basic structure of constitution

Basic structure of constitution

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Hello readers today we will discuss about the Basic structure of the Constitution. Here in the process of discussing this topic, before discussing the ‘Basic structure of the Constitution’ we have to know what Basic structure is, what is the definition of basic structure. Here we should know the definition of Basic structure.

In the constitution of India the word ‘basic structure is not mentioned however this concept developed by the interference of judiciary from the time to time. Foundation and motive of basic structure of constitution is to protect the fundamental right of the citizen of India.

However the basic structure of constitution has been defined by many people and most of them have different opinion about the definition of basic structure.

basic structure of constitution

Here we will see the definition of basic structure of constitution given by Chief Justice Sarv Mittra Sikri

  • Secularism of constitution
  • Constitution is supreme
  • Federal character of constitution
  • Government must be republic and democratic
  • Distribution of power between the Government and the Court

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This article will help you to understand important principles and methods. Today we approach the basic structure doctor. Now when we discussing this topic two very important article, which is Article 39 and Article 368 of the constitution come out.

Article 13 of the Constitution of India served as the Protector of the fundamental rights and on the other hand Article 368 holds the power to amend the constitution. When we clash Article 13 with Article 368, some very important questions come before us.

They are as follow:-

Can the constitution be amended by the Parliament? Can the Preamble be amend? Can the fundamental rights be amended? And the most important of these all is, can the amending power of the Parliament exercise under Article 368 absolute or there are any restrictions on it.

But at the end you will realise the whole discussion is a tassel for power. Now the question is who is Supreme, the Supreme Court or the Parliament?

So we’ll decide the answer in the series of events.

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The first case in this regard is:-

Shankari Prasad vs. Union of India

The 1st Constitutional Amendment Act was challenged in this case. Now the first Amendment Act among other things is widely known for the abolition of zamindari system. So what happened in this Amendment Act was, there was certain laws that were brought about which were curtailing right to property and in order to protect those laws Article 31(a) and Article 31(b) were introduce in the constitution.

So people started looking at Article 31(a) and Article 31(b) as an attack on the right to property. So the question arose that, Can the right to property be asserved? Where, the parliamentarians amend fundamental rights. The judgement followed that, Article 13(2), which is a Protector of the fundamental rights; the word law in it only means law in ordinary sense. that is when law is made exercise in the legislative power and not constituent authority. Hence Article 368 includes the power to amend the fundamental rights mentioned in constitution.

The next case which we will discuss is:-

Sajjan Singh vs. the state of Rajasthan

Here in this case 17th Amendment Act was challenged. Because it was restrict the powers of the high court. Now again our discussion started with, what can be amended what cannot be amended. So in this particular case they took up the view of the earlier case.

That is the Shankari Prasad vs. Union of India case. In this case it was said that the meaning of the word amendment of the Constitution under Article 368 meant amendment of any part of the Constitution including fundamental rights.

Justice Hidayutallah and Mudholkar had a little difficult accepting the view that the fundamental right are nothing fundamental to the constitution even they can be amended like other parts of the Constitution. In this judgement the judge also said that even if Article 368 does not have the power to amend fundamental rights, the parliamentarians can at any point of time do a suitable amendment and include the powers.

So finally in Sajjan Singh vs. state of Rajasthan it was settled that yes the whole of the Constitution include in the fundamental rights can be amended.

Golaknath vs. State of Punjab

Again in this case 17th Amendment Act was challenged. This time the question was that, Is the power to amend the fundamental rights is unlimited or limited?

Now this case is important because eleven judge benches were constituted. This was the first time when such a large bench was constituted. In this case everything was reversed.

The Supreme Court said that, the power to amend the constitution by the parliament including the fundamental right is not an unlimited power of parliament. It is subject to limitations of judicial review.

So this case is important because until now we had settle position that, Article 368 had an unlimited power. That is even Article 13 could not stop Article 368. But this case reverses the position and said, no Article 368 is subject to limitations of judicial review.

The Supreme Court even went ahead and said that  the Parliament does not have any power to amend or overbridged the fundamental right in the way of amendments.

Further the Ambit of article 13(2) was discussed. They said that the word law used under article 13(2) include amendment and if any amendment violets fundamental right then it would be void. So we see up till now that there has been a tassel for power for who is Supreme. Whether the Judiciary is supreme or the parliament is Supreme.

As we see before that in the Shankari Prasad vs. Union of India case it as settled that the parliament is Supreme. In the Sajjan Singh vs. the State of Rajasthan again it is said that the parliament is supreme.  

But in the first time in the Golakhnath vs. State of Punjab case it was said that no, Article 368 subject to limitations imposed under Article 13. So the judiciary is Supreme.

Now in a movie if you have two heroes the first hero comes up and said I am Supreme. We all know that in the next scene the second hero would come up at first heroine, hit the first hero and said you made a mistake, I am supreme not you. Similar think happened here. The parliamentarians could not digest what happened in the Golaknath vs. State of Punjab case. So they came up with the 24th Amendment Act.

This is the following changes in Article 13 and 368. First in Article 13 they include 13(4) which said that nothing in Article 13 would apply to Article 368. This means that anything can be done under Article 368 and do not attract the attention of judicial review under Article 13.

Then under Article 368 they change the marginal heading. Previously it was the procedure for amending the constitution. Now it reaches the power of the Parliament to amend constitution and procedure thereof.

Lastly they added Article 368(3) which said that nothing in Article 13 shall apply to 368. So the crux of 24th amendment was, to exclude the applicability of Article 13 on the Article 368.

Therefore everything that was held in the Golaknath case, holds no value of the 24th Amendment Act. After the 24th Amendment Act it was clear the Parliament can dilute the constitution including the fundamental right.

basic structure of constitution 3

Now next case is:-

Kesavananda Bharati case

Again the 24th Amendment Act was challenged. The question arose that what is the scope of amendments the Parliament reserve. Now this time the Supreme Court gave a very balance judgement. They said that the power to amend the constitution was already implicit in the Constitution. The 24th Amendment Act merely made it explicit or declaratory.

However they said that here is no right to amend the Basic structure of constitution of. So in simple words, the crux of Kesavananda Bharti case is that, Parliament can amend the entire constitution to form a new constitution. However; it should survive through its basic features. This means that there are certain implied restrictions for amending the Constitution and the Basic structures of constitution cannot be amended.

Scope of amendment

Come into the question of scope of amendment under Article 368. The Supreme Court said that it was not the intention of the constitution makers to use this word in widest sense. It was their intention and believe that the fundamental right along with fundamental structure would always survive through there welfare state.

Now question arose, how far can the provisions of Article 368 be amended? The Supreme Court said that an increase or decrease in the power of Article 368 should be touch not lead to total destruction of the powers. And decree should be such that it should not mean freeing from all restriction.

So what they main was any increase or decrease in the power of Article 368 should not authorized legislature to destroy the basic features of the Constitution that it.

Our next case is very important as it qualified certain features as Basics structure. Also through this case Clause 4 and Clause 5 added to Article 368.

Here the question is what was the importance of these clauses? These clauses said that even part 3 of the Constitution was amended, but it cannot be questioned in any Court. Here it is clearly said that there is no limitation on the power of the Parliament to amend the Constitution.

This case put an end to the controversy of whom supreme, the Supreme Court or the Parliament? They said that the Parliament represents the will of the people and if the people who want to amend the Constitution. They can exercise their power through the Parliament. There should be no limitation on that. The Supreme Court in this case also said that the theory of Basic structure is very ambiguous and wage and addition of Clause 4 and Clause 5 in Article 368 rectify the situation.

So this is the last case in this regard.

In this case, the validity of the 42nd amendment acts as well as two causes that were inserted the 42nd amendment were challenged. The Supreme Court said that these two articles were attacking on the basic features of the Constitution.  Therefore the Supreme Court held unconstitutional.

After this case it was finally settled that the Constitution is Supreme and the Parliament cannot exercise unlimited amending power and finally it was said that the constitution is the precious Heritage and therefore you cannot be destroyed identity.

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