Doctrine of Basic Structure in the Indian Constitution

Introduction

The Constitution of India is the supreme law of the land. It covers almost all aspects related to law-making for the country, making it one of the lengthiest written constitutions of the world. Consequently, several amendments since its adoption have taken place, to keep it at pace with the ever-changing Indian society. But, being the supreme law that it is, it also has to maintain its basic ideologies intact and preserve them from alteration, because they incorporate the vision that our Constitution makers set forth after independence. These basic ideologies, sometimes referred to as the “basic structure” of the Constitution, have often faced attacks from various sources, and have been a major point of confusion during interpretations of the Constitution. As of now, the picture is clear, especially after the Kesavananda Bharati verdict. But what all lead to the case, and how the basic structure of the Constitution finally came to be as an inalienable part, is an important discussion for every law student and legal professional.

Doctrine of Basic Structure

Formulation of laws is one thing; their application is another. In order to bring forth the essence of a law, it needs to be studied and applied properly to the situation at hand. To assist the interpretation of laws, certain doctrines came to exist, propounded by jurists in landmark cases, which eased the process. The doctrine of basic structure is one such doctrine which states that certain characteristics of the constitution of a sovereign state cannot be erased or altered by the legislature of the state. Although it is a common law doctrine, it was developed by the Supreme Court of India in the case of Kesavananda Bharati v. State of Kerala[1], and is also recognized in countries such as Pakistan, Bangladesh, Malaysia and Uganda.

The aim of the doctrine is to strike down any law or any constitutional amendment that in any way alters or eradicates the basic structure of the Constitution. The doctrine, after being recognized in the case of Kesavananda Bharati, became a basis for many future judgements and acted as a check on the arbitrary powers of the Parliament.

Initial Position of Doctrine of Basic Structure

The talk about a basic structure of the Constitution was first brought up by Justice J. R. Mudholkar, when he expressed his dissenting opinion in the case of Sajjan Singh v. State of Rajasthan[2]. He questioned whether changing the basic features of the Constitution would simply amount to an amendment or would it be, in effect, rewriting a part of the Constitution. If so, would rewriting fall under the constitutional provision of amendment, as under Article 368? As far as amendments are concerned, the Supreme Court, initially, was of the view that every part of the Constitution was amenable, including the Fundamental Rights under Part III as well as Article 368 itself.

The Parliament was to pass a Constitutional Amendment Act as per the provisions of Article 368 and amend any part or provision of the Constitution. In Shankari Prasad Singh Deo v. Union of India[3], the Supreme Court held that Article 368 of the Constitution empowers the Parliament to amend any part of the Constitution. Further, in Sajjan Singh v. State of Rajasthan[4], the Court, with a majority of 3-2, held that the power conferred over the Parliament by Article 368 extends to the entire Constitution and can be exercised over all provisions of the same.

A major turn took place in 1967, when the above mentioned decisions were overruled by the Apex Court in Golak Nath v. State of Punjab[5]. The largest ever bench of the time, comprising of 11 judges, deliberated the question that whether the Fundamental Rights enshrined in the Constitution could be revoked or limited by any amendment to the Constitution. By a close majority of 6-5, the Supreme Court held that an amendment to the Constitution is a process of the legislature, hence it falls within the ambit of “law” as mentioned under Article 13. Therefore, if any amendment that takes away or abridges any provision of the Fundamental Rights, it would be declared void. The Court further states that the Fundamental Rights are accorded a “transcendental position” under the Constitution and are to be kept out of the reach of the Parliament.

However, the Parliament passed the 24^th Constitutional Amendment Act in 1971 to abolish the effect of the decision in Golak Nath’s case. Articles 13 and 368 were moulded in a way to allow the Parliament to amend any part of the Constitution without the amendment becoming void.

Kesavananda Bharati v. State of Kerala[6]

Perhaps one of the most significant cases in the history of Indian judiciary, the suit was initially filed in order to challenge the validity of the Kerala Reforms Act, 1963. But as per the 29^th Amendment to the Constitution of India, the reforms came to be placed under the 9^th Schedule. Thus, the petitioner not only challenged the 29^th Amendment, but also the 24^th, 25^th and 26^th Amendments to the Constitution.

The case does not wholly revolve around the claims made by the petitioner, rather it delivers on the question of the amending powers of the Parliament. The judgement was delivered on April 24^th, 1973, and the verdict is compiled in more than 700 pages. The thirteen-judge Constitutional Bench, the largest ever, delivered a conflicting opinion. 6 of them ruled in favour of the petitioner, while the other 6 ruled against him, leaving Justice Khanna in a neutral position. He was of the view, which kind of amalgamated the different stances of the other 12 judges, that the amending power of the Parliament is limited such that it cannot amend the basic structure of the Constitution. When Article 31C of the Constitution was considered, he held that the portion which repealed the Fundamental Rights was constitutional, since it did not violate the basic structure, but the portion which ousted jurisdiction was invalid. Further, under Article 368, the Parliament did not hold unlimited power to amend the Constitution.

It was Justice Khanna’s opinion, that came to be considered as the law on the matter. As for the amendments in question, they were upheld with some restrictions and qualifications. The earlier position, as per Golak Nath’s case, was also reviewed, and the case was overruled.

According to the judges in the Kesavananda Bharati case, the following were to be considered as the basic structure of the Constitution:

• Supremacy of the Constitution
• India as a Republic and Democracy
• Federalism and Secularism
• Separation of Powers
• Welfare State and Directive Principles of State Policy
• Sovereignty, Unity and Integrity of the country
• Individual Freedoms
• Equality, Liberty and Justice

The verdict not only established what all constituted the basic structure of the Constitution, but the Supreme Court also altered the course of constitutional history by asserting that the Parliament did not possess supremacy in terms of amending the Constitution. Since the verdict, every amendment to the Constitution will be determined as per the basic structure.

Subsequent Decisions

The Apex Court has reaffirmed the judgement of Kesavananda Bharati case in other decisions, such as Indira Gandhi v. Raj Narain[7], also known as the Election case, and Minerva Mills v. Union of India[8] case, where the court struck down the 39^th and 42^nd amendments to the Constitution, respectively. Some of the cases where the Supreme Court applied the doctrine of basic structure are:

1. Waman Rao v. Union of India[9]
2. P. Gupta v. Union of India[10] (also known as Transfer of Judges case)
3. P. Sampath Kumar v. Union of India[11]
4. V. Narsimha Rao v. State[12] (CBI/SPE)
5. R. Coelho v. State of Tamil Nadu and ors.[13]
6. Raja Ram Pal v. The Hon’ble Speaker Lok Sabha and ors.[14] (also known as Cash for Query case)

Overview of Doctrine of Basic Structure

The Constitution of every country embodies the Grundnorm of the country, a basic norm, which is a set of principles that lay in the foundation of a civil society based on laws. These principles define the nature of the society, the pillars which shall hold it, and the kind of laws that shall be formulated. Thus, to protect the Constitution is the duty of the government, and more of the judiciary, so that the basis of the society remains undisturbed.

The doctrine of basic structure is a judicial innovation which ensures that the Parliament does not exceed its powers and view constitutional amendments as a source of arbitrary exercises. The Supreme Court is said to be the guardian and the interpreter of the Constitution, which means that any law not in consonance with the ideology of the basic structure shall be struck down by the Court, as has so happened in previous judgements. With time, other features, such as rule of law, parliamentary system of government, essence of the Fundamental rights in Part III, free and fair elections, independence of the judiciary, powers of the Supreme Court under Articles 32, 136, 141 and 142, among others, have come to comprise the basic structure of the Constitution of India.

However, it is also to be kept in mind that the doctrine of basic structure cannot be used to contest regular legislation of the Parliament. It would defeat the whole purpose of the doctrine, while limiting the very powers that the Parliament inherently possesses. The controversial point regarding the basic structure doctrine is only its contents, which have been defined by the judiciary time and again, and will continue to do so in order to keep the Constitution a dynamic and living document.

FAQs of Doctrine of Basic Structure

[1] AIR 1973 SC 1461.

[2] 1965 AIR 845.

[3] AIR 1951 SC 458.

[4] Supra note 2.

[5] 1967 AIR 1643.

[6] AIR 1973 SC 1461.

[7] 1975 AIR 865.

[8] AIR 1980 SC 1789.

[9] AIR 1981 SC 271.

[10] AIR 1982 SC 149.

[11] AIR 1987 SC 386.

[12] AIR 1998 SC 2120.

[13] 2007 2 SCC 1.

[14] JT 2007 (2) SC 1.