Today morning,my reading…
Original copy of #TheConstitutionOfIndiaof India.
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The Constituent Assembly of India was elected to frame the Constitution of India. It was elected by the 'Provincial Assembly'. Following India's independence from the British rule in 1947, its members served as the nation's first Parliament as the 'Provisional Parliament of India'. The Constituent Assembly member M.C. Veerabahu from Tuticorin, Tamilnadu signed in Tamil .
இந்திய அரசியலமைப்பை உருவாக்க இந்திய அரசியலமைப்பு அவை. தேர்ந்தெடுக்கப்பட்டது . இது 'மாகாண அவையால்' தேர்ந்தெடுக்கப்பட்டது. 1947 இல் பிரிட்டிஷ் ஆட்சியிலிருந்து இந்தியா சுதந்திரம் பெற்றதைத் தொடர்ந்து , அதன் உறுப்பினர்கள் நாட்டின் முதல் நாடாளுமன்றமாக 'இந்தியாவின் தற்காலிக நாடாளுமன்றமாக' பணியாற்றினார்கள். இதன் உறுப்பினர் தூத்துக்குடி விடுதலை போராட்ட வீரர் மு.சி. வீரபாகு மட்டும் இந்திய அரசியலமைப்பு சாசனத்தில் தமிழில் கையொப்பமிட்டுள்ளார்.
#Basic_Structure
The concept of ‘basic structure’ came into existence in the landmark judgment in the Kesavananda Bharati vs State of Kerala case (1973) 47 years ago.
The term Basic Structure is not mentioned in the Constitution. It is a Judicial innovation. This doctrine was laid down in Keshavananda Bharati Case ( 1973 ) and it is evolving since then.
From various judgements of the Supreme Court, we can say it refers to the Basic Ingredients of the constitution e.g. Judicial Review, Principle of Equality etc.
● Meaning:
Basic and fundamental provisions which constitute basic and core building blocks of constitution.
Judicially innovated doctrine – forwarded in Kesavananda Bharti case 1973.
“Basic structure” term does not mentioned in the constitution.
However, Supreme Court is yet to define or clarify as to what constitutes the ‘basic structure’ of the Constitution.
● Origin And Evolution Of Basic Structure Doctrine:
● Shankari Prasad case 1951:
Question of amenability of FUNDAMENTAL RIGHTS under Art 368; challenged first CAA (Fundamental Right to Property) 1951.
Parliament can abridge or take away any of the FR by enacting a constitutional amendment act and such a law will not be void under 13 (‘law’ in Art. 13 includes only ordinary laws and not constituent laws)
● Golakhnath case 1967
SC ruled that the FR as ‘transcendental and immutable’ position
Hence, the Parliament cannot abridge or take away any of fundamental rights.
● 24th CAA 1971
Asserted parliament has the power to abridge or take away any of the FR under Art. 368 and such an act will be out of ambit of meaning of ‘law’ under Art 13.
● Kesavananda Bharati case 1973:
Overruled its judgement in the Golak Nath case (1967).
Stated that Parliament is empowered to abridge or take away any of the FR.
Laid down a new doctrine of the ‘basic structure’ of the Constitution.
Ruled that the constituent power of Parliament under Art. 368 does not enable it to alter the ‘basic structure’ of the Constitution.
Parliament cannot abridge or take away a Fundamental Right that forms a part of the ‘basic structure’ of the Constitution.
● Effects Of Kesavananda Bharti Case:
It has set specific limits to the Parliament’s power to amend the Constitution.
It allows the Parliament to amend any and all parts of the Constitution subject to basic structure.
It places the Judiciary as the final authority in deciding if an amendment violates basic structure and what constitutes the basic structure.
● Indira Nehru Gandhi case 1975:
Doctrine of basic structure of the constitution was
42nd CAA 1976 –
Amended Art. 368 – no limitation on the constituent power of PARLIAMENT.
Any amendment cannot be questioned in any court on any ground.
● Minerva mills case 1980 –
Invalidated provisions of 42nd CAA as it excluded judicial review (basic feature)
Limited amendment power of parliament is part of basic structure.
PARLIAMENT cannot expand its amending power under article 368 into unlimited.
● Waman Rao case 1981-
SC clarified that doctrine would be apply to constitutional amendments enacted after April 24, 1973 (Kesavananda Bharati case) (Including 9th schedule)
● Present position
Parliament (under Art. 368) can amend any part of the Constitution including the FUNDAMENTAL RIGHTS subject to the ‘basic structure’ doctrine.
● Components/Elements – from Judicial Pronouncements
● Kesavananda Bharati case
Chief Justice Sikri, CJI:
Supremacy of the Constitution
Republican and democratic form of government
Secular character of the Constitution
Separation of powers between the legislature, executive and the judiciary
Federal character of the Constitution
● Justices Shelat, J. and Grover, J.:
1. The mandate to build a welfare state contained in the Directive Principles of State Policy.
2. Unity and integrity of the nation
3. Sovereignty of the country
● Justices Hegde, J. and Mukherjea, J.:
1. Democratic character of the polity
2. Unity of the country
3. Essential features of the individual freedoms secured to the citizens
4. Mandate to build a welfare state Unity and integrity of the nation
● Justice Jaganmohan Reddy, J.:
1. Equality of status and the opportunity
2. Sovereign democratic republic
3. Justice – social, economic and political
4. Liberty of thought, expression, belief, faith and worship
● Indira Nehru Gandhi v. Raj Narain, 1975:
Justice H.R. Khanna:
Democracy is a basic feature of the Constitution and includes free and fair elections.
● Justice K.K. Thomas :
Power of judicial review is an essential feature.
● Justice Y.V. Chandrachud:
Sovereign democratic republic status
Equality of status and opportunity of an individual
Secularism and freedom of conscience and religion
Government of laws and not of men i.e. the rule of law
● Nachane, Ashwini Shivram v. State of Maharashtra, 1998:
The doctrine of equality enshrined in Art.14 of the Constitution, which is the basis of the Rule of Law, is the basic feature of the Constitution.
● Raghunath Rao v. Union of India case, 1993:
The unity and integrity of the nation and Parliamentary system.
● Bommai v. Union of India,1994 and Poudyal v.Union of India, 1994:
Secularism and “Democracy and Federalism are essential features of our Constitution and are part of its basic structure.”
● Sampath Kumar v. Union of India (1987), L.Chandrakumar v. Union of India (1997), Waman Rao v. Union of India(1981), Subhesh Sharma v. Union of India (1991), Minerva Mills v.Union of India(1980):
“Judicial review is a part of the basic constitutional structure and one of the basic features of the essential Indian Constitutional Policy.” Several Articles in the Constitution, such as Arts.32, 136, 226 and 227, guarantee judicial review of legislation and administrative action.
● Kihoto hollohan Vs. Zachillhu, 1992:
Democracy is a part of thebasic structure of our Constitution, and rule of law; and free and fair elections are basic features of democracy.
● Chandra Kumar v. Union of India (1997):
Chief Justice Sikri
The supremacy of the constitution.
A republican and democratic form of government.
The secular character of the Constitution.
Maintenance of the separation of powers.
The federal character of the Constitution.
● Justices Shelat and Grover
Maintenance of the unity and integrity of India
The sovereignty of the country
The sovereignty of India
The democratic character of the polity
The unity of the country
Essential features of individual freedoms
The mandate to build a welfare state
In a plethora of various other cases:
Independence of judiciary is a basic feature of the Constitution as it is the sine qua non of democracy
● Criticism of Basic Structure:
No constitutional basis and amounts to rewriting of constitution.
The doctrine does not have a textual basis. There is no provision stipulating that this Constitution has a basic structure and that this structure is beyond the competence of amending power.
It is an illegitimate infringement of judiciary on principal of majority rule.
The attempt by a constitutional court to review the substance of the constitutional amendments would be dangerous for a democratic system in which the amending power belongs to the people or its representatives, not to judges.
What constitutes basic structure is matter of subjectivity.
Each judge defines the basic structure concept according to his own subjective satisfaction. This leads to the fact that the validity of invalidity of the Constitution Amendment lies on the personal preference of each judge and the judges will acquire the power to amend the Constitution
Translates judiciary into third decisive chamber of parliament.
Amending the Constitution is the duty of the two houses of the Parliament. But by invoking the basic strcuture doctrine the Judiciary
acts as the third house and thereby renders the work done by the Parliament meaningless.
Amending the Constitution even to change the original intention of the Constitution framers,
An amendment to a Constitution in present times may be necessary even to change the original intention of the Constitution framers, which may not augur well for the subsequent generation which is to work with the Constitution. Therefore to hold that an amendment not falling in the line with the original intention of the founding fathers is not valid.
● Significance & Arguments in Favour of Basic Structure:
The Basic Struccture doctrine is one of the biggest contributions of Indian Judiciary to theory of constitutionalism.
The doctrine has helped in maintaining supremacy of the Constitution and has prevented its destruction by a temporary majority in Parliament.
Seeks to preserve constitutional principles and basic ideals envisioned by founding fathers.
Privileges uncertain democracy over certain tyranny.
It acts as a limitation upon the constituent power and has helped in arresting the forces which may destabilize the democracy.
Parliament does not and should not have an unlimited power to amend the Constitution. This basic structure doctrine, as future events showed, saved Indian democracy.
In the absence of the doctrine, India would most certainly have degenerated into a totalitarian State or had one-party rule. For example, the amendments that were made during the Emergency would have derailed the democratic set up of our Constitution.
Judiciary applied doctrine responsibly and threshold has set very high.
99th CAA 2015 of NJAC had struck down on grounds of violation of basic structure of constitution, doctrine applied almost gap of 35 years.
#polity
#basicstructureofconstitution #basicstructuredoctrine #basicstructure #Constitution
#ksrpost
30-12-2022.
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