Legal Explainer: Basic Structure of the Constitution, Pole Star of Democracy and Republic
There is a dispute between the minister and the judges on the system of appointment of judges. On the other hand, the presiding officers of the Vidhansabha and Lok Sabha are expressing concern over the encroachment of the judiciary. Meanwhile, the head of the Supreme Court, Justice Chandrachud, has described the basic structure of the constitution as a pole star. Amidst the capricious interpretation of the basic structure, if common people also understand this, democracy will be strengthened along with the republic.
India got independence on August 15, 1947, which is Independence Day. Three years after that, the Constitution came into force on January 26, 1950, which we celebrate as Republic Day. Considering men and women as equal in the constitution, all adult people got the right to vote. According to him, the first general elections were held in 1952, after which democracy was established in true sense in India.
There is a dispute between the minister and the judges on the system of appointment of judges. On the other hand, the presiding officers of the Legislature ie Vidhansabha and Lok Sabha are expressing concern over the encroachment of the Judiciary. According to him, the legislature is supreme because it has the right to make laws. Vice President Dhankhar has spoken about the supremacy of the government elected by the people and the Parliament. In the midst of this debate, the head of the Supreme Court, Justice Chandrachud, has described the basic structure of the Constitution as a pole star. Amidst the capricious interpretation of the basic structure, if common people also understand this, democracy will be strengthened along with the republic.
Indira
Gandhi implemented many populist programs to defeat the opposition. Along with the nationalization of banks and the abolition of the privy purse of kings and emperors, he gave the slogan of removing poverty. Indira Gandhi’s popularity increased after the defeat of Pakistan and the rise of Bangladesh in 1971. Indira also had an unprecedented majority by getting 350 out of 540 seats in the Lok Sabha in the general elections. That’s why they didn’t face any problem in changing the laws and making many amendments in the constitution. But the Supreme Court decided the Lakshman Rekha for the government and the parliament by giving a historic decision in the Kesavanand Bharti case.
With the 24th amendment of the constitution, the
Nehru government limited the freedom of expression from the first constitutional amendment in 1951. Challenging it in the Supreme Court, it was said that it violates Part-3 of the Constitution. In the Shankari Prasad case, the Supreme Court, while upholding the amendment, said that the Parliament has the power to amend any part of the Constitution. But after that, in the Golaknath case, the Supreme Court said that there cannot be any change in Part-III of the Constitution i.e. Fundamental Rights.
According to the decision, not all parts of the constitution can be amended using the power given in Article-368. In order to neutralize this decision, the Indira government passed the 24th Constitutional Amendment Act from the Parliament. According to him, the Parliament has full power to amend the constitution. But the President’s approval is necessary on such laws. In the Kesavanand Bharti case, in the year 1973, the Supreme Court upheld the 24th Constitutional Amendment, but the Supreme Court said that the basic structure of the Constitution cannot be changed by constitutional amendment.
Doctrine of Basic Structure in Kesavananda Bharti Case
This case was against the Kerala government, in which 13 judges of the Supreme Court gave a 703-page verdict. Kesavananda Bharti lost against the Kerala government in the main case, when the Supreme Court upheld the 29th amendment of the Constitution. The word Basic Structure is not used anywhere in the Constitution and it is an invention of the Supreme Court in the Kesavanand case. Describing the Constitution as a living document, the Supreme Court denied the parliamentary power to change the basic structure through amendment. According to the decision, the Parliament does not have the power to amend the federal system, division of powers between the center and the state, parliamentary system, unity and integrity of India, fundamental rights and supremacy of the constitution. After that, in many other decisions, some more aspects of the basic structure were included.
subsequent decisions of the Supreme Court
The Supreme Court, in its 1980 decision in the Minerva Mills case, also included the right of judicial review, that is, the right of the courts to hear the law passed by the Parliament, under the basic framework. In the Indira Sahni case, in 1992, the rule of law was considered as the basic framework. In 2015, the Constitution Bench repealed the NJAC Act considering the collegium system as a basic structure. Certainly, under Article-50 of the Constitution, the government cannot get the right to interfere in the appointment of judges. But by what logic can the collegium system implemented through judicial interpretation be considered as the basic structure of the constitution?
Controversy started in the appointment of judges after the Kesavananda verdict
Attorney General Niren Dey and Seeravi argued on behalf of the government. On the other hand, eminent lawyer Nani Palkhivala made powerful arguments in favor of the supremacy of the Constitution. 7 judges gave a decision in favor and 6 judges disagreed. Justice AN Ray said in a minority decision that the Parliament has unlimited power to amend the Constitution. This decision was given on the day of Chief Justice Sikri’s retirement. After him, the Indira government, ignoring three senior judges, rewarded Justice Ray by making him the 14th Chief Justice. Three senior judges Shelat, Hegde and Grover resigned in protest against political interference in the judiciary and ignoring seniority. After becoming the Chief Justice, Justice Ray tried to change the Kesavananda Bharti judgment through review, which could not be successful.
Constitutional rights suspended in emergency
Prime Minister Indira Gandhi suspended the fundamental rights by imposing Emergency after the adverse decision of the Allahabad High Court. During the Emergency, in the Habeas Corpus case, Justice Khanna called the fundamental rights and freedom of life paramount. It is said that unhappy with that decision, Indira Gandhi did not allow Justice Khanna to become the Chief Justice of the Supreme Court. There was a nationwide protest against political interference in the judiciary. After that, during the era of coalition governments, the judges acquired a monopoly on appointments through the collegium, on which a fierce dispute is still going on. The best aspect of this whole dispute is that all the parties are considering the constitution as paramount. This is the biggest success of Indian democracy and republic.
Announcement of 412 gallantry awards, Kirti Chakra to Major Shubhang
