What is the difference between Constitution and Constitutionalism? Critically discuss the doctrine of ‘basic structure’ as enunciated by the Supreme Court of India.
■ The concepts of constitution and constitutionalism refer to the legal system of the country. Following can be considered as the difference between Constitution and Constitutionalism:
A constitution is a body of fundamental principles according to which a state is constituted or governed whereas constitutionalism is a set of rules or norms creating, structuring and defining the limits of, government or authority.
A constitution of a country seeks to establish the main organs of the state - the legislature, the executive and the judiciary, defines their power, demarcates their responsibilities and regulates their relationships with each other and with the people. On the other hand constitutionalism seeks to prevent arbitrary or authoritarian government and establishes limited government, separation of powers, judicial review, fundamental rights and allows people to enjoy their freedom and promote the principle of “Rule of Law”.
The Constitution of a country has its own legal sanctity and it could be written or unwritten whereas principles of Constitutionalism are generally unwritten.
Almost all the countries or states in the world have a constitution, but not every country conducts its governance in a manner consistent with constitutionalism.
A country may have a constitution, but not necessarily constitutionalism. For example, a country where dictator’s word is law can be said to have a constitution, but not constitutionalism. Constitutional government, therefore, should necessarily be democratic government. Constitutionalism envisages checks and balances and puts power of legislature and executive under some restrain.
Therefore, to preserve basic freedom of individual and to maintain the dignity and personality, a Constitution should be permeated with Constitutionalism; that is, it should have in-built restrictions on powers.
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Basic Structure Doctrine
The
“Basic Structure Doctrine” is a judge-made doctrine where certain features of
the Constitution of India are beyond the limit of the amending powers of the
Parliament of India.
The
doctrine was introduced in India for the first time by Justice Mudhlokar in the
case of Sajjan
Singh vs State of Rajasthan when he used the phrase, “basic feature
of the Constitution” to argue that there are certain features of the
Constitution that cannot be amended by the Parliament through its amending powers
under Article 368 of the Constitution.
On
April 24, 1973, in Kesavananda Bharati vs State Of Kerala a Special
Bench comprising 13 Judges of the Supreme Court of India held that Parliament
could not use its amending powers under Article 368 to ‘damage’, ‘emasculate’,
‘destroy’, ‘abrogate’, ‘change’ or ‘alter’ the ‘basic structure’ or framework
of the Constitution. It then propounded what has come to be known as “the basic
structure doctrine”.
The
Supreme Court in Indira Nehru Gandhi vs Raj Narain, 1975; invalidated a provision of the 39th
Amendment Act which kept the election disputes involving the Prime Minister and
the Speaker of Lok Sabha outside the jurisdiction of all courts. The court said
that this provision was beyond the amending power of Parliament as it affected
the basic structure of the constitution.
In Minerva Mills vs Union of
India,1980; by invalidating parts
of 42nd Amendment Act that inserted Cls. (4) & (5) to Art. 368 which read that constitution amendment
act cannot be challenged before a court of law and there shall be no limitation
whatsoever on the amending power of Parliament. The Supreme Court applied the doctrine
of ‘basic structure’ by declaring these two clauses unconstitutional and void as
it takes away the power of Judicial review.
Again in the Waman Rao vs Union
of India, 1981; the Supreme Court adhered to the doctrine of the ‘basic
structure’ and further clarified that it would apply to constitutional
amendments enacted after April 24, 1973.
The doctrine of basic structure is neither mentioned anywhere in the Constitution nor the Supreme Court of India has clearly defined it. The apex Court from 1973 has enunciated this doctrine through various judicial pronouncements. Following have emerged as the basic features/ basic structure of the Constitution:
- Supremacy of the Constitution
- Sovereign, democratic and republican nature of the Indian polity
- Secular character of the Constitution
- Separation of powers between the legislature, the executive and the judiciary
- Federal character of the Constitution
- Unity and integrity of the nation
- Welfare state (socio-economic justice)
- Judicial review
- Freedom and dignity of the individual
- Parliamentary system
- Rule of law
- Harmony and balance between Fundamental Rights and Directive Principles
- Principle of equality
- Free and fair elections
- Independence of Judiciary
- Limited power of Parliament to amend the Constitution
- Effective access to justice
- Principles (or essence) underlying fundamental rights.
- Powers of the Supreme Court under Articles 32, 136, 141 and 142
- Powers of the High Courts under Articles 226 and 227
Even after the birth of the doctrine, the structure of the Constitution has been regularly tweaked to accommodate judicial ideology and morality. Newer features have been constantly added to this premium list that is “basic”, giving them the immunity that the basic structure enjoys.
In the absence of any certainty as to what the “basic structure” consists of and only vague parameters to deduce the same, it is left to the wisdom of the Supreme Court judges to decide upon it on a case to case basis.
The aim of the judiciary behind propounding this doctrine was understandably to save democracy from the hands of a tyrannical few and pre-empt a dictatorial onslaught on fundamental rights. But this laudable aim faces criticism when the guardians of the Constitution become guardians over the Constitution.
This can be seen in a few of the following cases:
The Supreme Court ordered that a floor test be carried out in case of Jagdambika Pal vs State of U.P. This decision was criticised as a violative of the doctrine of separation of powers which was already seen as a component of the basic structure.
In Subramanian Swamy vs A Raja, the Supreme Court with respect to the issue of corruption surrounding the matter of 2G spectrum allocations in 2002 by the government. The court went beyond mere judicial restraint and classified 2G spectrum as a natural resource. While the decision may be well reasoned and perhaps was required considering the issues of corruption surrounding the case the digression from separation of powers in making purely policy-based determinations is still a digression from the basic structure.
In Common Cause vs Union of India, the court found impropriety in the coal block allocations and cancelled the allocation. This again is an instance of the Supreme Court prioritising social welfare as a key component of the basic structure over economic outcomes.
In Supreme Court Advocates on- Record association vs Union of India, 2015; the Court fairly relied on judicial independence as basic structure to strike down the 99th Constitutional Amendment Act, which sought to set up a National Judicial Accountability Commission to replace the appointment of judges by the Collegium system.
Recently the Supreme Court in Union of India vs Rajendra N Shah, 2021, that strike down the 97th Constitutional Amendment to the extent it relates to co-operative societies; Justice R F Nariman observed that the exclusive legislative power given to states in matters under the Second List of the Seventh Schedule was an important constitutional principle which forms part of the basic structure of the Constitution.
The doctrine has put the judiciary in the exact position of unlimited power that it sought to prevent Parliament from occupying. It is certainly important for the Constitution to have certain non-negotiable principles but the same must be narrow and comprehensively identified.
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