Celebrating the very essence of our Constitution
Today marks the 72nd year of adoption of the Indian constitution which commemorated the beginning of Indian democratic culture marked by liberty, fraternity, and justice, something our brave freedom fighters fought for, for 200 long years.
The early phase of the drafting of the constitution was a highly controversial and tumultuous time, with the country facing outspread communal violence and with the constitution of a constituent assembly whose members were elected undemocratically to define the destiny of a well-dreamt democratic constitution.
Nevertheless, the constituent assembly met in numerous sessions for nearly two and half years before finally adopting the constitution on 26 January 1950, a date which was wisely chosen to give respect to Nehru’s 26 January 1930 proclamation of “Purna Swaraj”.
There are dozens of times when the constitution is disregarded, abridged by the citizens, and even by its protector to pursue their own selfish intent. This makes us question whether our constitution is still relevant, the ideas that were once incorporated, are still valid.
Such question of relevance has been answered with the watershed judgment in Indian judicial history, which gave us, “The Basic Structure Doctrine”. The doctrine is a judicial invention that tries to put its foot down regarding certain basic features of the constitution which should not be altered to the extent that the constitution loses its identity.
The making of this doctrine began with the very first amendment of the constitution, which introduced a new sub-section Article 31B to Article 31A, which sought to create the 9th schedule, that would shield all the laws from it being challenged for the violation of fundamental rights. As the constitution had stated under Article 13(2) parliament should not draft any law that infringes the laws under Part III.
A petition was filed in the SC challenging Article 31A and 31B on the grounds of its abridgment of fundamental rights. The Shankari Prasad vs UOI upheld the power of the state to amend the constitution including the fundamental rights as it was conferred under Article 368.
This judgment was challenged in the highly controversial case of Golak Nath vs State of Punjab, which made clear the tussle between the judicial and parliamentarian powers. It upheld the petitioner’s fundamental right to property disregarding the power of the state to acquire privately owned property even for public purposes.
Thus, Fundamental rights were shielded from the legislative power of amendment. This wasn’t an end to the challenges to our constitution and its very nature. As in 1971, Parliament devoid of its amendment power brought about the 24th amendment, which amended Article 368, giving the parliament the power to repeal, amend any law in accordance with the procedure laid in the same article.
The validity of the amendment was challenged in the most historic case of Kesvananda Bharati v. the State of Kerala, which saw the largest bench of judges to date comprising of 13 judges making the judgment. This case upheld the validity of the 24th amendment and overturned the judgment of the Golak Nath case.
It was held that the power of Parliament to amend the Constitution is far and wide and extends to all the Articles, but it’s not unlimited to the extent that it destroys the very essence of our constitution, something that is very basic to our constitution, making way for the “Basic Structure doctrine”.
Basic Structure Doctrine holds together the ideas of our constitution-makers with future visionaries of this age. It aims for development keeping in mind the true traditions and ideals that once founded our nation, thus no matter how misdirected we are, we carry the very essence of our constitution with us.
Updated by Preet Joshi