71st Republic Day : A Look At The Constitutional Amendments Struck Down By Courts On Basic Structure Doctrine

Constitution of a country is the basic norm - Grund Norm - which includes fundamental principles which lay down the foundation of a society. Though the phrase 'basic structure' is not explicitly mentioned in the Constitution, this was recognised in the case of Kesavananda Bharati v. State of Kerala. The 13-judge Constitution Bench of the Supreme Court in this case said that every provision of the Constitution can be amended provided the basic foundation and structure of the Constitution remains the same. The judges in this case mentioned some aspects of the Constitution which could constitute the 'basic features'. They are : (i) Supremacy of the Constitution (ii) Republican and Democratic form of Government (iii) Secular character of the Constitution (iv) Separation of powers between the Legislature, the Executive and the Judiciary (v) Federal character of the Constitution. Article 368 of the Constitution of India grants power to Parliament to amend the Constitution. Various Constitutional Amendments made under the said provision were partly struck down by the Courts on the ground that the basic structure was damaged.On this 71st year of the Indian Republic, lets have a look at Constitutional amendments struck down by Courts applying basic structure doctrine. Indira Gandhi v. Raj Narain This case challenged the Section 46 (f) of the 39th Constitutional Amendment Act, 1975. This amendment inserted Article 329-A which made the elections of President, Prime Minister, Vice-President and the Speaker of Lok Sabh beyond judicial review by any court of law. The same can be challenged only before a committee formed by the Parliament . This was the first case where the landmark decision of Kesavananda Bharati was applied by the apex court. Clauses (4) and (5) of 329-A was proposed to struck down as it restrains the standards of free and fair elections which were regarded as a part of the basic structure of the Constitution. It was said that the only way to reconcile any conflict in an election petition is by a judicial review and Clauses (4) and (5) of 329-A took away these rights. The said amendment also destroyed the separation of powers which is an important part of the basic structure. Thus the apex court declared the impugned Article 329-A (4) and (5) as unconstitutional and void. The apex court said, "Generality and equality are two indelible characteristics of justice administered according to law. The preamble to our Constitution by which the people of India resolved solemnly to secure to all its citizens equality of status and opportunity finds its realization in an ampler measure in Article 14 which guarantees equality before the law and the equal protection of laws to all persons, citizens and non-citizens alike. Equality is the faith and creed of our democratic republic and without it, neither the Constitution nor the laws made under it could reflect the common conscience of those who owe allegiance to them." Minerva Mills v. Union of India In this case Section 4 as well as Section 55 of the Constitution 42nd Amendment Act, 1976 was challenged before the apex court. The court in this case also relied on the majority decision of the Kesavananda Bharati case upholding the basic structure doctrine. Clauses (4) and (5) of Article 368 said no amendment made under the said article be questioned in any court on any ground and that the power to amend the Constitution by the Parliament has no limitation. The court declared that Section 55 of the Constitution 42nd Amendment Act as unconstitutional and void since it damages the basic structure and goes beyond the amending power of Parliament. The apex court said, " Our Constitution is founded on a nice balance of power among the three wings of the State, namely, the Executive, the Legislature and the Judiciary. It is the function of the Judges, nay their duty, to pronounce upon the validity of laws. If courts are totally deprived of that power the fundamental rights conferred upon the people (will become a mere adornment because rights without remedies are as writ in water. A controlled Constitution will then become uncontrolled. Clause (4) of Article 368 totally deprives the citizens it one of the most valuable modes of redress which is guaranteed by Article 32. The conferment of the right to destroy the identity of the Constitution coupled with the provision that no court or law shall pronounce upon the validity of such destruction seems to us a transparent case of transgression of the limitations on the amending power." Samba Murthy v. State of Andhra Pradesh In this case, the writ petition challenged the constitutional validity of the 32nd Constitution (Amendment Act) which inserted Clause (5) of Article 371-D of the Constitution. The said clause dealt with the power conferred on the State Government to modify or annul the final ...

71st Republic Day : A Look At The Constitutional Amendments Struck Down By Courts On Basic Structure Doctrine

Arabhi Anandan

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