Amendments in constitution at time become necessary to adapt to the changing needs of national development and strength, to overcome the difficulties which may encounter in future in working of the constitution and to realize any popular demand for changing the political system e.g State reorganization, provisions of ST SCs, lowering of age for voting etc.
However the amendment of constitution often been used to achieve political purposes or to override judicial verdicts.
For providing the compatibility of Constitution with the changing society needs , constitution maker provide the Art 368- Power of Parliament to amend the Constitution and procedure therefor
for the purpose of amendment the provisions of constitution fall under 3 categories.
(a) Amendment by Simple Majority.
(b) Amendment by special Majority.
(c) Amendment by special majority and rectification by states.
Sankari parsad V/s Union of India AIR 1951 SC 455
This is the case which in route the theory of Basic Structure, in this case SC held that
The power to amend the Constitution including the fundamental rights is contained in the Art 368,
And that the world Law in Art 13 includes only an ordinary law and does not include constitutional amendment which is made in exercise of constituent power.
In Sajjan Singh v/s State of Punjab, SC held that the world amendment of constitution means amendment of all the provisions of constitution.
Golak Nath V/s State of Punjab AIR 1971 SC 1643
SC held that Parliament cannot amend the FR,
Rejection of argument- Amendment of Constitution was a Sovereign Power and that did not permit any implied limitation.
Keshavanand Bharti’s V/s State of kerela AIR 1973 SC 1461
This is the case which emerge the theory of Basic Structure first time.
The Golak Nath Case was overruled in this case, and SC held that Art 368 ever before 24th Amendment contained the power as well as procedure of amendment.
The Parliament has a wide powers of amending the constitution but these powers has not the unlimited nature, and does not include the power to destroy or abrogate the “Basic feature of constitution under article 368.
Basic Structure Theory-
Ac to Sikri , CJ, the basic structure was build on the basic foundation i.e. the freedom and dignity of the individual, the feature of BS T are:
a. Supremacy of Constitution.
b. Republican and Democratic form of Government and sovereign of the country.
c. Secular and federal character of Constitution and
d. Separation of power between Legislature, executive and Judiciary.
Ac to Shelat and Grover, J.J also included :
a. Fundamental Right
b. Directive Principle.
Indira Gandhi V/s Raj Narain AIR 1975 SC 2299
In this case 39th Amendment 1975 was passed by parliament for validating with retrospective effect the election of PM Indira Gandhi which was declared invalid by Allahabad High Court on the ground of having committed corrupt practice. Anew article 329 A has been added that provided that the election of a person who hold the office of PM can be challenged only before such a body or forum as may be established by Parliament by law and not in court.
The SC in this case enhance the list of Basic Structure which was emergence in Keshavanand Bharti’s Case :
a. Sovereign democratic republic status
b. Equality of status and opportunity of an individual
c. Secularism and freedom of conscience and religion
d. ‘government of laws and not of men’ i.e. the rule of law
Minerva Mills V/s Union of India AIR 1980 SC 1789
Struck down clauses (4) and (5) of the article 368 inserted by 42nd Amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the constitution. It was ruled by court that a limited amending power itself is a basic feature of the Constitution
L. Chandra Kumar case
“That the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure“.
Conclusion
Now we can say, there is no hard and fast rule for basic feature of the Constitution. Different judge keep different views regarding to theory of basis structure. No law can be enacted or amended in a manner that violates the spirit of the preamble.
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Comment on Art 12 of Constitution of India
by The U.S. National Archives
Comment on Art 12 of Constitution of India.
The constitution of India has defined the word STATE for the purpose of Part –III and Part IV.
In STATE OF WEST BANGAL V/S SUBODH GOPAL BOSE, the SC observed that the object of Part III is to provide protection to the rights and freedoms guaranteed under this part by the invasion of State.
Part III and Part IV carry a theme of Human Rights, Dignity of Individual and also of the unity and dignity of the nation.
These parts respectively as a Negative Obligation of the State and not to Interfere with the Liberty of the Individual, and Positive Obligation of the State to take steps for the welfare of the Individual.
Sate under Art 12 of the constitution has Four Components:
1. The Government and Parliament of India
Government means any department or institution of department; Parliament shall consist of the President, the House of People and Council of State.
The Government and Legislature of each State.
State Legislatures of each State consist of the Governor, Legislative Council, and Legislative Assembly or any of them.
All Local Authorities and;
It means, Municipal boards Panchayats, Body of Port Commissioner, and other legally entitled to or entrusted by the government.
Other Authorities within the territory of India or under the control of Government of India.
The first two categories included the legislative and executive wings of the Union and State in all their possible varieties. They are quite specific and self explanatory.
Judicial Scrutiny
The letter two categories, particularly the last are not so specific and require some explanation. To give a wider dimension to FR the Judiciary has interpreted “State” in different context at different time.
Principle of Ejusdem Generis:
In University of Madras v/s Santa Bai ,the Madras High Court evolved the principle of ejusdem generis i.e. of the like nature. It means that those authorities are covered under the expression ‘other authorities which perform governmental or sovereign functions.
In Ujjam Bai v/s Union of India the Supreme Court rejected the principle of ejusdem generis .It observed that there is no common genus between the authorities mentioned in Article 12. And by giving the reference of Art 19 (1) (g), and Art 298 which contemplated engagement of state in the performance of commercial activity, and Art 46 promotion of education or economic interest.
In Rajasthan State Electricity Board v/s Mohan Lals it was held that to be State, it is not necessary that the authority must be performing governmental or sovereign functions .It should-
( i ) Be created by the Constitution of India;
(ii ) Have power to make laws;
In R.D.Shetty v/s International Airport Authority, the Court laid down five tests to be an other authority-
( i ) Entire share capital is owned or managed by State.
( ii ) Enjoys monopoly status.
( iii ) Department of Government is transferred to Corporation.
( iv ) Functional character governmental in essence.
( v ) Deep and pervasive State control.
( f ) Object of Authority
In Ajay Hasia v/s Khalid Mujib the Court observed that the test to know whether a juristic person is State is not how it has been brought but why it has been brought.
( g ) Clearance of five tests
In Union of India v/s R.C.Jain , to be a local authority, an authority must fulfill the following tests-
( i ) Separate legal existence.
( ii ) Function in a defined area.
( iii ) Has power to raise funds.
( iv ) Enjoys autonomy.
( v ) Entrusted by a statute with functions which are usually entrusted to municipalities.
In Prem Garg v/s Excise Commissioner H.P. the Supreme Court held that when rule making power of judiciary is concerned, it is State.
Other jurists say that since judiciary has not been specifically mentioned in Article 12, it is not State, therefore if the Judge or magistrates are not note State while there are functioning as a Judiciary. But if they are also functioning as Administrator then they will be treated as State within the meaning of Art 12. The Chief Justice of High court shall have functions in dual role :
Chief Justice of High Court
Chief Administrative of High Court.
If any citizen aggrieved by the act of the Chief Justice , while he was function as chief administrator of the high court then that chief justice has no remedy and he shall be treated as a State under the Art 12.
Conclusion
The word ‘State’ under Article 12 has been interpreted by the courts as per the changing times .It has gained wider meaning which ensures that Part-III can be applied to a larger extent. We hope that it would continue to extent its width in coming times.
Hi, my name is Naveen Kumar Shelar. I reside in New Delhi, India currently employed full time as a Facility & Administration Professional .
I started out as a Executive Administration late in 2005 evolved into a Facility & Administration with time and now I’m into New office development and Planning . I am mostly involved in new office infrastructure planning, procurement development, execution, and operations, not only this but I love to policies and procedure drafting for office operations.
When I’m not working I am mostly into sports like Cricket or Chess. I’m also into movies and music big time. I love spending time at home on holidays with my mom, dad, wife Anu, daughter Shrishty, Siya and my pet Ronny, chutki (Labrador) who is simply on his moves all the time to keep you busy at home 🙂
My father and my mother has been a great source of inspiration for my life.
Specialties: New office set up and it’s whole life cycle, in technology driven organizations. Competitive analysis, process compliance & improvements, policy and procedure drafting, legal Agreement drafting.
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