Part III of the Constitution exists with the same objective that our rights and freedoms should be protected against the States arbitrary invasion. So this means that Sates actions should be judged on the basis of their impact on the rights and freedoms of the people and this entire concept is Article 13. Fundamental Rights have existed since the time our present Constitution has existed i.e. from 26 January 1950 that means fundamental rights have become operative from this day.
Pre- Constitutionals Laws
- Article 13(1) talks about the laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
- It deals with Pre- Constitutional laws. Many different laws were present before the constitution came into being force, and remained in effect after that. So, this article provides that those laws (existing before the constitution) which are inconsistent with Fundamental Rights become void and others will remain valid. For example: 1930 Education act which has many clauses but there was one clause which talks about this “particular cast of children” will not be able to get admission, so this clause is against FR so it will be void.
There are two doctrines which are related to this article that are the following:
- The doctrine of Severability (to separate):
It is a type of filter for the laws in which every law has to be passed. The filter will see that the laws are consistent with the fundamental rights or not, if not then that law or article will be separated from the act.
Case: A.K. Gopalan v. State of Madras In this case section 14 of the Preventive Detention Act was challenged. According to section 14, if any person is detained under this act then he cannot know the grounds of detention in the court. So, this section was against FR. If we apply the Doctrine of severability then only section 14 of this act was inconsistent with fundamental rights so, it will be separated from the act. - The doctrine of Eclipse (to hide):
Eclipse means to shadow something, to hide. Those rights which are inconsistent with FRs shall be shadowed by FRs which means that they shall not cease to exist, but only become inoperative. In the future when due to amendment these shadowed rights become consistent with FRs then they become operative again.
Case: Bhikaji Narain Dhakras v. State of M.P.:- In this case Berar Motor Vehicle Act was challenged. There were certain sections in this act which empowered the state government to transfer the ownership of all of the motor business to itself. After 1950 all those provisions become violate article 19 now all the rights which are inconsistent with FRs will be removed after that we will apply the doctrine of Eclipse, and say that FRs will prevail over these sections means all these sections will become inoperative.
After some time Article 19(g) [to practice any profession, or to carry on any occupation, trade or business] was amended and the government was authorized to monopolize certain businesses. So, those sections which were inoperative because of section 19, will now become operative. The existence will not be gone it will only became inoperative.
Post Constitutional Law
- 13(2): It deals with Post-Constitutional laws. According to this article after the enforcement, the State is prohibited to make such laws that are inconsistent with Fundamental Rights. If they make such laws then they will become void.
Case: State of Gujrat v. Ambica Mills:
In this case, a certain labor welfare fund was challenged. It contained certain questions which were against fundamental rights. It was clear that laws that are inconsistent with fundamental rights will not be made but here the question arises that can we made laws that are inconsistent with fundamental rights for companies or non-citizens because this respondent was a company.
It was said by the Supreme Court in this case that no law will be made which are inconsistent with fundamental rights and even if such law is made it shall not apply to the citizens. But all those categories of parties that have not been granted fundamental rights like companies, non-citizens, for them that piece of legislation is still operative that is not void, that is valid.
So basically state is prohibited to make any law which is inconsistent with FR but it will be valid for non-citizens and companies because they are not granted FR.
What is “LAW”? And what all are included in Law?
13(3): This article said that all those laws which affect the legal rights of the citizen will cover under article 13 i.e. any ordinance, order, bye-law, rule, regulation, notification, custom, or usage.
- However, there are two exceptions to it:
Generally Administrative & Executive order will be covered under art 13 but if their nature is only instructions or guidelines then it will be not covered under this section. - Personal laws are not included in Article 13.
13(4): Nothing in this article shall apply to any amendment of this Constitution made under article 368.
- The question was arises that does amendment can be challenged or not? To answer this question that who is supreme the Supreme Court or the Parliament, for clarification this article was inserted by the 24th amendment, 1971, which led to Doctrine of basic structure.
- Judicial Review: Legislature has the power to make laws, this power is not absolute. Judicial Review is the process by which the Judiciary reviews the validity of laws passed by the Legislature. This power was conferred to the Supreme Court and High Court under article 13 of the Indian Constitution. This power protects and enforces the Fundamental Rights guaranteed in Part III of the Constitution.
Doctrine of Basic Structure
The framers of the Constitution were so intellect that they know that if they choose flexible Amendment procedure, the ruling party can use that procedure as their weapons so they adopted a middle course. They made the procedure neither too rigid nor too flexible. if the parliament wants to make any changes or amend the Constitution they have to propose the bill in the parliament and after the voting if the bill gets the majority, the bill will be sent to the president for his consent after the consent of the president the bill got passed and the Amendment completes, but this powers are not absolute.
The framers of the Constitution gave some powers to the judiciary as well. If the Amendment was passed by the parliament and if the judiciary feels to review it, the judiciary has the power and if the judiciary thinks that Amendment is unlawful or against any provision or against public morality or fundamental right, then they have the power to declare such amendment as invalid. (Judicial Review). Article 13(2) The State shall not make any law which takes away or abridges the rights any law made in contravention of Fundamental right will, be declared void. On the other hand under article 368 there is power of parliament to amend the constitution. But the question is to what extent they can amend?
The Doctrine of Basic structure is a doctrine to put limitation on the amending power of parliament so the basic structure cannot be amended. Parliament can change the whole Constitution but the basic structure cannot be amended. These basic features is not exhaustive in future other elements can also be considered as basic feature.
Basic Structure Such as:
- Supremacy of the Constitution
- Unity and sovereignty of India
- Democratic and republican form of government
- Federal character of the Constitution
- Secular character of the Constitution
- Separation of power
- Individual freedom (Over the time many other features also added such as) –
- Rule of law
- Judicial review
- Parliamentary system
- Rule of equality
- Harmony and balance between the Fundamental Rights and DPSP
- Free and fair elections
- Limited power of the parliament to amend the Constitution
- Power of the Supreme Court under Articles 32, 136, 142 and 147
- Power of the High Court under Articles 226 and 227
Evolution of Basic Structure
1. Shankar Prasad vs. the Union of India, 1951:-
1st Constitutional amendment act which deals with article 31 (Right to property), initially we were provided 7 fundamental rights but in 44th amendment act they removed article 31. Now let’s understand the story behind 1st amendment act. When India became independent, at that time there was inequality in landownership, farmers were not having any securities. So abolition of zamindari system was a revolutionary policy of independent India so for this reform, after independence Indian national congress setup a committee known as “Agrarian Reform Committee” so objective of this land reform policy was to “fix ceiling limit on land holding” and then in 1951 1st constitutional amendment was passed in which article 31A & 31B was inserted. Article 31A&B talks about that state has power to take property from any person by legal procedure and provide compensation to such person. Article 19(1) (g) was also inserted in which some restriction was introduced, state were given power to acquire any business partially or completely. So these new article were affecting the fundamental right and people were looking at these articles as an attack to right to property.
So this 1st constitutional amendment act was challenged in Shankari Prasad case. The court said all these changed are valid and said that parliament has power to amend even the fundamental right. Court also said that article 13 only applies to ordinary laws not on constitutional amendment act.
Its means parliament is more powerful and can even amend the fundamental rights.
2. Sajjan Singh vs. State of Rajasthan:-
In this case 17th Constitutional Amendment act was challenged because it was restricting the power of High Court, judicial review power was curtailed. It introduced a major change in which state governments put here land reform acts in 9th schedule. Generally if any law made which is violative of fundamental right will be declared void but if you put any law in 9th schedule then those laws will be given immunity against article 13 even if those law are violative of fundamental right.
So this 17th Constitutional Amendment act was challenged in Sajjan Singh case. In this case five judges bench was there and judgment ratio was 3:2 The majority of judges in this case is on the same logic as held in shankari prasand case, that parliament has enough power to amend the fundamental right and is not subject to article 13. Judges were not satisfied so they refer this case to larger bench (it should be more than 5 judges).
3. Golaknath vs. State of Punjab:-
Again 17th Constitutional Amendment act was challenged and 11 Judges Bench was constituted. The court said the power to amend constitution (368) is not absolute power of parliament, Parliament power is subjected to restrictions & limitation and even subjected to judicial review under article 13. The court further said that parliament does not have power to amend or violate the fundamental right and if any law made by parliament which will violate the fundamental right it will be declared void under article 13. So basically Golaknath case reversed the judgment of shankari prasad case and sajjan singh case. But this case was given prospective ruling.
4. 24th Constitutional Amendment Act:-
Because of golaknath judgment parliament power was reduced, so to regain power back the parliament reverse the judgment of golaknath. So parliament came up with 24th Constitutional Amendment Act and make some changes in article 13 and article 368.
- In article 13 they included clause(4) which said that nothing in this article would apply to article 368, which means anything can be done under article 368 and it would not attract the attention of judicial review.
- Under article 368 they change the marginal heading of 368 from “Procedure for amending the Constitution” to “Power of Parliament to amend the Constitution and procedure therefore”.
- Parliament also added clause (3) in article 368 which says that if parliament bring any constitutional amendment then it will not be covered under article 13.
- 24th Amendment also says that it has power to amend any part of the constitution even fundamental rights
After that many Constitutional Amendments Acts were introduced:
- 25th CAA: which reduce “Property Rights”
- 29th CAA: which brought land reforms
5. Kesavananda Bharti vs. State of Kerala:-
This case is also known as Fundamental Rights Case It was one of the largest bench of 13 Judges, heard for 68 days. In this case the validity of 24th 25th, 29th amendment was challenged.
The question was related to the scope of amending power of the parliament?
The Supreme Court said that there is enough power to amend the constitution which was already in constitution and 24th amendment act just made it explicit and clear. Court said that the Basic Structure cannot be amended. It means you can change the old constitution into new constitution and can even amend the fundamental right but the basic feature must not be changed. The list of basic features is not exhaustive in future other elements can also be considered as basic feature. If in future date if question arise that whether any particular feature will be the part of basic structure or not, then judges have to give attention on the framer of the constitution that at what intention that particular act was made, then you will understand weather that is a basic structure or not.
6. Indira Gandhi vs. Raj Narain
Background – On 12th June 1975 Allahabad High Court pronounced a historic judgment, the court quashed the Indira Gandhi election because of electoral mal practice and disbarred Indira Gandhi to hold any elective office for 6 years and because of this judgment Indira Gandhi was very much dissatisfied by the court.
So Indira Gandhi passed 39th Constitutional Amendment Act, then filed an appeal just next day in Supreme Court against Allahabad High Court and after few days she declared National Emergency. In 39th Amendment act added article 329A (which talks about that Supreme Court will not have power to hear electoral disputes of President, Vice President, PM, Speaker of Lok Sabha, it will be tried by separate body not by SC) and article 71 was removed. The case pending in SC was not able to trail after 39th amendment act.
The objective of amendment was very clear that Indira keeps on continuing as a PM. But after election result Janta party wins the election with majority and Morarji Desai became the next PM. After coming into power janta party removed article 329A and added again article 71 which was previously removed by Indira Gandhi. After doing such changes by Janta Party SC again regained power to trail electoral disputes cases.
7. Minerva Mills vs. Union of India
42nd Amendment Act was challenged, this amendment made so many changes in the constitution that it’s known as “Mini Constitution of India”. In this amendment Article 31C (Right to Property) inserted section (4) and in Article 368 it inserted clause (4) & (5).
- Article 31C Section 4 talks about that if parliament add any provisions in Part (IV DPSP) which is violative of Part (III Fundamental Right), then also it will be valid and cannot be challenged in court (No Judicial Review).
- Clause (4) of article 368 talks about the parliament has power to amend any part of Part (III) and even if they remove or insert any provision it cannot be challenged in court (No Judicial Review).
- Clause (5) of article 368 talks about that there should be no limitation on amending power of parliament. Parliament has been given absolute power.
The purpose of this amendment was to nullify the effect of Kesavananda Bharti case, to remove the basic structure doctrine and remove the judicial review power and remove the limitation on parliament to amend.
42nd Amendment Act was challenged in Minerva Mills Case, the petitioner of the case were the owner of the Minerva mills, this mill was taken by the government because of nationalization, so In this case 42nd amendment act was declared invalid and was an attack on basic structure and held unconstitutional. The Court said that the constitution is supreme and you cannot destroy its identity and the parliament cannot exercised unlimited amending power.
In this case SC gave three new Basic Feature
- Judicial Review – cannot be suppressed by parliament
- Limited amending power of the parliament – it cannot expand its amending power
- Harmony between Part III & IV – there must be balance between fundamental right and directive principle of state policy, there must not be conflict between them
8. Waman Rao vs. Union of India 1981:-
After coming of Doctrine of Basic Structure all the previous Constitutional Amendment were been challenged in Court on the grounds of whether those constitutional amendments fulfill Doctrine of Basic Structure or not.
So in this case declared that the doctrine of basic structure which was introduced in kesavanada bharti case on 24th April 1973, will be given prospective ruling from this date not retrospective.
Contribution to Basic Structure:
Chief Justice Sikri indicated that Basic structure is:
1. The supremacy of Constitution
2. The republican and democratic forms of government
3. The secular character of Constitution
4. Maintenance of separation of power
5. The federal character of the Constitution
Justices Shelat and Grover added another three:
1. The mandate to build a welfare state contained in the Directive Principles of State Policy
2. Maintenance of the unity and integrity of India
3. The sovereignty of the country’
Justices Hegde and Mukherjea listed the following:
1. The Sovereignty of India
2. The unity of the country
3. The democratic character of the polity
4. Essential features of individual freedoms
5. The mandate to build a welfare state
Justice Jaganmohan Reddy referred the Preamble only:
1. A sovereign democratic republic
2. The provision of social, economic and political justice
3. Liberty of thought, expression, belief, faith and worship
4. Equality of status and opportunity