Yamini Atreya
Research Scholar, University of Rajasthan
Mohit Parihar
Advocate, Rajasthan High Court
Background:
The Indian Courts have undergone four phases of constitutional interpretation to interpret the Constitution. In The first phase the Supreme Court adopted a textualist approach, focusing on the plain meaning of the words used in the Constitution. And this can be seen from the judgment given by the Supreme Court in A.K. Gopalan v. State of Madras[1] where Personal liberty was construed as merely the physical existence and the Supreme Court, took a narrow view of Article 21 which later was reversed in Maneka Gandhi’s case.
In phase two, the Supreme Court began explored the other methods of interpretation. Appeals to the text of the Constitution were gradually overtaken by appeals to the Constitution’s overall structure and the classic example is the leading case of Kesavananda Bharati v. State of Kerala (1973)[2] where Supreme Court evolved the Doctrine of Basic Structure. And this was the phase when judiciary came up with the Doctrines for the interpretation to comply with the structure and purpose of the legislation.
In the third phase, The Court began deciding cases based on a certain conception of its own role. We are currently in the fourth phase, where the Court has acknowledged the purpose for which the Constitution has been enacted. The Court is now beginning to interpret the Constitution in accordance with its revolutionary and transformative potential. And this transition by the court in interpreting the constitution gave birth to the concept of doctrines in the Indian constitution.
Meaning of Doctrine:
The word Doctrine is derived from the Latin term ‘doctrina’, meaning “teaching” or “instruction”. It is a codification of beliefs or a body of teachings or instructions, taught principles or positions, as the essence of teachings in a given branch of knowledge or in a belief system.
A doctrine is a belief, principle or position – usually upheld by authorities like courts. As far as Indian Judiciary is concerned, there are many doctrines. Doctrines are the rules, principle, theory, or tenet of the law.
Often the word doctrine specifically suggests a body of religious principles as promulgated by a church. The doctrine may also refer to a principle of law, in the common-law traditions, established through a history of past decisions, such as the doctrine of self-defence, or the principle of fair use, or the more narrowly applicable first-sale doctrine. Some organizations simply define a doctrine as “that which is taught”, or the basis for institutional teaching to its personnel of internal ways of operating.
Doctrine of Basic Structure:
Two Articles of Indian Constitution becomes very important in the evolution of this Doctrine i.e., Article 13, which serves as Protector of Fundamental Rights and Article 368, which holds the power to Amend the Constitution.
When we clash Article 13 & Article 368, some questions come before us:
- Can the Constitution be amended by the Parliament?
- Can the Preamble be amended by the Parliament?
- Can the Fundamental Rights be amended by the Parliament?
- Is the Amendment Power under Article 368 being absolute?
- Is there any Restriction on it?
Now the whole discussion was over the tussle of Power and the question is who is supreme, the Supreme Court or the Parliament? And for that we need to see the series of events:
I. The question of whether FRs can be amended by the parliament under Article 368 came for the consideration of the supreme court within a year of the constitution coming into force. In the Shankari Prasad Case, 1951[3], the constitutional validity of the First Amendment Act, 1952 (which is known as the abolition of Zamindari System) which curtailed the right to property, was challenged. The question before the court was whether Parliament can amend Fundamental Rights?
The Supreme Court held that the power of the parliament to amend the constitution under Article 368 also includes the power to amend FR’s. The word ‘law’ in Article 13 includes only ordinary laws and not the constitutional amendment acts. Therefore, the parliament can abridge or take away any of the FRs by enacting a Constitutional Amendment act and such a law will not be void under Article 13.
II. Sajjan Singh v. State of Rajasthan, 1965 [1965 AIR 845]:
The 17th Constitutional Amendment Act was challenged because it was restricting the powers of the High Court. The Court held that the word “amendment of this constitution under Article 368”, meant Amendment of any part of the Constitution including Fundamental Rights.
III. But in the Golak Nath Case, 1967 [Golaknath v. State Of Punjab, 1967 AIR 1643, 1967 SCR (2) 762]:
The Supreme Court reversed its earlier stand. This time the question was whether the power to amend the FR’s is limited or unlimited? The Supreme Court held that the power to amend the constitution including FR’s is not unlimited power, rather it is limited and subject to Judicial Review and that FRs are given an immutable position and hence the parliament cannot abridge or take away any of these rights. A constitutional Amendment Act is also a law within the meaning of Article 13 and hence, would be void for violating any of the FRs.
So, until now we had a settled position that Article 368 had an unlimited power i.e. even Article 13 could not stop Article 368.
But this case reversed the position and said Article 368 is subject to the limitations of Judicial Review under Article 13. The Supreme Court further held that the Parliament has no right to abridge and amend FR’s and that under Article 13(2) Law includes Amendments and if any amendment violates FR’s, it would be void.
Up till now there has been a tussle of power for who is supreme between Parliament & Judiciary. Shankari Prasad and Sajjan Singh held that Parliament is Supreme while Golak Nath held that Judiciary is Supreme.
IV. Parliament could not digest as what happened in Golak Nath Case, so they came up with the 24th Amendment Act:
They did few changes in Article 13 & 368:
Firstly, Clause (4) was added to Article 13 which stated that Nothing in Article 13 would apply to Article 368 which means anything can be done in Article 368, it would not attract the attention of Judicial Review under Article 13.
Secondly, Marginal heading under Article 368 was changed from “Procedure for Amending the Constitution” to “the Power of Parliament to amend the Constitution and Procedure thereof”. Therefore, the Golaknath case holds no value, after the 24th Amendment, Parliament can amend Fundamental Rights.
V. Kesavananda Bharti v. State of Kerala, 1973:
In this case, the 24th Constitutional Amendment was challenged. The question was what is the scope of Amendment that the parliament reserves? The SC gave the balanced Judgment, where SC held that the BASIC STRUCTURE cannot be amended i.e. parliament can amend the Constitution but should not disturb the BASIC FEATURE because they act as certain implied restrictions over the amending power of the Parliament under Article 368 of the Constitution of India.
VI. Indira Gandhi v. Raj Narain[4], 1975:
This case qualified certain features as Basic Features. Clauses (4) & (5) under Article 368 was added, which stated that even if Part III was amended, it cannot be questioned is any court. They clearly said that there is no Limited on the power of Parliament to amend the Constitution. This case stated that parliament is supreme as it respects the will of the people.
VII. Minerva Mills v. Union of India,[5] 1980:
The validity of the 42nd Amendment Act and clauses (4) & (5) were challenged as they were attacking limited nature of power to amendment and power of Judicial review. It was finally settled that the Constitution is Supreme and Parliament cannot exercise unlimited amending power.
Elements of the Basic Structure:
The present position is that the parliament under Article 368 can amend any part of the constitution including the FR’s but without affecting the Basic Structure of the constitution. However, SC is yet to define or clarify as to what constitutes the ‘Basic Structure’ of the constitution. From the various judgments, the following have emerged as basic features of the Constitution:
- Supremacy of the Constitution.
- Sovereign, democratic and republican nature of the Indian Polity.
- Secular character of the Constitution.
- Separation of power.
- Federal character of the Constitution.
- Unity and Integrity of the Nation.
- Welfare State.
- Judicial Review.
- Freedom and Dignity of the Individual.
- Parliamentary System.
- Rule of law.
- Effective access to justice, etc.
The basic structure doctrine is an Indian judicial principle that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the parliament. But what should be considered as the basic features of the Indian Constitution is not explicitly defined by the Judiciary. It is widely believed that democracy, federalism, independence of the judiciary, secularism etc. are part of the basic features.
The claim of any particular feature of the Constitution to be a “basic” feature is determined by the Court on a case-by-case basis.
REFERENCES:
[1] AIR 1950 SC 27
[2] (1973) 4 SCC 225: AIR 1973 SC 1461
[3] Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458
[4] 1975 AIR 865, 1975 SCR (3) 333
[5] AIR 1980 SC 1789
