Amendment of the Constitution and Basic Structure Doctrine (BSD) By Mr. Vipin Bhat
Amendment of Constitution • Basic Structure theory, Amendment of Constitution, Art. 13, Ninth Schedule are all related to each other. • One needs to have a prior understanding of Art. 12, 13 and Fundamental Rights in order to understand the Amendment and Basic Structure Theory • We start from Amendment of Constitution
Amendment under Indian Constitution • Art. 368 – Power of Parliament to amend the Constitution and procedure therefor • Amendments fall under 3 categories – 1. Effected by simple majority – 2. Effected by special majority (2/3rd) – 3. Effected by special majority + ratification by states
First category: All these are specifically excluded from the ambit of Art. 368 • Simple majority • Art. 4 (creation of new states or reconstitution) • 169 (creation or abolition of upper chambers in states) • 239-A (Constitution of centrally administered areas) • Para 7 of Fifth Schedule • Para 21 of Sixth Schedule
Second Category: • Special majority (2/3rd of members) • Those Articles / parts not referred in the first category come under this category • These are not mentioned expressly • One will have to arrive at these provisions by taking all the parts of the Constitution and subtracting those mentioned in the “first category” and those mentioned in “third category”. Residuary provisions will fall under this second category
Third Category: • Require special majority (2/3rd) + Ratification by resolution passed by not less than ½ of the State legislatures • All provisions referred in Art. 368(2) – Election of President (Art. 54, 55) – Extent of executive power of Union and State (Art. 73, 162 respectively) – Provisions dealing with SC (Ch. IV of Part V) – Provisions dealing with HC (Ch. V of Part VI) – Art. 368 (amendment) – And few more…
Case 1 • Kihoto Hollohan v. Zachillhu (AIR 1993 SC 412) – An amendment to 10th Schedule in effect barred the jurisdiction of the courts WRT (with respect to) disqualification of member of a House (MLA / MP) – An amendment by way of simple majority followed – Though it did not make amendment to any changes to parts referred in Art. 368(2) – SC held that, in effect, it amended the powers of SC and HC – SC held the amendment void because, it did not follow the procedure of special majority as
Case 2 • Berubari Union and Exchange of Enclaves re (AIR 1960 SC 845) – Power to amend constitution conferred on Parliament includes Art. 1 – In effect, includes power to cede (give up) national territory in favour of a foreign state!
A Note on Amendment: • The original Art. 368 (in 1950) was quite simple • Due to several amendments (esp. 24th Amendment), this provision has become lengthy • This was due to the squabble between judiciary and Parliament WRT amending powers • Dr. Ambedkar in the Constituent assembly clarified the members that the amendment process in India was quite simple compared to American and Australian Constitution • Indian Constitution does not have “referendum” process
Transition… • Now, we are transitioning to Basic Structure doctrine • A lot of things here are overlapping • Practically, a strict line between amendment and Basic structure doctrine cannot be drawn • The rules relating to amendment as given under Art. 368 has been modified by several decisions of the SC which will be discussed now • These cases become the content of Basic
Basic Structure Doctrine
3 Stages in Basic Structure Theory: • Pre-Kesavananda position – No mention of basic structure
• Kesavananda Decision – Basic structure theory proposed
• Post-Kesavananda – Basic structure strengthened – Crystallised, new dimensions added
3 Major Cases Before Kesavananda: • – – –
• •
Shankari Prasad Singh Deo v. Union of India (AIR 1951 SC 458) Parliament has power to amend fundamental rights “Law” in Art. 13 doesn’t include amendment of Constitution Amendment by way of Art. 368 done in exercise of constituent power, not legislative power.
– Sajjan Singh v. State of Rajasthan (AIR 1965 SC – Shankari Prasad was upheld by majority (Bench 3:2)
845)
Two judges dissented- “certain basic features are sacred” – Golak Nath v. State of Punjab (AIR 1967 – Fundamental rights cannot be amended
SC 1643)
Any amendment violating fundamental rights is not allowed in
Golak Nath effect and 24th Constitutional Amendment Act • In Golak Nath, Subba Rao CJ (Chief Justice) said that Art. 368 only provided “procedure to amend the constitution” only and not the “power” to amend. (Prior to 1971, Art. 368 had a marginal note “procedure to amend” only. • Due to the difficulties created in Golak Nath, the Parliament passed the 24th amendment Act in 1971 and made significant changes to Art. 368 and Art. 13 and nullified the Golak Nath effect! ;) • (Refer to the changes made by 24th amendment. Somebody drafted the amendments brilliantly to nullify every effect of Golak Nath)
Kesavananda - Birth of Basic Structure • Validity of several land reform Acts were questioned along with 24th, 25th and 29th Amendments to the Constitution • Petitioners urged that certain essential elements and • features were sacred and could not be destroyed They said these basic features related to human rights and fundamental rights which people gave to themselves • and are inviolable • There were 13 judges wrote 11 different judgments The judgment is famous for its length and varying opinions within the judges • Very difficult to arrive at the conclusion about the end effect of the judgment!
Decision • All judges held that 24th Amendment was valid • All judges held that Parliament has power to amend any or all provisions of Consti including FRs • However… 7 judges held that the Parliament doesn’t have power to amend the “basic structure” of the
What Constitutes (contents) Basic Structure? • As per Sikri CJ: – Supremacy of Constitution – Republican and Democratic form of Govt. – Secular character of Constitution – Separation of powers – Federal Character
As per Shelat and Grover • Those 5 enumerated by Sikri and also these: – Mandate to build welfare state under Par IV – Unity and Integrity of the nation
What Constitutes Basic Structure? As per Hegde and Mukherjea
•Sovereignty of India •Democratic character of our polity Unity of our Country
•Individual freedoms of citizens Welfare state and egalitarian society As per Jaganmohan Reddy: Basic structure could be implied from the Preamble (seems like this judge is #ForeverAlone)
Indira Nehru Gandhi v. Raj Narain (AIR AIR 1975 SC 2299) • Allahabad HC had invalidated the election of Indira Gandhi on the ground of corrupt practices • She appealed to SC and in the meanwhile, Parliament passed the 39th Amendment to nullify the decision of Allahabad HC!! • The 39th Amendment was questioned before the SC • SC held that the amendment violated “free and fair elections (democracy) and judicial review • The amendment was striked down
Chandrachud J in Indira Gandhi Case said… • This judge took the opportunity to expand the scope of basic structure by identifying 4 basic features: – 1. Sovereign democratic republic status – 2. Equality – 3. Secularism, Freedom of conscience and religion – 4. Govt of laws, not of men
Minerva Mills v. Union of India AIR 1980 SC 1789 • Held that, whenever there is a conflict between FR and DPSP, harmony should be created between the both • Such harmony between FRs and DPSP is a basic feature of Indian Constitution
Waman Rao v. Union of India AIR 1981 SC 271 • Held that amendments made to 9th schedule until Kesavananda decision were valid • However, amendments to 9th schedule made after Kesavananda decision were open to scrutiny
I.R. Coelho v. State of TN (AIR 2007 SC 861) • Clarified the decision in Waman Rao case • Held that 9th schedule was open to scrutiny on the basis of Basic Structure Doctrine
L. Chandrakumar v. Union of India (AIR 1997 SC 1125) • Held that Art. 323-A and 323-B (relating to tribunals) as far as it excluded the jurisdiction of SC and HC are invalid • Because they compromise on the basic feature of “judicial review”. • Recent case update (FRESH!): on Sept 25, 2014, Rohinton F Nariman J., passed a decision in “Madras Bar Association v. Union of India” that National Tax Tribunal Act, 2005 as unconstitutional because it violated the Basic Structure of the Constitution.
Contents of Basic Structure • In SR Bommai, “federalism” was said to be a basic feature • L. Chandra Kumar case, settled that judicial review is a basic feature • Kihoto Hollohon, recognised democracy as a basic feature
Test for Basic Structure • In M. Nagaraj v. Union of India – Citation: (2006) 8 SCC 212 – By applying “width test”, check whether there is any obliteration of constitutional limitations – By applying “identity” test, check whether there is any alteration to the basic structure of the Constitution
• In IR Coelho – Essence of the right must be the test – Triangle of Art. 14, 19 and 21 are “essence of right”
Conclusion • Whether basic structure doctrine puts unnecessary burden on the amending process? • Whether the Parliament’s hands are tied due to this doctrine? • Can have subjective answers to these questions • Various scholars say that due to this doctrine, the supremacy of Constitution has been preserved • And also, fundamental rights have been
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