Special leave Petition vs Review Petition vs Curative Petition vs Mercy Petition

 

 

Special Leave Petition vs Review Petition vs Curative Petition vs Mercy Petition: What are the differences?

Supreme Court of India has recently passed many important judgments that transformed India.

Connected with judgments, four terms are often seen in the news – (1) Special Leave Petition (2) Review Petition (3) Curative Petition and (4) Mercy Petition. Do you know the difference between these terms? Let’s first start with the Special Leave Petition (SLP).

What is a Special Leave Petition (SLP)?

SLP is a petition seeking special permission (leave) from Supreme Court to appeal against a judgment passed in any of the lower courts or tribunals in India. SLP is not an appeal but a petition filed for an appeal.

The Supreme Court may accept or reject the same.

Constitutional Provisions behind Special Leave Petition

Special leave to appeal is filed before the Supreme Court under Article 136 of the Constitution.

Can High Court review its order if SLP is rejected by the Supreme Court?

The dismissal of an SLP against an order or judgment of a lower forum is not an affirmation of the same.

High Courts can still review its own judgment even if the SLP is rejected by the Supreme Court.

Supreme Court has also clarified that it will not make any difference whether the review petition was filed before the filing of special leave petition or was filed after the dismissal of a special leave petition.

What is a Review Petition?

The review petition is a petition in which it is prayed before the Court of law to review its order or judgement which it has already pronounced.

The Court may accept a review petition when a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility.

When a review takes place, the Court will not take fresh stock of the case but just correct grave errors that have resulted in the miscarriage of justice. Also, judicial review can only correct a “patent error” and not “minor mistakes of inconsequential import”.

The provision of review is an exception to the principle of stare decisis. Principle of stare decisis binds courts to follow legal precedents set by previous decisions.

Constitutional Provisions behind Review Petition

Under Article 137 of the Constitution of India and the rules made under Article 145, the Supreme Court of India has the power to review its judgment pronounced by it.

As per Supreme Court rules, a review petition is to be filed within 30 days of the pronouncement of judgment or order and that petition should be circulated without oral arguments to the same bench that delivered the judgment.

Who can file a review petition?

It is not necessary that only parties to a case can seek a review of the judgment on it. As per the Civil Procedure Code and the Supreme Court Rules, any person aggrieved by judgment can seek a review.

No oral arguments by lawyers except in death penalty cases

Review petitions would ordinarily be entertained without oral arguments by lawyers. It is heard “through circulation” by the judges in their chambers.

In exceptional cases, the court allows an oral hearing. In a 2014 case, the Supreme Court held that review petitions in all death penalty cases will be heard in open court by a Bench of three judges.

Who hears the review petitions?

Review petitions are heard, as far as practicable, by the same combination of judges who delivered the order or judgment that is sought to be reviewed. If a judge has retired or is unavailable, a replacement is made keeping in mind the seniority of judges.

Should the Court allow every review petition?

The court does not entertain every review petition filed. It exercises its discretion to allow a review petition.

Usually, the court allows a review petition only when it shows the grounds for seeking the review.

Grounds for seeking a review of a judgment

Supreme Court laid down three grounds for seeking a review of a verdict –

• the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the petitioner or could not be produced by him;
• mistake or error apparent on the face of the record;
• any sufficient reason that is analogous to the other two grounds.

Note: In the Union of India v. Sandur Manganese & Iron Ores Ltd case (2013), the court laid down nine principles on when a review is maintainable. The court held that a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.

Examples of review petitions recently in the news

Supreme Court agreed to review its Sabarimala verdict but refused to do so in the Rafale case.

What if a review petition fails?

The Supreme Court’s is the court of last resort. Its verdict should never result in a miscarriage of justice. To prevent the abuse of its process, the court itself evolved the concept of a curative petition, which can be heard after a review is dismissed.

What is a Curative Petition?

A curative petition is a judicial innovation and a new concept in the Indian legal system.

It is the last and final resort to the judicial remedy of any grievances which is not normally given an open-court hearing.

The origin of curative petitions

The concept originated from the 2002 case of Rupa Ashok Hurra Vs. Ashok Hurra and Anr. over the question whether an aggrieved person is entitled to any relief against the final judgment/order of the Supreme Court after the dismissal of a review petition.

The court used the Latin maxim “actus curiae neminem gravabit”, which means that an act of the court shall prejudice no one. Thus, it applies when the court is bound to undo a wrong done to a party by the act of court itself.

The Supreme Court held that it may reconsider its judgements in order to prevent abuse of its process and to cure gross miscarriage of justice.

Constitutional Provisions behind Curative Petition

Curative Petition is also supported by Article 137 of the Indian Constitution.

A curative petition is needed to provide a final recourse of correcting any errors in judgement where technical difficulties or other apprehensions over reopening a case prevents from reviewing judgements.

Who hears the curative petitions?

Curative petitions are heard by the top three judges including the Chief Justice of India plus the judges who dismissed the review petition.

Conditions for Curative Petition

Supreme Court has laid down some specific conditions to entertain curative petitions:

• The petitioner has to establish that the principles of natural justice were violated and fear of the bias of the judge and judgement that adversely affected him.
• The petition shall state specifically that the grounds mentioned had been taken in the review petition and that it was dismissed by circulation.
• A curative petition must be first circulated to a Bench of the three senior-most judges, and the judges who passed the concerned judgment, if available.
• If a majority of the judges conclude that the matter needs hearing should it be listed before the same Bench.
• The Bench at any stage of consideration of the curative petition can ask a senior counsel to assist it as amicus curiae (Friend of the court).
• A curative petition is usually decided by judges in the chamber unless a specific request for an open-court hearing is allowed.
• The court could impose “exemplary costs” to the petitioner if his plea lacks merit.

What is a Mercy Petition?

Mercy Petition is the last resort of a person when all the remedies available to him/her under the prevailing laws and the Constitution are exhausted.

A mercy petition may be filed before the President of India under Article 72 or the Governor of the state under Article 161.

Even though the mercy petition is filed before the President or the Governor of the state, practically, the decision on the petition is taken by the Council of Ministers (CoM).

The petition will be treated on mercy and not on the legality of the case.

However, any arbitrary decision on mercy pleas, including rejection, by the President of India or Governor can be questioned in the Court.

Mercy petition in death sentence cases

A mercy petition is the last resort available to a convict having death sentence after all legal and judicial remedies like review and curative petitions are exhausted.

For seeking mercy petition, the death sentence by a trial court must be confirmed by the High Court. Then the convict has an option to appeal to the Supreme Court.

If the Supreme Court either refuses to hear the appeal or upholds the death sentence, then the convict or his relative can submit a mercy petition to the President of India (Articles 72) or the Governor of the State (161).

Grounds upon pardon can be sought

In a mercy petition, the person concerned is required to state the grounds upon pardon is sought.

These grounds may not be worth considering from a legal point of view.

But the grounds such as being the only bread earner of the family, the physical condition of the convict, age or the court committing a mistake or error inadvertently have value while consideration by the President.

Supreme Court in the Kehar Singh v Union of India 1988 case held that the grant of pardon by the President is an act of grace and cannot be claimed as a matter of right.

Constitutional Provisions

• Article 72 of the Constitution provides that the President shall have the power to grant pardon, reprieve, respite or remission of punishment or to suspend, remit or commute the sentence of any person convicted of any offence
  • in all cases where the punishment or sentence is by a Court Martial;
  • in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
  • in all cases where the sentence is a sentence of death.
• Similarly, under Article 161 the Governor has the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends

Procedure for handling Mercy Petitions

There is no written procedure for dealing with mercy petitions.

A convict under the sentence of death is allowed to make the petition within a period of seven days after the date on which the Superintendent of jail informs him about the dismissal of the appeal by the Supreme Court.

The petitions are received by the President’s secretariat on behalf of the President, which is then forwarded to the Ministry of Home Affairs for seeking the advice of the Cabinet.

The Home Ministry in consultation with the concerned State Government discusses the merits of the petition and tenders its advice to the President, on behalf of the Council of Ministers.

The President can return the recommendation only once for reconsideration. If no change is made, the President has to sign his assent.

The Constitution doesn’t specify any time-limit within which a mercy petition has to be decided.

Need for a Standard Procedure while handling Mercy Petition

There is no guideline or written procedure that the government or the President is bound by while processing mercy petitions.

There is no opportunity of a personal hearing before the authorities and as a result, all relevant information may not be made available.

Under the present scheme, there exists a possibility of two persons being treated differently despite having the same grounds, i.e. one person getting relief and another being denied for cases of similar nature.

No prescribed procedure indicates the possibility of arbitrary exercise of power and consequent discrimination. This is in contravention to Articles 21 and 14 of the Constitution.

In the absence of any standard procedure, there is no specific time-limit to decide mercy petitions.

There are instances of mercy petitions lying undecided with the President for over a decade.

In some cases, the convicts were able to take advantage of the delay and get their death sentences remitted on this ground.

International Standards

International Convention on Civil and Political Rights (ICCPR), of which India is a party to, has provisions against torturous, cruel, inhuman and degrading treatment or punishment.

Inordinate and unreasonable delay in execution of death sentence amounts to torture as expounded by the Supreme Court in the Shatrughan Chauhan vs Union of India case.

The ICCPR also establishes the right to life as an inherent, inalienable right that cannot be taken away arbitrarily.

Universal Declaration of Human Rights preserves equality of all persons before the law and equal protection of the law.

Any discriminatory treatment due to lack of procedure or otherwise stands in violation of these international standards.

Mercy Plea vs Capital Punishment

Every civilized country recognizes the need for providing a pardoning power as an act of grace while many countries have started the debate on the utility of the death penalty itself. The Indian Constitution also recognizes the need for providing a final avenue of justice in the form of mercy petition.

While each case is unique, there is a need for a prescribed procedure on handling mercy petitions to remove arbitrariness and to specify definitive grounds for considering relief. Specifying a time limit for disposing of mercy petitions is also needed to allay the apprehensions of both convicts and victims.

Examples of Mercy Petitions recently in the news

Recently the President rejected the mercy petition of one of the convicts of Nirbhaya case. This comes after a Delhi court stayed the death sentence of four convicts for the third time observing that they cannot be executed while a mercy petition is pending before the President.

As per law, if a convict is awarded death sentence, he has three options — review petition and curative petition before the Supreme Court and finally mercy petition before the President. In this case, a review of the rejection of the mercy petition was also filed before the Supreme Court.

Review Petition vs Curative Petition vs Mercy Petition: Conclusion

Various legal remedies available in order of filing: review petition → curative petition → mercy petition.

As per law, if a convict is awarded death sentence, he has three options – review petition and curative petition before the Supreme Court and finally mercy petition before the President.

While the decisions of the lower courts can be reviewed under various articles of the Constitution, a provision for the apex court to review an order passed by them is much needed as a final measure of correcting judicial errors. However, various legal remedies available, including a review of the rejection of mercy petition, are now being used to effectively delay the implementation of the verdict.

In this context, it is essential to arrive at a balance between speedy justice and following just and reasonable procedures. Certain aspects like specifying the time within which review and curative petitions are to be filed, prescribing procedures that avoid duplication of processes in case of multiple convicts facing death penalty must be addressed. Both rights – the rights of the accused and the rights of a victim to seek justice are sacrosanct.

Procedure Established by Law vs Due Process of Law

In this post, we shall see the meaning of two important terms often cited in Supreme Court Judgments ie. Procedure Established by Law and Due Process of Law.

The former is Indian constitutional doctrine and the latter is American, but now the boundaries are very narrow.

Let’s start our discussion with Article 21 of the Indian Constitution. What does it say?

Article 21 in The Constitution Of India

Protection of life and personal liberty:  No person shall be deprived of his life or personal liberty except according to the procedure established by law.

Procedure Established by Law vs Due Process of Law

As we have seen, the term “procedure established by law” is used directly in the Indian constitution. Due Process of Law has much wider significance, but it is not explicitly mentioned in the Indian Constitution. The due process doctrine is followed in the United States of America, and Indian constitutional framers purposefully left that out. But in most of the recent judgments of the supreme court, the due process aspect is coming into the picture again. Let’s see the difference in detail.

Case 1: Procedure Established by Law

It means that a law that is duly enacted by the legislature or the concerned body is valid if it has followed the correct procedure. Following this doctrine means that, a person can be deprived of his life or personal liberty according to the procedure established by law.

So, if Parliament passes a law, then the life or personal liberty of a person can be taken off according to the provisions and procedures of that law.

This doctrine has a major flaw. What is it?

It does not seek whether the laws made by Parliament is fair, just and not arbitrary.

“Procedure established by law” means a law duly enacted is valid even if it’s contrary to principles of justice and equity. The strict following of the procedure established by law may raise the risk of compromise to life and personal liberty of individuals due to unjust laws made by the law-making authorities. It is to avoid this situation, SC stressed the importance of the due process of law.

Case 2: Due Process of Law

Due process of law doctrine not only checks if there is a law to deprive the life and personal liberty of a person but also see if the law made is fair, just and not arbitrary.

If SC finds that any law as not fair, it will declare it as null and void. This doctrine provides for more fair treatment of individual rights.

Under due process, it is the legal requirement that the state must respect all of the legal rights that are owed to a person and laws that states enact must conform to the laws of the land like – fairness, fundamental rights, liberty etc. It also gives the judiciary to access fundamental fairness, justice, and liberty of any legislation.

The difference in layman’s terms is as below: Due Process of Law = Procedure Established by Law + The procedure should be fair and just and not arbitrary.

Extra Articles worth reading

1. Of constitutional ‘due process’: The Hindu – Are we shifting from original constitutional norms?
2. On MCOCA: Tehelka – A Law Inconsistent With The Idea Of India.
3. Due Process of law: Manupatra.

History of Due Process of law

The due process developed from clause 39 of the Magna Carta in England. When English and American law gradually diverged, due process was not upheld in England but did become incorporated in the Constitution of the United States.

Change of situation in India: Maneka Gandhi vs Union of India case (1978)

In India, a liberal interpretation is made by the judiciary after 1978 and it has tried to make the term ‘Procedure established by law’ as synonymous with ‘Due process’ when it comes to protecting individual rights.

In Maneka Gandhi vs Union of India case (1978) SC held that – ‘procedure established by law’ within the meaning of Article 21 must be ‘right and just and fair’ and ‘not arbitrary, fanciful or oppressive’ otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. Thus, the ‘procedure established by law’ has acquired the same significance in India as the ‘due process of law’ clause in America.

Judicial Doctrines – Principles of Constitutional Law Explained

A doctrine is a belief, principle or position – usually upheld by authorities like courts. As far as Indian Judiciary is concerned, there are many doctrines. Many of you may be familiar with the Doctrine of Basic Structure. In this article, we will be dealing all important Indian Judicial Doctrines.

Doctrine of Basic Structure

The basic structure doctrine is an Indian judicial principle that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the parliament.

But what should be considered as the basic features of the Indian Constitution is not explicitly defined by the Judiciary. It is widely believed that democracy, federalism, independence of the judiciary, secularism etc. are part of the basic features.

The claim of any particular feature of the Constitution to be a “basic” feature is determined by the Court on a case-by-case basis.

This doctrine was first expressed in Kesavananda Bharati v. The State of Kerala (1973). Thanks to Kesavananda Bharati, Palkhivala and the seven judges who were in the majority, India continues to be the world’s largest democracy.

Doctrine of Harmonious Construction

• This doctrine was brought about to bring harmony between the different lists mentioned in the Schedule 7 of the Constitution of India. Different subjects are mentioned in different lists in this schedule.
• However, there can be a situation where an entry of one list overlaps with that of another list. This is the time when this doctrine comes into the picture.
• It was said that the words of the entries should be given wide amplitude and the courts shall bring harmony between the different entries and lists.
• Supreme Court applied this Doctrine in the case of Tika Ramji vs the State of UP.

Doctrine of Eclipse

• The doctrine states that if any law becomes contradictory to the fundamental rights, then it does not permanently die but becomes inactive.
• As soon as that fundamental right is omitted from the Constitution, the inactive law becomes revived.
• When a court strikes a part of the law, it becomes unenforceable. Hence, an ‘eclipse’ is said to be cast on it. The law just becomes invalid but continues to exist.
• The eclipse is removed when another (probably a higher level court) makes the law valid again or an amendment is brought to it by way of legislation.
• Supreme Court first applied this doctrine in the case of Bhikaji vs State of Madhya Pradesh where it applied to pre-constitutional law. The extension to the post-constitutional law was stated in the case of Dulare Lodh vs ADJ Kanpur.

Doctrine of Pith and Substance 

• This doctrine comes into picture when there is a conflict between the different subjects in different lists. There is an interpretation of List 1 and List 2 of the Constitution of India.
• There can be a situation when a subject of one list touche the subject of another List. Hence this doctrine is applied then.
• Pith and Substance means the true nature of law.
• The real subject matter is challenged and not its incidental effect on another field.
• The doctrine has been applied in India also to provide a degree of flexibility in the otherwise rigid scheme of distribution of powers.
• The reason for the adoption of this doctrine is that if every legislation were to be declared invalid on the grounds that it encroached powers, the powers of the legislature would be drastically circumscribed.
• It was applied by the Supreme Court in the case State of Bombay Vs F.N Balasar.

 Doctrine of Incidental or Ancillary Powers

• This principle is an addition to the doctrine of Pith and Substance.
• What it means is that the power to legislate on a subject also includes the power to legislate on ancillary matters that are reasonably connected to that subject.
• For example, the power to impose tax would include the power to search and seizure to prevent the evasion of that tax. However, power relating to banking cannot be extended to include power relating to non-banking entities.
• However, if a subject is explicitly mentioned in a State or Union list, it cannot be said to be an ancillary matter. For example, the power to tax is mentioned in specific entries in the lists and so the power to tax cannot be claimed as ancillary to the power relating to any other entry of the lists.
• As held in the case of State of Rajasthan vs G Chawla AIR 1959, the power to legislate on a topic includes the power to legislate on an ancillary matter which can be said to be reasonably included in the topic.
• However, this does not mean that the scope of the power can be extended to any unreasonable extent. Supreme Court has consistently cautioned against such extended construction. For example, in R M D Charbaugwala vs State of Mysore, AIR 1962, SC held that betting and gambling is a state subject as mentioned in Entry 34 of State list but it does not include power to impose taxes on betting and gambling because it exists as a separate item as Entry 62 in the same list.

Doctrine of Colourable Legislation

• This is applied when the legislature enacting the law has transgressed its power as is mentioned in the Constitution.
• The expression “colourable legislation” simply means what cannot be done directly, cannot be done indirectly too.
• It is the substance that is material and not the outward appearance.
• Hence there are certain situations when it seems that it is within the power of the legislature enacting the law but actually it is transgressing. This is when this doctrine comes into the picture.
• It was applied by the Supreme Court of India in the case State of Bihar vs Kameshwar Singh and it was held that the Bihar Land Reforms Act was invalid.

Doctrine of Severability

• According to this doctrine, if there is any offending part in a statute, then, only the offending part is declared void and not the entire statute.
• Article 13 states that the portion that is invalid should be struck off and not the entire one. The valid part can be kept.
• However, it should be kept in mind that even after separation; the remaining part should not become ambiguous.
• If the remaining part becomes ambiguous, then the whole statute would be declared void and of no use.
• Supreme Court in the case of RMDC vs. UOI states that doctrine of severability is a matter of substance and not of form.

Doctrine of Territorial Nexus

• Article 245 states that a state legislature can make laws on the territory of the state and not on extraterritorial laws provided there is nexus or connection between the sate and the object of the legislation.
• Article 245(1) states that the Parliament of India can make laws for the whole or any territory of India.
• Similarly, a state legislature can do the same.
• Such laws cannot be declared invalid on the growth that they are extraterritorial according to Article 245(2).
• To determine whether a particular legislation is within the territorial nexus or not, this doctrine is applied.
• Supreme Court applied this doctrine in the case of Tata Iron Steel vs. the State of Bihar.

Doctrine of Laches

• Laches means delay. The doctrine of laches is based on the maxim that “equity aids the vigilant and not those who slumber on their rights.” (Black’s Law Dictionary).
• The outcome is that a legal right or claim will not be enforced or allowed if a long delay in asserting the right or claim has prejudiced the adverse party.
• Elements of laches include knowledge of a claim, unreasonable delay, neglect, which taken together hurt the opponent.
• It is well known that one who wants remedy must come before the court within a reasonable time.
• Lapse of time violates equity and it is against the concept of justice.
• Hence the issue came up whether delay can be a ground to deny fundamental rights under Article 32.
• It was said that denial of fundamental rights only on the ground of delay is not justified as fundamental rights are basic and very essential for the development of the individual.
• Supreme Court under the case of Ravindra Jain vs UOI stated that remedy under article 32 can be denied on grounds of unreasonable delay. However, there has been no case to overrule the above-mentioned case law by the Supreme Court order.

Other Important Indian Judicial Doctrines

There are many other doctrines followed by Indian Judiciary. Some of them are

• The Doctrine of Judicial Review.
• The Doctrine of Due Process of Law.
• The Doctrine of Constitutional Morality

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