19 Article 21 and the enactment of mini constitution

Dr. Pallavi Kota

epgp books

 

 

INTRODUCTION:

Indian Constitution is basically a Federal Constitution having a clear tendency of turning unitary if the national interests so necessitate. Nothing in this country is above the Constitution but overall interests of the people of this country are above the Constitution. During the freedom struggle, the leaders of the freedom movement had realized the importance of rights and demanded that the British rulers should respect rights of the people. The Motilal Nehru Committee had demanded a bill of rights as far back as in 1928. It was, therefore, natural that when India became independent and the Constitution was being prepared, there were no two opinions on the inclusion and protection of rights in the Constitution.

LEARNINGS OBJECTIVES:

  • To learn about the limitations on amending powers of the Constitution.
  • To understand the formulation of doctrine of basic structure by judiciary.
  • To understand the doctrine of basic structure under constitution and its relationship with fundamental rights of the constitution.

PHILOSOPHY OF THE CONSTITUTION:

Some people believe that a constitution merely consists of laws and that laws are one thing, values, and morality, quite another. Therefore, we can have only a legal, not a political or philosophical approach to the Constitution. It is true that all laws do not have amoral content, but many laws are closely connected to our deeply held values. For example, a law might prohibit discrimination of persons on grounds of language or religion. Such a law is connected to the idea of equality. Such a law exists because we value equality. Therefore, there is a connection between laws and moral values.

We must therefore, look upon the constitution as a document that is based on a certain moral vision. We need to adopt a political philosophy approach to the constitution. What do we mean by a political philosophy approach to the constitution? We have three things in mind:

  • First, we need to understand the conceptual structure of the constitution. What does this mean? It means that we must ask questions like what are the possible meanings of terms used in the constitution such as ‘rights’, ‘citizenship’,’ minority’ or ‘democracy?
  • Furthermore, we must attempt to work out a coherent vision of society and polity conditional upon an interpretation of the key concepts of the Constitution. We must have a better grasp of the set of ideas embedded in the Constitution.
  • Our decisive point is that the Indian Constitution must be read in conjunction with the Constituent Assembly Debates to refine and rise to a higher theoretical plane, the justification of values embedded in the Constitution. A philosophical treatment of a value is incomplete if a detailed justification for it is not provided. When the framers of the Constitution chose to guide Indian society and polity by a set of values, there must have been thecorresponding set of reasons.

The Constitution listed the rights that would be specially protected and called them ’fundamental rights’. The word fundamental suggests that these rights are so important that the Constitution has separately listed them and made special provisions for their protection. The Fundamental Rights are so important that the Constitution itself ensures that they are not violated by the government.

Fundamental Rights are different from other rights available to us. While ordinary legal rights are protected and enforced by ordinary law, Fundamental Rights are protected and guaranteed by the Constitution of the country. Ordinary rights may be changed by the legislature by theordinary process of law making, but a fundamental right may only be changed by amending the Constitution itself. Besides this, no organ of the government can act in a manner that violates them. As we shall study below in this chapter, thejudiciary has the powers and responsibility to protect the  fundamental rights from violations by actions of the government. Executive, as well as legislative actions, can be declared illegal by the judiciary if these violate the fundamental rights or restrict them in an unreasonable manner. However, fundamental rights are not absolute or unlimited rights. The government can put reasonable restrictions on the exercise of our fundamental rights.

DOCTRINE OF BASIC STRUCTURE:

The basic structure doctrine is an Indian judicial principle that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the Parliament. Key among those “basic feature”, is the fundamental rights granted to individuals by the Constitution. The doctrine thus forms the basis of a limited power of the Supreme Court to review and strike down constitutional amendments enacted by the Parliament which conflict with or seek to alter this ‘basic structure’ of the Constitution. The basic structure doctrine applies only to constitutional amendments. The basic features of the Constitution have not been explicitly defined by the Judiciary, and the claim of any feature of the Constitution to be a basic feature is Acts of Parliament, which must itself be in conformity with the Constitution.

The “basic features” principle was first expounded in 1964, by Justice J.R. Mudholkar in his dissent, in the case of Sajjan Singh v. the State of Rajasthan. He wrote, “It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Article 368?”

Although Kesavananda Bharti Case was decided by a narrow margin of 7-6, the basic structure doctrine has since gained widespread acceptance and legitimacy due to subsequent cases and judgments. Primary among these was the imposition of a state of emergency by Indira Gandhi in 1975, and her subsequent attempt to suppress her prosecution through the 39th Amendment. When the Kesavananda case was decided, the underlying apprehension of the majority bench was that elected representatives could not be trusted to act responsibly was perceived as unprecedented. However, the passage of the 39th Amendment by the Indian National Congress” majority in central and state legislatures, proved that in fact, such apprehension was well-founded. In Indira Nehru Gandhi v. Raj Narain and Minerva Mills v. The Union of India, Constitutional Benches of the Supreme Court used the basic structure doctrine to strike down the 39th Amendment and parts of 42nd Amendment respectively and paved the way for therestoration of Indian democracy. The Supreme Court’s position on constitutional amendments laid out in its judgment is that Parliament can amend the Constitution but cannot destroy its ‘basic structure”.

 

In 1967, the Supreme Court reversed its earlier decisions in Golaknath v. State of Punjab. It held that Fundamental Rights included in Part III of the Constitution are given a “transcendental position” and are beyond the reach of Parliament. It also declared any amendment that “takes away or abridges” a Fundamental Right conferred by Part III as unconstitutional. By 1973, the basic structure doctrine triumphed in Justice Hans Raj Khanna’s judgment in the landmark decision of Kesavananda Bharati v. the State of Kerala. Previously, the Supreme Court has held that the power of Parliament has “wide” powers; it did not have the power to destroy or emasculate the basic elements or fundamental features of the Constitution.

 

The basic features of the Constitution have not been explicitly defined by the Judiciary. At least, 20 features have been described as “basic” or “essential” by the Courts in numerous cases, and have been incorporated into the basic structure. In Indira Nehru Gandhi v. Raj Narain and also in the Minerva Mills case, it was observed that the claim of any particular feature of the Constitution to be a “basic” feature would be determined by the Court in each case that comes before it. Some of the features of the Constitution termed as “basic” are listed below:

  1. Supremacy of the Constitution
  2. Rule of law
  3. The principle of Separation of Powers
  4. The objectives specified in the Preamble to the Constitution
  5. Judicial Review
  6. Articles 32 and 226
  7. Federalism
  8. Secularism
  9. The Sovereign, Democratic, Republican structure
  10. Freedom and dignity of the individual
  11. Unity and integrity of the Nation
  12. The principle of equality, not every feature of equality, but the quintessence of equal justice;
  13. The “essence” of other Fundamental Rights in Part III
  14. The concept of social and economic justice — to build a Welfare State: Part IV in toto (Directive Principles of State Policy)
  15. The balance between Fundamental Rights and Directive Principles
  16. The Parliamentary form of government
  17. The principle of free and fair elections
  18. Limitations upon the amending power conferred by Article 368
  19. Independence Judiciary (Powers of the Supreme Court under Articles 32, 136, 141, 142)
  20. Effective access to justice
  21. Legislation seeking to nullify the awards made in exercise of the judicial power of the State by Arbitration Tribunals constituted under an Act

The vision of the framers of the Constitution is projected in the Preamble and enumerated lucidly in Part III as inviolable fundamental rights enjoying paramount importance. These great rights are enforceable judicially. But beyond these human rights are directive principles of state policy spelled out in Part IV as provisions which, though not enforceable by any court are, neverthe- less, principles ‘fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws’. The conscience of the Constitution is the confluence of Part III and IV and although the highest court has sometimes differed in its interpretation, it is now settled categorically that the two parts have a harmonious togetherness. It is fair to hold that complete understanding of the supreme values of the Constitution must include Fundamental Duties added later as Part IV A. Indeed, Part III, IV and IV A have certain integrality. The meaning of meanings while reading these three parts has a cultural humanism and fraternal interaction. So much so, the finer essence of the Constitution is missed if the three parts are interpreted in isolation.

These rights universally apply to all citizens, irrespective of race, place of birth, religion, caste or gender. Aliens (persons who are not citizens) are also considered in matters like equality before thelaw. They are enforceable by the courts, subject to certain restrictions. The Rights have their origins in many sources, including England’s Bill or Rights, the United States Bill of Rights and France’s Declaration of the Rights of Man.

The part III of the Constitution of India gives a detailed description on a charter of rights called the ‘Fundamental Rights’. These fundamental rights guarantee civil freedom to all the citizens of India and allow them to live in peace and harmony. These are the basic rights that every Indian citizen has.These fundamental rights include Right to Equality, Right to Freedom, Right to Freedom of Religion, Cultural and Education Rights, Right against Exploitation, Right to Constitutional Remedies, etc. Anyone, guilty of the noncompliance to such Fundamental rights will be punished as mentioned in the Indian Penal Code, subject to the verdict of the judiciary. Fundamental rights for Indians aim at narrowing down the inequalities of pre-independence social practices, especially the abolition of untouchability. They also guarantee the protection of cultural and educational rights of some religious minorities by granting them the liberty to conserve their languages and educational institutions

IMPORTANCE OF FUNDAMENTAL RIGHTS:

There are six Fundamental Rights of Indian citizens. These Rights are peculiar in the sense that without these no one can live in a democratic manner. Democracy cannot work if the people do not have Rights. Fundamental Rights are essential for themoral and material development of the people also. Though these Rights are guaranteed by the Constitution, yet the state can suspend these rights temporarily, during theproclamation of emergency to maintain public order, security and so on. At the same time, these rights are justiciable also, the courts can protect and safe guard them if someone’s rights are violated. Fundamental Rights fulfill some basic and essential conditions of good life for Human progress. Democratic countries like India, Japan, France, Switzerland and many other countries, individuals without which democracy becomes meaningless. The Constitution of India has embodied many Fundamental Rights in part III. Citizens can enjoy these Rights within some definite limitations.

NECESSARY FEATURES OF FUNDAMENTAL RIGHTS:

  • Fundamental Rights are an indispensable part of our Constitution. Twenty-fourArticles are enjoyed with these fundamental rights. Parliament can amend Fundamental Rights by a special procedure.
  • Fundamental rights are only for Indian citizens. No alien is permitted to enjoy these rights, except Right to life and personal liberty.
  • Fundamental Rights are not absolute. Therefore, within some reasonable restrictions, citizens can enjoy them. Fundamental rights without prescribed conditions may disrupt public order.
  • Fundamental Rights are suspended during the time of emergency and Rights of the citizens are curtailed temporarily except Right to life and personal Liberty.
  • A citizen can go to the court for enforcement of his Fundamental rights if someone violates them under Article 32 and Article 226 of the Indian Constitution, a citizen can approach the Supreme Court and high court respectively in this regard.
  • Some Fundamental Rights are positive while some others are negative in nature.
  • Fundamental Rights aim at restoring collective interest along with individual interest.
  • Fundamental Rights are superior to ordinary law of the land. They have conferred a special sanctity.
  • Some provisions of Part III of the Indian Constitution are of the nature of prohibitions and place constitutional limitations on the authority of the state. For instance, no authority of the state can deny to any person equality before the law or the equal protection of the laws.

TYPES OF FUNDAMENTAL RIGHTS:

 

Six types of Fundamental Rights are available in our Constitution

  1. Right to Equality(Article 14-18)
  2. Right to Freedom (Article 19-22)
  3. Right against Exploitation(Article 23-24)
  4. Right to Religion (Article 25-28)
  5. Right to Cultural, Educational and Minority Rights (Article 29-30)
  6. Right to Constitutional Remedies(Article 32)

Let us know: Right to Property which was a fundamental Right has been eliminated from the list of Fundamental Rights by the 44th Constitution Amendment Act 1978 and abolished it as the country intends to promote the socialistic objectives. So now it is an ordinary Legal Right.

 

Following are the fundamental Rights in India:

 

RIGHT TO EQUALITY (Article14-18): It implies equality before the law and equal protection of the laws within the territory of India. No man is above the law of the land. Every person is subject to the ordinary law and amenable to the jurisdiction of the ordinary tribunals. Any discrimination is prohibited and equality of opportunity in matters of public employment under the state is ensured. There is no distinction between officials and private citizen and no discrimination based on caste, creed, religion, sex etc. But theright to equality does not mean absolute equality or universal application. Some exceptions are allowed by the Indian Constitution and these limitations are as follows:

  • The president of the Governor of a state shall not be answerable to any court for the power exercised or act done by him.
  • No criminal proceeding shall be instituted against the President or the Governor during term of office
  • Exemption from taxes to certain classes of property
  • Imposition of taxes upon different trades and professions
  • Making special provisions for women and child
  • Making special provisions for advancement of any socially, economically and educationally backward classes like SCs and STs including special employment opportunities, also known as protective discrimination.

II. RIGHT TO FREEDOM (Article 19-22): This right is the most significant and important for the citizens. This right confers some positive rights to promote the idea of liberty. Article-19 is the most important which guaranteed six freedoms to all citizens.

These are – 19(1) All citizens, shall have the right-

  • To freedom of speech and expression;
  • To assemble peacefully and without arms;
  • To form associations or unions;
  • To move freely throughout the territory of India;
  • To reside and settle in any part of the territory of India; and
  • To practice any profession, or to carry on any occupation, trade or business

Article 20 and 21 guarantee the right to life, dignity, and status. Under Article 20, no person accused of any offense shall be compelled to be a witness against himself. Similarly, under Article 21, no person shall be deprived of his life or personal liberty except according to the procedure established by law. Article 22 provides some safeguards against arbitrary arrest and detention. Like the Right to Equality, Right to Freedom is not absolute. The state can impose reasonable restrictions upon these rights incorporated in Article-19 to maintain a balance between individual liberty and social control. When a proclamation of emergency is made under Article 352, provisions of Article-19 itself remain suspended (Art.358)

III. RIGHT AGAINST EXPLOITATION (Article 23- 24): Indian Constitution recognizes thedignity of the individual against any form of exploitation either by the state or by the privileged section of the society. Therefore, right against exploitationprohibited traffic in human beings and forced labor and employment of child factories, mines or in any other ‘hazardous employment. No child below the age of fourteen years shall be employed to work in any factory or minds or engaged in any other hazardous employment (Article 24).

The provisions of Article 23 and Article 24 absolute and the state is firm on therestoration of dignity and status of the individual against any immoral purposes.

IV. RIGHT TO RELIGION (Article 25-28): Indian Constitution has adopted asecular ideology and declared India as a secular state, which observes and attitude of neutrality and impartiality towards all religion. There is no state religion in India. The state will neither establish a religion of its own nor confer any special patronage upon any religion. Every person is guaranteed the freedom of Conscience and freedom to profess, practice, and propagate his own religion subject to public order, morality and health. Every religious group has been given the freedom to manage religious affairs, own and acquire moveable and immovable property and administer such property in accordance with law. The right to Religion is also subjected to certain limitations. The state has the right and duty to intervene if any religious activity creates public disorder, immorality and so on.

RIGHT TO CULTURE, EDUCATIONAL AND MINORITY RIGHTS (Article 29-30):

The Constitution of India guarantees cultural and educational rights for all section of people irrespective of their religious, racial and cultural diversities. These rights are non-political in thereal sense. To reserve religious and cultural interest of each community, the Constitution of India incorporated these cultural and educational rights under Article 29 and Article 30. Article 29 guarantees to every minority or section of the people to preserve its language, script, and culture notwithstanding the provisions of Article-343 under which the official language of the union shall be in Devanagari script. The state shall not impose upon any minority group any culture other than the community’s own culture Article 29(1). Clause (2) of Article 29 provides that no citizen may be denied admission to State and State aided educational institutions on the grounds only of religion, race, caste or language. Article 30 provides that all communities shall have the right to establish and administer educational Institutions of its choice and the state shall not discriminate against them in making grants on grounds of religion, race or language. It is implicit in the right conferred by Article 30, the right to impart instruction in their own institutions to the children of their own community in their own language. This right has also some limitations. The State can regulate its affairs in the interest of efficiency of instruction, discipline, morality and public order.

VI. RIGHT TO CONSTITUTIONAL REMEDIES (Article 32-35):

A right without aremedy is a meaningless formality. Indian Constitution enumerates various rights to its citizen and to make these rights effective, it includes some means or remedies in the form of the Right to Constitutional Remedies under enforcement of Fundamental Rights by Constitutional means. Both the Supreme Court under Article 32 and the High Court’s under Article 226 can issue necessary writs for the purpose. When a citizen feels that his Fundamental Rights have been violated, he can move the court for redressal. The Supreme Court under Article 32, Section 2) and theHigh court under Article 226 may issue to safeguard the Fundamental Rights in the nature of habeas corpus, mandamus, prohibition, Quo-Warranto, and certiorari. These are some instruments and means to make Fundamental Rights more effective. The courts have the power to enforce Fundamental Rights by issuing these writs against any authority of the State. The Indian Constitution lays down that any act of the executive or of the legislature which violates Fundamental Rights shall be void and the courts are empowered to declare it as void (Art. 13). Thus, the Constitution of India has made the judiciary as “the protector and guarantor of Fundamental Rights”. On the other hand, this Constitutional right is the “heart and soul” of the Constitution as it can only make Fundamental Rights effective. However, the right to move the court for protection of Fundamental Rights may be suspended during an emergency except those rights provided by Article 20 and Article 21.

RESTRICTIONS ON FUNDAMENTAL RIGHTS:

Though the Constitution of India Guarantees all these Fundamental rights for the citizens, yet there are some limitation and exceptions of these rights also. A citizen cannot enjoy Fundamental Rights absolutely or at will. Within some Constitutional limitation, acitizen can enjoy their Rights. The Constitution of India imposes some reasonable restrictions upon theen joyment of these Rights so, that public order, morality, and Public health remain intact. The Constitution always aims at restoration of collective interest along with individual interest. For Example right to religion is subject to restrictions imposed by the state in the interest of public order, morality, and health so, that the freedom of religion may not be abused to committed crimes or anti-social activities. Similarly, Rights guaranteed by the Article -19 does not mean absolute liberty.

Absolute individual rights can both be guaranteed by any modern state. Therefore our Constitution also empowered the state to impose reasonable restrictions as may be necessary for the larger interest of the community. Our Constitution always attempts “to strike a balance between individual liberty and social control”. And to establish a welfare state where collective interest got prominence over individual interest, Freedom of speech and expression (Art.19 (1)(a) is also subject to reasonable restrictions imposed by the state relating to defamation, contempt of court, decency or morality, security of the state, friendly relations with foreign states, incitement to an offence, public order, maintenance of the sovereignty and integrity of India. Freedom of assembly (Art, 19(1)(b) is also subject to reasonable restrictions imposed by the state that the assembly must be peaceful and without arms in the interest of public order, freedom of press which is included in the wider freedom of expression is also subject to reasonable limitations and the state can impose restriction upon freedom of press in the larger interest of the state or for the prevention or for the prevention of contempt of court, defamation or incitement to an offence.

CONCLUSION:

The court reaffirmed and applied the basic structure doctrine in Indira Nehru Gandhi vs. Raj Narain, popularly known as Election case. The constitutionality of Article 329A, which had been inserted by the 39th Amendment in 1975 was challenged in this case. Shortly after the imposition of the Emergency, a bench of thirteen judges was hastily assembled to hear the case. Presided over by Chief Justice Ajit Nath Ray, the court had to determine the degree to which amendments were restricted by the Basic Structure Theory. The Supreme Court struck down clauses (4) and (5) of the Article 329A, which made the existing election law inapplicable to the Prime Minister’s and Speaker’s election and declared the pending proceedings in respect of such elections null and void. Any amending body organized within the statutory scheme howsoever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its constitutional authority.

Article 368 of the Constitution gives the impression that Parliament’s amending powers are absolute and encompass all parts of the document. But the Supreme Court has acted as a brake to the legislative enthusiasm of Parliament ever since independence. With the intention of preserving the original ideals envisioned by the Constitution-makers. To Abraham Lincoln, democracy meant a Government of the people, by the people and for the people. So in democratic nation whenever any law passed by Parliament violates any provision of Constitution or takes away any Fundamental rights of the person, the Supreme Court has right and power to strike down that law or act. Accordingly jurisdiction of Supreme Court is essential for theprotection of basic features of the Constitution. Article 368 even before the 24th amendment contained the power as well as the procedure of amendment. The supreme court declared that Article 368 did not enable Parliament to alter the basic structure or frame work of the Constitution and Parliament could not use its amending powers under Article 368 to ‘damage’, ‘abrogate’ or ‘change’ or ‘alter’ the “ basic Structure or frame work of the Constitution. This decision is not just a landmark in the evolution of Constitutional law, but a turning point in Constitutional history.

Limitation of Amendment Procedures and the Constituent Power was further clarified in Minerva Mill vs. The Union of India. The 42nd Amendment has been enacted by the government of India in response to the Kesavananda Bharati judgment in an effort to reduce the power of the judicial review of Constitutional amendments by the Supreme Court. The Supreme Court’s position on Constitutional amendments laid out in its judgments is the Parliament can amend the Constitution, but cannot destroy its “basic structure”.

There is no hard and fast rule for abasic feature of the Constitution. Different Judges keep different views regarding the theory of basic structure. But at one point they have asimilar view that Parliament has no power to destroy, alter, or emasculate the ‘basic structure’ or framework of the Constitution. ‘If the historical background, the preamble, the entire scheme of the Constitution and the relevant provisions thereof including Article 368 are kept in mind then there can be no difficulty, in determining what are the basic elements of the basic structure of the Constitution. These words apply with greater force to thedoctrine of the basic structure, because, the federal and democratic structure of the Constitution, the separation of powers, the secular character of our state are very much more definite than either negligence or natural justice. so for the protection of welfare state, fundamental rights, Unity and integrity of the nation, Sovereign democratic republic and for Liberty of thought, expression, belief, faith and worship, interpretation of judiciary is mandatory.

you can view video on Article 21 and the enactment of mini constitution

Reference

  1. Dietrich Conrad, Limitation of Amendment Procedures and the Constituent Power, 15-16 Indian Yearbook Of International Affairs 375 (1970)’.
  2. Jayadevan V.R., “Basic Structure Doctrine and its Widening Horizons”, (2003) CULR 27.
  3. C.G. Raghvan, “The Amendment Power and the Basic Structure Doctrine in the Indian Constitution: A Critique of the Minerva Mills Case”. (1970) Indian Year Book of International affairs, Vol. XIX.
  4. Dr. Ashok Dhamija, ‘Need to Amend a Constitution and Doctrine of Basic Features’ (2007) Lexis Nexis and Butterworths Wadhwa.
  5. S.P. Sathe, “Limitation on Constitutional Amendment: Basic Structure Principle Re-examined” (1978) Trends and Issues Indian Law Institute.