Basic Structure And The Kesavananda Bharati Case

In the Shankari Prasad case, the Supreme Court was asked to consider whether fundamental rights can be amended under article 368. The validity of the constitution (1st amendment) act of 1951, which included articles 31-A and 31-B of the constitution, was challenged in this case. The amendment was challenged on the grounds that it restricts the rights granted by Part III and thus is invalid. The Supreme Court, on the other hand, rejected the above argument, holding that Article 368 contains the power to amend, including fundamental rights, and that the same view was taken by the court in the Sajjan Singh case.

 

The validity of the 17th Amendment, which inserted certain acts into the Ninth Schedule, was challenged again in the Golak Nath case. The Supreme Court overturned its earlier decision in the Shankari Prasad and Sajjan Singh case, ruling that the parliament lacked the authority to amend Part III of the Constitution. The 24th Amendment Act was enacted to address the problems caused by the Supreme Court's decision in the Golak Nath case.

 

In the landmark Kesavananda Bharati case in 1973, the Supreme Court recognised the BASIC STRUCTURE concept for the first time. Since then, the Supreme Court has served as the interpreter of the Constitution and the final arbiter of all legislative amendments. The validity of the 25th Amendment, as well as the 24th and 29th Amendments, was challenged in this case. The Golak Nath case, which denied parliament the power to amend citizens' fundamental rights, was overturned by a majority of the court. 

 

The majority held that even before the 24th Amendment, article 368 contained the power to amend as well as the procedure for doing so. The Supreme Court ruled that Article 368 did not allow Parliament to change the Constitution's basic structure or framework, and that parliament could not use its amending powers under Article 368 to "damage," "emasculate," "destroy," "abrogate," "change," or "alter" the constitution's "basic structure" or framework. This decision is not only a watershed moment in constitutional law, but also a watershed moment in constitutional history.

 

The Congress party formed a committee under the chairmanship of Sardar Swaran Singh soon after the declaration of National Emergency to study the question of amending the Constitution in light of previous experiences. The government incorporated several changes to the Constitution, including the Preamble, based on its recommendations, through the Forty-second Amendment (passed in 1976 and came into effect on January 3, 1977). The amendment includes, among other things:

 

a) Prioritized the Directive Principles of State Policy over the Fundamental Rights enshrined in Articles 14 (right to equality before the law and equal protection under the law), 19 (freedom of speech and expression, right to peaceful assembly, right to form associations and unions, right to move about and reside freely in any part of the country, and right to pursue any trade or profession), and 21 (freedom of movement and residence in any part of the country) (right to life and personal liberty). Article 31C was changed to make it illegal to challenge laws enacted under any of the State Policy Directive Principles.

 

b) Declared that any constitutional amendments made in the past or likely to be made in the future could not be challenged in any court on any grounds;

c) All amendments to fundamental rights are no longer subject to judicial review, and

 

d) Removed all Article 368 limitations on Parliament's power to amend the Constitution.

 

 

The owners of Minerva Mills (Bangalore), a sick industrial firm nationalised by the government in 1974, challenged the Forty-second Amendment in the Supreme Court less than two years after the restoration of Parliament's amending powers to near absolute terms.

 

Mr. N.A. Palkhivala, a well-known constitutional lawyer and counsel for the petitioners, decided not to challenge the government's action solely on the basis of a violation of the fundamental right to property. Instead, he framed the issue in terms of Parliament's constitutional amendment power.

 

Mr. Palkhivala argued that Section 55 of the amendment had given Parliament unrestricted amending power. The attempt to shield constitutional amendments from judicial review violated the Supreme Court's recognition of the doctrine of basic structure in the Kesavananda Bharati and Indira Gandhi Election Cases. He also claimed that the amended Article 31C was unconstitutional because it violated the Constitution's Preamble and citizens' fundamental rights. The power of judicial review was also taken away.

 

Both arguments were upheld by Chief Justice Y.V. Chandrachud, who delivered the majority (4:1) decision. The power of judicial review of constitutional amendments was upheld by the majority. They claimed that Article 368, clauses (4) and (5), gave Parliament unrestricted power to amend the Constitution. They claimed that this meant that courts would be unable to challenge the amendment even if it harmed or destroyed the Constitution's fundamental structure.

 

The judges agreed with Chandrachud, C.J., that the Constitution's limited amending power is a fundamental feature.

The dissenting judge, Bhagwati, J., agreed with this viewpoint, stating that no authority, no matter how powerful, could claim to be the sole judge of its power and actions under the Constitution.

 

The majority ruled that the amendment to Article 31C was unconstitutional because it shattered the harmony and balance that is an essential or basic feature of the Constitution between fundamental rights and directive principles. Parliament has not repealed or deleted the amendment to Article 31C, so it remains a dead letter. Nonetheless, cases under it are decided in the same way they were before the 42nd amendment.

 

In a separate case involving agricultural property, the Supreme Court ruled that all constitutional amendments made after the Kesavananda Bharati decision were subject to judicial review. All laws added to the Ninth Schedule after the Kesavananda Bharati decision were also subject to judicial review. They can be challenged on the grounds that they are beyond Parliament's constitutional authority or that they have harmed the Constitution's fundamental structure. In essence, the Supreme Court struck a balance between its power to interpret the Constitution and the power of Parliament to amend it.

 

 The following have emerged as 'basic features' of the Constitution or elements/ components/ ingredients of the 'basic structure' of the constitution as a result of various judgments:

 

• Supremacy of the Constitution

 

• Sovereign, democratic and republican nature of the Indian polity

 

• Secular character of the Constitution

 

• Separation of powers between the legislature, the executive and the judiciary

 

• Federal character of the Constitution

 

• Unity and integrity of the nation

 

• Welfare state (socio-economic justice)

 

• Judicial review

 

• Freedom and dignity of the individual

 

• Parliamentary system

 

• Rule of law

 

• Harmony and balance between Fundamental Rights and Directive Principles

 

• Principle of equality

 

• Free and fair elections

 

• Independence of Judiciary

 

• Limited power of Parliament to amend the Constitution

 

• Effective access to justice

 

• Principles (or essence) underlying fundamental rights.

 

• Powers of the Supreme Court under Articles 32, 136, 141 and 142

 

• Powers of the High Courts under Articles 226 and 227