EVOLUTION OF BASIC STRUCTURE DOCTRINE OF THE CONSTITUTION OF INDIA
Author: Manali Agrawal
Owing to various social, political, cultural and economic changes happening consistently in the society, the Constituent Assembly provided for the provisions allowing amendments to the Constitution. Under Article 368 of the Constitution of India, the Union Parliament is empowered to amend any of the provisions of the Constitution. However, this power has been misused by the Parliament many a time. This has led to a quest for supremacy between the Judiciary and the Parliament and ultimately, to the development of the Basic Structure Theory of the Constitution.
However, the Basic Feature Principle was given by the Supreme Court in the landmark case of Kesavananda Bharti in 1973 and it was first expounded by Justice J.R. Mudholkar in his dissenting judgment in the case of Sajjan Singh in 1953.
EVOLUTION OF BASIC STRUCTURE DOCTRINE:
The evolution of the Basic Structure doctrine can be divided into three phases:
1. PRE-KESAVANANDA POSITION:
Before the Landmark Judgment of the Kesavanada Bharti was passed, the Parliament came up with many amendments to the Constitution which ended up curtailing the Fundamental Rights of the people which were therefore challenged before the Apex Court. Thus, the main issue before the Court was regarding the scope of amendability of the Fundamental Rights which are intrinsic for any civilized society. The pre-Kesavananda position is described in the light of the following landmark judgments of the Supreme Court:
i. Shankari Prasad Singh Case:
Shankari Prasad Singh v. UOI[i] is the first case related to amendability of the Constitution in which the Constitutional validity of the First Amendment[ii] that sought to curtail the Fundamental Right to Property under Article 31 of the Constitution was challenged.
In this case, the Court upheld the validity of the impugned amendment. It applied the principle of Harmonious Construction and ruled that definition of ‘Law’ given under Article 13 does not include the Constitution amending law under Article 368 and thereby, limited the scope of Article 13.
The Court made a clear demarcation between Ordinary Law and Constitutional Law and observed that Article 13(2) does not affect amendments made under Article 368. Thus, the Parliament can amend any Fundamental Right of the people by following the procedure given under Article 368 of the Constitution.
ii. Sajjan Singh Case:
In Sajjan Singh v. Rajasthan[iii], the Constitutional validity of the Constitution (Seventeenth Amendment) Act 1964, seeking to place the various statues affecting the Fundamental Right to Property in the IX Schedule of the Constitution thereby making them immune from Judicial Review, was in question. The Supreme Court again countered the question of amendability of the Fundamental Rights.
They upheld the validity of the impugned amendment by 3:2 majorities and again held that there is a distinction between ordinary law and constitutional law and that the Constitutional law does not fall within the ambit of Article 13 therefore the amending power of the Parliament cannot be subjected to prohibitions under Article 13 of the Constitution.
However, the dissenting judgment by Justice Hidayatullah, who advocated non-amendability of Fundamental Right, and Justice Mudholkar, who talked about certain basic features of the Constitution, is of great significance as it paved the way for the development of the Basic Structure Doctrine.
iii. Golak Nath Case:
The question of amendability of the Fundamental Rights again arose before the Apex Court in LC Golak Nath v. State of Punjab,[iv] wherein constitutional validity of the Constitution (Seventeenth Amendment) Act, 1964 was again challenged.
In this case, the Eleven Judges bench of the Supreme Court overruled its previous decisions in aforesaid cases and held that no authority functioning under the Constitution of India can amend the Fundamental Rights. The Court however held that to amend the Fundamental Rights, a constituent assembly must be convened by the Parliament.
The Court also observed that the power to amend the Constitution is merely the residuary legislative power of the Parliament as Article 368 merely provides the procedure for amendment to the Constitution and does not give any substantial power to the Parliament to amend the Constitution[v]. Therefore, Article 13 also includes amendments made to the Constitution under Article 368. Thus, any law amending the Constitution in such a manner so as to abridge the Fundamental Rights is void. This view of the Court has been criticized on the ground that how a thing that a Parliament cannot do by itself can be done by its creature.
The Court made it clear that amending power of the Parliament cannot be stretched to the extent of abrogation or rewriting of the Constitution and that the word ‘amendment’ in Article 368 signifies only minor modifications.
2. KESAVANANDA BHARTI CASE:
After the judgment in the Golak Nath case, the Parliament enacted the Constitution Twenty-fourth and Twenty-fifth Amendment Act in 1971 so as to neutralize the effects of the Golak Nath verdict and to maintain the supremacy of the Parliament in Constitutional Amendment. The amendments, by making certain changes in Article 13 and 368, explicitly empowered the Parliament to amend any provision of the Constitution and Article 13 shall not be applied to any amendment made under Article 368.
In this landmark case of Kesavanada Bharti[vi], the constitutional validity of the aforementioned amendments was challenged. The Thirteen-judge bench of the Supreme Court, in its judgment delivered on 24th April 1973, propounded the Basic Structure Doctrine.
The Court ruled that the Parliament is empowered to amend any of the provisions of the Constitution including the Fundamental Rights. Therefore, the Constitution (Twenty-fourth Amendment) Act was held to be valid by the Supreme Court.
However, the Court was convinced as to the fact that there are certain core ideals, values and principles embedded in the Constitution that must be preserved at any cost and must not be allowed to be destroyed through any constitutional amendment. Thus, the amending power of the Parliament under Article 368 is subjected to an important limitation that the amendments cannot be done in a manner that destroys the basic feature of the Constitution and the question as to what is the basic structure of the Constitution is to be decided by the Court in each case. Thus, any amendment abrogating the fundamental or basic structure of the Constitution of India is ultra-vires.
The Court held certain features like Supremacy of the Constitution, Republican and Democratic form of government, Separation of Power between legislative, Executive and Judiciary, and Federalism as some of the basic features of the Constitution.
The ruling of the Supreme Court in the Kesavananda Bharti case is now very well entrenched in the Indian Constitution as it prevented the probability of abuse of power by the Parliament and turning of democracy into a totalitarian state through its exercise of absolute power to make amendments to the Constitution.
3. POST-KESAVANANDA POSITION:
After the introduction of doctrine in the Kesavananda Bharti case multiple developments has taken place. The Court did not give an exhaustive list as to what constitutes the Basic Structure of the Constitution and has left it to the discretion of the Court to decide the issue on facts and circumstances of each case. The Court has kept on declaring many other features of the Constitution within the ambit of the Basic Structure Doctrine so as to protect and preserve the inherent values of the Constitution.
Some of the important features that are held to be the basic and essential feature of the Constitution are as follows:
i. The Principle of Rule of Law[vii],
ii. Limited amending power of the Parliament and the harmony and balance between the Directive Principles of State Policy under Part IV and Fundamental Rights under Part III of the Constitution [viii],
iii. Unity and integrity of India and the principle of Equality[ix],
iv. Democracy and Free and Fair elections[x],
vi. Independence of Judiciary[xii],
vii. Judicial review [xiii],
The doctrine of Basic Structure is one of the greatest contributions of the Indian Judiciary to the theory of constitutionalism. It protects and preserves the basic feature of the Constitution against the onslaught of transient majorities in Parliament. Since its inception, the doctrine has shielded many core ideals of the Constitution. The doctrine acts as a limitation upon the constituent power of the Parliament and has helped in arresting the forces which may destabilize the democracy. Thus, this basic structure doctrine, as future events showed, saved Indian democracy and the essence of the Constitution which could have faded if the doctrine of Basic Structure were not there.
[i] Shankari Prasad Singh v. Union of India, AIR 1951 SC 458 [ii] The Constitution (First Amendment) Act, 1951 [iii] Sajjan Singh v. Rajasthan, AIR 1965 SC 845 [iv] LC Golak Nath v. State of Punjab, AIR 1967 SC 1643 [v] “Power of Parliament to amend the Constitution and procedure therefore” Subs. by the Constitution (Twenty-fourth Amendment) Act, 1971, s. 3, for “Procedure for amendment of the Constitution.” (w.e.f. 5-11-1971) [vi] Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461 [vii] Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299 [viii] Minerva Mills Limited v. Union of India, AIR 1980 SC 1789 [ix] Raghunath Rao v. Union of India, AIR 1993 SC 1267 [x] Kihoto Hollohan v. Zachillu, AIR 1993 SC 412 [xi] SR Bommai v. Union of India, AIR 1994 SC 1918 [xii] Supreme Court Advocates-records Association v. Union of India, AIR 1994 SC 268 [xiii] SP Sampath Kumar v. Union of India, AIR 1987 SC 386; Subhesh Sharma v. Union of India, AIR 1991 SC 631; L Chandra Kumar v. Union of India, AIR 1997 SC 1125.