Author: Saksham Anand
A state is comprised of four basic elements namely territory, population, government and sovereignty, in order to maintain and increase the welfare of a state some basic guiding principles are laid down. This set of basic rules and regulations is called a constitution. Constitution is the basic law of a state on which the fundamental working of its government is based. It contains rules and regulations for the proper functioning of different branches of government and also lays down principles on which interaction between a government and its citizens is based. Almost all democratic countries have a written constitution except the United Kingdom.
‘Manu’ is known as the first political thinker of India, his book “Manusmriti” is regarded as the first book of law in India which codified the rule of conduct for the citizens as well as the king. Later on ‘Kautilya ( Chanakya ) gave his political thinking a form of book called “Arthashasta” which also served the purpose of being a guide book for the government ( king and his ministers) as well as its citizens. One can say that these two books acted as a constitution at that time.
In March 1946, Cabinet Mission arrived in India consisting of three members. The cabinet mission contemplated the formation of constituent assembly whose members were elected by provincial legislative assemblies. This constituent assembly was responsible for the formation of the constitution of India and it took them two years, eleven months and eighteen days to complete the constitution of India.
On 13th December 1946, first session of constituent assembly was held and on that day Pt. Jawahar Lal Nehru moved objective resolutions for framing the constitution which was adopted after proper discussions and debates on 22nd January 1947. The following objectives were put in the resolution:
- To foster unity of the nation and to ensure its economic and political security.
- To proclaim India as a sovereign democratic republic.
- To have federal form of government with the distribution of powers between center and state.
- To guarantee and secure justice, equality, freedom of thought, expression, belief, faith, worship, vocation, association and action to all people of India.
- To maintain the integrity of the territory of the republic and its sovereign rights on land, sea and air according to justice and the law of civilized nations.
- To attain rightful and honored place in world and make its full and willing contribution to the promotion of the world peace and the welfare of mankind.
These above mentioned objective resolution in some way or another found its way into to the basic structure of constitution.
1. SUPREME COURT’S INTIAL POSITION ON BASIC STRUCTURE OF INDIAN CONSTITUTION:-
In beginning the Supreme Court was of a view that any article present in Indian constitution can be amended by the parliament under the power conferred to it by article 368 by passing a constitution amendment act. This view of Supreme Court was clearly visible through its judgment in following two cases:
A. Shankari Prasad Vs. Union of India, 1951
The first amendment act was passed by government of India to abolish zamindari system by adding 31A, 31B. This amendment was later challenged by Shankari Prasad stating that it violates “Article 13” of Indian constitution as it states that any law inconsistent with the part-3 (fundamental rights) of Indian constitution is void.
On this matter supreme court stated that the parliament under article 368 has the power to amend any part of the Indian constitution.
B. Sajjan Singh Vs. State of Rajasthan, 1965
This case was filed against the 17th amendment of Indian constitution as it further curtailed the right to property which was a fundamental right at that time. Similar to “Shankari Prasad Vs. UOI, 1951” this case contained the question that whether parliament has the power to amend every part of Indian constitution or not.
In this case also the supreme court of India stated that parliament under article 368 has the power to amend any part of Indian constitution.
Although this judgment did not limit the parliament’s power to amend the constitution of India but there were two dissenting opinions were given by Justice Hidayatullah and Justice Mudholkar in which they wondered that there are certain essential or fundamental features in a constitution and whether it should be altered or not, these opinions later became majority opinions in Golaknath Vs. State of Punjab and Kesavnanda BHarthi Vs. State of Kerla respectively.
2. DEVELOPMENT OF DOCTRINE OF BASIC STRUCTURE
Since 1967 supreme court’s views about unlimited power of parliament to amend any part of constitution changed with the development and progress of society. This change in view can be clearly seen by taking a look at judgments of following cases:
A. Golaknath Vs. State of Punjab, 1967
In 1967 when state of Punjab under the land acquisition law tried to acquire the land of Golaknath, he filed a writ petition under Article 32 of Indian constitution. This case again led to the revival of question that is whether parliament has the power to amend fundamental rights under Article 368 of constitution as it is contradictory to the provision under Article 13(2) of constitution which states that “The State shall not make any law which takes away or abridges the right conferred by this Part and any law made in contravention of this clause shall, to the extent of contravention, be void.”
In its judgment Supreme Court held that any amendment done under article 368 is also a law and thus it is contradictory to the provision established under article 13(2) and thus stated that the parliament does not have the power to amend the part-3(fundamental rights) of the constitution.
During those time there was a power struggle going on between parliament and judiciary. In order to prove that parliament has more power than judiciary they passed 24th amendment act which stated that parliament can dilute any fundamental rights and the 25th amendment which further curtailed the right to property of citizens.
B. Kesavnanda Bharati Vs. State of Kerla, 1971
In 1969 under Kerala land reform act Kerala government acquired property of a religious temple whose chief priest was Kesavnanda Bharti, He approached the court in order to seek relief as his fundamental rights were infringed. In 1973 a 13 judge constitution bench, largest constitution bench so far heard on this case.
Supreme Court in its judgment overruled the Golaknath’s case judgment and stated that parliament has the power to amend any part of the constitution including fundamental right unless until it does not tinker with the basic structure of constitution.
This basic structure doctrine was borrowed by super court of India from Germany.
C. Indira Gandhi Vs. Raj Narain, 1975
In this case, during the time of emergency in 1975 39th constitutional amendment act was passed which made the elections of president, prime minister, vice-president and speaker of lok sabha unjustifiable in the court of law. Thus this case was filed to test the constitutional validity of such law.
In this case supreme court for the first time used the doctrine of basic structure and stated that article 329A(4) is unconstitutional. Thus the validity of doctrine of basic structure was upheld.
D. Minerva Mills Vs. Union of India, 1980
This case was filed against the 42nd amendment act which through section 55 restricted the power of judicial review of supreme court and through section 4 it put DPSP 39B and 39C above fundamental rights.
In the judgment Supreme Court included judicial review and balance between DPSP and fundamental right in basic structure of constitution thus declaring both section 4 and section 55 unconstitutional.
E. Kihoto Hollohan Vs. Zachillhu, 1992
This case was filed in the court to check the constitutional validity of the 52nd amendment act which inserted schedule 10 in Indian constitution. It is also known as anti-deflection law.
In its judgment court held that free and fair election is also a part of basic structure of Indian constitution.
F. S.R Bommai vs Union of India, 1994
In this case a writ petition was filed in the supreme court against the misuse of article 356 to proclaim state of emergency in Karnataka in 1989 which was done by president on suggestion of governor of Karnataka stating that the Chief minister of Karnataka, S.R. Bommai lost the majority support.
In its judgment supreme court held that Federal structure, unity and integrity of India, secularism, socialism, social justice and judicial review are included in basic structure of constitution.
The constitution of India is the basic law of land. It provides powers for central and state legislature to be able to make laws for their respective jurisdiction and judiciary has the power to declare any law unconstitutional if it is in conflicts with the provision established by the constitution of India. Constitution can also be amended by an act of parliament with due to process established by the constitution under the Article 368 of the Indian constitution. Initially parliament had unlimited amending powers but with various judicial procurement Doctrine of Basic Structure was established. Some recognized features which considered as basic structure of Indian constitution are:-
- Supremacy of the constitution
- Republican and democratic form of government
- Secular character of the constitution
- Federal character of the constitution
- Separation of power
- Unity and Sovereignty of India
- Individual freedom
1: Constituent Assembly of India Debates(Proceedings)- Volume 2 ( 22nd January 1947)
2: Shankari Prasad Singh Deo v. Union of India, 1951 AIR 458, 1952 SCR 89
3: Sajjan Singh V. State of Rajasthan, 1965 AIR 845, 1965 SCR (1) 933
4: Golaknath V. State of Punjab, 1967 AIR 1643, 1967 SCR (2) 762
5: Kesavnanda Bharti V. State of Kerla, AIR 1973 SC 1461
6: Indira Gandhi V. Raj Narain, 1975 AIR 1590, 1975 SCC (2) 159
7: Minerva Mills V. Union of India, 1980 AIR 1789, 1981 SCR (1) 206
8: Kihoto Hollohan V. Zachillhu, 1992 SCR (1) 686, 1992 SCC Supl. (2) 651
9: S.R. Bommai V. Union of India, 1994 AIR 1918, 1994 SCC (3) 1