List of Contents
- Introduction to the Constitution
- law on draping National Flag over body of a deceased
- EIU’s “Democracy Index” – India at 53rd position
- Protest in India and US: Similarities and differences
- SC judgment on farm laws: violation of separation of powers
- Capitol building coup attempt in US: Reasons behind launch and failures
- Challenges threatening India’s democracy
- PREAMBLE OF INDIAN CONSTITUTION
- Ethical democracy
- Threat to Democracies
- Basic structure Doctrine
- What is the Basic Structure Doctrine?
Introduction to the Constitution
This section of polity will deal with the basic aspects of the constitution of India, such as its evolution, features, preamble, sources etc.
Constitution basics updates/news
law on draping National Flag over body of a deceased
What is the News?
Police in Uttar Pradesh has booked few persons under The Prevention of Insults to National Honour Act, 1971. They had allegedly draped the body of their relative in the national flag after his death.
Prevention of Insults to National Honour Act,1971:
- This act penalises the desecration of or insults to the country’s national symbols including, the National Flag, the constitution, the National Anthem, and the map of India. It also includes penalties for contempt of the Indian constitution.
- Section 2 of the act specifies punishment for insults to the Indian National Flag and the Constitution of India.
- The law specifies acts of insult to the Indian flag and constitution. Some acts of insult include burning, mutilation, defacing, disfiguring, or showing disrespect to the National Flag.
- It also prohibits using Indian National Flag as a drapery in any form except in State funerals or armed forces or other para-military forces funerals.
- It prescribes punishment of imprisonment for insults for up to 3 years or a fine or both.
About Flag Code of India, 2002
The Flag Code of India contains a set of laws, practices, and conventions for the display of the national flag of India. It also prohibits using the national flag as a drapery except in State/Military/Central Paramilitary Forces funerals.
Use of National Flag as a drapery
- The National Flag of the country can only be used as a drapery if a funeral has been accorded the status of a state funeral.
- State funerals are held if a person passed away belongs to police, armed forces, office of President, Vice-President, Prime Minister, Cabinet Minister, Chief Minister.
- The state government can accord the state funeral status to the person other than the mentioned categories.
Source: Indian Express
EIU’s “Democracy Index” – India at 53rd position
What is the News?
The Economist Intelligence Unit(EIU) has released the Democracy Index, 2020. In that, India dropped two places and currently at 53rd position.
Democracy Index 2020:
- It was started in 2006 by the Economist Intelligence Unit. The index provides a clear image of the status of democracy worldwide in 167 countries.
- Categories: The index is based on five categories :
- Civil liberties,
- Electoral process and pluralism;
- Functioning of government;
- Political participation;
- Political culture.
- Classification: Each country will be provided with a score of 0 to 10. These scores are decided based on the 60 indicators within the five categories. Based on their scores, each country is then classified into any one of the four types of regime. Such as,
- full democracy,
- flawed democracy,
- hybrid regime,
- authoritarian regime.
Findings Related to India:
- India has dropped two places and India’s score was 6.61. Currently, India was in 53rd position in 2020. This is due to,
- A lapse in democratic processes among authorities.
- Suppressive actions by the government on civil liberties.
- India has been classified as a ‘flawed democracy’ along with countries such as the US, France, Belgium and Brazil.
- However, India’s rank was higher than most of its neighbouring countries, such as Sri Lanka (68), Bangladesh (76), Bhutan (84) and Pakistan (105).
What is “Flawed Democracy” country?
These are the countries which hold free and fair elections and respect the basic civil liberties. But they have notable weaknesses with regards to democracy. Such as an underdeveloped political culture, problems in governance and low levels of political participation.
- Topped by: Norway has topped the index followed by Iceland, Sweden, New Zealand and Canada.
Source: The Hindu
Protest in India and US: Similarities and differences
Synopsis: The violence that has happened in the US and India has some similarities. It highlights the erosion of democratic values in the world’s oldest (US) and largest democracies.
- Recently, In the US, a violent mob attacked the U.S. Capitol building. This mob vandalized public property and threatened lawmakers in Congress.
- Similarly, India witnessed violence on Republic Day. A rally planned to protest against three farm laws, broke off from the planned parade. Protesters entered the premises of the Red Fort by breaking the gates. It later led to a Police crackdown.
- These two episodes witnessed in the world’s oldest (US) and largest democracies (India) have a few similarities and differences.
What are the similarities between the two mass rallies?
First, in both countries, the aggrieved parties challenged the political developments.
- Following the victory of Joe Biden in the 2020 presidential election, Mr. Trump raised questions on the electoral process. It was despite having no proof for that.
- He even spread misinformation on social media. This led to the incitement of violence in the US.
- The anger was against the three laws passed by the Parliament to reform the mandi system. It was felt that the farm laws can endanger the minimum support price system that has been the economic backbone of small-scale farmers.
- The farmers protested peacefully for months baring the cold winter. Yet, the lack of political will to negotiate with the protesting farmers triggered the violence on Republic day.
Second, social media played an important role to show the darker side of mass rallies, in both examples.
- Social media telecasted an invading mob holding zip ties (zip ties imply a threat to the lives of lawmakers in the building).
- A truck filled with guns and bombs near the site of the attack that was discovered by law enforcement agencies was also telecasted.
- Social media was flooded with images of the religious flag of the Sikhs (Nishan Sahib) being hoisted at the Red Fort. This gave an impression that the protest was politically motivated.
What are the differences?
US mass rally was in support of Trump’s call for nativist populism and racist ethos i.e. in support of white supremacy. It created a sharp division among the US population and will have long-term impacts.
Whereas the farmer’s protest in India is against the law enacted by a powerful government. They are resisting the neoliberal economic policy of the government.
Issues with democratic models of Polity
- The above incidents clearly give a picture that Democracy is a contested topic in the world. It favours a religious or social majority through democratic processes like elections.
- Moreover, democracies are inherently capable of turning into a power structure that overtakes democratic processes. It is evident in the rise of fascism in the pre-World War Europe.
- The ongoing events in the US and India clearly explain that Democracy has been wrongly understood as the rule of the majority leading to the undermining of Democracy.
SC judgment on farm laws: violation of separation of powers
Synopsis: The Supreme court (SC) has stayed the implementation of farm laws. The decision is a case of violation of the separation of powers.
- Recently, the SC has stayed the implementation of three farm laws until further orders.
- The SC has also given direction to set up a four-member committee to break the deadlock between farmers and the Centre.
- Many experts opine that by this judgment the supreme court has encroached into political and administrative management without any legal basis and seen as a violation of the separation of powers.
Are the reforms necessary? If yes, why it has been opposed?
According to many agricultural experts, agriculture needs serious reform for achieving the following objectives.
- To improve farmers’ incomes and well-being.
- To increase crop diversification.
- To make agriculture more environmentally sustainable.
- To make subsidies less counterproductive.
- To keep food inflation down, and ensure that nutrition reaches all.
The government was right to think reforms were necessary. However, the government failed to gain trust among Farmer communities by prioritising the wrong reforms. For example, “choice of traders,” which did not tackle the underlying issues, but created more uncertainty.
What are the negative implications of the recent Supreme Court decision?
The Supreme court (SC) decision has been criticised on the following grounds;
- First, SC’s involvement in the Farm bill issue will give a misleading impression that a distributive conflict can be resolved by technical or judicial means.
- Second, by setting up a four-member committee to hear farmers’ grievances the SC has invaded into political territory. The role of the judiciary is to determine unconstitutionality or illegality of law rather than mediating a political dispute.
- Third, the court has lost its neutrality by seeking to break the momentum of a social movement.
- Rather than facilitating the orderly and law-bound expression of protest the court has acted to defuse the genuine democratic protest by shifting the onus on the farmers to stop their protests.
- Fourth, the court’s action will disrupt the normal political give and take in a democracy between the government and people.
- Fifth, the court has redefined the function of mediation the court by violating the first rule of mediation. i.e., The mediators must be acceptable to all parties and appointed in consultation with them. Whereas the SC has Suo Moto appointed a four-member committee without any consultation with farmer groups.
- Finally, the court has also positioned itself as an arbiter of national security. It admitted the Attorney General’s contention that farmers’ protests may be the vehicle for the Khalistan movement.
What is the way forward?
- In principle, any mediation to break the stalemate is welcome. But the mediation has to be a political process between the government and the people and it is the responsibility of the Parliament to fix the issue.
- What the farmers need is clarity of law and the right to make their demands heard through the political process and civil society not the paternalism of the court
The court, in the process of saving the government from being on the political back foot the court, has forfeited the very thing it needs most, the repository of trust among its citizens.
Capitol building coup attempt in US: Reasons behind launch and failures
This article has been developed based on the Indian Express Article ‘Once upon a failed coup’.
Synopsis: Recent coup attempt in the US Capitol Building has been caused by several factors.
Why Capitol building coup failed in the US?
January 6 coup attempt by rioters in US Capitol hill refutes the traditional wisdom that coups take place in developing countries.
It was not a usual Military led coup, but a coup led by executive i.e. an executive coup led by President Donald Trump himself. It was aimed at forcing two Houses of Congress to overturn the presidential election results, lost by Trump.
Election system of US
- Election administration process of the US is very complicated. Unlike India, the US doesn’t have an independent election commission.
- States form an electoral college to certify the final outcome of the election process after people have cast their votes.
- At the final stage, the outcome certified by the states is finally accepted by US legislators. This was the stage ongoing on January 6.
- The vice-president presides over the process in US legislators. Mike pence (vice-president) refused to overturn the election on demand of Trump.
- At the completion of the process, the victory of Biden was ratified and he is set to take oath on Jan. 20th.
What were the possible reasons behind coup attempt in the US?
2 main hypothesis are formulized to understand possible reasons for Trump behind this coup attempt:
- First is the ideological reason, his commitment to restoring white supremacy was visible in his policies. Many rioters in the mob were carrying Confederate flags, which represent pre-civil war southern states, which stood to preserve slavery.
- Second is a personal reason, Trump fears persecution for tax frauds, corruption, abuse of power and the latest one is for Abetting an insurrection.
Why scholars believe, coup happens in poor countries?
Scholar believes that coups happen only in poor countries due to the following reasons.
- In poor countries, oversight institutions like election commission or other bodies taking care of democratic processes are weaker and not able to go against the mighty politicians.
- Government here are mighty and has much to lose. Their control on economy and society makes them subject to imprisonment and coercion, once out of power.
- In richer democracies, firstly government doesn’t control all sectors of society, thus not subject to imprisonment later.
- Moreover, politicians have many opportunities after politics, thus they are not concerned about their well-being after government.
Coup in presidential vs parliamentary democracies
Coup in parliamentary democracies is less likely compared to Presidential.
- In Presidential democracies, the executive and the legislature are independently elected. If they are from different parties, clashes are possible between them.
- Whereas in parliamentary democracies both executive and the legislature are interlinked. Prime Minister is selected based on the majority in Parliament. Thus clashes between the executive and parliament are less likely.
What are the reasons behind the failure of coup attempt in US?
- Firstly, military support was absent, thus mob failed to occupy the Capitol building. In richer democracies, armies rarely help leaders in electoral disputes.
- Secondly, Even the Republican governments officials did not bow to the coup attempt of Trump.
- In a leaked tape of Trump’s phone call to Georgia’s Secretary, he asked Secretary to “find 11,780 votes”. But he did not agreed to follow and declined to act on this.
- Third, American Courts played a constructive role in ensuring the fair play in the election process. Trump’s campaign filed more than 60 legal challenges from state courts to the Supreme Court but failed to secure any big gain.
- During his term, Trump appointed many judges and expected them to secure decisions in his favor but they followed the law and made their decisions on this basis only.
A coup attempt in the history of US proves that no country in the world is safe from these types of challenges. It is only through the integrity of the established institutions in the country that this attempt could not succeed to turn around the democratic process of the country.
Thus, the transparency and integrity of institutions should not be undermined and kept at the highest level.
Challenges threatening India’s democracy
Context – With various issues arising, there is an opinion that democracy takes a hit and policymakers must take note of the drift.
What are the areas of concern for India?
- Recession – The Indian economy is in recession and is among the worst-performing among major nations
- Cybersecurity attack– India ranked second only to the US among the countries most impacted by the ransomware
- Ransomware is a form of malware that encrypts a victim’s files. The attacker then demands a ransom from the victim to restore access to the data upon payment.
- Concerns with India’ foreign relation–
- India-China dispute– China unwillingness to reach a reasonable settlement along the Line of Actual Control.
- India-Pakistan relations– China and Pakistan have signed a new military memorandum of understanding to boost their already close defence relationship.
- West Asia– India has to balance its ties with all regional power in west Asia
- India’s close relationship with Israel is another sore point with west Asia.
What are the Internal actions seem like threatening democracy in India?
- Revoking of Article 370- The government abolished the article that gives special status to Jammu and Kashmir and bifurcates the state into two separate union territories of Jammu and Kashmir and Ladakh.
- The anti-Citizenship (Amendment) Act- The CAA is disturbing because it makes problematic distinctions between different groups of people based on religion and is pursuing a divide and rule policy
- Electoral wins at any cost- Winning at any cost has become the sole motif of certain parties.
- The election is turning into conflict zones, they have become tinderboxes for communal, caste, political and other forms of violence.
- Majority versus the minority has become the stock-in-trade of some parties.
- Constitutional protections and principles of natural justice as also freedom of the individual are at risk
- Love jihad– UP Cabinet cleared a draft ordinance against forceful inter-faith conversions — or the so-called “love jihad”.
- Restrictions on Social media freedom- India is beginning to clamp down on social media platforms and enacts draconian laws.
- Farmer’s protest- Latest example of imposing a measure without due discussion and acceptance of farmer and opposition.
- Policymaker needs to acknowledge public fears and reassure people, especially in periods of uncertainty.
Democracy works on the principle of checks and balances. It is these checks and balances that prevent democracy from turning into majoritarianism.
PREAMBLE OF INDIAN CONSTITUTION
What does the word Preamble mean?
preamble of India is an introductory statement to any formal document in general, Statute and Constitution in particular. It contains the Philosophy and objectives of a document.
Which is the first country to have Preamble in Constitution?
When the USA got independence in 1775, The USA becomes the first country to have the written Constitution in the world. Apart from that the USA is also the first country to have Preamble in Constitution, Fundamental Rights in Constitution etc.
When the United Nations was formed in 1945, it took reference to the USA’s Preamble and released an UN Charter with reference to UN’s objectives.
Precursor to Indian Preamble:
Ever since the objective of freedom fighters to frame a Constitution for our free India, the idea of Introduction of Preamble into our Constitution gets stronger and stronger.
With this in the background an “Objective Resolution” was drafted by Jawaharlal Nehru in 1946 and unanimously adopted by the Constituent Assembly on 22 January 1947.
|Few Interesting Constitutional debates over Preamble:|
· One member urged the Assembly to rename India as the ‘Union of Indian Socialistic Republics’, similar to the USSR. But this suggestion would go against the already adopted constitutional scheme so the idea has been dropped.
· Another member sought to include ‘In the name of God’. Many were opposed to this suggestion and ultimately the word ‘God’ has to be decided based on vote. The Assembly was divided with 41 voting in favour and 68 voting against the word ‘God’. Later the word ‘God has been dropped’
· Similarly, the proposal to include Gandhi’s name in Preamble have also been dropped.
In the end the assembly adopted the Preamble in the format presented by Drafting Committee.
Preamble of Indian Constitution:
Indian Preamble is based on this Objective Resolution. By reading our Preamble we can understand the intention of our forefathers, the history behind its creation, and the core values and Principles of the nation.
Fun Fact: Even though Preamble is placed before all the Articles, It was drafted last, to ensure that it was in conformity with the Constitution.
What are the ingredients of Indian Preamble?
- The preamble basically gives the idea of the following things:
- Source of the Constitution (From the people of India)
- Nature of Indian State: Sovereign, Socialist, Secular, Democratic, Republic
- Objectives of Constitution: Justice, Liberty, Equality and Fraternity
- Date of its adoption: 26 Nov 1949
Fun Fact: From 2015, the date of adoption (26 Nov) of our Constitution is celebrated as Constitution Day of India.
Is our Preamble be a part of Constitution?
This is an interesting question for a debate itself.
- In Berubari Union Case of 1960 Supreme Court held “Though Preamble is the key to open the mind of the makers, Preamble is not a part of Constitution” and stated reasons such as,
- Removing Preamble from Constitution does not affect the Values of Constitution
- Preamble does not offer any Rights or Obligation on any organs of State
- Preamble’s nature of non-justiciable (cannot enforceable in court of law) character
- The same question came up in the famous Kesavananda Bharati Case of 1973. But this time Supreme Court reversed its stance and held “Preamble is an integral part of Constitution” and stated reasons such as
- Preamble plays an important role in the interpretation of statutes and provisions of the Constitution
- In Union of India vs LIC of India case 1995, Supreme court once again held “Preamble is an integral part of Constitution”
The amendments to Preamble:
- Since Preamble became part of Constitution, the Government of the day got the power to amend the Preamble.
- Preamble is amended only once so far. It was amended in 1976 by 42nd Constitutional Amendment Act.
- The amendment added the terms ‘Socialist’, ‘Secular’, and ‘Integrity’ in to the Preamble (though these were implicit in the Constitution the amendment made them explicit).
Ideals in the Preamble:
- Sovereign: The term means that India as an own independent State. Neither dependent on any external State nor a dominion of external State.
- Socialist: It means that the State aims to achieve socialist ends by democratic means. (i.e., both private and public sectors co-exist).
- Supreme Court in Nakara Case 1982, stated “Indian socialism is a blend of Marxism and Gandhism, leaning heavily towards Gandhism”. This clearly defines the term Socialist in Preamble is by democratic mean.
- Secular: This term means that State gives Equal treatment to all the religions (Sarva Darma Sama Bhava) and India as a State have No religion.
(For Ex, Pakistan declared themselves as Islamic State and Bhutan declared themselves as Tibetan Buddhist State)
|Few Important debate over ‘Secular’ word in Preamble:|
· Indian Secularism is a positive concept (State can allow people to profess, practice and propagate the religion of their choice). Unlike France which is follows the Negative concept.
· There are few sections of people, politicians and experts who wants to ‘remove the word Secular and Socialist from Preamble’. For the reason said by Dr.B.R. Ambedkar itself (‘there was no need to include the term ‘secular’ as the entire Constitution embodied the concept of secular state).
- Democratic: The term simply means People ruling themselves through representatives.
- Republic: The term indicates that the political sovereignty is vested in people which means, head of the state (President) is elected by the people.
- The term also indicates that the absence of any privileged class (All public offices opens to all).
Aspirations of Preamble:
Constitution always aim towards minimum interference by State, to ensure and maintain harmony throughout the nation. Preamble contains certain aspiration to achieve the same. They are:
- Justice: The word Just means The term Justice in Preamble is ensured to people through the provisions of Fundamental Rights and Directive Principles of State Policy.
- The ideals of Justice comprise of social, economic, and political justice. The concept has been taken from the Russian Revolution (1917).
- Social Justice – It aims to create a society without discrimination on any grounds like caste, colour, race, sex, religion, etc.
- Economic Justice – It simply means non-discrimination between people on the basis of economic factors like their income, wealth, economic status etc.
Fun Fact: A combination of Social and Economic justice denotes Distributive Justice.
- Political Justice – It implies that all the people have an equal political right in various domains such as access to political offices, voice in government, etc.
- Equality: It implies absence of any special privileges to any section of society and all the people will have equal opportunities without any discriminations.
- Like Justice, Equality also comprises of Civic, Political and Economic equality.
- Liberty: ‘Liberty’ in simple term means Freedom for people to choose their way of life, political views, profession, behaviour in society, etc. Liberty does not mean absolute freedom to do anything, there are few checks and balances set by the law, which every citizen has to follow.
- Fraternity: The term implies a sense of brotherhood and an emotional attachment with the country and the people.
- Liberty, Equality and Fraternity are called as Unity of trinity. It is so called because all three will act harmoniously to bring out the best and one cannot act without another.
Preamble as a whole:
By reading Preamble one will get the comprehensive understanding about the Nature of Indian society, our ideals and aspirations as a nation and also as an individual.
That is why N.A.Palkhiwala, a notable Jurist and Constitutionalist have described “Preamble as the identity card of the Constitution”. Not only him various other political thinkers, Constitutionalists and Jurists have also praised Preamble similarly.
Context- The elected must protect all the unelected instruments of democracy- – judiciary, media and civic organizations.
What is check and balance in the democracy?
Checks and balances, principle of government under which separate branches are empowered to prevent actions by other branches and are induced to share power.
- Democracies have developed systems of efficient checks and balances — elected and unelected institutions. Such a balance is critical to their success.
- Democracies can be harmed if the rulers succeed in jeopardizing the other pillars like the judiciary and free press.
What were Aristotle [ancient Greek philosopher] views on different models of government?
According to Aristotle-
- Monarchies were for the benefit of the monarchs.
- Oligarchies for the benefit of men with means.
- And democracies were for the benefit of men without means.
What were Mahatma Gandhi and Ambedkar views on democracy?
- Gandhi’s View
- He was a firm believer of Ahimsa based stateless ruled based on self-regulation by individual. He considered democracy as a means to achieve his “Ram Rajya”. While this would make the country an ideal state, the notion was utopian.
- He believed in decentralization of power and self sufficiency of villages which shall be brought in by democracy.
- And laid stress on the individualism provided by democracy. Individualism was important encouraging the individual to surrender to society to achieve his selfless society.
- Amdedkar’s views–
- He belonged to a backward caste and from his early childhood faced various forms of discrimination in the society.
- For him democracy was not limited to only political spheres but extended to social, religious, economic spheres of life as well, that no person should be arbitrarily discriminated against and for this he fought for his entire life.
For Gandhi, democracy meant the weak getting the same chance as the strong and for Ambedkarji, it was about giving voice to voiceless.
- For successful democracy – Both believed that the parliamentary majorities need to be restrained through constitutional ethics and public morality.
- Constitutional ethics is about leaders respecting constitutional order, conventions and institutions.
- Gandhi’s final message to the congress to convert itself into a lok Sevak Sangh and work at the grassroots for social, economic and moral independence.
- India’s democracy, as envisaged by the makers of the constitution, thrived essentially because of the respect of the leaders for the ethical constitutionalism and moral activism of the grassroots activists.
- Indian democracy has been immensely benefitted from such diverging viewpoints. The core values which our freedom fighters stood for are still the basic structure on which our constitution proudly stands.
Threat to Democracies
Context: Problems faced by the leading democracies in the world.
What are the issues that are threatening the Democracies?
- Identity crisis: The issues of identity, or threats to identity, are becoming an important issue in elections, across democracies.
- Menace of Fake news: Manipulation of grievances by using psychometric techniques and use of ‘deep fakes’ made possible through Artificial Intelligence, further enhances the threat to current notions of democracy.
- Terrorism is resurfacing with renewed vigour: The IS, that was thought to be defeated following the victories achieved in Syria and Iraq towards the end of 2018, has recently carried out attacks in France (Paris, Nice) and in Austria (Vienna).It reminds of the transnational character of the threat it poses to democratic countries.
- Informational autocracy: There is a growing concern across the globe about increasing efforts to manipulate information in order to perpetuate power. For example, the efforts made by the U.S. President, Donald Trump, to negate the verdict of the recently held presidential elections
What are the Problems specific to European democracy?
- Economic uncertainty: With a resurgent COVID-19 pandemic, an uncertain Brexit will further damage the prospects of both the United Kingdom and Europe.
- Threat to secularism:
- The recent wave of terrorist attacks, beginning with the beheading, recently, of a Paris schoolteacher by an Islamic State (IS) supporter, followed by IS violence in Nice, have raised questions on long-held secular beliefs.
- French President Emmanuel Macron and French leaders have been openly harsh against radical Islam
What are the Problems specific to Indian democracy?
- Polarisation: The enactment of Citizenship (Amendment) Act and the National Register of Citizens have created a deep religious divide among its citizens.
- Challenges to Internal security: With growing tensions in Jammu and Kashmir (J&K), Pakistan’s efforts to push terrorists in larger numbers is leading to large scale casualties especially among the Indian Army and security forces personnel.
- Failure of India’s bargaining strategy: India has been left out of the Regional Comprehensive Economic Partnership (RCEP), world’s biggest trade bloc which covers almost a third of the world’s economy.
- International isolation: Provocation by Pakistan by holding of Assembly elections in Gilgit-Baltistan and India’s steady marginalization in Afghanistan where the control of the Taliban is increasing confirms India’s isolation in international arena.
Basic structure Doctrine
In news: The passing away of Kesavananda Bharati, led to a debate on the famous doctrine of basic structure propounded by the Supreme Court.
What is the Basic Structure Doctrine?
- The “Basic Structure” doctrine is a doctrine made from judicial innovation specific to Indian context. The doctrine prescribes that certain features of the constitution are essential for the functioning of the state. Such features are beyond the limits of the amending powers of the Parliament.
- The word “Basic Structure” is not mentioned in the Constitution of India. The concept developed gradually with the tussle between the Parliamentary power to amend the constitution and judiciary’s power to review such amendments.
The concept was recognised for the first time in the Kesavananda Bharati case in 1973.
Evolution of the Basic Structure Doctrine
- 1951: The First Constitution Amendment Act, 1951: It was challenged in the Shankari Prasad vs. Union of India case. The Supreme Court held that the Parliament, under Article 368, has the power to amend any part of the constitution including fundamental rights.
- 1964: Sajjan Singh v. State of Rajasthan: The Constitution has “basic features” was first theorized in 1964, by Justice J.R. Mudholkar in the case of Sajjan Singh v. State of Rajasthan. He questioned whether the ambit of Article 368 included the power to alter a basic feature or rewrite a part of the Constitution.
- 1967: Golak Nath vs State of Punjab case: The Supreme Court overruled its earlier decision. The Supreme Court held that the Parliament has no power to amend Part III of the constitution as the fundamental rights are transcendental and immutable.
- 1971: The Parliament passed the 24th Constitution Amendment Act. The act gave the absolute power to the parliament to make any changes in the constitution including the fundamental rights.
- 1971: The 25th Amendment to the Indian Constitution curtailed the right to property, and permitted the acquisition of private property by the government for public use, on the payment of compensation which would be determined by the Parliament and not the courts
- 1973: in Kesavananda Bharti vs. State of Kerala case, the Supreme Court upheld the validity of the 24th Constitution Amendment Act by reviewing its decision in Golaknath case. The Supreme Court held that the Parliament has power to amend any provision of the constitution, but doing so, the basic structure of the constitution is to be maintained.
- 1981: Waaman Rao case: The SC adhered to the doctrine and clarified that the doctrine would apply to constitutional amendments after April 24th
Important Supreme Court Judgements and List of Basic Structure Elements:
|Supreme Court Judgement||Elements of Basic Structure|
|Kesavananda Bharati Case, 1973||Supremacy of the Constitution|
Republican and democratic form of government
Secular character of the Constitution
Separation of powers between the legislature, executive and the judiciary
Federal character of the Constitution
The mandate to build a welfare state
Unity and integrity of the nation
Sovereignty of the country.
Freedoms secured to the citizens
Equality of status and the opportunity
|Indira Gandhi v. Rajnarain,|
Kihoto Hollohon case (Election Case), 1975
|Rule of Law|
Free and Fair Elections
India as a Democratic, Sovereign, Republic
|Minerva Mills Case, 1980||Limited power of govt. to amend Constitution|
Harmony and Balance between Fundamental Rights and Directive Principles
|Central Coal Fields Ltd. Case, 1980||Effective Access to Justice|
|L. Chandra Kumar Case, 1997||Powers of High Court under Articles 226 and 227|
|IR Coelho Case (IX Schedule Case), 2007||Rule of Law|
Separation of Powers
Principles underlying Fundamental Rights
Principles of Equality
|National Legal Services Authority v. Union of India||Article 14 has been clearly stated to be a part of the basic structure of the Constitution|