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Political Institutions In India

Basic Structure of the Constitution

Introduction:
The doctrine of basic structure was invented by the Supreme Court under
Kesavananda Bharati case (1973). Although, SC did not explicitly defined concept
of basic structure, it can be defined as the very ideals, soul, principles or
provisions that forms the foundation of the Constitution without which the identity
of the Constitution will get lost or would be rendered meaningless.
The basic structure doctrine restricted the amending powers of the Parliament
under Article 368.

Emergence of the Basic structure:

It all started with the question that whether Fundamental Rights can be amended
or not by the Parliament under Article 368.
In Shankari Prasad Case (1951) (to check constitutional validity of 1st Amendment
Act related to curtailment of right to property), the Supreme court opined that the
Parliament’s amending power under Article 368 also includes the power to amend
the Fundamental Rights and the definition of ‘law’ as mentioned in Article 13 only
refers to ordinary laws and not to constitutional amendment laws/acts. Hence, the
Parliament can take away any fundamental right via constitutional amendment
and that will not be in violation of Article 13.
In Golaknath case (1967) (to check the constitutional validity of the Seventeenth
Amendment
Act (1964), which inserted certain state acts in the Ninth Schedule), however, the
SC overruled its previous judgement and declared that fundamental rights in the
Constitution are given ‘transcendental and immutable’ position and thus cannot be
amended by Parliament under Article 368.
The Kesavananda Bharati case (1973), which was examining the constitutional
validity of 24th CA Act 1971 - this amendment was brought as a reaction to
Golaknath case judgement under which Article 13 and Article 368 were amended
and it was declared that the Parliament can abridge or take away any
fundamental rights under Article 368 and that amendment will be not considered
as a law under Article 13.
It was while examining the constitutional validity of above amendment, the SC:
1. Upheld the validity of the amendment thereby giving powers to Parliament to amend,
abridge or take away any fundamental rights under Article 368.
2. However, it restricted the amending power of the legislature by introducing the
concept of basic structure – stating that the Parliament under its constituent power
can amend any part of the constitution but it should not be in violation of basic
structure.

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In Minerva Mills case (1980), the SC reiterated its position stating that the
provision of unlimited amending powers to the Parliament with no scope of judicial
scrutiny as brought forward by 42nd Constitutional Amendment Act (1976) is
invalid as judicial review is part of the basic structure doctrine of the Constitution.

Components of Basic Structure (as decared by SC under various judgements:

1. Supremacy of the Constitution
2. Sovereign, democratic and republican nature of the Indian polity
3. Secular character of the Constitution
4. Separation of powers between the legislature, the executive and the judiciary
5. Federal character of the Constitution
6. Unity and integrity of the nation
7. Welfare state (socio-economic justice)
8. Judicial review
9. Freedom and dignity of the individual
10. Parliamentary system
11. Rule of law
12. Harmony and balance between Fundamental Rights and Directive Principles
13. Principle of equality
14. Free and fair elections
15. Independence of Judiciary
16. Limited power of Parliament to amend the Constitution
17. Effective access to justice
18. Principles (or essence) underlying fundamental rights.
19. Powers of the Supreme Court under Articles 32, 136, 141 and 142
20. Powers of the High Courts under Articles 226 and 227

Political Institutions In India

Amendment Of The Constitution

Introduction:
The provisions for amendment of the Constitution is provided in PART XX under
Article 368.
Since, no Constitution is perfect and constant updates of the document with
recent changes in the society is necessary, this provision was added.
However, the provisions laid for amendment is not either flexible (like UK) or rigid
(like USA), it is the synthesis of both.
Article 368 states that the Parliament may, in exercise of its constituent power,
amend by way of addition, variation or repeal any provision of the Constitution in
accordance with the procedure laid down for the purpose.
In Kesvananada Bharati case (1973), it was declared that basic structure of the
constitution cannot be amended.
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Procedure for Amendment:
1. The amendment of the Constitution can be initiated only by the Parliament and not by
State legislature through the constitutional amendment bill.
2. The bill can be introduced either by a minister or by a private member and does not
require prior permission of the president.
3. For passing of the bill, special majority (i.e. more than 50% of the total membership
and majority of 2/3rd members of House present and voting) is required in both the
Houses separately.
4. There is no provision for holding a joint sitting in case of disagreement between two
Houses.
5. If the bill seeks to amend the federal provisions or structure of the Constitution, it must
also be ratified by the legislatures of half of the states by a simple majority, that is, a
majority of the members of the House present and voting.
6. After duly passed by both the Houses of Parliament and ratified by the state
legislatures (in case of federal provision) , the bill is presented to the president for
assent.
7. The president must give his assent to the bill. He can neither withhold his assent to
the bill nor return the bill for reconsideration of the Parliament.

Provisions of the Constitution that can be amended after consent of states

includes:
1. Election of the President and its manner.
2. Extent of the executive power of the Union and the states.
3. Supreme Court and high courts.
4. Distribution of legislative powers between the Union and the states.
5. Any of the lists in the Seventh Schedule.
6. Representation of states in Parliament.
7. Power of Parliament to amend the Constitution and its procedure (Article368 itself).

Note: The provisions of the Constitution can be amended even outside the scope
of Article 368 by simple majority of the two Houses of Parliament.
These provisions include:
1. Admission or establishment of new states.
2. Formation of new states and alteration of areas, boundaries or names of existing
states.
3. Abolition or creation of legislative councils in states.
4. Second Schedule—emoluments, allowances, privileges and so on of the president,
the governors, the Speakers, judges, etc.
5. Quorum in Parliament.
6. Salaries and allowances of the members of Parliament.
7. Rules of procedure in Parliament.
8. Privileges of the Parliament, its members and its committees.
9. Use of English language in Parliament.
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10. Number of puisne judges in the Supreme Court.
11. Conferment of more jurisdiction on the Supreme Court.
12. Use of official language.
13. Citizenship—acquisition and termination.
14. Elections to Parliament and state legislatures.
15. Delimitation of constituencies.
16. Union territories.
17. Fifth Schedule—administration of scheduled areas and scheduled tribes.
18. Sixth Schedule—administration of tribal areas.

Provision of the Constitution that can be amended by the Parliament via special
majority under Article 368:
1. Fundamental Rights
2. DPSP
3. All other categories that does not require either state’s consent or are not part of
provisions that can be amended by simple majority.

Few important points to note:

The 24th Constitutional Amendment Act of 1971 made it obligatory for the
President to give his assent to a constitutional Amendment Bill.

Important books:
1. Subhas C. Kashyap, Our Parliament, 1999
2. K C Wheare, Modern Constitutions, 1966