(Sample Material) UPSC IAS Mains GS Online Coaching : Paper 2 - "Significant Provisions and Basic Structure"

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Subject: General Studies (Paper 2 - Governance, Constitution, Polity, Social Justice and International relations)

Topic: Significant Provisions and Basic Structure

Significant Provisions and Basic Structure

According to the Constitution, Parliament and the state legislatures in India have the power to make laws within their respective jurisdictions. This power is not absolute in nature. The Constitution vests in the judiciary, the power to adjudicate upon the constitutional validity of all laws. If a law made by Parliament or the state legislatures violates any provision of the Constitution, the Supreme Court has the power to declare such a law invalid or ultra vires. This check notwithstanding, the founding fathers wanted the Constitution to be an adaptable document rather than a rigid framework for governance. Hence Parliament was invested with the power to amend the Constitution. Article 368 of the Constitution gives the impression that Parliament's amending powers are absolute and encompass all parts of the document. But the Supreme Court has acted as a brake to the legislative enthusiasm of Parliament ever since independence. With the intention of preserving the original ideals envisioned by the constitution-makers, the apex court pronounced that Parliament could not distort, damage or alter the basic features of the Constitution under the pretext of amending it. The phrase 'basic structure' itself cannot be found in the Constitution. The Supreme Court recognised this concept for the first time in the historic Kesavananda Bharati case in 1973.1 Ever since the Supreme Court has been the interpreter of the Constitution and the arbiter of all amendments made by Parliament.

The phrase 'basic structure' was introduced for the first time by M.K. Nambiar and other counsels while arguing for the petitioners in the Golaknath case, but it was only in 1973 that the concept surfaced in the text of the apex court's verdict. During the period 1950-1972, the question of the amendability of fundamental rights came before the Supreme Court in three different cases, namely, Shankari Prasad Vs. Union of India (AIR 1951 SC 458); Sajjan Singh Vs. State of Rajasthan (AIR 1965 SC 845) and Golak Nath Vs. State of Punjab (AIR 1967 SC 1643). Until the Supreme Court decision in the Golak Nath case, the law was as follows:

• Constitution Amendment Acts are not ordinary laws and are passed by Parliament in exercise of its constituent powers as contra-distinct from ordinary legislative powers. There is no separate constituent body for the purposes of amendment of the Constitution, constituent power also being vested in ‘Parliament’. (Later—as late as in 1981— the Supreme Court confirmed that the amending power under article 368 is a constituent power independent of the scheme of the distribution of legislative powers under the Seventh Schedule (Sasanka v. Union of India, AIR, 1981 SC522)).
• There is no limitation placed upon the amending power, that is to say, there is no provision of the Constitution which cannot be amended. The terms of article 368 are perfectly general and empower Parliament to amend the Constitution without any exception whatever.
• Fundamental Rights guaranteed under the Constitution (Part III) are subject to Parliament’s power to amend the Constitution.

In the Golak Nath case, the Supreme Court by a 6:5 majority reversed its earlier decisions and held that the fundamental rights enshrined in the Constitution were transcendental and immutable, that article 368 of the Constitution laid down only the procedure for amendment and did not give to Parliament any substantive power to amend the Constitution or any constituent power distinct or separate from its ordinary legislative power, that a Constitution Amendment Act was also law within the meaning of article 13 and as such Parliament could not take away or abridge the fundamental rights even through a Constitution Amendment Act passed under article 368.

The court further said: Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of the Constitution and, therefore, the limitations on that power cannot be destroyed. In other words, Parliament cannot, under article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features.

The court, however, did not show where in the Constitution, the power of amendment had been said to be a qualified or limited power except for the procedural requirements laid down in article 368. Be it as it may, the present state of the doctrine of ‘basic features’ is that so long as the decision in the Kesavananda case is not overturned by another full Bench of the Supreme Court, any amendment to the Constitution is liable to be interfered with by the court on the ground of affecting one or other of the basic features of the Constitution.

In the S.R. Bommai case regarding the dismissal of BJP Governments in Madhya Pradesh, Himachal Pradesh and Rajasthan, Justice Jeevan Reddy and Justice Ramaswamy reiterated that federalism inter alia was a basic feature of the Constitution. Justice Ramaswamy held that a democratic form of Government, federal structure, unity and integrity of the nation, secularism, socialism, social justice and judicial review were among the basic features of the Constitution.

In some cases, there is a difference of opinion among the Judges as regards a particular element forming an element of the basic features.

For example, Chief Justice Ray did not find it possible to hold the concept of free and fair elections as a basic feature whereas Justice Khanna, in the same case, found this principle to be an element of the fundamental features of the Constitution (Indira Nehru Gandhi case, paras 55 and 213).

Justice Chandrachud did not subscribe to the view that the Preamble to the Constitution holds the key to its basic structure (para 665).

Justice Beg, on the other hand, found that the Court can find the test (of constitutional validity) primarily in the Preamble to the Constitution. The Preamble, he believed, furnished the yardstick to be applied even to constitutional amendments (para 623).

The majority had differing opinions on what the "basic structure" of the Constitution comprised.

Chief Justice Sarv Mittra Sikri, writing for the majority, indicated that the basic structure consists of the following:

• The supremacy of the constitution.
• A republican and democratic form of government.
• The secular character of the Constitution.
• Maintenance of the separation of powers.
• The federal character of the Constitution.

Justices Shelat and Grover in their opinion added three features to the Chief Justice's list:

• The mandate to build a welfare state contained in the Directive Principles of State Policy.
• Maintenance of the unity and integrity of India.
• The sovereignty of the country.

Justices Hegde and Mukherjea, in their opinion, provided a separate and shorter list:

• The sovereignty of India.
• The democratic character of the polity.
• The unity of the country.
• Essential features of individual freedoms.
• The mandate to build a welfare state.

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