Doctrine of Basic Structure under Indian Constitution: Madras High Court Bar Association at Madurai.Aug 29, 2023
constitutionmy dear brother friend and mentor justice alifullah dignitaries inside and outside diaz ladies and gentlemen vanakkam little do you realize how much I am a part of you I am the great kk venugopals jr and therefore in that sense a grandson of this great Man, you see before you a somewhat older and somewhat bolder version of what you saw on the screen, not necessarily wiser when I entered the chamber of lord venugopal. One of the first things he did to me was give me his father's green notebooks and In my first week there I reviewed with growing admiration the copious notes this great man took for each case he had to argue.
The green notebooks contained the wisdom of the stranger. There were a lot of judgments from the United States Supreme Court that caught his attention quite apart from the House of Lords, Court of Appeals, Irish Reports, Commonwealth Reports, Domain Law Reports, you name it. and the list goes on, then I realized that I was actually sitting at the feet of an extremely brilliant
constitutional scholar. lawyer and as you may have heard, it is this great constitutional lawyer who introduced the concept of
structurethrough the concept of implied limitations. Now we have to go back a little and digress to return to these words if we start at the beginning.
More Interesting Facts About,
doctrine of basic structure under indian constitution madras high court bar association at madurai...
We had in our constituent assembly people who had before them the constitutions of the world since the
structurereally begins with the amendment of article 368, it is important that they know first what article 368 is and then we go back to see what were the models that were before the constituent assembly to finally approve article 368. Now, the starting point of any basic structure
doctrinemust begin with article 368 for two reasons: the first reason is that the power to amend or change a constitution is one of the most important things that a flexible document like a constitution should contain if it is ultimately to reflect the felt need of the second language of the time it is somewhat important as it was originally used two words used the word amend in the first part and used the word change in the second part now the important thing is that the word modify was used without the words as, say, derogation of variation, etc. and the word change was used in the condition: the first thing that catches your attention The simple reading of the article is as follows: if any amendment or change is made, the constitution will be modified now if it is modified, obviously, the constitution as a constitution must stay.
Questions were repeatedly asked of the lawyer in Keshavananda Bharti's case. Can the constitution be repealed without replacing anything in its place? The answer is a resounding no because, although you can reach each and every article and change each and every article, something must be left behind because, in Ultimately the constitution must remain and it must be modified, this is something very important that all of you You must keep in mind that the second very important thing is that the word change used in regards to the condition again goes up to the replacement but it does not go beyond.
You can modify as a change. You can even substitute through. of change but the big question is, can it be repealed without further ado as a change now let me explain how we said the first part of 368 allows you to reach each part of the constitution and change it or amend it as the second part was then? The part is enigmatic, it's a condition and it deals with five different specific issues and it says that if you want to address any of these issues through a change, then not only does parliament have to approve it, but they also have to approve it. ratification by at least half of the states, so we start with 368 and you have to keep in mind the important thing or two important things that I told you from the beginning, which is number one: you cannot repeal the constitution as a whole must be left behind now the immediate question is then, what is that second something?
If the word change in condition goes as far as substitution but not repeal again, it is an indicator of something and the indicator is a fact that it did not actually represent. The people of India will remember that according to the Government of India Act, 1935 there were provinces in this country and there were elections for the different houses of those provinces or the legislatures of those provinces which required elections according to the schedules of the Government Act of India. For adult voters to have more than just age on their side, it wasn't enough to be 18 or 21, you also had to be metric alert or an income tax payer or some other qualification, so the important thing was that under the The government of India acts as people who were elected representatives of the people and note that this referred only to the provinces and not the princely states because India at that time, if you remember, was governed by the
doctrineof the British supremes, you had the supremacy.
As far as the states without ma are concerned, there were the provinces and it is only the elected representatives of the provinces who finally chose among themselves who were going to be members of this constituent assembly and they were approximately 28 percent of the electoral population, so to speak. because the majority of the voting population, although adults, were left out because of the schedules that I talked about, so I feel that they were overwhelmed by this first, they felt that they did not really represent in that sense the adult population of this country, another thing very interesting.
Not only did they not represent the adult population of this country, but they also felt that it would be better to leave a first parliament that would actually be elected by the adult suffrage of this country and then straighten out the constitution, so to speak, another thing that was probably in the back of their minds was that they were actually created by a foreign statute because you know that the constituent assembly was created by section 8 of the Indian independence act which was passed by the British parliament keeping all these things in my opinion, they finally arrived at the compromise formula of article 368.
I will tell you why it is a compromise formula. They had before them several world constitutions. They had the oldest living constitution in the world, which is that of the United States. Article 5 of the United States Constitution has a two-tier process that begins with two-thirds of Congress, that is, both houses of Congress propose a constitutional amendment that then needs to be ratified by three-quarters three four three-quarters of the states now. this can be done with two methods, we are really not concerned about the method in which one is a constitutional convention, one is another way, but the importance is that barely two-thirds of the houses of parliament, so to speak, in United States The United States could not simply touch any part of its constitution without a resounding three. failures in the ratification of the states, secondly, there were actually two things in article five that could not be touched and that were outside the scope of the amending body, so to speak, one was the representation of the states in the senate, which is equal to our rajya sabha, that nothing could be touched, so even if the states ratified it outside the limits and secondly, until the year 1808, you will remember that this constitution was finally ratified and was became law in 1789, the year of Bastille, until 1808, two provisions of section 9 of article 1, one of which dealt with immigration to the states and another dealing with representative taxation, could not be touched, so that there were two express limitations in article 5 which were beyond the power of amendment.
It's a little important to note now that they had this model before. They also had the model of the Commonwealth of Australia, which again was an act of the British Parliament passed in 1900, according to which if you want to change the constitution you have to go to the people and only through a referendum can the constitution finally be approved. be amended and remember that due to the rigidity and inflexibility of these procedures, the US constitution in 225 years has been amended 28 times, the Commonwealth of Australia alone has been equally amended only six times, it is a 1900 constitution , so you can imagine that we are in the year 2015 in 115 years it has been amended only six times now they had these two models before they also had a very interesting model in the Irish constitution of 1922, which is the constitution just before it came into being the Irish free state to go, which we had also done before, but the constitution of '22 had something notable: it said: "we opt for a referendum if we want to touch this constitution, but for the first eight years we will leave it to parliament, the hearing ketus, as it is called in Ireland, by simple majority to pass any amendment they want so that there is some kind of breathing room, the framers of the constitution realized, as did our framers, that they did not represent everyone, They let a parliament enter, they let it by ordinary majority, have a kind of clause for the elimination of difficulties. for eight years, after which you have to go to the people, now one of the interesting cases that arose in Ireland was that of Ryan's children, it was a ruling from 1935 and it was a very divided
court, as is the case with most the
courts in all these matters, there were two to one with the chief justice dissenting that Ryan's case upheld the oil tastings, that is, the parliament of Ireland amended the provision that said it was only eight years old to make it 16 years, so the Irish parliament suddenly realized that eight years does not seem to be enough. give us another eight years so that by a simple majority we can do what only the people can do, which is to change the constitution two to one in 1935, Chief Justice Kennedy, disagreeing with the Irish supreme court, held that the euro ketus when you amend the constitution you act as a constituent body, if you act as such a court of law cannot bring in any constitutional amendment that you want to make even if you want to aggrandize your own power, so two to one was the opposite of keshava nanda bharati in 1935 in Ireland, this was all before the founding fathers and even more so now, why did they choose the 368 in its current form?
Remember that article 368 of the proviso that deals with certain specific issues requires a majority of just two-thirds in the lok sabha and the rajya. sabha to modify any part of the constitution and the important thing is that those two thirds are not the total strength of the house, they are two thirds of those present and voting, so it is very easy, of course we are having a simple majority I mean obviously the government in power would have a simple majority so subject to is something that is said ex-abundantly court it as long as you have two thirds of each chamber present and voting you can do what you want our constitution, on the other hand, according to article 61 , the same constituent assembly, when it came to removing the president, said that two-thirds of the total strength of both houses is needed.
Now why did they do this? I kept asking myself the answer is obvious, they were overwhelmed. out of a sense of their own erect insufficiency, they had Ryan's judgment staring them in the face and felt that, look, it may not be possible for us to give ourselves a moratorium period and say allow the first parliament, say for the first five years , do what you like, so the compromise formula was chosen, by the way, there was a draft article 305 which also dealt with representation of minorities in parliament, scheduled cars, etc., and it was proposed that that draft article should not be affected even by a constitutional amendment like article 5, if you remember. of the United States Constitution for a period of 10 years, that proposal was discarded, so this compromise formula was finally obtained from a two-thirds majority present and voting without ratification by three three-quarters of the states, therefore that they adopted one part of Article Five of the United States Constitution removed the other part now as far as the condition goes, it's a little interesting to know that there are issues that don't seem to make much sense except to say that the states should be interested in this so that such constitutional amendments are approved. ratification, the first part of the condition talks about the articles dealing with the presidential elections, so if you want to touch on the presidential elections where the states have a vital role to play, you must go to the states for identification Likewise, if you want to touch the executive power that is contained in 73 with regard to the union in 162 with regard to the states, again you have to go to the states because if you want to increase or decrease one at the expense of the other states, we are Concerned about the second, which is the most important, if you want to modify the judicial power, be it the superior court, the subordinate court, the supreme court, again, you have to opt for ratification.
Thirdly, if you want to modify the legislative lists,You will remember that we have a 7th schedule in our constitution and the legislative preparation so to speak is distributed between the center and the states in three lists you have an exclusive list for the union exclusive for the state and a concurrent list equally you want to play with any of the entries on those lists, please go to the states for ratification. The fourth representation of the states in parliament again. The states are directly interested. If you want to change that again, go to the states. And fifth and very interesting, any amendment to the amendment article itself, so if you want.
To touch 368 again, they can only touch it if they go to the states for ratification. These are the five things in the condition. Now, with this little context, we return to our constitutional history, some of which has been presented to you by my predecessor speakers. So when it started, it had this compromise formula in 368 whereby 100 amendments have been passed now in the space of 65 years because I wanted this constitution to be more flexible, I didn't want it to be as rigid as the previous ones for the very good two reasons I gave youAt the beginning of our history, one of the most important things that was sought to be promoted and that in fact distinguished us from Pakistan was the land reform program and the first challenges to the land reform laws were filed in three
highcourts: that of Patna.
The court that struck down much of the Bihar land reform law, so it is entry one in schedule nine, and there are two other
highcourts, Allahabad and Nagpur, which upheld the respective land reform statutes. The new parliament was in a hurry. I didn't wait until the supreme court said something about these rulings, so I pushed through what's called our first amendment, and among other things that were done, it was a very large amendment that dealt with a number of issues that were first introduced by the articles 31 capital. a and article 31 capital b now 31a we can understand that basically you want to see that property rights do not interfere with a land reform program, so you say we will not have any property challenges that are basically under articles 19 and 31. read with 14 because equality is usually a complement and we will not tolerate such challenges when it comes to a specific issue, land reform is not a problem, but also you had something like a lawnmower to cut a small net that was 31b 31b It was totally unnecessary and you will remember that it was added only because the then Attorney General of Madras wrote a letter in which he considered that it would be better if certain laws could be left beyond the payload of fundamental rights now 31b has two two features that go a long way beyond 31a, remember? 31a was only about land reform and it was only about property rights 14 1931. 31b suddenly said that if we put something in the ninth program, something that we have approved, the legislature has approved it and it may be the central legislature it may be the state legislature at the time we include it in that schedule is free of harm, so to speak, and cannot be affected by any fundamental rights, so the first important difference is that while 31a dealt only with property rights, 31d b dealt with the entire panoply of fundamental rights, everything was lost if an act was put second to the handshake and even more disturbing was the fact that if a high court or a supreme court, even the supreme court had annulled a certain provision and then had to insert the law in the schedule without further ado, that repealed provision would be resurrected again now, given these two features of 31b, a challenge was filed in the case of shri shankari prashad singh which, as told by justice khalifullah , was reported before the ai supreme court in 1951. and a number of points were raised, we are really only concerned with one point and that point is whether article 13, which is another article that I will come to in a minute, would include a constituent law instead of an ordinary law, again.
Let me explain, unlike the US Constitution, Article 13 was included in our Constitution to put an end once and for all to the controversy that arose and grew old in the US from the Marbury case. on whether there could be a judicial review of the legislation now in our article 13. 2 that concerns us directly says that no State will enact a law that violates a fundamental right and that if said law violates a fundamental right it will be declared null and void by a court, for What Article 13 was an express provision of our Constitution that talked about states making laws, remember that the word create is a little important because it takes you directly to Article 245, which again talks about Parliament making laws.
The same phraseology is used but the argument presented before judge patanjali sastry as he was then and who pronounced the judgment in shakari pressure not looking at it verbatim 13 should be read to include laws that also amend the constitution because the idea is that fundamental rights are inalienable rights, we have just had the Second World War before us, we have just had If Hitler trampled on the Weimar constitution and we have just had the new German constitution that makes it something that legislatures cannot now touch, the argument was rejected and, after a verbatim reading of article 13, a five-judge constitutional bench held that article 13 would apply only to ordinary laws, so to speak, that is, laws made by the legislature and not laws that amended the constitution, so Article 31b, that extremely draconian provision, must be passed if things continue like this for another 15 years until a large number of land reforms are passed.
The laws had now populated the ninth schedule and the 17th amendment added a few more which later became the subject of challenge in Sajan. We are now in 1965, so a period of 14 years has passed and again this same ground was reviewed, this time in another constitutional court. continued sergeant singh said that article 13 does not apply to constitutional law, but with one difference, the difference was only that two learned judges, justices hidayatullah and the justice department, expressed doubts for the first time and said look, we need a bigger court to address this because we are not sure whether constitutional laws come under article 13 or not.
Justice mudhalkar went much further and being a visionary, used the words basic structure in his judgment for the first time and In a very interesting paragraph he tells us for the first time what it is. There is something of a basic structure in this constitution which cannot be touched at all given that we now have the 11 judge court of goloknath in 1967 headed by chief justice subaru again by a fractured majority because we have five speaking against five with Judge Hidayatullah. the strange man among the five Chief Justice Subarao, who headed said two things: one, that the power to amend does not exist in Article 368, why the marginal wrote to the article that says amendment procedure, therefore, We will see that marginal note, the marginal note tells us the drift of the section or article and, therefore, it is only the procedure, that is, the ratification of two thirds by half of what is spoken, the power to modify is located elsewhere and the power to amend according to Chief Justice Subaru and other learned judges as it was If it were expressly located anywhere it would fall under the residual article and therefore parliament could amend under the residual, however , five other learned judges said that no article 368 appears in a chapter on its own.
Chapter 20 Why should you have a chapter dedicated to yourself unless you're on the topic? everything and put an end to everything from the amendment, so everything must be found only in 360. the strange man, judge hidayatullah, said no, this power is such a generous latin expression that it means something of its own, so we left it there , we don't say we found it. whether in 245 or we find it anywhere in the constitution, the reason is that ultimately this is a constitution that to be flexible must be changed, so you must find it as a necessary concomitant of a constitution that has to change the other point. in which again there was a very sharp division and this time Justice Hidayatullah tipped the balance towards the chief justice suman that article 13 would go to a constitutional law and therefore they said look, you can use 368, you can modify any provision of the constitution. but you cannot touch fundamental rights because fundamental rights are inalienable, they are human rights, there is this UN convention of 48, etc., etc., you cannot touch it, this being the case, parliament was quick to act now, as you heard from Justice Khalifullah, they enacted the 24th amendment. in 1971. the 24th amendment sought to eliminate the two pillars on which the golochnat case rested.
Article 368 was amended stating that the power to amend is now directly in that article and nowhere else and the second article 13 applies only to common law. It does not reach constitutional, so an amendment number 25 was approved in the same year that deals with property rights that do not interest us in this conference and added for the first time an article 31 capital c now remember 31 capital a that deals with the reform agrarian law and kept property rights out of land reform, so that if his challenge was based on a property right, the challenge would have to be dismissed out of hand. 31c was now introduced taking into account someone else's vision.
This is another very interesting vision. Sri bian rao, who was one of our first judges to go to the international court was constitutional advisor to the constituent assembly and presented a draft constitution. It was always his view that directive principles should take priority over fundamental rights. Now the guiding principles are in a separate chapter, again taken from Ireland's new or new constitution of 1946, interestingly the Irish constitution was a Catholic constitution, it was not a secular constitution and the guiding principles that formed a particular part of our 39 byc They went back to the PayPal bulls, that is, a papal bull. something that is like an order issued by the Pope sitting in Rome and 39 b and c are supposed to date back to Pope Innocent III, who was very famous in history by another act, by another act, he annulled the Magna Carta at the time when it was made now we are in the year 800 of Magna Carta 12 15. as soon as the barons forced king john to sign it, the pope annulled it now this same pope came out with our articles 39 bnc, so it was borrowed from a Catholic constitution and pushed to a secular constitution is something very interesting and 39 b and c tell us what they only tell us that the material resources of the community will be distributed in the best way to serve the common good, socialism at its finest, the people for the people, everything for the people and the concentration of wealth should not be in the hands of a few to the detriment of many, which is why these two subarticles that come from a papal bull from 800 years ago were taken up and placed above the fundamental property rights rights because the same articles that were used in 31a were used in 31c 14 1931. and this is what prompted justice khanna, the strange man in keshavananda, just as justice was the strange man in golokna to say that I keep this article only because it deals with property rights and according to me property rights may be fundamental but they do not belong to the basic structure so they are based on the view of a particular judge ultimately , 31c passed mustard and this sets the stage for keshavananda bharti himself now on keshavananda bharti like you. judge khalifullah told them that four amendments were under challenge 24 25 26 29 26 they took the private bag kept by 13 judges to be decided for a future, so 26 got out of control 24 25 and 29 were deliberated on 24 you Remember it was the undoing of Golochnath, no one, not even the majority, seriously considered that Golovkin was right, so undoing Golochnat was an easy task, no problem, but then what about article 31c, which was the bone of contention, and there again was this stark division? like in golochna, this time it was six against six with judge khanna is the strange man and the strange man had a particular view which was that property rights are not part of any basic structure that may have occurred in the constitution of the states united and article 5 along with life and liberty, but in this country we must segregate the two and since property rights are not part of the basic structure, although I believe in the basic structure, I will not tear down 31c, so that 31c was approved by this narrow vote.
The second part, as you know, which said that no court would intervene in it was nullified, so now we return to what is the basic structure because the argument of the great Mr. Nambia and he was always ahead of his time because every time he argued something usually lost,but that argument was finally taken up and a trapped future found the wisdom of what he said and decided according to what he said this time seven judges returned to judge mudholkar and discovered that there is indeed a basic structure and different sentences of different characteristics were pronounced such as basic essentials, etc., so we now return to what exactly a basic structure is.
There are two interesting competing visions, one is Matthew's vision of justice in the India Gandhi case, which Justice Khalifullah spoke about, and the other is justice. years of krishna in the bim singh ji case of 1981, we are facing a challenge of the ninth calendar, justice matthew felt that the basic structure rooted in some articles of the constitution must be found, it is not a principle floating around like the supremacy of the constitution, must find its place somewhere just as krishna on the other hand said no when we talk about the great egalitarian principle we are not talking about article 14 we are talking about a principle and that principle is what is part of the basic structure of article 14, isn't this debate like that? has continued to date without much clarity, so where does the basic structure really lie?
I think we get clues from the preamble and from Article 368. Now, the preamble, as you remember, although it is a preamble, it is the very beginning of the constitution, it was actually written at the end of the draft constitution, therefore, the The drafters actually summarized what they thought were the principles that this constitution dropped and from it you can eliminate about six principles that you could call principles that really belong to the basic structure. You have the first words. you have the fact that India is a sovereign democratic republic, every word has a special characteristic, the fact that it is sovereign goes hand in hand with the fact that the country is one unity and integrity, which is the last part of the preamble , so put both. together and what do we have, the fact that India today governs itself, it has freed itself from a foreign yoke, so in that sense it is sovereign, second, it has chosen the democratic form of government, the democratic form of government It believes in universal adult suffrage, so its representatives who govern it are people who really represent the adult population of the nation.
What the adult population of the nation is is a separate matter. It was 21 years at the time of the constitution. It is 18 years now, it may be 16 years later, but the fact that we adult Indians govern ourselves is another essential feature. Thirdly, the fact that we are a republic, a republic again, means that we are not a dictatorship, we are not. a monarchy, so we are governed by what we might call republican principles closely allied with democratic ones. Here, of course, we have a president at the head and as everyone knows, after some praise, the president basically has very limited powers, like the English king, we are ruled. actually, for a cabinet that is ultimately made up of the elected representatives that we as adult Indians vote for, so you have three concepts of a sovereign democratic republic, you have two other concepts added by Mrs.
Amendment 42 Gandhi, a secular socialist, according to me, were completely unnecessary. They were already there because the next clause talks about social, economic, political, social justice, it gives a clue that we are a socialist state and, therefore, whenever the legislatures make laws, they will seek the well-being of the people, in Generally, they will look at the directive. principles and then make those laws so that socialism is part of social justice secularism is also part of the next clause now the next clause is nothing more and nothing less than the cry of the French revolution and all three are mentioned in the preamble so that you have freedom that speaks of the freedom to express yourself to think as you wish and above all of belief, faith and worship, if you already have the freedom to believe, the worship of faith, is a secular state because the obverse of a individual who has been given this great belief as a fundamental right is that the state will not interfere with him nor will the state as a concomitant help one religion against the other, in fact the hands are off the table, so you have incorporated secular socialism, was unnecessary, as I said before, freedom is very important. because it includes individual rights because it is not only freedom of faith, worship, etc., but it is also the expression of thought in the most fundamental sense, so the preamble includes both guiding principles and fundamental rights, we have not heard nothing about property thinking. it was a mistake to include property in the chapter of fundamental rights and it is his vision that was translated into action 11 years later by the Jantar government by removing it and putting it in a separate article, so we have a very important concept of brotherhood. so we believe in university unity in diversity very important now I cannot be fraternal with you unless I know what you are very difficult for me to preserve cultural rights you will find that article 29 of our constitution is one of the few articles that does not find a place in most constitutions in the rest of the world the right not only to preserve the language but the right to preserve the culture and it is an absolute right that the state does not take away, it cannot be covered up, so now it becomes very important to realize that the unity of the universe in diversity is equally, if I may so say, part of an essential characteristic or the basic structure of the constitution and, ultimately, ends with the dignity of the individual, which, read with freedom, again brings in the chapter of fundamental rights the divorce of the prophet, for which we have said something. about six or seven essential characteristics of the preamble, if we go to article 368, proviso three or four more, now enter me, the proviso speaks specifically of, as I told you, the executive power separated from the legislative power, separated from the judicial power, and if you want to touch on any of these, please ask for ratification from the states to have the separation of powers that arises from three of the sub-articles, you have the independence of the judicial power that arises from one of them because if you want to touch any part of the judicial power like I As I told you earlier through an amendment, they have to request ratification again from the states, so now the separation of powers arises, the independence of the judiciary arises and, again, federalism arises, because at the moment in which the representation of the states in parliament it is for You can talk about it or in any way the legislative lists are filled with which state powers are reduced or increased, a federalist issue is being touched upon and, last but not least, the fact that you can amend the Constitution and if you want to change the amendment type again, you have to go to the states now we have been able to eliminate something like 11 my math has never been good 11 or 12 essential features of just a reading of the preamble and 368 condition, we come back to the same conundrum posed one by Justice Matthew on this side and another by Justice Krishna on the other, are all these concepts somewhere in the air or are they all based on the constitution, according to me, they are based on the constitution , but we must always remember that it is a constitution that we are expounding the most important words of the Chief Justice Martial in Makalak and Maryland, never forget that we are interpreting a fundamentally fundamental document in all of our lives, so the principles of interpretation that are apply to this document will be completely different from the ordinary principles of legal interpretation now if we keep this in mind and if we realize that we are not to stand behind the words, so to speak, but that the words themselves produce principles, then I do not believe that we have no difficulty in reconciling these two visions.
You reconcile them by saying yes. it has to be somewhere in the constitution it doesn't need to be in an article it doesn't need to be in a sub-article it can be in a group of articles it can be on one red end with the other but ultimately what you find in the words is principles and If what you find are principles, then we have no difficulty, so if you ultimately want to modify a principle, say of independence of the judiciary, you will find it supported in chapter four of part five, which deals with the judiciary. superior. is based on 235 onwards which deals with higher courts and subordinate judiciary so ultimately it must be based on some article or group of articles and if it does so then an essential feature of the principles arises and if you want to modify any part. of that essential feature, please be careful, okay, it stares you in the face, now the other problem is assuming that you have something that is not or cannot be found in some article.
Justice Khalifullah referred to the supremacy of the constitution. Where do we get this concept from? It is not the constitution itself. we get it from the fact that it is a developed norm, it is a basic document and the fact that it is above all laws, remember that the US constitution has this based on article 6, roman article 6, which says that the constitution and the laws created under it will be the supreme law of the land, we do not have any such article, so possibly the basic structure is found not only in groups of articles, but also in principles that can not only be extracted from the articles themselves but also from concepts. which are so obvious that someone would say, of course, that there is no doubt that the constitution is supreme, so now we have a third proof.
Now we come to the jurisprudence that followed us after keshavananda bharti. Remember how we stopped halfway, so to speak? jurisprudence we start with shankari prasad we pass on to sergeant singh the doubts of two learned judges goloknath the annulment of goloknath and then keshavananth postke shavananda practically the first case that came up was the indira ghandi election case and it became somewhat notable with the addition of the new article 329 capital a, the prime minister and the president, in simple words, were placed above the law, in short, if there was an election of a prime minister or a president, not only could no court intervene in it, but if a If the court had intervened in it now no law would apply on appeal and five justices were unanimous in using the basic structure to overturn it, although in different very different views Chief Justice Ray's view was perhaps the broadest view as to what Regarding the constituent body, he said yes, constituent body.
He is above parliament, above the supreme court, above everything, above all the organs of state, and he can do practically whatever he wants, but ultimately, if he is going to overturn a ruling he can do, he has to apply the law and here it was not applying anything. therefore, according to the learned Chief Justice, the concept of rule of law comes into play, there was no law that could be applied, therefore the amendment was bad and while it is an essential feature, the second learned judge, justice khanna, found that it went to the heart of democracy, why? because the concept of free and fair elections had been invaded, you put two people above the law and no matter how unfair the result of the election is, it must be appealed, so it was based on democratic principles, justice, Matthew essentially argued that a constituent body, however generous, is not something that is prepared to decide cases, and in a very interesting footnote that you should all read, he describes a relief bill that was passed, which It was one of the last bills of assistance passed against a man named Fenwick in 1696 and what it says is that a beloved attendant is like a legislative trial.
All legislators sit as judges. The accused is placed in the dock. The charges are aired to him and then he presents his defense to them and describes the scene of what happened Fenwick style. Poor Fenwick. he was proposing something people were chatting among themselves without listening to him people said that legislators came and went in short his judges just didn't care about him and the poor man was executed and that was perhaps one of the last bills ever a bid was approved, which is why the US Constitution that followed 100 years later expressly said that Congress shall not pass any wanted assistant or exposed de facto law, so Judge Matthew relied on the principle of that a constituent body, even though it is above the organs of the state, is not equipped to deal with people, individuals and previous judgments, was a doctrine of separation of powers, in short, which he used to overthrow the amen.
Judge Chandrachud took up article 14 and said that the principle of equality had simply been violated. He has chosen two people and put them at the top. the law there is no intelligible difference between the firstminister and any other elected person and you have said that as far as they are concerned there is no problem, everything passes as far as the other is concerned, you have an electoral code that must be followed, justice is great. He didn't say much about the basic structure, but he also felt that if he interpreted the amendment in a particular way then, in reality, the prime minister and the president would have to face a proper trial and would ultimately have to decide an appeal of conformity with the law so that the The first trial after Keshavananda produced some very, very notable fruits.
You already had five different visions and five different characteristics called basics. What followed this was how Judge Kalifullah pointed out to you the judgment of the great mill Minerva. Now here I must give you a personal note lord dazachanji who is no longer alive came in just after I graduated as a law student and presented me with Minerva's report and said look you will be the only young man of lord rani palkiwada in this matter because it is not a payment matter, he is going to stay in tata house and we have collected this petition because a series of petitions we could collect anyone to now get two pernicious parts of the emergency amendment which is the forty-second amendment removed with Ambassador Palkiwala as he was then in the US he had promised the nation in one speech after another that whatever the Janta government could not undo he would do it as a lawyer, so what was not undone by the Amendment 44 were two very important aspects from a constitutional point of view, one was the cancellation of the theory of basic structure. in articles 3368 4 and 5, which basically said that there is nothing like a basic structure and that parliament cannot touch a constitutional amendment, sorry, sorry, God could not touch, so what parliament said was the last second 31c and then developed into two, not just property rights. which were contained in 39 bnc, but all the directive principles, so that now, at the time when there was any law that could somehow be attached to a directive principle, it exceeded articles 14, 19 and 31. so he went to the courts to challenge what was left of the 42nd amendment and was successful in that challenge, all five judges struck down 368 4 and 5, although you will find a slightly different difference in the reasoning.
Justice Bhagwati's reasoning was that 368 4 and 5 now prevent a court from determining whether an amendment is procedurally bad. also and what he said was that suppose article 53 was amended 53 fall directly within the condition of article 368 and would require ratification suppose the president signs a bill without ratification then what did he say, based on the fact that we cannot even touch a constitutional amendment for not following the constitution this provision is bad, chief justice chandrachud said that it was not till the end and said that keshavananda has laid down as a principle that there is a basic structure that has to be followed that principle, this violates that principle, for therefore, and 31c again there It was a justice of division.
Bhagavati was in the minority there because he felt that if 31a was valid and 31cs originally enacted was valid, this was a logical extension of the two, but fortunately for us, Chief Justice Chandrachud and three other learned judges asked them to stop on this point and They said that articles 14 and 19 are two parts of what they picturesquely describe as a golden triangle, the third being article 21 and they said that if two sides of this golden triangle were to be stripped of their effectiveness in the extent to which a large number of laws were Therefore, the concerned constitution would be affected and Article 31 which it has amended would not be passed.
Another very important thing that Justice Chandra, Chief Justice Chandrachud, was at that time established in Minerva Mills was the fact that not only the basic structure was here to stay, but that fundamental rights were a means to achieve The ends that were established in the directive principles, both were of equal importance, so now a draft cannot be written about the means, no matter how laudable the end after Minerva, we have again had a series of trials, the first was vaaman rao in which 31 a b and c as originally drafted were under challenge, all were confirmed subject to a single clause newly established by chief justice chandrachud after 24 april 1973 which is the date of keshavananda bharti, parliament need not continue to populate the calendar of nine with laws and if it continues to populate those laws, each such amendment will now be subject to being tested on the basis that it violates the basic structure.
The third is a very interesting ruling in the Minerva Mills trilogy and the second Vamana, that is the case that bears the name of Bim Singh Ji who proposed a square that directly challenged the urban land ceiling law that was being putting in the ninja the five judges agreed that a section of innocuous property should be torn down this is what is of great interest that section was 27 one of urban lancia and all that That section said that if you want to transfer urban land within a period of 10 years, you must obtain permission from a competent authority to do so.
All five of them felt it was bad, unfortunately we have no reasons. Three of them, Chief Justice Chandrachud, agreed. with justice krishna at the end of his term and justice krishna signed a short judgment at the end of his term in which he agreed with chief justice chadrachu and both agreed that 27 would be set aside but did not give reasons, for the reasons what we have. to go to the minority judges, judge apsen used a property argument as part of a basic structure that judge khanna said cannot be used and judge tuljar buys article 14. So again we are back to square one, no one You know what that section was really like.
Overturned and published that ruling, we have also had a couple of rulings where the concept of judicial review arises from, as you were told, Dr. Bakker's favorite articles 32, 226 and 227 and various amendments, one in article 371d of Samba Murthy and in Chandra. kumar in 1997, where again a part of the 42nd amendment was struck down to say that article 323 b, which now talked about courts superseding high courts under articles 226 and 227, would be bad, so we have a more concept which is now firmly entrenched in our law: Judicial review is now also part of the basic structure of our constitution and we finally have the koala.
Now the koala was meant to clear up some loose knots left by the sacred trilogy I talked about, which is Minerva Mills, Vaman Rao and Bim Singh. What he did was create other problems because, although he recognized the fact that fundamental rights are part of the basic structure, he went on to have a two-tier test and said that the first thing to ask is whether a particular law violates a fundamental right in particular. correct, if the answer is yes, move on to the second test, the second test then is: does it violate the basic structure? Now, if fundamental rights are already part of the basic structure, where is the question of whether there is a second test?
So now we are left with several losing strengths and ultimately today if you ask me why or where the doctrine of basic structure is, I would probably answer by saying that it is probably where the elephant is with the six blind men, each one will describe it from their own perspective. point of view, but requires some light. and some view so that we can finally see the elephant and with that I end this talk and I hope that at some point there will be a clear view. Thank you so much.
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