This article has been written by Khyati Basant, pursuing BBA LLB from Symbiosis Law School, NOIDA. This article consists of a descriptive discussion on the Basic Structure of the Constitution of India.
The Constitution of India is a dynamic, creative, and eloquent text. It is a foregone conclusion that it must always reflect, invariably, the values, politics, and the social-economic objectives of the country it governs. There will always be an underlying, noticeable, or unseen conflict, thus trying to balance the revolutionary social and political reform and maintaining the Constitution itself. The judiciary has played a significant role in interpreting the Indian Constitution. It is the judiciary that has done its hardest to uphold the constitutional framework of the Indian Constitution. Article 21 of the Constitution, the Supreme Court can not accept suo moto cognizance of infringement of the constitution’s basic structure concerning the Parliament’s amendment of the Constitution. A constitution is a system of basic laws or rules regulating a country. This constitution usually lays out the basic principles and structure of law and policy.
India’s Constitution came not out of the vacuum. It is a continuous process of evolution, reformation, and recreation by eminent scholars, experts and judges, and so on, of the existing governance system. It must react to new developments and take into consideration unexpected and unprepared incidents that did not fall inside the scope of the Constitution’s contemplation. Ours is the living Constitution that needs a transition from time to time due to the developments in society. Parliament can modify, mould, change, vary or abolish any provisions of the Constitution under its legislative capacity.
The Doctrine of Basic Structure
The argument over the Constitution’s ‘basic foundation,’ sitting somnolently in the records of the political past of India during the last decade of the 20th century, has reappeared in the public domain. During the establishment of the National Commission for Reviewing the Working of the Constitution (the Commission), the Government of the National Democratic Alliance (formed by a coalition of 24 national and regional parties) stated that the basic structure of the Constitution would not be altered. The Chairman of the Commission, Justice M.N. Venkatachaliah, has emphasized on many occasions that an inquiry into the fundamental framework of the Constitution is outside the domain of the work of the Commission. In 1973 the Supreme Court in Kesavananda Bharati v. State of Kerala declared the basic structure doctrine.
In India, the basic structural review is an independent and distinct type of constitutional judicial review that applies to all forms of state action to ensure that such action does not ‘damage or destroy’ the ‘basic features of the Constitution.’ Such basic legislative characteristics are defined by a common law methodology which are fundamental procedural principles that are enforced by many Legislative clauses. The fundamental theory of the system and all forms of substantive judicial review has a clear legislative basis and is based on a clear and justifiable reading of the Constitution.
- The legitimacy of the review of basic structures can be assessed in three categories: legal, moral, and sociological. By defending a structuralist interpretation as a coherent and justifiable model of constitutional interpretation, the legal legitimacy of such review is set. The philosophical validity of fundamental framework analysis relies on opposing majoritarian models of government and embracing a dualistic form of deliberative decision-making in a representative society. To a significant degree, the sociological validity of the theory is dependent on the effectiveness of the claims of religious and legal authority.
- The “Basic Structure Doctrine” is a judge-made doctrine in which certain features of India’s Constitution go beyond the limit of the Indian Parliament’s amending powers. On 27 February 1967, in the case of Golaknath v. State of Punjab, a Special Bench of 11 Judges ruled that “Parliament has no power to amend Part III of the Constitution to abolish or abridge constitutional freedoms.”
- On 24 April 1973, a special bench comprising 13 Supreme Court of India judges held that Article 368 of the Constitution does not allow Parliament to alter its basic structure or the constitutional framework. While the court overruled the Golaknath decision and held that only constitutional rights could be changed, it also held that other aspects of the Constitution could not be changed, in turn proposing the “doctrine of the fundamental structure.” Sajjan Singh’s basic characteristic of the Constitution when he used the phrase to argue that there are certain characteristics of the Constitution that the Parliament can not amend by its amending powers under Article 368 of the Constitution.
- The Constitution provides that Parliament and the Indian state legislatures have the power to make laws within their respective jurisdictions. In the judiciary, the Constitution holds the power to judge the constitutional validity of all laws. The Supreme Court has the right to declare such a statute null or ultra vires if a law enacted by Parliament or the state legislatures contradicts any clause of the Constitution. Notwithstanding this test, the founding fathers intended the Constitution to be more an adaptable text than a fixed governing structure. Therefore Parliament was empowered to change the Constitution.
- Article 368 of the Constitution gives the impression that the amending powers of this Parliament are absolute and cover all parts of the document. Yet since independence, the Supreme Court has been serving as a check upon Parliament’s constitutional zeal. Intending to preserve the constitution-makers’ original ideals, the apex court ruled that under the pretext of amending it, Parliament could not distort, damage or alter the basic features of the Constitution. The actual term ‘basic structure’ can not be included in the Constitution itself.
Verdict on Golaknath case
- In 1967 a Supreme Court panel of eleven judges overturned its position. Calling the 6:5 majority verdict in the case Golaknath v. State of Punjab. In the said case, the modifiability aspect of fundamental rights was challenged. There was also a challenge to the scope of interpretation of Article 368.
- The Supreme Court bench that ruled on the aforementioned petition consisted of Justice K. Subha Rao, Justice K.N. Wanchoo, Justice M. Hidayatullah, J.C. Shah, S.M. Sikri, Justice R.S. Bachawat, V. Ramaswami, J.M. Shelat, V. Bhargava, G.K. Mittar J. and Vaidyalingam C.A. J. The court has held that the constitutional freedoms are beyond the scope of being changed. It also held that the Parliament will not have the power to amend them in the future.
- Chief Justice Subba Rao put forward the curious position that the amending procedure was merely laid down in Article 368, which contained provisions relating to the amendment of the Constitution.
- Article 368 did not confer the power to amend the Constitution upon Parliament. Parliament’s amending power (constituent power) derived from certain provisions in the Constitution (Articles 245, 246, 248) which granted it the right to make laws (plenary legislative authority).
- The supreme tribunal then ruled that Parliament’s amending authority and regulatory functions were practically the same. Consequently, any constitutional amendment must be deemed to be law as defined in Article 13(2).
- The majority opinion cited the idea of tacit limits on the ability of Parliament to amend the Constitution. The people had reserved the fundamental rights for themselves in granting the Constitution. According to the majority opinion, Article 13 articulated the restriction on Parliament’s powers. Regardless of this particular scheme of the Constitution and the essence of the liberty given under it, Parliament does not alter, limit, or impede basic freedoms.
- The judges claimed that the constitutional rights were so sacrosanct and transcendental that they could not be limited even though both houses of Parliament overwhelmingly supported such a change.
- They noted a Constituent Assembly might be summoned by Parliament to amend the fundamental rights if necessary. In other words, the apex court held that some of the constitution’s features lay at its core and needed to change them much more than the usual procedures.
- The sentence ‘basic structure’ was first introduced by M.K. Nambiar and other counsel, while arguing in the Golaknath case for the petitioners.
- Pandit Jawaharlal Nehru’s words were quoted, concerning which he spoke proposing for the implementation of the Interim Report on Fundamental Rights on 30-04- 1947 that ‘ a constitutional right should be viewed, not from any specific problems at the time, but rather as something that you intend to make permanent in the Constitution. The other issue, however important it may not be from this permanent and fundamental point of view, but a more temporary point of view. The views of Dr B.R. Ambedkar was also taken into account in this context.
- Dr B.R. Ambedkar was of the view that constitutional freedoms are so significant that they can not be modified in the manner provided for in Article 304 of the Draft Constitution, i.e. Article 368 of this Constitution. Justice Bachawat said that the basic principle of our Constitution is that a statute or statutory act can not modify it. The essence of the written constitution is that an ordinary law can not change it. The majority of the judges claimed that the applicability of Article 13(2) does not mean any limitations.
- They also stated that Article 368 does not use the word “law.” They regarded human rights as people’s basic needs. Therefore, they have to be secured according to them. The five dissenting judges advocated communism.
- Therefore, they favoured human rights reforms and held valid the Constitution’s first, fourth, and seventeenth amendment. The court ruled that “the basic freedoms are the freedoms of the people our Constitution protects. Fundamental rights became the term being used for what was historically referred to as “human rights.” According to one source, “they are fundamental rights that any human being should also have at all times simply because they are the primary rights required for the creation of human identity in conflict with morality.”
Globalization in India
Globalization in its fundamental economic sense refers to the adoption of open and unfettered trading markets by reducing trade barriers, abolishing capital controls, and liberalizing foreign-exchange restrictions. Large volumes of money movement, increased trading volumes, information technology, and communication changes are all integral to a global world. Migration of people for commerce and work from one country to another and changes in the flow of goods, labour, and resources have reduced the regional boundaries and limitations that a nation-state imposes. While globalization is a widely debated term, there is universal consensus that the foreign movement of individuals, money, goods, and ideas has increased significantly over the past two decades. It has also been proposed that globalization has contributed, on the one hand, to the collapse of nation-state hegemony and, on the other, to a downward trend of political influence, which has given rise to the coupled powers of ‘globalization.’
Globalization is creating a vacuum of legitimacy. While the nation-state presides over it’s dismantling of economic sovereignty, its control or internal sovereignty is not abandoned. To enhance its domestic sovereignty, it is compelled to create local democratic structures, which will result in furthering the state’s legitimacy. With the incremental deregulation of the Indian economy, the rivalry between the Indian states has arisen very naturally to secure investment, especially from outside sources. Globalization isn’t homogeneous. There are many trajectories to it. If the State may lose its economic sovereignty, it is actively working to enhance its domestic sovereignty. Attracting international investment is crucial to globalization’s progress and it relies entirely on the core and the states adopting and enforcing common policies. Economic prosperity relies strongly on global stability and peace and harmony. Both the centre and states have been involved allies in achieving the following as part of globalization.
Globalization and Indian Constitution
- Globalization has fundamentally transformed relations between nation-states since the 1980s, as well as the terrain of domestic political, constitutional, and regulatory frameworks governing economic and development policies, especially in developing countries. While part of this global phenomenon, developed countries have moved from statist-socialist policies to policies of economic liberalization, globalization, and growth under the world economy’s broader globalization. Global bodies and organizations, like the World Bank and the International Monetary Fund ( IMF), also played a key position in pushing moves toward liberalization and privatization-oriented structural changes, including specifically funding development programs. Such changes have since tended to reshape and affect professional procedure and lawyer work, legislative and regulatory rules, and judicial adjudication on these topics.
- Throughout the 1990s and early 2000s, when India’s economy underwent a significant transition, the Supreme Court’s approach to defining constitutional rights and extending right-based scrutiny has profoundly shifted. In cases concerning significant rights-based challenges to post-1991 economic liberalization, privatization, and growth policies, the Court redefined and adjudicated the nature and importance of the main constitutional rights found in Article 14 (equality before law), Article 19 (discourse, assembly and other freedoms), and Article 21 (life and freedom) of the Indian Constitution.
- Since the 1990s and well into the 21st century, India’s Supreme Court has effectively redefined the scope and terrain of fundamental rights in a series of decisions that involve challenges to government liberalization and privatization, and development policies. This essay discusses three key aspects of the Court’s decision-making and role in calibrating this new “globalization rights system” and associated forms of oversight for globalization policies.
- The Court has redefined and deliberately confined its position in the area of globalization policies based on the judges’ perceptions of the Court’s proper function and their interpretation of the standards and principles to be pursued in the adjudication of cases of globalization. The Court has applied a lower and more limited standard of review to globalization policies, has effectively deployed rights as “structural principles” to judge the fairness, legality, and property of government economic policies and actions involving privatization and disinvestment, rather than allowing those rights to serve as strong controls on government policies and measures.
- The new framework for globalization rights of the Court effectively entailed the creation of new “asymmetric rights grounds” in which the rights of certain interests and stakeholders (including private corporate interests) are privileged above others (labourers, farmers, villagers). The Court thus narrowed the scope of constitutional rights to extend its commitment to employees, farmers, and others whose rights have been infringed or weakened by globalization policies, thus upholding the rights of other groups, including private business interests, who oppose unjust privatization and disinvestment policies.
The Kesavananda Bharati case
- In this case, a full bench of the Supreme Court (thirteen judges) questioned the procedural integrity of all those amendments. Their decision was made in 11 independent decisions.
- Granville Austin states that there are some inconsistencies between the statements in the report signed by the judges and their views in their separate decisions. Nevertheless, in the majority verdict, the seminal concept of the Constitution’s ‘basic structure’ has gained recognition.
- Constituent power predominates over ordinary legislative power. Unlike the British Parliament, which is a sovereign body (without a written constitution), the powers and functions of the parliament and state legislatures are subject to constitutional limitations. The Constitution does not include all the laws which rule the country. Parliament and the state governments, under their respective territories, make legislation on different topics from time to time. The Constitution provides for the general basis for making such rules. Parliament alone has the authority to amend this provision in compliance with Article 368.
- Unlike ordinary rules, amendments to constitutional provisions allow Parliament to act by a qualified majority. The example is useful to illustrate the contrast between the legislative authority of the Parliament and the powers to enforce legislation. Under Article 21 of the Constitution, no citizen in the country can be deprived of his or her life or personal liberty except in compliance with the process laid down by statute. The Charter does not stipulate the specifics of the process since the legislatures and the executive are responsible for that.
- Parliament and the state legislatures make the legislation appropriate to define offensive acts for which a person can be imprisoned or sentenced to death. The executive carries out the process to enact such rules, and the convicted party is charged before a court. Changes to those laws may be incorporated in the relevant state legislature by a simple majority vote. The Constitution does not need to be revised to make changes to these rules. However, if there is a desire to turn Article 21 into the universal right to life by abolishing the death penalty, Parliament will need to change the Constitution accordingly, through its constitutional power.
More notably, seven of the thirteen judges in the Kesavananda Bharati trial, including Chief Justice Sikri who signed the summary declaration, stated that intrinsic limits were placed on the constituent authority of Parliament. Parliament does not use its amending powers provided for in Article 368 to ‘harm,’ ’emasculate,’ ‘destruct,’ ‘abrogate,’ ‘adjust’ or ‘alter’ the ‘primary structure’ or the Constitutional system.
The minority view of the case
The minority view of Justice A.N. Ray (whose appointment to Chief Justice’s position over and above the heads of three senior judges, soon after the Kesavananda verdict was pronounced, was widely regarded as politically motivated), Justice M.H. Beg, Justice K.K. Mathew and Justice S.N. Dwivedi agreed that Golaknath had been wrongly decided. They upheld the validity of all three challenged amendments before the court. They held that all aspects of the Constitution were necessary and that there should be no difference between its important and non-essential aspects. In short, the majority decision in Kesavananda Bharati recognized Parliament’s right to change any or more of the constitutional provisions given that such an amendment did not undermine its basic foundation. Yet there was no unanimous consensus about what appoints to the basic framework. Although the Supreme Court very nearly returned to Sankari Prasad’s position (1952) by restoring the supremacy of the amending power of Parliament, in effect, it reinforced much more the power of judicial review.
The basic feature from the case
Each judge laid out separately what he thought was the constitution’s fundamental or essential features. In the majority view, there was no unanimity of opinion either.
Justice Sikri explained that the fundamental framework definition contained the following:
- Constituent dominance;
- Republican and republican rule;
- The Constitution’s secular character;
- Separation of powers between legislators, managers and judiciaries;
- Federal Judicial Form.
Justice Shelat and J. Grover, added to this list two more essential features:
- The requirement to create a welfare state laid out in the Public Policy Directive;
- National solidarity and dignity.
Justice Hegde and Justice Mukherjea separate and a shorter list of core features identified:
- India’s Supremacy;
- Parliamentary Polity Structure;
- National unity;
- Basic features of individual liberty granted to residents;
- The mandate to Create a Welfare State.
Justice Reddy Jaganmohan it stated that elements of the basic characteristics were to be found in the Preamble to the Constitution and in the provisions to which they had been translated, such as:
- The Federal Socialist Republic;
- National Constitution;
- Four State Organs.
He said without the fundamental freedoms and the principles of the Directive, the Constitution would not be itself. Just six judges on the court (thus a dissenting view) accepted that the constitutional rights of the individual belonged to the basic principle and it could not be changed by Parliament.
The Indira Gandhi case
In the case of 1975, the Supreme Court again had a chance to pronounce on the constitution’s basic structure. In 1975 the Allahabad High Court dismissed an appeal to the election victory of Prime Minister Indira Gandhi based on electoral malpractice.Justice Krishna Iyer, pending appeal, issued a stay that allowed Smt. Indira Gandhi is to serve as prime minister on the condition that she will not have to earn a paycheck and speak or vote in Parliament until the case has been resolved. In the meantime, Parliament passed the Thirty-ninth amendment to the Constitution that revoked the Supreme Court’s power to adjudicate cases affecting the election of the President, Vice President, Prime Minister, and Lok Sabha Speaker. Instead, a Parliament-constituted body would have the power to resolve such disputes over elections. Section 4 of the Amendment Bill essentially blocked any effort to contest an incumbent’s mandate, holding each of the above-mentioned positions in a court of law. This was a pre-emptive action intended to benefit Smt. Indira Gandhi whose election was the subject of ongoing controversy.
- Amendments were also made to the 1951 and 1974 Representation of Peoples Acts and placed in the Ninth Schedule together with the 1975 Election Laws Amendment Act to save the Prime Minister from embarrassment if an unfavourable verdict was pronounced by the apex court. The government’s mala fide intent was demonstrated by the haste in which the Thirty-ninth amendment was passed. The bill was presented on 7 August 1975 and approved the same day by Lok Sabha. The next day it was approved by the Rajya Sabha (Upper House or House of Elders), and two days later the President gave his assent. The amendment was adopted in extraordinary Saturday sessions by the State legislatures. This was released on August 10th.
- When the Supreme Court opened the case the following day for a hearing, the Solicitor General asked the Court to dismiss the lawsuit in the light of the recent amendment.
- Counsel for Raj Narain who was the politician for opposing the election of Mrs Gandhi argued that the amendment was against the constitution’s fundamental framework as it impaired the operation of free and equal elections and the right of judicial review. Counsel also argued that Parliament was not competent to use its constituent power to validate an election which the High Court declared void.
- It can be argued that the Supreme Court did not pronounce the last word on the question of the fundamental framework of the Constitution, a situation which is unlikely to change in the immediate future.
- While the idea that there is such a thing as a basic structure to the Constitution is well-established, its contents can not be fully determined with any finality measure until a Supreme Court judgment has issued it.
- Nevertheless, the polity’s independent, democratic and secular nature, rule of law, independence of the courts, citizens’ constitutional rights, etc., are some of the constitution’s vital features that have emerged consistently in the pronouncements of the supreme court.
Despite the creation of a robust and expansive rights infrastructure in the immediate post-emergency era by the Supreme Court, the scope of fundamental rights and right-based judicial scrutiny of post-1991 globalization policies has been restricted and limited by the Court. One fact that resulted from this tussle between Parliament and the courts is that all legislation and constitutional amendments are now open to judicial scrutiny and are bound to be struck down by the Supreme Court for transgressing the fundamental structure. Essentially, the authority of the Parliament to amend the Constitution is not absolute and the Supreme Court is the sole arbiter and reader of all constitutional amendments