In our democratic society, the Constitution of India holds special importance as it binds all citizens and governs their lives as per the ideals of our forefathers. It was drafted a long ago and various socio-economic changes occurred in our environment after that. So, it was important for us to keep up with the new developments and make amendments to the constitution. However, it is equally important to note that during this process, we also needed to ensure that the basic ideals of our legal system shall remain protected. Thus, to strike a balance between the power to amend the constitution and maintain the identity of our legal system, a new doctrine named “The Doctrine of Basic Structure of Indian Constitution” was adopted by our jurists.
This Basic Structure doctrine of the Indian Constitution enables to defence and maintain the spirit of the charter document. It became the Kesavananda Bharati case that added this doctrine into the limelight.
It held that the “primary shape of the Indian Constitution couldn’t be abrogated even through a constitutional amendment”.
In this article, we will explore the meaning and evolution of this doctrine along with The Doctrine of Basic Structure of the Indian Constitution.
The Doctrine of Basic Structure
As per the Doctrine of Basic Structure of the Indian Constitution, there are certain features of the Constitution, which cannot be amended by the parliament under Article 368 of the Constitution. These features are known as the basic structure, basic elements or fundamental features of the constitution. Any constitutional amendment or new law will be declared unconstitutional if it violates the basic features of the Constitution. These basic features include the rule of law, democracy, secularism, federalism, parliamentary form of government, etc. It is important to note that this doctrine is nowhere mentioned in the constitution itself but it was developed after a series of cases in the Kesavananda Bharati case of 1973.
Evolution of Doctrine of Basic Structure
The Doctrine of Basic Structure of Indian Constitution emerged due to the sharp conflict between Parliament and the judiciary after the independence. The government was enacting various laws with the aim of land reformation to achieve its goal of socialism. The judiciary on the other hand struck down these laws as they were violating constitutional provisions.
To tackle this, the government enacted the First and Fourth Amendments and added Schedule 9 to the Constitution which put these laws outside the scope of judicial review. So, the main question before the judiciary was whether the parliament has unlimited power to amend the constitution under Article 368 of the constitution or not.
The series of judgements started in the Shankari Prasad Deo vs. Union of India (1952), wherein the Supreme Court held that the parliament can amend any part of the constitution without any limitation. The court held that restrictions under Article 13(2) will not apply to the amendments under Article 368 of the constitution. Similarly in Sajjan Singh vs the State of Punjab, the Supreme Court again stated that the Parliament had unlimited powers to amend the constitution which also include taking away fundamental rights also.
The 11 judge bench of the Supreme Court in the Golak Nath case took an altogether different stance from the earlier judgements. The bench with a 6:5 majority stated that there are some implied limitations on the parliament to amend the constitution. It stated that Article 368 only talks about the procedure and it in no way empowers the parliament to take away the fundamental rights through an amendment. The decision of Golak Nath was a big blow to the Indira Gandhi government and therefore it enacted the 24th amendment to nullify the judgement of Golak Nath. Through this amendment, a new clause was added in Article 13 which gave unlimited power to the Parliament to amend the constitution.
The controversy was finally settled in the Kesavananda Bharati v. State of Kerala case (1973) wherein a 13 Judge bench heard the validity of the 24th Amendment. The bench with a 7:6 majority overruled the Golaknath Judgement and held 24th Amendment valid. The Bench stated that the Parliament could amend any part of the constitution but the amendment should not affect the basic structure of the Constitution. However, it is important to note that the court didn’t define the exact meaning of basic structure and nor does it provide any method to identify it. The “basic structure doctrine” was left open for interpretation for future cases.
Interpreting the Scope of Basic Structure Doctrine
The applicability of the Doctrine of Basic Structure of the Indian Constitution came before the Hon’ble Supreme Court for the first time in Indira Gandhi vs Raj Narain Case (popularly known as the election case). In this case, the question was related to the validity of the 39th Amendment by which the electoral dispute of the Prime Minister, President of India, vice president and speaker of Lok Sabha was put beyond the scope of judicial review.
The court stated that the 39th Amendment is invalid as it violated the 2 core elements of the basic structure of the Constitution. These elements were Democracy and the Rule of Law. The court stated that equality, free and fair elections and popular sovereignty come under the scope of democracy.
The term “ Rule of Law” mainly involves 3 elements. Firstly, there shall be the supremacy of law. The parliament and the executive need to ensure that all their actions shall be in accordance with the well-established provisions of the constitution. Secondly, there shall be a principle of equality that states that the law shall be enforced in a just and fair manner. There shall be no discrimination on the grounds of sex, caste, birth, etc. Lastly, there shall be the predominance of legal spirit wherein the court are the enforcers of law and they must be impartial and free from influence. It is very essential that there shall be no arbitrariness in government action.
Judicial Review as Part of Basic Structure
The 42nd Amendment of 1976 has curtailed the power of courts to examine the validity of parliamentary amendments The Supreme Court in Minerva Mills vs Union of India was faced with the issue of whether the power of judicial review can be abolished through a constitutional amendment.
The court explicitly stated that judicial review is a part of the basic structure of the constitution. It was stated that judicial review is very essential for maintaining the balance of power between various organs of the constitution and its absence will lead to the death of democracy and rule of law. Thus, the court struck off the provision of the 42nd Amendment. Further, in L.Chandra Kumar vs Union of India, It was held that the right to approach Supreme Court under Article 32 and High court under Article 226 also comes under the scope of basic structure.
Independence of Judiciary as Part of Basic Structure Doctrine
It is evident from our historical experience that the parliament and executive always try to influence the working of the judiciary. In Shri Kumar Padma Prasad v. Union of India, the issue was regarding the appointment of a Judge of a High court. The Supreme court in the case clearly held that the independence of the Judiciary is a cardinal principle of our democracy. Further, in the Supreme Court’s Advocates-on-Record vs. Union of India, the court reiterated the same and stated that the independence of the judiciary is a part of the basic structure of the constitution as it is very essential to strike a balance between various organs of a democratic society. Recently, the Supreme court declared the “National Judicial Appointment Commission” unconstitutional as it was against the principle of Independence of the Judiciary. Read more about the Independence of the Judiciary.
Secularism and Federalism as part of Basic Structure
In S. R Bommai vs Union of India, 1994, the Supreme Court while interpreting Article 356 held that Secularism and federalism are part of the basic structure of the constitution and can never be abrogated. The court stated that “secularism” is an important element for determining the validity of action under Article 356. Further, the president shall not use their power in a manner to undermine the federal structure of the Constitution.
Importance of the Basic Structure Doctrine
The Doctrine of basic structure is very important for maintaining a balance between the needs of a changing environment and the spirit of our legal system. This doctrine put a check on the workings of the government and ensured that it didn’t adopt extreme steps in the greed of power. In the absence of this doctrine, the parliament would have unlimited power to amend the constitution and it may use it arbitrarily to satisfy its interest. They might change the concept of separation of power and amend the democratic status of our country to a dictatorship or hereditary monarch. Finally, this doctrine played a very crucial role in determining the validity of various constitutional amendments.
Criticism of the Doctrine of Basic Structure
- The most common criticism of the introductory structure doctrine is that there has been no base for the doctrine in the language of the It has no textual base. There’s an absence of a provision that can stipulate that the Constitution has an introductory structure beyond the capability of amending power.
- Another pivotal review of the Basic Structure Doctrine lies in the study that the doctrine is infelicitous and indeed destructive to indigenous legality.
- It’s inconsistent with the conception of the separation of Powers
- It’s a matter of subjectivity. It’s seen that the introductory structure doctrine gets defined else by different judges grounded on their private satisfaction. This leaves the decision to decide the validity or invalidity of indigenous emendations told on the particular preferences of judges who also acquire the power to amend the Constitution.
- Another review of the introductory structure doctrine is that it makes the bar the third decisive chamber of the Parliament.
- The introductory structure doctrine has also been criticised because it accords power to the bar that allows it to put its gospel on a government that’s formed democratically. There’s also a lack of definite explanation as to what constitutes the introductory structure, thereby leaving the doctrine
- Lately, the doctrine has been called upon in cases regarded as incidents of judicial overreach like the NJAC bill was declared null and void by the Supreme Court grounded on this doctrine.
24th constitutional Amendment
The Golak Nath case left the Parliament without its powers to amend the Constitution freely, consequently to repair the sooner role; the 24th Constitutional Amendment become added forth. The Amendment Act now no longer simplest restored the sooner role but prolonged the powers of Parliament. The following modifications have been made thru the modification:
- A new clause (4) becomes brought to Article thirteen which said that ‘not anything on this Article shall follow to any modification of this Constitution made below Article 368’.
- The marginal heading of Article 368 becomes modified to ‘Power of Parliament to amend the Constitution and Procedure, consequently’ from ‘Procedure for modification of the Constitution.
- Article 368 becomes supplied with a brand-new sub-clause (1) which read ‘however whatever on this Constitution, Parliament may, withinside the workout of its Constituent Power amend through manner of addition, variation, or repeal any provision of this Constitution according with the process laid down on this Article.
- President becomes positioned below a duty to present assent to any Bill amending the Constitution through converting phrases from ‘it will be offered to the President who shall supply his assent to the Bill and thereupon’ to ‘it will be offered to the President for his assent and upon such assent being given to the Bill’.
- A reassuring clause (3) become additionally brought to Article 368, which once more clarified that ‘not anything in Article thirteen shall follow to any modification made below this Article.
Case Laws Related to Basic Structure
Shankari Prasad Case (1951)
In this example, the SC contended that the Parliament’s power of amending the Constitution below Article 368 covered the power to amend the Fundamental Rights assured in Part III as well. Sajjan Singh case (1965) In this example additionally, the SC held that the Parliament can amend any part of the Constitution consisting of the Fundamental Rights. It is noteworthy to point out that two dissenting judges, in this case, remarked on whether the fundamental rights of citizens could become a plaything of the majority party in Parliament.
Golaknath case (1967)
In this example, the courtroom reversed in the advanced stance that the Fundamental Rights may be amended. It stated that Fundamental Rights aren’t amenable to the Parliamentary restriction as said in Article thirteen and that to amend the Fundamental rights a brand-new Constituent Assembly could be required. Also said that Article 368 offers the system to amend the Constitution however now no longer confers on Parliament the energy to amend the Constitution.
This case conferred upon Fundamental Rights a ‘transcendental position. The majority judgement referred to as upon the idea of implied boundaries at the energy of the Parliament to amend the Constitution. In step with this view, the Constitution offers an area of permanence to the essential freedoms of the residents. In giving to themselves the Constitution, human beings had reserved those rights for themselves.
Kesavananda Bharati case (1973)
This changed into a landmark case in defining the idea of the primary shape doctrine. The SC held that even though not a part of the Constitution, consisting of Fundamental Rights, changed past the Parliament’s amending energy, the “primary shape of the Constitution couldn’t be abrogated even with the aid of using a constitutional change.” The judgement implied that the parliament can most effectively amend the charter and now no longer rewrite it. The energy to amend isn’t the energy to destroy. This is the premise in Indian regulation wherein the judiciary can strike down any change surpassed with the aid of using Parliament this is in battle with the primary shape of the Constitution.
Indira Nehru Gandhi v. Raj Narain case (1975)
Here, the SC carried out the idea of the primary shape and struck down Clause (4) of Article 329-A, which changed into inserted with the aid of using the thirty-ninth Amendment in 1975 on account that it changed past the Parliament’s amending energy because it destroyed the Constitution’s primary capabilities. The thirty-ninth Amendment Act changed surpassed with the aid of using the Parliament in the course of the Emergency Period. This Act located the election of the President, the Vice President, the Prime Minister and the Speaker of the Lok Sabha past the scrutiny of the judiciary. This changed into execution with the aid of using the authorities to suppress Indira Gandhi’s prosecution with the aid of using the Allahabad High Court for corrupt electoral practices.
Minerva Mills case (1980)
This case once more strengthens the Basic Structure doctrine. The judgement struck down 2 modifications made to the Constitution with the aid of using the forty-second Amendment Act 1976, affirming them to be violative of the primary shape. The judgement makes it clear that the Constitution and now no longer the Parliament is supreme. In this example, the Court delivered capabilities to the listing of primary shape capabilities. They were: judicial assessment and stability among Fundamental Rights and DPSP. The judges dominated that a restrained amending energy itself is a primary characteristic of the Constitution.
Waman Rao Case (1981)
The SC once more reiterated the Basic Structure doctrine. It additionally drew a line of demarcation as April 24th, 1973 i.e., the date of the Kesavananda Bharati judgement, and held that it ought to now no longer be carried out retrospectively to reopen the validity of any change to the Constitution which befell previous to that date. In the Kesavananda Bharati case, the petitioner had challenged the Constitution (Twenty-ninth Amendments) Act, 1972, which located the Kerala Land Reforms Act, 1963 and its amending Act into the ninth Schedule of the Constitution.
The ninth Schedule changed into delivered to the Constitution with the aid of using the First Amendment in 1951 together with Article 31- B to offer a “defensive umbrella” to land reforms legal guidelines. This changed into execution to save them from being challenged in the courtroom docket. Article 13(2) says that the nation shall now no longer make any regulation inconsistent with essential rights and any regulation made in contravention of essential rights will be void.
Now, Article 31-B protects legal guidelines from the above scrutiny. Laws enacted below it and located inside the Ninth Schedule are proof against undertaking in a courtroom docket, even though they move in opposition to essential rights. The Waman Rao case held that amendments made to the ninth Schedule till the Kesavananda judgement are legitimate, and people surpassed after that date may be a challenge to scrutiny.
Indra Sawhney and Union of India (1992)
SC tested the scope and volume of Article 16(4), which presents the reservation of jobs in favour of backward classes. It upheld the constitutional validity of 27% reservation for the OBCs with sure conditions (like creamy layer exclusion, no reservation in promotion, overall reserved quota ought to now no longer exceed 50%, etc.) Here, ‘Rule of Law’ changed into delivered to the listing of primary capabilities of the constitution.
S.R. Bommai case (1994)
In this judgement, the SC attempted to reduce the blatant misuse of Article 356 (concerning the imposition of the President’s Rule on states). In this example, there has been no doubt of constitutional change however, even so, the idea of primary doctrine changed carried out. The Supreme Court held that rules of a nation’s authorities directed in opposition to the detail of the primary shape of the Constitution could be a legitimate floor for the exercising of the vital energy below Article 356.
Conclusion
The Doctrine of Basic Structure of the Indian Constitution evolved in the Kesavananda Bharati case after a continuous period of conflict between the Judiciary and Parliament. There is no concrete definition for this term and different judges have different opinions about it. However, one common view is that the parliament has no power to destroy the basic features of the constitution. This doctrine keeps aside core constitutional elements and values from the amendment-making power of the parliament. Finally, It is important to note that the judiciary hasn’t closed the box of “basic structure” and new elements can be added as per the needs of our progressive society.