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1.basic Structure of The Constitution of India

The document discusses the basic structure of the Constitution of India, including key concepts like judicial review of legislation, the power to amend the constitution, and the landmark Keshavananda Bharati case. In Keshavananda Bharati, the Supreme Court established that while Parliament has the power to amend the constitution, it cannot amend its basic structure. This basic structure includes principles like democracy, separation of powers, and judicial independence. The verdict established the power of judicial review over constitutional amendments but was criticized for lacking consensus and clarity over what constitutes the basic structure.

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Meenaaa Balakrishnan Mudhalayar
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143 views

1.basic Structure of The Constitution of India

The document discusses the basic structure of the Constitution of India, including key concepts like judicial review of legislation, the power to amend the constitution, and the landmark Keshavananda Bharati case. In Keshavananda Bharati, the Supreme Court established that while Parliament has the power to amend the constitution, it cannot amend its basic structure. This basic structure includes principles like democracy, separation of powers, and judicial independence. The verdict established the power of judicial review over constitutional amendments but was criticized for lacking consensus and clarity over what constitutes the basic structure.

Uploaded by

Meenaaa Balakrishnan Mudhalayar
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PDF, TXT or read online on Scribd
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BASIC STRUCTURE

OF THE
CONSTITUTION OF INDIA

Justice M. S. Sonak
High Court of Bombay
Basic Structure of the
presentation
▪ What is the constitution?
Judicial review of legislation
▪

▪ Power to amend constitution


▪ Prelude to Keshavananda
▪ Keshavananda Bharati case
▪ The aftermath
▪ Conclusion
What is the constitution

▪ A living organ, not a fossil


▪ Source of legislation, not a product
▪ A fundamental norm
▪ Touchstone with which to test other laws
▪ Documents aspirations, social values, commitments
▪ Political philosophy, path to future
▪ Stable yet flexible
Fundamental rights
▪ Injunctions against the state - Article 12

▪ Part III (Articles 12 - 35)


Directive Principles

▪ Article 37 – Directive Principles


➢ Not enforceable ?

▪ Political philosophy
▪ Fundamental rights – means
▪ Directive principles – ends
Judicial review of legislation
▪ Article 13 of the constitution

▪ Pre-constitution laws

▪ Post constitution laws

▪ What is ‘law’ ?

▪ Does law include ‘constitutional amendment’?


Article 13

Ins. by the Constitution


(Twenty-fourth Amendment) Act, 1971,
sec.2 (w.e.f. 5-11-1971
Article 368
Power of Parliament to amend the Constitution and procedure therefor
Notwithstanding anything in this Constitution, Parliament may in exercise of its
constituent power amend by way of addition, variation or repeal any provision of
this Constitution in accordance with the procedure laid down in this article…..
----------------
Nothing in article 13 shall apply to any amendment made under this article
No amendment of this Constitution (including the provisions of Part III) made
or purporting to have been made under this article [whether before or after
the commencement of section 55 of the Constitution (Forty second
Amendment) Act, 1976] shall be called in question in any court on any
ground.
For the removal of doubts, it is hereby declared that there shall be no
limitation whatever on the constituent power of Parliament to amend by way
of addition, variation or repeal the provisions of this Constitution under this
article
Power to amend the
constitution
Article 368

▪ Can parliament amend or do away with the fundamental rights?

▪ Scope of judicial review of constitutional amendments

▪ Relative positions of legislature and judiciary in constitutional scheme


Prelude to
Keshavananda
▪ Right to property

➢ Kameshwar Singh v/s State of Bihar


( AIR 1951 Patna 91)

➢ First amendment in 1951


➢ Article 31 B – Ninth schedule
Legislature v/s Judiciary
Round 1
▪ Shankari Prasad vs. Union of India
(1952) 1SCR 89
➢ Legislative Power and Constituent Power - Different

▪ Sajjan Singh vs State of Rajasthan


AIR 1965 SC 845
➢ Hidayutallah and Mudholkar – Dissent

➢ Seeds of basic structure?


Struggle for supremacy
Round 2
▪ Golaknath vs State of Punjab
AIR 1967 SC 1643
Majority of 6:5

No distinction between
Legislative and Constituent power
Struggle for supremacy
continues Round 3
Parliament hits back

▪24th amendment Act,


1971
▪ Article 13 (4)
▪ Article 368 (2 ) and (3)
Keshavananda
Bharati
Challenges in Keshavananda Bharati

▪ Challenge to 24th, 25th, 29th amendments


▪ 24th amendment
➢ Articles13 (4), 368 (2) and (3)

▪ 25th amendment
➢ Articles 39 (b), 39 (c )
➢ Precedence to directive Principles

➢ Immunity from judicial review

▪ 29th Amendment
➢ Several land reform laws included in ninth schedule
Petitioners contentions
▪ No distinction between Constituent power and Legislative Power
➢ Golaknath correctly decided

▪ ‘We the people’ have given only limited rights to the Parliament

▪ Donee cannot convert them to unlimited rights

▪ Article 368 - not a charter to sign death wish

▪ Parliament not official liquidator of the Constitution

▪ Parliament only a creature of the Constitution not its master


The
▪ Verdict
Arguments – Five months

▪ Judgment - 11 separate opinions, 800 pages, 420,000 words

▪ Six judges – Parliament has unlimited amending power

▪ Six Judges – Parliament has only limited amending power

▪ Justice H R Khanna –
Can amend Fundamental rights but not the basic structure

▪ Judiciary to decide what constitutes the basic structure

▪ Strategic retreat by Supreme Court?

▪ Contributes to Survival of Democracy in India


What is the basic structure?
▪ Illustrative and not exhaustive list
➢ Supremacy of the Constitution
➢ Democracy
➢ Separation of power between the three arms
➢ Federal Character
➢ Dignity of individual
➢ Sovereignty of India
➢ Independence of Judiciary
➢ Free and fair elections
Criticism
▪ Outstanding study in lack of consensus

▪ Too long, too confusing

▪Determination of basic structure


whims and variable judicial perceptions

▪ No reference to basic structure in text of the Constitution

▪ Judicial overreach?

▪ Counter majoritarian?
Contribution of Bombay

Nani Palkhiwala and H M Seervai


The aftermath
▪ Verdict – 24th April 1973

▪ 25th April 1973 – Supersession of Shelat, Grover, Hegade

▪ 12th June 1975 – Allahabad High Court unseats Indira Gandhi

▪ 24th June 1975 – Justice Krishna Iyer – Conditional stay

▪ 25th June 1975 – Emergency imposed

▪ 10th Aug 1975 – 39th Amendment Act, 1975


➢ Election of Prime Ministers and others immune from judicial review
➢ Retrospective amendments to Election laws

▪ 10th Nov 1975 Attempt to review Keshavananda Bharati


➢ Palkhiwala’s finest hour

▪ 3rd Jan 1977 – 42nd Amendment Act, 1976


▪ Article 368 (4) and (5) – Unlimited amending powers
Balance Restored
▪ Raj Narain vs Indira Gandhi
➢ 39th amendment struck down
➢ Basic structure doctrine applied

▪ Minerva Mills vs Union of India


➢ 42nd Amendment struck down
➢ Limited amending power is itself basic structure
➢ Fundamental rights and directive principles
constitute the Arc of the Constitution

▪ I R Coelho vs State of Tamil Nadu


➢ Articles 14, 19, 21 – Golden triangle – Basic structure
➢ Ninth schedule is not ‘black hole’ of the Constitution of India
Conclusio
n

Constitution is Supreme

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