ANALYSIS OF BASIC STRUCTURE OF CONSTITUTION: IMPLEMENTATION IN REALITY

admin | February 24, 2016 | Constitutional | No Comments

This article was written by Dipti Khatri, student of University of petroleum and energy studies on account of their submission for 1st National Article writing Competition organized by Racolb Legal in which she scored 6th position.

“Constitution is not a mere lawyer’s document, it is a vehicle of Life, and its spirit is always the spirit of Age which calls for Justice and Justice is another name of liberty, equality and fraternity.”

-Dr. B.R. Ambedkar[1]

Basic Structure Doctrine a wide and broadened concept given under Keshavananda Bharati v. UOI[2]and finally reaffirmed in the case of Indira Gandhi v. Raj Narain[3] forms the bulwark of the Indian Constitution. It is not only a landmark judgment but has also set important position in Constitutional history. It gives way for restricting the amendment of “basic feature” of the Constitution under Article 368. For The first time it explicitly gave power to Judiciary and restricted the unlimited power of the Parliament while making Amendments .It explained that the amending powers of the parliament does not guarantee the power to ‘damage’, ’emasculate’, ‘destroy’, ‘abrogate’, ‘change’ or ‘alter’ the ‘basic structure’ or framework of the constitution. It has been held in various instances that it is hazardous to define what is basic structure of the Constitution, as what is basic does not remain static for all time to come.[4] There are instances where Basic Structure has been criticized for being ambiguous and lacking precise meaning, having no yard-stick to determine whether a particular part forms the basic structure or not. This ambiguity clearly gives rise to the discretionary power to the Judges to decide whether a particular provision is a part of basic structure or not. It clearly can on the other hand be called ultra vires and cannot be applied in reality.

Though what forms the essential or basic feature of our Constitution has been provided in the Keshavananda Bharati[5] case by different Judges, but which particular feature forms part of the basic structure has necessarily to be determined on the basis of the specific provisions of the Constitution.[6] However, in the matter of application of Doctrine of basic structure, twin tests have been prescribed which needs to be fulfilled.[7] These two tests i.e. ‘width test’ and ‘test of identity’ have been provided in the case of M. Nagraj v. UOI[8] and I.R. Coelho[9] to protect the identity of The Constitution.

To clearly analyze whether ‘Doctrine of basic Structure’ has a precise meaning or is an ambiguous term we need to take into consideration the insertion of Section (2) under 42^nd Amendment which added the word “ Socialism” and “ Secularism” with the aim to give the Directive Principles precedence over the Fundamental Rights.[10] This clearly violates the harmony and balance between the directive principles and fundamental rights.[11] It is in violation of the basic Structure as Preamble is a part of basic Structure of The Constitution and also contains its ideals, aspirations and objectives which cannot be amended.[12] Now, by adding these two words they are violating the width test by clearly extending the Constitutional Limitation and hence violating the basic structure of the Constitution.

Also, addition of the word ‘Socialism’ and ‘Secularism’ is taking away the “LIBERTY of thought, expression, belief, faith, and worship” which is totally inconsistent with the basic structure doctrine. Taking the case of I. R. Coehlo,[13] Article 19 forms The Basic structure of The Constitution and the addition of word socialist is clearly taking away the freedom of thought and expression.

So the question arises whether these words can be deleted from the basic structure of The Constitution or not? Whether The 42^nd Amendment is unconstitutional? Whether the ‘Doctrine of Basic Structure’ is not applicable in Reality? What is the actual implication of this doctrine?

Now, again looking at the recent case of passing of The National Judicial Appointments Commission Act, (NJAC) Act, 2014 where Supreme Court Advocates on Record Association (SCAORA), Bar Association of India (BAI) have challenged the validity of the National Judicial Appointments Commission Act, 2014 and enabling Constitution (99th amendment) Act 2014[14] as being violating the Basic structure needs to be taken into consideration. They have urged that while selecting the judges, no importance or in other words no “weightage or primacy” has been given to the views of Chief Justice of India (CJI). The ‘direct and inevitable effect of this Act needs to be taken into consideration.[15] The question arises whether independence of Judiciary forms the basic feature of The Constitution.[16] One of the major flaw in the New Law is “A Chief Justice of a High Court is not a participant of the NJAC but can only send his recommendation to the NJAC”. It clearly indicates that Parliament has infringed the basic structure of The Constitution. Also, by reading Section 5 (1) of the NJAC Act it comes out to be vague. As, the provision dealing with the appointment of the Chief Justice of India says the senior-most judge would be appointed CJI, provided he is “fit.” The fit word in itself appears to be ambiguous.[17]

But talking from the other side, Collegium system gave primacy to the seniority and never gauged upon the question of merit of judges. On the other hand, taking the example of U.S., The Chief Justice of The Apex Court is generally the youngest sitting among The Judges.[18] So, now the point which needs to be focused upon is whether The Doctrine of Separation of Power which forms the basic Structure of The Constitution should be given primacy or NJAC which tries to overcome the drawbacks of Collegium system be upheld?

In the end, I would like to conclude by saying that the doctrine of Basic Structure of Constitution was framed and has been rightly implemented by the Hon’ble Supreme Court in the various cases to protect the very Principles on which this great Nation is built upon. The doctrine of basic structure contains the basic principles and always tries to negate any ‘negative’ changes made against the spirit of The Constitution. It clearly depends upon the fact and circumstance of the case and helps in preserving the very essence of The Constitution. We can clearly rectify from the above discussions that though ‘Doctrine of Basic Structure’ forms the essential part of Constitution which cannot be amended but the same is somewhat ambiguous and is not totally applicable in reality.

[1] B.R. Ambedkar, The drafter of Indian Constitution, paid great emphasis to Constitutional guarantees and protections for a wide range of civil liberties for individual citizens, including freedom of religion, the abolition of untouchability, and the outlawing of all forms of discrimination. This is an excerpt from his speech made on 15^th August 1947.

[2] Keshavananda Bharati v. UOI, AIR 1973 SC 1461.

[3] Indira Gandhi v. Raj Narain, AIR 1975 SC 2299.

[4] J&K National Panthers Party v. Union of India , (2011) 1 SCC 228.

[5] Supra 2.

[6] Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625.

[7] D.D. Basu, ‘Shorter Constitution of India’ 256(14th ed., 2009).

[8] M. Nagraj v. UOI , (2006) 8 SCC 212.

[9] I.R. Coelho Vs. State of Tamil Nadu, (2007) 2 SCC 1.

[10] “The Constitution (Forty-Second Amendment) Act, 1976.

[11] Supra 5.

[12] Supra 2.

[13] Supra 8.