Daily Editorial Analysis
20 September 2022
Chanakya Daily Editorial Analysis
SECURING BASIC STRUCTURE
O GS Paper 2: Features of Indian Constitution, Amendments in Indian Constitution
O Mains exam: Basic structure of indian constitution and limits to amendments power of Parliament
Bench of five judges of the Supreme Court is checking whether the Constitution 103rd Amendment Act, 2019 violates the “basic structure of the Constitution”.
Power of Courts in India
O Courts are empowered under our Constitution to invalidate not only executive orders, but also legislative enactments that violate any part of the Fundamental Rights guaranteed in Part III of the Constitution.
P Under Article 13 of the Indian Constitution, the compulsion of judicial review was described in fundamental rights in Part III. It is stated that the State or the Union shall not make such rules that take away or abridge the essential rights of the people. If any law made by the Parliament or the State Legislature contravenes the provisions of this Article, shall be void.
O But the Constitution is silent on this power in case of constitutional amendments, passed with the requisite special majority and following the procedure prescribed in Article 368.
Journey of judicial review power in case of Constitutional amendments
Up to the year 1989, with one single political party almost consistently returning to power at every election, the judges had plumbed the depths of silence in the world’s longest Constitution searching for some limitations on the amending power.
- Sankari Prasad vs. Union of India(1951) : In the Shankari Prasad Singh Deo v. Union of India, Supreme Court held that the power to amend the Constitution including the Fundamental Rights is conferred under Article 368, and the word ‘Law’ as mentioned under Article 13 does not include an amendment of the Constitution.
- Sajjan Singh vs. State of Rajasthan(1964): Once again it was said that the Article 13 is just limited to the ordinary laws and not with the constitutional amendment whereas the scope of article 368 is limited to constitutional law.
- Kesavananda Bharati vs state of kerala(1973): A larger Bench of 13 judges sat for the longest time (several months) listening to arguments on what was described as “an issue of grave moment, not only to the future of this country but to the future of democracy itself”.
In a fractured verdict, by a 7:6 majority, it held that though under Article 368 Parliament’s power to amend the Constitution was plenary, extending to each and every article of the Constitution including the articles enumerated in the Fundamental Rights Chapter, no amendment was permissible if it altered“the basic structure or framework of the Constitution”.
By reading implied limitations in the amending power, the Supreme Court established a new precedent (overriding two prior judicial precedents)
Criticism of Kesavananda Bharati vs state of kerala’s case judgement: The majority view was roundly criticised. It was said that by propounding the basic structure theory, the guardians of the Constitution had in one bound become guardians over the Constitution, constitutional adjudicators had assumed the role of constitutional governors.
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Chanakya Daily Editorial Analysis
- Indira Gandhi vs Raj Narain (1975): A Constitution Bench of the highest court held that free and fair elections are a fundamental part of the Constitution, so fundamental as to be beyond the reach of the amending power, all the five judges on the Bench having been a part of the Bench of 13 judges in Kesavananda Bharati. It was this decision (in Indira Gandhi vs. Raj Narain, 1975) that helped to cement the “basic structure theory”.
The decision constitutes a high watermark in the assertion of the Court’s judicial power in the teeth of a de- termined majoritarian regime.
- I.R. Coelho vs State of Tamil Nadu(2007): A different Bench of nine judges in I.R. Coelho vs. State of Tamil Nadu, in a unanimous decision, authoritatively upheld the narrow majority view (of 7:6) in Kesavananda Bharati, and gave it permanent constitutional validity.
The basic structure theory was the response of an anxious and activist court to the experience of the working of India’s Constitution during its first 25 years. The Basic structure doctrine was a judicial innovation to protect and preserve the very soul of the Constitution.
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