Contributed by Khushbakht Ibrar
Lawyer at @trek_law
The Constitution makers bequeathed the power of amendment in the Constitution in the hands of the Parliament by making it neither too stiff nor too flexible with a determination that the Parliament will amend it as to cope up with the altering desires and demands. The reason behind the addition of Provisions for amendment of the constitution is to curb the complications which may come across in future in the functioning of the constitution. With the passage of time, the social, economic and political conditions of the people changes, therefore, the constitutional law of the country must also change in order to meet the changing needs, changing life of the people. If no provisions were made for amendment of the constitution, the people would have opted for extra constitutional process like revolution to change the constitution. According to A R Antulay
“The Constitution has to be changed at every interval of time. Nobody can say that this is the finality. A constitution which is static is a constitution which ultimately becomes a big hurdle in the path of the progress of the nation”.
The Constitution is organic, in words of Edmund Burkehas, “a Constitution is an ever-growing thing and is perpetually continuous as it embodies the spirit of the nation. It is enriched at present by the past influence and it makes the future richer than the present”. Under Article 368 of the Indian Constitution the Parliament in exercise of its constituent power can amend any of the provisions of the Constitution and this power empowers the Parliament to amend even Article 368 itself. It affords for three types of amendment i.e., amendment by simple majority, amendment by special majority and amendment by special majority and ratification by the States. The Constitution has to be amended at every interval of time.
Doctrine of basic structure:
the Parliament and the State Legislatures are permitted by the constitution to make laws within their particular jurisdiction. Bills regarding the amendment the constitution can only be presented in the Parliament, but this power is not absolute. If the parliament make laws and the Supreme Court finds it inconsistent with the constitution, then it has the power to declare that law to be illegal or void. Thus, to preserve the ideals and philosophy of the original constitution, the Supreme Court has asserted the basic structure doctrine.
“The basic structure doctrine is a common law legal doctrine that the constitution of a sovereign state has certain characteristics that cannot be erased by its legislature.”
It is a judge made doctrine which intend to put a restraint on the amending powers of the Parliament so that the basic structure of the fundamental law of the land cannot be altered in implementation of its constituent power under the Constitution. This theory suggests that basic feature of the constitution cannot be transformed or devastated by the parliament, key among these basic features are the fundamental rights granted to individuals by the constitution.
In 1951, The Constitution of India was amended which presented the debatable Articles 31A and 31B to it. Article 31B formed the 9th Schedule which stated that any law provided under it could not be challenged for the violation of Fundamental Rights as per Article 13(2) of the Constitution. Article 13(2) states that the Parliament shall not draft any law which curtails the rights granted under Part III and to that extent it shall be annulled. The aftermaths of this amendment gave rise to the basic structure theory.
The Shankari Prasad Case:
In this case a petition was filed in the Supreme Court of India challenging Article 31A and 31B on the ground that they curtail or take away rights guaranteed under Part III of the Constitution which is in contradiction of the essence of Article 13(2) and hence should be declared void. In this case the Hon’ble Supreme Court held that the power to amend the Constitution including the Fundamental Rights is conferred under Article 368, and the word ‘Law’ as mentioned under Article 13(2) does not include an amendment of the Constitution. There is a distinction between Parliament’s law-making power, that is, the legislative power and Parliament’s power to amend or constituent powers.
The Sajjan Singh Case:
After the Shankari Prasad case, Fourth Amendment in 1955 was passed amending some Articles in Fundamental Rights Part, but its validity was never challenged. Afterwards Seventeenth Amendment in 1964 introduced a chief modification and put a number of laws in the Ninth Schedule, so as to keep them away from the judicial review and was challenged before the Court. The majority of the judges in Sajjan Singh case on the same logic as held in the Shankari Prasad case held that the law of amendment is superior law and is not subject to Article 13(2). It also held that the Shankari Prasad case was accurately decided and declared that the Parliament under Article 368 can amend any of the provision of the Constitution including the Fundamental Rights and make a suggestion to the Parliament that Fundamental rights should be included in the Proviso of the Article 368.
Golak Nath v. The State of Punjab
Golak Nath is a case that is related to property of two brothers Henry and William Golak Nath. According to the facts of the case they had some 500 acres of land in Jalandhar. In light of the Punjab Security and Land Tenure Act, the state government held that they could keep some 20 acres and rest was declared surplus land.
This was challenged by the Golak Nath family on the ground that it deprived them of their constitutional right to acquire and hold property, practice any profession and equality before the law. As the Punjab act was placed in Ninth Schedule via 17th amendment, the Golak Nath family also sought to declare it ultra vires.
Therefore, an eleven judge bench of the Supreme Court with a 6:5 majority reversed its earlier decision. Supreme Court ruled that “the Parliament had no power to amend Part III of the Constitution” and overruled its earlier decision in Shankari Prasad and Sajjan Singh case. The bench observed the following,
- Power of Parliament to amend the Constitution is not lessened in Article 368, it is derived from Article 245, read with Entry 97 of List I of the Constitution. It was very clearly stated that Article 368 only provided for the Procedure of Amendment and nothing more.
- The Court also clarified that the word ‘law’ under Article 13(2) includes within its meaning an amendment to the Constitution. Therefore any amendment against the Fundamental Rights was void.
- The argument that the power to amend the Constitution is a sovereign power, which is over and above the legislative power and hence outside the scope of judicial review was rejected.
However, the 1st, 4th, and 17th Amendments were not declared invalid by the Court as the ruling was given a prospective effect. This meant that no further amendments could be brought into the Constitution violating the fundamental rights. But the cases of Shankari Prasad and Sajjan Singh were declared bad in law by the Court to the extent that Article 13(2) does not include a Constitutional amendment under Article 368.
Privy purse case:
When the prince was being pursued by Sardar Patel for signing the instrument of accession, the surety of a privy purse was given, which was a kind of annual pension or grant. According to that privy purse package they were also allowed to hold their honorary titles, other symbols of their order such as flying their own flags etc. Formerly, the constitution had made the arrangement of privy purse as a “permanent feature”. It was also decided that the Privy Purse could not at any time be “increased, or decreased” for reason or whatsoever. Though the amount paid as a part of the privy purse was irrelevant, however people started opposing it. Two problems were witnessed, Firstly, hereditary privileges were not in consonance with the principle of equality. Secondly, it became an election issue. In 1967 elections, the demand to abolish Privy Purses had been supported by Indira Gandhi. Government under her supervision tried to amend the constitution but this amendment was rejeted in Rajya Sabha. Then, an ordinance was issued. Promulgation of ordinance for abolition of Privy Purse was considered a constitutional betrayal of the solemn assurance given by Sardar Patel to all the erstwhile princes. This ordinance was challenged in Supreme Court in Madhav Rao Scindia v. Union of India, 1970. Although government had pleaded that it is being done to give effect to directive principles but the Supreme Court for obvious reasons struck down the ordinance. With this, what could never be increased or decreased for reason whatsoever was abolished forever.
The 24th amendment, 1971 restored the parliamentary power to amend any part of the constitution including the part III.
Previously, when any constitutional amendment bill once passed in both the houses and sent to President was completely on mercy of president to become a law. After this amendment president was duty bound to give assent to a Constitution Amendment Bill when presented to him. Thus, once any constitution amendment was passed in both houses of parliament, it was sure to become a law because President cannot refuse to give assent or return it back.
The right to property still was unharmed and the Supreme Court judgement in nationalization case was overruled by the government after bringing in 25th amendment of the constitution. This amendment brought the following changes:
- Amendment of Article 31A which now meant that “If the government acquires your property for public purpose and pays you a paltry compensation, you cannot question that in court.”
- Insertion of Article 31C which meant that If the government has made some law to realize any of the Directive Principles under article 39, then it will not be reviewed under the lens of Article 13 and it will not be void on ground that it takes way rights conferred by Article 14, 19 or 31. If a law declares that it is for giving effect to such policy, it cannot be questioned in the court on the ground that it does not give effect to such policy.
The 26th Amendment in 1971 abolished the Privy Purse.
In 1972 the 29th Amendment added two Kerala Land Reforms Amendment Acts (1969 and 1971) to the Ninth Schedule, which is meant for Acts that the State legislatures and Parliament wanted to keep beyond judicial review.
Thus, till 1972, the tussle between legislature and judiciary continued with judiciary losing its powers of striking down the erring acts due to many amendments targeted only at Supreme Court judgements. In such scenario, the Kesavanada Bharti Case was filed in Supreme Court.
Kesavanada Bharti Case, 1973
The Kesavananda Bharati case was the culmination of a serious conflict between the judiciary and the government, which was headed by Mrs Indira Gandhi. The case sought to find answers to the following questions i.e. was the power of Parliament to amend the Constitution unlimited? In other words, could Parliament alter, amend, abrogate any part of the Constitution even to the extent of taking away all fundamental rights?
Though, the phrase ‘basic structure’ was introduced for the first time by M.K. Nambiar and other counsels while arguing for the petitioners in the Golaknath case, it was only in the kesavanada Bharati’s case that the concept surfaced in the text of the apex court’s verdict. In this context, it is also pertinent to note that, actually this doctrine of “basic structure” is introduced into India by a German scholar, Dietrich Conrad.
On February 1970 Swami Kesavananda Bharati, senior plaintiff and head of the Hindu monastry Edneer Matha in Edneer, Kasaragod District, Kerala, challenged the Kerala government‘s attempts, under two land reform acts, to impose restrictions on the management of its property. A noted Indian jurist, Nanabhoy Palkhivala, convinced Swami into filing his petition under Article 26, concerning the right to manage religiously owned property without government interference. They challenged the action of government taken under the Kerala Land Reforms Act, 1963, The mutt challenged the Act before the Supreme Court by filing a writ petition seeking to protect the fundamental right of religious institutions to manage their own property without undue restrictions by the state. When this petition was pending, the 24th Amendment ‘to the Constitution (amending Articles 13 and 368) was adopted. It was followed by the 25th, 26th and 29th Amendments.
Kesavananda subsequently challenged 29th amendment, but as the challenges to the other amendments raised similar issues, they were heard together. Kesavananda Bharati became the lead petitioner since he had filed the petition first.
The validity of these amendments was challenged before a Constitution Bench comprising five judges, which then referred it to a 13 judge Bench, which heard the case for over six months before delivering its verdict on April 24, 1973.
Answers to the Issues:
Eleven issues were raised in this case before the Honourable Supreme Court.
- The first issue before the Court was what should be the rule of interpretation? To this issue, the Supreme Court held that if there is any ambiguity, the Hyden Rule have to be followed.
- To the second issue what is meant by the word amend or amendment. The Court held that any amendment to the Constitution has to be within the limits of the essence of the Constitution. Indian Constitution is first and foremost a Social Document and is based upon the socio-economic ideals of the freedom struggle. It was in the course of the freedom struggle that the various promises were made for bringing about a social revolution in the society and these principles are indispensable for the Indian society and accordingly the Constitution also has to be essentially based upon these principles. It is these principles and values, which provide the organic entity and vitality to the Constitution. The Parliament which is a creation of the Constitution cannot rob the Constitution of its vitality. The Constitution has its own identity. The identity of the Constitution cannot be taken away by any process of amendment, in fact, the Constitution does not provide for any mechanism by which the very identity of the Constitution can be taken away.
- The third issue was what is the source of amending power? The Court on this issue held that even in earlier cases, Article 368 was the only source and even after the Constitution (Twenty-fourth Amendment) Act, Article 368 is the only source of the amending power.
- The fourth issue was, can it be said that the amendment is done by the people of India directly and therefore being a sovereign, the people of India can amend anything in the Constitution? The Court held that India is a representative democracy and once people have elected their representatives, the amendment has to be done by the Parliament and not by the people directly. There is no system of referendum in India and therefore, it is not the people of India who directly amend the Constitution or make any law. The Parliament has to act within the domain of the Constitution. Sovereignty is no doubt vested in the people of India but it is only the political sovereignty. Legal sovereignty is vested in the Constitution of India i.e. the Constitution ids the supreme and not the people of India. Once the people have given the Constitution to themselves, they have declared their promise to adhere to the Constitution and therefore, even the people cannot rise above the Constitution to alter the essence of the Constitution by any constitutional means.
- The fifth issue was by declaring the constituent power, has the Parliament acquired for itself, the power to rise above the Constitution and bring about any alteration in the Constitution? The Court held that the constituent power of the Parliament cannot be equated to the constituent power of the Constituent Assembly. The Constituent Assembly had the original constituent power under which it created the Constitution itself. It was not limited by any pre-existing Constitution as such. On the other hand, the Parliament’s constituent power is a derivative power as derived from the Constitution itself. In fact, the Parliament itself is the creation of the Constitution and therefore in the garb of having the constituent power, the Parliament cannot rise above the Constitution so as to acquire those powers for itself which was actually with the Constituent Assembly. Hence, the Parliament in its constituent power of amendment has to act within the limits of the Constitution.
- The sixth issue was does Article 13(2) controls Article 368? Sikri, J. did not get into this issue as he observed that otherwise also the effect is same. Hedge and Mukherjea, JJ. held that there is a need for harmonization between Article 13(2) and Article 368. Article 13(2) refers to the ordinary legislative power of the Parliament and the State legislature whereas, Article 368 refers to the constituent power of the Parliament to amend the Constitution and is above the limitation of Article 13(2) though it subject to the Doctrine of Basic Structure. The Court did not read any conflict between the two, rather it just held that the field of application of the two are just distinct and hence they do not control each other.
- The seventh issue was are the Fundamental Rights amendable? The Court held that Fundamental Rights are amendable but the Basic Structure is not. The wordings used in the various Fundamental Rights in themselves may not be the essence of the Constitution rather the principles behind those words i.e., Articles are the elements of the Basic Structure. An amendment of the word used in the Articles on Fundamental Rights is permissible only to the extent that the basic structure of the Constitution does not adversely get affected.
- The eight issue was does the doctrine of implied limitation apply upon the Indian Constitution? The Court answered to this issue was affirmative.
- The ninth issue was what is the scope of judicial review in reference to Article 368? The Court held that, it can interfere in any amendment of the Constitution from the perspective of the Substantive limitations to basic structure and the Procedural limitation (Article 268(2)) etc.
- The tenth issue was what is the scope and extent of the amending power with respect to Article 368? It was held that Article 368 cannot be amended but the spirit of midway amendment process cannot be taken away. The Constitution neither be made too rigid nor can it be made too flexible. Similarly, on the substantive part, Article 368 cannot be amended to an extent so as to acquire to itself the power to take away or abridge even the basic structure.
- The last and the eleventh issue was is not Doctrine of Basic Structure a vague doctrine? The Court held that the doctrine of basic structure cannot be said to be vague merely because it cannot be rigidly defined or all the elements of basic structure have not been enumerated. Firstly, the Court is bound to decide only those issues which are actually before it. A decision upon any other issue will amount to an obiter dictum and will not be binding. Moreover, it is not possible to enumerate all the elements in one-go and it is not needed as well. The Court also held that merely because a particular concept of law cannot be rigidly defined, it does not cease to be a concept of law. Principles of natural justice and negligence also cannot be rigidly defined still they are effective concept of law.
In this case the validity of the 25th Amendment Act was challenged along with the 24th and 29th Amendments. The Court by majority overruled the Golak Nath case which denied the Parliament’s power to amend Fundamental Rights of the citizens. The majority held that Art.368 even before the 24th Amendment contained the power as well as the procedure of amendment. The Supreme Court declared that Art.368 did not enable the Parliament to alter the basic structure or framework of the Constitution and Parliament could not use its amending power under Art.368 to damage, emasculate, destroy, abrogate, change or alter the ‘basic structure’ or framework of the Constitution.
Most importantly seven of the thirteen judges in the Kesavananda Bharati case, including Chief Justice Sikri who signed the summary statement, declared that Parliament’s constituent power was subject to inherent limitations. The historic judgment was delivered by a 13 judge bench and with the majority of 7:6; they overruled the Golak Nath case. It was held that the power of Parliament to amend the Constitution is far and wide and extends to all the Articles but it is not unlimited to an extent that it destroys certain basic features or framework of the Constitution.
The Hon’ble Supreme Court, however, held that the 24th Amendment was valid as it only states what was present before implicitly. It does not enlarge the powers of Parliament, Article 368 always included the power and procedure to amend the Constitution.
The judges did not provide what constitutes the basic structure but provided an illustrative list of what may constitute the basic structure. As per Sikri, C.J., the basic structure constitutes the following elements:
- The supremacy of the Constitution
- Republican and Democratic forms of Government
- Secular character of the Constitution
- Separation of Powers between the legislature, the Executive, and the Judiciary
- Federal Character of the Constitution
Shelat and Grover, JJ., added the following to the above list:
- The mandate to build a welfare state contained in the Directive Principles of State Policy
- Maintenance of the unity and integrity of India
- The sovereignty of the country
Hegde and Mukherjee, JJ., had their list of the elements of the basic structure, which included:
- The sovereignty of India
- The democratic character of the polity
- The unity of the country
- Essential features of individual freedom
- The mandate to build a welfare state
Whereas Jaganmohan Redd, J., believed that it was the Preamble that laid down the basic features of the Constitution, which are:
- A sovereign democratic republic
- The provision of social, economic, and political justice
- Liberty of thought, expression, belief, faith, and worship
- Equality of status and opportunity
Major outcomes of the Kesavananda Bharati’s case
- The seminal concept of ‘basic structure’ of the Constitution gained recognition in the majority verdict
- All judges upheld the validity of the Twenty-fourth amendment saying that Parliament had the power to amend any or all provisions of the Constitution.
- All signatories to the summary held that the Golaknath case had been decided wrongly and that Article 368 contained both the power and the procedure for amending the Constitution.
- An amendment to the Constitution was not the same as a law as understood by Article 13 (2).
- Unlike ordinary laws, amendments to constitutional provisions require a special majority vote in Parliament.
- In summary the majority verdict in Kesavananda Bharati recognised the power of Parliament to amend any or all provisions of the Constitution provided such an act did not destroy its basic structure. But there was no unanimity of opinion about what constitutes basic structure. Though the Supreme Court very nearly returned to the position of Sankari Prasad (1952) by restoring the supremacy of Parliament’s amending power, in effect it strengthened the power of judicial review much more.
The following are the major criticisms advanced by the critics:
- The doctrine does not have a textual basis. There is no provision stipulating that this Constitution has a basic structure and that this structure is beyond the competence of amending power.
- The concept of the “basic structure of the Constitution” cannot be defined. What constituted the basic structure of the Constitution? Each judge defines the basic structure concept according to his own subjective satisfaction. This leads to the fact that the validity of invalidity of the Constitution Amendment lies on the personal preference of each judge and the judges will acquire the power to amend the Constitution
- The attempt by a constitutional court to review the substance of the constitutional amendments would be dangerous for a democratic system in which the amending power belongs to the people or its representatives, not to judges.
- An amendment to a Constitution may be necessary even to change the original intention of the Constitution framers, which may not augur well for the subsequent generation which is to work with the Constitution. Therefore to hold that an amendment not falling in the line with the original intention of the founding fathers is not valid.
Therefore, on any reasonable analysis it ought to be clear that the basic structure doctrine is not only grounded in the Constitution’s text and history, but that it also performs an important democratic role in ensuring that majoritarian governments do not destroy the Constitution’s essential character. Constitutions are not like ordinary laws. Interpreting one is always likely to be an exercise fraught with controversy. But such is the nature of our political design that the court, as an independent body, is tasked with the role of acting as the Constitution’s final interpreter. The basic structure doctrine might be derived from the abstract but it does not mean it doesn’t exist within the Constitution.