Judiciary, Constitutional Amendment and Related Subjects
In every society, disputes created between individuals, groups and the governments are ideally resolved by an independent institution without distinction between rich and poor, men and women, and forward and backward. The spirit of 'rule of law' is the application of uniform law to the people. The main role of the judiciary is to protect the 'rule of law' and ensure the supremacy of law. The judiciary protects the rights of the individual, resolves disputes in accordance with the law and ensures that democracy is not replaced by the dictatorship of one individual or group. For this it is necessary that there is no political pressure on the judiciary.
The independence of the judiciary means that the legislature and the executive should not obstruct the work of the judiciary in any way so that the 'rule of law' is maintained. The other organs of the government should not interfere in the decisions of the judiciary. Judges can do their work without fear or discrimination. Independence of the judiciary does not mean autocracy or absence of accountability. The judiciary is a part of the democratic political structure of the country. The judiciary is accountable to the country's constitution, democratic tradition and people.
The Indian Constitution has ensured the independence of the judiciary through several measures. The legislature is not involved in the appointment of judges. This ensured that party politics did not play a role in these appointments. To be appointed as a judge, a person must have advocacy experience or an expert in law. The political views or allegiances of that person should not form the basis of his appointment.
The tenure of judges is fixed. He remains in the post till his retirement. Judges can be removed only in exceptional circumstances. Moreover, his tenure cannot be reduced. Due to the security of tenure, judges are able to do their work without fear or discrimination. Very difficult procedure has been prescribed in the constitution for the removal of judges. The framers of the constitution believed that if the process of removal was difficult, then the office of the members of the judiciary would be protected.
The judiciary is not financially dependent on the legislature or the executive. According to the constitution, the approval of the legislature will not be taken for the salary and allowances of the judges. The actions and decisions of judges cannot be criticized individually. If someone is found guilty of contempt of court, the judiciary has the right to punish him. It is believed that this right will protect the judges and no one will be able to criticize them unjustly. Parliament can discuss the conduct of judges only when it is considering an impeachment motion against them. This allows the judiciary to decide independently without fear of criticism.
Appointment of judges
The appointment of a High Court and Supreme Court judge is a part of the political process. The appointment of a judge can make a difference in the interpretation of the Constitution. For this reason, along with the appointment of judges, political disputes also remain. The Cabinet, the Governor, the Chief Minister and the Chief Justice of India – all of them influence the process of judicial appointment.
In the matter of appointment of the Chief Justice of India, it has become a tradition over the years that the senior-most judge of the Supreme Court will be appointed to the post. But this tradition has also been broken twice. In 1973, Justice AN Ray was appointed as the Chief Justice of India, bypassing three senior judges. Then in 1975, Justice MH Veg was appointed, leaving behind Justice H R Khanna.
The President appoints other judges of the Supreme Court and High Courts on the advice of the Chief Justice of India. This means that the real power in relation to appointments rests with the Council of Ministers. The issue of consultation with the Chief Justice repeatedly came up before the Supreme Court between 1982 and 1998. Initially, the Court was of the view that the role of the Chief Justice was purely advisory. But later the court agreed that the President must obey the advice of the Chief Justice. Eventually the Supreme Court made a new arrangement. According to this, the Chief Justice of the Supreme Court, in consultation with the other four senior-most judges, would propose some names and from among them the President would make appointments. Thus the Supreme Court established the principle of collectivity with respect to the recommendation of appointments. That is why nowadays the group of senior judges of the Supreme Court has more influence in relation to appointments. This group of senior judges is called the collegium. Thus, the Supreme Court and the Council of Ministers play an important role in the appointment of the judiciary. It is used for appointment and transfer of judges in High Courts and Supreme Court. The term collegium is not mentioned in the Constitution of India. The National Judicial Appointments Commission Act (NJAC) was established through the 99th Constitutional Amendment Act, 2014 to replace the collegium system for appointment of judges. However, the Supreme Court upheld the collegium system and struck down the NJAC as unconstitutional on the grounds that the political executive's participation in judicial appointments was against the "principles of the basic structure" i.e. "independence of the judiciary".
Removal of judges
It is quite difficult to remove the judges of the Supreme Court and High Courts from their posts. He can be removed from the post only in case of misconduct or disqualification. Charges against a judge require the approval of a special majority of Parliament. The process of removing a judge is extremely difficult and no judge can be removed unless there is a consensus among the members of the Parliament. The executive has an important role in his appointment, while the legislature has the power to remove him. It has been ensured by this that the independence of the judiciary is preserved and the balance of power is also maintained. So far only one proposal to remove a judge has come up for consideration before the Parliament. In this case, although two-thirds of the members voted in favor of the motion, the judge could not be removed as the motion could not get a majority of the total strength of the House.
Structure of judiciary
The Indian Constitution establishes a unified judicial system. The structure of the judiciary in India is like a pyramid with the Supreme Court at the top followed by the High Court and the District and Subordinate Courts at the bottom. The lower courts work under the supervision of the courts above them.
1. Supreme Court of India
Can transfer judges of High Court.
Its decisions are to be obeyed by all courts.
It can call for the case of any court.
It can send a case pending in one High Court to another High Court.
2. High Court
Can hear appeals made on the decisions of lower courts.
Can issue writs to restore fundamental rights.
Can dispose of cases falling under the jurisdiction of the State.
Supervises and controls the courts subordinate to him.
3. District Court
Hears the cases filed in the district.
Hears the appeals made on the decisions of the lower courts.
Adjudicates on serious criminal cases.
4. Subordinate Court
Considers criminal and civil cases.
Jurisdiction of Supreme Court
The Supreme Court of India is one of the most powerful courts in the world. But he works within the limits fixed by the constitution. The functions and responsibilities of the Supreme Court are recorded in the Constitution. Jurisdiction of Supreme Court of India
Original Jurisdiction - Original Jurisdiction means that some cases can be heard directly by the Supreme Court. In such cases, it is not necessary to first hear in the lower courts. Lawsuits involving federal relations go directly to the Supreme Court. In any federal system, it is natural to have legal disputes between the Center and the states and between different states. The Supreme Court is responsible for resolving these disputes. It is called Fundamental Jurisdiction because only the Supreme Court can solve these matters. They can neither be heard in the High Court nor in the subordinate courts. By exercising this power, the Supreme Court not only settles disputes but also interprets the powers of the Union and State Governments given in the Constitution.
'Writ' jurisdiction - Any person can directly approach the Supreme Court to get justice on the violation of Fundamental Rights. The Supreme Court can give its special orders in the form of writ. High Courts can also issue writs. But the person whose fundamental rights have been violated has the option that he can either go to the High Court or directly to the Supreme Court. Through these writs, the court can order the executive to do or not to do something.
Power of Review - Article 137 "The Supreme Court shall have power to review any judgment pronounced or order made by it."
Appellate Jurisdiction - The Supreme Court is the highest court of appeal. Any person can appeal against the decision of the High Court to the Supreme Court. But the High Court has to give a certificate that the case is fit for appeal to the Supreme Court, that is, it involves a serious matter like the interpretation of the Constitution or the law. If a lower court in a criminal case gives death sentence, then it can be appealed to the Supreme Court or the High Court. Even if the High Court does not allow an appeal in a case, the Supreme Court has the power to admit the appeal made in that case to the judiciary for consideration. Appellate jurisdiction means that the Supreme Court will reconsider the entire trial and re-examine its legal issues. If the court finds that the law or the constitution does not have the meaning as deemed by the lower courts, the Supreme Court can change its decision and give new interpretations of those provisions along with it. The High Courts also have appellate jurisdiction against the decisions of the courts below them.
Advisory Jurisdiction - Apart from original and appellate jurisdiction, the Supreme Court also has advisory jurisdiction. According to this, the President of India can refer any matter related to the public interest or the interpretation of the Constitution to the Supreme Court for consultation. But neither the Supreme Court is bound to give advice on any such matter, nor is the President obliged to follow the advice of the Court. It has two main utilities –
1. With this, the government can avoid subsequent legal disputes by knowing the legal opinion of the court before taking action on any important issue.
2. Following the advice of the Supreme Court, the government can make appropriate amendments in its proposed decision or bill.
The advice of the Supreme Court has been sought by the President on various issues, in which the Delhi Law Act, Punjab Water Agreement Abolition Act, 2004, 2G Spectrum case, 2012 etc. are some prominent examples.
Judicial activism or public interest litigation has revolutionized the functioning of the judiciary and made them more people-oriented than ever before. The main instrument of judicial activism in India has been Public Interest Litigation or Social Action Litigation.
In the ordinary course of law, a person can go to court only if he has suffered a personal loss. This means that in case of violation of his right or in any dispute, a person can approach the court to get justice. This concept changed in 1979. Initiating this change in 1979, the Court decided to hear a case filed not by the victims but by others on their behalf. Since the matter was dealing with an issue of public interest, this and many other similar cases were named as Public Interest Litigations. At the same time the Supreme Court also considered the case related to the rights of prisoners. This led to a flood of cases in which citizens and voluntary organizations with the spirit of public service sought the intervention of the judiciary on many issues related to protection of rights, betterment of life of the poor, protection of environment and public interest. Public interest litigation has become the most effective tool of judicial activism. The judiciary started considering them on the basis of the news published in the newspaper and the complaints received by post. Thus, this new role of the judiciary became popular as judicial activism.
Some of the major PILs are:
In 1979 some news about undertrial prisoners appeared in the newspapers. Prisoners in Bihar jails were being held captive for a long time. crimes for which he was arrested. Even if they had been punished in that, they could not have been imprisoned for that long period. Based on this news, a lawyer filed a petition. The case went on in the Supreme Court. It became famous as the first public interest litigation. This case is known as Hussainara Khatoon Vs. Government of Bihar.
In 1980, a prisoner of Tihar Jail sent a letter to Supreme Court Justice Krishna Iyer. It described the physical torture inflicted on the prisoners. The judge accepted it as a petition. Although the Court later abolished the practice of accepting letters as litigation, this case became famous as the initial PIL under the name 'Sunil Batra v. Administration of Delhi (1980)'.
Through public interest litigation, the court widened the scope of rights. It is the right of the whole society to have clean air, water and a good life. The court held that individuals have the right to seek justice for the violation of the rights of the society.
In addition, after 1980, through public interest litigation and judicial activism, the judiciary also showed interest in cases where certain sections of the society could not easily take refuge in the court. To fulfill this purpose, the court allowed civil, social organizations and lawyers to file petitions on behalf of the needy and poor people of the society with the spirit of public service.
Judicial activism has a great impact on our political system. This gave an opportunity to not only individuals but also various groups to approach the court. It democratized the judicial system and tried to make the electoral system freer and fairer, which forced the executive to become responsible. The court directed the contesting candidates to give an affidavit in respect of their assets, income and educational qualifications, so that people can choose their representatives on the basis of correct information.
There is also a downside to the increasing number of PILs and the idea of an active judiciary. This has increased the workload in the courts. Second, judicial activism has blurred the distinction between the functions of the legislature, the executive and the judiciary. The court became entangled in the problems which the executive should solve. For example, it is not really the job of the judiciary to remove air and noise pollution, investigate cases of corruption or bring about electoral reforms. All these works should be done by the administration under the supervision of the legislature. Therefore, some believe that judicial activism has made it very difficult to maintain a mutual balance between the three organs of government. The basis of democratic government is that each part of the government should respect each other's powers and jurisdiction. Judicial activism can hurt this democratic principle.
Judiciary and Fundamental Rights/Judicial Review
The judiciary is entrusted with the responsibility of protecting the rights of the individual. The constitution describes two such methods by which the Supreme Court can protect the rights-
I. These several writs; For example, by issuing habeas corpus, mandamus, etc., the fundamental rights can be re-established. (Article 32). High Courts also have the power to issue such writs (Article 226).
II. The Supreme Court can stop any law from being implemented by declaring it unconstitutional (Article 13).
Both these provisions establish the Supreme Court as the guardian of the fundamental rights of citizens on the one hand and the interpreter of the Constitution on the other. The second provision in the above provisions provides for judicial review.
Perhaps the most important power of the Supreme Court is the power of judicial review. Judicial review means that the Supreme Court can check the constitutionality of any law and if it is contrary to the provisions of the constitution, the court can declare it unconstitutional. The word judicial review is not used anywhere in the constitution. But in India the constitution is written and it is recorded that the Supreme Court can repeal any law if it is contrary to the fundamental rights. Due to these facts, the Supreme Court has this power if the word 'Judicial Review' is not used in the Constitution of India.
Apart from this, in the matter of federal relations also, the Supreme Court can exercise its power of judicial review. By doing so, he prevents any law from going against the scheme of sharing of power enshrined in the Constitution. Thus, the Supreme Court can, by the power of judicial review, examine any law which violates the fundamental rights or is contrary to the scheme of division of power in the Constitution. The power of judicial review also applies to laws made by the state legislatures.
The powers to issue writs and judicial review make the Supreme Court extremely powerful. The power of judicial review means that the judiciary can interpret the laws passed by the legislature and the constitution. Many believe that through this the judiciary effectively protects the constitution and also protects the rights of citizens. Public interest litigation has increased the power of the judiciary to protect the rights of citizens.
Judiciary and Parliamen
The judiciary has not only shown activism on the issue of rights, it has also curbed the tendency of political behavior beyond the Constitution. For this reason, the subjects which were not under the purview of judicial review earlier have also been taken under this purview, such as the powers of the President and the Governor. The Supreme Court has also directed the executive institutions to establish justice. Like he directed CBI (Central Bureau of Investigation) to investigate against corrupt politicians and bureaucrats in many cases like Hawala case, Narasimha Rao case and illegal allotment of petrol pumps.
In the Indian Constitution, each organ of the government has a clear scope of work. Parliament is supreme in making laws and amending the constitution, the executive is to enforce them and the judiciary is there to settle disputes and ensure the adaptation of laws made to the constitution. Despite this clear division of work, the conflict between Parliament and the judiciary and between the executive and the judiciary has been a feature of Indian politics.
Soon after the constitution came into force, a dispute arose over the power of the Parliament to curtail the right to property. Parliament wanted to impose certain restrictions on the right to own property so that land reforms could be implemented. The Court ruled that Parliament cannot limit the Fundamental Rights. Parliament then attempted to amend the Constitution. But the court said that fundamental rights cannot be limited even by amendment of the constitution.
At the heart of the dispute between Parliament and the judiciary is the scope of right to private property, the scope of Parliament's power to limit, restrict and Power of Parliament to make laws restricting Fundamental Rights for implementation of Directive Principles.
Between 1967 and 1973, this dispute deepened considerably. Besides land reform laws, preventive detention laws, jobs reservation laws, rules relating to acquisition of private property for public purpose and laws relating to compensation of acquired private property are some of the examples of disputes between the legislature and the judiciary.
In 1973, the Supreme Court delivered a judgment in the Kesavananda Bharati case which has become very important in the regulation of the relationship between Parliament and the judiciary. In this case, the court ruled that the Constitution has a basic structure and no one, including the Parliament, can tamper with that basic structure. This basic structure cannot be changed even by constitutional amendment. The Court did two more things. With regard to the contentious issue of right to property, the court said that it is not a part of the basic structure and hence appropriate restrictions can be imposed on it. Second, the Court retained the power to decide whether an issue was part of the basic structure or not. This decision is the best example of the power of the judiciary to interpret the Constitution. This decision changed the very nature of disputes between the legislature and the judiciary.
In a parliamentary system, the parliament has the power to conduct itself and control the behavior of its members. In the parliamentary system, the legislature has the right to punish its member if he is found guilty of breach of privilege. If any disciplinary action is taken against a member of the House by the House itself, can that member get protection from the court? These issues are still not resolved and remain a matter of dispute between the two.
Similarly, the Constitution provides that the conduct of judges cannot be discussed in Parliament. But on several occasions, fingers were pointed at the conduct of the judiciary in the Parliament and the State Legislative Assemblies. Similarly, the judiciary has also criticized the legislature on several occasions and instructed them regarding their legislative work. The legislature sees this as a violation of the principle of parliamentary sovereignty.
To sum up, it can be said that a balance between the various organs of government, sensitivity and respect for the authority of one organ of the other is essential for democracy.
Our constitution makers were in favor of making the constitution a balanced document. The constitution should be flexible enough that it can be changed according to the need. But at the same time it should be protected from unnecessary and frequent changes. In other words, the framers of the constitution were in favor of making the constitution 'flexible' and 'rigid' at the same time. Here flexible means open attitude towards changes and rigid means strict attitude towards unnecessary changes. A flexible constitution is one in which it can be easily amended, the constitutions which are very difficult to amend, such constitutions are called rigid. Both these elements have been included in the Indian Constitution.
There are many such articles in the constitution which can be amended by Parliament by making common law. There is no need to adopt any special procedure in such cases. There is no difference between such an amendment and a common law. These parts of the constitution have been made very flexible. Parliament can amend many articles of the constitution in this simple way.
Provision has been made in Article 368 to amend the remaining sections of the Constitution. This article gives two ways to amend the constitution. These methods do not apply equally to all the articles of the constitution. Under one method, it has been said to be amended by a special majority of both the houses of the Parliament. The second method is more rigorous. This requires a special majority of the Parliament and half the strength of the state legislatures. No one other than the Parliament has a role to play in the process of amending the Constitution. The final opinion on the question of amendment rests with the elected representatives of the people. This means that the basis of the process of amendment lies in the elected representatives (parliamentary sovereignty).
Similarly, after the amendment is passed in Parliament or in some cases in the State Legislatures, no referendum is required to ratify this amendment. Like all other bills, the amendment bill is alsosent for the approval of the President but in this case the President does not have the right to reconsider.
Certain amendments require a special majority. Two types of special majority are required to amend the constitution. Firstly, the number of members voting in favor of the amendment bill should be at least half of the total number of members of the House. Secondly, the number of members supporting the amendment should be two-thirds of all the members who take part in the voting. The amendment bill needs to be passed independently in both the houses of the Parliament. There is no provision for convening a joint session for this. No amendment bill can be passed without special majority.
In addition, the amendment bill must be passed independently with a special majority in both the houses of the Parliament. This means that unless there is sufficient consensus on the proposed bill, it cannot be passed. The ruling party can get a budget or a bill of its choice passed despite a very small majority, but if this party wants to amend the constitution, it will have to take some opposition parties into confidence. Thus, the basic spirit behind the amendment process is that there should be wide participation of political parties and MPs.
Approval by the states- Special majority is not sufficient to amend some articles of the constitution. In order to amend articles relating to the distribution of powers between the States and the Central Government or relating to the representation of the people, it is necessary to consult and obtain the consent of the States. The federal structure means that the powers of the states do not depend on the mercy of the central government. This arrangement has been made in the constitution to ensure the powers of the states. That amendment is not considered effective until the legislatures of half the states pass an amendment bill. Apart from the provisions relating to the federal structure, the provisions of Fundamental Rights have also been made similarly safeguarded. In this sense it can be said that a broad consensus is expected from politics regarding certain parts of the Constitution. The rights of the states have also been given place in this provision. Under this, the states have been given the right to participate in the process of amendment. It is noteworthy that despite the rigidity of the amendment process, it has been made flexible to a large extent. The amendment requires the approval of only half the states and a simple majority of the state legislatures.
In conclusion, a vast majority is required to amend the Indian Constitution. States have been given a limited role in this process. Our Constitution makers were conscious that the process of amending the Constitution should not be made so easy that it can be tampered with whenever they want. But at the same time, he also took care that future generations can make necessary amendments in it according to the needs of their time.
Subjects of amendments
It is said that too many amendments have been made in the Indian Constitution. There have been 103 amendments to the Constitution during the last seventy years. Except for the first decade of the constitution, a stream of amendments starts flowing in the remaining decades. This means that the political thinking of the ruling party behind the amendments did not matter much, rather these amendments were made according to the needs of the time.
The amendments made so far can be divided into three categories-
I. The first category includes those amendments which are of technical or administrative nature and are related to the clarification, interpretation and sporadic amendment of the basic provisions of the Constitution. They can only be called technical language amendments. In fact, they do not make any significant changes to these provisions. The raising of the retirement age of High Court judges from 60 to 62 years (15th Amendment) and similar amendments to increase the salary of Supreme Court judges (55th Amendment) are examples of this. As another example, we can take the extension of the provisions regarding reservation of seats for the Scheduled Castes and the Scheduled Tribes in the legislatures. Thus, we can say that these are only technical modifications.
II. The second category includes those amendments whose interpretation has often led to differences of opinion between the judiciary and the government. Several amendments to the Constitution can be seen as a product of these differences. When such conflicts arise, the Parliament has to prove one of the interpretations of the Constitution to be authentic by resorting to amendments. In a democracy, different institutions interpret the constitution and their powers in their own way. This is an important feature of a democratic system. Sometimes Parliament does not agree with these judicial interpretations and has to amend the constitution to govern the rules of the judiciary. There have been frequent differences of opinion between the Parliament and the judiciary over fundamental rights and the Directive Principles of Policy. Similarly, disputes have arisen between the two regarding the scope of the right to private property and the extent of the right to amend the Constitution. During the period from 1970 to 1975, Parliament made amendments repeatedly, rejecting the adverse interpretation of the judiciary.
III. Third, there are many amendments which can be considered as the result of mutual consent of political parties. In a sense, it can be said that these amendments were made to accommodate the then political philosophy and the aspirations of the society. In fact, many amendments made after 1984 can be placed in this category. There was a broad consensus at work behind many of the amendments. In this period of political upheaval, we see many amendments taking shape. This long sequence of amendments started with the Anti-Defection Act (52nd Amendment). Examples of this are anti-defection laws (52nd and 91st amendments), raising the voting age from 21 to 18 years, and laws related to local self-government. Amendments are also kept in this category to increase the reservation limit in jobs and to clarify the rules related to admission. After 1992-93, there was an atmosphere of consensus in the country regarding these steps and there was no problem in passing amendments related to these issues.
Controversial Amendments to the Indian Constitution
In the seventies to eighties, there was a lot of debate in the realms of law and politics regarding several amendments. During the period 1971-1976, the opposition parties viewed these amendments with suspicion. He believed that through these amendments the ruling party wanted to disturb the basic nature of the Constitution. In this regard, the 38th, 39th and 42nd amendments have been particularly controversial.
Emergency was declared in the country in June 1975. These three amendments emerged from this background. The aim of these amendments was to bring about fundamental changes in several important parts of the Constitution.
In the last four decades, there has been a consensus among all the institutions of the country regarding the basic structure of the Constitution. In fact, the 42nd Amendment to the Constitution is a major amendment. It affected the Constitution at a deep level. In a way, it was also a challenge to the decision given by the Supreme Court in the Kesavananda case. Even under this, the term of the Lok Sabha was increased from 5 years to 6 years. Fundamental duties were added to the Constitution by this amendment. The 42nd Amendment of the Constitution also places restrictions on the review powers of the judiciary. It is said that a large fundamental part of the Constitution was rewritten by this amendment. Through this amendment, changes were made in the Preamble, Seventh Schedule and 53 Articles of the Constitution. When this amendment was passed in Parliament, many MPs of the opposition parties were in jail. It was against this background that the 1977 elections were held and the ruling party (Congress) was defeated. The new government considered it necessary to reconsider these conflicting amendments and repealed most of the changes made through the 38th, 39th and 42nd amendments by the 43rd, 44th Amendments. The constitutional balance was reintroduced through these amendments.
Constitution and Constitutionalism
A constitution is called a set or collection of rules according to which the government of a country is organized. This is the highest law of the land. In simple words, the constitution is the law that discusses the governance system of a state. This is the most important record of the state. The following things must be mentioned in a constitution:
1. The nature and constitution of the state's governance.
2. Mention of the organization, powers and functions of the main organs of government- executive, legislature and judiciary.
3. Interrelationships between the various organs of government.
4. Rights and Duties of Citizens.
5. Mutual relations between the rulers and the ruled.
6. Provision for amendment of the Constitution.
Constitutionalism is found to be a collection of principles on the basis of which the relations between the powers of governance and the rights of the rulers are adjusted. Constitutionalism is a philosophy which states that the power of the government emanates from the constitution and its limits are also determined by the constitution itself. Here the constitution is supreme. Here the power of the legislature, executive and judiciary is mentioned in the constitution and they work according to the procedure described in the constitution. Therefore, instead of any arbitrary decision, it is constitutionalism to favor 'state of law'. As a result of the historical process, constitutionalism was born in an attempt to avoid the tyranny/abuse of state power.
Where constitution is a document whereas constitutionalism is an ideology. A constitution contains the values, beliefs and political ideals of a state, whereas constitutionalism is found to be a collection of principles on the basis of which the relations between the governing powers and the rights of the rulers are adjusted.
In constitutionalism, goals and objectives have priority, whereas in the constitution, the priority is considered to be the order of means.
Constitutionalism is an inclusive concept whereas Constitution is a specific one.
The constitution of each country is different whereas constitutionalism can be the same in many countries. But the constitutionalism of each country has its own little originality.
Ideology is dominant in constitutionalism, whereas constitution is the legal form of that ideology.
In short, the constitution is an expression of the philosophy of constitutionalism.
Basic Structure of the Constitution and its Development
The basic structure of the constitution is based on the philosophy of constitutionalism. It prohibits any constitutional change which infringes on the rights of citizens or affects the spirit of the constitution. What has greatly influenced the development of the Indian Constitution is the principle of the basic structure of the Constitution. This principle was propounded by the judiciary in the famous case of Kesavananda Bharati. Through this it became clear that -
By this decision, the limits of the powers of the Parliament to amend the Constitution were set.
It allows complete amendment (within prescribed limits) of any or all parts of the Constitution.
The decision of the judiciary in respect of any amendment that violates the basic structure of the Constitution or its basic principles shall be final.
The Supreme Court gave its judgment in the case of Kesavananda in 1973. In the decades that followed, all the interpretations of the Constitution were made keeping this in mind. The principle of basic structure is itself an example of a living constitution. There is no mention of this concept in the Constitution. It is an idea that is born out of judicial interpretations. The theory of infrastructure has gained wide acceptance during the last four decades. In this way, due to the judiciary and its interpretations, there have been amendments in the constitution.
All living constitutions develop through the process of debate, argument, competition and practical politics. Since 1973, courts have tried to determine the elements of basic structure in many cases. In a sense, the principle of basic structure has only further strengthened the balance between rigidity and flexibility of the Constitution. Keeping some parts of the Constitution out of the ambit of amendment and bringing some parts of it under the amending process has certainly struck a balance between rigidity and flexibility.
There are many more such examples which show that judicial interpretations have played an important role in changing the understanding of the Constitution. With regard to fixing the reservation limit in jobs and educational institutions, the Supreme Court has decided that the number of reserved seats should not exceed half of the total number of seats. This decision has now been accepted as a principle. Similarly, while giving place to other backward classes under the reservation policy, the Supreme Court put forward the idea of creamy layer and decided that the people belonging to this category should not get the benefits of reservation. Similarly, the judiciary has informally made several amendments to the provisions on the rights to education, life, liberty and the establishment and management of institutions of minority groups. It is clear from these examples that the orders of the court also play an important role in the development of the constitution.
Contribution of judiciary
During the dispute between the judiciary and the Parliament, the Parliament believed that it had the power to make (amend) laws to protect the interests of the poor, backward and helpless people. The judiciary emphasized that all these activities should be done within the constitutional framework and measures for public interest should not be outside the legal limits as once allowed to go beyond the limits of law, it can be misused by the ruling authorities. In a democracy, as much importance is given to the welfare of the people, as much attention has to be given to the fact that the power should not be misused.
The success of the Indian Constitution lies in resolving these tensions. The judiciary decided in Kesavananda's case not on the language of the constitution but on the basis of its spirit. The term basic structure of the constitution is not mentioned in constitution. Nowhere in the constitution is it mentioned that this part of the constitution is part of the basic structure. Thus, the basic structure is a concept developed by the judiciary itself.
The Court is of the view that while reading a document we should pay attention to its implications. More important than the language of the law is the social conditions and expectations behind that law or document. Therefore, the court paid special attention to the basic structure of the constitution because without it the constitution cannot be imagined.