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B R Ambedkar is snapped in a jovial mood with S K Bole during the reception at Mumbai’s Victoria Terminus Railway Station in 1951. Amid peels of laughter, the former law minister invited his old associate to sit on his lap when it was found that there were not enough chairs

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The Constitution of India

The basic structure doctrine

When Constitution got a judicial shield

40 years ago, the Supreme Court held that Parliament’s power to amend the Constitution did not extend to tampering with its basic structure or framework

Manoj Mitta | TNN

The Times of India 22/04/2013

New Delhi: It was the mother of all judgments, delivered in 1973. The largest ever bench, consisting of 13 judges of the Supreme Court, came up with the “basic structure” doctrine in the Kesavananda Bharati case. The verdict was as political as it was legal, prompting the Indira Gandhi government to mount an audacious attack on the independence of the judiciary.

On April 24, 1973, the bench headed by the outgoing Chief Justice of India, S M Sikri, held with a 7-6 majority that Parliament’s power to amend the Constitution did not extend to tampering with its basic structure or framework. The very next day, the government appointed A N Ray as CJI, superseding three of the seven judges who had laid down the basic structure as the line that the Parliament could not cross while amending the Constitution.

For better or for worse, the Kesavananda Bharati judgment thwarted Indira Gandhi’s much-touted socialist policies of serving the collective interest at the expense of individual rights.

Long before the initiation of economic reforms in 1991, Kesavananda Bharati was the most significant triumph for the right, thanks to the exertions of legendary advocate Nani Palkhivala. In fact, it was seen as an instance when the right was on the right side of history.

The basic structure doctrine came on top of three judicial setbacks she had already suffered. While dealing with laws eroding the right to property, which was then a fundamental right, the Golaknath judgment of 1967 ruled that Parliament could not amend any of the fundamental rights guaranteed by the Constitution.

Two years later, the apex court struck down the first-ever nationalization of banks, because of inadequate compensation to the original owners. In 1970, it also invalidated the government’s decision to abolish privy purses, which had been conferred on erstwhile princes at the time of the integration of their states into the country.

If the basic structure doctrine was a path-breaking innovation, the manner in which it was laid down was no less unprecedented. For, 12 of the 13 judges on the bench were equally divided on whether there was any implied limitation in Article 368 on Parliament’s power to amend the Constitution. CJI Sikri, who was on the side of the judges who believed in the implied limitation, tilted the balance by using the ambivalent opinion of the 13th judge, H R Khanna.

Sikri adopted the stratagem of writing a note titled “View by the Majority”, which was endorsed by most of his fellow judges. Khanna came on board as the crucial sentence in that summary about the basic structure was lifted from his opinion.

Thus was born the basic structure doctrine, through an addendum of doubtful legal sanctity.

Though it did not attempt to provide an exhaustive list of the basic features of the Constitution, the Kesavananda Bharati verdict cited illustrative examples: supremacy of the Constitution, republican and democratic form of government, secular character of the Constitution, federal character of the Constitution, mandate to build a welfare state, free and fair elections and unity and integrity of the nation. The premise of the verdict was that an amendment to any of these basic features would amount to abrogation of the Constitution, as it would have changed beyond recognition.

In the event, many of the constitutional amendments made during the Emergency did violate the basic structure and were therefore removed from the Constitution by the Morarji Desai government.

During that infamous phase, the Supreme Court under justice Ray even made an abortive attempt to review the Kesavananda Bharati verdict.

Though the judgment played a historic role in preserving democracy in India, it has its share of critics among legal scholars. They allege that by placing the Constitution above Parliament, the basic structure doctrine was actually anti-democratic.

But there is no denying that it has stood the test of time.

How is the Constitution amended?

From the archives of The Times of India 2010

Is amending the Constitution common?

Globally, its not uncommon to amend or even rewrite constitutions. Our own Constitution specifically provides for a procedure to amend it. The preface says that the Constitution is a living document, an instrument which makes the government system work and that its flexibility lies in its amendments.

Can the Constitution be amended by a simple majority?

Yes. Depending on the gravity of the article and the outcome of the change, our Constitution provides for three methods of amendment. The first is by a simple majority in both Houses of Parliament, the second is by a special majority, and the third by a special majority in the Parliament along with a ratification by at least half of the state legislatures. Many articles in the Constitution mention that they can be amended by a law of Parliament, which means these articles can be amended by a simple majority just like an ordinary bill. For instance, Article 2 states that Parliament may by law admit into the Union, or establish, new states as it thinks fit. Sikkim was incorporated into the Union of India by the 36th Amendment Act, 1975. In most cases a motion, resolution or a bill requires support of a simple majority of the members who are present and participating in voting. However, for some other articles the amendment has to be done by a special majority as mentioned in Article 368.

What is a special majority?

Article 368 states that a bill has to be passed in both the Houses by a majority of the total membership of each House, and by a majority of not less than two-thirds of the members present and voting. In such cases, a Constitution amendment bill has to have a minimum support of at least 273 MPs in the LS, irrespective of the number of MPs present at the time of voting, apart from at least two-thirds of those present and voting. If the entire LS was voting, in such a case, the bill would need the support of a minimum of 364 MPs.

The bill must also be passed by both Houses in the same form, because any amendment to the bill itself also requires a special majority. There is no provision for a joint session in these cases, and hence, a party with a majority only in LS can not get the bill passed on its own. Like other bills, such a bill is then sent for the President’s assent, but unlike other bills, the President has no powers to send it back for reconsideration.

Which bills are sent to state legislatures?

When an amendment aims to modify an article related to distribution of powers between the Centre and the states, or to representation of states in House, or to changing the provision of Article 368, it is necessary for the amendment to be ratified by legislatures of at least half of all the states of India — 14 in present scenario. However, to prevent the amendment process becoming impractical, only a simple majority is required in state legislatures.

What are the important amendments so far?

There have been 94 amendments so far. They can be broadly classified into three categories. First is technical and administrative category like the increase in the retirement age of HC judges and so on. The second category constitutes amendments to clarify the interpretation of the Constitution itself. There might be a difference in interpretation of the Constitution by government and judiciary, and hence, it is amended to make the interpretation clear. Third, a consensus among political parties about a particular issue may also result in amendment of the Constitution.

@@ Line 17: / Line 17: @@
 '''The Constitution of India'''
-=The Constitution of India: an overview=
-[http://epaper.timesofindia.com/Default/Client.asp?skin=pastissues2&enter=LowLevel From the archives of '' The Times of India '' 2007, 2009]
-''' India’s Living Constitution '''
-''' Ronojoy Sen '''
-==Amendments were foreseen==
-It has been amended 94 times since it was adopted in 1949, often in an attempt to curb the judiciary. And yet, as the aftermath of the Emergency showed, reckless tampering with the Constitution can backfire on governments
-A day before the Indian Constitution was formally adopted on November 26, 1949 after nearly three years of intense deliberations, Bhim Rao Ambedkar delivered one of his finest speeches. Summing up the work of the Constituent Assembly, he said, “However good a constitution may be, it is sure to turn out to be bad because those who are called to work it happen to be a bad lot. However bad a constitution may be, it may turn out to be good if those who are called to work it happen to be a good lot.”
-This was the onerous burden that Amebedkar and the framers of the Indian Constitution put on future governments and leaders. There was, however, no doubt in Ambedkar’s mind that along with time the Constitution would be amended. In his concluding speech, Ambedkar pointed out that compared to the American and Australian constitutions, the process for amendment of the Indian Constitution was much simpler. Indeed, the provisions for amendment is what makes a constitution a living document, and successive governments have not been shy of using it. So far the Indian Constitution has been amended 94 times; and there are plenty more on the way. This is in contrast to the US Constitution, ratified over two centuries ago, which has been amended a mere 27 times; the first 10 – or what is known as the Bill of Rights – happening within a few years of the Constitution coming into effect.
-==The important amendments==
-Of the several amendments to the Indian Constitution, all are of course not of equal importance. But like the US Constitution, the ''' First Amendment ''' to the Indian Constitution must rank up there as one of the most critical. It would also set in motion a series of face-offs with the judiciary over who was the final arbiter of the Constitution – Parliament or the courts. It is estimated that of the first 45 amendments to the Constitution, about half were aimed at curbing the judiciary. Indeed, the First Amendment was primarily triggered by adverse court judgments. The Madras high court and subsequently the Supreme Court had struck down a legislation which put in place a quota system in government-run medical and engineering colleges for lower castes. At around the same time the major plank of the socialist policy of theCongress government in the 1950s — land reform — was being short-circuited by high courts across the country. The last straw was when the
-Supreme Court upheld the right to circulate a Communist journal in Madras against the state government’s wishes.
-Parliament stepped in by amending the Constitution to ensure that equality before law and provisions for ensuring caste equality did not bar legislation for providing reservation for backward classes. It also amended Article 19 – which guaranteed the fundamental right to freedom of speech among other things – by introducing “reasonable restrictions” on speech in the interests of the state.
-Finally, The First Amendment inserted Article 31A in the Constitution which stipulated that nothing in the Fundamental Rights could be used to strike down laws for the appropriation of property. During the parliamentary debate on the First Amendment, Jawaharlal Nehru made the oft-quoted statement on the regressive nature of the judiciary: “Somehow we have found this magnificent Constitution we have framed, was later kidnapped and purloined by lawyers.” He added for good measure that the amendment was meant “to take away, and I say so deliberately, to take away the question of zamindari and land reform from the purview of the courts.”
-== Article 31B and the Ninth Schedule==
-One of the more far-reaching components of the First Amendment was Article 31B, which created the Ninth Schedule into which legislation could be put and made immune from judicial review. Over time, over 280 Acts and Regulations have been put in the Ninth Schedule — a majority related to land reform but others on diverse areas ranging from mining to foreign exchange to monopolies — leading a commentator to label it a constitutional “dustbin”.
-== Forty-second Amendment==
-Since that first tweaking of the Constitution, amendments have flowed thick and fast. In subsequent years there have been several crucial amendments impacting creation of new states, electoral laws and federalism. But perhaps the one that has scarred, and scared, the nation the most was the infamous Forty-second Amendment rammed through during the Emergency.
-The amendment building on two earlier ones – the Twenty-fourth and the Twenty-fifth – empowered Parliament to make laws infringing on the Fundamental Rights and put curbs on the courts over the custody of the Constitution.
-The Forty-second Amendment had inserted two clauses in Article 368 specifying that amendments made under this article could not be challenged in court and that there would be no limitation on the power of Parliament to amend the Constitution. It also gave the Directive Principles of the Constitution primacy over Fundamental Rights. In keeping with this sentiment, the words ‘secular’ and ‘socialist’ were inserted in the Preamble of the Constitution.
-When the Forty-second Amendment was introduced in Parliament, law minister H R Gokhale tried to sweeten it by saying, “If at all the powers [of Parliament] have been to a certain extent widened, they are not taken away in all matters in which really judicial action is justified.”
-The future course of events would, however, show the resilience of Indian democracy. Once Indira Gandhi was voted out of power, the Janata government undid much of the harm done during the Emerging by bringing in the Forty-third and Forty-fourth amendments.
-== Ninety-third: 2006==
-The story of amendments and the turf battle between Parliament and the courts for custody of the Constitution is a continuing one. One of the more recent amendments – the Ninety-third in 2006 – which enforced reservation in unaided educational institutions came in the backdrop of a Supreme Court ruling putting a check on state regulation of admission procedures of private institutions.
-The tension over who holds the key to the Constitution is going to remain so long as the power to amend is in the hands of Parliament and the courts have the authority of judicial review. This is true for older democracies such as the US too. Hence, political scientist Rajeev Bhargava points out, “We cannot treat the Constitution with sanctimonious reverence, too sacred to be touched, nor can we allow frivolous attempts to revise the Constitution every time a political deadlock occurs.”
-The Emergency showed the danger of the government of the day subverting the Constitution and its principles. But its aftermath also showed that reckless tampering would not go unchallenged. That is what makes the Constitution a touchstone for Indian democracy, however mixed the quality of our politics and leadership might have been since 1950.
-WEIGHTY ISSUE OF A DIFFERENT KIND: B R Ambedkar is snapped in a jovial mood with S K Bole during the reception at Mumbai’s Victoria Terminus Railway Station in 1951. Amid peels of laughter, the former law minister invited his old associate to sit on his lap when it was found that there were not enough chairs
 =The basic structure doctrine=

The Constitution of India (issues)

Revision as of 16:05, 11 May 2015

Contents

The basic structure doctrine

How is the Constitution amended?

Is amending the Constitution common?

Can the Constitution be amended by a simple majority?

What is a special majority?

Which bills are sent to state legislatures?

What are the important amendments so far?

See also

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