BASIC STRUCTURE OF CONSTITUTION

“The temporary will of majority cannot overwhelm or neutralise permanent and fundamental building blocks and vision of our founding fathers”.

The concept of the Basic Structure of the Constitution emerged from the landmark judgment in the Kesavananda Bharati vs State of Kerala case in 1973. Although not explicitly mentioned in the Constitution, this judicial innovation ensures that fundamental and core principles, such as judicial review and the principle of equality, remain inviolable. Understanding these principles is essential for IAS aspirants, as they form the foundation of the Indian polity and are crucial for the UPSC exam.

• Basic and fundamental provisions constitute the basic and core building blocks of constitution.
• According to the Constitution, Parliament and state legislatures in India can make laws within their respective jurisdictions, but this power is not absolute. The judiciary has the authority to determine the constitutional validity of these laws.
• If a law violates the Constitution, the Supreme Court can declare it invalid. Although Parliament has the power to amend the Constitution under Article 368, this power is not unlimited.
• Judicially Innovated Doctrine: The Supreme Court, aiming to preserve the original ideals of the Constitution, ruled in the 1973 Kesavananda Bharati case that Parliament cannot alter the Constitution’s basic structure.
  • Since then, the Supreme Court has been the final interpreter of the Constitution and its amendments.
  • However, Supreme Court has yet to define or clarify what constitutes the ‘basic structure’ of the Constitution
•  The term “basic structure” is not mentioned in the constitution.

Shankari Prasad Case 1951

• Question of amenability of FUNDAMENTAL RIGHTS under Art 368; challenged first CAA (Fundamental Right to Property) 1951.
• Parliament can abridge or take away any of the FR by enacting a constitutional amendment act and such a law will not be void under Art. 13 (‘law’ in Art. 13 includes only ordinary laws and not constituent laws)

Golakhnath case 1967

• SC ruled that the FR as ‘transcendental and immutable’ position
• Hence, the Parliament cannot abridge or take away any of fundamental rights.

24th CAA 1971

• Asserted parliament has the power to abridge or take away any of the FR under Art. 368 and such an act will be out of ambit of meaning of ‘law’ under Art 13.

Kesavananda Bharati case 1973

• Reversed its decision from the Golak Nath case (1967).
• Asserted that Parliament has the authority to limit or revoke any of the fundamental rights.
• Established a new principle called the ‘basic structure’ of the Constitution.
• Decided that Parliament’s authority under Article 368 doesn’t allow it to change the ‘basic structure’ of the Constitution.
• Parliament cannot abridge or take away a Fundamental Right that forms a part of the ‘basic structure’ of the Constitution.

EFFECTS OF KESAVANANDA BHARTI CASE

• It has set specific limits to the Parliament’s power to amend the Constitution.
• It allows the Parliament to amend any and all parts of the Constitution subject to basic structure.
• It places the Judiciary as the final authority in deciding if an amendment violates basic structure and what constitutes the basic structure.

42nd CAA 1976 –

• Amended Article 368 to remove any restrictions on the constituent power of PARLIAMENT.
• No court can question any amendment on any grounds.

Minerva Mills Case 1980 –

• Invalidated provisions of 42nd CAA as it excluded judicial review (basic feature)
• Limited amendment power of parliament is part of basic structure.
• Parliament cannot expand its amending power under article 368 to unlimited extent.

Waman Rao Case 1981-

• SC clarified that the doctrine would be apply to constitutional amendments enacted after April 24, 1973 (Kesavananda Bharati case) (Including 9th schedule)

Present Position

• Parliament (under Art. 368) can amend any part of the Constitution including the FUNDAMENTAL RIGHTS subject to the ‘basic structure’ doctrine.

Kesavananda Bharati Case

• Chief Justice Sikri, CJI:
  1. Supremacy of the Constitution
  2. Republican and democratic form of government
  3. Secular character of the Constitution
  4. Separation of powers between the legislature, executive and the judiciary
  5. Federal character of the Constitution

• Justices Shelat, J. and Grover, J.:
  1. The mandate to build a welfare state contained in the Directive Principles of State Policy.
  2. Unity and integrity of the nation
  3. Sovereignty of the country

• Justices Hegde, J. and Mukherjea, J.:
  1. Democratic character of the polity
  2. Unity of the country
  3. Essential features of the individual freedoms secured to the citizens
  4. Mandate to build a welfare state Unity and integrity of the nation

• Justice Jaganmohan Reddy, J.:
  1. Equality of status and the opportunity
  2. Sovereign democratic republic
  3. Justice – social, economic and political
  4. Liberty of thought, expression, belief, faith and worship

Indira Nehru Gandhi v. Raj Narain, 1975:

• Justice H.R. Khanna:
  1. Democracy is a basic feature of the Constitution and includes free and fair elections.

• Justice K.K. Thomas :
  1. power of judicial review is an essential feature.

• Justice Y.V. Chandrachud:
  1. Sovereign democratic republic status
  2. Equality of status and opportunity of an individual
  3. Secularism and freedom of conscience and religion
  4. 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:

1. The unity and integrity of the nation and Parliamentary system.

Bommai v. Union of India,1994 and Poudyal v.Union of India, 1994:

1. 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):

1. “Judicial review is a part of the basic constitutional structure and one of the basic features of the essential Indian Constitutional Policy.”
2. Several Articles in the Constitution, such as Articles 32, 136, 226 and 227, ensure judicial review of legislation and administrative action.

Kihoto hollohan Vs. Zachillhu, 1992:

1. Democracy is a basic structure of our Constitution
2. Rule of law and free and fair elections are basic features of democracy.

Chandra Kumar v. Union of India (1997):

• Chief Justice Sikri
  1. The supremacy of the constitution.
  2. A republican and democratic form of government.
  3. The secular character of the Constitution.
  4. Maintenance of the separation of powers.
  5. The federal character of the Constitution.

• Justices Shelat and Grover
  1. Preserving the unity and integrity of India
  2. The sovereignty of the country
  3. The sovereignty of India
  4. The democratic character of the polity
  5. The unity of the country
  6. Essential features of individual freedoms
  7. The mandate to build a welfare state

In a plethora of various other cases:

1. Independent Judiciary is a fundamental feature of the Constitution and an essential component of democracy.

• No constitutional basis and amounts to rewriting of constitution.
  • The doctrine lacks a textual foundation in the Constitution
  • The Constitution doesn’t state that it has a basic structure that cannot be changed by amendments.
• It is an illegitimate infringement of judiciary on the principle of majority rule.
  • If a constitutional court tries to check the content of constitutional changes, it could be risky for a democratic system.
  • In a democracy, the power to make amendments belongs to the people or their representatives, not to judges.
• What constitutes basic structure is matter of subjectivity.
  • Each judge interprets the concept of basic structure based on their own subjective satisfaction.
  • This leads to the fact that the validity of invalidity of the Constitution Amendment lies on the personal preference of each judge and the judges will acquire the power to amend the Constitution
• Turns the judiciary into a third decisive chamber of Parliament.
• Amending the Constitution is the duty of the two houses of the Parliament.
  • But by invoking the basic strcuture doctrine the Judiciary acts as the third house and thereby renders the work done by the Parliament meaningless.
• Amending the Constitution, even to change the original intention of the Constitution framers,
  • In today’s world, changing the original intention of the Constitution framers through amendments might be necessary, but it could pose challenges for future generations who have to abide by the Constitution.
  • So, saying that an amendment doesn’t align with what the founding fathers originally meant would mean it’s not valid.

• The Basic Struccture doctrine is one of the biggest contributions of Indian Judiciary to theory of constitutionalism.
• The doctrine has helped in maintaining supremacy of the Constitution and has prevented its destruction by a temporary majority in Parliament.
• Seeks to preserve constitutional principles and basic ideals envisioned by founding fathers.
• Privileges uncertain democracy over certain tyranny.
  • It acts as a limitation upon the constituent power and has helped in arresting the forces which may destabilize the democracy.
  • Parliament does not and should not have an unlimited power to amend the Constitution.
  • As events unfolded, the basic structure doctrine proved to be a safeguard for Indian democracy.
• If the doctrine didn’t exist, India would likely have become a dictatorship or been ruled by a single political party.
  • Example: the amendments that were made during the Emergency would have derailed the democratic set up of our Constitution.
• Judiciary applied doctrine responsibly and threshold has set very high.
  • 99th CAA 2015 of NJAC had struck down on grounds of violation of basic structure of constitution, doctrine applied almost gap of 35 years.

• SC of Bangladesh applied same doctrine in 1989 to Bangla constitution.
• 79 (3) of basic law of Germany also speaks of certain fundamental principles being non-amendable.

Conclusion

The Basic Structure doctrine is a vital safeguard that preserves the integrity and core values of the Indian Constitution against temporary majorities in Parliament. Despite criticisms, it has played a crucial role in maintaining constitutional supremacy and preventing the erosion of democratic principles. By setting limits on Parliament’s power to amend the Constitution, the judiciary ensures that the foundational vision of India’s founding fathers is upheld, protecting the nation’s democratic framework.

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