Doctrine Of Basic Structure Under Indian Constitution

The term basic structure has no where defined under the Indian constitution. Parliament has the power to amend the provision of the constitution under Article 368, but parliament does not have the unlimited power to amend the basic structure i.e. Parliament cannot change the ideology and philosophy of the constitution. Therefore we can construe that parliament cannot amend the provisions of the Indian Constitution to such an extent that ultimately ensues into loss of the inherent identity and this whole idea of protecting the inherent philosophy behind the constitution so as to protect its basic nature is called Doctrine of Basic Structure.

The Doctrine of Basic Structure says that

The parliament’s has the unlimited power to amend the constitution subject to only one restriction i.e. it should not violate the basic structure of the constitution.

OR

the effects of the amendment should not be abrogating or disturbing in nature towards the basic structure.

Evolution Of Doctrine Of Basic Structure Through Case Laws

1. Shankari Prasad V/s Union of India (1951)
In this case question before The Apex Court was that whether the fundamental rights given under part III of constitution can be amended under article 368 of the Indian constitution while dealing with the validity of the 1st Amendment act, 1951 by which, articles 31-A and 31-B of the constitution was challenged. The amendment was challenged on the ground that it abridges or take away the rights conferred by part III i.e fundamental rights and hence are void. The Hon'ble Supreme Court however rejected the above argument and held that Article 368 empowers the Parliament to amend the constitution without any exception whatsoever.

2. Sajjan Singh v/s State of Rajasthan (1965)
The five-judge bench in Sajjan Singh dealt with the validity of the 17th Constitutional Amendment which had added around 44 statutes to the 9th Schedule, though all of the judges agreed with the decision of Shankari Prasad and said that parliament can amend any part of the constitution but for the first time in the concurring opinion by Justice Hidyatullah and Mudholkar JJ, doubts were raised on the unfettered power of Parliament to amend the Constitution and curtail the fundamental rights of the citizen.

3. Golaknath v State of Punjab (1967)
In this case, three writ petitions were clubbed together. The first one was by children of Golak Nath, against the addition of the Punjab Security of Land Tenures Act, 1953 in the Ninth Schedule. The other two petitions had challenged the inclusion of the Mysore Land Reforms Act in the Ninth Schedule. It is an 11 judge bench decision, wherein the SC by a majority of 6:5 held that the parliament had no power to amend the constitution in way to abridge or take away any of the rights given in part III of the constitution i.e. Fundamental Rights. The Apex Court had observed that:

• The power of Parliament to amend the Constitution does not subside in Article 368 but it is derived from Article 245, read with Entry 97 of List I of the Constitution. It was very clearly stated that Article 368 only provided for the Procedure of Amendment and nothing more.
• The Court also clarified that the word ‘law’ under Article 13(2) includes within its meaning an amendment to the Constitution. Therefore any amendment against the Fundamental Rights was void.
• The argument that the power to amend the Constitution is a sovereign power, which is over and above the legislative power and hence outside the scope of judicial review was rejected.

However, the 1st, 4th, and 17th Amendments were not declared invalid by the Court as the ruling was given a prospective effect which means that no further amendments could be brought into the Constitution violating the fundamental rights. it is pertinent to mention here that the cases of Shankari Prasad and Sajjan Singh were declared bad in law by the Court to the extent that Article 13(2) does not include a Constitutional amendment under Article 368.

Kesvananda Bharati v. the State of Kerala 1997
Thia historic judgment was delivered by a 13 judge bench wherein Constitution (29th amendment) act, 1973 was challenged questioning the State Land Reforms Act to impose restrictions on the management of it s mutt property. In this case with the majority of 7:6, the Hon'ble Supreme Court had overruled the decision laid down in 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 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.J., 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.

Over of the period of time, The Hon’ble Court have added as to what can constitute the basic Structure. However, the list is not exhaustive.

• 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 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.

Indira Nehru Gandhi v. Raj Narain case (1975)

• In this case 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 or violated the basic feature 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
• The Hon’ble Supreme Court relying on the decision of Kesavananda Bharati stated that democracy was an essential feature of the Constitution and forms part of the basic structure. The bench added certain other features to the list of the basic structure, which was: Rule of Law and the power of Judicial Review.

Minerva Mills case (1980)

• This case again strengthens the Basic Structure doctrine. The judgment struck down 2 changes made to the Constitution by the 42 Amendment Act 1976 declaring them to be violative of the basic structure.
• This 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.

Since then, Hon'ble Supreme Court of India has been continously invoking this Doctrine and reiterated in catena of judgements so as to thwart any attempt to change the basic nature of the Indian Constitution.