21 Sep 2023  |   06:59am IST

Neither Parliament nor Courts can take away the basic structure and nature of the Constitution

‘Socialist’ and ‘Secular’ are in the DNA of our Constitution; Supreme Court has the power to declare such a law that violates the Constitution as invalid or ultra vires. State protection and equal treatment of all religions is ingrained in Art 25, 26 and 27; Supreme Court had rejected plea to remove the word Socialist in 2008
Neither Parliament nor Courts can take away the basic structure and nature of the Constitution

Notwithstanding apprehensions and fears of the leader of the Congress in the Lok Sabha, the spirit of the word secular even before it was included in the Preamble of the Constitution in the 42nd Amendment, exists in articles 25,26 and 27 of the Constitution. 

This will always guarantee that the State protects all religions equally, maintains neutrality and impartiality towards all religions, and does not uphold any one religion as a “State religion”.

Articles 25, 26, and 27 are the protective rings given for all religions without any scope for the promotion of one religion.

Article 25 guarantees the freedom of conscience and the right to freely profess, practice, and propagate religion. It ensures that individuals in India have the liberty to follow and promote their faith without any interference from the State.

Article 26 grants religious denominations and religious organisations the freedom to manage their religious affairs. It includes the right to establish and maintain religious institutions, manage their own affairs, and have control over their religious properties.

Article 27 prohibits the State from imposing taxes on religious institutions for promoting or maintaining a particular religion. It ensures that no one is compelled to pay taxes that would be used for the promotion of a specific faith.

‘Socialism is a facet of democracy’: Bench of CJ K G Balakrishnan, rejecting demand to remove the “Socialist” from the preamble of the Constitution

The word socialism is protected anyway by the Supreme Court In 2008, the Supreme Court rejected a plea demanding the removal of “socialist”.  “Why do you take socialism in a narrow sense defined by Communists? In a broader sense, it means welfare measures for the citizens. It is a facet of democracy.” A three-judge bench headed by then Chief Justice of India K G Balakrishnan had said.

Crucially and unequivocally the power of Parliament is not absolute. It vests in the judiciary

In a lengthy research paper on the “Basic Structure of the Constitution” compiled by Venkatesh Nayak, he writes, “The Parliament and the State legislatures in India have the power to make laws within their respective jurisdictions. This power is not absolute in nature. The Constitution vests in the judiciary, the power to adjudicate upon the constitutional validity of all laws. If a law made by Parliament or the State legislatures violates any provision of the Constitution, the Supreme Court has the power to declare such a law invalid or ultra vires.

This is the overriding insurance that protects the Constitution from not being tampered with so that the founding principles and nature remain intact forever. The powers of the Apex Court ensure this and it has come to the rescue in the past leading to two historic and landmark judgements.

As Venkatesh Nayak complies in his paper “The Basic Structure of the Constitution”, in 1973, the basic structure doctrine was formally introduced with rigorous legal reasoning in Justice Hans Raj Khanna’s decisive judgment in the landmark decision of Kesavananda Bharati vs State of Kerala. Previously, the Supreme Court had held that the power of Parliament to amend the Constitution was unfettered.

Each word of the order was a like brick building the wall of protection around our Constitution.

It said that Parliament could not distort, damage or alter the basic features of the Constitution under the pretext of amending it. The Supreme Court recognised this concept of “basic structure” for the first time in the Kesavananda Bharati case in 1973.

Nayak in his paper writes, “The Supreme Court has been the interpreter of the Constitution and the arbiter of all amendments made by Parliament.”

Golaknath vs State of Punjab case

Then came the Golaknath vs State of Punjab.  Fundamental Rights cannot be restricted even if it were to receive unanimous approval of both houses of Parliament.

The order underlined that Parliament could not modify, restrict or impair fundamental freedoms due to this very scheme of the Constitution and the nature of the freedoms granted under it. The judges stated that the fundamental rights were so sacrosanct and transcendental in importance that they could not be restricted even if such a move were to receive unanimous approval of both houses of Parliament.

The judiciary’s various capacities have been crystal clear on both the power and limits of the Constitution and the role and power of the judiciary

When the National Commission to Review the Working of the Constitution (the Commission), the National Democratic Alliance government was set up Justice M N Venkatachalaiah, Chairman of the Commission, has emphasised on several occasions that an inquiry into the basic structure of the Constitution lay beyond the scope of the Commission’s work. Because that is settled - the basic structure of the Constitution would not be tampered with.


Idhar Udhar