Doctrine of Basic Structure
The dispute over the Constitution's "fundamental structure," which had been dormant in the archives of India's constitutional history for the last decade of the twentieth century, has resurfaced in the public sphere. While establishing the National Commission to Review the Constitution's Operation (the Commission), the National Democratic Alliance government (established by a coalition of twenty-four national and regional level parties) stated that the core framework of the Constitution would not be altered.
The Commission's Chairman, Justice M.N. Venkatachalaiah, has repeatedly stated that an investigation into the fundamental structure of the Constitution is beyond the scope of the Commission's job.
Also Check: Law of Arrest in India
There are several political parties:
Notably, the Congress (I) and the two Communist parties in opposition have made it plain that the review exercise was the government's attempt to gain legitimacy for its approach of adopting extreme constitutional revisions, damaging the document's core structure.
Much of the broad public discourse has been hampered by partial cognitive condition, since even metropolitan Bharat's literate circles are unsure of the implications of this notion, which was hotly disputed throughout the 1970s and 1980s. The following talk attempts to navigate the waterways of that amount made turbulent by the capacity conflict between the legislative and thus judicial arms of the State.
According to the Constitution, Parliament and thus the state legislatures in Bharat have the authority to pass laws at regular periods in their respective domains. In nature, this power is not absolute. The judiciary is given the authority by the Constitution to rule on the constitutionality of all laws. If a statute passed by Parliament or state legislatures violates any provision of the Constitution, the Supreme Court can declare it invalid or extra vires. Still, the founding fathers desired the Constitution to be a flexible instrument rather than a fixed structure for governing.
As a result, Parliament was given the authority to modify the Constitution. Article 368 of the Constitution gives the impression that Parliament's amending powers are unlimited and cover all aspects of the document. However, since its inception, the Supreme Court has acted as a check on Parliament's hunger for legislation. To protect the original principles envisaged by the constitution-makers, the Supreme Court ruled that Parliament could not distort, harm, or modify the core structure of the Constitution under the guise of altering it.
The phrase "fundamental structure" does not appear in the Constitution. In the landmark Kesavananda Bharati case in 1973, the Supreme Court recognized this concept for the first time. Since then, the Supreme Court has served as the interpreter of the Constitution and hence the adjudicator of all amendments proposed by Parliament.
The Position of Pre-Kesavananda
The ability of Parliament to change the Constitution, particularly the chapter on the basic rights of voters, was contested as early as 1951. Many laws were enacted inside the states following independence with the goal of changing land possession and residence patterns. This was in keeping with the ruling Congress party's electoral promise of implementing the Constitution's socialistic goals [contained in Article 39 (b) and (c) of the Directive Principles of State Policy], which required equitable distribution of production resources among all voters and a prohibition on concentration of wealth in the hands of a few.
Property owners, who were harmed by these laws, petitioned the courts. The courts struck down the land reform measures, claiming that they violated the fundamental right to property guaranteed by the Constitution. Piqued by the unfavorable decisions, Parliament included these laws into the Ninth Schedule of the Constitution by the 1st and 4th amendments (1951 and 1952, respectively), essentially removing them from the purview of review.
[The Ninth Schedule was inserted to the Constitution by the 1st Amendment in 1951 as a mechanism of shielding bound statutes from scrutiny. According to the provisions of Article 31, which were amended many times later, laws placed within the Ninth Schedule relating to the acquisition of personal property and compensation due for such acquisition cannot be challenged in a court of law on the grounds that they violated voters' basic rights.
This umbrella term encompasses around 250 legislation enacted by state legislatures with the goal of controlling the size of land holdings and abolishing various residency arrangements. The Ninth Schedule was drafted with the primary goal of preventing the judiciary, which has repeatedly maintained citizens' right to property, from derailing the Congress party's aim for a social revolution.
Property owners petitioned the Supreme Court once more, claiming that the constitutional modifications that placed land reform regulations in the Ninth Schedule violated Article 13 (2) of the Constitution.
Article 13 (2) guarantees the protection of the subject's fundamental rights. The creation of laws by Parliament and state legislatures that remove or diminish the subject's basic rights is expressly prohibited. They contended that any amendment to the Constitution has the legal force of law, as defined by Article 13. (2). In 1952 (Sankari Prasad Singh Deo v. Union Of Bharat) and 1955 (Sajjan Singh v. State of Rajasthan), the Supreme Court rejected each argument and affirmed Parliament's freedom to change any provision of the Constitution, including those affecting voters' basic rights. Despite this, two dissenting judges in the case Sajjan Singh v. State of Rajasthan (1955) highlighted concerns that the basic rights of voters could become a toy of the majority party in Parliament.
The Golaknath Scandal
The Supreme Court's associate degree eleven-judge bench reversed its position in 1967. In its 6:5 majority decision in the Golaknath v. State of Punjab case, Justice Subba Rao took the unusual opinion that Article 368, which provided provisions for modifying the Constitution, merely ordered down the amending procedure. Article 368 did not grant Parliament the authority to modify the Constitution.
Parliament's modifying power (constituent power) evolved from alternative provisions in the Constitution (Articles 245, 246, 248) that granted it the right to create legislation (plenary legislative power).
As a result, the Supreme Court ruled that Parliament's modifying and legislative powers were essentially similar. As a result, any amendment to the Constitution should be considered law, as defined in Article 13. (2).
The majority decision referred to implicit constraints on Parliament's capacity to modify the Constitution. This interpretation states that the Constitution guarantees the subject's fundamental freedoms in perpetuity. The people have reserved the fundamental rights for themselves by creating the Constitution.
Article 13, in accordance with the bulk read, expressed this limitation on Parliament's powers. Because of the content of the Constitution and thus the nature of the freedoms guaranteed thereunder, Parliament could not change, ban, or limit fundamental liberties.
The justices declared that the fundamental rights were thus inviolable and transcendental in importance, and that they could not be limited even if such a measure received unanimous consent from each house of Parliament. They agreed that Parliament might call a Constituent Assembly to modify the fundamental rights if necessary.
In other words, the Supreme Court ruled that several elements of the Constitution were fundamental and required considerably more than usual procedures to change.
Manjeri Narayanan Nambiar and different counsels represented the petitioners in the Golaknath case, but it wasn't until 1973 that the phrase "fundamental structure" appeared within the language of the Supreme Court's verdict.
Bank nationalization and the abolition of privy purses
Within a few weeks of Golaknath's discovery, the Congress party suffered significant defeats in parliamentary elections and lost control in many states. Although a private member's bill - presented by lawyer Nath Pai - attempting to restore Parliament's power to modify the Constitution was introduced and debated on the floor of the house and inside the committee, it may not be passed due to political compulsions of the time.
However, another opportunity to check parliamentary ascendency arose when Parliament passed legislation to increase agricultural sector access to bank financing and ensure equal distribution of output resources by:
Bank Nationalization
Derecognizing Former Princes in an attempt to take away their Privy Purses, which were secure in perpetuity - as a bribe to join the Union - at the time of India's independence.
Parliament reasoned that it was carrying out the Directive Principles of State Policy, but the Supreme Court overruled each move. By this point, it was evident that the Supreme Court and Parliament were at odds over the relative standing of fundamental rights in relation to the Directive Principles of State Policy. At one level, the conflict was about Parliament's ascendance vs the courts' power to interpret and uphold the Constitution.
At another level, the conflict was over the value of property as a fundamental right, which was jealously defended by an affluent category vastly smaller than that of the large destitute plenty, for whose benefit the Congress government claimed to conduct its socialist development agenda.
Less than two weeks later, the Supreme Court overturned the President's decision de-recognizing the princes, in a quick move to secure the people's mandate and boost her own prestige. Prime Minister Gandhi called a snap election after dissolving the Lok Sabha.
For the first time, the Constitution of India became an electoral issue. Eight of the ten manifestos in the 1971 elections called for constitutional amendments to restore Parliament's dominance. A.K. Gopalan of the Bharat (Marxist) political party went so far as to demand that the Constitution be repealed and replaced with one that recognized the importance of people's sovereignty.
With a common fraction majority, the Congress party reclaimed control. Citizens had backed the Congress party's socialist agenda, which included calling for fundamental reforms to the Constitution in order to restore Parliament's dominance.
Between July 1971 and June 1972, Parliament attempted to reclaim lost ground with a flurry of amendments. It granted itself absolute authority to change any provision of the Constitution, including Part III, which deals with fundamental rights. Even the President was given the absolute duty of providing his consent to any amendment measure that passed both houses of Parliament. Many restrictions on rightful property have been enacted into legislation.
The right to equality before the law and equal protection under the law (Article 14), as well as the essential liberties guaranteed by Article 19, were made subject to Article 39 (b) and (c) of the Directive Principles of State Policy. Privy purses of former princes were abolished, and a comprehensive class of laws dealing with land reforms was placed beyond the jurisdiction of review in the 9th Schedule.
Comments
Post a Comment