government was somehow involved in this incident in an effort to overturn the Kesavananda decision's unfavorable court precedent. However, there were no organized efforts to prosecute the case.

 

The country's attention was diverted from this problem by the June 1975 proclamation of a National Emergency and the subsequent suspension of fundamental liberties, including the right to petition the courts to oppose preventative imprisonment.

 

The Congress party established a committee under the leadership of Sardar Swaran Singh shortly after the National Emergency was declared to investigate the possibility of modifying the Constitution in light of prior experiences. Through the forty-second amendment, the government adopted many amendments to the Constitution, including the Preamble, in response to its suggestions (passed in 1976 and came into effect on January 3, 1977). In addition, the amendment:

 

a) gave the Directive Principles of State Policy precedence over the Fundamental Rights outlined in Articles 14 (right to equality before the law and equal protection of the laws), 19 (a number of freedoms, including the freedom of speech and expression, the right to peaceful assembly, the right to form associations and unions, the right to movement and residence in any part of the country, and the right to engage in any vocation), and 21 (a variety of freedoms) (right to life and personal liberty). Any challenge against laws adopted in accordance with any of the Directive Principles of State Policy is now prohibited by an amendment to Article 31C.

 

b) Established that the Constitution's past modifications or those that are anticipated to be adopted in the future could not be contested in court on any grounds.

 

c) Eliminated all constitutional modifications from the purview of judicial review.

 

d) Eliminated any restrictions on Parliament's ability to change the Constitution in accordance with Article 368.

 

The owners of Minerva Mills (Bangalore), a failing industrial company that was nationalized by the government in 1974, contested the Forty-second Amendment before the Supreme Court less than two years after Parliament's amending powers were restored to nearly absolute terms.

 

The petitioners' attorney and famous constitutional lawyer, Mr. N.A. Palkhivala, decided not to contest the government's action only on the grounds that it violated the fundamental right to property. He framed the problem instead in terms of Parliament's ability to change the Constitution.

 

Mr. Palkhivala claimed that Section 55 of the amendment had given Parliament unrestricted amending authority. The Supreme Court's recognition of the basic structure doctrine in the Kesavananda Bharati and Indira Gandhi Election Cases was violated by the attempt to shield constitutional revisions from judicial review. In addition, he argued that the revised Article 31C was unconstitutional since it violated both the Preamble to the Constitution and citizens' fundamental rights. It also eliminated the ability for judicial review.

 

Both claims were supported by Chief Justice Y.V. Chandrachud's majority ruling (4:1) in the case. The power of judicial review of constitutional amendments was supported by the majority opinion. They argued that Article 368's provisions (4) and (5) gave Parliament unrestricted power to change the Constitution. According to them, this prevents courts from challenging the amendment, even if it weakens or modifies the Constitution's fundamental principles.

 

Judges who agreed with Chandrachud C.J. concluded that the Constitution's restricted ability to change itself is a fundamental element.

 

The dissenting judge, Bhagwati, J., concurred with this viewpoint and claimed that no authority, no matter how exalted, could claim to be the exclusive judge of its power and deeds in accordance with the Constitution.

 

The harmony and balance between fundamental rights and guiding principles—a fundamental or fundamental aspect of the Constitution—were broken by the modification to Article 31C, which was deemed unconstitutional by the majority of voters.

 

Due to Parliament's failure to remove or eliminate the change to Article 31C, it still stands as a dead letter. However, matters governed by it are decided in accordance with its pre-42nd Amendment form.

 

The Supreme Court ruled in another case involving a related issue over agricultural land that all constitutional revisions made following the Kesavananda Bharati ruling were subject to judicial scrutiny.

 

After the Kesavananda Bharati judgement, all laws added to the Ninth Schedule were likewise subject to judicial review. They may be contested on the grounds that they go beyond the authority granted to Parliament by the Constitution or that they have weakened the foundation of the Constitution. In essence, the Supreme Court established a compromise between the capacity of Parliament to modify the Constitution and its own authority to interpret it.

 

The Supreme Court has not yet made its final ruling on the question of the Constitution's fundamental structure, which is a situation that is unlikely to change any time soon. Although the notion that the Constitution has a basic structure is widely accepted, its exact contents cannot be proven with any degree of certainty until a Supreme Court decision explicitly states it. However, the top court has repeatedly cited the sovereign, democratic, and secular nature of the polity, rule of law, the judiciary's independence, and fundamental rights of individuals, etc. as vital aspects of the Constitution. All legislation and constitutional changes are now subject to judicial examination, and measures that violate the fundamental framework are likely to be overturned by the Supreme Court, according to one certainty that resulted from this conflict between Parliament and the judiciary. In essence, the Supreme Court serves as the last arbiter and interpreter of all constitutional modifications and the ability of Parliament to amend the Constitution is not absolute.