The Ever-Evolving Doctrine of the Basic Structure

The Doctrine of Basic Structure can be said to have answered one of the most significant questions for the largest democratic country in the world. This article aims to give you an aerial view of the said doctrine and its journey hitherto.

The doctrine of basic structure though believed by some jurists to have firstly appeared in 1953 in the dissenting opinion given by Justice J.R. Mudholkar in the famous case of Sajjan Singh v. State of Rajasthan.[1]The preponderancy of the said doctrine can be attributed to the mere fact that the said doctrine was too adopted by the Supreme Court of Bangladesh in its ruling of Anwar Hossain Chowdhary v. Bangladesh. The doctrine of basic structure has not only set a precedent for Indian Jurists and Judiciary but also for nations across the globe, as the said doctrine also is recognized in Malaysia, Pakistan, and Uganda, etc.

Although the Concept of Basic Structure is not formally and expressly mentioned in the Indian Constitution. The doctrine was established by the Supreme Court of India in a catena of cases starting from the 1960s to the era of 1980s. The doctrine of Basic Structure was formally introduced by the Supreme Court of India on 24^th April 1973 in the case of Kesavananda Bharati Sripadagalvaru & Ors v. State of Kerela.[2]

The 48 years old doctrine still seems to be a novel one, Even today the Indian Judiciary equally recognizes and pays respect to the doctrine of basic structure and applies it when the circumstances in a democratic country like India warrants so.

The Doctrine

As we know that the Constitution of India provides for certain fundamental rights to the citizens of the country as enshrined in Part-III of the Constitution. But what if the State tries to encroach upon the rights of its citizens itself and turn arbitrary. The doctrine answers the very question and effectively tries to put a limitation on the power of the State or the Parliament.

“The Doctrine states that the Parliament under its constituent powers as enshrined in Article 368 of the Constitution cannot alter the basic structure of the Indian Constitution, meaning that Parliament cannot abridge or take away a Fundamental Right that forms a part of “basic structure of the Indian Constitution.”

The next question that should come to our mind is not that what is the basic structure of the Constitution but what constitutes the basic structure of the Constitution. As the former question cannot be answered in a straight- jacket formulae. And the latter part can be understood only by respecting the following cases and incidents that highlighted the tussle for power between the Judiciary and Legislature after the Independence: –

1. Shankari Prasad Singh Deo v. Union of India[3] Here the Constitutional validity of the First Amendment Act of 1951 which curtailed the right to property was challenged and subsequently, the Supreme Court ruled that the power of the Parliament to amend the Constitution under Article 368 also includes the power to amend the Fundamental Rights. Thereby meaning that Parliament can abridge the Fundamental Rights by enacting a Constitutional amendment and the same would not be void under Article 13 of the Constitution.

2. The stand as taken above was reversed by the Supreme Court in the case of I.C. Golaknath v. State of Punjab[4] where the Supreme Court invalidating the seventeenth Amendment Act of 1964 held that the Fundamental Rights are “transcendental and immutable” position and hence the Parliament cannot take away the Fundamental Rights by a Constitutional amendment, otherwise the same would attract sanctions under Article 13 of the Indian Constitution.

3. 24^th Amendment Act (1971) – The Parliament aggrieved by the stance of the Supreme Court of India taken in the case of I.C. Golaknath enacted the 24^th Amendment Act of 1971, the said act amended the Article 13 and Article 368 and neutralized the effect made by 1967 judgment and declared that the Parliament has the power to abridge or take away any of the Fundamental Rights under Article 368 and the same cannot be considered a law under the meaning of Article 13 of the Constitution.

4. Finally, in the year 1973, The Supreme Court of India got a chance to reiterate the same proposition in the landmark case Kesavananda Bharati Sripadagalvaru & Ors State of Kerela.[5], where the Supreme Court itself overruled its judgment as given in case of I.C. Golaknath [6]and subsequently upheld the validity of the 24^th Amendment Act of 1971 and observed: “ Parliament of India is empowered to take away or abridge the Fundamental Rights of the citizens but cannot abridge the Fundamental Rights that form part of the Basic Structure of the Constitution.”
   The Constitutional Bench of 13 Judges of the Supreme Court of India also affirmed that the constituent powers of the Parliament given by the Constitution do not enable it to alter the said basic structure of the Constitution.

5. Another important observation concerning the basic structure doctrine can be quoted from the case of Minerva Mills v. Union of India [7] where the bench headed by Justice Y.V. Chandrachud observed that “A
   limited amending power has been conferred by the Constitution upon the Parliament, indeed a limited amending power of the Constitution is one of the basic features of the Constitution and therefore, the limitations on that power cannot be destroyed.”

However, despite the long legal battle that existed between the Judiciary and the Legislature, the present position after the development of the Waman Rao Case of 1981 is that the Parliament under Article 368 of the Constitution can amend any part of the Constitution including Part -III or the Fundamental Rights without altering the basic structure as held in Kesavanada Bharati’s Case. The abovementioned cases can be well comprehended by analyzing the same in length and by diving the whole tussle into three time period i.e., Pre-Kesavanada Period, Kesavanda Period, and Post Kesavananda Period –

Dimensions of Doctrine of Basic Structure

Pre-Kesavananda Bharati Period

The first case in the timeline of the evolution of the doctrine of the basic structure stands to be Shankari Prasad Singh Deo v. Union of India[8], as we know that the First Amendment to the Constitution of India was introduced as early in 1951, the Amendment introduced Articles such as 31A and 31B that intended to create the 9^th schedule of the Constitution and henceforth provided that any law provided under the same could not be challenged on the ground for the violation of Fundamental Rights in respect to Article 13(2) of the Constitution.

In this case, the Hon’ble Supreme Court of India observed that “the word law as mentioned under Article 13(2) does not include an amendment to the Constitution of India” and the court thereby highlighted the distinction that exists between the constituent and legislative power of the Indian Parliament.

After the Shankari Prasad episode, The Supreme Court of India in Sajjan Singh v. State of Rajasthan got an opportunity to decide the validity of the seventeenth amendment act of 1964 to the Indian Constitution which has expressly added around 44 Statutes relating to the property to the 9^th Schedule of the Constitution.

The Constitutional bench headed by Justice Modhulkar observed that Article 13 is just limited to the ordinary laws not with the Constitutional amendment whereas the scope of Article 368 is limited in respect to Constitutional law, Despite dissenting opinions as given by Justice Hidyatullah the majority decision rested that the Parliament can amend the Fundamental Rights of the people.

Next in the timeline, is the case of I.C. Golaknath v. State of Punjab where again the Constitutional validity of the Seventeenth amendment act of 1963 was challenged. The question was raised whether the power to amend the Constitution is limited or unlimited. Until this case, it was believed by the previous judicial precedents that Article 368 is more powerful than Article 13 of the Indian Constitution.

Here, despite several dissenting opinions, the Constitutional Bench of the Hon’ble Supreme Court overturning its previous two judgments observed that fundamental rights are transcendental in nature and thereby cannot be abridged by the Parliament using its amending power under Article 368 of the Indian Constitution. Thus the power of the Parliament was effectively reduced by the Indian Judiciary and made subservient to the Part III of the Indian Constitution.

Distressed by the decision of the Supreme Court, the Parliament to neutralize the stance of Judiciary taken in 1967, enacted the controversial Twenty Fourth Amendment Act that aimed at amending Article 13 of the Constitution to make it inapt to any amendment made by the Parliament under Article 368 of the Indian Constitution. The said amendment act declared that the Parliament has the power to abridge or take away any of the Fundamental Rights under Article 368 and the same cannot be considered a “law” under the meaning of Article 13 of the Constitution.

Kesavananda Bharati Period

Finally, we come across the penultimate stage, which has led to the formulation of the Doctrine of Basic Structure of the Constitution. In the year 1973, the Constitutional validity of the Twenty-Fourth Amendment Act was challenged before the Supreme Court, the Twenty Fourth Amendment Act as discussed was challenged in the landmark case of Kesavananda Bharati Sripadagalvaru & Ors v. State of Kerela.[9]

The Thirteen Judge bench in 7:6 majority gave its historic verdict on 24^th April 1973 and subsequently formulated the ever-evolving doctrine of basic structure, that has saved the Indian Democracy at times. The Bench headed by Justice S.M. Sikri upheld the validity of Twenty Fourth Amendment Act and overruled the Golaknath case and subsequently held that the power of the Parliament to amend the Constitution is far and wide and extends to all article and provisions including the Fundamental Rights but this power is not unlimited to an extent that it destroys the basic structure of the Indian Constitution.

The Hon’ble Bench however did not expressly provide as to what constitutes the basic structure of the Indian Constitution but the illustrative list of the same can be found in the observation made by the following Judges of the respective bench –

Chief Justice Sikri, observed that –

• The Supremacy of the Constitution
• Secular Character of the Constitution.
• Separation of Powers between the three organs
• Federal Character of the Constitution.

Would constitute the basic structure.

Justice Shelat and Grover held –

• The sovereignty of the Country
• Maintenance of the unity and integrity of India
• Mandate to build a welfare state

Would constitute the part of the doctrine of the basic structure of the Constitution. Earlier the Golaknath had made all the fundamental rights non-amenable but this Historic Judgement provided certain flexibility by making only fundamental rights enshrined under the basic structure non-amenable

As discussed earlier in the article that no straight jacket formulae could be applied when determining the constituents of the doctrine of basic structure, the said doctrine is an ever-evolving one and cannot be circumscribed into a single definition.

From now on in this article, we would discuss the evolution of the doctrine which has taken place after its formal inception in April of 1973 or the Post- Kesavananda Period.

Post-Kesavanda Bharati Period

The Doctrine of Basic Structure as developed in 1973 was reaffirmed and applied by the Supreme Court of India in the year 1975 in the case of Indira Nehru Gandhi v. Raj Narain[10]whereby the Apex Court invalidated the 39^th Amendment Act to the Constitution invoking the same doctrine as the amendment aimed at keeping the election disputes to the Prime Minister and the Speaker outside the jurisdiction of the courts.

The Court by invoking the blissful doctrine held that this provision was beyond the amending powers of the Parliament as it affected the doctrine of basic structure. Here in the same case, the Supreme Court observed “Judicial Review and Free and Fair Elections” as part of the basic structure doctrine which cannot be altered by an amendment to the Constitution by the Parliament under Article 368 of the Constitution of India.

However again to nullify the effect of this judgment the Parliament enacted the Forty-Second Amendment Act of 1976 which there is no limitation on the amending powers of the Parliament and the same cannot be called into question in any court of law

Again, the Supreme Court of India in the case of Minerva Mills v. Union of India[11] invalidated the said enactment (42^nd Amendment Act 1976) of the Parliament observing “Donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one.” And held that the judicial review forms part of the basic structure of the Indian Constitution.

Justice Chandrachud additionally observed in the said case that “The Indian Constitution is founded on the bedrock of the balance between the Part III and Part IV, to give absolute primacy to the one over the other is to disturb the Harmony of the Constitution. The harmony and balance between Fundamental Rights and Directive Principles is an essential feature of the basic structure of the India Constitution”.

Conclusively, in the light of Waman Rao & Ors. v. Union of India[12], it can be held that in the present scenario any Constitutional amendments enacted after April 24, 1973 (Date of Kesavanada Bharati Judgment) are equally subjected to the Basic Structure Doctrine, henceforth the Parliament can amend the Fundamental Rights and provisions of the Constitution under Article 368 but not the ones or without effecting the framework laid down by the Basic Structure Doctrine of 1973.

The said doctrine or principle so evolved is also known to be as “Doctrine of Prospective Overruling”. The Apex Court thus cleared the confusion so created by the Kesavanada Bharati’s Case by demarcating a line between the laws created before and after the Kesavananda Bharati Judgment.

New Dimensions to the Doctrine of Basic Structure

• Justice K.S. Puttaswamy & Ors v. Union of India[13](Right to Privacy Case)

The Apex Court while determining another significant proposition as to whether or not right to privacy constitutes a part of Fundamental Right or not – Justice Nariman trusted on the basic structure doctrine in his judgment to hold that the Constitution is a living document. And expressly observed in his judgment.

“The Constitutional provisions have to be construed having regard to the march of time and the development of law. While construing the doctrine of the basic structure due regard be had to various decisions which led to expansion and development of the law.”

And conclusively in the same case, the reliance upon the Doctrine of Basic Structure helped the Apex Court to uphold the fundamental right to privacy as a part of Article 21 of the Indian Constitution.

• Madras Bar Association v. Union of India & Anr[14]

The Hon’ble Supreme Court of India while determining the validity National Company Law Tribunal and National Company Law Appellate Tribunal observed that transferring judicial function, traditionally performed by the Courts, to the Tribunals offended the basic structure of the Constitution.” The Hon’ble Apex Court additionally observed that the power of Judicial review and the Powers of the High Court under Article 226 and Article 227 forms the part of the basic structure of the Indian Constitution.

• Supreme Court Advocates on Record Association v. Union of India[15] (NJAC Judgment)

In the said case the Supreme Court was determining the validity of the 99^th Amendment to the Constitution was challenged and it was duly observed by the Hon’ble Justice Khehar that for examining the Constitutional validity of an ordinary legislative enactment, all the Constitutional provisions, on the basis to which the concerned “basic feature” arise, are available and even the breach of single provision is sufficient to render the legislation as unconstitutional.

The basis of the Doctrine of 1973 helped the Indian Judiciary in the said case to persevere the sanctity and the Independence of the Judiciary from the arbitrary amending powers of the Parliament.

• Andhra Pradesh State Council of Higher Education v. Union of India.[16]

The Bench headed by Justice V. Gopala Gowda who presided over the bench set aside the action of banks in freezing the accounts of the Andhra Pradesh State Council (APSC) as wholly indefensible under the law. Earlier the Andhra Pradesh High Court had upheld the claim of the state of Telangana over the entire funds and assets of the erstwhile APSC, after the reorganization of Telangana. Setting aside the Hon’ble High court’s judgment, the Supreme Court of India emphasized that the Constitution envisages federalism, held to be a part of the basic structure in S.R. Bommai V. Union of India.

• State (NCT Of Delhi) v. Union of India & Anr.[17]

The Apex Court of India where the question posed before the court was whether the inhabitants of Delhi remain where they were prior to the conferring of special status on the Union Territory, subsequently the bench headed by the Chief Justice of India Dipak Misra made an important observation concerning Doctrine of Basic Structure

“After the evolution of the doctrine of basic structure post-Kesavananda, the interpretation of the Constitution must be guided by those fundamental tenets which constitute the foundation and basic features of the Constitution. Where a provision of the Constitution is intended to facilitate participatory governance, the interpretation which the court places must enhance the values of democracy and of republican form of Government which are part of the basic features.”

Conclusion

We can conclusively hold the view, that the doctrine of the basic structure as promulgated by the Supreme Court of India is an evolving one, and there seems to be no hard and fast rule with regard to this doctrine, this doctrine has stood times and is even today used to circumscribe the limits of the legislature in a democratic country like India. The Doctrine of Basic Structure holds its own distinctive significance that can be deciphered easily from the fact after its innovation, the same was ratified by countries like Bangladesh, Pakistan, Uganda, and Malaysia.

The Doctrine of Basic Structure has always preserved the Independence of the Judicial System, the essence of democratic arrangement, and has carried forward with unparalleled principles &concepts like Separation of Powers, Equality, Rule of Law and Effective access to justice, etc. which are not only important for democratic countries like India but any welfare state.

Even in contemporary times, this doctrine is being applied by various stakeholders of the judicial systems to challenge the amendments and legislations made by the legislative organ of the state. In India, the constitutional validity of legislations like The Citizenship Amendment Act,2019; the Constitution (103rd Amendment) Act, 2019 regarding the reservation for EWS; Farmers’ (Empowerment and Protection) Agreement of Price Assurance and Farm Services Act, 2020 are being still challenged before the Apex court on the ground of dereliction of the doctrine of basic structure.

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[1] Sajjan Singh v. State of Rajasthan AIR 1965 SC 845 (India).

[2] Kesavananda Bharati Sripadagalvaru & Ors v. Union of India AIR 1973 SC 1461(India).

[3] Shankari Prasad Singh Deo v. Union of India AIR 1951 SC 458 (India).

[4] I.C. Golaknath v. State of Punjab AIR 1967 SC 1643 (India).

[5] Supra.

[6] Ibid.

[7] Minerva Mills v. Union of India AIR 1980 SC 1789 (India).

[8] Supra.

[9] AIR 1973 SC 1461(India).

[10] Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299 (India).

[11] AIR 1980 SC 1789 (India).

[12] Waman Rao & Ors. v. Union of India (1981) 2 SCC 362 (India).

[13] Justice K.S.Puttaswamy & Ors v. Union of India (W.P. (C) NO 494/2012).

[14] Madras Bar Association v. Union of India & Anr (2014) 10 SCC 1 (India).

[15] Supreme Court Advocates on Record Association v. Union of India (W.P. (C) no. 13/2015).

[16] APSC v. Union of India (Civil Appeal No.3021/2016).

[17] State (NCT Of Delhi) v. Union of India & Anr. (Civil Appeal No. 2357/2017).

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