X

FOUNDATION OF BASIC STRUCTURE DOCTRINE: THE POLITICO – JUDICIAL DRAMA

The Doctrine Of Basic Structure Was Primarily Propounded By Justice Hr Khanna, A Former Judge Of The Apex Court Of India He Was Of The Opinion, That  The Constitution Has Certain Basic Principles Upon Which The Whole Spirit Of It Stands.

According To Article 368,  Parliament And State Legislatures Have The Authority To Amend The Constitution Within Their Respective Jurisdictions. However, The Power Is Not Absolute In Nature. The Constitution Empowers The Judiciary  To Interpret The Constitutional Validity Of The Laws Made By The Legislature.
If A Law Violates Any Of The Provision Or Is In Contravention Of It, The Judiciary Has The Power To Declare And Quash It Down.
 
The Doctrine Was First Recognised By The Apex Court In The Case Of Keshavananda Bharati Vs State Of Kerala, 1973[1]. Since Then The Court Has Been The Arbiter As Well As The Interpreter Of All Amendments And Laws Made By The Legislature. The Doctrine Of Basic Structure.
 

The Pre- Keshvananda Era

Issues Related To The Doctrine Was First Challenged In The Year 1951. After the India Became Republic, Many New Laws Were Enacted By The States To Reform The Land Ownership And Tenancy System. These Laws Were The Outcome Of The Poll Promises Of The Ruling Party To Ensure Socialistic Principles Mentioned In Article 39 (b) (c), That States Equitable Distribution Of Resources Among All Indian Subjects As Well As Prevention Of Concentration Of Wealth In The Hands Of Few.
 
Some Properiotors Got Affected By The Laws And, Therefore They Challenged It In The Supreme  Court. The Court Struck Down The Laws As They Infringed The Right To Hold Property Article 19 1 (f) Enumerated In Part 3 Of The Constitution.
The Doctrine Of Basic Structure
Frustrated By The Judgement, Parliament Placed All The Laws Pertaining To The Acquisition Of Property And Compensation For It Under 9 Schedule By First Amendment Act 1951, Thereby Effectively Removing  The Scope Of Judicial Review.
The Parliament Made This Effort To Prevent Certain Laws From Judicial Review.
As Per Article 31, Laws Placed In 9 Schedule Cannot Be Challenged In Any Court Throughout The Territory Of India. 
Property Owners Again Challenged The Amendment That Placed Laws Pertaining To Property In 9 Schedule As It Violates Article 13 Of The Constitution.
Article 13 (2) Provides For The Protection Of The Fundamental Rights Of The Citizens.
 
In Shankari Prasad Deo Vs Union Of India[2] And Sajjan Singh Vs State Of Rajasthan[3] Respectively, The Court Upheld The Amending Power Of The Parliament To Amend Any Or All Provision Of The Constitution. However, Two Judges Raised Doubts On The Majority Judgement In Sajjan Singh Case.

Golaknath Case

In The Case Of Ic Golaknath Vs State Of Punjab[4], The Apex Court  Held That Some Features Of The Constitution  Forms Its Core And Cannot Be Altered, Removed, Emasculated By A Normal Procedure Of The  Parliament.
The Doctrine Of Basic Structure
 
The Phrase “ Basic Structure “ Born In This Very Case. And Was First Used By Mr, Mk Nambiar And Other Senior Counsels Pleading In The Golaknath Case.

Nationalisation Of Banks And Abolition Of Privy Purse

Within The Few Weeks Of Golaknath Judgement, The Parliament Introduced A Bill Through A Private Member Called “ Barrister Nath Pai” To Restore The Supremacy Of The Parliament, But The Bill Could Not Be Passed Due To Some Political Compulsions. The Doctrine Of Basic Structure
Once Again The Parliament Introduced A Bill To Provide A Greater Access To Bank Credit For The Agricultural Sector To Ensure Equitable Distribution Of The Resources Of Production By : 
 
1). Nationalising Banks 
2). Abolition Of Privy Purses Given To The Princes
The Supreme Court, However, Struck Down Both The Moves.
 

Emergence Of Basic Structure; The Keshvananda Bharati Case (1973)

The Constitutional Validity Of All The Previous Amendments Was Once Again Challenged Before The Largest Ever Bench ( 13 Judges) Of The Supreme Court
 
Facts –
Keshavananda Bharati Was The Chief Of A Religious Mutt In Kerala. He Had Some Sect Of Land In The Name Of The Mutt. The Govt Of Kerala Enacted  The  Land Reforms  Amendment Act 1969, Thereby Acquiring Some Of His Land. On 21 March 1970, He Moved To The Supreme Court Under Article 32 For The Violation Of Article 25, 31, 14, 26, 19 1 ( F) Etc.

Issues Before The Court

  1. Whether Amendment 24, 25 Are Constitutionally Valid Or Not?
  2. Up to How Much Extent Can The Parliament Exercise Its Amending Power

Judgment 

The Court Upheld All The Previous Amendments, Thereby Quashing Its Orders In The Golaknath Case.
The Court Also  Elaborate The Powers Under Article 368. 
It Was Of The Opinion That An Amendment To The Constitution Is Not The Same As Law As Understood Under Article 13 (2).
 
There Are Two Kinds Of Functions Performed By The Parliament :
  1. Ordinary Law-Making Power 
  2. Amending Power By Special Majority Also Known As Constituent Power
“Constituent Power Is Supreme To Ordinary Legislative Power”.
 

The Minority Opinion 

The Minority Judgement Was Delivered By Justice A.n Ray ( Whose Elevation To The Office Of CJI Was Considered To Be Politically Motivated), Moreover Seven Of The Thirteen Judges Including Cj Sikri, Declared  Parliament Amending Power Is Subject To Some Inherent Limitation
It Cannot Us It’s Amending Power To Damage The Basic Framework Or Principle Of The Constitution. 
 

Indira Gandhi Vs Raj Narain[5] 

The Apex Court Once Again Got An Opportunity To Define Basic Structure. The Case Is Related With The Election Of  Former Pm Indira Nehru Gandhi. 
The Allahabad High Court Upheld The Election Of Former Pm. On Appeal To The Apex Court, It Stayed The Decision And Allowed Mrs Gandhi To Serve The Office. Meanwhile, The Parliament Enacted 39 Constitutional Amendment, That Took Away The Authority Of The Supreme Court To Adjudicate On The Issue. The Court Struck Down The Amendment As It Violated The Basic Structure As Power Of Judicial Review Comes Under It.
 

Status Quo Of The Doctrine

There Is No Hard And Fast Rule To Define As To What Constitutes Basic Structure.
Following Are The Views Of The Judges Regarding The Same ;
  1. Supremacy Of The Constitution
  2. Federalism
  3. Dual Form Of Govt 
  4. Secular Nature
  5. Judicial Review
  6. Independence Of Judiciary
  7. Sovereignty
The Court Was However Of The Opinion That There Is Not A Standard Definition Of Basic Structure. It Will Decides As To What Comes Under Basic Structure From Time To Time As The Cases Come Before It.

Conclusion

The Doctrine Of Basic Structure Cannot Be Defined In One Way. There Are Many Things That Form The Core Of The Constitution Without Which Our Constitution Is Meaningless.It Is The Concept That Cannot Be Absolutely Defined Unless A Judgement Of The Apex Court Spells It Court. Sovereignty, Judicial Review, Federalism, Dual Form Of Govt   Are Some Of The Essential Features That Have Occurred In Many Judicial Pronouncements.

References

1.(1973) 4 SCC 225
2.AIR. 1951 SC 458
3.1965 AIR 845,
4.1967 AIR 1643
5.1975 SCR (3) 333)
6. http://constitutionnet.org/vl/item/basic-structure-indian-constitution
Kartikey Pachauri | Aligarh Muslim University

Leave a Comment

Your email address will not be published.