JUDICIARY VIS--A--VIS
LEGISLATION
Progressively, power of Judiciary is increased.
SARASIJ
MAJUMDER
In any Democratic system, Judiciary
can’t be more powerful than Legislation. Simply because-- Judiciary is not elected by the people.
I will establish below—how Indian
Judiciary (READ APEX COURT) has modified the power of Legislation,
continuously, and progressively, through a series of Judgement.
1.0 Shankariprasad case, and Sajjan
Singh Case: 1951, and 1965
Shankari
Prasad Case (1951) – The Court upheld that under Article 368, the Parliament has the power to
amend the Constitution including the Fundamental rights. Sajjan Singh v.
State of Rajasthan (1965) –
The Court reiterated the Parliament's power to amend any part of the
Constitution.
Now,
you will see below how this authority of Parliament is diluted subsequently.
2.0 Basic Structure Doctrine of
Indian Constitution was brought by Judiciary.
There
is no mention of the term “Basic Structure” anywhere in the Constitution
of India.
It
was the Kesavananda Bharati case that brought this doctrine into the
limelight. It held that the “basic structure of the Indian Constitution could
not be abrogated even by a constitutional amendment”. The judgement listed some
basic structures of the constitution as:
- Supremacy of the
Constitution
- Unity and sovereignty
of India
- Democratic and
republican form of government
- Federal character of
the Constitution
- Secular character of
the Constitution
- Separation of power
- Individual freedom
Over
time, many other features have also been added to this list of basic structural
features. Some of them are:
- Rule of law
- Judicial review
- Parliamentary system
- Rule of equality
- Harmony and balance
between the Fundamental Rights and DPSP
- Free and fair elections
- Limited power of the
parliament to amend the Constitution
- Power of the Supreme
Court of India under Articles 32, 136, 142 and 147
- Power of the High Court
under Articles 226 and 227
Any law or amendment that violates
these principles can be struck down by the SC on the grounds that they distort
the basic structure of the Constitution.
Evolution
of the Basic Structure Concept
The
concept of the basic structure of the constitution evolved over time. In this
section, I will discuss this evolution with the help of some landmark judgement
related to this doctrine. I
, however, may miss some not by intention.
Shankari
Prasad Case (1951)
- In this case, the SC
contended that the Parliament’s power of amending the Constitution under
Article 368 included the power to amend the Fundamental Rights guaranteed
in Part III as well.
Sajjan
Singh case (1965)
- In this case also, the
SC held that the Parliament can amend any part of the Constitution
including the Fundamental
Rights.
- It is noteworthy to
point out that two dissenting judges, in this case, remarked whether the
fundamental rights of citizens could become a plaything of the majority
party in Parliament.
Golak
Nath case (1967)
- In this case, the court reversed its earlier stance
that the Fundamental Rights can be amended.
- It said that
Fundamental Rights are not amenable to the Parliamentary restriction as
stated in Article 13 and that to amend the Fundamental rights a new
Constituent Assembly would be required.
- Also stated that
Article 368 gives the procedure to amend the Constitution but does not
confer on Parliament the power to amend the Constitution. This case
conferred upon Fundamental Rights a ‘transcendental position’.
- The majority judgement
called upon the concept of implied limitations on the power of the
Parliament to amend the Constitution. As per this view, the Constitution
gives a place of permanence to the fundamental freedoms of the citizens.
- In giving to themselves
the Constitution, the people had reserved these rights for themselves.
Kesavananda
Bharati case (1973)
- This was a landmark
case in defining the concept of the basic structure doctrine.
- The SC held that
although no part of the Constitution, including Fundamental Rights, was
beyond the Parliament’s amending power, the “basic structure of the
Constitution could not be abrogated even by a constitutional
amendment.”
- The judgement implied
that the parliament can only amend the constitution and not rewrite it.
The power to amend is not a power to destroy.
- This is the basis in
Indian law in which the judiciary can strike down any amendment passed by
Parliament that is in conflict with the basic structure of the
Constitution.
Indira
Nehru Gandhi v. Raj Narain case (1975)
- Here, the SC applied
the theory of basic structure and struck down Clause(4) of Article 329-A,
which was inserted by the 39th Amendment in 1975 on the grounds that it
was beyond the Parliament’s amending power as it destroyed the
Constitution’s basic features.
- The 39th Amendment Act
was passed by the Parliament during the Emergency Period. This Act placed
the election of the President, the Vice President, the Prime Minister and
the Speaker of the Lok Sabha beyond
the scrutiny of the judiciary.
- This was done by the
government in order to suppress Indira Gandhi’s prosecution by the
Allahabad High Court for corrupt electoral practices.
Minerva
Mills case (1980)
- This case again
strengthens the Basic Structure doctrine. The judgement struck down 2
changes made to the Constitution by the 42nd Amendment
Act 1976, declaring them to be violative of the basic structure.
- The judgement makes it
clear that the Constitution, and not the Parliament is supreme.
- In this case, the Court
added two features to the list of basic structure features. They were:
judicial review and balance between Fundamental Rights and DPSP.
- The judges ruled that a limited
amending power itself is a basic feature of the Constitution.
Waman
Rao Case (1981)
- The SC again reiterated
the Basic Structure doctrine.
- It also drew a line of
demarcation as April 24th, 1973 i.e., the date of the Kesavananda Bharati
judgement, and held that it should not be applied retrospectively to
reopen the validity of any amendment to the Constitution which took place
prior to that date.
- In the Kesavananda
Bharati case, the petitioner had challenged the Constitution (29th
Amendment) Act, 1972, which placed the Kerala Land Reforms Act, 1963 and
its amending Act into the 9th Schedule of the Constitution.
- The 9th Schedule was
added to the Constitution by the First Amendment in 1951 along with
Article 31-B to provide a “protective umbrella” to land reforms laws.
- This was done in order
to prevent them from being challenged in court.
- Article 13(2) says
that the state shall not make any law inconsistent with fundamental
rights and any law made in contravention of fundamental rights shall be
void.
- Now, Article 31-B
protects laws from the above scrutiny. Laws enacted under it and placed
in the 9th Schedule are immune to challenge in a court, even if they go
against fundamental rights.
- The Waman Rao case held
that amendments made to the 9th Schedule until the Kesavananda judgement
are valid, and those passed after that date can be subject to scrutiny.
Indra
Sawhney and Union of India (1992)
- SC examined the scope
and extent of Article 16(4), which provides for the reservation of jobs in
favour of backward classes. It upheld the constitutional validity of 27%
reservation for the OBCs with certain conditions (like creamy layer
exclusion, no reservation in promotion, total reserved quota should not
exceed 50%, etc.)
- Here, ‘Rule of Law’ was
added to the list of basic features of the constitution.
S.R.
Bommai case (1994)
- In this judgement, the
SC tried to curb the blatant misuse of Article 356 (regarding the
imposition of President’s Rule on states).
- In this case, there was
no question of constitutional amendment but even so, the concept of basic
doctrine was applied.
- The Supreme Court held
that policies of a state government directed against an element of the
basic structure of the Constitution would be a valid ground for the
exercise of the central power under Article 356.
It is my opinion that, JUDICIARY assumed more
power under “JUDICIAL DEFINITION OF BASIC STRUCTURE”. Parliament shall amend the
constitution by including, and defining the “BASIC STRUCTURE OF CONSTITITUTION”. If required, Parliament
shall form a new constituent assembly, to do the job needed. Then it can be
approved following the constitutional amendment procedure.
REFERENCE:--ALL THESE
INFORMATIONS ARE IN PUBLIC DOMAIN.
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