Basic structure and Art 370

Basic structure and Art 370

Subject: Polity

Section: Constitution

Context: Chief Justice of India D.Y. Chandrachud on September 4 said petitioners were placing Article 370 on a pedestal loftier than the Basic Structure Doctrine of the Constitution and even beyond the reach of the amending powers of Parliament.

Details:

• Senior advocate Kapil Sibal argued before the Constitutional Bench hearting the petition challenging revoking of Art 370 that Article 370 (1) had assumed a permanent character as soon as the Jammu and Kashmir Constituent Assemblywas dissolved in 1957 after the framing of the State Constitution.
• Sibal argued that clause (3) of Article 370, which empowered the President to abrogate the Article as done on August 5, 2019, had ceased to exist.
• Sibal said Article 368 (Parliament’s power to amend the Constitution) did not apply to Article 370 as the special procedure for repealing or modifying the Article was only available under clause (3) of Article 370 and none other.
• Under Article 370(3) and its proviso, the constitutional provision can be declared inoperative by the President through a notification, provided the Constituent Assembly of J&K recommends the move.

Basic structure

• A 13-judge Bench was set up by the Supreme Court, the biggest so far, and the case was heard over 68 working days spread over six months.
• The case was primarily about the extent of Parliament’s power to amend the Constitution.
• First, the court was reviewing a 1967 decision in Golaknath v State of Punjab which, had ruled that Parliament cannot amend fundamental rights.
• Second, the court was deciding the constitutional validity of several other amendments.
• The executive vs judiciary manoeuvres displayed in the amendments ended with the KesavanandaBharati case, in which the court had to settle these issues conclusively.
• In its majority ruling, the court held that fundamental rights cannot be taken away by amending them. While the court said that Parliament had vast powers to amend the Constitution, it drew the line by observing that certain parts are so inherent and intrinsic to the Constitution that even Parliament cannot touch it.
• The origins of the basic structure doctrine are found in the German Constitution which, after the Nazi regime, was amended to protect some basic laws. The original Weimar Constitution, which gave Parliament to amend the Constitution with a two-thirds majority, was in fact used by Hitler to his advantage to made radical changes. Learning from that experience, the new German Constitution introduced substantive limits on Parliament’s powers to amend certain parts of the Constitution which it considered ‘basic law’.
• In India, the basic structure doctrine has formed the bedrock of judicial review of all laws passed by Parliament.
• 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 judgments, the following have emerged as basic features of the Constitution or elements / components / ingredients of the ‘basic structure’ of the constitution:
  • Supremacy of the Constitution
  • Sovereign, democratic and republican nature of the Indian polity
  • Secular character of the Constitution
  • Separation of powers between the legislature, the executive and the judiciary
  • Federal character of the Constitution
  • Unity and integrity of the nation
  • Welfare state (socio-economic justice)
  • Judicial review
  • Freedom and dignity of the individual
  • Parliamentary system
  • Rule of law
  • Harmony and balance between Fundamental Rights and Directive Principles
  • Principle of equality
  • Free and fair elections
  • Independence of Judiciary
  • Limited power of Parliament to amend the Constitution
  • Effective access to justice
  • Principle of reasonableness
  • Powers of the Supreme Court under Articles 32, 136, 141 and 142