Doctrine of Basic Structure

    The term Doctrine signifies a particular set of beliefs, principles or position – usually upheld by authorities like courts. The doctrines are the beliefs of courts and therefore it is not necessary to find mention of such doctrines in the legislative documents. Similarly, the Doctrine of Basic Structure has nowhere been defined nor explained in the Constitution of India.

    However, it is a concept that has emerged as an outcome of passing through various amendments, judgments and interpretation of the judiciary revolving around this principle over the years. This brings us to a very important question as to what does this ‘Doctrine of Basic Structure’ actually means? The Supreme Court in a historical ruling in the case of Kesavananda Bharati v. State of Kerala; laid down the basic structure doctrine in order to preserve the ideals and philosophy of the original Constitution. According to this doctrine the parliament cannot destroy or alter the basic structure of the Constitution. The purpose behind such a doctrine is to preserve the sanctity of the Constitution from the amending powers of the parliament. Further, this doctrine also provides the Supreme Court with the power to review any law or bill that is inconsistent or encroaches upon the basic structure of the Constitution, and declare such a law or bill to be unconstitutional and invalid.

    This article aims to provide the readers with a detailed insight related to this doctrine, and for that very purpose the course of this article has been divided into the following sections: –

    • Evolution & Landmark Judgments
    • Features of the Doctrine
    • Critical Analysis
    • Conclusion

    Evolution and Landmark Judgments

    As earlier mentioned, the doctrine of basic structure has not been recognized or mentioned in the Constitution. It has emerged over the years gradually with the interference of the judiciary from time to time to protect the ideals and the philosophy of the Constitution, from the constituent powers of the Parliament to amend the provisions of the Constitution that has been granted to it under Article 368 of the Constitution. And it is because of this reason why some people view the evolution of the ‘doctrine of basic structure’ as a tussle or a battle between the legislation and the judiciary over the matter of superiority.

    Whatever the case may be, there is one thing which is certain and that can be said without any iota of doubt is that the journey of the emergence of the ‘doctrine of basic structure’ is by far one of the most important and interesting phenomena as far as the constitutional history of our country is concerned. The start of this journey dates back to the year 1951, when the first Constitution Amendment Act was challenged in the Supreme Court.

    Shankari Prasad Singh Deo v. Union of India[1]

    It was in the case of Shankari Prasad that the first Constitution Amendment Act (which curtailed the right to property) was challenged on the ground that it violates part III (fundamental rights) of the Constitution. It was contended that Article 13 acts as a safeguard against such amendments. It was further contended that under Article 13 the word ‘State’ includes parliament and the word ‘Law’ includes constitutional amendments, and hence any such amendment passed by the parliament which takes away or even abridges the fundamental rights of the citizens are unconstitutional.

    However, the Supreme Court in its ruling held that the powers granted under Article 368 also included the power to amend fundamental rights and that the word “law” in Article 13 only includes an ordinary law made in exercise of the legislative powers and does not cover the Constitutional amendments. Therefore, the court upheld the validity of the said amendment, on reasoning that a Constitutional amendment will be valid even if it abridges or takes away any of the fundamental rights.

    Further, in 1965 the Supreme Court in the case of Sajjan Singh v. State of Rajasthan[2], gave a similar ruling and held that the parliament, under Article 368, has power to amend any part of the Constitution including fundamental rights.

    Golak Nath v. State of Punjab[3]

    The Supreme Court in the present case overruled its earlier decisions that were passed in this regard. The court held that the Fundamental Rights are not amenable as they are shielded against such amendments by the virtue of Article 13 of the Constitution. Further it was held that Article 368 does not give the parliament the absolute power to amend the Constitution but only lays down the procedure to amend the constitution.

    This majority (6:5) opinion in the 11-judge bench case reflects the uneasiness and skepticism of the Supreme Court regarding the autocratic use of Article 368 of the Constitution by the parliament. The majority doubted that if the ruling of the Sajjan Singh Case and the Shankari Prasad Case were to be upheld, then a time could come when all the fundamental rights will be diluted by way of amendments and ultimately extinguished. Therefore, to safeguard the country against even the slightest possibility of such an undesirable situation the Supreme Court in the Golaknath case overruled the above mentioned judgments and held that the Part III of the Constitution cannot be amended or even altered by the virtue of powers granted under article 368 of the Constitution.

    Thus, this case by far can be regarded as the pioneer case that revolved around the jurisprudence of the ‘doctrine of basic structure’ by placing the Fundamental Rights in a ‘transcendental position’.

    Kesavananda Bharati v. State of Kerala[4]

    The Kesavananda Bharati case is the landmark case in defining the concept of the basic structure doctrine. It was in this case, that the term ‘Basic Structure’ was coined and recognized for the first time by the Indian Judiciary.

    The Supreme Court constituted its largest ever bench till date of 13 judges including the then Chief Justice Sikri, to decide whether the parliament had unfettered rights to amend the Constitution or not. The bench after hearing the matter for 68 long days over a period of 5 months, finally pronounced its verdict on the 24th of April, 1973; wherein by a wafer-thin majority of 7:6, this court struck down the judgment passed in the Golak Nath case and held that the Parliament could amend any part of the Constitution so long as such amendments did not alter or amend “the basic structure or essential features of the Constitution”. The Supreme Court through this judgment tried to reach a middle ground by striking a balance between the parliament’s rights to amend the laws and the rights of the citizens as guaranteed under the Constitution along with maintaining the identity of the original Constitution as drafted by the Constituent assembly intact.

    The Supreme Court in this case, provided certain features that are included in the basic structure of the Constitution and hence cannot be altered or amended. These features are mentioned below in the section ‘Feature of this Doctrine’. The Supreme Court through this judgment implies that the power to amend does not mean the power to destroy.

    This case from the perspective of our Constitutional history is regarded as the paramount judgment as it protected the sanctity and preserved the original identity of the Constitution from the insanity of the parliament back then, who by way of amendments was constantly trying to strip the constitution of its originality and its identity in order to establish a realm of legislative superiority in our country.

    Indira Nehru Gandhi v. Raj Narain[5]

    This was the first case after the landmark judgment of Kesavananda Bharati where the doctrine of basic structure was upheld by the Hon’ble Supreme Court. The Supreme Court in the present case struck down clause (4) of the 39th Amendment Act, as it encroached upon the democratic feature of the Indian Constitution and thus declared it as unconstitutional.

    Minerva Mills Ltd. v Union of India[6]

    The Supreme Court through this case further strengthened the doctrine of basic structure. In the present case sections 4 and 55 of the 42nd Amendment Act were struck down on the ground that the said sections were unconstitutional as they provided the parliament with unlimited amending powers. The bench judged that a ‘limited amending power’ itself is a basic structure of the Constitution, and further went ahead and included two more features to the list of basic structure of the Constitution – in the form of judicial review and a balance between Fundamental Rights and DPSP.

    Through the above cases one can get an insight as to how the doctrine of basic structure evolved over time. However, these are not the only judgments that contributed towards the development of this doctrine as after the Minerva Mills case, various other judgments were added to the list of basic structure.

    Features of the Doctrine

    Now that we know how the concept of ‘Basic Structure Doctrine’ emerged, it is essential to gain an understanding as to what all constitutes the basic structure of our Constitution. The Judiciary or the Legislature never gave a solid test to discover what constitutes as a basic structure, and thus, the features of this doctrine has emerged as a result of the interpretation of the judiciary as to what constitutes a basic structure from time to time in various judgments. These features are mentioned herein below.

    1. Supremacy of the Constitution
    2. Unity and sovereignty of India
    3. Democratic and republican form of government
    4. Federal character of the Constitution(Kesavananda Bharati Case)
    5. Secular character of the Constitution
    6. Separation of power
    7. Individual freedom
    8. Rule of law(Indra Sawhney Case[7])
    9. Free and fair elections(Kihoto hollohan v. Zachillhu[8])
    10. Parliamentary system(S.R Bommai v. Union of India[9])
    11. Balance between the Fundamental Rights and DPSP
    12. Judicial review(Minerva Mills Case)
    13. Limited power of the parliament to amend the Constitution
    14. Rule of equality
    15. Power of the Supreme Court under Articles 32, 136, 142 and 147
    16. Power of the High Court under Articles 226 and 227

    Further, the Supreme Court has the power under this doctrine to strike down any law or amendment that violates the above mentioned features. Also, these features are not exhaustive and with time new features can be added as and when such features are discovered.

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    Critical Analysis

    It can be said that the ‘Doctrine of Basic Structure’ is by far the most important concept that revolves around Constitutional Law. Such a doctrine is very essential in order to preserve the roots of the Constitutions as laid by the constituent assembly and safeguard the basic contents of the Constitution from being amended, altered or destroyed.

    However, an alarming fact here is that, it has been more than 47 years since the Kesavananda Bharati case and till date neither the judiciary nor the legislature has provided a solid test to determine what constitute as the basic structure, which leaves the doctrine of basic structure at the discretion of the court’s interpretation. Further, the judgment delivered in the Kesavananda Bharati case was subjected to a serious attempt to overrule it by a review bench of 13 judges in the year 1975. Even though this attempt was unsuccessful as the bench was dissolved on the 3rd day of hearing, this particular event raised a serious threat to the existence of this doctrine, by providing us with a glimpse of how easily the entire existence of this paramount doctrine could be erased by way of just a single review petition.

    Many would think that this is highly improbable but the fact that such an event has happened once, indicates that there’s a possibility that it might happen again and in such a scenario it is better to negate the possibility of an unwanted event well in advance, rather than hoping that such an event never unfolds. And for this very reason it is very essential to incorporate this doctrine in the constitution itself, as this will provide a much valid ground of existence and further it could be safeguarded against the slightest possibility of being struck down. Further this incorporation will help in the formulation of a solid test for this doctrine that will negate the possibility of ambiguous interpretation of it by different judges over the period of time.

    Conclusion

    Now whether to consider the ‘Doctrine of Basic Structure’ as an outcome of the battle for superiority between the Judiciary and the Legislature is still subject to the interpretation of each individual. But what’s essential to note here is that, the one who ultimately mounts the throne of ‘Superiority’ was indeed its rightful and true heir, and that is, THE CONSTITUTION. It is essential to remember that it is because of the Constitution that there exists a legislature and a judiciary, and it is not the other way around. This is the reason why none of the body of the state should be allowed to supersede the constitution. And for this very purpose this Doctrine of Basic Structure assumes the role of Commander in Chief and protects the realm of the Constitution from external attacks and challenges by preserving the sanctity and identity of the Constitution intact.

    REFERENCES

    [1] AIR 1951 SC 458.

    [2] AIR 1965 SC 845.

    [3] AIR 1967 SC 1643..

    [4]  (1973) 4 SCC 225.

    [5] 1975 AIR 1590.

    [6] (1980) 3 SCC 625.

    [7] AIR 1993 SC 477.

    [8]  1992 SCR (1) 686.

    [9] (1994) 2 SCR 644.


    BY AKASH KUMAR SINGH | ILS LAW COLLEGE

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