Shankari Prasad Case: –
In Shankari Prasad v Union of India, the Supreme Court upheld the validity of the First amendment and held that the Fundamental Rights can be amended. The Court did not agree with the arguments of the petitioner and restricted the scope of Article and held that there is difference between the Constituent power and the ordinary legislative power of the Parliament. Article 13 is applicable to the laws made by the Parliament in its ordinary exercise of power, not on the Constitutional amendment passed in exercise of the Constituent power of the Parliament. The court also held that the Article 368 and Article 13 are in conflict with each other and thus the principle of harmonious construction needs to be applied. The court thus disagreed with the view that the Fundamental Rights are inviolable and can not be amended. By applying the procedure as laid down in Article 368 of the Indian Constitution, the Fundamental Rights can also be amended.
Sajjan Singh Case: –
In 1964, the Constitutional validity of the Seventeenth amendment of the Indian Constitution was challenged in the famous case of Sajjan Singh v State of Rajasthan on the ground that it adversely affected the right to property.The court reiterated the view given in Shakari Prasad case. It held that the power of amendment can be applied on each and every provision of the Constitution. It again drew the distinction between the ordinary law and the Constitutional amendments and held that Article 13 is not applicable on Constitutional amendments. The Minority judgment was delivered by Justice Hidyatullah and Justice Mudholkar in separate judgments.
Justice Hidyatullah was of the view that there appears to be no reason to believe that fundamental rights are not really fundamental and all the assurances given in Part III are play things for a simple majority and can be amended like other parts of the Constitution. Justice Mudholkar was of the view that the every Constitution has certain features which are basic in nature and those features can not be changed.
Golaknath Case: –
Sajjan Singh case also led to varied opinions in the legal arena and the view of the two judges giving the minority judgment also led to debates. Thus again the same issue was again raised before the apex court in the fomous case of IC Golaknath v. State of Punjab. Seventeenth Amendment Act has again been challenged in a determined manner. Eleven judges participated in the decision and they divided into 6: 5. The majority now overruled the earlier two cases and held that the Fundamental Rights were non-amendable through the Constitutional amending process under Article 368. The minority though remained stick to the earlier two decisions.
Twenty Fourth Amendment: –
The following changes were brought by 24th Amendment: –
1. Article 368 was amended and the marginal note was changed from "Procedure for amendment of the Constitution" to "Power of Parliament to amend the Constitution and the procedure therefor." This amendment was brought to clarify that Article 368 provided not only the procedure for amendment but also the power of the Parliament to amend the Constitution.
2. Article 13 (4) of the Indian Constitution was added to the Indian Constitution, which made it clear that Article 13 will not be applicable to Constitutional amendments.
3. Article 368 (3) was added to the Indian Constitution, which stated that Articke shall not be applicable on Constitutional Amendment.
4. Article 368 (1) was added, which stated that the Parliament may by way of addition, variation or repeal any provision of this Constitution.
5. The provision was made that the President shall be bound to give its assent to the Constitutional Amendment.
Twenty Fifth Amendment: –
Twenty Fifth brought the following changes: –
1. Article 19 (1) (f) was delinked from Article 31 (2).
2. Article 31C was added to the Constitution.
3. The word 'amount' was substituted for the word 'compensation' in Article 31 (2).
4. A new provision Article 31C was added.
Twenty Ninth Amendment: –
By twenty ninth amendment, several acts including Kerala land Reforms Act were put in the Ninth Schedule to protect them from judicial review.
Kesavananda Bharati: Issues before the Bench
Kesavanand Bharati, a mutt chief of Kerala, challenged the validity of Kerala Land Reforms Act, 1963. During the pendency of the case, this Act was placed in the Ninth Schedule by 29th Amendment Act. He challenged the validity of the 29th Amendment and he was permitted to challenge the validity of the 24th and 25th Amendment also.
The 13 judges bench was constituted in this famous case of Kesavananda Bharati v State of Kerala, headed by Chief Justice Sikri as the decision of 11 judges bench of Golaknath was under review. Other judges were Justice AN Grover, AN Ray, DG Palekar, HR Khanna, JM Shelat, KK Mathew, KS Hegde MH Beg, P. Jaganmohan Reddy, SN Dwivedi and YV Chandrachud.
The major issues before the bench were
1. Whether the twenty-fourth amendment was unconstitutional or not.
2. Whether Article 13 (2) is applicable on Constituional amendment as well, ie whether the term law in Article 13 includes Constitutional amendment or not.
3. Whether Fundamental Rights can be amended or not.
4. Whether Article 368 as it originally was conferred power on the Parliament to amend the Constituion.
5. Whether twentyfifth amendment was constitutional or not.
6. Whether substitution of the term 'amount' with the term 'compensation' in Article 31 was correct or not.
7. Whether Artilce 31C was valid or not.
8. Whether Directive principles will now be given predence over the Fundamental Rights.
9. Whether twenty ninth amendment was constitutional or not.
Judgment and Principle laid down by the court
The 13 judges bench after listening to the argument for sixty long days, the court passed its judgment which crossed six hundred pages. The Court unanimously decided that the 24th amendment was valid. On the question whether the Fundamental Rights can at all be amended, the bench was divided into 7: 6. The minority was of the view that the Parliament has all power to amend the Constitution including the basic structure. The majority decided that the Parliament can amend any provision of the Constitution but the basic structure should not be destroyed, damaged or abrogated. The court affirmed that the power of the Parliament to amend the Constitution is not unlimited and the judicial review can be applied on it. The majority overruled Golaknath judgment as in the opinion of the bench, apart from fundamental rights, there are several other features and provisions in the Constitution, which are more important and which should not be allowed to be violated. Golaknath made the Fundamental rights non-amendable and this was quite harsh and will put an end to the flexibility of the Constitution. Thus the fundamental rights were allowed to be amended provided it does not abrogate the basic structure of the Constitution and it was held that all fundamental rights are not included in the basic structure, specially right to property is not as such. It was held that the twenty fourth amendment made that explicit what was implicit in Article 368 earlier.
The court also partly upheld the twenty fifth amendment of the Indian Constitution. The court upheld the substitution of the term "amount" for the term "compensation" but the courts also held that the amount must not be arbitrary. The non- applicability of Article 19 (1) (f) to Article 31 (2) was held to be constitutionally valid. The first part of Article 31 C was held valid so that the government can make legislations to give effect to the socio-economic reforms. The latter part of Article 31 C was held to be unconstitutional as it made the laws challenge proof.
Thus a new doctrine called the doctrine of basic structure was laid down in this case by the Supreme Court. Chief Justice Sikri himself expalined the term basic strucure and cited certain instances of the basic structure of the Indian Constitution. This Doctrine of Basic structure was furhter widened by the Supreme Court in a number of cases like Indira Gandhi case and Minerva Mills case.
Doctrine of Basic Structure: Widening Horizons
The doctrine of basic structure was laid down in Kesavananda Bharati v State of Kerala. But the major question which arises is what the basic structure of our Constitution is. The majority judges tried to explain this term and gave several instances for the same.
Chief Justice Sikri indicated that Basic structure consists of the following features:
1. The supremacy of Constitution
2. The republican and democratic forms of government
3. The secular character of Constitution
4. Maintenance of separation of power
5. The federal character of the Constitution
But he also held that these features are not exhaustive and includes other features also which the court may from time to time lay down.
Justices Shelat and Grover added another three features as basic structure:
1. The mandate to build a welfare state contained in the Directive Principles of State Policy
2. Maintenance of the unity and integrity of India
3. The sovereignty of the country
Justices Hegde and Mukherjee listed the following features as being the basic structure:
1. The Sovereignty of India
2. The unity of the country
3. The democratic character of the polity
4. Essential features of individual freedoms
5. The mandate to build a welfare state
Justice Jaganmohan Reddy referred the features contained in the Preamble only as the basic structure, ie the following features:
1. A sovereign democratic republic
2. The provision of social, economic and political justice
3. Liberty of thought, expression, belief, faith and worship
4. Equality of status and opportunity
Indira Nehru Gandhi v Raj Narayan
In Indira Nehru Gandhi v Raj Narayan, an appeal was filed relating to the validity of the election of Indira Gandhi as the Prime Minister, which was set aside by Allahahbad High Court. Pending the appeal, the Parliament passed the 39th Constitutional Amendment, which introduced a new Article 329A to the Indian Constitution. This Article 329A stated that the election of the Prime Minister and Speaker can not be challenged in any court. It can be rather challenged before a committee constituted by the Parliament itself. The Supreme Court though validated the election of Indira Gandhi but declared 39th Amendment to be unconstitutional as it violated the basic structure of the Constitution. Justice HR Khanna held that the democracy is the basic structure of the Constitution and it includes free and fair election and thus can not be violated. Justice YV Chandrachud listed four basic features which he considered non- amendable:
1. Sovereign democratic republic status
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' ie the rule of law
Minerva Mills v Union of India
In Minerva Mills v Union of India, the Constitutional validity of certain parts of 42nd amendment was challenged. Two more clauses were added to Article 368 of the Indian Constitution. Article 368 (4) stated that no Constitutional amendment can be challenged in any court of law. Article 368 (5) stated that the Parliament shall have unlimited power to amend the Constitution of India. Both these provisions were held to be unconstitutional as they violated the basic structure of the Indian Constitution. The court again expanded the horizon of the term basic strucutre and held that the following are the basic structure of the Indian Constitution: –
1. Judicial Review
2. Limited power of the Parliament to amend the Constitution.
In several other cases also, the doctrine of basic structure has been widened. Thus we can see the widening horizons of the basic structure.
Major Criticisms of Kesavananda Bharati Case: –
The majority decision in the famous case of Kesavananda Bharati has been criticized on various grounds. Prof. Upendra Baxi criticized the judgment of this case which runs for 670 pages that it will lead to an illiterate bar and he …