Basic Structure Doctrine

 

The basic structure doctrine is one of the fundamental judicial principles connected with the Indian Constitution.

The doctrine of the basic structure holds that there is a basic structure to the Indian Constitution, and the Parliament of India cannot amend the basic features.

It was in the Kesanvnda Bharati vs State of Kerala case, the Constitutional Bench of the Supreme Court ruled by a 7-6 verdict that Parliament could amend any part of the Constitution so long as it did not alter or amend the basic structure or essential features of the Constitution.

What is the Basic Structure Doctrine?

Indian Constitution is a dynamic document that can be amended according to the needs of society whenever required. Constitution under Article 368 grants power to the Parliament to amend whenever there is a necessity. The Article also lays down the procedure for amendment in detail.

The doctrine of basic structure is nothing but a judicial innovation to ensure that the power of amendment is not misused by Parliament. The idea is that the basic features of the Constitution of India should not be altered to an extent that the identity of the Constitution is lost in the process.

Indian Constitution upholds certain principles which are the governing rules for the Parliament, any amendment cannot change these principles and this is what the doctrine of basic structure upholds. The doctrine as we have today was not present always but over the years it has been propounded and upheld by the judicial officers of this country.

In this article, we would dwell in detail on the evolution of the doctrine of basic structure and what are the features of the Constitution of India that have been regarded as part of the basic structure by the hon’ble courts.

Timeline for Evolution of Basic Structure

Pre – Golak Nath Era

The Constitution of India was amended as early as 1951, which introduced the much-debated Article(s) 31A and 31B to it. Article 31B created the 9th Schedule which stated that any law provided under it could not be challenged for the violation of Fundamental Rights as per Article 13(2) of the Constitution. Article 13(2) states that the Parliament shall not draft any law which abridges the rights conferred under Part III and to that extent it shall be void.

A petition was filed in the Supreme Court of India challenging Article(s) 31A and 31B on the ground that they abridge or take away rights guaranteed under Part III of the Constitution which is against the spirit of Article 13(2) and hence should be declared void. In this case, Shankari Prasad Singh Deo v. Union of India, the Hon’ble Supreme Court held that the power to amend the Constitution including the Fundamental Rights is conferred under Article 368, and the word ‘Law’ as mentioned under Article 13(2) does not include an amendment of the Constitution. There is a distinction between Parliament’s law-making power, that is, the legislative power and Parliament’s power to amend or constituent powers.

After this, several amendments were brought to the Constitution and once again the scope of amendments was challenged in the Sajjan Singh v. State of Rajasthan. The five-judge bench in Sajjan Singh dealt with the validity of the 17th Constitutional Amendment which had added around 44 statutes to the 9th Schedule. Though all of the judges agreed with the decision of Shankari Prasad but for the first time in the concurring opinion by Hidyatullah and Mudholkar JJ doubts were raised on the unfettered power of Parliament to amend the Constitution and curtail the fundamental rights of the citizens.

Golak Nath v. the State of Punjab

In this case, three writ petitions were clubbed together. The first one was by children of Golak Nath, against the inclusion of the Punjab Security of Land Tenures Act, 1953 in the Ninth Schedule. The other two petitions had challenged the inclusion of the Mysore Land Reforms Act in the Ninth Schedule. It is an 11 judge bench decision, wherein the Hon’ble Supreme Court by a majority of 6:5 held that the fundamental rights were outside the purview of the amendment of the Constitution, based on the following reasoning:

• The power of Parliament to amend the Constitution does not subside in Article 368 but it is derived from Article 245, read with Entry 97 of List I of the Constitution. It was very clearly stated that Article 368 only provided for the Procedure of Amendment and nothing more.
• The Court also clarified that the word ‘law’ under Article 13(2) includes within its meaning an amendment to the Constitution. Therefore any amendment against the Fundamental Rights was void.
• The argument that the power to amend the Constitution is a sovereign power, which is over and above the legislative power and hence outside the scope of judicial review was rejected.

However, the 1st, 4th, and 17th Amendments were not declared invalid by the Court as the ruling was given a prospective effect. This meant that no further amendments could be brought into the Constitution violating the fundamental rights. But the cases of Shankari Prasad and Sajjan Singh were declared bad in law by the Court to the extent that Article 13(2) does not include a Constitutional amendment under Article 368.

Constitution 24th Amendment

The Golak Nath case left the Parliament devoid of its powers to amend the Constitution freely, therefore to restore the earlier position; the 24th Constitutional Amendment was brought forth. The Amendment Act not only restored the earlier position but extended the powers of Parliament. The following changes were made through the amendment:

• A new clause (4) was added to Article 13 which stated that ‘nothing in this Article shall apply to any amendment of this Constitution made under Article 368’.
• The marginal heading of Article 368 was changed to ‘Power of Parliament to amend the Constitution and Procedure, therefore’ from ‘Procedure for amendment of the Constitution.
• Article 368 was provided with a new sub-clause (1) which read ‘notwithstanding anything in this Constitution, Parliament may, in the exercise of its Constituent Power amend by way of addition, variation, or repeal any provision of this Constitution in accordance with the procedure laid down in this Article.
• President was put under an obligation to give assent to any Bill amending the Constitution by changing words from ‘it shall be presented to the President who shall give his assent to the Bill and thereupon’ to ‘it shall be presented to the President for his assent and upon such assent being given to the Bill’.
• A reassuring clause (3) was also added to Article 368, which again clarified that ‘nothing in Article 13 shall apply to any amendment made under this Article.

Kesvananda Bharati v. the State of Kerala

This case was initially filed to challenge the validity of the Kerala Land Reforms Act, 1963. But the 29th Amendment of the Constitution placed it under the Ninth Schedule. The petitioner was permitted to not only challenge the 29th Amendment but also the validity of the 24th and 25th Amendments.

The historic judgment was delivered by a 13 judge bench and with the majority of 7:6; they overruled the Golak Nath case. It was held that the power of Parliament to amend the Constitution is far and wide and extends to all the Articles but it is not unlimited to an extent that it destroys certain basic features or framework of the Constitution.

The Hon’ble Supreme Court, however, held that the 24th Amendment was valid as it only states what was present before implicitly. It does not enlarge the powers of Parliament; Article 368 always included the power and procedure to amend the Constitution.

The judges did not provide what constitutes the basic structure but provided an illustrative list of what may constitute the basic structure. As per Sikri, C.J., the basic structure constitutes the following elements:

• The supremacy of the Constitution
• Republican and Democratic forms of Government
• Secular character of the Constitution
• Separation of Powers between the legislature, the Executive, and the Judiciary
• Federal Character of the Constitution

Shelat and Grover, JJ., added the following to the above list:

• The mandate to build a welfare state contained in the Directive Principles of State Policy
• Maintenance of the unity and integrity of India
• The sovereignty of the country

Hegde and Mukherjee, JJ., had their list of the elements of the basic structure, which included:

• The sovereignty of India
• The democratic character of the polity
• The unity of the country
• Essential features of individual freedom
• The mandate to build a welfare state

Whereas Jaganmohan Redd, J., believed that it was the Preamble that laid down the basic features of the Constitution, which are:

• A sovereign democratic republic
• The provision of social, economic, and political justice
• Liberty of thought, expression, belief, faith, and worship
• Equality of status and opportunity

After this judgment, the general opinion was that the judiciary is trying to create an overhaul over the Parliament, but soon an opportunity was laid down before the Court to examine the doctrine.

Evolution of Basic Structure Doctrine

Indra Nehru Gandhi v. Raj Narain was the case in which the faith in the doctrine was affirmed and established. In this case, the appellant had filed an appeal against the decision of Allahabad High Court invalidating her election as the Prime Minister. While the appeal was still pending at the Supreme Court, the 39th Amendment was enacted and enforced which stated that no court has jurisdiction over the election disputes of the Prime Minister.

The Hon’ble Supreme Court relying on the decision of Kesavananda Bharati stated that democracy was an essential feature of the Constitution and forms part of the basic structure. The bench added certain other features to the list of the basic structure, which was: Rule of Law and the power of Judicial Review.

The basic structure then came up in the case of Minerva Mills Ltd. v. Union of India, wherein the Supreme Court provided clarity to the doctrine and laid down that the power of amendment under Article 368 is limited and exercise of such power cannot be absolute. A limited amending power was very well part of the basic structure doctrine of the Constitution. Further, the harmony and balance between fundamental rights and directive principles are also part of the basic structure, and anything that destroys the balance is an ipso facto violation of the doctrine.

The case of L. Chandra Kumar v. Union of India again stated that the power of judicial review under Article 32 of the Supreme Court and Article 226 of the High Court is part of the basic structure doctrine and these powers cannot be diluted by transferring them to administrative tribunals.

Conclusion

Today there is no dispute regarding the existence of the doctrine, the only problem that arises time and again is the contents of the same.

Certain contents have been reaffirmed again and again by the Courts whereas some of them are still in the process of deliberations.

The basic structure doctrine grants the fine balance between flexibility and rigidity that should be present in the amending powers of any Constitution.

Bibliography

• ‘Important Judgments that transformed India’ by Alex Andrews George
• M.P. Jain, Indian Constitutional Law
• V.N. Shukla, Constitution of India
• Krishan Keshav, Singhal’s Constitutional Law – II
• A critique – Legal Service India
• Doctrine – Wikipedia
• Minera Mils Case – Law Octopus
• Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 455
• Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845
• Golak Nath v. State of Punjab, AIR 1967 SC 1643
• Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461
• Indra Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299
• Minerva Mills Ltd. V. Union of India, AIR 1980 SC 1789
• Chandra Kumar v. Union of India, AIR 1997 SC 1125

The judiciary

The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law in legal cases.

                      Supreme court of india

          

President of India – Discretionary Powers You Never Knew Existed!

Indian President is not a ceremonial head, unlike many other countries.

All important decisions regarding the country are taken in the name of Indian President, though most of these will be based on the binding advice given by Council of Ministers(CoM), as per Article 74 of Indian Constitution.

But there are certain exceptions, where he can use his discretionary powers. Let’s learn more about that.

Discretionary powers of the President: Not based on the advice of CoM

The discretionary powers of the Indian president are not explicitly mentioned in the Indian constitution. But cases, where the Indian President do not act on the advice of CoM, can be understood if one carefully read the provisions related to the Indian President.

The cases of discretionary powers are as below:

#1: Suspensive Veto:

The President has discretionary power when he exercises suspensive veto ie. when he returns a bill (not money bill) for reconsideration of the parliament.

However if the bill is passed again by the Parliament with or without amendments and presented again to the President, it is obligatory for him to give his assent to the bill.

#2: Pocket Veto:

This is not a provision mentioned in the Indian constitution, but this is a possible situation when the President of India can use his discretionary power. In this case, the President neither ratifies nor reject nor return the bill, but simply keeps the bill pending for an indefinite period.

As the time limit within which the President has to take the decision with respect to a bill presented to him for assent, has not been mentioned in the constitution, in effect the inaction of the President stops the bill from becoming an act.

#3: President can seek information from Prime Minister:

Under article 78 the President enjoys the right to seek information from the PM regarding the administration of the affairs of the union.

Under the established convention, the President has the right to warn or encourage the Council of Minister (CoM) in the exercise of its power.

#4: Case of no sitting of both houses:

Under Article 85, the President can summon each House of Parliament to meet at such time and place as he thinks fit, to ensure that six months shall not intervene between its last sitting in one session and the date appointed for its sitting in the next session.

#5: Case of no majority:

When no political party or coalition of parties enjoy the majority in Lok Sabha, then the President has discretion in inviting the leader of that party or coalition of parties who in his opinion is able to form a stable government.

#6: Case of no-confidence with CoM- dissolving Loksabha:

It is for the president to decide if he should dissolve Loksabha or not when CoM loses the majority in Lok Sabha.

Note: The President can dissolve Lok Sabha only on the advice of CoM but the advice is binding only if the government is a majority government.

#7: Case of no-confidence with CoM- dissolving CoM:

It is for the president to decide if he should dissolve CoM or not when CoM loses the majority in Lok Sabha.

#8: Case of a caretaker government

A caretaker government does not enjoy the confidence of Lok Sabha and hence it is not expected to take major decisions but only to make the day-to-day administrative decisions. It is for the President to decide the day-to-day decisions.

The advice given by CoM binding on Indian President: Article 74

Article 74 of the Indian Constitution says that

• (1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice:

Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.

• (2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.”

Powers exercised on the advice of CoM (non-discretionary powers)

President of India is vested with Legislative, Executive and Judicial powers. But as the advice given by CoM is binding on Indian President, in reality, most of these powers rest with the COM; but decisions are taken in the name of President of India. See some examples.

• President’s rule – He can rule the whole nation or individual states at times of emergency. The President can declare State, National and Financial Emergencies. Punjab, Jharkhand, Jammu and Kashmir and many other states have been under President’s Rule.
• Commander-in-Chief of Indian Armed forces – The President is the Commander-in-Chief of the Indian Armed Forces.
• The President appoints our State governors, Supreme Court and High Court Judges, and the Chief Justice.
• The President can summon and dissolve parliament sessions.
• A ‘bill’ passed in the parliament can become an ‘act’ only after the President’s approval.
• The President of India has the power to reduce the degree of punishment or pardon criminals – even death sentences can be absolved on appeal.
• The President is the head of Indian State while Prime Minister is the head of Indian Government.
• Ambassadors and High Commissioners representing our country are appointed by the President.
• President appoints the Chief Election Commissioner and other Election Commissioners.
• The President delivers the opening address for the first session of the parliament, as well as the first session of a newly elected government, defining the policies of the government.
• IAS or IPS officers (All India Services) by the President of India, based on the advice of UPSC.

The Executive

An executive president is the head of state who exercises authority over the governance of that state, and can be found in presidential, semi-presidential, and parliamentary systems.

They contrast with figurehead presidents, common in most parliamentary republics, in which the president serves symbolic, nonpolitical roles (and often is appointed to office by parliament) while the prime minister holds all relevant executive power. A small number of nations, most notably Somalia, South Africa and Botswana, have both an executive presidency and a system of governance that is parliamentary in character, with the President elected by and dependent on the confidence of the legislature. In these states, the offices of president and prime minister (as both head of state and head of government respectively) might be said to be combined.

The above examples notwithstanding, executive presidencies are found in presidential systems and semi-presidential systems.

In order to prevent the abuse of power, checks and balances are implemented through the legislative and judiciary bodies. For example, in the United States one method is impeachment whereby the president can be held accountable if others deem their actions unconstitutional, with the most recent example being the impeachment trials of President Donald Trump.

Cut Motions: Policy Cut, Economy Cut, and Token Cut

What is meant by policy cut, economy cut, or token cut motions?

You might have noticed about the Demand for Grants while going through Indian Budget.

These are demands usually made in respect of the grant proposed for each Ministry.

But Parliament being the authority to check the expenditure of the government may not approve all demands.

Cut motions are motions in the parliament moved to reduce the amount of demand.

Cut motions

A motion may be moved to reduce the amount of a demand in any of the following ways:-

1. Disapproval of Policy Cut Motions

• A Disapproval of Policy Cut motion is moved so that the amount of the demand be reduced to Re.1.
• It represents the disapproval of the policy underlying the demand.
• A member giving notice of such a motion shall indicate in precise terms the particulars of the policy which he proposes to discuss.
• The discussion shall be confined to the specific point or points mentioned in the notice and it shall be open to members to advocate an alternative policy.

2. Economy Cut Motions

• An Economy Cut motion is moved so that the amount of the demand be reduced by a specified amount.
• It represents the economy that can be effected.
• Such a specified amount may be either a lump-sum reduction in the demand or omission or reduction of an item in the demand.
• The notice shall indicate briefly and precisely the particular matter on which discussion is sought to be raised and speeches shall be confined to the discussion as to how the economy can be effected.

3. Token Cut Motions

• A Token Cut motion is moved so that that the amount of the demand be reduced by Rs.100.
• This is to ventilate a specific grievance that is within the sphere of the responsibility of the Government of India.
• The discussion thereon shall be confined to the particular grievance specified in the motion.

Admissibility of cut motions

In order that notice of motion for reduction of the amount of demand may be admissible, it shall satisfy the following conditions, namely:-

1. it shall relate to one demand only;
2. it shall be clearly expressed and shall not contain arguments, inferences, ironical expressions, imputations, epithets or defamatory statements;
3. it shall be confined to one specific matter which shall be stated in precise terms;
4. it shall not reflect on the character or conduct of any person whose conduct can only be challenged on a substantive motion;
5. it shall not make suggestions for the amendment or repeal of existing laws;
6. it shall not refer to a matter which is not primarily the concern of the Government of India;
7. it shall not relate to expenditure charged on the Consolidated Fund of India;
8. it shall not relate to a matter which is under adjudication by a court of law having jurisdiction in any part of India;
9. it shall not raise a question of privilege;
10. it shall not revive discussion on a matter which has been discussed in the same session and on which a decision has been taken;
11. it shall not anticipate a matter which has been previously appointed for consideration in the same session;
12. it shall not ordinarily seek to raise a discussion on a matter pending before any statutory tribunal or statutory authority performing any judicial or quasi-judicial functions or any commission or court of enquiry appointed to enquire into, or investigate any matter: Provided that the Speaker may in his discretion allow such matter being raised in the House as is concerned with the procedure or stage of enquiry, if the Speaker is satisfied that it is not likely to prejudice the consideration of such matter by the statutory tribunal, statutory authority, commission or court of enquiry;
13. it shall not relate to a trivial matter.

Speaker to decide admissibility

The Speaker shall decide whether a cut motion is or is not admissible under these rules and may disallow any cut motion when in his opinion it is an abuse of the right of moving cut motions or is calculated to obstruct or prejudicially affect the procedure of the House or is in contravention of these rules.

Notice of cut motions

If notice of a motion to reduce any demand for the grant has not been given one day previous to the day on which the demand is under consideration, any member may object to the moving of the motion, and such objection shall prevail unless the Speaker allows the motion to be made.