The preamble of the Constitution of India is not a mere ornate statement but one that establishes the basic features of the Constitution itself. It goes as follows:
“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”
Before going further, let us consider two important factors; (i) Indian Constitution is a result of solemn resolution of the people of India; and (ii) People of India have enacted and given it to themselves in their Constituent Assembly.
A Constitution cannot be completely rigid. It is expected to be flexible enough to meet the requirements of changing times. Therefore amendments may become necessary to the Constitution from time to time. Question arises as to who can amend the Constitution? Constituent Assembly is not there anymore. Can people of India amend it (as in the case of a referendum) each time, there arises a necessity? Impracticality of a referendum based amendment of Constitution is quite obvious in a country like India. Therefore, Constituent Assembly, in its wisdom, entrusted the power to amend provisions of the Constitution to the elected representatives of People of India, i.e., members of Indian Parliament (with or without concurrence of majority of the States, as the case may be, depending upon the provisions), through Article 368.
As a popular Malayalam saying goes, ‘Can salted be as salty as salt itself?’ When the power of Parliament to amend the provisions of Constitution is derived from the Constitution itself, can that power be as powerful as the Constitution itself? In other words, can Parliament amend the entire Constitution or replace the present Constitution with another Constitution? Answer is very clear and is in the negative. The Constitution is supreme and therefore, even Parliament and judiciary are bound by it. Any amendments carried out, therefore, cannot challenge this supremacy.
Why such a rigidity? Such rigidity is mandatory to protect our system from the shenanigans of the political dispensation in power. We have seen at least some efforts by political class to overcome the restrictions placed upon them by the Constitution, but all such efforts were thwarted by the judiciary, using the very same Constitution.
Challenge to Supremacy
The power of Parliament to amend provisions of the Constitution came up for judicial review in many cases; most important of them being Keshavananda Bharati Vs State of Kerala, the famous decision of 13 judges’ Bench in 1973. The majority in this case held that the power of amendment under Article 368 is not absolute but subject to various implied and inherent restrictions imposed by the basic structure of the frame-work of the Constitution. In other words, the power to amend under Article 368 is subject to the qualification that the basic structure of the framework of Constitution cannot be altered.
Indira Gandhi Vs Raj Narain (1975) is another case where Supreme Court struck down a constitutional amendment that sought to exclude certain electoral process from the judicial review. Readers may know that the genesis of Emergency (the black days of Indian democracy) was in the same incidences that led to this case.
The Parliament in its efforts to regain the ‘supremacy’ in amending Constitution, added clauses (4) and (5) to Article 368, trying to make the amending power of Parliament unlimited and to limit the judicial review over such amendments. However, this amendment was also struck down by Supreme Court in Minerva Mills Vs Union of India (1980) case.
In all the above cases, Supreme Court had relied on the doctrine of Basic Feature to limit the amending power of Parliament. While the judges are not unanimous on what all features constitute the basic features of Indian Constitution, some of them have by now become unassailable. Let us look at the basic features listed under various cases:
Kesavanda Bharati Case:
(i) Supremacy of the Constitution
(ii) Republican and Democratic form of Government
(iii) Secular character of the Constitution
(iv) Separation of powers of various arms of the State;
legislature, executive and judiciary
(v) Federal character of Constitution
Indira Gandhi Case:
This case established Judicial Review as one of the basic features of Indian Constitution
Minerva Mills Case:
(i) Limited power of Parliament to amend the Constitution
(ii) Harmony between fundamental rights and directive principles of the Constitution
Power of judicial review
The legislatures tried to circumvent judicial review by including the amended provisions in the 9th Schedule of the Constitution. (This Schedule lists the provisions that are not open to judicial review in the normal course). However, this loophole was also closed down by the Supreme Court through its decision in I.R. Coelho v. State of Tamil Nadu (2007). The Court held that: “All amendments to the Constitution made on or after 24th April, 1973 (Keshavanda Bharati Decision) by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution as reflected in Article 21 read with Article 14, Article 19 and the principles underlying them. To put it differently even though an Act is put in the Ninth Schedule by a constitutional amendment, its provision would be open to attack on the ground that they destroy or damage the Basic Structure of the fundamental right or rights taken away or abrogated pertains or pertain to the Basic Structure.”
By now, these repeated decisions have firmly established the supremacy of Basic Features of the Constitution and subjugated Parliament’s powers of amendment. It is very clear that, as per the existing laws as stated by the Supreme Court, no amendment of Constitution or enactment of laws will stand the judicial scrutiny, if they are on the wrong side of the Basic Features.
As we all know, there are some developments that are taking place in India, today. There is a distrust being developed against the elected representatives and their motives for enacting or not enacting laws. The number of scams and corruptions cases, involving political functionaries at high levels, is only exacerbating this distrust. The so called representatives of Civil Society are increasingly trying to assert themselves over the elected representatives of the Country.
The proposed Lokpal Bill is such a case. Mr Anna Hazare and his Jan Lokpal Group is holding the Union Government to ransom with renewed threats of agitation, seeking acceptance of their version of the Lokpal Bill. While we have heard enough arguments, for and against the Bills being proposed by Government and the Janlokpal Group, we have not seen many analyses on the validity of clauses in the proposed Bills against the basic Features of the Constitution itself.
Assuming that the Jan Lokpal Group succeeds in getting their version of the Bill passed into a law, will that law stand against the test of Basic Features? Will Courts be called upon to strike down that law on the ground that it violates the Basic Features?
I am afraid many of the proposals that are part of that Bill would go against the Basic features of the Constitution. A complete analysis of provisions of the Bill viz-a-viz judicial review is beyond the scope of this post. The objective of this post is limited to understanding the Doctrine of Basic Features and its operations over legislative changes. However, I hope to come out with such a detailed analysis in a day or two.
PS: I kept my promise :) Please see http://confused-ambadi.blogspot.com/2011/07/jan-lokpal-bill-and-basic-features-of.html