Talk about the importance of civil society participation and public dialogue in the amending process. How much can the public and interest groups affect the discussion and decision-making surrounding a proposed constitutional amendment?
The doctrine of the basic structure of the Constitution, as established by the Supreme Court of India in the landmark Kesavananda Bharati case (1973), represents a significant development in constitutional jurisprudence. This doctrine places limits on the Parliament's power to amend the ConstitutionRead more
The doctrine of the basic structure of the Constitution, as established by the Supreme Court of India in the landmark Kesavananda Bharati case (1973), represents a significant development in constitutional jurisprudence. This doctrine places limits on the Parliament’s power to amend the Constitution by asserting that certain essential features or principles of the Constitution are immutable and cannot be altered even through constitutional amendments.
Evolution of the Doctrine
Background to Kesavananda Bharati Case:
The case arose in the context of constitutional amendments made by the Parliament that sought to curtail judicial review and expand its own powers.
The central issue was whether there are any inherent limitations on the amending power of Parliament.
Supreme Court’s Decision:
The Supreme Court, through a historic 7-6 majority decision, held that while Parliament has the power to amend the Constitution under Article 368, this power is not unlimited.
The Court asserted that Parliament cannot alter the “basic structure” or essential features of the Constitution that form its core foundation.
Key Features of the Basic Structure:
The exact components of the basic structure have not been exhaustively defined but typically include:
Supremacy of the Constitution: Including the supremacy of the Constitution over other laws and organs of the state.
Democratic and Republican Nature: Including free and fair elections, representative democracy, and republican form of government.
Secularism: India’s commitment to secularism as enshrined in the Constitution.
Federalism: The distribution of powers between the Centre and the states.
Separation of Powers: The division of powers among the legislature, executive, and judiciary.
Judicial Review: The power of the judiciary to review laws and executive actions for their constitutionality.
Impact on Parliament’s Amending Power:
The Kesavananda Bharati case established that Parliament cannot amend the Constitution in a manner that violates or destroys its basic structure.
Amendments that seek to alter the basic structure can be subjected to judicial review, and if found to be in conflict with the basic structure, they can be declared unconstitutional and void.
Limitations Imposed on Parliament
Judicial Review: The doctrine empowers the judiciary to review constitutional amendments, ensuring they do not undermine the core principles of the Constitution.
Consensus Building: Parliament must garner broad consensus and justify any amendments that might impact the basic structure, fostering a more deliberative and careful approach to constitutional changes.
Stability and Continuity: The doctrine provides stability and continuity to the constitutional framework, preventing abrupt or radical changes that could undermine the foundational principles of the Republic.
Criticisms and Interpretations
Scope of Basic Structure: Critics argue that the doctrine’s scope remains vague, leading to potential judicial overreach or subjectivity in determining what constitutes the basic structure.
Impact on Democratic Processes: Some argue that the doctrine limits the democratic will of the people as expressed through their elected representatives in Parliament.
Conclusion
The doctrine of the basic structure, as evolved through the Kesavananda Bharati case, stands as a bulwark against arbitrary constitutional amendments that threaten the foundational principles of India’s democracy. It has shaped constitutional interpretation and limited the Parliament’s amending power by affirming that certain core features of the Constitution are sacrosanct and cannot be altered without judicial scrutiny and justification. This doctrine ensures the enduring resilience and integrity of India’s constitutional framework while balancing the need for flexibility and adaptability in response to evolving societal needs and challenges.
Public discourse and civil society engagement play a crucial role in the amendment process of a constitution. They provide avenues for citizens and interest groups to voice their opinions, participate in debates, and influence the outcome of proposed constitutional amendments. However, the extent ofRead more
Public discourse and civil society engagement play a crucial role in the amendment process of a constitution. They provide avenues for citizens and interest groups to voice their opinions, participate in debates, and influence the outcome of proposed constitutional amendments. However, the extent of influence can vary depending on various factors. Let’s discuss the role of public discourse and civil society engagement and the ways citizens and interest groups can impact the debate and outcome of constitutional amendments.
Creating Awareness and Shaping Public Opinion:
Public discourse and civil society engagement help create awareness about proposed constitutional amendments among the general public. Through various platforms such as media, public meetings, social media, and advocacy campaigns, citizens and interest groups can disseminate information, explain the implications of amendments, and shape public opinion. This awareness-raising process is crucial for generating interest, mobilizing support, and fostering informed debates.
Advocacy and Lobbying:
Interest groups and civil society organizations often engage in advocacy and lobbying to influence the debate and outcome of constitutional amendments. They present their perspectives, research, and recommendations to lawmakers, participate in parliamentary committee hearings, and provide expert opinions. By presenting evidence-based arguments and mobilizing support, these groups can influence the decision-making process and shape the content and scope of amendments.
Petitions, Memoranda, and Public Consultations:
Citizens and interest groups can actively participate in the amendment process by submitting petitions, memoranda, and representations to lawmakers, parliamentary committees, and constitutional review bodies. These documents highlight concerns, propose amendments, and provide suggestions for improving the proposed changes. Public consultations and hearings enable citizens and interest groups to directly engage with decision-makers, express their views, and influence the debate and drafting process.
Litigation and Judicial Review:
In some cases, citizens and interest groups may resort to litigation and seek judicial intervention to challenge the constitutionality of proposed amendments. By approaching the courts, they can bring their concerns to the attention of the judiciary and argue against amendments that they perceive as infringing upon fundamental rights or the basic structure of the constitution. Judicial review provides an avenue for independent scrutiny and can significantly impact the outcome of constitutional amendments.
Grassroots Movements and Protests:
Citizens and interest groups can organize grassroots movements, protests, and demonstrations to express their dissent or support for proposed constitutional amendments. These movements serve as a means to mobilize public opinion, raise awareness, and put pressure on lawmakers and the government to consider alternative perspectives or modifications to the proposed amendments. Such grassroots movements can influence the political environment and create a momentum for change.
It’s important to note that the influence of citizens and interest groups in the amendment process depends on the openness of the political system, institutional mechanisms for public participation, and the responsiveness of policymakers. The impact can vary from case to case, and the final outcome is ultimately determined by the deliberations and decisions of elected representatives and the constitutional processes in place.
In conclusion, public discourse and civil society engagement play a vital role in the amendment process by shaping public opinion, advocating for interests, providing expert opinions, and participating in deliberations. While citizens and interest groups can influence the debate and outcome of proposed constitutional amendments through various means, the degree of influence depends on multiple factors and the dynamics of the particular political and institutional context.
See less