The ‘Doctrine of Basic Structure’ is a judge-made doctrine which was propounded by the Indian Judiciary on 24th April 1973 in Keshavananda Bharati Sripadagalvaru case to put a limitation on the amending powers of the Parliament so that the ‘basic structure of the basic law of the land’ cannot be amended in exercise of its ‘constituent power’ under the Constitution.
The basic structure of the Constitution of India applies only to constitutional amendments, which states that the Parliament cannot destroy or alter the basic features of the Indian Constitution. This feature includes:
(1) Supremacy of the constitution.
(2) Republican and democratic form of govt.
(3) Secular character of constitution.
(4) Separation of power.
(5) Federal character of constitution.
Importance of the Basic Structure
The basic structure limitation comes out of the realization that the only way to safeguard the Constitution from opportunistic destruction and defilement by temporary majorities in Parliament is to reject those amendments which go to tarnish its identity. It arises out of the need to strengthen the Constitution and to prevent its destruction by a temporary majority in Parliament. The Court cannot impose on society anything it considers to be basic. What the judges consider to be basic structure must meet the requirement of national consciousness about the basic structure. Whatever may be the merits or demerits of judicial review, to an extent, the basic structure limitation upon the constituent power has helped arrest such forces to some extent and to stabilize the democracy.
Evolution of Basic Structure Theory
The concept of the basic structure of the constitution evolved over time. In this section, we shall discuss this evolution with the help of some landmark judgment related to this doctrine.
- In Sri Sankari Prasad Singh Deo vs. Union Of India And State Of Bihar and others[i],the SC contended that the Parliament’s power of amending the Constitution under Article 368 included the power to amend the Fundamental Rights guaranteed in Part III as well.
- In Sajjan Singh vs. State Of Rajasthan[ii] also, the SC held that the Parliament can amend any part of the Constitution including the Fundamental Rights. It is noteworthy to point out that two dissenting judges, in this case, remarked whether the fundamental rights of citizens could become a plaything of the majority party in Parliament.
- In addition to this, In the case of I. C. Golaknath & Ors vs. State Of Punjab & Anrs[iii] the court reversed its earlier stance that the Fundamental Rights can be amended. It said that Fundamental Rights are not amenable to the Parliamentary restriction as stated in Article 13 and that to amend the Fundamental rights a new Constituent Assembly would be required.
Also, stated that Article 368 gives the procedure to amend the Constitution but does not confer on Parliament the power to amend the Constitution. This case conferred upon Fundamental Rights a ‘Transcendental Position’. The majority judgment called upon the concept of implied limitations on the power of the Parliament to amend the Constitution. As per this view, the Constitution gives a place of permanence to the fundamental freedoms of the citizens. In giving to themselves the Constitution, the people had reserved these rights for themselves.
- Kesavananda Bharati Sripadagalvaru and Ors vs. State of Kerala and Anr[iv] This was a landmark case in defining the concept of the basic structure doctrine. The SC held that although no part of the Constitution, including Fundamental Rights, was beyond the Parliament’s amending power, the “basic structure of the Constitution could not be abrogated even by a constitutional amendment.”
The judgment implied that the parliament can only amend the constitution and not rewrite it. The power to amend is not a power to destroy. This is the basis in Indian law in which the judiciary can strike down any amendment passed by Parliament that is in conflict with the basic structure of the Constitution.
- In Indira Nehru Gandhi vs Shri Raj Narain & Anr[v] the SC applied the theory of basic structure and struck down Clause(4) of Article 329-A, which was inserted by the 39th Amendment in 1975 on the grounds that it was beyond the Parliament’s amending power as it destroyed the Constitution’s basic features. 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.
- Moreover, Minerva Mills Ltd. & Ors vs Union Of India & Ors[vi] 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 judgment 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.
- In Waman Rao And Ors vs. Union Of India And Ors[vii] The SC again reiterated the Basic Structure doctrine. It also drew a line of demarcation as April 24th, 1973 i.e., the date of the Kesavananda Bharati judgment, 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.
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.
This was done in order to prevent them from being challenged in court.
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. 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.
- In Indra Sawhney vs. Union Of India And Others[viii] 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.
- In R. Bommai vs Union Of India[ix] 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.
The Tussle between Parliament and the judiciary
In the early 1970s, the government of then Prime Minister Indira Gandhi had enacted major amendments to the Constitution (the 24th, 25th, 26th and 29th) to get over the judgments of the Supreme Court in RC Cooper (1970), Madhavrao Scindia (1970) and the earlier mentioned Golaknath case.
In RC Cooper vs. Union of India[x], the court had struck down Indira Gandhi’s bank nationalization policy.
In Madhavrao Scindia vs. Union of India[xi] it had annulled the abolition of privy purses of former rulers.
All the four amendments, as well as the Golaknath judgment, came under challenge in the Kesavananda Bharati case where relief was sought by the religious figure Swami Kesavananda Bharati against the Kerala government vis-à-vis two state land reform laws. Since Golaknath was decided by eleven judges, a larger bench was required to test its correctness, and thus 13 judges formed the Kesavananda bench.
(Author: Rajat Kumar, pursuing B.Com LLB from Rayat Bahra University, Mohali.)
[i] 1951 AIR 458
[ii] 1965 AIR 845
[iii] 1967 AIR 1643
[iv] (1973) 4 SCC 225
[v] 1975 AIR 1590
[vi] 1980 AIR 1789
[vii] (1981) 2 SCC 362
[viii] AIR 1993 SC 477
[ix] 1994 AIR 1918
[x] 1970 AIR 564
[xi] 1971 AIR 530
