Priyanshi Srivastava
SVKM’s NMIMS School of Law, Mumbai
What is the Basic Structure Doctrine?
Judiciary has played a vital role in the interpretation of the Constitution of India. Many amendments in the Constitution of India were made by the Parliament of India which infringed the Basic Structure Doctrine. It is the judiciary that has tried its level best in nourishing the basic structure of the Indian Constitution. Our Constitutional jurisprudence involves the basic structure theory which plays a vital role in building up our constitution. The constitution of India was brought into force on 26th January 1950. The principle of this doctrine is totally based on the amending power of the constitution which lies with the parliament.The doctrine of basic structure was established because of the question that whether Article 368 is more powerful than Article 13? The doctrine was provided by Supreme Court in the case of Kesavananda Bharti vs. state of Kerala and others in 1973 wherein a 13 judges bench gave a historic decision which lead to a change in the history of the constitution in which the SC observed that the Indian constitution did not allow the parliament to amend every part of the constitution under Article 368. This means that certain parts of the constitution of India are beyond the amending power of the parliament. The case focused on the uncontrolled power of the parliament and has restricted the parliamentary powers through the basic structure doctrine.
Evolution:
The term basic structure is not listed under the constitution of India, but has gradually evolved with the judiciary taking various decisions in several landmark judgements. This started with two articles of the constitution: Article 13 and Article 368. Article 13 is the protector of fundamental rights which means the Supreme Court can declare any law null & void if it violates any fundamental right whereas in contrary to the statement Article 368 gives the power to the parliament to amend the constitution. The conflict started from these articles that which article is supreme that is judiciary as per Article 13 or the parliament as per Article 368, to (Prateek, 2008) find the answer for this supremacy the doctrine of basic structure was created. The amendment power for the fundamental rights were given to parliament but in the year 1951 they were challenged because of the reason that many laws related to agrarian land reform were passed to reform land ownership & tenancy . The adversely affected land owners came to the court declared it unconstitutional responding to this the parliament placed these laws in Ninth Schedule of the constitution and hence made them immune from the judicial review through the First and Fourth Constitutional Amendment. It evolved from the question that whether fundamental rights can be amended by the parliament through Article 368 and this question came for the consideration in the case of Shankari Prasad Vs Union of India, 1951. In this case the constitutional ( First Amendment ), 1951 was challenged and it was said that this amendment takes away our right to property which is mentioned under Article 31 of the constitution. This case focused on the term “Law” which is in Article13 which states that, “The State shall not make any ‘law’ which takes away or abridges the rights conferred by this article and any law made in contravention of this clause shall, to the extent of the contravention, be void.” Here the term any law even means the law amending the constitution and hence the SC can uphold the validity of the First amendment of the constitution, but the court rejected the contention and limited the scope of Article 13 and said the term any law (Mohanty, 2019) means the ordinary legislative power could not be extended till amendments and henceforth declared that the parliament can amend any article of the constitution including the fundamental rights . But in the year of 1973 the SC held in the case of Kesavananda Bharti vs State of Kerala, 1971 that the parliament has the power to amend the constitution but while doing so it cannot amend the Basic Structure of the Constitution (i.e. the fundamental rights of our constitution), further widening the scope of law in Article 13 the SC stated that the word ‘amend’ under Article 368 could not include altering the basic structure. This is how evolution of basic structure happened and there are many cases in between but they will be discussed clearly under the land mark judgment sub section.
Salient Features:
When analysis of several case laws was done the constituents of the basic structure came into picture as the Supreme Court has yet not given a (007_Phantom of Basic Structure of the Constitution (243-269).Pdf, n.d.) proper definition to the term basic structure but its features have been articulated from several important case laws.
Features of basic structure are:
- Supremacy of the constitution – which means supreme above all.
- Sovereign, democratic and republic in nature
- Secular character of the Constitution- means constitution does not favor any religion.
- Separation of power between the Legislative, Executive and Judiciary
- Federal character of the constitution- means there should be different government between States and Unions.
- Unity and Integrity of the nation
- Parliamentary system
- Welfare State (socio-economic justice)
- Judicial review
- Freedom and dignity of the individual
- Rule of Law
- Harmony and balance between Fundament rights and DPSP
- Free and fair elections
- Independent Judiciary
- Limited power of Parliament to amend the Constitution
- Effective access to justice
- Principle of reasonableness
- Powers of the Supreme Court under Articles 32, 136, 141, 1426.
LANDMARK JUDGEMENTS
JUDGEMENTS
- Shankari Prasad Vs. Union of India, 1951(AIR 1951 SC 458)
In this case the first constitutional amendment act was challenged. The First Amendment Act is widely known as the abolition of the zamindari system in this amendment act there were certain laws which were brought about which were curtailing the Right to Property and in order to protect those laws Article31A and 31b were inserted into the constitution so people started looking these articles as an attach to there right to property . But the judgment followed that under Article13(2) the word ‘law’ can be only interpreted in ordinary sense and hence the Parliament under Article 368 has the power to amend the constitution.
- Sajjan Singh Vs. State of Rajasthan, 1965 (AIR 1965 SC 845)
In this case the 17th Constitutional Amendment was challenged because of the reason it was restricting the power of the High Court . The judgement followed the previous judgment that is Shankari Prasad Vs. Union of India, 1951 and said that the meaning of the word amendment of the constitution under Article368 meant amendment of any article of the constitution including the fundamental rights.
- Golak Nath Vs. State of Punjab, 1967(AIR 1967 SC 1643, 1967(o) GLHEL-SC 15172)
In this case again the 17th Constitutional Amendment was challenged and also put forwarded a question that whether the amendment power is limited or unlimited it was a famous case because of the reason,11 judges bench was (Gupta, 2016)constituted such a large bench was constituted for the first time. The Judgement followed that the power to amend the constitution including the fundamental rights is not an unlimited power it is subject to limitation of the judicial review. The SC went ahead and said the parliament does not have any power to amend and abridge the FR in the way of amendment , further the SC widens the ambit of Art13(2) and said that here the term law includes amendment.
- Kesavananda Bharti Vs. State of Kerala,1971(AIR 1973 SC 1461, 1973(o) GLHEL-SC 11285)
In this case the 24th amendment act was challenged and the question arose that what is the scope of amendment that the parliament reserves, this time the supreme court has given a very balanced judgement and they said that the power to amend the constitution was already implicit in the constitution, the constitutional(Kesavananda Bharati v. State of Kerala and The Basic Structure Doctrine, 2017) amendment act merely made it explicit or declaratory however they said that the basic features cannot be amended and hence the entire constitution can be amended but it should survive through its basic feature therefore the basic structure cannot be amended. Also with respect to the scope of amendment the SC said that it was not the intention of the makers to use the word amendment in its widest sense it was there intention and belief that fundamental rights along with fundamental feature will always survive in a welfare state.
- Indira Gandhi Vs. Raj Narain,1975 (1975 AIR 1975 SC 2299, 1975(o) GLHEL-SC 11855)
In this case the Supreme court reaffirmed the doctrine of the basic structure and listed out again that fundamental rights of the constitution cannot be amended.
- Minerva Mills Vs. Union of India, 1980
The definition of the basic structure was further expanded by incorporating ‘judicial scrutiny’ and ‘equilibrium between the human rights and the rules of the Directive principles ‘ to the essential components of the basic structure doctrine.Kihoto hollohan Vs. Zachillhu, 1992.
- Indira Sawhney Vs. Union of India, 1992
In this case Rule of Law was added in the constituents of the basic structure.
- S.R Bommai vs Union of India, 1994
Federal structure, unity and integrity of India, secularism, socialism, social justice and judicial review were included in the basic features.
Critical Analysis:
The broader point is that the theory has no basis in the vocabulary of the Constitution. The term “basic structure,” it is argued, has no reference (Parthasarathy, 2019) anywhere in the Constitution.
The critical analysis is as followed:
Check on absolute use of power: Judiciary doesn’t subtract amendment powers or power to create laws, it simply places bound restrictions so as to reinforce democratic principles.
Economical laws: Basic structure helps in increasing culture of discussion that helps in bringing effective and economical laws for the welfare of an individual.
Supremacy of constitution: It places restriction on any establishment gaining vast power or power over others. It helps in maintaining domination of constitution and its principles.
Political ideology: It prevents India from turning into battle ground for various ideologies or amendment the country in line with specific ideologies or ideologies of party in power.
Conclusion:
The basic structure theory was accepted and recognized by the Judiciary but the courts are still accepting the list or the constituents of the basic structure which are coming into effect from the new emerging cases. It cannot be denied that the basic structure doctrine has played a vital role in the life of the people hence now it is clear that all constitutional amendments and laws are subject to judicial review and if any such law tends to violate the basic structure it will be declared unconstitutional and ultra vires. In the end we can summarize that limitation on Parliament’s amending power is the essence of the basic structure doctrine.
