Basic Structure of the Constitution

EVOLUTION OF THE BASIC STRUCTURE OF THE CONSTITUTION THE CONSTITUTION A “State” in International law is described as an independent political entity that works towards the maintenance of law and order and prevention of the country from the external aggression and for fulfilling all these purpose a definite body of rules and regulations are needed that manoeuvre the governance of a country. Such document that provides the framework for the governance of the country is called the Constitution of the country. The Indian constitution came into force on 26th of January, 1950 that provided for the main organs of the constitution and prescribed for their functioning. A Constitution that is rigid and inflexible is bound to face stagnation. The forefathers therefore provided with the provision to amend the constitution under Article 368 keeping in mind the fact that with the changing time, the needs of the country may also change. POWER OF THE PARLIAMENT TO AMEND THE CONSTITUTION. This power to amend the constitution has been questioned with respect to the extent of its operation and henceforth has been dragged into judicial arena time and again. Whether or not there is some restraint on the amending power of the constitution was asked for the first time in the case of Shankari Prasad Singh v. Union of India where the constitutional validity of 1st amendment act of 1951 was impugned on the ground that it abridges the fundamental rights guaranteed in Part III of the Constitution. The court in this case postulated that Article 368 gives unfettered power of amendment to the legislature and thus fundamental rights can also be amended. This view was reiterated in Sajjan Singh v. State of Rajasthan case. This view witnessed a change in Golak Nath v. State of Punjab where the 17th amendment of the constitution was in question, court in this case overruled the decisions given in Shankari Prasad Singh case and Sajjan Singh case, and stated that Fundamental rights cannot be amended. EVOLUTION OF THE BASIC STRUCTURE DOCTRINE This debate and deliberation on the amending power of the constitution finally came to a conclusion by the judgement passed in the landmark case of Keshava Nanda Bharati v. State of Kerela where the doctrine of basic structure was evolved. In this case the validity of 24th, 25th and 29th amendment of the constitution was challenged. While the respondent argued that the Constitution gives unrestrained power to amend the constitution under Article 368, the appellant side pressed that there are certain basic features that determines and defines the constitution that cannot be tampered with. The 13 judge bench came up with some essential elements that can be reckoned as forming the basic structure of constitution after a lot of discussion and deliberation, while 6 judges ( CJ S.M. Sikri, J. M. Shelat, A. N. Grover, K.S. Hedge, S. Mukherjee, P. Jagan Mohan Reddy) were of the view that fundamental rights cannot be amended at all, the other 6 (Ray, M.H. Beg, D.G. Palekar, S.N. Dwivedi, K.K. Mathew, Y.V. Chandrachud) postulated that parliament has unrestrained power to amend the constitution, it was the 13th judge, Justice Khanna who brought the balance between the two viewpoints and illustrated the idea that the word “amendment” per se indicates the limitation on the amending power of the constitution. It was iterated that there are some necessary implications that prevents the absolute amendment of the constitution, the notion of sovereignty, democracy, republic government and other such features form the basic structure and cannot be obliterated by any amendment. Thus unrestrained power to amend the constitution cannot be granted, because then the whole constitution faces the risk of being completely altered. Parliament’s power is limited; they cannot act in such a way that causes a constraint on the basic structure that epitome the constitution. Another interesting point that was raised in the case was that it will be also against the oath taken by president under Article 60 under which he vows to “preserve, protect and defend” the constitution. The Supreme Court thus concluded that Article 368 of the constitution does not confer on the legislature the power to amend the “basic structure” of the constitution. However, this idea of the “basic structure” of the constitution is not something that was evolved in the case of Keshav Nanda Bharati v. State of Kerela . It registered its presence in the Indian scenario way back in 1965 where Professor Dietrich Conrad, formerly Head of the Law Department, South Asia Institute of the University of Heidelberg while on his visit to India in February 1965, delivered a lecture on “Implied Limitation of the Amending power” in the Benaras Hindu University where he elucidated that “ Any amending body organised within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its constitutional authority”. This was taken note of by the eminent constitutional law lawyer M.K. Nambyar who brought the issue of the necessary implied restraint to the amendment of the constitution in the Golak Nath v. State of Punjab , drawing inspiration from Prof. Conrad, but that time judiciary hesitated to pronounce this notion. Today, the notion of “basic structure” stands firmly rooted to the ground. After Keshav Nanda Bharati v. State of Kerela , basic structure concept got reaffirmed in the Indira Gandhi v Raj Narayan case where the Supreme Court applied the theory of basic structure and invalidated clause 4 of Article 329-A which found a position via 39th amendment in 1975. Court affirmed that it’s beyond the ambit of amendment as it formed the fabric of basic structure, Justice Y.V. Chandrachud said that sovereign, democratic, republic status, equality of status and opportunity of an individual, secularism and freedom of conscience and religion along with the rule of law forms the basic structure of the constitution. The next case that reclaimed and reiterated the basic structure doctrine was Minerva mills Limited v. Union of India where court held that the limitation on the amending power per se forms part of its basic structure. Forging through the corridors of time, the notion of basic structure doctrine has been set in stone by the judgement in the case of I.R. Coelho v. State of Tamil Nadu in the year 2000. This case introduced “the essence of the rights” test and reiterated the notion of basic structure. However this case also added more confusion as it reaffirmed the doctrine of non- amendment of fundamental rights as claimed in the Golak Nath case. CRITICISM FACED BY THE BASIC STRUCTURE NOTION. The notion of basic structure of the constitution, as it stands today firmly guards the constitution from unrestrained changes however it also faces the criticism that the conception of the basic structure is very vague and carries a subjective tang. Critics argue that the judiciary should make it explicit that what forms the basic structure of the constitution. However, the exponents of the present theory of basic structure postulates that if court will specifically point out that what forms the basic structure then the legislature via amendment can find ways to dodge the judicial shackles. CONCLUSION Whatever the argument and contention may be with regard to the basic structure of the constitution, the fact remains that this restrain of non-interference with the “basic structure” of the constitution keeps a check on the amending power of the constitution and saves and safeguard the spirit of the constitution as pronounced in the preamble of the constitution.

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