Class-8 Basic Structure of Constitution

Basic Structure September 2020: Kesavananda Bharati of Kesavananda Bharati case 1973 passed away

Basic Structure?  It is a judicial innovation to check amending powers of Parliament.  It was introduced by the Supreme Court in Kesavanand Bharti case, 1973.  Because Constitution does not explicitly restrict amending powers of Parliament.

Evolution of Basic Structure:  Article 13: . "Law" made by Parliament cannot take away fundamental rights.  1951 Shankari Prasad case: . "Law" (of article 13) means ordinary law . "Law" (of article 13) does not means constitutional amendment . Result? Constitution amendments can change fundamental rights.  1967 Golak Nath case: . "Law" (of article 13) means constitutional amendment . Result? Constitution amendments cannot change fundamental rights.  1971 24th Amendment . "Law" (of article 13) does not means constitutional amendment . Result? Constitution amendments can change fundamental rights.  1973 Kesavanand Bharti case: . 24th amendment is correct. . Result? Constitution amendments can change fundamental rights. . But Parliament cannot change 'Basic Structure'.

 1976 42nd Amendment: . No restriction on Parliament's powers to amend Constitution . No amendment can be challenged in any court  1980 Minerva Mills case: . SC invalidated the above provision. . Judicial review is basic feature of Constitution. . Constitution has given limited amending power to parliament, . Donee (receiver) of limited power cannot use that limited power, to convert that limited power, into unlimited power.  1981 Waman Rao case: . Doctrine of ‘basic structure’ applies to amendments made after April 24, 1973  2007 Coelho case (Mains 2016): . aka 9th schedule case . 9th schedule items are not immune to judicial review, because, judicial review is a basic feature of Constitution.

Evolution in brief:  Parliament cannot take away fundamental rights.  1951 Shankari Prasad case: can  1967 Golak Nath case: cannot  1971 24th Amendment: can  1973 Kesavanand Bharti case: can, but not basic structure  1976 42nd Amendment: nothing like basic structure  1980 Minerva Mills case: Basic structure is correct Mains 2020 Class-8 : Page 1 © All Inclusive IAS Ninth Schedule: a) It has a list of central and state laws which cannot be challenged in courts b) It was added by the First Constitution Amendment Act, 1951. c) Motivation? to secure the constitutional validity of zamindari abolition laws. d) Initially it had 13 laws, currently 284.

What was the Kesavanand Bharti case? a) He was head of Edneer Mutt in Kasaragod district, Kerala b) He challenged acquisition of his land by Government under the Kerala Land Reforms Act 1963, as violation of Article 26. c) Judgement given in 24th April 1973 by 13 Judge Constitution Bench.

Importance of Basic Structure? a) It protects basic constitutional values like democracy, rule of law, secularism, etc. b) It checks autocratic tendencies of the ruling party. c) No government, howsoever powerful, can amend constitution as per its wish. d) It strengthens the concept of separation of power. e) Through Basic Structure, Supreme Court acts as the true guardian of the Constitution.

Criticism of Basic Structure? a) It is not mentioned in the Constitution. b) There is no complete list. c) It gives too much discretionary power to judges. d) It is against democratic principles, as it restricts powers of parliament. e) As courts add more subjects to the list, laws made after 1973 become vulnerable to be declared unconstitutional.

Some subjects part of basic structure are:  Independence of judiciary  Federalism  Parliamentary system  Secularism  Rule of Law  Separation of powers  Limited power of Parliament  Judicial review to amend the Constitution

Mains 2013

Mains 2019

Mains 2020 Class-8 : Page 2 © All Inclusive IAS Multilateralism Unilateralism  one-sided action by a party. Vaccine nationalism, USA withdrawal from UNESCO, WHO

Bilateralism  two parties coming together. Indo-Nepal Treaty of Peace and Friendship 1950 China making bilateral deals under BRI

Multilateralism  multiple parties coming together Post WW-II institutions like UN, WB, IMF NPT, BRICS

What is N.O.R.M.S.?  New Orientation for a Reformed Multilateral System  India has become UNSC member for 8th time.  India’s overall objective will be to push for a reformed multilateral system.  N.O.R.M.S. is the framework to achieve it.  Its components are: a) Samman: Respect b) Samvad: Dialogue c) Sahyog: Cooperation d) Shanti: Peace e) Samriddhi: Prosperity

What is multilateralism? Coming together of three or more states to discuss (& act on) issues of mutual interest.

Need for Multilateralism

Global challenges Diffused Power State’s Deficiencies

a) Global challenges cannot be tackled by unilateral or bilateral approach . Global threats need global response. . Problem is so vast, no single country/group can tackle them alone. . e.g. Climate change, Nuclear proliferation

b) Power is diffused across states and non-state actors . Many groupings and private companies are quite powerful . Their involvement is essential in any major decision . e.g. Google, Facebook, WEF Davos summit, Blockchain Bill of Rights

c) Deficiencies in statehood system across the world . Governments are incapable of meeting people’s needs and aspirations. . e.g. corruption, poverty, access foreign markets.

Mains 2020 Class-8 : Page 3 © All Inclusive IAS Challenges in multilateralism: a) Vague goals: a) It is difficult to set clear priorities when so many nations come together. b) To accommodate every one, agenda expands, and become vague. b) Time taking process: a) Negotiations take long time as everyone’s concerns need to be addressed b) By the time negotiations finalize, situation would have changed. c) So, it’s not suitable for issues that require quick action. c) Trust deficit: a) Bigger groups have more chances of rivals being included. b) Rivalries between members make negotiations difficult. c) US-China, US-Russia, India-China d) Illusion of progress: a) Signing of agreements creates illusion that progress is being made. b) NPT is not working on nuclear disarmament. e) Free-rider problem: a) Some countries hope to enjoy benefits without making efforts b) USA withdrew from Paris agreement, but will enjoy clean environment

Multilateralism: Need of the hour (Institutions  countries  people) The present global multilateral order is in crisis: a) UN is cash strapped, had to postpone conferences last year. b) WTO’s appeal mechanism is practically stalled. c) WHO’s failures in initial handling of coronavirus, and alleged protection to China. d) Nationalism and protectionism is increasing: America First, Brexit e) Bilateral deals under China’s BRI is leading countries to debt trap. f) Pandemic needs global response, but countries are adopting vaccine nationalism. g) Covid induced lockdowns increased hunger. WFP got Nobel prize but lacks funds.

Way forward: a) Reform existing multilateral institutions to reflect new world order. b) Find common goals to get cooperation from all members. c) Explore use of sanctions or non-cooperation with non-cooperating countries. d) Use minilateralism wherever suitable: a) Term coined by Moises Naim of Venezuela in 2009 b) It is a type of multilateralism c) Less number of participants, dealing with specific issue d) Generally, it is less formal and without institutions. e) Benefits? (see problems with multilateralism)

Mains 2020 Class-8 : Page 4 © All Inclusive IAS Piracy in Indian Ocean Region September 2020: India joined Djibouti Code of Conduct as an Observer.

Djibouti Code of Conduct (DCoC):  established in 2009 by IMO and currently has 20 member states.  Its signatories cooperate against maritime piracy in Western Indian Ocean.  Observers: India, Japan, Norway, UK, USA  It will help India in getting clearer picture of maritime scenario in the region.

Jeddah Amendment:  adopted in Jeddah, Saudi Arabia in 2017.  it included human trafficking and illegal fishing.

What is maritime piracy?  Piracy in high seas outside the jurisdiction of any country.  Usually, ships are hijacked, crew kidnapped, and ransom demanded.

Why does it happen?  Most international trade happens through sea  No security on high seas  Poverty in coastal areas  Weak governments unable to control local pirates

Maritime piracy is a serious problem because: (men, company, economy, country)  Threat to life of crew.  Loss of goods, money and business of the company.  Higher claim payments by insurance companies.  Disrupts international trade and thus causes loss to economy.  Disrupts to oil and gas supplies of countries.  For example, petro-piracy of tankers leaving Nigeria's oil and gas fields.

Steps taken by India: 1. Anti-piracy patrols by Indian Navy since 2008 2. Merchant ships can request to be escorted by navy ships. 3. Coordination with other countries in conducting patrols. 4. Joined DCoC as observer.

Steps by International community:  Contact Group on Piracy off the Coast of Somalia  Maritime Security Programme (MASE) program funded by European Union  Maritime Crime Programme (MCP) of United Nation Office on Drugs and Crime (UNODC)  Lomé Charter 2016 by African Union  Yaoundé Code of Conduct by some western and central African countries.

High Risk Area:  area with high risk of piracy exist  In 2012, High risk area boundary was shifted from 65O to 78O East, except Indian territorial waters.  To avoid High Risk area, ships used to move close to Indian coast.  This increased incidents like Enrica Lexie 2012  2019: High risk areas shifted westward.

Way forward:  Address the root cause, i.e. poverty in coastal Somalia.  Capacity building of Somalia's navy in anti-piracy.  Continue coordination with other nations for maritime patrols  Puntland state in Somalia raised a strong maritime police, this should be replicated by other coastal states as well.