Constitutionalism, in general, is the idea that ‘government can and should be legally limited in its powers, and that its authority or legitimacy depends on its observing these limitations’. Constitutionalism, although considered an incoherent idea by some jurists including John Austin, has gained enough popularity in the mo­dern era, with the assumption of its wide acceptance being backed by the fact that almost all the modern republics have installed constitutionalism in the process of their governance.

Talking about the spirit of constitutionalism in Indian republic, the Indian constitution very well assures as well as upholds constitutionalism through various mechanisms provided therein. However, sometimes, it has seemed like the spirit of constitutionalism is facing a challenge in the wake of the governmental will to take over other organs of the state, specifically the judiciary.

Most of the conflicts regarding this have been focused on the power of the legislative to amend the constitution (as conferred under article 368 thereof). Most of the time, various amendments have been challenged under article 13 of the constitution as alleged to be infringing the fundamental rights, and thereby alleging the legislative to be crossing its limits.

The series of conflicts between judiciary and legislative has started as early as 1951, just after the formation of the Indian republic, when the 1^st amendment to the constitution of India was challenged before the Supreme Court in Shankari Prasad v Union of India.

In this case, the first amendment was challenged on the ground of infringement of fundamental rights. However, hon’ble Supreme Court held that the parliament had power to amend the constitution in a way that infringes the fundamental rights and such amendment won’t be void under article 13 of the constitution. The judgement was considered by some jurists to be extremely detrimental to the spirit of constitutionalism in the country because of the magnitude of arbitrariness it entrusted the legislative with.

However, the scenario changed completely in Golaknath v State of Punjab when the SC held therein that the amendments under article 368 also amount to law under article 13, and can be declared void on the ground of infringement of fundamental rights. This judgement, however, was again widely criticised by many jurists as an emotional outburst of the judiciary and alleged it to be based more on emotions than on reason.

The question was finally solved and a stable position of law was found in the landmark judgement of Kesavananda Bharati v State of Kerala. In Kesavananda case, it was finally held that amendments made under article 368 of the constitution are not ordinary law under article 13 of the constitution. It was also settled that the parliament doesn’t reserve the power to amend the ‘basic structure’ of the constitution by any amendment whatsoever, the only unsettled provision being the meaning and scope of the term ‘basic structure’.

However, the term ‘basic structure’ has been elaborately discussed by the Supreme Court in a number of cases and thereby Supreme Court has provided an almost clear meaning to the term. With that, the legislative and judiciary have both been restricted to their respective arenas, thereby ensuring the continuance of the culture of constitutionalism in the country.

AUTHOR

Anshuman Sahoo