Explain the doctrine of basic structure with the help of decided cases. Why has this doctrine been evolved by the judiciary?

Question: Explain the doctrine of basic structure with the help of decided cases. Why has this doctrine been evolved by the judiciary? [BJS 2018]

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Answer

The ‘Doctrine of Basic Structure’ is a doctrine that was propounded by the Indian Judiciary on 24th April 1973 in the famous Keshavananda Bharati case to put a restriction on the correcting forces of the Parliament so that the ‘fundamental structure of the essential law of the land can’t be revised in the exercise of its ‘constituent force’ under the Constitution.

This Doctrine was evolved in regard to the power of Parliament to make amendments to the constitution to the extent which has the effect of violating or abridging of the Fundamental Rights as safeguarded by the Constitution under Part III. Fundamental rights as enshrined in the Indian Constitution are amendable under Article 368 but the limitation imposed by the Judiciary that the power must not extend to the level of destroying the basic structure of the Constitution led to the emergence of ‘Doctrine of Basic Structure’.

The Parliament has the power to make law within its jurisdiction, but this power is not absolute. To preserve the ideals and philosophy of the original constitution, the Supreme Court has laid down the basic structure doctrine. The doctrine allows the Supreme Court to strike down any amendments that may alter the ‘basic structure’ of the constitution. This doctrine is only applicable to the situation of Constitutional Amendments.

This has been decided by the Supreme Court in a series of cases which are discussed as below:

• Shankari Prasad v. Union of India (AIR 1951 SC 458)

The validity of the First Amendment Act to the Constitution was challenged on the ground that it purported to abridge the Fundamental Rights under Part 3 of the Constitution of India. Supreme Court held that the power to amend the Constitution, including Fundamental Rights is contained in Article 368. An amendment is not a law within the meaning of Article 13(2) because this provision states that the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention to this clause shall, to the extent of the contravention, be void.

• Sajjan Singh v. State of Rajasthan (AIR 1965 SC 845)

The validity of the 17th Amendment Act, 1964 was challenged on the ground that one of the acts inserted by the amendment in the 9th Schedule affected the petitioner on the basis that the amendment fell within the purview of Article 368 and the requirements in the proviso to Article 368 had not been complied with. Supreme Court approved the judgment in Shankari Prasad’s case and held that on Article 13 (2) the case was rightly decided. The amendment includes an amendment to all provisions of the Constitution.

• Golaknath v. State of Punjab (AIR 1967 SC 1643)

The Supreme Court prospectively overruled its decision in Shankari Prasad and Sajjan Singh cases and held that Parliament had no power to amend part III of the Constitution so as to abridge or take away any of the Fundamental Rights. It also added that Article 368 merely lays down the procedure for the purpose of amendment. Further, The Court said that an amendment is a law under Article 13(2) of the Constitution of India, and if it violates any fundamental right, it may be declared void.

The Golaknath case created a lot of difficulties and as a result, the Parliament enacted the 24th Amendment act, 1971 whereby the power to make amendments to the constitution and the procedure thereof was given to the Parliament. However, the question regarding the extent of the power of the Parliament to amend under Article 368 was discussed in the Kesavananda Bharati Case 1973, where the Supreme Court overruled its decision in Golaknath’s case and held that even before the 24th Amendment; Article 368 contained power as well as the procedure for amendment. The majority bench held that there are inherent limitations on the amending power of the Parliament and Article 368 does not confer power so as to destroy the Basic Structure of the Constitution.

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