The Bold Voice of J&K

Insertions made in text of Preamble of Constitution don’t of violate ‘Doctrine of Basic Structure of CoI

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DAYA SAGAR

According to the Constitution of India (CoI), Parliament and the state legislatures in India have the power to make laws within their respective jurisdictions but the constitution can be amended by Parliament only. This power is not absolute in nature. The Constitution vests in the judiciary, the power to adjudicate upon the constitutional validity of all laws/acts of Parliament. If a law made by Parliament or the state legislatures violates any provision of the Constitution, the Supreme Court has the power to declare such a law invalid or ultravires. Notwithstanding review jurisdictions, those who drafted the constitution through the Constituent Assembly surely wanted the Constitution to be an adaptable citizen friendly democratic socialist document but they were very much conscious of their limitations , circumstances in had, having no any previous experience of having lived in such like system of governance and experience of the type and since they also did not want to give their generations a rigid framework for governance so they had also kept a provision in Art 368 for amendment by Parliament used the constituent ( constituent power ) but not beyond the principles enshrined in the final document. .Article 368 of the Constitution may give to some the impression that Parliament’s amending powers are absolute and encompass all parts of the document but the position is not like that . The Supreme Court can go for checks through reviews and has at occasions acted for suitable checks on legislative enthusiasm at occasions of since independence. In line with the intention of preserving the original ideals enshrined there in of the visionary constitution-makers, the Supreme Court of India has also laid down in 1973 ( through the Judgment 13 judge Constitution Bench in The Kesavananda Bharati judgment (Kesavananda Bharati Sripadagalavaru etc. v. State of Kerala and another etc. Writ Petitions Nos.135/70, 351-52i~73-74 and L±UO of 1972 , delivered on 24 April 1973 ) that Article 368 can not be used by Parliament to amend the constitution so as to distort, damage or alter the basic features of the Constitution under the pretext of amending it. Although the phrase ‘basic structure’ itself” is not found in the Constitution but the Supreme Court had placed before the citizens this concept in black & white for the first time in the Kesavananda Bharati case in 1973 as something like commonly understood as Doctrine of Basic Structure . Supreme Court has been the interpreter of the Constitution and the arbiter of all amendments made by Parliament but supreme court has in a way reserved the jurisdiction to ‘self’ to name the elements of basic structure of CoI as and when case for review comes before the apex court.
Parliament’s authority to amend the Constitution, particularly the chapter on the fundamental rights of citizens, was challenged as early as in 1951. After independence, several laws were enacted with the objective of reforms like land ownerships / special supports so socialy & economically weaker people & areas keeping in view socialistic spirits of the Constitution/ Article 39 (b) (c) of the Directive Principles of State Policy/ prevention of concentration of wealth in the hands of a few but citizens like the owners of properties/zamindaars / large land owners affected by such laws went to courts under protections provided in constitution where in some cases the land reforms laws were struck down by courts naming the laws as violating that the fundamental right to property, Upset by unfavorable judgments Parliament amended the constitution using Art 368 and placed such laws even in the Ninth Schedule of the Constitution through amendments like the First Constitution Amendment Act of 1951 and Fourth Amendment Act of s 1954and 1952 respectively making them free from the scope of judicial review.
In Sankari Prasad Singh Deo v. Union of India 1952 and Sajjan Singh v. Rajasthan 1955, the Supreme upheld that Parliament can amend any part of the Constitution including fundamental rights. But the dissent of two dissenting judges in Sajjan Singh v.Rajasthan case raised the questions about dangers of the fundamental rights at some occasion becoming of play way of the majority party/ group in Parliament..
Not only that In 1967 an eleven-judge bench of the Supreme Court delivering its 6:5 majority judgement in the Golaknath v. State of Punjab case Chief Justice Subba Rao put forth the curious position that Article 368, that contained provisions related to the amendment of the Constitution ,merely laid down the amending procedure and Article 368 did not confer upon Parliament the power to amend the Constitution and the amending power (constituent power ) of Parliament arose from other provisions as contained in the Constitution (Articles 245, 246, 248) which gave it the power to make laws (plenary legislative power). Thus, the apex court held that the amending power and legislative powers of Parliament were essentially the same. Therefore, any amendment of the Constitution must be deemed law as understood in Article 13 (2). The majority judgement invoked the concept of implied limitations on Parliament’s power to amend the Constitution. This view held that the Constitution gives a place of permanence to the fundamental freedoms of the citizen. In giving the Constitution to themselves, the people had reserved the fundamental rights for themselves. Article 13, according to the majority view, expressed this limitation on the powers of Parliament. In a way the apex court held that some features of the Constitution lay at its core and required much more than the usual procedures to change them.
So far the Indian Constitution has been amended 105 times by Parliament of India using constituent power resting in Art -368 . Some of the amendments have been made to explicitly project the spirits/principles enshrined in the ‘hearts’ of constitution like the insertions made in the text of the Preamble { using/substituting “Sovereign Socialist Secular Democratic Republic” by forty-second Amendment Act, 1976, s.2, for “Sovereign Democratic Republic” (w.e.f. 3-1-1977). And using expression/ substituting “unity and integrity of the Nation ” by s.2, ibid., for “Unity of the Nation” (w.e.f. 3-1-1977) by making insertions } and some of the amendments have been made keeping in view implementation of welfare intentions laid down in some articles of the constitution/ directive principles / fundamental rights / like as through The Constitution (First Amendment) Act, 1951 June 18 1951 where under Art 15,Art 19, Art 31, Articles 85, 87, 174, 176,341, 342, 372 ,376 were amended and Ninth Schedule was added after 8th Schedule ) and 4rth Amendment Act (The Constitution (Fourth Amendment) Act, 1955 17 April 1954 where under articles 31, 31A & 305 of, and the Ninth Schedule to the Constitution were amended ) . The substitutions made in the text of Preamble of Constitution of India have been very much within the powers of Parliament as laid in Art 368 of COI since the concerned section of the 42nd amendment Act of 1976 have very much with in the doctrine of basic structure of COI as professed in The 13 Judge – Bench ( Chief Justice S. M. Sikri) Writ Petitions Nos.135/70, 351-52i~73-74) which had held that Parliament has powers to amend the Constitution using Art- 368 but the Parliament cannot go beyond disturbing the basic structure of the Constitution of India and all amendments made to constitution are subject to judicial review.
To be continued
(The author is a Sr Journalist & analyst of J&K Affairs).

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