Polity (Evolution of Constitutional ideas, Values and Constitutionalism) by Rajeev Choudhary Sir

Model Answer

Question #1. A Constitution is a living document and, hence, it has to reflect the changing times. Discuss this statement by citing some of the recent Amendments to the Indian Constitution.

Approach:

• The questions demands analysis of the Indian Constitution as living document
• Write the categories  in which a  living constitution is divided
• Explain the nature of Indian Constitution as a living document
• Then  enlist recent constitutional amendments
• Conclude with the gist of your answer

Hints:

As the people of the nation grow, their needs and aspirations change. People adopt a more progressive approach with each passing day. Our Constitution is not merely a lengthy legal document but a charter of values and principles; a dream of a free, just, and equal society. A dream which is not static and undeviating, but is subject to constant renewal as each generation discovers a new, the founding principles of our Republic.

The arguments for the Living Constitution can generally be broken into two categories:

• Pragmatist view contends interpreting the Constitution in accordance with its original meaning.
• The second view, relating to intent, contends that the constitutional framers specifically framed the Constitution in broader and flexible terms so as to create a dynamic, "living document'.

Indian Constitution as a living document

• When a Constitution is amended it is expected that it would bring a change for the better. In other words, it would ‘give more, than take away. Article 268 of Indian Constitution together with other articles, empowers parliament to make amendments to the constitution.
• The amendment procedure laid down in the constitution is both rigid and flexible for different articles.
• While some need only a simple majority, most need a majority of two-thirds present and voting in both the houses of parliament and the assent of the president.
• The toughest amendment procedure prescribed requires beside the two-thirds present and voting and requirements also the consent of at least half the members of legislatures in state in the country. And, furthermore, it also requires the assent of the president.

The recent constitutional amendments have paved the way for various reforms in the country. Some of the recent Amendments can be seen as:

• The 101st Amendment: It allowed the government to unify the taxation system throughout India thus leading to a pan India taxation system. It led to the simplification of the indirect taxation system in India by introducing GST and increased revenue for the government treasury.
• The 102nd Amendment: It provided for granting constitutional status to the National Commission for Backward Classes, restructuring the existing mechanism for the upliftment of backward classes, thus acting as a tool of good governance.
• The 103 rd Amendment: It provided for 10% reservation to the economically weaker section in the society, thus working for the cause of economic justice in the society.
• The 104th Amendment: It extends the deadline for the abolition of the reservation of seats by 10 years in the Lok Sabha and State Legislative Assemblies for members of Scheduled Castes and Scheduled Tribes.
• The 105th Amendment: The 105th Amendment aims at restoring the power of the States and the Union Territories to make their own OBC list.

Constitution:

Thus, the Constitution of India is a balance between rigidity and flexibility which enables us to sustain the core basic structure while amending the rest of the structure according to the changes in the society. It is proof that Our Constitution is not only a living document but also a means to steer towards the path of advancement. 

Question #2. As the most potent tool in the hands of the Indian judiciary, the doctrine of basic structure has altered the course of Indian Constitutional law jurisprudence. Highlighting the evolution of basic structure doctrine in India, discuss its significance and enlist some application in several judicial pronouncements.

Approach:

• The question requires analysis of basic structure in the light of its  evolution and significance
• Contextually introduce with basic structure doctrine
• Then discuss how this doctrine evolved over the years in India. Give reference to several judgments of Supreme court
• After that explain the importance of basic structure
• Conclude with the gist of your answer

Hints:

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 the amendments by the parliament. It gives extra power to court to review and strike down any constitutional amendments and act enacted by the parliament. It was developed by the Supreme Court of India in a series of constitutional law cases in the 1960s and 1970s that culminated in Kesavananda Bharati v. State of Kerala, where the doctrine was formally adopted.

Evolution of basic structure doctrine India

• The Supreme Court, since independence, has time and again reformed and revised its stance on parliament's power to amend the constitution. For example, the apex court in the Shankari Prasad case (1951) upheld the absolute power of Parliament to amend the Constitution. It did the same in the Sajjan Singh case (1965).
• In both these cases, the court ruled that the term “law” in Article 13 must be interpreted as "rules or regulations" made in the exercise of ordinary legislative power and not amendments under Article 368. It means that the Parliament had the power to amend any part of the constitution including the Fundamental Rights.
• Article 368 of the constitution defines the power of Parliament to amend the Constitution and states the procedure to amend the Indian constitution. Article 13(2) of the Indian constitution states, "The State shall not make any law which takes away or abridges the right conferred by this Part (Part-III) and any law made in contravention of this clause shall, to the extent of the contravention, be void."
• However, in the 1967 Golaknath case, the Supreme Court ruled that Parliament cannot amend Fundamental Rights.
• The Court referring to Article 13, observed that an amendment made under Article 368 is "law" within the meaning of Article 13 of the Constitution and therefore if an amendment "takes away or abridges" a Fundamental Right from Part III of the Indian constitution, it shall be void.
• To surpass the Golaknath judgment constraints, the Indira Gandhi government made major amendments to the Constitution. The government enacted the 24th amendment act which introduced a provision to Article 368 of the Constitution, which said that Parliament has the power to take away any of the fundamental rights.
• The Keshavnanda Bharti case challenged the four amendments (24, 25, 26 and 29) brought by the government. The SC overruled the Golaknath case judgment and upheld the validity of the 24th amendment act. The court opined that the Parliament is empowered to take away or abridge any of the Fundamental Rights in Part III, until and unless the changes do not alter the ‘basic structure’ of the constitution.
• Thus, this landmark judgment meant that every provision of the Constitution could be amended but these amendments can be subjected to judicial review to ascertain that the basic structure of the Constitution remains intact.

Significance of Basic structure doctrine

• The doctrine of basic structure is very significant to the Constitution of India as it protects the Constitution from the misuse by the Parliament of its power to make amendments to the Constitution.
• Due to this doctrine, Parliament cannot amend the Constitution as per their whims and fancies. 
• The Doctrine of basic structure is very important for maintaining a balance between the needs of a changing environment and the spirit of our legal system. This doctrine put a check on the working of the government and ensured that it does not adopt extreme steps in the greed of power.
• In the absence of this doctrine, the parliament would have unlimited power to amend the constitution and it may use it arbitrarily to satisfy its own personal interest.  They might change the concept of separation of power and amend the democratic status of our country to a dictatorship or hereditary monarch.
• This doctrine played a very crucial role in determining the validity of various constitutional amendments.

Application of Basic Structure doctrine in judicial pronouncements:

•   Mandal case/Indira Sawhney Case (1992): Rule of Law
•   Kihoto Hollahan Case (1993): Free and fair elections, Sovereign and Democratic structure
•   SR Bommai Case (1994): Federalism, Secularism, Social Justice, Judicial review
•   Nagaraj Case (2006): Principle of equality
•   Madras Bar Association Case(2014): Judicial Review, Powers of High court
•   NJAC Act ( 2015): The SC had declared NJAC Act unconstitutional, arguing that the primacy of the judiciary in judicial appointments was embedded in the 'basic structure' of the Constitution

Conclusion:

A vibrant democracy is that which sustains its core elements and grows with passing time, like a living tree. The constitution and its basic structure doctrine follows a similar path ensuring that the core elements of the constitution pass the test of time making the nation a true democracy going towards good governance.