Indian Constitution and its Contractual nature

The Indian preamble, an ideal manifestation of the objective sought to be imbibed in the Indian culture, not only in theory but in practice as well; starts with this magnanimous terminology of ‘We the people of India’; therefore, bestowing the ultimate power to the Indian citizens; so it is the Indian citizens, who under the umbrella of ‘Collective force’ have bestowed the Indian Constitution[1] with the power and not the Indian Constitution who has bestowed the power on the Citizens of India.[2]And all the powers of the Constitution, and that of the Constituent Assembly is been derived from the people of the India.[3]It is this declaration which makes preamble a sublime one as compared to others, it is draft not forced upon the unwilling hands of the bearer, in fact, it has been given to themselves by the people of the country through their ‘Constituent Assembly.’[4] Further, it was observed in the case of Union of India v. Madangopal[5]

Our Constitution as appears from the Preamble, derives its authority from the people of India, and learned counsel conceded that it was open to the people to confer on the legislatures established by the Constitution, which they framed through their representatives, power to make laws having operation in relation to periods prior to the commencement of the Constitution.

Additionally, it establishes a contractual nature of the Indian Constitution; which is a result of the consent of the Indian Citizens underlying it.[6] The very concept that Indian Constitution is a Contract, needs much convincing to be believed in. The Idea of the contractual nature of the Constitution was first given by Lysander Spooner; who quotes

The Constitution has no inherent authority or obligation at all, unless as a contract between man and man.”[7]

On this principle he works out a contour, where he concocts that if a Constitution is a contract, similarly it shall be applicable to the persons who were present then when the contract was being made e.g., when the American Constitution was being framed in the 1776, this contract shall be applicable only to the citizens of America present at that time. Similarly, the Indian constitution which was drafted in 1950 is applicable to the citizens living at that time.

But the point of difference between a Contract and a Constitution comes in due to the compulsory nature of the latter as compared to the voluntary nature of the former. This is what John Locke called it as tacit consent to the citizenship.[8]As it is a pre-requisite for the formation of  the Contract, that both the parties must have given their voluntary consent to the agreement; the same is not case with the Indian Constitution, as explained by John Locke in his “two treatise of Civil Government.

Tacit Consent to the Contract

The very idea behind the concept of tacit consent to the Constitution was first evolved by John Locke, where he has styled that by taking birth in a particular country and by using its amenities we are impliedly agreeing to its suzerainty. The traces of which can be found in section 8 of the Indian Contract Act 1872; which specifically provides that a contract can be entered either by performing the condition or by receiving the consideration, therefore, our taking birth on the Indian soil and using its amenities has qualified us to be a party to this Contract we call Constitution.

The trespasser Obligation

Another theory which compels us to the obligatory nature of the Constitution is the concept of Trespasser obligation, under which the person trespassing the land of the owner is liable to follow his orders or else he shall be liable for trespassing, similarly by taking birth on the land of India, we are somewhere trespassing on the land of Indian Government, therefore are suzerainty is subject to Indian Sovereignty.

[1]  Sauvik. Chakraverti, The Essentials Frederic Bastiat, Liberty Institute, 2007, Bastiat was a great supporter of human liberty and was of the view that it was the collective force of the human society which gives the Law its force.

[2]  Keshavanada Bharti v. State of Kerala (1973) 4 SCC 225, see also Behram Khurshid v. The State of Bombay AIR 1955 SC 123

[3]  Constituent Assembly Debates, Vol. 1, 13th Dec. 1946, The resolution moved by Jawahar Lal Nehru on the the aims and object of the Indian Constitution.

[4]  A.K Gopalan v. State of Madras, AIR 1950 SC 27: 1950 SCR 88 per MAHAJAN, J.

[5]  Union of India v. Madan Gopal, (1954) SCR 541 (655).

[6]  Lysander Spooner, No Treason: The Constitution of no authority, Free Patriot press, U.S.A, 1867, the philosopher put forward the idea; that the constitution is only enforceable on the people who were living at the time when (Spooner, 1867)the constitution was made; he was an absolute believer on the contractual nature of the contract

[7]   Id. Pg 3

[8]   John Locke, Two treatise of the Civil Government, ed. Thomas Hollis (London: A. Millar et al., 1764). John Locke said by living under the suzerainty of a particular nation, we have given them our tacit consent to be their citizenship. See also Thomas Hobbes’ ‘Social Contract’ 1651, where he regarded as a single contract whih led to the offspring of state and devolution of the power by the people in the Levithian ruler whereas, John Locke in his Social Contract of 1689 was of the view that there were two contract, first by which the people organized themselves and by the second contract they surrendered their right to the sovereign King.


ABOUT THE AUTHOR

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ASHIT KUMAR SRIVASTAVA

Ashit Kumar Srivastava (AKS) is currently working as an Assistant Professor at Amity University, Lucknow. His main area of interest is Constitution and Jurisprudence. However, he mostly inter-relates various socio-legal topics together.

A Need to Define Limits to Constitutional Change

Constitutional reform, progressively known as constitutional change[1] in recent times, is an act of the state that results in a change in the constitutional text of the nation. Undoubtedly, there is a dire need of regular changes to a constitution keeping in view the ever-dynamic nature of the law as well as society. Also, almost all the constitutions[2] across the globe realise the necessity of a carefully designed well-defined process[3] therefor.

However, the debate arises when the question concerns the limit to which such changes can be made. The Constitution of a country undoubtedly provides the basic foundations for the building of political, economic, and legal systems thereof; and changes to the constitution may have serious effects on those, sometimes a detrimental one.

There arises a proposition that apart from providing a carefully crafted process for such constitutional changes, there must be some underlying rule or principle governing the limit to such changes. And, since the limits cannot be set by statutory means,[4] there must be underlying doctrines to serve the same.

Time and again various supreme courts have observed the necessity to define limits to constitutional change and have manifested their observations by laying down doctrines.[5] Also, sometimes the doctrines have been created out of the court rooms.[6] And in both the cases, there lies a belief at the root of this that there must be a limit to the constitutional change.

Putting limits to constitutional change seems of utmost importance when we look at the case of Turkey’s Constitutional Reform recently. Last December, Turkey’s ruling Justice and Development Party (AKP) unveiled a raft of proposed constitutional changes that may consequentially change the parliamentarian form of governance into a presidential one. Although it may seem that it has chances of ensuring stability in the governance, the chance of a one-man rule also cannot be denied.

In an ideal democracy, an unfettered power to change the constitution may be a thing of unanimous acceptance; but the case is different when there’s constantly a dark power play between parties and persons. Lack of limits to constitutional change always instils a fear of tyranny of the majority.

Noted Indian judge Hidyatullah J. observed the same when deciding for a case of similar nature in the Supreme Court of India.[7] Fundamental provisions like Fundamental Rights and Personal liberty, in his words, cannot be a plaything of the majority. Lack of any limit to constitutional changes may create occasions where the basic ideologies and fundamental provisions are treated as the plaything of the majority party in the parliament.

Apart from practical theories like the abovementioned, there also exists theoretical doctrines necessitating for limits to the constitutional change. Some doctrines, exploring the nature of the constitutional amendment power, conclude the same to be a sui generis power that rests within a spectrum between the constituent power and the ordinary legislative power. Drawing on the French Doctrine distinguishing pouvoir constituant originaire and pouvoir constituent derive, a further conclusion is drawn that the amendment power is a delegated ‘secondary constituent power’, authorised by ‘the people’s primary constituent power’.[8]

There are a number of similar arguments on the need and inherency of limits to constitutional change. The foundational structuralism argument contends that there are basic features of every constitution that make up a specific constitutional identity and a hierarchy of constitutional values beyond the reach of the delegated amendment power.[9] The basic structure doctrine developed by the Indian Supreme Court holds a somewhat similar view regarding unamendability of certain provisions.

Every power must come with its own set of limits, for limitless power opens door to tyranny, dictatorship, and corruption. Be it the foundational structuralism, the constitutional essentialism, or the basic structure doctrine, there must be set well-defined limits to constitutional change so as to prevent the constitution from being a plaything of the majority.

[1] The UK parliament has expressed the view that the term ‘constitutional change’ is to be used rather than the term ‘constitutional reform’ as the latter necessitates a positive stroke in the change. Read the full text here: https://www.publications.parliament.uk/pa/ld201012/ldselect/ldconst/177/17704.htm

[2] Constitutions of various countries contain provisions as to how the constitutional changes will take place. For example, Article V of the American Constitution, Article 368 of the Indian Constitution etc.

[3] A well-defined process is of utmost importance as observed by many scholars and cited in many reports. See Constitution Committee, 8th Report (2010-2011): Fixed term parliament bills (HL Paper 69), para 160, UK

[4] Constitution being the supreme law, must lay down the limits and principles for itself. However, providing specific rules regarding the same will be practically of no use as they too are vulnerable of being amended/changed. Alternatively, extra-strict or rigid provisions regarding the limit also seems unreasonable owing to the constant factor of change in the national as well as global scenario.

[5] For example, the Indian Supreme Court has laid down the ‘Basic Structure Doctrine’ in the case of Kesavananda Bharati v. State of Kerala.

[6] The doctrine of Constitutional Essentialism by John Rawls is a burning example of such cases. Although the doctrine of Constitutional Essentialism has not been approved yet by the US Supreme Court, still the effect of the same on the American Constitutional Law cannot be denied.

[7] Sajjan Singh v. State of Rajastan, 1965 AIR 845, IN

[8] Yaniv Roznai, Chapter 4, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers, Oxford University Press, 2017

[9] Ibid.


ABOUT THE AUTHOR

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ANSHUMAN SAHOO

‘Passionate!’ That’s the only word he uses to describe himself. Questioning assumptions. Challenging hypocrisies. Making the planet a better place to live in. Can be found at http://www.anshumansahoo.in.

Examining the prospect of placing a reservation bill for the Jats under the ninth schedule

This note is geared towards examining the possibilities of whether a reservation bill which aims at placing the reservation above the 50% guideline (M.R. Balaji vs. State of Mysore AIR 1963 SC 649[1] ) can be brought in by placing it in the Ninth Schedule of the Constitution of India and thereby escaping the ambit of Judicial Review.

We begin with examining as to what constitutes the Ninth Schedule of the Constitution.

NINTH SCHEDULE OF THE CONSTITUTION

Instated by the very first amendment to the constitution on 10 May 1951 to address judicial decisions and pronouncements espe­cially about the chapter on fundamental rights under the dais of the Nehuruvian Regime. The intent behind it was very clear, the state in a bid to pursue nationalization wanted to take the excessive land from the Zamindars and redistribute it amongst the Socio-economic backward classes.

Despite having architected the Constitution, Nehru was not confident that the laws made to pursue these special interests of the state would stand up to judicial scrutiny on account of being discriminatory.

The 1st Amendment[2] that brought in Articles 31A and 31B[3] conferring upon the state the right to make laws to acquire private property and to deem such laws as not being discriminatory and to further protect all such laws from any judicial review by creating something called the Ninth Sched­ule.

Since this very First amendment, the Ninth Schedule has been relied upon to amend the constitution multiple times over. The 4th amendment[4] inserted six acts to the 9th schedule. The 17th amendment[5] added 44 more acts. The 29th amendment[6] brought in 2 acts from Kerala. The 34th amendment[7] in 1974 added 20 more land tenure and land reforms laws enacted by the states.

More specific to our area of Interest would be the 76th Amendment[8] (1994) to accommodate Tamil Nadu Government’s legislation to provide for reservations to the level of 69 percent for SC/ST and OBCs followed. What takes the cake, however, is the 78th amendment[9], which was about not just immunity to laws in the Ninth Schedule, which was suspect, but amendments to those laws and making those amendments immune.

The above-stated circumstance gives us a glimmer of opportunity and hope that in the case of reservation for the Jat Community there too might be the possibility of keeping the reservation bill in the Ninth Schedule without being brought into question under the ambit of  Judicial Review.

PRESENT POSITION OF LAW

However in wake of the Supreme Court’s Ruling in the matter of  I.R.Coelho vs. State Of Tamil Nadu & Ors AIR 2007 SC 861[10], it was held that all laws (including those in the Ninth Schedule) would be open to Judicial Review if they violated the basic structure of the constitution. Chief Justice of India, Yogesh Kumar Sabharwal noted, “If laws put in the Ninth Schedule abridge or abrogate fundamental rights resulting in violation of the basic structure of the constitution, such laws need to be invalidated.” 

The Supreme Court judgment laid that the laws placed under Ninth Schedule after April 24, 1973 shall be open to challenge in court if they violated fundamental rights guaranteed under Articles 14, 19, 20 and 21 of the Constitution[11].

Impact of the Judgment:

The Judgment ended up the controversy behind the Ninth Schedule largely and was successful to put a bar on political intentions of keeping certain sensitive issues out of the reach of Judicial Review for narrow political gains. The landmark judgment was successful in strengthening the demo­cratic base of the society and bringing into the realm of justice, unfair acts of misuse of the provision of the ninth schedule in the Constitution.

Applicability In The Present Scenario:

In the past few decades states of the likes of  Tamil Nadu, Karnataka, Madhya Pradesh have crossed the 50% reservation benchmark. More specifically one can look at the case of Rajasthan, whereby the reservation count has gone as high as 68%  (13%- economically backward classes and 5% for Gujjars) in terms of Jobs and education. but all of this has been put on hold by the High Court rejecting because of its infringement of the 50% rule. The state ultimately has been left hoping that the Central government brings out a direct amendment to the constitution under The amending power (constituent power) of Parliament as contained in the Constitution (Articles 245, 246, 248[12]) which gave it the power to make laws (plenary legislative power)

However as laid down in the landmark ruling of  Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225[13] Previously, the Supreme Court had held that the power of Parliament to amend the Constitution was unfettered. However, the Court adjudicated that while Parliament has “wide” powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution.

Further as stated above in the 2007 matter[14], laws attacking the basic doctrine of the constitution would be under the ambit of judicial review. This matter too contends with Art. 15 &16[15] under the Right to Equality of the Fundamental Rights. Which would naturally predispose it to be under the ambit of the basic Doctrine of the constitution.

Thus in a scenario, an attempt to put the reservation bill under the Ninth Schedule would not serve any purpose for the Courts are well within the power to examine and more potently reject these legislations for the endanger the basic structure of the Constitution. A similar premise would be the basis of  any sort of rejection of the Parliamentary amendments.

[1] M.R. Balaji vs. State of Mysore AIR 1963 SC 649

[2] 1st Amendment To The CONSTITUTION OF INDIA (1951)

[3] Articles 31A and 31B Of The Constitution of India

[4] 4th amendment To The CONSTITUTION OF INDIA (1955)

[5] 17th amendment To The CONSTITUTION OF INDIA (1964)

[6] 29th amendment To The CONSTITUTION OF INDIA (1971)

[7] 34th Amendment To The CONSTITUTION OF INDIA (1974)

[8] 76th Amendment To The CONSTITUTION OF INDIA (1994)

[9] 78th Amendment To The CONSTITUTION OF INDIA ( 1995)

[10]  I.R.Coelho vs. State Of Tamil Nadu & Ors AIR 2007 SC 861

[11] Articles 14, 19, 20 and 21 of the Constitution OF INDIA

[12] Articles 245, 246, 248 Of The Constitution of India

[13] Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225

[14] Id. at 9                                         0

[15] Articles 15 &16 Of The Constitution of India



ABOUT THE AUTHOR

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DHRUV SHEKHAR

Dhruv Shekhar is at present a law student at Jindal Global Law School (JGLS), having studied History before at St. Stephens College. Intrinsically passionate about the Films, Books and Football, he seeks to examine and study his interests within the ambit of the legalities concerned with the said subject matter.

UNIFORM CIVIL CODE- Is the time still not ripe?

Art 44 lays down a very significant directive principle of state policy- “State shall endeavour to secure for its citizens a uniform civil code throughout the territory of India”. However, although directive principles are guiding stars of our constitution, they are not enforceable in court.

Citizens of India are governed by a variety of personal laws in matters of marriage, divorce, succession etc. Now, the question that arises is ‘Why can’t Indians stand on an equal footing in civil matters like marriage, divorce etc even after 68 years of independence? It is absolutely absurd to find that polygamy (the practice of a man to have more than one wife at a time) is legal amongst Muslims but an offence amongst other religious communities.

Uniform civil code is the only way to ensure that everyone has progressive standards of law to abide by equality in standards of justice. It is necessary to have a common code of law wherein all the traditions are harmonised in consonance with the modern times and applied uniformly to each and every Indian.

Judiciary has time and again given a clear indication to the legislature that uniform civil code is the need of the hour. There are several case laws to consolidate and support this argument.

In Jordan Diengheh v S.S. Chopra case the issue of different divorce laws under different religions was addressed and analysed. A Christian lady has married a Sikh man under Christian Marriage Act 1872. A few years later she had filed a petition for declaration of nullity of marriage and judicial separation under Indian Divorce Act.

However, a single bench of HC rejected this prayer of nullity of marriage and granted judicial separation. The division bench affirmed this decision on appeal. On special leave to appeal SC analysed that divorce laws under all the personal laws are far from uniform. The differences among the couple were irreconcilable but due to lack of required provisions for grant of divorce in Indian Divorce Act, the couple had no choice but to continue the meaningless marriage. The court once again observed this as a case that focused on the compulsive need of UCC. There was a need to consider mutual consent as a ground of divorce in all divorce acts in order to provide for a way out to such unhappy couples. Mutual consent was inserted as a ground of divorce in Indian Divorce Act in 2001.

Whenever UCC is discussed the case that remains is the Shah Bano case. The Supreme Court had and very rightly given the decision that Shah Bano was entitled to maintenance under Section 125 of CrPc. But subject to the growing protests from the Muslim community this decision had to be struck down.

However, the depressing part is that the debate on UCC has got trapped in politics. Instead of reaching out to a consensus, it has become a blame game played by different political parties.

As observed by Supreme court in Sarla Mudgal’s case, the implementation of Uniform Civil Code is imperative for the protection of the oppressed and the helpless women, who are suffering only and only in the name of religion. There is no logical connection between religion and personal law in a civilised society.  Years after the Shah Bano case, the case that came to the picture was the Shayara Banu case. In 2015, she was divorced by her husband who gave her triple talaq for no such justifiable reasons. She was tortured relentlessly and in her entire married life tolerated this torture just due to the fear of being “triple talaqued” by her husband. But at last her fears came true.

In 1954, when the then Prime Minister, Jawaharlal  Nehru was asked as to why UCC hasn’t been implemented yet, he replied that the time is not ripe to make it come to force. It is rather interesting to note that today even after 68 years of independence the time does not seem to be ripe. How long are we going to wait for such numerous Shah Banos or Shayra Banus or Sarla Mudgars to suffer????

Therefore, the time has arrived that we adopt one nation one statute policy. If the same law of contract or torts applies to a Hindu or Muslim, why not the same law of marriage?

Hence top here with this I stop my pen just with the hope that we all rise above politics and lead India towards a better nation.



ABOUT THE AUTHOR

Krupa Thakkar

KRUPA THAKKAR

Krupa Thakkar is currently pursuing BLS LLB from Government Law College, Mumbai. She is presently in her second year. Always eager to learn new things, she keeps herself updated with happenings around the world. Though not an extrovert, she makes sure that she performs the best whenever she is allotted any task.

The Basic Structure doctrine goes global

The doctrine of basic structure is a judge-made doctrine which seeks to limit or curtail the power of the Parliament so that the basic structure of the basic law cannot be amended in the exercise of its constituent power under the Constitution of India. This blog post shall establish the comparison between India and the practice of the Basic Structure Doctrine in other countries. The doctrine of basic structure created in India is to render certain provisions unamendable and this has been followed, post the Second World War in various countries of which Germany is a prime example.[1] The Constitutions of Greece and Portugal have provided a list of all unamendable provisions which is long and fairly exhaustive.[2] The Constitutions of several countries such as France and Italy on the other hand, have attempted to safeguard only one or two core principles such as the Republican form of Government.[3] In the context of Iran, the unamendable provisions include those which relate to the Islamic and democratic character as well as the objectives of the republic such as social and economic goals.[4]

With regards to Pakistan, initially after the Kesavananda decision in India, a debate ensued in Pakistan, which however resulted in the rejection of placing substantive limits on the amendments.[5] However, in 1997, the Pakistani Supreme Court reopened this question when deciding whether an amendment that allowed the President to dissolve the National Assembly was valid or not.[6] Although the amendment was not struck down, Chief Justice Ali Shah opined that the fundamental or basic features of the Preamble should be retained and not altered.[7] While this initially led to a basic structure doctrine in Pakistan, the very next year it was overruled impliedly by a 7 judge bench.[8] Since then, the Courts have adopted either approach in certain cases, swinging both ways and it remains to be seen whether it shall be solidified or discarded.

In a case of 2015, however, this question was squarely addressed. In the majority opinion, 8 judges held that there were implied limitations on the amending powers of the Parliament. The court held that, “This Court is vested with the jurisdiction to interpret the Constitution in order to ascertain and identify its defining Salient Features. It is equally vested with jurisdiction to examine the vires of any constitutional amendment so as to determine whether any of the Salient Features of the Constitution has been repealed, abrogated or substantively altered as a consequence thereof.”[9] Democracy, parliamentary form of government and the Judiciary were outlined as the basic structure. The minority judges, 4 in number stated that, “The basic structure doctrine…has…[become] a vehicle for judicial aggrandisement of power at the expense of the elected representatives of the people. On the conceptual plane, it is devoid of merit and amounts to little more than a vessel into which the Judges can pour whatever economic, political or social theory as may catch their fancy or whim at any given time.[10] 5 other judges, while agreed that there were limitations, did not endorse the doctrine as that of the basic structure of the Constitution.[11]

In the country of Thailand, the 2007 Constitution prohibits amendments which change the democratic regime of the Government with the King as the head of the state or which has the effect of changing the form of the State.[12] Though this is a typical unamendable provision, the Constitution goes further to provide judicial powers to control representative bodies.[13] There is no specific mention of the basic structure, merely unamendable provisions.

The doctrine of the basic structure has also been invoked in certain cases in Belize in order to strike down amendments to the Constitution, and in both cases while the special majority required had been attained, the Supreme Court declared as such. These are the first examples of invocation by a commonwealth Caribbean court.[14] In the case of Bowen v. Attorney General, it was held that “the law-making powers of the Belizean Parliament are not unlimited in as much as the Belizean Parliament cannot ‘legitimately’ make laws that are contrary to the ‘basic structure’ of the Constitution itself. The basic structure comprises not only the fundamental rights guaranteed by Chapter II of the Constitution, but also the principles, ideas, beliefs and desires of the people of Belize as enshrined in the Preamble of the Constitution, which include, among other things, respect for the rule of law and the right of the individual to the ownership of private property. The separation of powers, which has been previously recognized by the Judicial Committee of the Privy Council (JCPC) is also a basic feature of the structure of the Westminster type Constitutions adopted by Commonwealth Caribbean countries upon independence as per the case of Hinds v. The Queen.[15] This principle would be violated if the citizens of Belize were to be denied access to the courts for compensation for the arbitrary derivation of their property by the State.”[16]

In another case of British Caribbean Bank Ltd. v. AG Belize Claim, which was pertaining to the 8th Constitutional amendment, it was held that the National Assembly cannot make amendments which alter the basic structure of the Belize Constitution and the 8th Constitutional amendment sought to prevent the court from determining whether arbitrary deprivation of land by government was for a public purpose and encroached upon separation of powers, and amended the basic structure and to this extent, were null and void.[17]

The High Court of Australia has also held in the case of Nationwide News Pty Ltd v. Willis[18] that the law making powers of the Parliament are subject to limitations which can be inferred in and from the Constitution of Australia itself. Even in Britain, in certain cases such as Jackson v. Attorney General it was held that, “In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the House of Lords may have to consider whether this is a constitutional fundamental which even a sovereign Parliament cannot abolish.”[19]

It is important to specifically consider the position of South Africa as well, as a debate has been ensuing regarding the applicability of the doctrine in that country as well. In Premier, KwaZulu-Natal v. President of the RSA[20] and Executive Council, Western Cape Legislature v. President of the Republic of South Africa,[21] the court referred to the doctrine, hinting at the possible application in South Africa by stating that there could be implied limitations on the powers of the Parliament to amend. In UDM v President of the RSA[22] the constitutional court, however, was unwilling to consider the basic structure doctrine, stating that an amendment which is passed in accordance with the formal and procedural requirements forms part of the Constitution and cannot be challenged as an infringement of its basic structure. However, these statements are obiter as the legislation in question was not regarded as a threat to the basic structure of the Constitution.[23]

Roux, further, refers to the South African constitutional court as a “constrained court” which attempts to justify its decisions through the language of the text of the Constitution in order to protect it Constitutional independence. “This is indicative of a very formalist legal culture and a conservative approach to the separation of powers, unlike the Indian Supreme Court. The South African constitutional court will attempt to justify the application of the basic structure doctrine through the text of the Constitution – an unlikely development in light of the fact that the Constitution itself allows for the amendment of the entire Constitution. Roux suggests an alternative approach for the constitutional court in protecting the basic structure of the Constitution by arguing that the court must progressively strengthen its institutional role by shifting the borders of its traditional functions. Over time a legal culture will develop that is justified by the text of the Constitution and strong enough to withstand a challenge to the basic structure of the Constitution.”[24]

The above is the link between the basic structure doctrine as developed and espoused in India and its reflections or acceptance in several other jurisdictions in their various forms.

[1] Article 1, 20, 79, Constitution of Germany, 1949.

[2] Articles 2, 4-5, 13, 26, 110, Syntagma Constitution, The Constitution of Greece, 1975. Article 288, The Constitution of Portugal, 1976.

[3] Article 89, Constitution of France, 1958. Article 139, Constitution of Italy, 1947.

[4] Article 177(5), Qanuni Assassi Jumhuri’i Isla’mai Iran [The Constitution of the Islamic Republic of Iran], 1980.

[5] Karim, F.: Judicial Review of Public Actions: A Treatise on Judicial Review (Karachi, Pakistan Law House 2006), 1254–76.

[6] Mahmood Khan Achakzai v. Federation of Pakistan, PLD 1997 SC 426.

[7] Mahmood Khan Achakzai v. Federation of Pakistan, PLD 1997 SC 426.

[8] Wukala-Muhaz v. Federation of Pakistan, PLD 1998 SC 1263.

[9], Supreme Court of Pakistan, Decision on Several Similar Constitution Petitions, http://www.supremecourt.gov.pk/web/user_files/File/Const.P.12of2010.pdf (2010).

[10] Ibid.

[11] Majid Rizvi, South Asian Constitutional Convergence Revisited: Pakistan and the Basic Structure Doctrine, Int’l J. Const. L. Blog (Sept. 18, 2015)  http://www.iconnectblog.com/2015/09/south-asian-constitutional-convergence-revisited-pakistan-and-the-basic-structure-doctrine.

[12] Ch. 15, Somdet Phra Paramintharamaha Bhumibol Adulyadej [Interim Constitution of Thailand], 2006.

[13] Iftikhar Husain Bhat, Doctrine of Basic Structure as a Constitutional Safeguard, International Journal of Research in Humanities and Social Sciences, http://raijmr.com/wp-content/uploads/2013/04/7_27-38-Iftikhar-Hussian-Bhat.pdf (2013).

[14] Derek O’Brien, The Basic Structure Doctrine and the Courts of the Commonwealth Carribean, UK Constitutional Law Association https://ukconstitutionallaw.org/2013/05/28/derek-obrien-the-basic-structure-doctrine-and-the-courts-of-the-commonwealth-caribbean/ (2010).

[15] Hinds v. The Queen, PC 1 Dec 1975.

[16] Hinds v. The Queen, PC 1 Dec 1975.

[17] British Caribbean Bank Ltd. v. AG Belize Claim, PCA Case No. 2010-18.

[18] Nationwide News Pty Ltd v. Willis, (1992) 177 CLR 1.

[19] Jackson v. Attorney General, [2005] UKHL 56.

[20] Premier, KwaZulu-Natal v. President of the RSA, [1995] ZACC 10.

[21] Executive Council, Western Cape Legislature v. President of the Republic of South Africa, [1995] ZACC 8.

[22] UDM v President of the RSA, [2002] ZACC 21.

[23] Cecile van Schalkwyk, The Basic Structure Doctrine: A basis for application in South Africa, or a violation of Separation of Powers, http://www.litnet.co.za/the-basic-structure-doctrine-a-basis-for-application-in-south-africa-or-a-violation-of-the-separation-of-powers/ (2015).

[24] Cecile van Schalkwyk, The Basic Structure Doctrine: A basis for application in South Africa, or a violation of Separation of Powers, http://www.litnet.co.za/the-basic-structure-doctrine-a-basis-for-application-in-south-africa-or-a-violation-of-the-separation-of-powers/ (2015).



ABOUT THE AUTHOR

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SANSKRITI SANGHI

Currently pursuing her undergraduate degree from the Gujarat National Law University, Gandhinagar, Sanskriti Sanghi possesses a flair for writing and a yearn to learn. Being avidly interested in Antitrust law, Intellectual Property Rights, Children’s Rights and International Relations, she seeks to engage in and discuss multiple disciplines which keep her constantly discovering. She believes in immersing and involving herself in various activities and letting the passion for each of those interests allow her to deliver her best.

Intersection of NJAC and Separation of Power

“The basic premise of the Constitution was the Separation of Powers and a system of checks and balances because man was perceived as a fallen creature and would always yearn for more power.” – Roy Moore

The early theorist Montesquieu on the doctrine of separation of powers, said:

“When the legislative and executive powers are united in the same person, or in the same body of Magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, they execute them in a tyrannical manner. Again, there is no liberty if the judiciary power be not separated from the legislative and executive. Were it joined to the executive power, the judge might behave with violence and oppression.

There would be an end of everything, were the same man, or the same body, whether of the nobles of people, to exercise those three powers, that of exacting laws, that of executing the public resolution, and that of trying the causes of individuals.”

Brandeis J. while laying accentuation on the principle of separation of powers said that the inspiration driving the separation of powers precept is not to propel viability in the association yet rather to hinder the act of optional power. He furthermore highlights that its inspiration is not to keep up a key separation from grinding among various organs of the state by keeping them segregated yet to shield people from autocracy by technique for certain contact in light of exacerbation of strengths. It is to gap administration against itself by making unmistakable concentrations of drive so they could keep each other from undermining oppression.

The National Judicial Appointments Commission (NJAC) tried to blur this line of separation of power between legislature and judiciary. It was a body entrusted with delegating judges to the higher Judiciary in India. Article 124 of the Constitution was altered through the 99th Amendment to mirror the adjustment in the arrangement of arrangements from the collegium framework, in which an assortment of judges would be counselled by the President to designate the judges, with the judiciary’s feeling being last. The body of the NJAC incorporates as the Chief Justice of India, the two senior-most judges of the Supreme Court, the Law Minister and two “prominent people”. A sub-council was further constituted to designate the “prominent people”. The synthesis of the sub-council incorporates the Prime Minister, the Chief Justice, and the Leader of the Opposition.

A historic judgement by the Supreme Court has held the National Judicial Appointments Commission (NJAC) Act 2014 unconstitutional. Article 13 of Indian Constitution announces that all “laws” that is conflicting with or in criticism of any of the fundamental rights is invalid and void. This force of “legal survey” is given on the Supreme Court (Article 32) and the high courts (Article 226) that can announce a law unlawful and invalid. The Constitution all in all verifiably focusedon that “the Supreme Court of India is the overseer of Indian Constitution”. Governments have tried to form the NJAC in order to extend the presence of the executive in the judiciary. The Indian democracy values Separation of Power and it cannot be overruled in any circumstances. When the judiciary doesn’t interfere in choosing executive appointments then the same is expected from the executive. The Supreme Court is the custodian of the Fundamental Rights of the citizens; it needs to have full discretion on such matters.

However, there is need to bring more transparency and accountability in the collegium system. In the striking down of the Constitution’s 99th Amendment furthermore the NJAC Act by holding the same as being violative of the fundamental structure of the Constitution, the Supreme Court has viably re-established the autonomy of the higher legal. The decision has demonstrated that the NJAC can’t supersede the privilege of the higher legal to decipher the laws. This additionally re-builds up that demonstrations of the governing body, right now overpowered by the numerical quality of the decision gathering, can be considered responsible in courtrooms.

“The judiciary and the press must be allowed their inviolate space and protected from increasing disdain and intolerance of the other pillars of the Constitution.”- Anonymous

Recently, in Madras Bar Association vs Union of India (2014 (10) SCC 1), the Supreme Court quoted the following excerpt from the Privy Council decision in Hinds vs The Queen, 1976 All ER (1) 353:

   “What Parliament cannot do, consistently with the separation of powers, is to transfer from the judiciary to any executive body whose members… a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders.”

The lawmaker class of the decision party depicts the judgement as oppression of un-elected over chosen. Despite the fact that they have their right to speak freely which is a principal right, it is not the route pushing ahead. Presently, the parliament ought to locate all conceivable approaches to work with the legal framework subject to the sway of legal and also parliament. In a constitution where “Equivalent insurance by law and Equal security of Law” (Article 14) is the establishing guideline, the straightforwardness in Judicial arrangements is an unquestionable requirement.

To conclude the words of Dr. A.S Anand, CJI stands true,

“…the Supreme Court is the custodian of the Indian Constitution and exercises judicial control over the acts of both legislature and the executive.”



ABOUT THE AUTHOR

prerna-deep

PRERNA DEEP

Prerna Deep is currently a first-year student at Campus Law Centre, University of Delhi.  She has completed English Honours from Miranda House, DU. Literature gave this forever bibliophile the wings to follow her heart and Law gave her the strength to believe that she too can change the world. She considers receiving an award for her essay on ‘Women and Law in India’ from Mr Ram Jethmalani a treasure. When not writing she’s probably binge-watching sitcoms.  She believes nothing describes her best than Virginia Woolf’s words:
“I have a deeply hidden and inarticulate desire for something beyond the daily life.”