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Key features

  • The basic structure of the Constitution cannot be amended.
  • Held in the Kesavananda Bharati vs State of Kerala case.
  • This doctrine was set up to ensure that the power of amendment is not misused by Parliament.

Introduction

The Indian Constitution had provided Parliament and the state legislatures the power to make laws within their respective jurisdictions, but this power is not absolute in nature. The final decision still lies with the judiciary. The judiciary has the power to adjudicate upon the constitutional validity of all the laws made. The Supreme Court has the power to declare a law unconstitutional or ultra vires, if a law made by Parliament or the state legislatures violates any provision of the Constitution. The makers of the Constitution wanted it to be an adaptable document, therefore, the Parliament was invested with the power to amend the Constitution. Article 368 of the Constitution states that Parliament has been vested with the powers to amend and they are absolute and encompass all parts of the document. But the Supreme Court has observed that, to preserve the original ideas envisioned by the Constitution makers, the Parliament cannot distort, damage or alter the basic features of the Constitution under the pretext of amending it. Although the phrase 'basic structure' is not mentioned anywhere in the Constitution, the Supreme Court has recognized this concept for the first time in the landmark judgement of Kesavananda Bharati case in 1973.

What is the Basic structure doctrine?

The Constitution of India is a dynamic document which has been amended as per the needs and requirements of the society. The doctrine of basic structure is just a judicial innovation which ensures that the power of amendment is not being misused by Parliament. The general idea behind this doctrine is that the basic features of the Constitution of India should not be altered to such an extent that the true identity of the Constitution gets lost in the process. Certain governing rules are provided in the Indian Constitution, for the Parliament. And any amendment cannot be made that changes these principles. The doctrine has evolved over the years through various judgements, overruling, criticism and many dissenting opinions.

Evolution of basic structure doctrine

  • Shankari Prasad Singh Deo v. Union of India (AIR. 1951 SC 458)

In this case, the Supreme Court in its unanimous judgement held that the terms mentioned in the article 368 are perfectly general and they empower the Parliament to make amendments in the Constitution without any exception. This also meant that, Article 368 also empowered the Parliament to amend the Fundamental Rights guaranteed under Part III of the Constitution.

  • Sajjan Singh v. State of Rajasthan (AIR 845, 1965 SCR (1) 933)

The Constitutional validity of the 17th Constitutional Amendment which had added around 44 statutes to the 9th Schedule, was challenged in this case. Hence the Supreme Court contended that, Article 368 gives the right to the Parliament to amend the Constitution and this right can be exercised over all the provisions of the Constitution without any exceptions. But the two dissenting judges, Justice Hidyatullah and Justice Mudholkar JJ, in this case, raised questions on the unfettered power being provided to the Parliament to amend the Constitution and curtailing the fundamental rights of the citizens. They asked whether the fundamental rights of the citizens can be considered as a plaything of the majority party in Parliament.

  • Golaknath and Ors. vs State of Punjab and Anrs. (AIR 1643; 1967 SCR (2) 762)

In these 11 judge-bench decisions, the Hon’ble Supreme Court with a 6:5 majority observed that the fundamental rights lie outside the purview of the amendment of the Constitution. Article 368 does not provide the power to the Parliament to amend the Constitution. It has been clearly mentioned that Article 368 only provides the Procedure of Amendment. Any amendment against the Fundamental Rights was, therefore, declared void. The argument that the power to amend the Constitution is a sovereign power and it is above the legislative power. Hence it lies outside the scope of judicial review and was thus rejected. However, the Court did not declare the 1st, 4th and 17th amendment as invalid, implying that the Constitution cannot be amended further which would violate fundamental rights. Further the apex court held that the amending power and the legislative powers of Parliament were quite equal. The majority bench held that the Parliament cannot modify, restrict or impair the fundamental freedoms. The judges also observed that, if required, the Parliament can summon a Constituent Assembly to amend the fundamental rights. Thus, according to the apex Court, the core features of the Constitution require much more than the usual procedures to change them.

Although the phrase 'basic structure' was introduced by M. K. Nambiar and other counsels for the first time while arguing for the petitioners in the Golaknath case, but it was only in 1973 that this concept resurfaced again in the text of the apex court's verdict.

  • Constitution 24th Amendment

After the Golak Nath case the Parliament was devoid of its powers to amend the Constitution freely. Thus, to re-establish its earlier position, the 24th Constitutional Amendment was brought forth. The Amendment Act did not only restore its earlier position but extended the powers of Parliament.

  1. New clause (4) was inserted to Article 13 which stated that ‘nothing in this Article shall apply to any amendment of this Constitution made under Article 368’.
  2. The heading of Article 368 was changed from ‘Procedure for amendment of the Constitution” to ‘Power of Parliament to amend the Constitution and Procedure’.
  3. An obligation was put on the President to give this assent to all the bills for amending the Constitution by stating that, ‘it shall be presented to the President for his assent and upon such assent being given to the Bill’ from ‘it shall be presented to the President who shall give his assent to the Bill and thereupon’.

This historic judgment was delivered by a 13-judge bench, with the majority ratio of 7:6. This case overruled the Golak Nath case. In this case, it was held that the power to amend the Constitution lies with the Parliament and it extends to all the Articles but there are restrictions to that. The amendments so done should not destroy certain basic features or framework of the Constitution. However, the judges did not provide what constitutes the basic structure but they provided an illustrative list of what may constitute the basic structure.

As per Sikri, C.J., the basic structure constitutes the:

  • The supremacy of the Constitution
  • Republican and Democratic forms of Government
  • Secular and Federal character of the Constitution
  • Separation of Powers between the legislature, the Executive, and the Judiciary

Shelat and Grover, JJ., added:

  • Building a welfare state provided in the Directive Principles of State Policy
  • Maintenance of unity and integrity of India
  • The sovereignty of the country

Hegde and Mukherjee, JJ., further added:

  • The sovereignty and unity of India
  • The democratic character of the polity

The view of minority judges: Only six judges on the bench agreed on the very fact that the fundamental rights of the citizens belonged to the basic structure and Parliament does not have the power to amend it. The minority view delivered by Justice A.N. Ray, Justice M.H. Beg, Justice K.K. Mathew and Justice S.N. Dwivedi. Upholding the validity of all the three amendments challenged before the court, they agreed that Golaknath had been wrongly decided. According to them, one cannot distinguish between the fact that some parts of the Constitution are essential and some are not. All of them had the common opinion that under the power provided by Article 368, the Parliament can make amendments in the Constitution.

  • Indra Nehru Gandhi v. Raj Narain

This case established and affirmed the faith in the doctrine. An appeal was filed by the appellant against the Allahabad High Court decision, which invalidated her election as the Prime Minister. While the appeal was still pending before the Supreme Court, the 39th Amendment was enacted and enforced which stated that no court has jurisdiction over the election disputes of the Prime Minister, President, Vice President and Speaker of the Lok Sabha. Instead of that, a body constituted by Parliament would have the power to resolve such election disputes. Placing their reliance on the decision of Kesavananda Bharti judgement, The Hon’ble Supreme Court stated that democracy is an essential feature of the Constitution and it comes under the purview of the basic structure. The bench further added Rule of Law and the power of Judicial Review to the list of the basic structure.

  • Minerva Mills Ltd. v. Union of India

In this case the Supreme Court further provided clarity on the subject of doctrine. It observed that the power of amendment under Article 368 is limited and exercise of such power cannot be absolute. The basic structure doctrine of the Constitution includes the limited amending power. Further, the basic structure also includes the harmony and balance between fundamental rights and directive principles and any amendments that destroys this balance is an ipso facto violation of the doctrine. The power of judicial review of constitutional amendments was upheld by Chief Justice Y.V. Chandrachud and he also maintained that the Parliament has unlimited power to amend the Constitution under clauses (4) and (5) of Article 368. The dissenting judgement of Justice Bhagwati stated that any higher authority cannot have the right to claim to be the sole judge of its power and actions provided under the Constitution.

  • Waman Rao and Ors. Vs Union of India, 1981

In the Waman Rao case, with a majority of 4:1 the court held that amendments made in the 9th Schedule until the Kesavananda judgement were to be held valid, and those which were passed after that date will be subject to inspection. The court stated that the main aim of the Parliament behind the said provisions was to reduce the inequalities and economic gap in the society and encourage the development of the country. It further stated that the doctrine can only be applied to the law protected by the article and not on the article itself.

  • Indra Sawhney and Union of India, 1992

In this case, the Supreme Court examined the scope and extent of Article 16(4), favoring the job reservations for the backward classes. It upheld the constitutional validity provision of 27% reservation for the OBCs with certain conditions like the creamy layer exclusion, no reservation in promotion, and the total reserved quota must not exceed 50%. It was in this case that the ‘Rule of Law’ was added to the list of basic features of the constitution.

  • S.R. Bommai vs Union of India, 1994

In this landmark judgement, the Supreme Court tried to cut down the blatant misuse of Article 356 which provided the imposition of President’s Rule on states. The basic structure doctrine was applied in this case and the Supreme Court observed that any policy of a state government which is directed against an element of the basic structure of the Constitution can be considered as a valid ground for the exercise of the central power under Article 356.

Conclusion

The basic structure doctrine helps to maintain the fine balance between flexibility and rigidity present in the amending powers of the Constitution. Some of the core and essential features of the Constitution which have been upheld in the judgements of the apex court include the sovereign, democratic and secular character of the polity, the established rule of law, the independence of the judiciary and the fundamental rights of citizens etc. Between the tussle in Parliament and the judiciary, one thing that has become certain is that all the laws and constitutional amendments are now subject to judicial review and any law which transgresses the basic structure is likely to be struck down by the Supreme Court. The Parliament's power to amend the Constitution isn’t absolute and therefore the Supreme Court is still considered as the final interpreter of all constitutional amendments.


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