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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