Analysis of Constitutional change

Article 368 in Part XX of the Constitution deals with the powers of the Parliament to amend (i.e. to modify) the Constitution and its procedure. There are 3 types of amendments in the Indian Constitution.

1. Simple Majority

• Bills passed in this way are not deemed as ‘Constitutional Amendment Bill’.
• 50% + 1 members of each House Present and Voting

2. Special Majority

• Majority of 2/3rd of Voting & 50% of the total strength in each House.

3. Special Majority of Parliament and Consent of States

• Special Majority in both the Houses + Consent of half of the states

Is disqualification under anti-defection law judicially reviewable? Does anti-defection law curtail the right of free speech of legislators?

The Tenth Schedule of Indian Constitution is popularly known as the Anti-Defection Act. The main intent of the law was to deter “the evil of political defections” by legislators motivated by the lure of office or other similar considerations.

The Supreme Court in Kihoto Hollohan v. Zachilhu held that there may not be any judicial intervention until the presiding officer gives his order. However, the final decision is subject to appeal in the High Courts and the Supreme Court. It was further noted that the law does not violate any rights or freedoms, or the basic structure of parliamentary democracy. 

Significance of Golaknath v. State of Punjab-

The Supreme Court stated that the fundamental rights cannot be amended even if such a move received an unanimous approval of both the houses as they were sacrosanct in nature which overruled the judgement in Shankari Prasad v. Union of India.

AMENDMENT OF FUNDAMENTAL RIGHTS

While talking about amenability of the constitution we have to refer to Shankari Prasand v. Union of India wherein the first amendment was challenged and it was made to be a stepping stone for challenge to other amendments made in the future. The case upheld the supremacy of the Parliament over the Judiciary by declaring that amendments could be made by way of constituent powers and applying harmonious construction. As per the majority opinion the makers of the Constitution could not have thought of making fundamental rights indisputable, so much so that they are not subjected even to an amendment. After about 13 years the case of Sajjan Singh came challenging the 17^th amendment, wherein Justice Mudhokar laid out the foundation for the basic structure doctrine. While deciding upon the cases that form jurisdictional conflict, generally the rule of ‘pith and substance’ is followed, and when the question is of determining the nature and object of a particular legislature one has to look into the legal effect of that legislature. And if the nature of such legislation is determined to be within the preview of the Parliament, the same cannot be held invalid merely on the instance of it falling under state legislature.

BASIC STRUCTURE DOCTRINE

This Constitutional standoff reached a crucial stage in Kesavananda Bharati v. Territory of Kerala. Decided in 1973 by an uncommon thirteen judges, it is generally viewed as a standout amongst the most significant Indian Established law cases. Even with parliamentary and open weight, the Court overruled GolakNath. All makes a decision about held that 24th amendment is substantial as Article 368 gives capacity to alter all or any of the arrangements of Constitution. Greater part of judges held that judgment in Golaknath‟s case wasn’t right and that the ability to alter was especially there under Article 368. Seven judges took the view that despite the fact that the crucial rights could be corrected, a specific “fundamental structure” to the Constitution could not. The state ‘fundamental structure’ was presented out of the blue by M.K. Nambiar and different guidance while contending for the applicants in the Golaknath case, however it was just in Kesavananda Bharati case that the idea surfaced in the content of the pinnacle court’s decision. The fundamental structure principle was characterized, and it was held that the ability to alter is channelized and restricted. Khanna J. alongside other six judges concurred with this hypothesis. Rest of the six judges held that it is a flat-out power in hands of the parliament. So Supreme Court with a dominant part of 7:6 chose that a few portions of the Constitution which gives it a significance can’t be changed or revised. In any case, just six out of the seven larger part judges, with Khanna J. disagreeing, held that key rights structure the essential structure of the Constitution and henceforth are un-amendable. Thus, again Supreme Court with a larger part of 7:6 held that in the key rights essentially are amendable. 

So far as the issue of amendability of the Constitution is concerned, it was held that Constitution is amendable to the degree it doesn’t influences the essential structure of the Constitution. Anyway, this judgment was not explicit with respect to what frames the fundamental structure of the Constitution. Judges gave their very own precedents of essential structure and specified few of them, yet that rundown was not held to be thorough. There was no unanimity of assessment inside the larger part see either. Sikri, C.J. clarified that the idea of essential structure included • 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

He said that the Constitution would not act naturally without the principal opportunities and the order principles. Keshavanad’s case demonstrated that the Parliament isn’t sovereign in Indian setting and its control isn’t supreme however channelized and controlled.

DEMOCRACY BASED CHALLENGES

The choice in Indira Nehru Gandhi was a bold choice reminding the parliament its place in the constitution. The Parliament was instructed that they are not the only one in this majority rules system and that Judiciary is there to maintain the Constitution and spare Democracy from destructive activities of Parliament. The court for this situation maintained the guideline of Separation of Power which constructs balanced governance in the popular government to watch that there is no kind of infringement and violating. The Government of the day so as to spare itself from Allahabad High Court choice passed the draconian 39th amendment. It was of the view that in the midst of Emergency the legal executive will likewise stoop down and surrender its obligation to maintain Constitution. Nonetheless, the Judiciary settled the emergency and struck down the draconian change went to approved an invalid political decision. The Minerva Mills case emphasized over the balance between fundamental right and DPSP as being part of the basic structure of the constitution.  Basic structure of the constitution is of prime importance as it prevents the parliament from having unconditional power and becoming the master of law itself. One certainty that came from the fight between judiciary and parliament was that all laws and amendments are now subject to judicial review. Parliament’s power to amend the constitution is not absolute and the supreme court is the final arbiter over and interpreter of all constitutional amendments. Therefore, it is a well settled notion that none is above the constitution, neither the parliament nor the judiciary. 

The Test of Basic Structure Doctrine

Nearly thirty years after the after the doctrine took place in India, there has been never ending confusion as to what consist of the basic structure doctrine and what does not. In the catena of judgements, the courts have maintained its view as to maintain the spirit of the constitution.

The question which arose here was what constitutes the basic structure doctrine and what is the way to possibly determine if a law is inconsistent with the basic structure doctrine.

In M. Nagraj v. Association of India the court said that the revision ought not to crush the Constitutional personality and that “those principles that constitute the constitutional identity and stand at the pinnacle of the hierarchy of the constitutional values form part of the basic structure doctrine.

In I.R. Coelho v. Province of Tamil Nadu further built up its understanding of article 31B, which made the Ninth Schedule to secure specific laws from major rights audit. It is interesting to note that only thirteen Acts, all dealing with agrarian reforms, were initially placed in the Ninth Schedule. In course of time that number swelled to 284. Many of the Acts, which had no relation with agrarian or socio-economic reforms, were indiscriminately placed in the Ninth Schedule.

In the context of amendments to schedule IX of the constitution, the court concluded that the validity of each new constitutional amendment must be judged on its own merits. The Court reasserted in Coelho that many, if not all, of the current essential rights were a piece of the fundamental structure of the Constitution, and that the laws in the Ninth schedule would need to be tried by them. The court articulated a distinction between what is termed as the “essence of the rights test” and the “rights test” corresponding to the distinction between the foundational value behind an express right and the express right provided for in the constitutional text in this context. Both these decisions complement each other in structuring a matter-of-fact assessment of the doctrine and a method of its application.

JUDICIAL REVIEW

Under the principle of the separation of powers, the review-role of the exercise of the power of amendment by the legislature, usually supported by the executive, is clearly entrusted to the judiciary. Amongst the several contents of basic structure, by the contribution of landmark judgement, Waman Rao v. Union of India (Waman)and M. Nagaraj v Union of India (Nagaraj), this has been settled that judicial review is amongst one of the aspects of  the doctrine of basic structure. The debate starts with the seminal judgment in Waman’s case concerning the issue of the validity of the original and revised Articles 31A, 31B & 9th schedule with respect to the basic structural doctrine to which the courts responded that the amendments were best used to strengthen the constitution rather than weaken  it because it made “the constitutional ideal of equal justice a living truth”. The Supreme Court tested and affirmed the validity of Articles 31A, 31B and 9^th schedule. A significant perspective of judicial review shines upon the principle of separation of powers, effectuating the mechanism of checks and balances. Same is ruled in the case of P. Sambamurthy & Ors.  v.  State of Andhra Pradesh & Anr which invalidated Art. 371-D (5) on the basis of it giving excessive power in hands of the state legislature. Court said, “if the exercise of power of judicial review can be set at naught by the state government by overriding the decision given against it, it would sound a death knell of the rule of law”. The last case and a very significant one to answer the scope of  judicial review under basic structure is L. Chandra Kumar v. UOI which held Art. 323-A & Art. 323-B unconstitutional on the ground of these articles excluding the jurisdiction of Supreme Court u/a 32 and that of High Court u/a 226. The courts stressed on judicial review being one of the basic features of constitution thus providing immunity against dissolution of its authority via handling judicial power to administrative tribunals and excluding jurisdiction of SC & HC. Taking the trajectory of Kesavananda Bharti to Sambamurthy, where judicial review evolved as a mere aspect of basic structure,  the scope of judicial review is not as sternly defined instead mapping the Kihoto Hollohan v. Zachillhu where the court left the question open-ended, the position of judicial review under basic structure was sealed via L. Chandra case. 

CONCLUSION

With the contradictory values of good governance, judicial restraint and judicial activism, in our minds due to judiciary being in news as well as our textual knowledge, the amendment clause judgements become more relevant as it brought into the same debate in the foreground and its relevance to the liberties we enjoy now. John Rawls, US political philosopher advanced a hypothetical state which would make fair decisions over social justice and allocation of resources. He believed that any society designed as such would adhere to two principles of equal liberty and the maximum principle which gives us equal freedoms compatible to each other’s and allocates resources optimising the profit. The popular question arises of who has the supreme law-making power: judiciary or legislature? Several interest-groups may argue on either side of power supremacy nonetheless both play equally significant part in evolution of rules. Although the concept of judicial independence is partly to keep away the threat of tyranny but if exposed to unlimited judicial independence without being counterbalanced by accountability, could lead to judicial oligarchy. “The rule of law is the cornerstone of good governance because it acts against the misuse of the power. It is based on the notion that freedom exists only as long as it is restricted by the rule of law and that power will always corrupt. It is the rule which both the governors and the governed must observe, be impartially administered and treat all those who seek its remedies or against whom its remedies are sought equally”. “Are they to be independent of THE PEOPLE? If they are to be independent of the people, and the people are not also to be independent of the judges; we may as well call them superior to the people, at once, and be done with it.”

References

1. I.C. Golak Nath v. State of Punjab, (1967) 2 S.C.R. 762, 819
2. Shankari Prasad v. Union of India and State of Bihar, 1951 AIR 458,1952 SCR 89
3. Singh, M.P. 1994. V.N. Shukla’s Constitution of India. 9th Ed.
4. Agarwal, S.L. “CONSTITUTION SEVENTEENTH AMENDMENT ACT, 1964: ITS VALIDITY.” Journal of the Indian Law Institute 7, no. 3 (1965): 252-61. http://www.jstor.org/stable/43949825.
5. Sajjan Singh v. State of Rajasthan, A.I.R. 1965 S.C. 845
6. Scott, The Canadian Constitution 36(1918) 
7. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461.
8. Shukla, V. N.: Constitution of India, 10th edition, (Lucknow, East Book Company, 2009)
9. Krishnaswamy, S.: Democracy and Constitutionalism in India—A Study of the Basic Structure Doctrine, (New Delhi, Oxford University Press, 2009
10. The Hindu. (2019). Legitimacy of the basic structure. https://www.thehindu.com/opinion/lead/legitimacy-of-the-basic-structure/article
11. M. Nagraj v. Association of India, AIR, 2007 SC 71
12. I.R. Coelho v. Province of Tamil Nadu, AIR,2007 SC 861
13. Kumar, Virendra. “BASIC STRUCTURE OF THE INDIAN CONSTITUTION: DOCTRINE OF CONSTITUTIONALLY CONTROLLED GOVERNANCE [From Kesavananda Bharati to I.R. Coelho].” Journal of the Indian Law Institute 49, no. 3 (2007): 365-98. http://www.jstor.org/stable/43952120.
14. Waman Rao v. UOI, (1981) 2 SCC 362
15. M. Nagaraj v. UOI, (2006) 8 SCC 212
16. Vijaya Narain. Shukla and Mahendra Pal Singh, V.N. Shuklas Constitution of India, 13th ed. (Lucknow: Eastern Book Company, 2017).
17. P. Sambamurthy & Ors. v. State of Andhra Pradesh & Anr, (1987) 1 SCC 362  
18. L. Chandra Kumar v. UOI, (1997) 3 SCC 261
19. Kihoto Hollohan v. Zachillhu, AIR 1993 SC 412
20. Iain MacLean, The Concise Oxford Dictionary of Politics (Oxford: Oxford University Press, 1996)
21. E. C. S. Wade and A. V. Dicey, Introduction to the Study of the Law of the Constitution (London: Macmillan, 1985)

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