Consolidation of The Basic Structure Doctrine

Discussing the Minerva Mills Ltd and Ors. v. Union of India and Ors Case

Bench: Chandrachud, Y.V. ((Cj), Bhagwati, P.N., Gupta, A.C., Untwalia, N.L., Kailasam, P.S.

After Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 case, Supreme Court in many cases invoked the doctrine of basic structure. The Minerva Mills case is one of the cases which brought about the Consolidation of Basic Structure Doctrine. It is known to have evolved the Basic Structure Doctrine of the Indian Constitution, which was first introduced as a concept in Kesavananda Bharati Case. In the Keshvanda Bharti case, Nani Palkhivala studied the constitution of 76 countries to come up with the concept of the Basic structure doctrine.

What is the Basic Structure Doctrine? The doctrine of non-amendability of the basic features of the Constitution implies that there are certain provisions in the Constitution which cannot be amended even by the following prescribed procedure therefor. There is no exact list of as to what the basic features of the constitution are. The Hon’ble Supreme Court has not provided any such exhaustive list of the basic features of the Constitution, though some of the basic features have been highlighted in various judgements of the Apex Court. The inherent ambiguity of the doctrine, as well as that of the ratio in Kesavananda Bharati, resulted in various challenges both to and under the doctrine before the Supreme Court. The period subsequent to the Landmark Kesavananda Bharati case was one where the doctrine has evolved on a case-to-case basis, resulting in a gradual expansion of the doctrine.

The Forty-second amendment was challenged before the Supreme Court by the owners of Minerva Mills (Bangalore) a sick industrial firm which was nationalised by the government in 1974. 1 Minerva Mills v. Union of India, AIR 1980 SC 1789 The question of whether Section 4 and 55 of the 42nd Amendment Act are damaging the basic structure of the constitution, whether DPSP are more important than Fundamental Rights and whether judicial review is a part of the basic structure or not are answered in the judgement.

Facts and Premise:

Minerva Mills Ltd. was a textile company in Karnataka. Due to low productivity, The Central Government nationalized and took over it under the Sick Textile Undertaking Act, 1974 as it was of the opinion that there had been or was likely to be substantial fall in the volume of production.. The Central Govt. was suspicious that company fulfilled the criteria to be classified as a sick industry. Therefore, the Central Govt. in 1970 appointed a committee u/s 15 of the Industries (Development and Regulation) Act, 1951 for making a full detailed report analysing the affairs of Minerva Mills. The said Committee submitted its report to the Central Government in January 1971, on the basis of which the Central Government passed an order dated October 19, 1971 under section 18A of the 1951 Act, authorising the National Textile Corporation Ltd., to take over the management of the Mills on the ground that its affairs are being managed in a manner highly detrimental to public interest. This undertaking was nationalised and taken over by the Central Government under the provisions of the Sick Textile Undertakings (Nationalisation) Act, 1974. The petitioners challenged the constitutional validity of certain provisions of the Sick Textile Undertakings (Nationalisation) Act, 1974 and of the order dated October 19, 1971, the constitutionality of the Constitution (Thirty Ninth Amendment) Act which inserted the impugned Nationalisation Act as Entry 105 in the Ninth Schedule to the Constitution, the validity of Article 31B of the Constitution and finally the constitutionality of sections 4 and 55 of the Constitution (Forty Second Amendment) Act, 1976.

Issues:

1. Whether Section 4 and 55 of the 42nd Amendment Act are damaging the basic structure of the constitution. Constitution of India Forty Second Amendment Act, Sections 4 and 55-Whether the Sections are beyond the amending power of the Parliament under Article 368 of the Constitution and therefore void. Earlier through 39th Constitutional (Amendment) Act, 1975 the Parliament inserted Nationalization Act, 1974 into Ninth Schedule which means that any challenge on the said Act was outside the purview of judicial review. Now, the petitioner was not able to challenge this aspect of 39th amendment since this remedy was barred by 42nd Amendment; which was passed by Parliament to bar any challenge on constitutional amendments in courts of law after Indira Gandhi case. Therefore, the main issue before the court was to check the constitutionality of 42nd Constitutional (Amendment) Act, 1976.

2. Whether the Directive Principles of State policy contained in Part IV of the Constitution can have primacy over the fundamental rights conferred by Part 111 of the Constitution -Constitution of India Articles 14, 19, 31C, 38 and 368.

3. Whether judicial review is a part of the basic structure.

Observation:

1. Article 368 was inserted in the Indian Constitution by the 42nd Amendment. In the case of Minerva Mill vs. Union of India, the validity of 42nd amendment Act was challenged on the ground that it was violating the ‘basic structure’ of the Constitution. The Hon’ble Supreme Court by majority of 4:1 struck down clauses (4) and (5) of the article 368 inserted by 42nd Amendment of the Indian Constitution, on the opinion that these clauses are violative of the essential aspect of the basic structure of the constitution. It was ruled by the court that a limited amending power of the executive itself is a basic feature of the Constitution.

Clauses (4) and (5) are invalid on the ground that they violate two basic features of the Constitution:

• Limited nature of the power to amend

• Judicial review The courts cannot be deprived of their power of judicial review. The procedure prescribed by Clause (2) is obligatory.

2. This Judgment laid down that: The amendment made to Article 31C by the 42nd Amendment is invalid because it damaged the essential features of the Constitution.

3. The Judgment of the Supreme Court makes it clear that the Constitution is Supreme not the Parliament. It finally ended the tussle between the Constitution and the Parliament. The judgement stated that the Parliament cannot have unlimited amending power so as to damage or destroy the Constitution to which it owes its existence and also derives its power.

4. The Fundamental Rights and the Directive Principles are complementary to each other and there should be no confrontation between them. Undoubtedly, Part IV is a part of the Constitution. Part-xx Article 368 (1) of the Constitution of India grants constituent power to make formal amendments and empowers Parliament to amend the Constitution by way of addition, variation or repeal of any provision according to the procedure laid down therein, which is different from the procedure for ordinary legislation. Article 368 has been amended by the 24th and 42nd Amendments in 1971 and 1976 respectively. The Twenty-fourth Amendment of the Constitution of India, officially known as The Constitution (Twentyfourth Amendment) Act, 1971, enables Parliament to dilute Fundamental Rights through Amendments of the Constitution. It also amended article 368 to provide expressly that Parliament has power to amend any provision of the Constitution. The amendment further made it obligatory for the President to give his assent, when a Constitution Amendment Bill was presented to him. A harmonious balance should be maintained between Part III and Part IV of the Constitution This case emphasized the importance of the balance between fundamental rights and DPSP as being a part of the basic structure of the constitution.

Decision:

1. Sections 4 and 55 of the 42nd Amendment Act were at the root of the controversy at Minerva Mills. The Hon'ble Court had to determine if the basic structure of the Constitution was breached by Sections 4 and 55 of the Act. The majority struck down Section 55 & 4 of the 42nd Amendment as it was in violation of basic structure thereby upholding the Basic Structure doctrine laid down in Kesavananda Bharti. Bhagwati J. wrote the dissenting opinion in the sense that he agreed with the majority on the point of striking down section 55 however he dissented with the majority on the point of Section 4 of 42nd Amendment.

2. The court held that the Clauses 4 & 5 of Article 368 were actually inserted to bar the courts to entertain any challenge on the question of validity of the constitutional amendments. It was ruled by the court that a limited amending power itself is a basic feature of constitution of India. Further, the court held Section 55 of the amendment Act 1976 void since it firstly made challenge in court impossible & secondly it removes all the restrictions on the power of Parliament under Article 368. The court rightly interpreted the true object of these new clauses which was to throw away the limitations imposed by Kesavananda on Parliament. The court relying on Kesavananda opined that the power to amend under Art. 368 is not a power to destroy. In the above said decision the court clearly mentioned the scope of amendment under Article 368. The court found that the word “amend” in the provision of Article 368 stands for a restrictive connotation and could not ascribe to a fundamental change.

3. The court also explained the relationship between the provisions of Part III & Part IV of the Constitution i.e. Fundamental Rights and Directive Principles of State Policy respectively. The court said that the entire Indian Constitution rests upon the foundation of Part III & Part IV. The provisions of Part IV must be achieved but without abrogation of FR’s and anything which shakes this balance violates the essential balance of the Constitution. Therefore, the court in strict terms laid down that the balance between DPSP’s & FR’s is Basic Structure of the Constitution.

4. As regards to Section 4 of the amendment Act 1976 which tried to separate Article 14 and 19 from Article 31 C this was held void as it destroyed the basic feature. Therefore, restoring the judgment of Kesavananda on the point of Art. 31 C the court struck down Section 4 of the amendment Act 1976. However, the amendment in Article 31 C was held valid by Bhagwati J. because he was of the opinion that the court should not on first hand hold any law made under it unconstitutional. In his opinion the courts should look into the pith of the law by following Doctrine of Pith & Substance. If the law is substantially connected to the provisions mentioned under DPSP’s then it would be a constitutional law and on the contrary if there is no nexus between the law and the DPSP’s it would be surely struck down. Therefore, the court by 4:1 majority held sections 4 & 55 of the 42nd Constitutional (Amendment) Act, 1976 unconstitutional. The ruling struck down section 4 and 55 of 42nd constitutional amendment. Clause 4 under section 55 was damaging basic structure, Clause 5 barred judicial review. Supreme court says that the parliament cannot exercise its limited power to grant itself an unlimited power. The power to amend is not a power to destroy.

5. The Hon’ble Supreme Court stated that Judicial Review is the part of basic structure of Indian constitution. Judicial review refers to the power of the judiciary to interpret the constitution and declare any such law or order by the executive or the legislature void, if it finds it in conflict with the Basic structure doctrine. Prior to the Keshvananda case, the judiciary had to study if the order is constitutional or unconstitutional. Subsequently, it is determined if it is in conflict with the basic structure doctrine.

Conclusion:

This tussle resulted into the fact that now every amendment is subjected to judicial review. Supreme court is the final interpreter of all amendments. Landmark decision of the Supreme court of India that applied and evolved the basic structure doctrine of the Constitution of India. Supreme court held that any act of parliament can’t take away judicial review as it is basic feature of constitution and there shall be limit to power of parliament to amend the constitution. Parliament can’t expand its amending power under Article 368 so as to repeal or abrogate the constitution or any amending act which violates basic structure of it. Article 14, 19 and 21, take precedence over directive principles. Therefore, any act prioritising DPSP’s over these articles, void or unconstitutional