Basic Structure Doctrine: Evolution, Significance & Criticisms

Basic Structure Doctrine: Evolution and Judicial Interpretation #

The Basic structure doctrine is a legal doctrine, according to which, the constitution of a sovereign state has certain provisions in it that are most essential in the functioning of the state and thus the Legislature of state cannot erase these provisions.

• The theory of the basic structure of the Indian Constitution has had a significant and enduring impact on its evolution.
• Origin: The theory in itself is an example of a living constitution. 
  • The Constitution does not explicitly reference this theory. 
  • It has emerged from judicial interpretation. 
  • Therefore, the judiciary and its interpretation have effectively altered the Constitution without undergoing a formal amendment process.
  • The term ‘basic structure’ was first introduced by M.K. Nambiar and other counsels during their arguments for the petitioners in the Golaknath case (1967), but it was only in 1973 that the concept surfaced in the text of the Supreme Court’s verdict in Kesavananda Bharati Case 1973.

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Evolution of the Basic Structure Doctrine in India: Key Supreme Court Cases and Constitutional Amendments #

Amendments under Article 368 & Basic Structure Doctrine in the Present Context #

• Under Article 368, Parliament can amend any part of the Constitution including the Fundamental Rights but without affecting the ‘basic structure’ of the Constitution. 
• The Supreme Court has not yet provided a definitive definition or clarification regarding what constitutes the ‘basic structure’ of the Constitution.

Impact of the Basic Structure Doctrine on Indian Jurisprudence #

The Judiciary advanced this theory in the famous case of Kesavananda Bharati (1973). This judgment has contributed to the development of the Constitution in the following manners:

• Limitation on Power of Parliament:  It has set specific limits to Parliament’s power to amend the Constitution.
• Upholding Constitutional Integrity: It says that no amendment can the basic structure of the Constitution.
• Powers of Parliament Within Constitutional Limits: It allows Parliament to amend any and all parts of the Constitution (within this limitation); 
• Final Authority of the Judiciary: It establishes the Judiciary as the ultimate arbiter in determining whether an amendment violates the basic structure and in defining what constitutes the basic structure.
• Core Values of Constitution: The apex court held that some features of the Constitution lay at its core and required much more than the usual procedures to change them.
• Recognition by All: In the past four decades, this decision has governed all interpretations of the Constitution and all institutions in the country have accepted the theory of basic structure.

Basic Structure Doctrine in India: Evaluating Criticisms and Upholding Constitutional Integrity  #

• No Constitutional Basis: It is not defined in the constitution nor in any statute and amounts to rewriting of the constitution without amendment procedure.
• Encroachment of Power: It is an illegitimate infringement of the judiciary on principle of majority rule. It grants unelected judges the authority to limit the actions of a democratically elected legislature.
• Undemocratic: It goes against democracy, majoritarianism and popular sovereignty.
  • Democracy mandates that the final say on all issues concerning society must be left to the majority of the people, acting through their elected representatives 
• No Definition: Judiciary also has not defined what constitutes basic structure. It has been decided by the judiciary on a case to case basis and hence it  is a matter of subjectivity.
• Supreme Control: Translates judiciary into third decisive chamber of parliament.

Significance of the Basic Structure Doctrine: Constitutional Sovereignty, Core Values and the Role of Judiciary #

• Constitutional Sovereignty: India adheres to a model of constitutional sovereignty, imposing constraints on regular legislative authority.
• Modern Politics is Questionable: The degree of representation and public support political parties in power enjoy in modern democracies is questionable (Defection ,Money power, Criminalisation of politics etc)
• Core Values of Constitution: Even in a democracy, there are certain decisions which, in principle, must not be left to the majority.(Like independence of judiciary, separation of powers, article 368 itself, Fundamental rights)
• The Judiciary ought to Serve as the Ultimate Authority: : As the ultimate interpreter and protector of the constitution, the Judiciary would use this doctrine carefully, with a very high standard set.
  • The 99th CAA 2015 of NJAC was struck down on grounds of violation of the basic structure of the constitution, as this act allows  the executive to encroach on the power of Judiciary which is against the separation power.
• Ultimate Counter-Majoritarian: According to Professor Sathe, the basic structure doctrine is essentially the “ultimate counter-majoritarian” check upon democracy”. 
  • It defines democracy itself as separate from majoritarianism, it means the deciding authority must be of a non-majoritarian character and so, cannot be the Parliament.
• It seeks to preserve constitutional principles envisioned by founding fathers like (Value like Democratic, Secular, Republic, Unity, Integrity etc)

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World Examples #

• The SC of Bangladesh applied the same doctrine in 1989 to the Bangla constitution.
• Article 79 (3) of the Basic Law of Germany also addresses certain fundamental principles that are not subject to amendment.

Basic Structure Doctrine: Components Revealed Through Judicial Pronouncements #

• Kesavananda Bharati Case
  • Chief Justice Sikri, CJI:
    • Supremacy of the Constitution
    • Republican and democratic form of government
    • Secular character of the Constitution
    • Separation of powers between the legislature, executive and the judiciary
    • Federal character of the Constitution
• Justices Shelat, J. and Grover, J.:
  • The directive to establish a welfare state is outlined in the Directive Principles of State Policy.
  • Unity and integrity of the nation
  • Sovereignty of the country
• Justices Hegde, J. and Mukherjea, J.:
  • Democratic character of the polity
  • Unity of the country
  • Essential features of the individual freedoms secured to citizens
  • Mandate to build a welfare state Unity and integrity of the nation
• Justice Jaganmohan Reddy, J.:
  • Equality of status and the opportunity
  • Sovereign democratic republic
  • Justice: social, economic and political
  • Liberty of thought, expression, belief, faith and worship
• Indira Nehru Gandhi v. Raj Narain, 1975:
  • Justice H.R. Khanna:
    • Democracy is a basic feature of the Constitution, ensuring free and fair elections.
  • Justice K.K. Thomas :
    • power of judicial review is an essential feature.
• Justice Y.V. Chandrachud:
  • Sovereign democratic republic status
  • Equality of status and opportunity of an individual
  • Secularism and freedom of conscience and religion
  • Government of laws and not of men i.e. the rule of law
• Nachane, Ashwini Shivram v. State of Maharashtra, 1998:
  • The doctrine of equality enshrined in Art.14 of the Constitution, which is the basis of the Rule of Law, is the basic feature of the Constitution.
• Raghunath Rao v. Union of India case, 1993:
  • The unity and integrity of the nation and Parliamentary system.
• Bommai v. Union of India, 1994, and R.C. Poudyal v. Union of India, 1994:
  • Secularism and “Democracy and Federalism are essential features of our Constitution and are part of its basic structure.”
• Sampath Kumar v. Union of India (1987), L.Chandrakumar v. Union of India (1997), Waman Rao v. Union of India(1981), Subhesh Sharma v. Union of India (1991), Minerva Mills v.Union of India(1980):
  • “Judicial review is a part of the basic constitutional structure and one of the basic features of the essential Indian Constitutional Policy.”
  • Various provisions in the Constitution, including Articles 32, 136, 226, and 227, ensure judicial review of legislation and administrative actions.
• Kihoto hollohan Vs. Zachillhu, 1992:
  • Democracy is part of the basic structure of our Constitution, and rule of law; and free and fair elections are basic features of democracy.
• Chandra Kumar v. Union of India (1997):
  • Chief Justice Sikri
    • The supremacy of the constitution.
    • A republican and democratic form of government.
    • The secular character of the Constitution.
    • Maintenance of the separation of powers.
    • The federal character of the Constitution.
• Justices Shelat and Grover
  • The unity and integrity of India
  • The sovereignty of the country
  • The sovereignty of India
  • The democratic character of the polity
  • The unity of the country
  • Essential features of individual freedoms
  • The mandate to build a welfare state
• In a Plethora of Various Other Cases:
  • The independence of the judiciary is a basic feature of the Constitution, as it is indispensable (sine qua non) for democracy.

Judicious Application of the Basic Structure Doctrine #

• Expansion of Incorporated Rights: The evolution of the Constitution’s basic structure since its inception in the 1970s is unquestionable, with a continual expansion of incorporated rights over the years by the judicial proceedings
• Judicial Oversight: This transformation is the culmination of extensive court oversight of fundamental rights and the constitutional framework.
  • The doctrine, which restrains the influence of evolving societal concerns, stands as a judicious and well-advised safeguard.
• Safeguarding Constitutional Integrity: However, it is essential to recognize the limits of this doctrine.
  •  While it serves as a guardian of constitutional integrity, it should not be employed to contest regular legislation which would potentially undermine the very foundations of the Constitution itself.
• Potential Dangers: Applying the basic structure theory to assess the constitutionality of ordinary legislation might well be akin to a destructive force, jeopardizing the fundamental structure of our Constitution. 
• Judicious Application: As we reflect on the development of this constitutional doctrine, it becomes clear that its application, while invaluable in preserving fundamental principles, must be judiciously and precisely exercised to maintain the delicate balance of our constitutional system.