28 January 2023

The basic structure of the Constitution

GS-2: Indian Constitution—historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

Recently, the Chief Justice of India compared the "basic structure" of the Constitution to the North Star, which serves as an unwavering guide in times of confusion. This statement was in response to a comment made by Vice President that the basic structure doctrine, established by a 13-judge Bench in the Kesavananda Bharati case 40 years ago, undermines parliamentary sovereignty through a 7:6 wafer-thin majority judgment. 

The ongoing debate over the Supreme Court's Collegium, which recommends names for judicial appointments, has brought attention to the question of whether Parliament has unrestricted power to amend the Constitution or if there are limitations in place. This comes after the Supreme Court's decision in October 2015 to strike down the 99^th Constitutional Amendment and the National Judicial Appointments Commission (NJAC) Act, a decision that the government believed reflected the people's will as it was passed through Parliament as a constitutional amendment.

The Kesavananda Bharati case

• The Kesavananda Bharati case was brought to the Supreme Court shortly after the Indira Gandhi government's victory in the 1971 elections, during which they campaigned on the slogan of "eliminating poverty." 
• The government, still upset about the Supreme Court's Golak Nath verdict, 1967 which upheld the power of judicial review over constitutional amendments, introduced several Constitutional Amendments. 
• The 24^th Constitutional Amendment changed Article 13, a provision that stated that no 'law' could take away or limit fundamental rights. 
• The Parliament also modified Article 368, a provision that dealt with constitutional amendments, to allow the Parliament to add, change, or repeal any Article of the Constitution. 
• The 13-judge Bench upheld the Parliament's power to amend the Constitution as long as it adhered to its basic structure or essential features. 
• The 25^th Constitutional Amendment introduced Article 31C into the Constitution, which aimed to implement the Directive Principles of State Policy for distribution of material resources of the community and to prevent concentration of wealth.

• The government's aim was to facilitate nationalization of industries and socialist measures. 
• The Amendment mandated that any law enacted with this objective cannot be “deemed” void on the ground that it was inconsistent with fundamental rights and it was outside of judicial review. 

• The 13-judge Bench invalidated the part of Article 31C which took away the power of judicial review of the court. 
• However, the Kesavananda Bharati judgment did not provide relief to the petitioner-seer when it upheld the 29^th Constitutional Amendment which incorporated two land reform provisions made in the Kerala Land Reforms Act, 1963 in the Ninth Schedule, making them immune to litigation claiming violation of fundamental rights. 
• The 4^th constitutional amendment on abolition of privy purses was not considered by the Court.

The basic structure doctrine

• The Kesavananda Bharati judgment stated that the basic structure or essential features of the Constitution cannot be altered by the Parliament using its constituent power. 
• This basic structure, also referred to as the "soul" of the Constitution, is linked to the values in the Preamble and is essential for the preservation of the document. 
• The court explained that a Constitution, like a living system, may have components that change but the basic structure must remain intact for the system to survive.
• The judgment provided examples of what constitutes the basic structure, including supremacy; the federal and secular character of the Constitution; separation of powers among the legislature, executive and judiciary; dignity of the individual; unity and integrity of the nation; sovereignty of India; democratic character of our policy; welfare state and egalitarian society; liberty of thought, expression, belief, faith and worship and equality of status and opportunity among other essential features. 

The argument against the Kesavananda Bharati judgment 

• Constitutional amendments should not be nullified by the court as they mirror the “democratic will of the people”. 
• This argument suggests that the court should not interfere in the decisions of the democratically elected parliament, as it is representative of the people's will. 
• However, the counterargument to this is that the people are not directly involved in the amending process, and therefore, the parliament's will should not be equated with the people's will.

The aftermath of the Kesavananda Bharati judgment

• The basic structure of the Constitution is considered its "soul" and is linked to the values in the Preamble. 
• The judgment led to the evolution of the Collegium system to protect judicial independence, which is also considered a part of the basic structure doctrine. 
• The court has used the basic structure doctrine in subsequent cases uphold judicial review of constitutional amendments and to protect fundamental rights. to
• Over the years, the court has also clarified the basic structure to include the primacy of the Chief Justice of India in judicial appointments and transfers as essential for the preservation of the democratic system and the rule of law.

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What is a living will, and the new Supreme Court order for simplifying passive euthanasia procedure?

GS-3: Issues relating to development and management of Social Sector/Services relating to Health, Education, Human Resources

Recently, The Supreme Court of India, headed by Justice K M Joseph, has agreed to ease the procedure for passive euthanasia in the country by altering the existing guidelines for "living wills" as set in a 2018 judgment.

Euthanasia and Living will

• Euthanasia is the act of intentionally ending a person's life to relieve suffering from an incurable condition or unbearable pain. 
• It can be classified as either active or passive. 
• Active euthanasia involves taking direct actions to end a person's life, such as administering a lethal injection. 
• Passive euthanasia, on the other hand, is the withdrawal of medical treatment necessary to sustain life. 
• In 2018, the Supreme Court of India legalized passive euthanasia with the condition that the person must have a "living will," a written document outlining their medical wishes if they are unable to make decisions in the future. 
• If a person does not have a living will, their family can petition the High Court for permission to carry out passive euthanasia.

Background

• In 1994, the Supreme Court of India declared Section 309 of the Indian Penal Code, which criminalized attempt to suicide, to be a "cruel and irrational provision" that should be removed from the statute book to “humanise our penal laws”. 
• However, in 1996, a five-judge Bench of the court overturned this decision, stating that the right to life under Article 21 of the Indian Constitution did not include the right to die, and only legislation could permit euthanasia. 
• In 2011, the Supreme Court allowed passive euthanasia in certain situations, such as in the case of Aruna Shanbaug, a nurse who had been in a vegetative state since being sexually assaulted in 1973. 

• The court made a distinction between ‘active’ and ‘passive’, and allowed the latter in “certain situations”. 

• The Law Commission of India had previously recognized the patient's right to make decisions about their medical treatment, and proposed legislation on passive euthanasia in 2008.

The SC rule in 2018

• In 2018, the Supreme Court of India allowed for the practice of passive euthanasia, in which life-sustaining treatment is withdrawn from terminally ill patients in a permanent vegetative state, by recognizing living wills as a legal document. 
• A five-judge Constitution Bench headed by the Chief Justice of India at the time issued guidelines for the procedure, but noted that these guidelines would only be in effect until a law on the matter was passed by parliament. 

• As no such law has been passed, the 2018 judgment remains the most recent and conclusive set of guidelines on euthanasia in India. 
• The guidelines addressed issues such as who would carry out the living will and how approval would be granted by a medical board. 

• The court emphasized that adults with the mental capacity to make informed decisions have the right to refuse medical treatment, including the removal of life-sustaining devices.

Impact of the recent order

• The 2018 guidelines on living wills, which required a cumbersome process involving multiple medical boards and a Judicial Magistrate of First Class (JMFC) approval, have been simplified by the Supreme Court's recent order. 
• The process will now be easier, with both medical boards being formed by the hospital, a reduced experience requirement for doctors, the replacement of the Magistrate's approval with an intimation, and the ability for a notary or gazetted officer to sign the living will in the presence of two witnesses instead of the Magistrate's countersign.
• The medical board must also communicate its decision within 48 hours. If the medical boards refuse permission, kin can now approach the High Court to form a fresh medical team.

Different countries, different laws

• The Netherlands, Luxembourg, and Belgium permit both euthanasia and assisted suicide for individuals who experience unbearable suffering with no hope of improvement. 
• Switzerland only allows assisted dying in the presence of a doctor or physician, while euthanasia is prohibited. 
• Canada's plans to allow euthanasia and assisted dying for mentally ill patients by 2023 have been met with criticism and may be delayed. 
• In the United States, the laws on euthanasia vary by state, with some states like Washington, Oregon, and Montana allowing it, while in the United Kingdom euthanasia is considered illegal and equivalent to manslaughter.

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