INTRODUCTION
The basic structure of the Constitution of India states that Parliament cannot destroy or alter the basic features of the Indian Constitution. There are Five bisections of the basic structure of the Constitution of India, they are (i) supremacy of Constitution (ii) Republican and democratic form of government (iii) Secular character of constitution (iv) Separation of Power (v) Federal character of the constitution.
However, the word ‘Basic Structure’ is not mentioned anywhere in the constitution but interpreted from time to time to protect the philosophy of the constitution and basic fundamental rights of citizens. Parliament has the power to amend the Constitution under Article 368 of the Constitution. Moreover, this power is not absolute and the Supreme Court has ensured to act as a barricade to legislative enthusiasm since Independence.
Firstly, in Shankari Prasad vs. Union of India, 1951 and Sajjan Singh vs. State of Rajasthan, 1965 It was held that Parliament has the power under Article 368 to amend any part of the constitution including fundamental rights. However, this rule was boycotted in subsequent Golak Nath Vs State of Punjab 1967 where it was held Parliament has no power to amend Part III Fundamental Rights of the constitution. Later on, Kesavananda Bharti Vs. State of Kerala[1] was the landmark case which bifurcated and distinguished other parts of the constitution and basic structure. The held basic structure cannot be diluted. The Constitutional Bench in Kesavananda Bharati case ruled by 7-6 verdict held Parliament can amend any part of the Constitution but has no power to amend basic structure or features of the Constitution.
PRE KESHAVANANDA BHARTI CASE:
In Sri Sankari Prasad Singh Deo’s case [2]
It was held that fundamental rights could be shortened by constitutional amendment. This view was also affirmed once again in Sajjan Singh’s case.
In Sajjan Singh case
After Shankari Prasad case the fourth amendment Act,1955 was passed which amended some articles of Fundamental Rights passing through judicial scrutiny. Also, when the Seventeenth Amendment Act,1964 was introduced a number of changes were made to Ninth Schedule so as to remove the judicial review and was finally challenged in court. But the logic in Shankari Prasad case was affirmed once again in the current judgement, thus upholding law of amendment superior to Article 13 (2). It further agreed with Shankari Prasad case on the affirmed ground that Article 368 gives an absolute right to Parliament for amending any provision of the Constitution which includes Fundamental Rights as well. However, in the very same judgement Justice Hidayatullah and Mudholkar stood for minority view for protecting the basic structure of our Constitution. Hidayatullah.J was of the opinion as follows
“The Constitution gives so many assurances in Part III that it would be difficult to think that they were the plaything of a special majority. To hold this would mean prima facie that the most solemn parts of our Constitution stand on the same footing as any other part and even on a less firm ground than one on which the articles mentioned in the proviso stand. As at present advised, I can only say that the power to make amendment ought not ordinarily to be a means of escape from absolute Constitutional restrictions.”
Also, the court was of the opinion that Shankari Prasad case needs reconsideration and held that
“…if the arguments urged by the petitioners were to prevail, it would lead to the inevitable consequence that the amendment made in Constitution both in 1951 and 1955 would be rendered invalid and a large number of decisions dealing with the validity of the Acts included in the Ninth Schedule which has been pronounced by the different High Courts ever since the decision of this Court in Shankari Prasad‟s case was declared, would also be exposed to serious jeopardy. These are considerations which are both relevant and material in dealing with the plea urged by the petitioners before us in the present proceeding that Shankari Prasad‟s case should be reconsidered.”
BASIC FEATURES OF CONSTITUTION HELD IN KESHAVANANDA BHARTI CASE
Each of the judges involved in delivering the judgment of this landmark case explained the concept of basic structure individually.
Justice Sikri included Supremacy of Constitution, Republican form of government, Secularism, Concept of separation of powers, federalism
Justice Shelat and Grover added that Unity and Integrity of the nation along with building a welfare state as per Directive Principles of State Policy are also features of the basic structure. Justice Jaganmohan Reddy added sovereign democratic and republic, democracy, three organs of the State features as envisaged in Preamble of the Constitution. Justice Hegde and Mukherjea also included unity of the country, individual freedom of citizens, the sovereignty of the country, the democratic character, to build a welfare state.
POSITION AFTER KESHAVANANDA BHARTI CASE:
In M.Nagraj v. Union of India[3] The Court formulated twin test to decide whether an amendment is for or against the basic structure of the Indian Constitution. These are the width test and test of identity.
In Minerva Mills V. UOI [4] , The Supreme Court since the clauses of Article 368 destroyed essential features of basic structure envisaged in our constitution removed clause (4) and (5) of the same. It was held “The newly introduced clause 5 of Article 368 transgresses the limitations on the amending power of Parliament and is hence unconstitutional. It demolishes the very pillars on which the preamble rests by empowering the Parliament to exercise its constituent power without any “limitation whatever”. Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limiting power enlarge that very power into absolute power. Parliament cannot under Article 368 expand its amending powers so as to acquire for itself the right to repeal or abrogate or to destroy its essential features.” It is in the I.C. Golak Nath And Ors. vs State Of Punjab And Anr.[5]Held that Parliament’s amending power does not include Fundamental Right and it is held only with a Constituent Assembly. The term “amend” included in Article 368 was explained in this case as “change”. The proviso of the article is meant for amendments that seek to do necessary modifications in existing articles. The power conferred under Article 368 is to amend or make changes in the Constitution. The Seventeenth Amendment made no direct change in Article 226 but instead shortened some of the rights conferred by that part due to which the High Court lost its power to issue writs under Article 226. In this case, it was further held “Constitution (Seventeenth Amendment) Act amended the fundamental rights solely with the object of assisting the State Legislatures to give effect to the socio-economic policy of the party in power and its effect on Art. 226 was incidental and insignificant and the impugned Act, therefore, fell under the substantive part of Art. 368 and not attract the proviso to that article. It was further held by this Court that there was no justification for reconsidering Sankari Prasad’s ([1952] S.C.R. 89) case.” In S.Krishnan and Others v. The State of Madras[6] It was observed that “My concept of a fundamental right is something which Parliament cannot touch save by an amendment of the Constitution”. In S.R.Bommai V UOI [7] In this case, the concept of secularism as basic and essential feature of the constitution was re-iterated. “Democracy and Federalism are considered essential features of the Constitution and are part of the basic structure.” I.R.Coelho v. State of Tamil Nadu[8] The Supreme Court held that
“All amendments to the Constitution made on or after 24th April 1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution as reflected in Article 21 read with Article 14, Article 19 and the principles underlying them. To put it differently, even though an Act is put in the Ninth Schedule by a Constitutional amendment, its provision would be open to attack on the ground that they destroy or damage the Basic Structure if the fundamental right or rights taken away or abrogated pertains or pertain to the Basic Structure.”
ELECTORAL BOND SCHEME:
Electoral bonds are like promissory notes bought by any company and citizens from branches of SBI to donate it to the political parties of their choice. They are issued in various denominations ranging from Rs 1000 to Rs 1 crore. The issue with the introduction of these bonds is that they can only be encashed by political parties that have a minimum of 1 percent votes polled in most recent Lok Sabha election. Also, the donor of the amount is maintained anonymous thus violating the basic structure of transparency envisaged in our Constitution. These bond amount can be deposited only to allotted bank account verified by Election Commission. Since the identity of the donor is kept at secrecy it can even lead to an influx of black money and huge funding by big corporate for transactional favors.
A petition against the scheme was filed in Supreme Court by Association for Democratic Reforms and Common Cause after it was brought into law by the Finance Act 2017 which argues for unconstitutional illegality of the scheme introduced. Later on, In 2018 The Communist Party of India (Marxist) filed a petition against the scheme arguing that it strengthens black money circulation, corruption and removes all the safeguards which are meant to ensure transparency in election funding.
The current electoral bonds scheme was introduced by the Finance Acts of 2016 and 2017 amending four legislations- Foreign Contribution Regulation Act,2010(FCRA), Representation of the People Act, 1951(RoPA), Income Tax Act,1961 and the Companies Act,2013. The scheme clearly violates the federalism principle envisaged in our Constitution thus bypassing the scrutiny of Rajya Sabha. The bill is also of the nature of the money bill. It was further argued that four amendments should have actually been explained by Rajya Sabha. The petitioner ADR has filed a stay application on Electoral Bond Scheme on two grounds namely:
Firstly, almost all bond donations made have been in favour of the political party leading the Union Government. Secondly, Most bonds use 1 million and 1 crore denominations suggesting the hidden agenda used by corporations for preference and favors from the ruling party forming the government.
The Election Commission of India in its affidavit clearly opposed the introduction of the Electoral Bond Scheme explaining that it kills the transparency of political parties’ functioning. It also claimed that Political parties can fall prey to influence by foreign companies and the amendment made to Companies Act can increase the influx of black money via shell companies.
Further to the ADR Petition, the Bench of Supreme Court passed an interim order directing all political parties to submit the information regarding all bonds received until the 15th of May to Election Commission of Indian by 30th May 2019. The case is yet to be decided.
CONCLUSION
In essence, though the idea and essentials of the basic structure are well established, what constitutes as a basic structure cannot be determined with any finality of the word until a judgment is passed by the Supreme Court. Also, the history of landmark judgments has paved the way to establish that Parliament cannot bypass judicial review. This has made clear that even in future the laws that disregard the essential features of basic structure cast in our Constitution cannot be amended by Parliament. The non-absolute nature of Parliament’s amending power is well established giving the final say to the highest authority which is Supreme Court to uphold and guard the Constitution.
Dhivya Uppili
SASTRA Deemed University
REFERENCES
Kesavananda Bharti Vs. State of Kerala (1973) 4 SCC 225: AIR 1973 SC 1461.2.
Sri Sankari Prasad Singh Deo 1951 AIR 458.
Nagraj v. Union of India (2006) 8 SCC 212.
Minerva Mills v.UOI 1980 AIR 1789.
C. Golak Nath And Ors. vs State Of Punjab And Anr 1967 AIR 1643.
Krishnan and Others v. The State of Madras [1951] S.C.R. 621, 652.
R.Bommai V. UOI AIR 1994 SC 1918.
R.Coelho v. State of Tamil Nadu AIR 2007 SC 861.
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