Article 13 of Indian Constitution: Judicial Review & Law

The Supreme Court said Fundamental Rights under the Constitution as being given in mutual transcendental supremacy and considered supreme over any other part like DPSP and therefore cannot be violated whatsoever by any legislature, be it constitutional amending power or ordinary legislative power.

The Supreme Court said constitutional power or the law is also a law within the meaning of Article 13. Hence the Parliament cannot abridge the Fundamental Rights.

The Parliament reacted against this judgment by amending the Constitution again i.e. the 24^th Constitutional Amendment Act 1971 and the 25^th Constitutional Amendment Act 1972.

The Parliament amended Article 13 and Article 368 through the 24^th Constitutional Amendment Act, 1971, which can be read as: there is no limit or nothing shall apply to Article 13 when it is done through Article 368. This was done through the 24^th Constitutional Amendment. Also Parliament included a new provision (i.e. Article 31), which provided primacy of 39 and 39 over Fundamental Rights 14, 19, and 31. This was done through the 25^th Constitutional Amendment Act 1972.

• Article 39(b)

  It includes allocation of resources in an equitable manner.

• Article 39(c)

  It includes prevention of concentration of health into two hands as the directive principle of state policy.

So through the 25^th Constitutional Amendment Act it was held that Parliament can make a law to implement 39(b) and 39(c), thereby they can violate 14, 19 and 31 of the Fundamental Rights and that law cannot be judicially reviewed. Therefore for this a new Article 31C was created, which empowered Parliament to do so.

These two amendments, that is, the 24^th and 25^th, were done to notify the effects of Golaknath.

Kesavananda Bharati vs State of Kerala 1973

Supreme Court in the landmark case, Kesavananda Bharati vs State of Kerala, 1973 constituted the largest bench in the history of India till now. The Supreme Court said that Parliament cannot enjoy unlimited amending power. There is a limit in the Constitution amending power of Parliament and that limit is the basic structure.

The Supreme Court in this case laid down the doctrine of basic structure in order to limit the Constitution-amending power of Parliament. The Supreme Court, however, said the Parliament also has the right to amend or change anything in the Constitution, including Fundamental Rights, but Parliament cannot change, alter, or violate the basic structure of the Constitution. Parliament cannot violate those Fundamental Rights which are part of the basic structure.

First Test of Basic Structure

As Indira Gandhi's candidate was challenged in Allahabad High Court under the Obligation Petition, where Indira Gandhi was found guilty of electoral practices. The matter was brought to the Supreme Court as Indira Gandhi challenged it. Meanwhile the matter was pending, Indira Gandhi enacted the 39^th Constitutional Amendment Act 1975, which gave an end to the election dispute involving the President, Vice President, Speaker of Lok Sabha, and PM outside the preview of the jurisdiction of the court.

The Supreme Court struck down this 39^th Constitution Amendment Act 1975, providing the reason that judicial review is a part of the basic structure. Later Gandhi amended the Constitution at this time, amended Article 368 to bypass the doctrine of basic structure and included Article 368(4), Article 368(5) and also amended Article 31C, which in the case of Kesavananda declared the second point invalid and first point valid that said article 39(b) and 39(c) can override article 14, 19, and 31. The second point that no judicial review can take place. So Indira Gandhi amended Article 31C, first point, and said that to implement all DPSP we can violate Article 14,19 and 31.

This all was done through the 42^nd Constitution Amendment Act 1976 at a time when the emergency was in place and most of the opposition leaders were inside the jail. Article 368(4) and 368(5) mandate especially for nullifying the effects of basic structure.

• Article 368(4)

  No amendment of this Constitution to be made under this Part shall be called in question in any court of law on any grounds.

• Article 368(5)

  Declares for the removal of doubt it is thereby declared that there shall not be any limitation on the constituent power of Parliament by way of variation or repeal of the Constitution through this Article.

So finally in Minerva Mills v. Union of India, 1980, the Supreme Court declared Article 368(4) and 368(5) as unconstitutional and quashed the new amendment of Article 31C and revived the previous amendment of Article 31C excluding second clause. In short

• Article 368(4) and 368(5) is invalid.
• Article 39b, 39c can violate Article14 and 19 if a law is made for implementation of Article 39b and 39c.

In the Minerva Mills case the Supreme Court re-founded the doctrine of basic structure and said the parliament cannot have unlimited power and the doctrine of basic structures would be there.

Later on the applicability part of the basic structure, the Supreme Court in the Waman Rao vs Union of India 1988 case said that the doctrine of basic structure would be applied prospectively from 24^th April 1973 not retrospectively.

Before 24^th April 1973, because judicial review is a part of basic structure, in the landmark case I.R. Coelho v. State of Tamil Nadu, the Supreme Court said the 9th Schedule cannot have blanket immunity and can be judicially reviewed.

Doctrine of Basic Structure and Ordinary law

As per Kuldip Nayar v. Union of India, 2006 case, the Supreme Court has classified the applicability of basic structure and limits of ordinary law. The Supreme Court said that for the constitutional amendment the doctrine of basic structure would be applicable but for the constitutional law there are three tests which need to be satisfied:

• The test of Article 13(1)
• The test of Article 13(2)
• Competency of the law means whether you are authorized under the Constitution to legislate upon the law or not. Example: Whether a state legislator enacting a law can enact a law on the union list if it does that goes against the competency.

Definition of Doctrine of Basic Structure

Basic structure is a judicially postulated doctrine in the landmark case Kesavananda Bharati vs State of Kerala, 1973 that has curtailed the legislative over-enthusiasm through its constitutional amending power under Article 368.

Elements of basic structure from time to time have been added as it is evolving doctrine. It includes:

• Supremacy of Constitution
• Sovereign, democratic, republic nature of Indian polity
• Secular Character of Constitution
• Elements of Separation of Power between Legislative, Executive, and Judiciary
• Federal Character
• Unity and Integrity of the Nation
• The concept of judicial review
• The concept of welfare state that is socio-economic justice
• Rule of law
• Harmony and Balance between Fundamental Rights and Directive Principle of State Policy
• Free and Fair Election.
• Principle of Equality
• Independence of Judiciary
• Limited power of parliament to amend the Constitution
• Effective access to justice
• Essence of Fundamental Rights
• Power of the Supreme Court under Articles 32, 141, 142, 136
• Power of High Court under Article 226 and 227

Criticism of Doctrine of Basic Structure

• It is now defined in the Constitution.
• It is in a way of judicial legislation. If it is very important for constitution makers then the constitution maker would already have given this doctrine or set of doctrines separately in the constitution. This is nothing but an artificial creation of doctrine which has far serious importance.
• It is a matter of subjectivity as it is an evolving doctrine. Judiciary may interpret this according to their whims and fancies and therefore it is no less than a separate constitutional doctrine.
• It is established that judicial hegemony over a democratically formed government. Parliament is the voice of 20 crore people and this doctrine can override constitutional amendment through the application which is applied by judges of the Supreme Court.
• It makes judiciary a third decisive chamber as a result of being able to bypass its own criticism, for example, Collegium system revival.
• The Constitution is ambiguous in nature. Some words are not explained.
• Selective application to bypass the criticism of judiciary is seen is also questionable like judicial independence versus separation of power in the revival of collegium system.

Importance of Doctrine of Basic Structure

• It protests against authoritarian regimes and promotes the value of constitutionalism.
• It maintains checks and balance and ensures efficiency and separation of power.
• It protects from legislative over-enthusiasm under the garb of a brute majority reflected in Parliament and ensures the independence of the judiciary.
• Protect Citizenship Rights and Establish Democratic Value

This doctrine is an evolving doctrine and is open to interpretation and inclusion, therefore relevant in the cotemporary world.

Essence of Doctrine of Basic Structure in Constitution

To substantiate the understanding of the doctrine of basic structure, we must understand the doctrine of basic structure that the Supreme Court of India also has provided the doctrine of basic structure explicitly in the case of Kesavananda Bharati V. State of Kerala, 1973. We can trace basic structure implicitly in the Constitution.

We can trace the doctrine of basic structure in the Constitution in the following ways.

• Judicial review from Article 13, 32, 236
• Separation of Power from Article 53, 154, 121, 211, 122, 212, 105, 194, 361, etc.
• Unity and Integrity through Preamble and Article 1
• Federal principle in Part 5 and Part 6 of constitution, especially provision with respect to states
• Secularism from Articles 25 to 28
• Independence of Judiciary from Article 142
• Principle of Sovereignty from Article 1, 151, 251, 368

Therefore we can conclude the Doctrine is not a new one. It is a consolidation of basic trends or basic values of the Constitution.

Doctrine of Eclipse

Doctrine of eclipse is a doctrine which is only applicable to pre-constitutional law. It is applied when any law or act violates the fundamental right today. The fundamental right overshadows the law or act and makes it unenforceable but not void. Having no legal effect from it inspection. The doctrine postulates that this law, which is in contravention of the fundamental right, would remain present in the dormant mode, being shadow/hidden. However when tomorrow the status of fundamental values changes, the law can be revived because it was earlier in the dormant state.

The objective of this doctrine is basically to save the law.

Doctrine of Severability

If any law enforced in India is inconsistent with fundamental rights then the law shall be void to the extent of inconsistency. It means the whole law or act would not be invalid but the provisions which are inconsistent would be declared invalid only. The entire law is not script. In short we can say that this doctrine is not severability but separability.

Limitations of Doctrine of Severability

if the valid and invalid parts are so closely mixed up with each other and cannot be separated from each other and if the provision which is invalid is the core theme of the entire law, then in that case the entire law/act could be deemed to be invalid.