Expanding Horizons of Basic Structures of Constitutionalism

A Study of Evolving Trends

Abstract

This paper highlights that in the India’ s constitutional framework, the judiciary stands as a bastion of constitutional supremacy, wielding the power to scrutinize and invalidate legislative and executive actions that contravene the sacred tenets enshrined within the Constitution. Inspired by the American Constitution and articulated by Chief Justice Marshall in the watershed Marbury v. Madison case of 1803, the concept of judicial review underlines the inviolable nature of constitutional principles, proclaiming legislative transgressions as null and void. This paper highlights what is central to this discourse is to maintain the delicate balance among the legislature (L), Executive (E), and the Judiciary (J). Each of this wing of the government is envisioned as equal and coordinated entities tasked with upholding the principles of separation of powers and checks and balances. Herein lies the crux of the perennial question: to what extent can the judiciary scrutinize the validity of laws enacted by the parliament and state legislatures without encroaching upon their domains? This tension often manifests as a confrontation between the Supreme Court of India and the executive and parliamentary branches, accentuating the judiciary’s pivotal role in safeguarding constitutional integrity. This paper stress the preambular mandate of the Indian Constitution, which heralds India as a Sovereign Socialist Secular Democratic Republic, where post Maneka Gandhi case of 1978, the judiciary assumes the role of championing socialist ideals, particularly the eradication of poverty and the elevation of the working class. This necessitates legislative initiatives such as land reforms aimed at redistributing excess land to the landless, abolishing feudal structures like the zamindari system, and nationalizing the bank… etc. However, the executive’s reluctance to fully implement these reforms brings out a fundamental tension between constitutional aspirations and political expediency. Judiciary in Golak Nath case pointed out that Article 368 consists only ‘procedure’ to amend the constitution and the ‘power’ to amend to bring substantive changes is absent. Judiciary pointed out that the main object of Article 13 is to secure the paramountcy of the Constitution in regard to the fundamental rights. This paper also emphasised how the Judiciary exhibited foresightedness and creativity by employing the doctrine of prospective overruling. Consequently, Parliament responded with the 24th amendment, altering Article 368 to replace ‘Procedure’ with ‘Power’ concerning Parliament’s ability to amend the Constitution. Additionally, parliament also amended Article 13 to shield it from judicial review, thus seemingly curtailing the Judiciary’s authority. However, the Judiciary remained steadfast in its stance. In contrast, the Keshavananda Nanda Bharti case marked a pivotal moment where a 13-judge bench articulated the concept of the basic structure of the Constitution. This doctrine asserts the immutability of certain foundational principles, empowering the judiciary to nullify any amendment threatening this basic structure. Despite attempts to curtail its authority, the judiciary remains resilient in upholding constitutional principles, ensuring that the Constitution remains adaptable while preserving its essential framework. While this doctrine may not find universal acceptance, particularly in other countries, the Indian judiciary’s expansion of judicial review reinforces the Constitution as a living document responsive to the evolving needs of society.