EVOLUTION OF THE BASIC STRUCTURE DOCTRINE OF INDIAN CONSTITUTION

WHAT IS BASIC STRUCTURE DOCTRINE?

Although the doctrine of ‘Basic Structure’ is nowhere defined but is the foundation that lays down the basic features of our Indian Constitution such as its supremacy, sovereignty, republic nature of our country India and its polity, Rule of Law, Separation of Powers, liberty, judicial review, secularism and much more.

It should be noted that our Indian Constitution empowers Parliament and State Legislatures to enact law for their respective jurisdictions but the power to amend any legislation so enacted vests only with the Parliament. However, this power of Parliament to amend the law is not absolute as judiciary on other hand has power to declare any such law void or unconstitutional that is vague or contrary to welfare of public or is inconsistent with the Indian Constitution.

The doctrine was brought into the system for the following reasons-

·       To preserve and protect the spirit of Indian Constitution

·       To protect the rights and liberties of Indian citizens

·       To preserve the ideology and values of Indian Constitution

Certain existing ambiguities or loopholes in our Indian Constitution mandated the evolution of Basic Structure Doctrine. Article 13 of Indian Constitution serves to protect the Fundamental Rights whereas Article 368 empowers Parliament to amend the Constitution. These both articles contradict each other and puts before several questions whether Parliament has power to amend the Constitution? Can the Preamble be amended? Can the Fundamental Rights be amended? Is the power of Parliament under Article 368 is absolute? Who is supreme, the Supreme Court or Parliament?

However, there was a tussle and a skirmish between both the organs of government.

This Basic Structure Doctrine limited the power of Parliament to amend law. Parliament cannot amend or change any law which results in destruction or alteration of Basic structure and if such law exists, it would subsequently be declared null and void by the Supreme Court (Judiciary).

Let us understand the evolution of Basic Structure Doctrine through landmark judicial pronouncements.

LANDMARK JUDICIAL PRONOUNCEMENTS-

1.     Shankari Prasad V Union of India

Facts- The very first Constitutional Amendment Act of 1951 was the beginning of such tussle. This amendment was challenged in this case. This amendment was related to abolishment of Zamindari system. In this amendment, there were certain laws which were brought in that were curtailing the right to property and in order to protect those laws, Article 31-A and 31-B and 9^th Schedule were inserted in the Constitution.

However, people started looking and considering these both articles as an attack to their right to property.

Issue- the question involved was whether Parliament has right to amend the fundamental rights?

Held- it was observed by the Supreme Court that Article 13(2) that protects the Fundamental Rights contains the term ‘law’. This term in ordinary sense depicts only the law which is made in exercising the legislative powers. Further, Article 368 includes the power to amend fundamental rights as well. The Supreme Court declared this amendment of 1951 as valid.

2.     Sajjan Singh V State Of Rajasthan

Facts- in this case, the 17^th Amendment Act was challenged as it was restricting th powers of High court.

Issue- the similar question was involved as to hat can be amended and what cannot be amended?

Held- the Supreme Court referring to the earlier judgment of Shankari Prasad Case held that meaning of Amendment of Constitution under Article 368 means that Parliament has power to amend any part of Constitution including the Fundamental Rights. However, there was dissenting opinion of two judges named Justice Hidayatullah and Mudholkar who stated that Constitution has a certain feature which is basic in nature and that feature cannot be amended or altered.

3.     Golaknath V State of Punjab

Facts- Again the 17^th Amendment Act was challenged. In this case, there were the families of farmlands in Jalandhar. However, the Parliament passed an act that declared such farmlands illegal and it would be subsequently acquired by the Government. This acquired land was to be distributed among tenants working on such land and the families would be getting 10-20% of land.

Right to hold property under Article 19(f), right to practice and profession under Article 19(g) and Article 14 that provides Right to Equality were violated.

For the first time, 11 judge’s bench was constituted thereby making it an important judgment.

      Issue- Whether the power to amend Fundamental Rights is unlimited or limited? The    question involved was the validity of Punjab Land Security Act, 1953 and the Mysore Land Reforms Act

Held- The Supreme Court observed that the power of parliament to amend the Constitution including the Fundamental rights is not unlimited and is subject to the judicial review by the Courts.

The eleven judge’s bench overruled that earlier decisions and held that Fundamental Rights are sacrosanct and basic part of the Indian Constitution. Further, Article 368 only prescribes the procedure to amend the Constitution and does not give absolute powers to amend any part of Constitution.

This case reversed the position and declared that Article 368 is subject to limitations and the term ‘law’ used in Article 13(2) includes amendment and if any amendment violates Fundamental rights shall be null and void.

 

 However, the decision in Golaknath Case was indigestible for the Parliament as a result of which in 1971, 24^th Amendment Act was passed which inserted Article 13(4) and stated that nothing in Article 13 shall affect the amending power of Parliament under Article 368. In other words, the Article 368 would not attract the judicial review. Also, under Article 368, the marginal heading was changed from ‘Procedure for amending the Constitution’ to ‘The power of Parliament to amend the Constitution and the procedure thereof’. Further, Article 368 (3) was inserted that provided that nothing in Article 13 shall apply to Article 368.

Therefore, the decision held in Golaknath case holds no value after the 24^th Amendment Act and it was clear that Parliament can dilute the Constitution including the Fundamental Rights.

4.     Kesavananda Bharati V State of Kerala

Facts- in this case, 6 different writ petitions were filed and the lead petitioner named His Holiness Kesavananda Bharati Sripadagalvaru who was a leader of a math in Kerala, challenged the 24^th Amendment Act that placed the Kerala Land Reforms Act, 1963 into the 9^th schedule. A bench of 13 judges was constituted to hear the matter and it lasts for about

Issue- the issue involved was that what was the scope of amendment that Parliament has?

Held- this was the landmark judicial judgment that laid down the ‘Basic Structure Doctrine’ and Justice H.R.Khanna propounded this doctrine.

The Supreme Court upheld the Land Reforms Act and the Amendment act that was in question. By 7:6 majority, the court held that decision in Golaknath case was not correct and that Parliament can amend fundamental rights without changing the basic structure of our Indian Constitution. It was observed hat Basic Structure could not be revoked even by any constitutional amendment.

The court thereby giving the balanced and fair judgment held that power to amend the constitution was already implicit in the Constitution. The 24^th amendment act merely made it declaratory. However the basic features cannot be amended and the basic structure doctrine should be maintained.

Therefore, as far as the scope of amendment is concerned, the court held that the constitutional makers did not intend to use the word ‘amendment’ in its widest sense. Rather, they intended that fundamental rights as well as fundamental features would always survive through in a welfare state.

Also, any decrease or increase in the powers of Parliament under Article 38 should not authorize or permits the legislature to destroy the basic feature of Indian Constitution.

5.     Indira Gandhi V Raj Narain

·       In this case, certain features were added and considered as the basic features of our Indian Constitution.

·       39^th Amendment Act was invalidated which was passed  in 1975

·       Clause 4 and Clause 5 were inserted to Article 368 by way of 42^nd Amendment Act which provided that even if Part III of Indian Constitution was amended, then it cannot be questioned or challenged in any court. Therefore, there is no limitation on powers of Parliament to amend the Constitution.

·       This case put an end to the tussle between who is supreme? Whether the parliament is supreme or Judiciary?

·       It was observed that the Parliament represents the will of the people and if people wish to amend the constitution they can exercise the same by way of parliament.

·       Further, Supreme Court observed that the doctrine of ‘Basic Structure’ is very vague and ambiguous and this situation is rectified by the newly inserted clauses to Article 368.

Now Parliament passed 42^nd Amendment that again altered Article 368 and stated that power of Parliament has no limitations and that no court can question any of the amendment brought in by the Parliament on any ground even including the infringement of fundamental rights.

6.     Minerva Mills V Union of India

In this case, the 42^nd Amendment was challenged. The Supreme Court invalidated the said amendment. The court observed that Clause 4 and Clause 5 inserted was in contradiction to the basic features of the Constitution.

After this case it was settled that the Indian Constitution is supreme and the Parliament cannot exercise unlimited amending powers. Therefore, Indian Constitution is a precious heritage and one cannot destroy its identity.

GURNEET KAUR

BBA LLB (H)

ICFAI UNIVERSITY, DEHRADUN

Disclaimer: This article is the personal opinion of the author. The views and opinions expressed in this article are those of the authors and do not necessarily reflect the official policy or position of any Indian Government or any other Government of the world.