Some Major Changing Trends of the Indian Constitution
Every written constitution is the result of certain times. As times change, new trends changing situations, problems arise, which bring to forth issues which necessitate newer solutions and point to newer directionsï¿½the process of change keeps evolving. That is why it is well said that no constitution, not even the written one, is completely complete at any given point of time. It is important to indicate, though in brief, some such new ends in the Constitution of India.
Doctrine of Basic Structure
There is no specific description of what constitutes the basic structure of the Constitution specified by the framers of the Constitution of India. Indeed, there are certain basic essential features of our Constitution, but they have neither been specified as basic features nor is there any provision of their being un-amendable in the Constitution itself.
Like the American concept of judicial review (grabbed by the US American Supreme Court in Merbury v. Madison – 1803),the doctrine of the basic structure, as a judicial principle, is a judge-made doctrineï¿½the product of the Supreme Courtï¿½s art, courage and craft (Upendera Baxi used the words ï¿½courage, craft and contention), i.e., the invention of the Supreme Court of India.
The doctrine of the basic structure of the Constitution has its history which it may be instructive to help us know the doctrine. In Shankari Prasad v. Union of India (1951) and Sajjan Singh v. State of Rajasthan (1965), the Supreme Court held the view that the Parliament has the power to amend the Constitution by virtue of Article 368, though Justice J.R. Mudholkar had expounded the principle of ï¿½basic featuresï¿½ in the 1965 case stated above. In 1967, the eleven judge bench of the Supreme Court reversed the position taken in the above two cases and delivered its 6-5 majority verdict in the Golaknath v State of Punjab (1967) that Article 368 contains only the procedure of amendment and does not give the Parliament power to amend the Constitution.
Considering the amending power and the legislative power essentially the same, any law passed or the so called amendment made would be, the apex court held, understood as such, and if is against Article 13(1) would be void. at necessitated the passage of 24th amendment (1971) as opposed to the Golknath case empowered the Parliament, to make amendment in the Constitution, including the Fundamental Rights and asserting that Article 368 not only contains the procedure of Parliament but also gives the Parliament, the power of amending the Constitution. The Kesavananda Bharati v. State of Kerala (1973) made the doctrine of basic structure clear. It may, thus, be stated that the ï¿½basic structuresï¿½ doctrine emerged basically because of two important factors: – (i) when the Parliament had begun amending the Constitution too oftenly, (ii) when the Supreme Court too had beg un demonstrating shifting stances with regard to Parliamentï¿½s power of amending the Constitutionï¿½both the factors being the mutual cause and effect of each other. With the intentions of preserving the ideals and the vision as envisaged by the framers of the Constitution, the Supreme Court did admit and also emphasized that the power to amend did not mean power to destroy the Constitution.
Some of the major aspects related to the basic structures, which among others, were made clear in the 7-6 margin decision of the Kesvananda case, included the following:-
- The Parliament can make laws for the country by exercising its legislative power (power covered under Articles 245 and 246); It can amend the Constitution by exercising its constituent power;
- The constituent power is not only different than the legislative power, it is also superior to it;
- The amendment law is not the same as the ordinary law;
- The amendments already made as 24th, 25th and 29th ones are valid;
- The decision made in the Golaknath case is being over-ruled, and
- The Parliamentï¿½s constituent power is subject to inherent limitations, that the power to amend does not mean, to ï¿½damageï¿½, ï¿½emasculateï¿½, ï¿½destroyï¿½, ï¿½abrogateï¿½, ï¿½changeï¿½, or ï¿½alterï¿½ the ï¿½basic structuresï¿½ or framework of the Constitution.
Notwithstanding the controversy related to the Indira Gandhi v. Raj Narain case, the Parliament was able to pass the 39th amendment in 1975. The basic structures doctrine was reamed in the Minerva Mills (1980) case and in Wamman Rao v. Union of India (1981) case, that the Parliament does have the power to amend the Constitution so to be used to damage the basic structures.
What is clear from the above is the fact that the concept of basic structure is a judicial construct and it is judiciary which knows as to what really the concept means. The Supreme Court, in its decision on Nagraj v. Union of Indiaï¿½2007, has said: ï¿½Basic structures are systematic principles underlying and connecting the provisions of the Constitution. They give coherence and durability to the Constitution. These principles are part of the constitutional law even if not expressly stated. This doctrine is based on the concept of the Constitutionï¿½s identity ï¿½. It is the court which will determine the basic structure on the basis of facts in each case that comes before it.ï¿½ us, the basic structure is what the judges say it is. It is not that the court would decide the meaning of it, but that it is the court/judges who would spell out the principles related to the basic structure within what the Constitution prescribes and proscribes.
Though the judges participating in the Kesavananda case gave their individual views on what could be enlisted in the list of the basic structures, it would be instructive to know them, for they would provide the basis of the principles of basic structures in the days to come. Chief Justice Sikri, writing the majority verdict in the above 1973 historic decision indicated that the basic structure consists of (i) the supremacy of the Constitution, the republican and democratic form of government, (iii) the secular character of the Constitution, (iv) the theory of separation of power, (v) the federal character of the Constitution. Justices Shelat and Grover added three more such features to the Chief Justiceï¿½s list: (i) the welfare state as contained in the Directive Principles of State Policy, (ii) the maintenance of unity and integrity of India, (iii) the sovereignty of the country.
Justices Hegde and Mukherjee gave a separate, though shorter, list: (i) the sovereignty of India, (ii) the democratic character of Indiaï¿½s polity, (iii) the unity of the country, (iv) individual freedoms, (v) the welfare state. Justice Jagmohan Reddy saw in the Preamble certain basic features: (i) a sovereign democratic republic, (ii) social, economic and political justice, (iii) liberty of thought, expression, belief, faith and worship; (iv) equality of status and of opportunity. Later, in a different case, Justice H.R. Khanna thought of democracy and free and fair elections as the basic feature of the Constitution. While Justice K.K. Thomas held the view that judicial review is an essential feature. Chief Justice Y. V. Chandrachud, in the Minerva Mills case, pointed out features such as (i) sovereign democratic republic status, (ii) equality of status and opportunity, (iii) secularism and freedom of conscience and religion, (iv) government of laws, and not of men, i.e.; the rule of law.
Some of the other judicial pronouncements relating to the major aspects of the basic structure may also be noted: e rule of law is the basic sturcture of the constitution (Indira Nehru Gandhi v Raj Narain 1975). In the Minerva Mills Ltd v Union of India, (1995), the Supreme Court held that the harmony and balance between fundamental ï¿½rights and directive principles is an essential feature of the basic structure of the constitutionï¿½. The Central Coal Fields v Jaiswal Coal Co (1980) makes effective access to justice as part of the basic structure. In cases such as Waman Rao v Union of India (1981), S.P. Sampath Kumar v Union of India (1987) and P. Sambamurthy v State of Andhra Pradesh (1987), the Supreme Court declared the rule of law and judicial review as integral to the basic structure. In Kihoto Hollohon (1993) case, democracy has been regarded as a basic feature of the constitution. In State of Bihar v Bal Mukund Shah and Others (2000), the Supreme Court held the view that the concepts of ï¿½separation of powers between the legislature, executive and juidiciary ï¿½as well asï¿½ the fundamental concept of independent juidiciary have been elevated to the level of basic structure of the constitution and are the very to heart of the constitution. It may well be said that the features of the basic structure, with no attempt to achieve any measure of mobility, may include: sovereign, democratic and secular character of Indiaï¿½s republic, socialistic pattern of society if not socialism in the ideological sense of the term, rule of law, independence of judiciary and the power of judicial review, fundamental rights, liberties and responsibilities of the citizens, parliamentary and federal character laying emphasis on the unity of the nation, and the like.
In conclusion, there has, one may note, emerged a measure of agreement between the jurisdiction of the Supreme Court and the powers/functions of the Parliament, something that engaged our attention during the seventies and to some early years of eighties of the last century. The Supreme now admitted Parliamentï¿½s powers of legislations and making amendments within the limitations of basic structure of the Constitution, and the Parliament has now accepted that the Supreme Court is the al arbiter and interpreter of the Constitution.
Written by princy