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Despite these defects, it cannot be denied that the process has | proved to be simple and easy and has succeeded in meeting the | changed needs and conditions. The procedure is not so flexible as |
to allow the ruling parties to change it according to their whims. | Nor is it so rigid as to be incapable of adopting itself to the | changing needs. It, as rightly said by K.C. Wheare, ‘strikes a good |
balance between flexibility and rigidity’5. In this context, Pandit | Jawaharlal Nehru said in the Constituent Assembly, ‘While we | want this Constitution to be as solid and permanent as we can |
make it, there is no permanence in a Constitution. There should | be a certain flexibility. If you make any Constitution rigid and | permanent, you stop the nation’s growth, the growth of a living, |
vital, organic people’6 . | Similarly, Dr. B.R. Ambedkar observed in the Constituent | Assembly that, ‘The Assembly has not only refrained from putting |
a seal of finality and infallibility upon this Constitution by denying | the people the right to amend the Constitution as in Canada or by | making the amendment of the Constitution subject to the fulfilment |
of extraordinary terms and conditions as in America or Australia, | but has provided for a facile procedure for amending the | Constitution’7 . |
K.C. Wheare has admired the variety of amendment | procedures contained in the Constitution of India. He said, ‘this | variety in the amending process is wise but rarely found’. |
According to Granville Austin, ‘the amending process has proved | itself one of the most ably conceived aspects of the Constitution. | Although it appears complicated, it is merely diverse’.8 |
NOTES AND REFERENCES | 1. Kesavananda Bharati v. State of Kerala, (1973). | 2. The 24th Constitutional Amendment Act of 1971 made it |
3. Subhas C. Kashyap, Our Parliament, National Book | Trust, 1999, P. 168. | 3a. This provision was added by the 101st Amendment Act |
of 2016. This is related to Article 279-A. | 4. In USA, an amendment can also be proposed by a | constitutional convention called by the Congress |
(American Legislature) on the petition of two-thirds of | the state legislatures. | 5. K.C. Wheare, Modern Constitutions, 1966, P. 43. |
6. Constituent Assembly Debates, Vol. VII, P. 322–23. | 7. Constituent Assembly Debates, Vol. IX, P. 976. | 8. Granville Austin, The Indian Constitution: Cornerstone |
11 Basic Structure of the Constitution | EMERGENCE OF THE BASIC STRUCTURE | The question whether Fundamental Rights can be amended by |
the Parliament under Article 368 came for consideration of the | Supreme Court within a year of the Constitution coming into force. | In the Shankari Prasad case1 (1951), the constitutional validity of |
the First Amendment Act (1951), which curtailed the right to | property, was challenged. The Supreme Court ruled that the | power of the Parliament to amend the Constitution under Article |
368 also includes the power to amend Fundamental Rights. The | word ‘law’ in Article 13 includes only ordinary laws and not the | constitutional amendment acts (constituent laws). Therefore, the |
Parliament can abridge or take away any of the Fundamental | Rights by enacting a constitutional amendment act and such a law | will not be void under Article 13. |
But in the Golak Nath case2 (1967), the Supreme Court | reversed its earlier stand. In that case, the constitutional validity of | the Seventeenth Amendment Act (1964), which inserted certain |
state acts in the Ninth Schedule, was challenged. The Supreme | Court ruled that the Fundamental Rights are given a | ‘transcendental and immutable’ position and hence, the |
Parliament cannot abridge or take away any of these rights. A | constitutional amendment act is also a law within the meaning of | Article 13 and hence, would be void for violating any of the |
Fundamental Rights. | The Parliament reacted to the Supreme Court’s judgement in | the Golak Nath case (1967) by enacting the 24th Amendment Act |
(1971). This Act amended Articles 13 and 368. | It declared that the Parliament has the power to abridge or take | away any of the Fundamental Rights under Article 368 and such |
However, in the Kesavananda Bharati case3 (1973), the | Supreme Court overruled its judgement in the Golak Nath case | (1967). It upheld the validity of the 24th Amendment Act (1971) |
and stated that Parliament is empowered to abridge or take away | any of the Fundamental Rights. At the same time, it laid down a | new doctrine of the ‘basic structure’ (or ‘basic features’) of the |
Constitution. It ruled that the constituent power of Parliament | under Article 368 does not enable it to alter the ‘basic structure’ of | the Constitution. This means that the Parliament cannot abridge |
or take away a Fundamental Right that forms a part of the ‘basic | structure’ of the Constitution. | The doctrine of basic structure of the constitution was |
reaffirmed and applied by the Supreme Court in the Indira Nehru | Gandhi case3a (1975). In this case, the Supreme Court invalidated | a provision of the 39th Amendment Act (1975) which kept the |
election disputes involving the Prime Minister and the Speaker of | Lok Sabha outside the jurisdiction of all courts. The court said that | this provision was beyond the amending power of Parliament as it |
affected the basic structure of the constitution. | Again, the Parliament reacted to this judicially innovated | doctrine of ‘basic structure’ by enacting the 42nd Amendment Act |
(1976). This Act amended Article 368 and declared that there is | no limitation on the constituent power of Parliament and no | amendment can be questioned in any court on any ground |
including that of the contravention of any of the Fundamental | Rights. | However, the Supreme Court in the Minerva Mills case4 (1980) |
invalidated this provision as it excluded judicial review which is a | ‘basic feature’ of the Constitution. Applying the doctrine of ‘basic | structure’ with respect to Article 368, the court held that: |
“Since the Constitution had conferred a limited amending power | on the Parliament, the Parliament cannot under the exercise of | that limited power enlarge that very power into an absolute power. |
Indeed, a limited amending power is one of the basic features of | the Constitution and, therefore, the limitations on that power | cannot be destroyed. In other words, Parliament cannot, under |
basic features. The donee of a limited power cannot by the | exercise of that power convert the limited power into an unlimited | one”. |
Again in the Waman Rao case5 (1981), the Supreme Court | adhered to the doctrine of the ‘basic structure’ and further clarified | that it would apply to constitutional amendments enacted after |
ELEMENTS OF THE BASIC STRUCTURE | The present position is that the Parliament under Article 368 can | amend any part of the Constitution including the Fundamental |
Rights but without affecting the ‘basic structure’ of the | Constitution. However, the Supreme Court is yet to define or | clarify as to what constitutes the ‘basic structure’ of the |
Constitution. From the various judgements, the following have | emerged as ‘basic features’ of the Constitution or elements of the | ‘basic structure’ of the constitution: |
1. Supremacy of the Constitution | 2. Sovereign, democratic and republican nature of the Indian | polity |
3. Secular character of the Constitution | 4. Separation of powers between the legislature, the executive | and the judiciary |
5. Federal character of the Constitution | 6. Unity and integrity of the nation | 7. Welfare state (socio-economic justice) |
8. Judicial review | 9. Freedom and dignity of the individual | 10. Parliamentary system |
11. Rule of law | 12. Harmony and balance between Fundamental Rights and | Directive Principles |
13. Principle of equality | 14. Free and fair elections | 15. Independence of Judiciary |
16. Limited power of Parliament to amend the Constitution | 17. Effective access to justice | 18. Principles (or essence) underlying fundamental rights |
19. Powers of the Supreme Court under Articles 32, 136, 141 | and 1426 | 20. Powers of the High Courts under Articles 226 and 2277 |
Sl. Name of the Case (Year) Elements of the Basic | No. Structure (As Declared by | the Supreme Court) |
1. Kesavananda Bharati case3 1. Supremacy of the | (1973) (popularly known as Constitution | the Fundamental Rights 2. Separation of powers |
Case) between the legislature, | the executive and the | judiciary |
3. Republic and | democratic form of | government |
4. Secular character of the | constitution | 5. Federal character of the |
constitution | 6. Sovereignty and unity of | India |
7. Freedom and dignity of | the individual | 8. Mandate to build a |
welfare state | 9. Parliamentary System | 2. Indira Nehru Gandhi case3a 1. India as a sovereign |
(1975) (popularly known as democratic republic | the Election Case) 2. Equality of status and | opportunity of an |
individual | 3. Secularism and | freedom of conscience |
and religion | 4. Government of laws | and not of men (i.e., |
Rule of Law) | 5. Judicial review | 6. Free and fair elections |
3. Minerva Mills case4 (1980) 1. Limited power of | Parliament to amend | the constitution |
2. Judicial review | 3. Harmony and balance | between fundamental |
rights and directive | principles | 4. Central Coal Fields Ltd. Effective access to justice |
Case8 (1980) | 5. Bhim Singhji Case9 (1981) Welfare State (Socio- | economic justice) |
6. S.P. Sampath Kumar 1. Rule of law | Case10 (1987) 2. Judicial review | 7. P. Sambamurthy Case11 1. Rule of law |
(1987) 2. Judicial review | 8. Delhi Judicial Service Powers of the Supreme | Association Case12 (1991) Court under Articles 32, |
136, 141 and 142 | 9. Indra Sawhney Case13 Rule of law | (1992) (popularly known as |
the Mandal Case) | 10. Kumar Padma Prasad Independence of judiciary | Case14 (1992) |
11. Kihoto Hollohon Case15 1. Free and fair elections | (1993) (popularly known as 2. Sovereign, democratic, | Defection case) republican structure |
12. Raghunath Rao Case16 1. Principle of equality | (1993) 2. Unity and integrity of | India |
13. S.R. Bommai Case17 (1994) 1. Federalism | 2. Secularism | 3. Democracy |
4. Unity and integrity of | the nation | 5. Social justice |
6. Judicial review | 14. L. Chandra Kumar Case18 Powers of the High Courts | (1997) under Articles 226 and 227 |
15. Indra Sawhney II Case19 Principle of equality | (2000) | 16. All India Judge’s Independent judicial system |
Association Case20 (2002) | 17. Kuldip Nayar Case21 (2006) 1. Democracy | 2. Free and fair elections |
18. M. Nagaraj Case22 (2006) Principle of equality | 19. I.R. Coelho Case23 (2007) 1. Rule of law | (popularly known as IX 2. Separation of powers |
Schedule Case) 3. Principles (or essence) | underlying fundamental | rights |
4. Judicial review | 5. Principle of equality | 20. Ram Jethmalani Case24 Powers of the Supreme |
(2011) Court under Article 32 | 21. Namit Sharma Case25 Freedom and dignity of the | (2013) individual |
22. Madras Bar Association 1. Judicial review | Case26 (2014) 2. Powers of the High | Courts under Articles |
226 and 227 | NOTES AND REFERENCES | 1. Shankari Prasad v. Union of India, (1951) |
3a. Indira Nehru Gandhi v. Raj Narain (1975) | 4. Minerva Mills v. Union of India, (1980) | 5. Waman Rao v. Union of India, (1981) |
6. For the subject-matter of these Articles, see Appendix- | 1. | 7. Ibid. |
8. Central Coal Fields Ltd., v. Jaiswal Coal Co. (1980) | 9. Bhim Singhji v. Union of India (1981) | 10. S.P. Sampath Kumar v. Union of India (1987) |
11. P. Sambamurthy v. State of A.P. (1987) | 12. Delhi Judicial Service Association v. State of Gujarat | (1991) |
13. Indra Sawhney v. Union of India (1992) | 14. Kumar Padma Prasad v. Union of India (1992) | 15. Kihoto Hollohon v. Zachilhu (1993) |
16. Raghunath Rao v. Union of India (1993) | 17. S.R. Bommai v. Union of India (1994) | 18. L. Chandra Kumar v. Union of India (1997) |
19. Indra Sawhney II v. Union of India (2000) | 20. All India Judge’s Association v. Union of India (2002) | 21. Kuldip Nayar v. Union of India (2006) |
22. M. Nagaraj v. Union of India (2006) | 23. I.R. Coelho v. State of Tamil Nadu (2007) | 24. Ram Jethmalani v. Union of India (2011) |
PART-II | SYSTEM OF GOVERNMENT | 12. Parliamentary System |
13. Federal System | 14. Centre-State Relations | 15. Inter-State Relations |
12 Parliamentary System | T | he Constitution of India provides for a parliamentary form of |
government, both at the Centre and in the states. Articles | 74 and 75 deal with the parliamentary system at the Centre | and Articles 163 and 164 in the states. |
Modern democratic governments are classified into | parliamentary and presidential on the basis of nature of relations | between the executive and the legislative organs of the |
government. The parliamentary system of government is the one | in which the executive is responsible to the legislature for its | policies and acts. The presidential system of government, on the |
other hand, is one in which the executive is not responsible to the | legislature for its policies and acts, and is constitutionally | independent of the legislature in respect of its term of office. |
The parliamentary government is also known as cabinet | government or responsible government or Westminster model of | government and is prevalent in Britain, Japan, Canada, India |
among others. The presidential government, on the other hand, is | also known as non-responsible or non-parliamentary or fixed | executive system of government and is prevalent in USA, Brazil, |
Russia, Sri Lanka among others. | Ivor Jennings called the parliamentary system as ‘cabinet | system’ because the cabinet is the nucleus of power in a |
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