Written by Hritam Saha

Invention and Innovation are not the same. For illustration, the former gives birth to a child, and the latter nurtures that child for his/her growth and survival without changing him/her from human (as born) to an animal. Now, to put it in the language of the Constitution, the amending power of the Parliament, derived from Article 368, and the Constitution-building power of the Constituent Assembly, limited by nobody, is not the same. The amending power is an innovative power by which the Parliament cannot contradict any invention of the Constituent Assembly, however, the Constituent Assembly's Constitution-building power was an inventing power that was not limited by any law, not even by the Indian Independence Act. The invention of the Constituent Assembly is the ‘‘Basic Structure’’ of the Constitution as first anticipated by the Supreme Court in Sajjan Singh v. State of Rajasthan [(1965) 1 SCR 933] and later discovered by the same in Kesavananda Bharati v. State of Kerala [1973] Suppl. SCR 1. The discovery of the ‘‘Basic Structure’’ by the Supreme Court was preceded by a chequered history of Constitutional amendments introduced by the Parliament for immunizing the acquisition of land acquired by the State from the zamindars for distributing the same to the landless people.

The unavoidable question is- what is the ‘‘Basic Structure’’ of the Constitution, and an apparent answer to that would be the ‘Fundamental Rights’ because ‘Fundamental is synonymous with Basic’. However, the answer is not that apparent, and to appreciate the answer, one has to traverse history because to appreciate today, one has to recall yesterday.

History

The declaration of a land reform act as unconstitutional by the Patna High Court in Kameshwar v. State of Bihar [AIR 1951 Patna 91] whereas the upholding of similar land reform Acts by the High Court of Allahabad and Nagpur persuaded the Parliament to introduce Articles 31A and 31B in the Constitution for immunizing the land reforms legislation from the ground that such laws violate fundamental rights. The 9th Schedule was introduced in the Constitution wherein if any law is inserted, such law will get immunization from the ground of violation of any fundamental right and judicial review.

Article 31A says one cannot weaponize violation of fundamental rights namely Articles 14 and 19 to prevent the state from acquiring/interfering in one's property. Article 31B bars the review by the court of those laws made under 31A and inserted in the 9th schedule. As informed by Nehru to the Parliament, the said articles and the 9th Schedule have been introduced for immunizing only the land and agrarian reforms legislation as a particular field of legislation can be immunized from fundamental rights as held in Minerva Mills Ltd. & Ors vs Union Of India [AIR 1980 SC 1789] however, several non-agrarian and non-land laws have been inserted in the said Schedule which is impermissible as held in the said case.

Articles 31A, 31B, and the 9th Schedule were upheld in Sri Sankari Prasad Singh Deo v.Union of India and State of Bihar [(1952) SCR 89] which was overruled in I.C. Golaknath & Ors. v. State of Punjab & Anr. [(1967) 2 SCR 762 which was overruled in Kesavananda Bharati v. State of Kerala [1973] Suppl. SCR 1.

The Golaknath case held that fundamental rights can't be amended however it did not declare Articles 31A, 31B, and 9th Schedule unconstitutional as it applied the prospective overruling which precisely means the law laid down by the court in a case won't apply on the facts of that case but on the similar facts that may arise in any future case.

As the parliament was debarred from amending Part III of the Constitution after the Golaknath case, it introduced Article 31C that precisely made Directive Principles of State Policy enforceable and fundamental rights namely 14 and 19 unenforceable and egregiously debarred us from challenging before the court any such law on the ground of such law not giving effect to Directive Principles of State Policy. The expression was- ‘no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy’: Article 13(4) was introduced to protect all the amendments from the Constitutionality test of Article 13 and Article 368(1) was amended to make Parliament the Constituent Assembly.

Keshavananda case overruled the Golaknath case and held Article 31C is valid except for the said expression that eviscerated the judicial review, and therefore, laid down that fundamental rights can be denuded by Constitutional amendment however judicial review cannot be, and therefore, held that Articles 14 and 19, which are proposed to be eviscerated by Article 31C via public interested law, are not part of the ‘Basic Structure’ of the Constitution as it held that the ‘Basic Structure’ of the Constitution cannot be destroyed and evisceration of Articles 14 and 19 is like destroying the ‘Basic Structure’. I know one is bound to be afraid after reading this however what Justice HR Khanna in Indira Nehru Gandhi (Smt.) vs Raj Narain & Anr [1975 AIR 1590] enunciated as under:
"There was a controversy during the course of arguments on the point as to whether I have laid down in my judgment in Kesavananda Bharati's case that fundamental rights are not a part of the ‘Basic Structure’ of the Constitution…. I should deal with the contention advanced by the learned Solicitor General that according to my judgment in that case no fundamental right is part of the ‘Basic Structure’ of the Constitution. I find it difficult to read anything in that judgment to justify such a conclusion. What has been laid down in that judgment is that no article of the Constitution is immune from the amendatory process because of the fact that it relates to a fundamental right and is contained in Part III of the Constitution…. I also dealt with the matter at length to show that the right to property was not a part of the ‘Basic Structure’ of the Constitution. This would have been wholly unnecessary if none of the fundamental rights was a part of the ‘Basic Structure’ of the Constitution".

Not so Basic

Therefore, all fundamental rights do not form the ‘Basic Structure’ of the constitution as held in I.R. Coelho (Dead) By Lrs vs State Of Tamil Nadu, 2007 by relying on the Keshavananda case. In India, all the laws made under Article 31A are immunized under Article 31B of the Constitution by inserting the same in the 9th Schedule via a Constitutional amendment, and Article 31C specifically immunizes those laws realizing Directive Principles of State Policy. Article 31A confers the power only to make public interested laws, and therefore, all public interested laws are immunized from the ground of violation of fundamental rights if not destroying the ‘Basic Structure’ of the Constitution but not from the interference of the court as held in the Keshavananda case. Therefore, the question arises- Is a law valid which is made in the public interest and is inserted in the 9th Schedule and protected under Article 31C but denudes a fundamental right not forming the ‘Basic Structure’ of the Constitution of India? Then the follow-up question is which fundamental rights form the ‘Basic Structure’ of the Constitution?

The answer to the first question is given in Waman Rao and others v. Union of India & others, 1980 [(1981) 2 SCC 362] as it held that any law made and inserted in the 9th Schedule and immunized under Article 31C before April 24, 1973 (date of delivery of Kesavananda judgment) cannot be challenged however after the said date, every law inserted in the said Schedule can be challenged on the ground that it destroys the ‘‘Basic Structure’’ but challenging any law inserted in the 9th Schedule and immunized under Article 31C would be a futile exercise. Therefore, this judgment messaged the Parliament and state legislatures who make public interest laws and put it in the 9th schedule, that the court will become the spectator for witnessing the barking march of the twin siblings namely legislature and executive over the fundamental rights.

Maharao Sahib Sri Bhim Singhji ... vs Union Of India And Ors. Etc. on 1 July 1985, [1985 AIR 1650] answered the said question by establishing two tests that are- firstly if any public interest law is immunized by Article 31C and inserted in the 9th Schedule then one can challenge such law manifesting that the law declaring that it is realizing the Directive Principles of State Policy, is in fact not realizing the same, and therefore not immunized under Article 31C. Secondly, the said law is destroying the ‘Basic Structure’ of the Constitution and held that Articles 14, 19, and 21 form the ‘Basic Structure’ of the Constitution.

The Supreme Court in I.R. Coelho (Dead) By Lrs vs State Of Tamil Nadu & Ors, 2007, answered the said question by concluding as under:

(iii) All amendments to the Constitution made on or after 24th April 1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution as reflected in Article 21 read with Article 14, Article 19, and the principles underlying them. To put it differently, even though an Act is put in the Ninth Schedule by a constitutional amendment, its provisions would be open to attack on the ground that they destroy or damage the ‘Basic Structure’ if the fundamental right or rights taken away or abrogated pertains or pertain to the ‘Basic Structure’.

Present

Therefore, a fundamental right that does not forms the ‘Basic Structure’ of the Constitution can be snatched away however the court has not categorically laid down which existing fundamental rights form the ‘Basic Structure’ of the Constitution, and therefore, has put the following rights at risk namely Right to practice one’s religion efficiently and conveniently under Articles 25, 26, 27, and 28, Right against double jeopardy, self-incrimination and Right to give a penalty as prevalent when the offense was committed under Article 20, Right of the minority to preserve their past, secure their present and plan their future under Articles 29 and 30. The court also utterly failed to recognize Article 32 as forming the ‘Basic Structure’ of the Constitution without which the fundamental rights would be a ‘pen without ink’. The court did observe that Articles 14, 15, 16, 19, and 21 of the Constitution form the ‘Basic Structure’ of the Constitution but has not said these are the only articles that form the ‘Basic Structure’.

Former Judge of the Supreme Court of India, Rohinton Nariman remarked that Article 31C of the Constitution is now unnecessary because it was introduced to curtail the fundamental right to property, as it was under Article 19(1)/(f), and as the said right is no more a fundamental right therefore 31C is useless. I disagree with the former judge’s sui generis intellect by arguing that Article 31C immunizes a law from Articles 14 and 19, and therefore, for example- there are four plots of land but out of them only one plot is acquired by the government despite all the plots are same in every aspect, the owner of the acquired plot cannot take the ground of treating equals unequally due to operation of Article 31C, and therefore, the removal of Right to Property as a fundamental right has not made the said article useless.

Science is disciplined, it can say whether a person is alive or not barring some exceptional cases however the law has always remained undisciplined and will always be as the law of today could be the bad luck of tomorrow, and it is because the exception is the rule here despite it being the exception, and factually although unfortunately, exception translates to exemption, and most, unfortunately, the latter is only obtained by the ones having substantial currency.

Edited by Siddhant Sharma

When there is a deadlock at the headlock of corona and politics....

[Continued].... the people of India have to resort to voting at the expense of their life; political ideologies incarnate into political idiosyncrasies incarcerating the idea of the 'Union of States'; a relay race of shifting responsibility without a finishing point takes place between the government of a State and the government of India and the arrival of many other alike beings take place.All when summed up makes the life and limbs of the common people susceptible to the ears and eyes of the COVID-19.History is a witness, which when called upon, has reiteratedly enunciated that war and crisis makes a government unipersonal. Such power then suffuses over every branch, for instance, Reporters Across Borders purported that 38 countries have hijacked freedom of the press.Many governments have enacted emergency laws to address the pandemic, like new powers of detention, closing non-essential businesses, limiting public gatherings and movement, monitoring the streets to ensure they remain inside.Some countries have also invoked emergency like Armenia, Estonia, Georgia, Latvia, Moldova and Romania. These actions though made in good faith have inseparable repercussions, for instance in Philipines, people are violently detained, belaboured and even killed for being cold with the restrictive orders, and when the actions of the authorities were questioned they justified themselves by colouring their cause of actions with unintelligible crayons. Miniscule of Confrontations has also been witnessed between the armed forces and people in the United States, Greece and Germany.It is a watertight proposition that lockdown has sent the human rights in hibernation though such has been done with good intentions. Still, severing the accountability from the largest picture of lockdown was a cancerous dream that indeed took the form of reality.In India, the largest picture was the inexplicable ever walking hunger march of the migrant workers which perhaps would remain a never-ending march for their families. The government of a state has invested their burden to another state stating the workers are not domiciled in their state. But that is why they are called migrant workers, not just workers. In such circumstances, the centre had graced the situation with absolute silence even though they have conveyed ration to the states but had not pressed anything for the migrants. At that time the Supreme Court, in its wisdom, deemed fit to take a resolution of disappearing with the sunset and not to rise with the sun.Are not these instances exemplifying the uninterrupted dictation of the governments?During the election this year, a newspaper in its print considered voting as the 'dance of democracy'. But I think it was a curtain-raiser. The subsequent substantive of the story was the 'uninvited dance of life shedding'.Politics in simpler and unharmful terms are disagreements that are conciliated and reconciled by deliberations.But here exists palatable incommunicado between the people in power due to their political constipation. But their speeches at biggish stages were that incandescent that it called upon horde of people to throng in their sabhas.Later, it was understood that people were there to assuage their stomach emptiness, not to imbibe the rhetorics of ever germinating politicians, because the number of people who were present there in a party's sabha did not commensurate with the number of votes that the party has received.The pandemic had a huge impact upon the economy, resulting in the imbalance of an already imbalanced socio-economic structure of the society which has been the blue and black to those people whose stomach's appetite solely compliments their daily actions.Comparing the GDP havoc endured by the countries, to approximate one country's efficacy over another against this pandemic is unwanted because every country has been unavoidably compelled by the virus to receive its invitation of downfall in every aspect, and the attendance of the people of some countries to such invitation has been either more or less but not null.Yes, it is indisputable that unemployment, societal disjunction, hunger, domestic violence, depression, etc., all together have increased. But can anybody assert that these were never there before this pandemic? I think the answer would be a big NO.'Health is wealth.' When we say this, things like unemployment and poverty are very much present, thus, we don't have a vibrant economy and the corollary is 'no wealth'. Hence, the other name of 'health is wealth' is, "as there is no wealth there is no health".Some say that a vibrant health system would not have been a guarantee against this pandemic. Yes, indeed, it could not have been a guarantee but it could have been a warranty, that is assurance rather than the commitment, that is guarantee. But here, the government knows that a vibrant health system could not be a shield of guarantee without even trying to make it happen. The drops of Astrology and drops of science are both in positives. Therefore they repel each other.The game of touchable and untouchable, black and white, etc. have been widely familiar for human beings across the world. Like in India, the 'so-called upper castes' purport that they would be contaminated if they come into contact with the 'untouchables' and somewhat similar reasons are for the differences between the whites and blacks. Hence, its a game of illusory contagiousness. But the game is a bit different in the case of COVID-19. If an 'upper caste' person comes into contact with an 'untouchable', he would not get contaminated because in the light of science, there is no trace of contamination. But yeah, those people could get mentally contaminated as they claim to be. In contrast to such, SARS-CoV-2 (the virus which spreads COVID-19) can spread to all humans. Yes, you've again read it correctly, HUMANS. It does not discriminates between touchables and untouchables or whites and blacks, and one more point, this contamination can take the lives of the people, whereas in the previous case, the mentally contaminated ones take the lives of those who had 'contaminated' them as a compensation for their illusory damages.And what politics does in such cases, it encashes such disaster to transform it into a never-ending one for the sake of meeting their political ends, where end means an extension of infinite hedonism with sheer impunity.But this time, politics has averted from the game which was unfolding against the healthcare personnels. Why? Because such a game would have inflicted everyone including politics. Therefore, politics obituaries for its administrators and not for those who have chosen politics to govern them.Let's talk about the elections. Were there no ways available to cherish democracy other than to conduct the elections in this pandemic? If no, then were there no ways left for the politics to witness people's throng without creating the opportunity for the people to reach out to politics physically? Was it needed to apprise people about their past and would be, via rallies?Many in the history of India had shed blood to earn freedom, we, the people of India have tenaciously deliberated to gift ourselves a written Constitution and democracy is a vital cog of it. As said that voting is a 'dance of democracy' and to actualize democracy, elections are conducted. "Had the framers of our constitution ever conceived the thought of witnessing such dance at the expense of people's life?"We are so determined to see the dance of democracy that we have forgotten to evoke the gorgeous dance of the celebrities. At least such would have impeded us to witness the buffoon dance of the politicians and perhaps could have protected lives, but yes, the latter can be witnessed free of cost and also with a toast of food. And why not? It is performed every five years.The multi-polarization of political beliefs at the expense of uniform goal in national interest and discrimination of religious beliefs have now been adjoined by the discrimination of the technological accessibility of people as there has been seen a sharp division among classes regarding the technological means.Has this pandemic compartmentalized human beings in every aspect? The answer seems to be still under construction.The deadlock at the headlock of corona and politics may completely end one day but for the time being, the relaxation of the deadlock is in progress at the effacement of the population.But the question that will remain to be discussed is, "What would happen after the clearance of the deadlock at the headlock of COVID-19 and politics". As of now, COVID-19 is in a headlock with politics and vice versa. But after the expungement of the pandemic, will the headlock by politics to the livelihood of people, would remain? Headlock by rich to the poor, employment to unemployment, vibrant medical structure to precarious medical structure, etc? The future would author and the past would readout.The gravitation of the earth pulls people down for the sake of stability. But the human structured rockets supersede this pull to expel itself from the earth to the space. We human beings are not rockets. Therefore no one is more and no one is less in respect of being stable. Therefore one may discriminate against an individual in every aspect and respect other than the means of stability. Because stability is the law of nature but not of humans.Views are personalWritten by Hritam Saha(Edited by Siddhant Sharma)

History

Not so Basic

Present

The Drain Team

The Drain is a news, analysis, opinion and information initiative. We shed light on the overlooked stories which are shaping the contemporary world. We aim to bring out stories which are usually ditched and drained by the mainstream media, but are of utmost importance to the people.

5 Followers

1 Following

Why Us versus Us?

The Drain Team

The Beats of Equality Lie on the Drum of Differentiation

The Drain Team

Sedition is manipulation

The Drain Team

"Voluntary Conversion" is the change of one's medium but identifying oneself with every religion at the time of election is an "Apprehension of having Loose Motion" after the result of the election

The Drain Team

Uniformity is the endeavor of the Constitution but not its absolute mandate

The Drain Team

Cuba to Ukraine: Similar story with roles interchanged

The Drain Team

Constitution and family

The Drain Team

Constitutionalism lies in certainty

The Drain Team

End, a Contradiction

The Drain Team

Railway exam controversy: Mismanagement or Incompetency?

The Drain Team

Is love a compulsion or persuasion?— When not answered via a mystifying tunnel vision

The Drain Team

Inquisitiveness, thunder, valor, perspiration, and spirituality— explosion of a persona that shook and is still shaking the world

The Drain Team

AFSPA: Constitutionality sometimes leads to absurdity

The Drain Team

I do what I do, I do by compulsion but not by option

The Drain Team

Why 'WE THE PEOPLE OF INDIA'?

The Drain Team

Bargain on equality amongst constitutionally privileged animals

The Drain Team

Partially read = Wrongly read

The Drain Team

Why The New York Times is searching for a biased reporter in India?

The Drain Team

When there is a deadlock at the headlock of corona and politics....

The Drain Team