Which Part Is Considered As The Basic Structure of Indian Constitution?

Introduction

The basic structure is the very important topic in the Indian constitution. The phrase basic structure itself cannot be found in the constitution. It is a German concept and this doctrine is established by the judiciary in the case of Kesavananda Bharati v. The State of Kerala in 1973.

The basic structure doctrines propounded by the honorable Supreme Court for safeguard the values and keep the essence of the constitution undamaged.

What is basic structure?

The principle of basic structure of the constitution given by the judiciary is that the constitution of India has certain basic features that cannot be altered or destroyed through amendments by the Parliament.

This doctrine clarifies to what extent Parliament can amend the constitution, especially fundamental rights.

Main Articles included in basic structure

The doctrine of basic structure is mainly related to Article 13 and Article 368 of the Indian constitution.

Article 13 provides if any law already in existence if violates the fundamental rights will be void. The responsibility of declaring such a law void is wrested in the judiciary.

Article 368 provides the amendment of the Indian constitution.

Evolution of the doctrine basic structure

The evolution and development of the doctrine basic structure can be explained by the following case laws:

1. Sankari Prasad v. Union of India (1951)

This is the landmark case in the basic structure of Indian constitution. The first Constitutional Amendment Act was challenged in this case.

Supreme Court in this case held that Article 368 includes the power to amend fundamental rights. Parliament can amend any provision including fundamental rights.

2. Sajjan Singh v. State of Rajasthan, (1965)

Supreme Court in this case also contended that parliament can amend any part of the constitution including fundamental rights.

3. I C Golaknath v. State of Punjab (1967) (Pandey, Year 56th edition 2019)

This case was constituted by 11 judge bench. This case prospectively overruled the Sankari Prasad case and Sajjan Singh case. The Supreme Court in this case said that the power to amend the constitution including fundamental rights is not unlimited power. It is subjected to limitations of judicial review. The Parliament has no power to amend part 3 of the constitution.

4. Kesavananda Bharati v. The State of Kerala, 1973 (Pandey, Year 56th edition 2019)

This was a landmark case in defining the concept of the basic structure doctrine.

  1. Parliament can amend the Constitution under Article 368.
  2. But the power is not absolute.
  3. It will be subjected to basic features.

A basic feature means the most fundamental provisions of the constitution which cannot be amended. This case is also known as the fundamental rights case regarding the Kerala Land Reforms Act. Special 13 Judge Bench decision given by 7:6 majorities. Minority judgment by 6 judges i.e.; parliament has unlimited power to amend the constitution (Indian Polity).

5. lndira Gandhi v. Raj Narain, 1975 (Indian Polity)

The amendment brought to give retrospective effect to the election of Prime Minister struck down. The Court held that free and fair election is part of the basic structure.

42nd Amendment

After the decision of the Supreme Court in Kesavananda Bharati and Indira Gandhi case, Parliament amended Article 368 and clause (4) and clause (5) added to Article 368 of the constitution.

Clause (4)

Parliament has absolute power to amend any part of the constitution including fundamental rights.

Clause (5)

Such amendments are unchallengeable in courts.

6. Minerva Mills Ltd. v. Union of India, 1980 (Pandey, Year 56th edition 2019)

The judgment, in this case, struck down clauses (4) and (5) of Article 368. The court clarified that parliament has only limited power to amend the constitution subject to the basic features. The court clarified that there is constitutional supremacy, not parliamentary supremacy and the basic structure theory is a limitation to amending power.

7. Waman Rao Case, 1981

The Supreme Court again repeated the doctrine of basic structure.

9th Schedule

Added to the constitution as a consequence of removing property right as a fundamental right and for validating Land Reforms Act and the peculiarity is that it is a protective zone. It cannot be challenged before court and it bars judicial review.

8. Indra Sawhney v. Union of India, 1992

  1. In this case Supreme Court held that Article 16(4) is not an exception, rather it is a part of (1).
  2. The list is not exhaustive in nature and shall be subject to alterations in different aspects along with the need of the society.
  3. In reservation policies, the creamy layer shall be necessarily excluded.
  4. Total reserved quota should not exceed 50% reservation.
  5. In this case “Rule of Law” was added to the list of basic features of the constitution.

9. R. Bommai v. Union of India (1994)

  1. This case gave one of the landmark judgments of the Supreme Court regarding basic structure doctrine as well as regarding the blatant misuse of Article. 356.
  2. In this case, there was no question of a constitutional amendment but even so, the concept of basic structure doctrine was applied.
  3. 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.

10. Chandra Kumar v. Union of India, 1997

In this case Supreme Court held that the power of judicial review over legislative action vested in High Courts under Article 226 and the Supreme Court under Article 32 of the constitution is an integral and essential feature of the constitution and formed part of its basic structure.

11. Nagraj v. Union of India

The petitioners challenged the Constitutional validity of:

  1. The Constitution (77th Amendment) Act, 1995, which introduced Art 16(4-A).
  2. The Constitution (81st Amendment) Act, 2000 which inserted clause 4B in Article 16.
  3. The Constitution (82nd Amendment) Act, 2000 introducing proviso to Article 335.
  4. The Constitution (85th Amendment) Act, 2001 which changed the wording of Article 16(4-A).

In this case Court observed that Amendments were held as constitutionally valid. Article 16(4A & B) are inserted into the flow of Article 16 and they do not alter the structure of Article 16(4).

12. I R Coelho v. State of Tamil Nadu (2007) (Pandey, Year 56th edition 2019)

  1. The Tamil Nadu Reservation Act providing 69% reservation was put in the 9th Schedule.
  2. As per Mandal case decision the total reservation must not exceed 50%, here it was 69%.
  3. So here court held that the provision is invalid and held judicial review is a part of basic structure.
  4. After Kesavananda Bharati case any law put in the 9th Schedule can be challenged cannot bar judicial review

Basic features of the constitution

From the various judgments, the following have emerged as “basic features” of the constitution:

  1. Supremacy of the constitution.
  2. Welfare state.
  3. Principle of equality
  4. Sovereign, democratic and republican nature of the Indian polity.
  5. Judicial review
  6. Free and fair election
  7. Secular character of the constitution
  8. Freedom and dignity of the individual
  9. Independence of judiciary
  10. Separation of powers between the legislature, the executive and the judiciary.
  11. Parliamentary system
  12. Limited power of Parliament to amend the constitution.
  13. Federal character of the constitution
  14. Rule of law
  15. Effective access to justice
  16. Unity and integrity of the nation
  17. Harmony and balance between fundamental rights and directive principles
  18. Reasonableness

The list of the basic structure of the Indian Constitution is not exhaustive i.e.; not complete when cases come judiciary can add any number of features to the list.

Any amendment or law that violates these principles can be struck down by the Supreme Court on the grounds that they distort the basic structure of the Indian constitution.

Conclusion

The constitution of India has a certain basic structure that cannot be altered or destroyed through amendments by the Parliament. The main or key among these “basic features”, are the fundamental rights of individuals in the constitution. So the Indian Supreme court has only limited power to struck down the constitutional amendment. This clearly states that in India there is constitutional supremacy, not parliamentary supremacy.

The present position is that the Parliament under Article 368 can amend any part of the constitution including fundamental rights but without affecting “basic structure” of the constitution.

The Parliament can amend any part of the constitution but there is a limitation that the amendment cannot be affecting any of the features under the basic structure doctrine. So the constitution can be updated by adding new things and the irrelevant things can be removed but the essence or the soul of the constitution cannot interfere. This also makes the constitution unbreakable and thus it neither to be taken down completely at any point of time nor it can be replaced to gain unauthorized powers. Hence, there is no way to take apart the Indian Constitutional setup and to get away with the constitution.

Bibliography

(n.d.). Retrieved from jagranjosh: https://www.jagranjosh.com/general-knowledge/basic-structure-doctrine-of-the-constitution-1437127016-1

Civilsdaily. (n.d.). Retrieved from https://www.civilsdaily.com/news/nagaraj-judgment-the-law-on-sc-st-promotions/

Indian Polity. byju’s.

Legal Service India – Lawyers. (n.d.). Retrieved from http://www.legalserviceindia.com/articles/thyg.htm

Pandey, D. J. (Year 56th edition 2019). Constitutional Law of India. Allahabad: Central Law Agency.

The Law Brigade Publishers. (n.d.). Retrieved from thelawbrigade.com

This article has been written by Megha Ravindran, 3rd year BBA-LLB (2018-2023) student at Nehru Academy of Law.

Also Read – Is Right To Information A Fundamental Right?

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