Meaning of Constitution and Basic Structure of the Indian     Constitution

                  (Golakhnath Case and Keshavanand Bharti Case)

1)  Meaning of Constitution : The term ‘Constitution’ is derived from Latin   word ‘constitute’ which means ‘to establish’.

2)  Definition of Constitution : It is the basis of fundamental laws of a state . In other words it is the collection of laws according to which a nation runs.

      a) According to Dicey :-  “The Constitution of the state consists of all rules which directly or indirectly affect the distribution or exercise of sovereign power in the state”.

      b) According to Dr. Finer :-  “Constitution is a system of fundamental political institutions”.

Constitution of India (Basic Structure)

3)  Original Constitution had 22 Parts, 395 Articles and 8 Schedules.        

    At Present there are 25 Parts, 448 Articles and 12 Schedules.

4) Part 3:- Fundamental Rights (Article 12-35)

5) Part 4:- Directive Principles of State Policy (Article 36-51)

6) Article 13:-  It grants the judiciary the power of judicial review,declaring any law inconsistent with Fundamental Rights void.

   a) Supremacy of Fundamental Rights

   b) Judicial Review

   c) Voidness

7) Article 32:-  It grants the right to citizen to move the Supreme Court for enforcement of their Fundamental Rights.

Dr B.R. Ambedkar described Article 32 as ‘Heart and Soul’ of the Constitution for its vital role in protecting Fundamental Rights of the Indian Constitution.

8) Right to Property :-  Article 19(1)(F) And Article 31

   a) Article 19(1)(F) :-   According to it any citizen can aquire, buy, sell or use its land for any purpose.( Right to Property is considered as ‘Fundamental Right’ under this article)

  b) Article 31 :-  According to this article there is a process to acquire someone’s property. If governmentaquires someone’s property the person is to be given compensation in return of the property by the government.

·      Article 31(1) :-  The government willaqire the property only for public purpose.

·      Article 31(2) :-  Government will have to pay  compensation for the land.

9) Directive Principles of State Policy:-  Article 39 (B)and(C). State should try to balancethe property equally among the different people of society.

·      Article 37 :- DPSP cannot be challenged in the Supreme Court and High Courts.

10) Land Reforms :-  Abolition of Zamindari System and Implementation of Land Ceiling (Maximum holding of land a person can own).

11) First Amendment of the Constitution(1951) :-   

 a)  9^th Schedule was added in the constitution. Part A and B were added in Article 31.

·      Part 31(A) :- If any law is passed forland reforms so rest of the clauses of Article 31 will not be implemented on it.

·      Part 31(B) :-   If any law passed by Lok Sabha, Rajya Sabha or Vidhan Sabha  and that law is kept under 9^th Schedule so there will be no Judicial Review by Supreme Court or High Courts.

b)  Clause 4 was added in Article 15 which states, if state does some changes in the constitution for SC/ST/OBC(Providing Reservation) in the field of education, it cannot be challenged in the Supreme Court.

12) Relation Between Article13 and 368 :-  

a) Article 13(2) :-  State shall not make any law which is against Fundamental Rights. If any such law is passed, it will be considered void to that extent till where it is harming the Fundamental Rights.

b) Article 13(3) :-  Law include Act, Ordinance, Order, Notification, Rules, Regulations, Bylaws, Customs(परंपरा)  which is followed by State as law shall also be considered as law by the Constitution.

Article 368 :-  According to this article, the Constitution grants Parliament the power to amend the constitution through a procedure which involves introduction of bill, passing it in the both houses either with simple majority or with special majority(majority of total members of house and two-thirds majority of members present and voting), and obtaining President’s assent.

a) Article 368(1) :-  It grants Parliament the power to amend the Constitution(addition and repeal) .

b)  Article 368(2) :-  It details the procedure of the amendment (introduction of bill, passing it in the both houses either with simple majority or with special majority(majority of total members of house and two-thirds majority of members present and voting), and obtaining President’s assent.)

13)                                     Golakhnath Case

Ø Golakhnath were two brothers William Golakhnath and Henry Golakhnath.

Ø They had 500 acres land in Jalandhar, Punjab.

Ø In 1953, Pumjab Government passed the Punjab Security and Land Tenures Act.

Ø As per this act, if a family has more than 1 son and the land owned by them is very vast so each son would get maximum 30 acres land abd remaining land will be evicted by the Punjab Government.

Ø The parliament passed the 17^th Amendment which included the Punjab Security and Land Tenures Act in the 9^th Schedule of the Constitution.

Ø The Golakhnath brothers appealed in the Supreme Court against this act.

Ø The bench of 11 Judges (2^nd Highest Bench in history of Indian Judiciary till now) sat on this case.

Ø Decision by the Supreme Court :-

·      Chief Justice K. Subbarao gave the verdict that Parliament could not curtail any fundamental right (Right to Property was fundamental right at that time) of the citizen.

 

     

                                                            Chief Justice K. Subbarao

·      Court also states that limitations of Article 13 also implies on Article 368.

·      The judgment was passed with the majority of 6:5.

                  1971 Lok Sabha Elections

Ø Congress (R) won 352 seats.

Ø Congress (O) won 16 seats.

14) 24^th Amendment

a) Article 13 and Article 368 amended. Clause 4 was added in Article 13 and Clause 3 was added in Article 368.

b) According to this amendment , any amendment done in Article 368 would not be related to Article 13 (power of court for judicial review).

c) This amendment declared the Golakhnath Case verdict null and void.

15) 25^th Amendment

a)   Under this amendment Part C was added in Article 31which states that if any law is made in the favor of Directive Principles of State Policy, that law will not be challenged in the court on the basis of Articles 14, 19 and 31 i.e.

·      Article14 (Right to Equality),

·      Article 19(1)(F) (Right to Property),

·      Article 31(Rules of not acquiring the land easily by government: Compensation Right).

·      The Word ‘Compensation’ was changed to ‘Amount ’.

·      After acquiring someone’s land, it is not necessary that the government will pay the actual price for that land that . Whatever price the government decides as per its own calculation, it will be given to that person. And Supreme Court would not interfere in this case.

16) 26^th Amendment

• Abolition of Privy Purses: The primary purpose was to end the payments known as "privy purses" given to former rulers of Indian states as compensation for the loss of their territories and sovereign powers.
• De-recognition of Rulers: The amendment also stopped recognizing the former rulers and their successors as rulers, effectively derecognizing their special status.
• Abolition of Articles: It omitted Articles 291 and 362, which previously dealt with Privy Purse sums and the rights and privileges of rulers.
• Addition of Article 363A: A new Article 363A was added to the Constitution, stating that privy purses and privileges are abolished and rights, liabilities, and obligations in respect of them are extinguished.
• Promotion of Equality: The amendment aimed to align with an egalitarian social order by discontinuing special status and privileges that contradicted the principle of equal rights for all citizens.

17) 29^th Amendment

·      The Two Kerala Land Reforms Acts were added in the 9^th Schedule of the Indian Constitution.

·      The two Land Reforms Act were:

Ø The Kerala Land Reforms(Amendment) Act,1969

Ø The Kerala Land Reforms(Amendment) Act, 1971

18)                         Kesavanand Bharati Case

·      In 1972, there was a Math(मठ) in Kasaragod district, Kerala.

·      Sant Kesavanand Bharati was the Shankaracharya of the Math(मठ).                                 

                    

                                  Kesavanand Bharati

  · Math(मठ) had many properties.   

   ·   Under Kerala Land Reform Act the Math(मठ) was taken by the Government under 29^th Constitutional Amendment.                                                   

         He filed petition against the act in the Supreme Court.

·      Nani Palkhiwala was the advocate of Kesavanand Bharati.

·      H.M. Seervai and Niren De(then Attorney General of India)  and L.N. Sinha(then Soliciter General of India)were the advocates for the Government of Kerala.

·      A Bench of 13 Judges (Highest Bench in history of Indian Judiciary till now) sat on this case.

·      Decision by the Supreme Court :-

·      Chief Justice SM Sikri gave verdict on 24^th April 1973.

                                                            Chief Justice SM Sikri

·      The Judgment was passed with the majority of 7:6 in the favour of government.

·       The Court held 24^th, 25^th and 29^th Amendments constitutional and valid.

·      The Court said that Parliament has right to amend any part of the constitution.

·      But Parliament has no power to change the basic structure of the constitution.

·      The court held that power of amendment of constitution is not equivalent to rewriting of the Constitution.

·      Parliament can amend Constitution without disturbing the basic structure of the Constitution.