The Basic Structure doctrine is an Indian judicial principle that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the parliament.
Introduction
There has been a historical controversy as to whether an amendment of the constitution made in the manner provided for under Article 368 must have to conform to the requirements of Article 13 or in other words,whether constitution amendment act would be void if it seeks to take away or is is inconsistent with a fundamental right enumerated in part III of the constitution.The question whether fundamental rights can be amended under article 368 came for consideration in the Supreme Court in Shankari Prasad case.In this case validity of constitution (1st amendment) act, 1951 which inserted inter alia , articles 31-A and 31-B of the constitution was challenged. The amendment was challenged on the ground that it abridges the rights conferred by part III and hence was void. The Supreme Court however rejected the above argument and held that power to amend including the fundamental rights is contained in Article 368 and the same view was taken by court in Sajjan Singh case.In both cases, the power to amend the rights had been upheld on the basis of Article 368.
In 1967, in Golak Nath vs. The State of Punjab,the validity of 17th Amendment which inserted certain acts in Ninth Schedule was again challenged.A bench of eleven judges (such a large bench constituted for the first time) of the Supreme Court deliberated as to whether any part of the Fundamental Rights provisions of the constitution could be revoked or limited by amendment of the constitution. The Supreme Court ruled the parliament had no power to amend Part III of the constitution and overruled its earlier decision in Shankari Prasad and Sajjan Singh case.Chief Justice Subha Rao in effect ruled that Fundamental Rights cannot be abrogated even by an amendment of the Constitution because amendments are also laws within the meaning of Article 13.Therefore, amendments which "take away or abridge" the Fundamental Rights provisions cannot be passed.The shift in the Court's perception can be understood only in terms of the socio-political developments of the times.In order to remove difficulties created by the decision of SC in Golak Nath case parliament enacted the 24th Amendment act.
Six years later in 1973, 25th Amendment act made by the parliament was challenged in the court along with the 24th and 29th Amendments.Thirteen judges of the Supreme Court, including then Chief Justice Sikri, heard arguments in Kesavananda Bharati vs The State of Kerala (1973) and thus considered the validity of the 24th, 25th and 29th amendments, and more basically the correctness of the decision in the Golak Nath case. This time, the court held, by the thinnest of margins of 7-6, that although no part of the constitution, including fundamental rights, was beyond the amending power of Parliament (thus overruling the 1967 case), the "basic structure of the Constitution could not be abrogated even by a constitutional amendment".The Supreme Court recognized Basic Structure concept for the first time in the historic Kesavananda Bharati case in 1973.
The basic structure doctrine was further clarified by Supreme Court in Minerva Mills v. Union of India (case citation: AIR 1980 SC 1789). The Constitution (Forty-Second Amendment) Act had been enacted by the
government of Indira Gandhi in response to the Kesavananda judgment in an effort to reduce the power of the judicial review of constitutional amendments by the Supreme Court. In the Minerva Mills case, Nani Palkhivala successfully moved the Supreme Court to declare sections 4 & 55 of the 42nd amendment as unconstitutional.Chief Justice Yeshwant Vishnu Chandrachud explained in the Minerva Mills judgment that since the power of Parliament to amend the constitution was limited, as had been previously held through the basic structure doctrine in the Kesavananda case, the parliament could not by amending the constitution convert this limited power into an unlimited power (as it had purported to do by the 42nd amendment).In addition, the court also ruled that the parliament's "power to amend is not a power to destroy". Thus the parliament did not have the power emasculate the fundamental rights of individuals, such as the right to liberty and equality.
The Supreme Court has refused to foreclose its list of 'Basic Features'.From various decisions and judgements so far,the following list may be drawn up :
1.Supremacy of constitution
2.Rule of Law
3.The Principle of separation of powers
4.Objectives specified in the preamble of constitution
5.Judicial Review
6.Federalism
7.Secularism (declared a basic feature in the S.R. Bommai Case)
8.The Sovereign,Democratic, Republican Structure
9.Freedom and Dignity of the individual
10.Unity and integrity of the nation
11.Principle of Equality
12.Social Justice
13.Free and fair elections
14.Independence of Judiciary
15.Effective access to Justice
16.Presumably, socialism as interpreted by the Supreme Court in the nationalization era is also a basic feature.
2.Rule of Law
3.The Principle of separation of powers
4.Objectives specified in the preamble of constitution
5.Judicial Review
6.Federalism
7.Secularism (declared a basic feature in the S.R. Bommai Case)
8.The Sovereign,Democratic, Republican Structure
9.Freedom and Dignity of the individual
10.Unity and integrity of the nation
11.Principle of Equality
12.Social Justice
13.Free and fair elections
14.Independence of Judiciary
15.Effective access to Justice
16.Presumably, socialism as interpreted by the Supreme Court in the nationalization era is also a basic feature.
What is the core concern of the doctrine of basic structure of the Constitution? What is its singular objective?
Since this doctrine emerged as an antidote to parliament’s unlimited amending power, we may crystallize the core concern of the basic structure doctrine by stating:
The Parliament’s amending power under Article 368, in pursuance of Article 31B read with the Ninth Schedule of the constitution, granting that it has the power to amend every part of the Constitution, including Part III that incorporates fundamental rights, cannot be absolute, unlimited, uncontrolled or uncontrollable.
What are the rationale for reaching this principle?
In the light of the ‘concerns’ reflected in the post-Kesavananda Bharati cases,19 at least the following four rationale may be culled out:
The first rationale of limiting the unlimited amending power of Parliament under the basic structure doctrine flows from the principle of separation of powers, invariably sanctified through the written Constitution. This principle gives effect to the strategy of checks and balances. It is a strategy to preserve liberty and protection against tyranny. In functional terms, it means that there is a diffusion of power by dispersing it amongst the three centres of decision-making,namely, legislature, executive, and judiciary. Each one of these is quite independent of the others in one’s own area demarcated by the Constitution. Under this separation of power principle, the review-role of the exercise of amending power by the legislature, usually propped up by the executive, is clearly entrusted to the judiciary. On this score,the principle of separation of powers is well entrenched and there does not seem to be any disagreement.
The second rationale of limited amending power is that under article 368 the power of amending the Constitution is not truly and essentially a ‘constituent power’ – the ‘plenary’ or ‘absolute’ power, which is
exercised to make or unmake a Constitution, a power that has “no limitations or constraints.” Such a power was vested, for instance,in the Constituent Assembly, which framed our Constitution in the first
instance.
The third rationale of limiting the amending power is that the very idea of ‘amendment’ carries its own rough and ready measure. Such a measure was deciphered by the Supreme Court in Waman Rao31 by
invoking the analogy of ‘permissibility of an amendment of a pleading’,that is, how far the amendment of a pleading is consistent with the original. In this respect, emphasized the apex court, you cannot by an
amendment transform the original into opposite of what it is.
The fourth rationale of the core concern of the basic structure doctrine is the ‘Judicial Review’, which is its integral or inseparable part. In this sense, without judicial review, the basic structure doctrine
is simply inoperable or non-functional. That is, by taking away the component of judicial review, we would be denying the very existence of the doctrine of basic structure, which is simply impermissible.
Principally, the basic structure doctrine is conceived in terms of certain basic principles or values underlying the basic document, namely,the Constitution.
What are these principles or values on the basis of which the structure of the Constitution itself has been raised?
By implication, such principles or values may be termed as ‘preconstitutional’.
What are these values ?
The ‘pre-constitutional’ values are universally perceived in terms of certain ‘basic human rights’ that are considered essential for the very existence of a human being. These are assumed and assimilated as some “intrinsic” or “foundational” values, which exist as such in the scheme of nature. Such values are not “a gift from the State to its citizens,” but exist “independently of any constitution by reason of the fact that they are members of human race.” These are invariably crystallized in the Constitution in the form of fundamental rights, which “occupy a unique place in the lives of civilized societies.” This is the perspective with which the apex court has expounded the nature of fundamental rights contained in part III of our Constitution as the very basis of the basic structure principle.
Criticism :
Presumably, socialism as interpreted by the Supreme Court in the nationalisation era is also a basic feature.If so, it may raise several questions for policy-planners now involved in disinvestment and privatisation, which the court alone can clarify.Judicial review and judicial independence are considered part of "basic features." When the court claims exclusive jurisdiction in deciding judicial appointments to superior courts, interpreting the written text that way, and limits power expressly given to the Executive by the Constitution, it is legitimate to ask whether we are heading for an arrangement contrary to the spirit of parliamentary democracy and concentration of unfettered power in one institution which, incidentally, is not an elected body.Can one proceed on the assumption that judges cannot go wrong and what they decide would always be in the best interests of the people? Or is it that people themselves do not know their interests and they need to be told by an expert body? These are discomforting questions that loom large in the whenever controversial decisions on popular issues are rendered by the court.
The first rationale of limiting the unlimited amending power of Parliament under the basic structure doctrine flows from the principle of separation of powers, invariably sanctified through the written Constitution. This principle gives effect to the strategy of checks and balances. It is a strategy to preserve liberty and protection against tyranny. In functional terms, it means that there is a diffusion of power by dispersing it amongst the three centres of decision-making,namely, legislature, executive, and judiciary. Each one of these is quite independent of the others in one’s own area demarcated by the Constitution. Under this separation of power principle, the review-role of the exercise of amending power by the legislature, usually propped up by the executive, is clearly entrusted to the judiciary. On this score,the principle of separation of powers is well entrenched and there does not seem to be any disagreement.
The second rationale of limited amending power is that under article 368 the power of amending the Constitution is not truly and essentially a ‘constituent power’ – the ‘plenary’ or ‘absolute’ power, which is
exercised to make or unmake a Constitution, a power that has “no limitations or constraints.” Such a power was vested, for instance,in the Constituent Assembly, which framed our Constitution in the first
instance.
The third rationale of limiting the amending power is that the very idea of ‘amendment’ carries its own rough and ready measure. Such a measure was deciphered by the Supreme Court in Waman Rao31 by
invoking the analogy of ‘permissibility of an amendment of a pleading’,that is, how far the amendment of a pleading is consistent with the original. In this respect, emphasized the apex court, you cannot by an
amendment transform the original into opposite of what it is.
The fourth rationale of the core concern of the basic structure doctrine is the ‘Judicial Review’, which is its integral or inseparable part. In this sense, without judicial review, the basic structure doctrine
is simply inoperable or non-functional. That is, by taking away the component of judicial review, we would be denying the very existence of the doctrine of basic structure, which is simply impermissible.
Principally, the basic structure doctrine is conceived in terms of certain basic principles or values underlying the basic document, namely,the Constitution.
What are these principles or values on the basis of which the structure of the Constitution itself has been raised?
By implication, such principles or values may be termed as ‘preconstitutional’.
What are these values ?
The ‘pre-constitutional’ values are universally perceived in terms of certain ‘basic human rights’ that are considered essential for the very existence of a human being. These are assumed and assimilated as some “intrinsic” or “foundational” values, which exist as such in the scheme of nature. Such values are not “a gift from the State to its citizens,” but exist “independently of any constitution by reason of the fact that they are members of human race.” These are invariably crystallized in the Constitution in the form of fundamental rights, which “occupy a unique place in the lives of civilized societies.” This is the perspective with which the apex court has expounded the nature of fundamental rights contained in part III of our Constitution as the very basis of the basic structure principle.
Criticism :
Presumably, socialism as interpreted by the Supreme Court in the nationalisation era is also a basic feature.If so, it may raise several questions for policy-planners now involved in disinvestment and privatisation, which the court alone can clarify.Judicial review and judicial independence are considered part of "basic features." When the court claims exclusive jurisdiction in deciding judicial appointments to superior courts, interpreting the written text that way, and limits power expressly given to the Executive by the Constitution, it is legitimate to ask whether we are heading for an arrangement contrary to the spirit of parliamentary democracy and concentration of unfettered power in one institution which, incidentally, is not an elected body.Can one proceed on the assumption that judges cannot go wrong and what they decide would always be in the best interests of the people? Or is it that people themselves do not know their interests and they need to be told by an expert body? These are discomforting questions that loom large in the whenever controversial decisions on popular issues are rendered by the court.
