The Amendment of the Constitution (Article 368) – Basic Structure Doctrine

By | May 10, 2018
The Amendment of the Constitution (Article 368) - Basic Structure Doctrine

To preserve the ideals and philosophy of the original constitution, the Supreme Court has laid down the basic structure doctrine. The doctrine allows the Supreme Court to strike down any amendments that may alter the ‘basic structure’ of the constitution.

INTRODUCTION

The very basis on which the law of a country is founded is its constitution. The economic, political and social conditions of the country are in a flux and are replaced with new ideas every day. The ideas provided by a country’s constitution may seem archaic and primitive to the ever-evolving new generation and thus it becomes essential that there is a process by which the constitution can be amended as per the needs and necessities of the people of a nation.

There are two main methods for the amendment of a constitution – Informal methods and formal methods.

Informal method is subdivided into judicial interpretations, conventions, and constitutional usages. In judicial interpretations, the text present in the constitution does not undergo any change, merely the meaning and its context are given in an alternate context. Constitutional provisions are modified by the growth of conventions. There is no visible modification on the face, but underneath there is a change in the workings of the provision. Conventions evolve out of practices followed over a period of time.

Formal method of constitutional amendment is generally a part of every constitution. It is essential for a constitution to adapt to the country’s needs as and when required. The process for constitutional amendment varies in each country. Some countries may have a flexible process, whilst some may have a more complicated process. An example of a flexible constitution is Britain where amending the constitution is as simple as passing an ordinary law. A rigid constitution is necessary so that the core values of a country’s principles cannot be amended easily. Otherwise, the constitution loses all permanence and supremacy.

The Indian Constitution makers were keen on avoiding too much rigidity as India was a developing country. They felt the need that the document should grow with the growing nation and adapt itself to the changing needs and circumstances of growing people. They were also aware of the fact that if the constitution was too flexible, it would be playing to the whims and fancies of every party that comes to power. Hence, they adopted a middle course, which did not make the amendment process too rigid nor too flexible for any unwanted changes. The procedure of amendment in the constitution is laid down in Part XX (Article 368) of the Constitution of India.

PROCEDURE FOR AMENDMENT

The Bill, passed by the required majority, is presented to the President who shall give his assent to the Bill. If the amendment seeks to make any change in any of the provisions mentioned in the proviso to article 368, it must be ratified by the Legislatures of not less than one-half of the States. These provisions relate to certain matters concerning the federal structure or of common interest to both the Union and the States viz.,

  • the election of the President (articles 54 and 55);
  • the extent of the executive power of the Union and the States (articles 73 and 162);
  • the High Courts for Union territories (article 241);
  • The Union Judiciary and the High Courts in the States (Chapter IV of Part V and chapter V of Part VI);
  • the distribution of legislative powers between the Union and the States (Chapter I of Part XI and Seventh Schedule);
  • the representation of States in Parliament; and the provision for amendment of the Constitution laid down in article 368.

Ratification is done by a resolution passed by the State Legislatures. There is no specific time limit for the ratification of an amending Bill by the State Legislatures. However, the Resolutions ratifying the proposed amendment must be passed before the amending Bill is presented to the President for his assent. The Constitution has been amended nearly 101 times in India, and the process is not as complex or rigid as that of countries like Australia or the United States of America.

Amendment of Fundamental Rights

The question regarding whether Fundamental Rights could be amended came into play, a year within the Constitution coming into force in the case of Shankari Prasad vs. Union of India (AIR (1951) SC 455). Here, the constitutional validity of the First Amendment Act (1951) which introduced Article 31A and 31B was challenged. It was challenged on the basis that it took away the right to property. The Supreme Court held that the power to amend the Constitution including the fundamental rights is held within Article 368, and hence the Parliament can take away any of the Fundamental Rights by enacting a Constitutional Amendment and the amendment would be considered as valid even if it abridges any of the other rights.

In Sajjan Singh vs. State of Rajasthan (AIR 1965 SC 845), the Supreme Court approved the judgment passed in Shankari Prasad’s case and held that the ‘amendment of the Constitution’ means the amendment of all provisions of the constitution. Gajendragadkar, CJ said that if the Constitution makers intended to exclude the fundamental rights from the scope of the amending powers, they would have made a clear provision in that behalf.

In the case of Golaknath vs. State of Punjab (AIR 1971 SC 1643), the Supreme Court by a majority of 6 to 5 prospectively overruled its stance and held that the Parliament had no power from the date of this decision to amend Part III of the Constitution so as to take away or abridge the fundamental rights. The Chief Justice stated that the fundamental rights are assigned transcendental and immutable place under our Constitution, and are therefore beyond the reach of the Parliament.

Following this, the 24th Amendment Act of 1971 was passed in order to remove the difficulties that arose out of the decision from Golaknath case. The amendment added a new clause (4) to Article 13 which says ‘nothing in this Article shall apply to any amendment of this Constitution made under Article 368.

BASIC STRUCTURE DOCTRINE

The Parliament has the power to make law within its jurisdiction, but this power is not absolute. To preserve the ideals and philosophy of the original constitution, the Supreme Court has laid down the basic structure doctrine. The doctrine allows the Supreme Court to strike down any amendments that may alter the ‘basic structure’ of the constitution. This doctrine is only applicable in the situation of Constitutional Amendments. The judiciary has not defined what exactly are the basic structure of the constitution are, but they are deemed by the Court on a case to case basis.

The concept of the Basic Structure Doctrine was recognised for the first time in the landmark case of Kesavananda Bharati vs. State of Kerala ((1973) 4 SCC 225). The court by majority overruled the Golak Nath case which denied parliament the power to amend fundamental rights of the citizens. The majority held that article 368 even before the 24th Amendment contained the power as well as the procedure of amendment. The Supreme Court declared that Article 368 did not enable Parliament to alter the basic structure or framework of the Constitution and parliament could not use its amending powers under Article 368 to ‘damage’, ’emasculate’, ‘destroy’, ‘abrogate’, ‘change’ or ‘alter’ the ‘basic structure’ or framework of the constitution. This decision is not just a landmark in the evolution of constitutional law, but a turning point in constitutional history.

Effect of the Kesavananda Bharati Case

A 13 judge Constitutional bench, in 1973 reviewed the decision of Golaknath and held that no part of the constitution, including fundamental rights, was beyond the amending power of Parliament, thus effectively overruling Golaknath. One major outcome of the judgment delivered was the definition of ‘basic structure’ by the judges. Each of the judges, separately put out what they thought were the basic features of the constitution. These are only illustrative, and not exhaustive.

Chief Justice Sikri explained that the concept of the basic structure included:

  • Supremacy of the Constitution.
  • Republican and democratic form of government.
  • Secular character of the Constitution.
  • Separation of powers between the legislature, executive, and the judiciary.
  • Federal character of the Constitution

Justice Shelat and Justice Grover added three more basic features to this list:

  • The mandate to build a welfare state contained in the Directive Principles of State Policy.
  • Unity and integrity of the nation.
  • Sovereignty of the country.

Justice Hegde and Justice Mukherjea identified a separate and shorter list of basic features:

  • Sovereignty of India
  • Democratic character of the polity
  • Unity of the country
  • Essential features of the individual freedoms secured to the citizens
  • Mandate to build a welfare state

Justice Jaganmohan Reddy stated that elements of the basic features were to be found in the Preamble –

  • Sovereign democratic republic.
  • Justice – social, economic and political.
  • Liberty of thought, expression, belief, faith and worship.
  • Equality of status and the opportunity.

The doctrine of Basic Structure was applied during the Emergency Period in 1975 in the
case of Indira Gandhi vs. Raj Narayan (AIR (1975) SCC 2299), where the Apex Court struck down Clause 4 and 5 of Article 329A. It violated free and fair elections, which forms the pillar of democracy. Justice Chandrachud declared it as unconstitutional on the grounds that they were an ‘outright negotiation of the right of equality conferred by Article 14, which is a basic postulate of our constitution.’ He held that these provisions were arbitrary and were calculated to damage the Rule of Law. The Supreme Court thus added the following into the ‘basic features’ list –

  • The Rule of Law
  • Judicial Review
  • Democracy, which implies free and fair election

The doctrine was further illustrated in Minerva Mills Ltd vs. Union of India (AIR (1980) SC 1789). The 42nd Amendment had been introduced in an effort to reduce the power of the judicial review of constitutional amendments by the Supreme Court. In the Minerva Mills case, sections 4 and 55 of the 42nd Amendment were declared as unconstitutional. Few more ‘basic features’ were added

  • Limited Power of Parliament to amend the Constitution
  • Harmony and Balance between fundamental rights and directive principles
  • Fundamental Rights in certain cases
  • Power of Judicial Review

LIMITATION OF BASIC STRUCTURE DOCTRINE

The doctrine has been criticized several times for its unambiguous nature and the lack of a precise definition from the Court in regards to what the ‘basic features’ are. Although the thoughts of the judges have been listed, it has been stated that they are only illustrative and not exhaustive. A limitation of this doctrine is that every amendment can be challenged on the base that it affects some ‘basic structure’ or the other. The amending power of the Parliament cannot be subject to such uncertain and dubious terms.

However, the criticism cannot be justified on the grounds of being uncertain and dubious. The basic structure of the Constitution is not vague. The absence of a complete list of ‘basic features’ is not a strong enough defense to say that they do not exist. There are several aspects of the law that remain unclear and cannot be defined accurately. Yet, they all form a part of the sphere of law and continue to play important roles in it.

CONCLUSION

A rigid constitution is a must in a federal system of governance. In case of the Indian constitution, it has been argued that it is not rigid enough. That there have been 93 amendments in last 50 years proves this fact. As a comparison, there have been only 27 amendments in the constitution of USA in the past 200 years. In Australia, out of 30 amendments proposed by the absolute majority of Australian Parliament, only four were accepted and 26 were rejected by the people. In the hindsight, it can be said that the safeguards to prevent the spirit of the constitution were not enough.

Politicians have time and again shown that they can modify it easily to serve their vote based politics. This has been done deliberately to ensure that the constitution can be changed as per the needs of the times. However, to prevent excessive changes on the whims of the ruling party, sufficient safeguards have been put. In the words of 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.

By – Nirupama V Shankar
(The Tamilnadu Dr. Ambedkar Law University)

REFERENCES –

1. Jain, M.P., Indian Constitutional Law, 2010
2. Basu, D.D., Commentary on the Constitution of India, 1970
3. Pandey, J.N., Constitutional Law of India


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