User:Jay246

'''
VALIDITY OF INDIAN CONSTITUTION''' == ==

Content
Introduction; Fundamental Rights; Amendments to the Constitution; Ninth Schdule; Article 13; Conclusion;

WITH THE VERDICT ON THE OBC QUOTA UPHOLDING THE IMPLEMENTATION OF 27% RESERVATION, IT IS TIME TO LOOK BACK AT NOT JUST THE VALIDITY OF CONSTITUTIONAL AMENDMENTS AND THE MISUSE OF ARTICLE 368, BUT THE CONSTITUTION ITSELF.

The unanimous verdict by the five-judge Constitution bench of the Supreme Court upholding the Constitution (93rd Amendment) Act 2005, which amended Article 15 held as not violative of the basic structure of the Constitution. The Court has also upheld the validity of the Central Educational Institutions (Reservation in Admission) Act 2006. In effect, the Court has upheld 27 per cent reservations for the OBCs while declaring that creamy layer should be excluded from the quota. This has paved way for immediate implementation of the OBC quota in the central institutions.

However, the decision on the OBC matter relied on the fact that the fundamental rights may not be abrogated but they can be abridged based on the landmark verdict of the Supreme court on the Kesavananda Bharati case in 1973. As per the Law Lexicon, the legal encyclopedia, to abridge is to curtail or diminish ; to abrogate is to revoke or set aside.

Our Constitution is nothing but a cocktail of all the other Constitutions. They say for everything there has to be a perfect mixture of inspiration and perspiration. The British, US, Irish, Australian, French, Canadian, Russian and German Constitutions are said to be the inspiration behind the Indian Constitution. But the perspiration part is just missing.

On one hand, the very first lines of the Constitution speaks of Justice and Equality, but on the other hand , the legislature, with its powers on Article 368 made sure that State had the right to make any amendments to the Constitution at their will.

The Preamble recites that the People in the Constituent Assembly gave this Constitution meaning thereby the Constitution of India. Therefore, the people gave themselves no other Constitution. All other laws whatever their previous status as strict Constitutional law became subordinate laws subject to the provisions of our Constitution and this position is clear from the language of Article 372.

Economic growth and social equity are the two pillars of our Constitution which are linked to the rights of an individual (right to equal opportunity), rather than in the abstract. Some of the rights in Part III constitute fundamental rights of the Constitution like Article 21 read with Articles 14 and 15 which represent secularism etc. As held in Nagaraj, egalitarian equality exists in Article 14 read with Article 16(4) (4A) (4B) and, therefore, it is wrong to suggest that equity and justice finds place only in the Directive Principles.

The Draft Constitution shows that, as a matter of fact, there was Article 305 under the subject "amendment of the Constitution" and that article had specifically made some parts of the Constitution “Unamendable”. Later, Article 305 was deleted and the main amending article in the Draft Constitution, namely, Article 304 appeared in the garb of Article 368 of the Constitution with some additional subjects in the proviso.

The speech of Dr. Ambedkar made on September 17, 1949 while dealing with the provision relating to amendment of the Constitution also makes it clear that he divided the various articles of the Constitution into three categories. In one category were placed certain articles which would be open to amendment by Parliament by simple majority. To that category belonged Articles 2 and 3 of the Draft Constitution relating to the creation and re - Constitution of the existing States as well as some other articles like those dealing with upper chambers of the State Legislatures. The second category of articles were those which could be amended by two-thirds majority of members present and voting in each House of Parliament. The third category dealt with articles which not only required two-thirds majority of each House of Parliament but also the ratification of not less than half of the Legislatures of the States. There was nothing in the speech of Dr. Ambedkar that apart from the three categories of articles, there was a fourth category of articles contained in Part III which was not amendable and as such, could not be the subject of amendment.

The Fundamental Rights Chapter was incorporated providing in detail the positive and negative rights. It provided for the protection of various rights and freedoms. For enforcement of these rights, unlike Constitutions of most of the other countries, the Supreme Court was vested with original jurisdiction as contained in Article 32.

Article 358 and Article 359 show that the Constitution makers contemplated that fundamental rights might impede the State in meeting an emergency, and it was accordingly provided that Article 19 shall not operate for a limited time, and so also Article 32 and Article 226 if the President so declares by order. However, by Constitution (44th Amendment) Act, 1978, it has been provided that even during emergencies, the enforcement of the rights under Articles 20 and 21 cannot be suspended. If it was the design that fundamental rights might be abrogated surely they would have expressly provided it somewhere.

A creation of the Constitution, as the Parliament is, can have only such amending power as is conferred by the Constitution which is given by the people unto themselves. While purporting to exercise that amending power, Parliament cannot increase that very power. No doubt, Parliament had the power to amend Article 368 itself, but that does not mean that Parliament could so amend Article 368 as to change its own amending power beyond recognition. The power of amendment cannot possibly embrace the power to enlarge that very power of amendment, or to abrogate the limitations, inherent or implied, in the terms on which the power was conferred.

If the meaning is the same, Article 368 can only be amended so as not to change its identity completely. Parliament, for instance, could not make the Constitution uncontrolled by changing the prescribed two third majority to simple majority. Similarly it cannot get rid of the true meaning of the expression "Amendment of the Constitution" so as to derive power to abrogate fundamental rights.

“When a power to amend the Constitution is given to the people, its contents can be construed to be larger than when that power is given to a body constituted under that Constitution. Two-thirds of the members of the two Houses of Parliament need not necessarily represent even the majority of the people of this country.”

Taking a dig at some of the amendments that have been done to the Constitution of India till date, one would come across the question as to how many of the amendments were actually a bare necessity. The Constitution (First Amendment) Act,1951 amended the Fundamental Rights under Articles 15 and 19 in such a way as to abridge them. The speech of Pandit Jawaharlal Nehru in moving the amendment and those of others who were responsible for drafting the Constitution make it clear that they never entertained any doubt as to the amendability of the Fundamental Rights in such a way as to abridge them. It also added Article 31B or the Ninth Schedule which consisted of 13 laws at that time and gave protection those laws from being challenged in a court of law in violation of the fundamental rights.

The Constitution (Seventh Amendment) Act, 1956 inserted Article 350A which facilitated instruction of education in the mother-tongue at primary stage. The result of this amendment was encouragement of regionalism over nationalism. The immediate effect of this amendment was the anti-hindi wave that happened in the 60’s in Tamil Nadu and the rest followed suit.

As per the Constitution (Eighth Amendment) Act, 1959, Article 334 gave reservation to the Scheduled castes, Scheduled tribes by the Constitution in its draft so that they could come up to the level of the masses. But this reservation was given only for a period of 10 years. As the original draft had a period of 10 years, the legislature could not amend and make this reservation permanent. Therefore every 10 years there is an extension of reservation for the Scheduled castes and Scheduled Tribes.

The Constitution (Nineteenth Amendment) Act, 1966- Article 324 of the Constitution gave right to set up of an election tribunal in case of disputes or doubts arising out of elections to Parliament and to the Legislatures of States. This Article was omitted so that no one could question the irregularities that are prevalent during elections.

The Constitution (Twenty-Fourth Amendment) Act, 1971,was the immediate effect of the Golakh Nath verdict of 1967.The Golakh Nath verdict had taken away the power of the Parliament to amend any of the fundamental rights guaranteed by Part III. In result of this verdict, Article 13 was amended in such a manner that the power of Article 13(2), which makes any law void if the amendment is in contravention of Part III of the Constitution or the Fundamental rights was superseded with an insertion of a new Artilce13(4) which stated that any amendment under Article 368 shall not apply to Article 13. The result of this amendment was the landmark judgment of Kesavananda Bharati v State of Kerala 1973.

The Constitution (Forty-Second Amendment) Act, 1976,was the effect of the Kesavananda Bharati verdict. The changes made to the Constitution during this Amendment Act are:- Insertion of Article 31D- This article provided for prevention of anti- national activities shall be void that it is inconsistent with or abridges any of the rights conferred by article 14, 19 or 31. Insertion of Article 32A- The Supreme Court shall not consider the validity of any state law in any proceedings under that article unless the Constitutional validity of any Central law is also in issue in such proceedings. Insertion of Article 131A regarding exclusive jurisdiction of Supreme Court in regard to question as to Constitutional Validity of Central laws. Insertion of Article 226A- Constitutional validity of Central laws not to be considered in proceedings in high courts.

The Constitution (Forty-Third Amendment) Act, 1977-What one would call as the Politics of Constitutional Amendments, all the amendments that were done in 1976, were omitted the moment the Janata Party Government came into power in 1977.Thus, the amendments of the 42nd Amendment Act, regarding insertion of Article 31D, 32A, 131A, 144A and 226A were omitted from the Constitution.

The Constitution (Seventy-Seventh Amendment) Act, 1995- This amendment amended Article 16 giving rights to the state to make reservation for the Scheduled castes and Scheduled Tribes under clause 4A.

The Constitution (Eighty-First Amendment) Act, 2000- This amendment made provisions for vacancies to be filled up in succeeding year or years if they are not in a particular year for determining the ceiling of fifty percent reservation on total number of vacancies that year under Article 16 clause 4B.

The Constitution (Eighty-Second Amendment) Act, 2000- As per this Amendment, relaxation of qualifying marks in any examination or in matter of promotion under Article 335.

The constitutional amendments are subject to limitations and if the question of limitation is to be decided by the Parliament itself which enacts the impugned amendments and gives that law a complete immunity, it would disturb the checks and balances in the Constitution. The authority to enact law and decide the legality of the limitations cannot vest in one organ. The validity to the limitation on the rights in Part III can only be examined by another independent organ, namely, the judiciary.

The Judgment of the nine member bench on the Ninth Schedule which came out on 11th of Jan, 2007, headed by the then Chief Justice of India, Y.K. Sabarwal, found that laws which were violative of the basic structure of the Constitution were being put under the Ninth Schedule or Article 31B.

The Ninth Schedule was inserted in the Constitution through the First Amendment Act, 1951. It gave protection to 13 laws which were violative of the basic structure of the Constitution. That figure now stands at 284 out of which 224 are open to challenge in a Court of law. The Tamil nadu backward Classes, Scheduled Castes and Scheduled tribes (Reservation of seats in Educational Institution and of Appointments or Posts in the Services under the State) Act,1993 was contentious as it gives 69% reservations which is beyond the limit of 50%.

Article 13 provides that laws inconsistent with or in derogation of the fundamental rights shall be void. This applies to existing laws as well as laws made after the coming into force of the Constitution. It is assumed that in Article 13(2) the word "law" includes Constitutional amendment.

Although "law" must ordinarily include Constitutional law there is a clear demarcation between ordinary law which is made in the exercise of legislative power and Constitutional law, which is made in the exercise of constituent power. In the context of Article 13, "law" must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in the exercise of constituent power with the result that Article 13(2) does not affect amendments made under Article 368.

Two principal questions arise. First, is the Constitution as well as an amendment to the Constitution law within the meaning of Article 13(2). Second, is there any implied and inherent limitation on the power of amendment apart from Article 13(2).

The amendment of Article 13(2) does not go beyond the limits laid down because Parliament cannot even after the amendment abrogate or authorise abrogation or the taking away of fundamental rights. After the amendment now a law which has the effect of merely abridging a right while remaining within the limits laid down would not be liable to be struck down.

It is important that 5 out of the 11 Judges in the Golak Nath case took the view that the word 'amendment' must be given a wide meaning.Article 13(2) clearly echoes the language of Article 245. Article 245 gives the power to 'make laws', while Article 13(2) imposes a limitation on the exercise of the power to 'make laws'. As between the two articles, Article 13(2) is the paramount law for, Article 245 is expressly subject to all the provisions of the Constitution including Article 13(2).

If the words "notwithstanding anything in the Constitution" are designed to widen the meaning of the word "Amendment of the Constitution" it would have to be held void as beyond the amending power. Any law which abridged a fundamental right even to a small extent was liable to be struck down under Article 368 Parliament can amend every article of the Constitution as long as the result is within the limits.

Article 32 which confers the right to move this Court, if any fundamental right is breached, can be repealed or abrogated. The directive principles in Part IV can be altered drastically or even abrogated. Even the Preamble which declares that the People of India gave to themselves the Constitution, to constitute India into a Sovereign Democratic Republic for securing the great objectives mentioned therein can be amended; it can be completely repealed.

Article 15 and 16 are components of Article 14. Article 16(1) concerns formal equality which is the basis of the rule of law. At the same time, Article 16(4) refers to egalitarian equality. Similarly, the general right of equality under Article 14 has to be balanced with Article 15(4) when excessiveness is detected in grant of protective discrimination.

Article 15(1) limits the rights of the State by providing that there shall be no discrimination on the grounds only of religion, race, caste, sex, etc. and yet it permits classification for certain classes, hence social content exists in Fundamental Rights as well. There can be no rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to the judicial review. All these would be redundant if the legislative, executive and judicial powers are vested in one organ.

In Indira Gandhi's case, Justice Chandrachud presumes that equality included in Article 14 is part of the basic structure of the Constitution and, therefore, cannot be abrogated by observing that the provisions impugned in that case are an outright negation of the right of equality conferred by Article 14, a right which more than any other is a basic postulate of our constitution. Dealing with Articles 14, 19 and 21 in Minerva Mills case, it was said that these clearly form part of the basic structure of the Constitution and cannot be abrogated.

The relevance of Indira Gandhi's case, Minerva Mills case and Waman Rao's case lies in the fact that every improper enhancement of its own power by Parliament, be it clause 4 of Article 329-A or clause 4 and 5 of Article 368 or Section 4 of 42nd Amendment have been held to be incompatible with the doctrine of basic structure as they introduced new elements which altered the identity of the Constitution or deleted the existing elements from the Constitution by which the very core of the Constitution is discarded. They destroyed important elements like judicial review. It is in this context that one needs to examine the power of immunity bearing in mind that after Kesavananda Bharati's case, Article 368 is subject to implied limitation of basic structure.

The doctrine of basic structure contemplates that there are certain parts or aspects of the Constitution including Article 15, Article 21 read with Article 14 and 19 which constitute the core values which if allowed to be abrogated would change completely the nature of the Constitution. Exclusion of fundamental rights would result in nullification of the basic structure doctrine, the object of which is to protect basic features of the Constitution including the rights in Part III. Fundamental right is a limitation on the power of the State. A Constitution, and in particular that of it which protects and which entrenches fundamental rights and freedoms to which all persons in the State are to be entitled is to be given a generous and purposive construction.

The existence of the power of Parliament to amend the Constitution at will, with requisite voting strength, so as to make any kind of laws that excludes Part III including power of judicial review under Article 32 is incompatible with the basic structure doctrine.

No single body ought to have dictatorial powers in a democracy. Another revolution is needed. Maybe the Constitution needs to be re-written. The members of the Legislature or the Executive, the background of the members with respect to education, be it in 1950 or today is pretty poor. Thus, when it comes to important decisions, be it passing of the Union Budget or the nuances of laws that are going to be introduced, only a handful of members understand. Amendment of the constitution needs people with logical thinking head pondering on the issue and not merely voting on the instructions of the chief whip of their respective parties. Amendment to Part III of the Constitution not just should go through the parliament but it should also go through a public referendum whereby the People of India should agree with the changes that are being made to their fundamental rights.

It is time to clip the wings of the Executive and the Legislature in the context of the amending powers that they have through Article 368 of the Constitution. These powers need to be cut down drastically so that every decision of the executive and the Legislature could be challenged in a court of law which would make the Judiciary work more efficiently as an independent body. Because the Constitution belongs to “WE THE PEOPLE” and not the Executive, Legislature or Judiciary.