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Basic Structure Doctrine
Political science (BA Honours)
University of Delhi
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Basic Structure Doctrine
The basic structure doctrine is one of the fundamental judicial principles connected with the Indian Constitution.
The doctrine of the basic structure holds that there is a basic structure to the Indian Constitution, and the Parliament of India cannot amend the basic features.
It was in the Kesanvnda Bharati vs State of Kerala case, the Constitutional Bench of the Supreme Court ruled by a 7-6 verdict that Parliament could amend any part of the Constitution so long as it did not alter or amend the basic structure or essential features of the Constitution.
What is the Basic Structure Doctrine?
Indian Constitution is a dynamic document that can be amended according to the needs of society whenever required. Constitution under Article 368 grants power to the Parliament to amend whenever there is a necessity. The Article also lays down the procedure for amendment in detail.
The doctrine of basic structure is nothing but a judicial innovation to ensure that the power of amendment is not misused by Parliament. The idea is that the basic features of the Constitution of India should not be altered to an extent that the identity of the Constitution is lost in the process.
Indian Constitution upholds certain principles which are the governing rules for the Parliament, any amendment cannot change these principles and this is what the doctrine of basic structure upholds. The doctrine as we have today was not present always but over the years it has been propounded and upheld by the judicial officers of this country.
In this article, we would dwell in detail on the evolution of the doctrine of basic structure and what are the features of the Constitution of India that have been regarded as part of the basic structure by the hon’ble court
Timeline for Evolution of Basic Structure
Pre – Golak Nath Era
The Constitution of India was amended as early as 1951, which introduced the much-debated Article(s) 31A and 31B to it. Article 31B created the 9th Schedule which stated that any law provided under it could not be challenged for the violation of Fundamental Rights as per Article 13(2) of the Constitution. Article 13(2) states that the Parliament shall not draft any law which abridges the rights conferred under Part III and to that extent it shall be void.
A petition was filed in the Supreme Court of India challenging Article(s) 31A and 31B on the ground that they abridge or take away rights guaranteed under Part III of the Constitution which is against the spirit of Article 13(2) and hence should be declared void. In this case, Shankari Prasad Singh Deo v. Union of India, the Hon’ble Supreme Court held that the power to amend the Constitution including the Fundamental Rights is conferred under Article 368, and the word ‘Law’ as mentioned under Article 13(2) does not include an amendment of the Constitution. There is a distinction between Parliament’s law-making power, that is, the legislative power and Parliament’s power to amend or constituent powers.
After this, several amendments were brought to the Constitution and once again the scope of amendments was challenged in the Sajjan Singh v. State of Rajasthan. The five-judge bench in Sajjan Singh dealt with the validity of the 17th Constitutional Amendment which had added around 44 statutes to the 9 th Schedule. Though all of the judges agreed with the decision of Shankari Prasad but for the first time in the concurring opinion by Hidyatullah and Mudholkar JJ doubts were raised on the unfettered power of Parliament to amend the Constitution and curtail the fundamental rights of the citizens.
Golak Nath v. the State of Punjab
In this case, three writ petitions were clubbed together. The first one was by children of Golak Nath, against the inclusion of the Punjab Security of Land Tenures Act, 1953 in the Ninth Schedule.
The marginal heading of Article 368 was changed to ‘Power of Parliament to amend the Constitution and Procedure, therefore’ from ‘Procedure for amendment of the Constitution. Article 368 was provided with a new sub-clause (1) which read ‘notwithstanding anything in this Constitution, Parliament may, in the exercise of its Constituent Power amend by way of addition, variation, or repeal any provision of this Constitution in accordance with the procedure laid down in this Article. President was put under an obligation to give assent to any Bill amending the Constitution by changing words from ‘it shall be presented to the President who shall give his assent to the Bill and thereupon’ to ‘it shall be presented to the President for his assent and upon such assent being given to the Bill’. A reassuring clause (3) was also added to Article 368, which again clarified that ‘nothing in Article 13 shall apply to any amendment made under this Article.
Kesvananda Bharati v. the State of Kerala
This case was initially filed to challenge the validity of the Kerala Land Reforms Act, 1963. But the 29th Amendment of the Constitution placed it under the Ninth Schedule. The petitioner was permitted to not only challenge the 29th Amendment but also the validity of the 24th and 25th Amendments.
The historic judgment was delivered by a 13 judge bench and with the majority of 7:6; they overruled the Golak Nath case. It was held that the power of Parliament to amend the Constitution is far and wide and extends to all the Articles but it is not unlimited to an extent that it destroys certain basic features or framework of the Constitution.
The Hon’ble Supreme Court, however, held that the 24 th Amendment was valid as it only states what was present before implicitly. It does not enlarge the powers of Parliament; Article 368 always included the power and procedure to amend the Constitution.
The judges did not provide what constitutes the basic structure but provided an illustrative list of what may constitute the basic
structure. As per Sikri, C., the basic structure constitutes the following elements:
The supremacy of the Constitution Republican and Democratic forms of Government Secular character of the Constitution Separation of Powers between the legislature, the Executive, and the Judiciary Federal Character of the Constitution
Shelat and Grover, JJ., added the following to the above list:
The mandate to build a welfare state contained in the Directive Principles of State Policy Maintenance of the unity and integrity of India The sovereignty of the country
Hegde and Mukherjee, JJ., had their list of the elements of the basic structure, which included:
The sovereignty of India The democratic character of the polity The unity of the country Essential features of individual freedom The mandate to build a welfare state
Whereas Jaganmohan Redd, J., believed that it was the Preamble that laid down the basic features of the Constitution, which are:
A sovereign democratic republic The provision of social, economic, and political justice Liberty of thought, expression, belief, faith, and worship Equality of status and opportunity
After this judgment, the general opinion was that the judiciary is trying to create an overhaul over the Parliament, but soon an opportunity was laid down before the Court to examine the doctrine.
Evolution of Basic Structure Doctrine
Certain contents have been reaffirmed again and again by the Courts whereas some of them are still in the process of deliberations.
The basic structure doctrine grants the fine balance between flexibility and rigidity that should be present in the amending powers of any Constitution.
According to the Indian Constitution, the Parliament and the State Legislatures can make laws within their jurisdictions. The power to amend the Constitution is only with the Parliament and not the state legislative assemblies. However, this power of the Parliament is not absolute. The Supreme Court has the power to declare any law that it finds unconstitutional void. As per the Basic Structure Doctrine of the Indian Constitution, any amendment that tries to change the basic structure of the constitution is invalid. This is a very important topic for the polity section in the UPSC syllabus.
What is the Basic Structure Doctrine of Indian
Constitution?
There is no mention of the term “Basic Structure” anywhere in the Constitution of India. The idea that the Parliament cannot introduce laws that would amend the basic structure of the constitution evolved gradually over time and many cases. The idea is to preserve the nature of Indian democracy and protect the rights and liberties of people. This Basic Structure doctrine of the Indian Constitution helps to protect and preserve the spirit of the constitution document.
It was the Kesavananda Bharati case that brought this doctrine into the limelight. It held that the “basic structure of the Indian Constitution could not be abrogated even by a constitutional amendment”. The judgement listed some basic structures of the constitution as:
- Supremacy of the Constitution
- Unity and sovereignty of India
- Democratic and republican form of government
- Federal character of the Constitution
- Secular character of the Constitution
- Separation of power
- Individual freedom
Over time, many other features have also been added to this list of basic structural features. Some of them are:
Rule of law Judicial review Parliamentary system Rule of equality Harmony and balance between the Fundamental Rights and DPSP Free and fair elections Limited power of the parliament to amend the Constitution Power of the Supreme Court of India under Articles 32, 136, 142 and 147 Power of the High Court under Articles 226 and 227 Any law or amendment that violates these principles can be struck down by the SC on the grounds that they distort the basic structure of the Constitution.
The 39th Amendment Act was passed by the Parliament during the Emergency Period. This Act placed the election of the President, the Vice President, the Prime Minister and the Speaker of the Lok Sabha beyond the scrutiny of the judiciary. This was done by the government in order to suppress Indira Gandhi’s prosecution by the Allahabad High Court for corrupt electoral practices. Minerva Mills case (1980)
This case again strengthens the Basic Structure doctrine. The judgement struck down 2 changes made to the Constitution by the 42nd Amendment Act 1976 , declaring them to be violative of the basic structure. The judgement makes it clear that the Constitution, and not the Parliament is supreme. In this case, the Court added two features to the list of basic structure features. They were: judicial review and balance between Fundamental Rights and DPSP. The judges ruled that a limited amending power itself is a basic feature of the Constitution. Waman Rao Case (1981)
The SC again reiterated the Basic Structure doctrine. It also drew a line of demarcation as April 24th, 1973 i., the date of the Kesavananda Bharati judgement, and held that it should not be applied retrospectively to reopen the validity of any amendment to the Constitution which took place prior to that date. In the Kesavananda Bharati case, the petitioner had challenged the Constitution (29th Amendment) Act, 1972, which placed the Kerala Land Reforms Act, 1963 and its amending Act into the 9th Schedule of the Constitution.
o The 9th Schedule was added to the Constitution by the First Amendment in 1951 along with Article 31-B to provide a “protective umbrella” to land reforms laws. o This was done in order to prevent them from being challenged in court. o Article 13(2) says that the state shall not make any law inconsistent with fundamental rights and any law made in contravention of fundamental rights shall be void. o Now, Article 31-B protects laws from the above scrutiny. Laws enacted under it and placed in the 9th Schedule are immune to challenge in a court, even if they go against fundamental rights. The Waman Rao case held that amendments made to the 9th Schedule until the Kesavananda judgement are valid, and those passed after that date can be subject to scrutiny. Indra Sawhney and Union of India (1992)
SC examined the scope and extent of Article 16(4), which provides for the reservation of jobs in favour of backward classes. It upheld the constitutional validity of 27% reservation for the OBCs with certain conditions (like creamy layer exclusion, no reservation in promotion, total reserved quota should not exceed 50%, etc.) Here, ‘Rule of Law’ was added to the list of basic features of the constitution.
S. Bommai case (1994)
In this judgement, the SC tried to curb the blatant misuse of Article 356 (regarding the imposition of President’s Rule on states). In this case, there was no question of constitutional amendment but even so, the concept of basic doctrine was applied. The Supreme Court held that policies of a state government directed against an element of the basic structure of the Constitution would be a valid ground for the exercise of the central power under Article 356. Read more on the SR Bommai case here.
The doctrine of the basic structure helps to prevent legislative excesses, as was evident in the Emergence Era. This is required as a shield against an all-powerful parliament, which can resort to overuse of Article 368. There is another school of thought, however, that says that if amendments help a constitution to survive, they must include changes in the allegedly basic part of the Constitution.
UPSC Questions related to Basic Structure Doctrine of
Indian Constitution
Which famous case involved the term basic structure
doctrine of the Indian Constitution?
Kesavananda Bharati case in 1973
Can Parliament change the basic structure doctrine of the
Indian Constitution?
Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.
Is Preamble part of the basic structure doctrine of the Indian
Constitution?
As per the SR Bommai case, the Preamble indicates a basic structure of the constitution.
Basic Structure Doctrine
Course: Political science (BA Honours)
University: University of Delhi
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