12th January, 2023 POLITY AND GOVERNANCE
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- The Vice-President of India questioned the Supreme Court judgment that evolved the doctrine of the basic structure while addressing the 83rd All-India Presiding Officers Conference in Jaipur.
- He asked how the judiciary can put restrictions on the Parliament’s powers to amend the Constitution and frame laws in a democratic nation.
- He stated that “in 1973, an incorrect precedent was started in India, Supreme Court in the case of Kesavananda Bharati, gave the idea of basic structure, that Parliament can amend the Constitution but not its basic structure. With due respect to the judiciary, I cannot subscribe to this. This must be deliberated”.
- The statement of the Vice President opened a new front in the ongoing tussle between the executive and the judiciary over the judges’ selection mechanism and the division of powers between the two.
- He also expressed his dissatisfaction at the 2015 Supreme Court judgment quashing the National Judicial Appointments Commission (NJAC) Act, which had suggested a greater role for the government in the appointment of judges.
- He further said that a judicial verdict cannot overrule parliamentary will, adding “parliamentary sovereignty and autonomy cannot be permitted to be qualified or compromised as it is quintessential to the survival of democracy.”
- In the Kesavananda Bharati case (1973), a 13-judge constitutional bench held by a 7-6 majority that Parliament can amend any provision of the Constitution, including fundamental rights, so long as the basic structure of the Constitution remains the same.
- The constitution bench identified some of the basic features of the constitution including; the supremacy of the Constitution, unity and sovereignty of India, secular character of the Constitution and separation of power as the basic structure of the Constitution, the court clarified the list is not comprehensive.
- With time the court added some more features such as rule of law, judicial review and free and fair elections to the list of basic structures.
- The doctrine of basic structure has been based on the idea that the most fundamental ideals of the Constitution must be protected and the Government's power to make laws that may distort or remove these basic principles must not be unlimited.
The emergence of the Basic Structure doctrine:
- In 1951, Shankari Prasad case; the Constitutional validity of the First Amendment Act (1951), which trimmed the right to property, was challenged.
- The Supreme Court ruled that the Parliament's power to amend the Constitution under Article 368 also includes the power to amend Fundamental Rights.
- The Parliament can shorten or take away any of the Fundamental Rights by enacting a constitutional amendment act and such a law will not be void under Article 13.
- In 1967, Golak Nath case; the Constitutional validity of the 17th Amendment Act (1964), which added certain state acts in the 9th Schedule, was challenged.
- The Supreme Court ruled that the Parliament cannot shorten or take away any fundamental rights.
- A constitutional amendment act is also a law within the meaning of Article 13 and therefore it would be void for violating any of the Fundamental Rights.
- The Parliament reacted to the Supreme Court’s judgement in the Golak Nath case by passing the 24th Amendment Act (1971).
- This Act amended Articles 13 and 368 of the Indian Constitution.
- It declared that the Parliament has the power to shorten or take away any of the Fundamental Rights under Article 368 and such an act will not be law under the meaning of Article 13.
- In 1973, Kesavananda Bharati case, the Supreme Court overruled its judgment in the Golak Nath case.
- The Court upheld the validity of the 24th Amendment Act and stated that Parliament is empowered to shorten or take away any of the Fundamental Rights.
- The court also laid down a doctrine of the ‘basic structure’ of the Constitution. It ruled that the power of Parliament under Article 368 does not enable it to alter the ‘basic structure’ of the Constitution. It means that the Parliament cannot shorten or take away any Fundamental Right that forms a part of the ‘basic structure’ of the Constitution.
- In 1980, Minerva Mills case, the Supreme Court held that under Article 368, the Parliament cannot expand its amending power to repeal or nullify the Constitution or to destroy its basic features.
- In the 1981, Waman Rao case, the Supreme Court secured the doctrine of the ‘basic structure’ and clarified that the doctrine would apply to constitutional amendments enacted after 24th April 1973 (the date of the judgement in the Kesavananda Bharati case).
- The current position; under Article 368, the Parliament can amend any part of the Constitution including the Fundamental Rights but without affecting the ‘basic structure’ of the Constitution.
- The Supreme Court is yet to define or clarify what constitutes the ‘basic structure’ of the Constitution.
- From the various Supreme court judgements, the following have emerged as the elements of the ‘basic structure of the constitution:
- Supremacy of the Constitution.
- Sovereign, democratic and republican nature of the Indian polity.
- Secular character of the Constitution.
- Separation of powers between the legislature, the executive and the judiciary.
- Federal character of the Constitution.
- Unity and integrity of the nation.
- Welfare state (socio-economic justice).
- Judicial review.
- Freedom and dignity of the individual.
- Parliamentary system.
- The rule of law.
- Harmony and balance between Fundamental Rights and Directive Principles.
- Principle of equality.
- Free and fair elections.
- Independence of Judiciary.
- Limited power of Parliament to amend the Constitution.
- Effective access to justice.
- Principles (or essence) underlying fundamental rights.
- Powers of the Supreme Court under Articles 32, 136, 141 and 142.
- Powers of the High Court under Articles 226 and 227.