Constitutional Law – The Law Blog

And now, who will defend us?

May 11, 2017May 11, 2017Posted in Constitutional Law, Now happeningTagged Independence of Judiciary, Paraguay, Separation of powersLeave a comment

Laws were created to regulate the coexistence of man within a society. Each country has a Supreme law, usually called Carta Magna or Constitution that establishes the foundations and principles by which it will be governed. It set down the main rights and obligations, as well as the guarantees that serve as a limit, to avoid abuse of power.

These constitutions were created by man, and modified by man as well, generally preceded by events that impact the country and the society to which they belong. This indicates that there is some degree of vulnerability because of the endowment. Mechanisms for their modification are also established.

In Paraguay, there are two ways: the Reformation and the Amendment. The first has a more demanding process, in which once the need for reform it´s declared, it should be called to elections for the conventional constituents who will be in charge of modifying the constitution without any limits regarding the modifications that can be made.

The second way, called Amendment, has a more simplified procedure, in which once it´s approved by both chambers of the congress, a referendum is carried out. By having a simpler procedure, there are some limitations. This can´t be used for changing …the provisions affecting the mode of election, composition, duration of mandates or attributions of any of the powers of the state…^[1], among other rights relating to life, liberty, environment, etc.

This controversy already a decade long, but more latent in these last months, next to the internal party elections that precede the presidential elections of 2018, is the one referring to the re-election. At this moment it is prohibited in the country by the article 229 of the National Constitution that establishes that the presidents “… may not be reelected in any case …” The article mentioned is under the title of “Duration of the mandate” So if it is intended to modify the constitution to allow re-election, this can´t be done with the amendment procedure, as is established in the article mentioned in the previous paragraph.

Opinions about the interpretation of these articles are divided. In one side, there are jurists and politicians who claims that “re-election doesn´t affect the duration of mandate. It doesn´t change the five years of duration that indicate the constitutions. It only establishes the possibility of having one more period”. Following this interpretation, attempts have been made to amend this provision, by being the fastest route.

In the other side, and according to the interpretation of some jurists, they affirm that “the purpose of the norm by prohibiting the re-election is that the duration of the mandate can be only for 5 years, without the possibility of its extension through a new election“^[2] Also taking into account the historical moment in which the present constitution was written, that was after the fall of the dictatorship of Stroessner[3], that lasted in the power 35 years. The purpose was to enable current presidents to perpetuate themselves in power througha legal dictatorship, establishing a more complex procedure to deal with the modifications of such delicate issues.

Not in vain Montesquieu said “Power ought to serve as a check to power”. The Constitution sets limits to power. The Judicial Power is the custodian of the Constitution. It interprets, fulfills and enforces the Constitution.^[4] However, the members of the Supreme Court of Justice are appointed by the Senate Chamber with the agreement of the President. This makes the “judicial independence” guaranteed in the Constitution^[5] vulnerable. In that way, there is a certain mistrust of what the Supreme Court of Justice can determine. So, the question now is, who will defend us?

It is worrying that the interpretations are made according to particular political interests, without taking into account the general interest^[6]. Although re-election is a figure that is used in several developed countries of the world, to include it in our law, we must use the legal way, respecting the Supreme Law. Because the violation of the constitution would imply the breaking of the rule of law.

[1] Article 290 of the National Constitution of Paraguay.

[2] Ramirez Candia, Manuel Dejesús; “Constitutional Law of Paraguay, Volume II”, Pag. 528, Intercolor S.R.L. editor, 2011”

[3] Alfredo Stroessner was a paraguayan military, politician and dictator. He was the 48th president of the Republic of Paraguay between August 15, 1954 and February 3, 1989, where he exercised a dictatorship that lasted 35 years.

[4]Article 247 of the National Constitutions of Paraguay.

[5] Article 248 of the National Constitutions of Paraguay.

[6] Article 128 of the National Constitutions of Paraguay.

ABOUT THE AUTHOR

ANTONELLA MENDEZ

Antonella Méndez is an educator, environmentalist and agent of change. She holds a Bachelor Degree in International Trade and she is graduating this year (2017) with a Professional Law Degree at the National University of Asunción. She is Assistant Professor of Sociology of Law and she is member of the research committee at university. She is host of a live TV program about analysis and debate of general interest topics.

A Need to Define Limits to Constitutional Change

March 28, 2017March 28, 2017Posted in Constitution of India, Constitutional LawTagged Amendments, Constitutional Change, Constitutional LawLeave a comment

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, 8^th 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

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.

Revisiting the NJAC case

March 15, 2017March 12, 2017Posted in Constitutional LawTagged Independence of Judiciary, NJACLeave a comment

The January 4th appointment of Justice Khehar as the Chief Justice of the Supreme Court and the petition imposed thereafter questioning his appointment and by extension the validity of the collegium case has again opened a Pandora’s box full of questions. Thereby it appeared as apt, to recount the narrative which has aimed at questioning what some might call as Judicial Tyranny and others might call as Judicial independence.

The Supreme Court’s decision of deeming the 99th Constitutional amendment[1] as violative of the basic structure of the constitution and more specifically against the judicial emissaries of our country. The response which sparked a huge outcry, none more so over than by Minister, Mr. Arun Jaitley whose quick-fire repartee’ to the decision ended in the proclamation that the “Indian democracy cannot be a tyranny of the unelected”.[2] The revolutionary 99th Amendment[3] radically changed the schema employed for the appointment of the prime judicial officers of the Supreme Court and the High Court.

It set the foundation for the NJAC (National Judicial Appointment Commission) which was to replace the erstwhile two-decade old body entailing a collegium system for judicial appointment. The raison d’être behind it was to entail an incorporation of entities which did not belong to the judicial fold, serving as functionaries pivotal for the appointments of judges. Done so with the sole intent to improve representation in the two-tier body, firstly which was responsible for the appointment of these judges and the second one being the coterie of judges themselves. This was founded on the belief that a degree of lethargy had become implicit in the Indian judiciary, coupled with issues pertaining to the judiciary becoming an old boys club resulting it becoming a doyen of nepotism and riddled with a degree of corruption ( as indicated by Sr. Advocate Soli Sorabjee in a televised debate).

The above thus formed the basis of the conflict, with the primacy of the judiciary being “robbed off ” and by extension completely destroying their haloed independent status. Article 124(2)[4] states that “Every Judge of the Supreme Court shall be appointed by the President … after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem… Provided that in the case of appointment of a Judge other than the chief Justice, the chief Justice of India shall always be consulted” While the concerns the appointment of the Supreme Court Justices, in addendum to which is Article 217 of the Indian Constitution[5] concerning with the appointment of High Court Justices.

The NJAC Act makes a crucial interlude for by changing the terminology from “consultation” to ” on the recommendation of the National Judicial Appointments Commission”. By this act the president is no longer addressing the matter with view of taking of purely taking the recommendation on consultative basis instead the president is entirely bound by the NJAC’s decisions. As for the composition of the said committee, it shall entail the Chief Justice, two senior Supreme Court Justices, the incumbent Union Law Minister, in addendum to eminent individuals from civil society ( Art. 124 A)

Those opposing the NJAC, had the views firmly grounded in the belief that it served as an institution which completely took away the apostle idea of Judicial independence. With the decision of 16th October 2015, serving as one in a long line of cases contending with the issue of judicial independence as exemplified by the Collegium system. An exploration of the long litany of cases must be ensued to understand the scope of this conflict.

To begin one goes all the way back to the pre-independence case Al-Jehad Trust v. Federation of Pakistan[6], Sankalchand Hinatlal Sheth[7] which even back then enshrined the idea of judicial primacy and independence. This was then followed by the seminal case of Kesavananda Bharati v. State of Kerala ((1973) 4 SCC 225)[8], whereby it was held that judicial independence is an integral part of the constitution’s basic structure doctrine. In addition the case Shamser Singh v. State of Punjab (1974) 2 SCC 831[9] scrutinized that the executive under the dais of the president has powers supplanting even the Supreme Court.

The S.P. Gupta case (S. P. Gupta v. Union of India[10] – 1981 First Judges case) became the very first instance questioning judicial independence and being answered in the negative. The 1994 Second Judges case i.e. Advocates-on-Record Ass’n v. Union of India, AIR 1994 SC 268[11] ensured a stringent understanding of the term “consultation” (Art. 124(2)) in regard to the advise received by the president from the Collegium. It was understood to have meant concurrence, one which would be of a mandatory nature, thereby ensuring that the president has to comply with the collegium accorded recommendations. The subsequent case In Re: Presidential Reference, AIR 1999 SC 1[12], which is referred to as the Third Judges Case, reasserted the claim for judicial independence as it being a part of the basic structure. Using the channel of Rule of law to address the need for independence of the Judiciary.

Moving on to the NJAC case, which invalidated the NJAC, thereby purporting the unelected’s tyranny. The case identified the committee as one which compromised judicial independence. Linking the primacy to the judicial independence. The linkage of the twin aspects of Primacy and independence have been sighted as being key to their primacy as well as their subsequent persistence as an independent functionary. Another aspect as adduced from the majority judgment concerning the case was that the linkage between primacy and judicial independence has its genesis going back to the Constituent Assembly Debates whereby the intent has always been to keep a check on the Executive.

These judgments are well representative of the reign of tyranny to continue for the foreseeable future. At present one suffers from a lack of reasoning and understanding as to why the issue of judicial primacy and independence are essential to such a dogmatic extent as such and what factors be it practical, societal, cultural or more ardently legal serve as obstacle in the dream of achieving a more well representative judiciary and removing an appointing committee of the nature of an old boys club such as the Collegium.

While for the time being the petition has been deposed of, however with the superannuation of Justice Khehar slated for August 2017, it is apparent that this saga has not yet reached its end.

[1] 99th Constitutional amendment

[2]Democracy can’t be a tyranny of the unelected, says Jaitley, BUISNESS STANDARD(Oct. 19 2015),

http://www.business-standard.com/article/current-affairs/democracy-can-t-be-a-tyranny-of-the-unelected-says-jaitley-115101900027_1.html

[3] 99th Amendment To The CONSTITUTION OF INDIA

[4] Article 124(3) Of The CONSTITUTIONOF INDIA

[5] Article 217 of the Indian Constitution

[6] Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324

[7] Union of India v. Sankalchand Hinatlal Sheth 1978 SCR (1) 423

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

[9] Shamser Singh v. State of Punjab (1974) 2 SCC 831

[10] S. P. Gupta v. Union of India AIR 1982 SC 149

[11] Advocates-on-Record Ass’n v. Union of India, AIR 1994 SC 268

[12] In Re: Presidential Reference, AIR 1999 SC 1

ABOUT THE AUTHOR

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.

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

March 12, 2017March 12, 2017Posted in Constitution of India, Constitutional LawTagged Ninth Schedule, Reservation1 Comment

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

DHRUV SHEKHAR

The Basic Structure doctrine goes global

January 22, 2017Posted in Constitution of India, Constitutional LawTagged Basic structure, Basic structure doctrineLeave a comment

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 8^th Constitutional amendment, it was held that the National Assembly cannot make amendments which alter the basic structure of the Belize Constitution and the 8^th 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

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.

Constitutional Aspect of Intellectual Property Rights in India

December 29, 2016December 29, 2016Posted in Constitution of India, Constitutional Law, IP LawTagged Intellectual Property Rights, IP LawLeave a comment

This article has been written by Deepseng Shyam. Deepseng is currently a student in NLU Assam.

Intellectual Property and India has a good long history dating back to the ancient years of Indus Valley Civilization. Evidences show that in the Ancient Era, especially during the Indus Valley Civilization era, activities of town planning, entertainment industries, musical industry and others were highly prevailing and also trademarks have been also used to differentiate the products of the producers from one from another. If we take a look at the present scenario, Intellectual Property like trademarks, are used mainly by every market competitors to differentiate ones product from another. So it is safe to say that the idea to protect one’s product or service from another has been prevailing since the ancient times in India. Intellectual Property Law was first brought to mainstream in India by the British Empire by implementing the British Patent Act, 1852 when an applicant named George A. DePennings made the first application for a patent in India in the year of 1856, which subsequently gave effect in the making of the Act VI of 1856[1]. The recognition of Intellectual Property as a property by the Indian Constitution is vague and unambiguous. The Constitution of India does not openly declare an Intellectual Property as a property but at the same time it also does not reject the same.

The Indian constitution in its preamble permits mixed economy system and recognises the economic liberty as one of the most important liberty. This has been ensured through property system. If the term “property” used in the Indian Constitution is analysed it may mean any tangible property but it has a wider concept. Though, it absolutely includes intellectual property but indirectly. There was a time when “Right to Property” was a fundamental right enshrined in the Indian Constitution under Article 19 (f) but later it was substituted through the 44^th amendment. However the substitution of Article 19 (f) didn’t mean the end of “Right to Property”, the insertion of another Article i.e. Article 300A through the 44^th Amendment, changed it to a Constitutional right from fundamental right and due to this change any legislation violating the constitutional “Right to Property” could now be challenged only in High Courts and not directly in the Supreme Court. However, Intellectual Property as a form of property can be put under Article 300A dealing with property and be entitled to a legal right. Unlike the Indian Constitution, the United States Constitution specifically protects the Intellectual Property (Article 1(8) of the U.S. Constitutions which provides “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries”). However, there is no such Intellectual Property clause in the Indian Constitution. While this means that Intellectual Property does not have special Constitutional status, it also means that there are no Constitutional restrictions on the power to make laws on Intellectual Property. Article 300A of the Indian Constitution provides constitutional safeguards against unlawful deprivation of property it is Article 253 that plays an important role in the context of Intellectual Property Rights as it mandates the recognition of the international aspect of laws, legislations, and agreements and empowers the Indian parliament to enforce the international treaties through law making process. Certain provision in Article 372 also validates the pre-constitutional law subject to certain condition laid down in the provisions. For instance: Article 372 (1) states that: “Nothingwithstanding the repeal……………all the laws in force in the territory of India immediately before the commencement of this constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority”.

Thus due to the presence of these Articles it became possible for the pre-constitutional Intellectual Property Rights laws to be in force in India and the adoption of various International treaties on Intellectual Property laws by the Indian legislation. For example, the repealing of 1911 Patent Act and the passage of new Patent Act, 1970 was due to Article 372 (1) of the Indian Constitution which authorizes the legislature or any competent body to repeal, alter or amend the pre-constitutional laws. Also, majority of the present Intellectual Property laws are influenced by the international laws, such as the present patent laws is the result of various international instrument like Budapest treaty, TRIPS agreement, UN convention on Biodiversity and others.

Article 31A protected the legislations providing for acquisition of estate or any right therein or their modification on the ground that it took away or abridged any of the rights conferred by Part III of the Constitution. Article 31B restricted the scope for challenge on the plea of violation of fundamental rights. Intellectual Property, in its literal sense, means the things manifested from the exercise of the human brain, a product emerging out of the Intellectual labour of a human being. The two chief items are the writings of authors, and inventions made by the inventors. In its broadest sense, the term “Intellectual Property” includes ideas, concepts know-how, and other creative abstractions, and also, the literary, artistic, or mechanical expressions that embody such abstractions.

The basic difference between this form of property and other forms is that, in Intellectual Property the focus is on the produce of the mind, and not on the product itself. For example, in literary property (copy right) it is not the book which is termed property, but the intellectual creation, which comprises ideas, conceptions, sentiments, thought etc, fixed in a particular form that is considered property for protection. Traditionally only a few items were included in the category of Intellectual Property. At present, generally copyright, designs, patents, and trade mark are classified as Intellectual Property. But by the development of arts, science and technology, many new items have been included in this category.

Further, the mention of Intellectual Property system in the Entries of the Indian Constitutional further provide us with clues that Intellectual Property is indeed recognized by the Indian Constitution. Entry 12, 13, 14 has been rightly included in the List 1 of the 7^th Schedule of the Indian Constitution. Entry 49 of List I happens to be the specific one which has been totally and exclusively devoted to intellectual property system. Entry 49 recognizes only patents designs, copyright, trademarks and others. However, it does not recognize the concept of traditional knowledge, biodiversity, geographical indications and others but these categories of intellectual property rights can be included within the existing one. If we look into entry 97 of List I which read as follows “any other matter not enumerated in List II or List III including any tax not mentioned in either of those Lists” and Article 248 reads as “parliament has exclusive power to make any law with respect to any matter not enumerated in the concurrent List or State List”. Thus, it is safe to assume that Traditional knowledge can be included among other Intellectual Properties and are recognized by the Indian Constitution as Intellectual property.

Conclusion

The Constitution of India provides the necessary safeguard to protect the right to property in general and the agricultural property in particular[2]. For example, The Protection of Plant Varieties and Farmers Right Act, 2001 is framed to make available a number of special safeguard measures to protect and promote the interests of the farmers in order to encourage the accelerated growth of the agricultural sector which will ultimately result into the overall growth of the Indian economy. Also the Biodiversity Act, 2002 is framed to provide safeguards to various biological resources like “plants, animals and micro-organisms and their genetic material and by-products (excluding value added products) with actual or potential use or value, but not human genetic material against being misused and other unfair commercial or non-commercial activities. In general it is enacted to protect against bio-piracy[3]. A case of such bio-piracy occurred when the US Patent Office granted the patent (Patent No. 5, 401 and 504) for turmeric to two expatriate Indians at University of Mississippi Medical Centre in 1995 which was subsequently challenged by the Indian Council for Scientific and Industrial Research (CSIR) on the ground of “prior art” or “existing public knowledge”[4]. Although, the CSIR won their battle, this incident shows how traditional knowledge is vulnerable to bio-piracy and thus the need to protect it has grown increasingly.

[1] History of Indian Patent System, available on the official website of Intellectual Property India. Link: http://www.ipindia.nic.in/history-of-indian-patent-system.htm

[2] Article 300A and Article 31A.

[3] Section 2 of Bio-Diversity Act, 2002.

[4] Daima, Dinesh. “Class on Trade Mark Law and Traditional Knowledge”. National Law University, Assam, Guwahati. 5^th November, 2016. Class Lecture.

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