Monday, March 13, 2017

What Comprises the Basic Structure of Indian Constitution ??

This article has been written by Sachin Vashisht for with minor additions contributed by Harshit Dwivedi

The basic structure of the constitution is a term that the Supreme Court is yet to define and clarify.

The need for this term was felt as early as 1951 in the Shankari Prasad Case.

In this case, the first amendment act in which Article 31a and 31b of the Indian Constitution were inserted.

Shankari Prasad challenged this amendment on the basis that this amendment violated the rights are mentioned in Part 3 of Indian Constitution.

The Supreme Court stated that the Parliament had the power to amend any part of the constitution under Article 368 of Indian Constitution, including the articles pertaining to fundamental rights.

This decision was upheld until the Keshavananda Bharti case in 1973.

It was during this case that the Supreme Court recognized the term Basic Structure of Constitution for the first time.

In this case, Keshavananda Bharti challenged the 25th Amendment Act.

[[Important Note - The Twenty-fifth Amendment of the Constitution of India, officially known as The Constitution (Twenty-fifth Amendment) Act, 1971, curtailed the right to property, and permitted the acquisition of private property by the government for public use, on the payment of compensation which would be determined by the Parliament and not the courts.]] - Text Courtesy - Wikipedia

According to the 24th Amendment Act, the parliament had the power to dilute or alter the fundamental rights. It also amended Article 368 to provide expressly that Parliament has power to amend any provision of the Constitution. The amendment further made it obligatory for the President to give his assent, when a Constitution Amendment Bill was presented to him.

I have here told you about the 24th and 25th Amendment Acts of the Indian Constitution because in the Kesavananda Bharati vs State of Kerala case the constitutional validity of 24th, 25th, 26th & 29th amendment was considered.

The Supreme Court upheld the amendment but also stated that although the parliament had the power amend any part of the constitution, as long as it does not violate or disturb the ‘basic structure of the constitution’.

This decision is considered as a turning point in the constitutional history of our country.

After this case, in subsequent verdicts Supreme Court has ruled as to what comprises the Basic Structure of the Constitution.

I will now explain these ‘ingredients’ in brief.

1. Supremacy of the constitution -

This simply means that no action taken by the parliament or a body of the government for that matter, can violate the constitution.

Any laws passed must be in line with the constitutional laws or acts.

This was done in order to put a check on the government organs who abuse their powers.

Although, the constitution can still be amended, it is constituted in such manner that the procedure to amend it is neither too difficult nor too easy.

2. Sovereign, Democratic and Republic Nature of Indian Polity -

This means that the country is sovereign, that is, it will work under no outside influence.

None of the policies or acts will be affected by a foreign power.

India will have full control over its policies, areas and procedures.

By democratic, it means that no amendment whatsoever can change the elective structure of the government.

The republican nature of Indian polity is that the highest power rests with the people of the country and the elected representatives of the country.

3. Secular Character of the Indian Constitution - 

By the 42nd Amendment Act in 1976, India added the word ’secular’ in the Preamble to the Constitution.

The government will not favor a specific community based on caste, color, religion and gender.

However, the form of secularism that is practiced in India is different from the one that is practiced in the western countries.

In India, there are separate personal laws for different communities Hindu law (Hindu law acts 1955-56), Muslim law (Muslim personal laws (Shariat) application act 1937), Christian law, Parsi law (Parsi marriage and divorce act 1936), respectively.

Every religion follows their own personal laws in the family matters pertaining to marriage, adoption, succession and so on.

People who support this kind of secularism often claim that India recognizes and respects the customs and practices of different traditional communities.

However the opponents make the point that accepting Sharia and other community laws and having differing customs traditions violates the principle of equality.

This has created an unrest situation among the general public thereby increasing the demand of legally implementing the directive of Uniform Civil Code in India.

4. Separation of Power

There are three distinct bodies of the government.

They are Judiciary, Executive and the Legislature.

These organs of the government maintain the law and order of the country and work towards social welfare.

The constitution has designed these bodies in such a way that these work ideally in coordination with each other.

Each body has some checks or restraints upon them in order to avoid them abusing their power.

The executive organ is checked by the legislature, the legislature is monitored by the judiciary and the judiciary is appointed by the executive body.

Although the separation of powers states that all three bodies must be independent and their workings can’t be interfered by the other bodies.

However practically it is not followed in India due to many constraints like ideologies, coalition politics etc.

Still each organ is compelled to work within its limits due to the checks imposed by the other bodies.

5. Federal Character of Indian Constitution - 

By federal character, it simply means that the nature of the government in India is federal.

That is, the government is at two levels, the Center level and the State level.

At the Center, we have the Union Government with the Prime Minister and the Council of Ministers.

At State level, it is the legislative assembly headed by the Chief Ministers of the States.

Each of these government bodies have their own sovereign powers as stated in the Constitution.

The Constitution has also clearly described the powers and their limits in the three lists namely, the Union list, the State list and the Concurrent list.

The subjects mentioned in the union and state lists are the matters upon which the union and state governments can make laws respectively.

Both the governments can make laws on the maters in concurrent list.

The constitution is rigid enough to protect any kind of amendment that may shift the balance of powers in the favor of any one government.

Although, India claims to be a federal state, but the word federation is not mentioned anywhere in the constitution.

Also, objectively, the balance of power between the two carries more weight to the union government.

Any conflict of power between the two governments or between the governments of two states is resolved by the use of judicial review power of the Supreme Court.

6. Unity and Integrity -

Unity means the binding of people of the country as one.

There should be no policy or amendment by the parliament that jeopardizes this character of the constitution.

Integrity means that India is one country and no part of it is allowed to separate or disintegrate.

However, new states can still be formed.

No amendment can be made to the constitution that endangers the unity and integrity of the nation.

Any amendment bill which might work towards the division of the society of the basis of gender, caste, religion or spiritual beliefs will be rendered null and void by the Supreme Court.

7. Welfare state -

According to this, the government of the country is bound to work for the welfare of the citizens in all sectors like, financial well-being, economic welfare etc.

This can be done at both the state and central level by granting financial aids, special permissions and various benefits.

A simple example can be the nature of economy that was adopted by the government that is the mixed economy.

8. Judicial Review -

The judicial system of the country has the power to review and render void any policies or acts that it deems in violation of the constitution.

This power cannot be taken away by any amendments.

9. Freedom and dignity of individuals -

It is the fundamental right of every citizen of India to lead a free and dignified life and any policies or laws that jeopardize it, are in violation of the constitution.

Hence, they can be rendered null and void by the Supreme Court.

10. Parliamentary system -

The basic structure of governance in India that is the parliamentary system must be upheld and can’t be changed.

In such a system, the executive power holding bodies of the government are responsible to the legislature.

This way, if the executives loses the confidence of the legislature, then, the legislature has the power to dissolve the executive and elect a replacement.

11. Rule of Law -

No government body is allowed to act as it pleases and arbitrary use of the power is prohibited and bound by a set of written rules or laws.

These laws are laid down by the constitution and are supreme laws of the land.

There are two kinds of laws in our country, the Constitutional Laws, which are described in the Constitution and are Supreme and the Ordinary Laws that are in force but not mentioned in the Constitution.

The ordinary laws maintain the public order and are made for the welfare of the state.

However, these laws must be in line with the constitutional laws and must not violate them.

12. Balance between Fundamental Rights and Directive Principle of State Policy - 

According to this, apart from following the fundamental rights, the government should also put efforts into following the directive principles which are not mandatory by law, but are laid down for the benefit of the society such as the right to free and compulsory education.

It was earlier a directive principle, but was recently included as fundamental right.

Some other directive principle are equal pay for equal work, providing of adequate means to earn a livelihood etc.

13. Principle of Equality - 

Every citizen of India must be treated equal in the eyes of the law irrespective of the caste, color, religion, gender or on the basis of spiritual beliefs.

However, this doesn’t stop the government to make special policies for certain communities that are in jeopardy, or are a minority.

For example, reservations in most government sectors like, occupation and educational institutes is provided to minority communities.

14. Free and fair elections -

This is a very basic feature and need of a democratic nation.

Without free and fair election procedures, the whole meaning of democracy is ignored.

There must be no influence and interference in the election procedure, be it State Elections, Lok Sabha Elections or Panchayat Elections. For example, the Election Commission of India is an independent body, outside the bounds of the ruling party and the challenging parties.

15. Independence of Judiciary - 

The powers of the judicial sector cannot be taken away by any amendment in the Constitution.

Doing this will pollute the judicial system and violate the fundamental right of a citizen of being considered as equal in the eyes of the law irrespective of social stature.

The powers of the Supreme Court can be increased/extended by the Parliament but not vice versa.

16. Limited Power of the Parliament to Amend Constitution -

The Parliament has the power to amend the Constitution.

The procedure that is to be followed for this is mentioned in Article 368 of the Constitution.

Since 1951, there has been a tug of war between the government and the judiciary as to whether the parliament has the power to amend the fundamental rights.

Finally, in the 24th Amendment of the Constitution, the Parliament passed a bill in which the parliament amended Article 14 and added a sub clause.

Now, the Parliament had absolute power to amend any part of the government.

This was challenged in the Keshavanada case and the Supreme Court saw it as its duty to protect the integrity of the constitution and introduced the term ‘basic structure of the constitution’.

It was really necessary to put limitations on the parliament’s power otherwise, the whole constitution could have been changed and the essence of it destroyed.

17. Effective access to Justice-

The justice system should be easily accessible to every citizen of the country.

There should be no acts or amendments that should prevent a person to seek justice.

For example, any citizen who feels like his fundamental rights are being violated, has the right to seek justice and directly call the Supreme Court for justice.

The Supreme Court then uses an appropriate power to ensure that the fundamental rights are maintained and respected.

18. Reasonableness -

The Constitution is the lengthiest constitution in the world in written form.

It is very detail oriented but there are still some points which are not made crystal clear.

Like, the duration for which the president can hold his assent on a bill is not specified.

Which means, that the president can unofficially, but effectively stop a bill from becoming a law for as long as he sees best.

In short, there are different views and angles through which the constitutional articles can be interpreted by the Supreme Court.

This is done to protect objectivity and in the benefit of the general cause.

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