EVOLUTION OF THE BASIC STRUCTURE DOCTRINE

THIS ARTICLE WAS WRITTEN BY SNEHA GHOSH, A STUDENT OF SYMBIOSIS INTERNATIONAL UNIVERSITY. 

The Indian Constitution which is the lengthiest constitution in the world created by the constituent assembly after expansive debates and discussions, currently weighing in 470 articles and 12 schedules, having been amended more than a hundred times since 1949. It is the heart and soul of the nation. It is semi-rigid in nature as it is in a written format but can be amended with special requirements to stay at par with the needs, morals and values of the changing generations. But the legislature being the sole wielder of amending powers of the constitution, with the aid of Article 368 of the Indian Constitution, is bound to be swayed by its own interests more often than not at the cost of the fundamental rights of the citizens of the country.

Thus, we observe the constant tussle going on between the Indian Judiciary and the Parliament, as the Parliament would enact a law infringing the fundamental rights of citizens and to undo the injustice the judiciary would strike down or declare such a law found as arbitrary, void (either the entire act or up till the extent of arbitrariness). In order to establish supremacy, the parliament would amend the constitution to its favor; and if we observe Article 368 with all its amendments it can be deduced that the parliament’s aim is to make itself immune to the judicial pronouncements/orders. As every amendment shows its attempt to further curtail the authority of the courts from criticizing  the decisions made by the legislature especially constitutional amendments.

So, the basic structure doctrine (currently in force) was evolved by the Supreme Court in the landmark case of Kesvananda Bharati v. State of Kerala, according to which the parliament has all the rights to amend the constitution including the Preamble, provided they do not hamper with the basic features which form the very foundation of the constitution.

The scope of this article is to evaluate the landmark cases which led to the formulation of the concept of basic structure and the developments which took place post Kesvananda Bharati thereby helping us to understand and speculate on the current stature of our constitution, why it is the way it is and scope for future developments.

It all began with Shankari Prasad v Union of India, in the year 1951 in which the validity of the 1^st Constitutional Amendment authenticating the Zamindari Abolition enacted by the Jawaharlal Nehru led government, which curtailed the Fundamental Right to Property under Article 31, was challenged. It was alleged by the petitioner that Article 13(2) prohibits the enactment of laws abridging the fundamental rights. In this case the decision went in the favor of the state as it was upheld by the supreme court that the term law in Article 13 means rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power under Article 368.Thus Law in Article 13 is ordinary law made under the legislative powers and therefore, the parliament has power to amend the constitution.

The case of Sajjan Singh v. State of Rajasthan (1964) followed in the footsteps of its precedent as in this case the constitutionality of the 17^th constitutional amendment was challenged. 17^th amendment added certain State legislatures in the 9^th schedule whose statutes are not subject to judicial review essentially taking away the fundamental right of Judicial Review. So the question in Shankari prasad was raised again “whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Article 368?”

The verdict in Shankari prasad was approved and the 17^th amendment was upheld by SC and, it was claimed that Article 13 is only applicable to ordinary legislation and does not apply to constitutional amendments, whereas Article 368 only applies to constitutional law. The majority ruling concluded that Parliament had the authority to modify people’s fundamental rights.

Up until now we see the judiciary construing a very narrow interpretation of Article 13 and 368 and we see a general bias in favor of the State. It was perhaps for the first time that the judiciary deviated from such stance, in Golaknath v. State of Punjab (1967) wherein the Punjab security and Land Tenures Act, was challenged contending that it encroached upon the fundamental right to property of the petitioners, plus they sought to have the 17^th amendment which had placed the Punjab Act in ninth schedule – declared ultra vires. It had the second largest bench of 11 Judges and strayed from the traditional verdict as the majority bench opined that  the parliament lacked the authority to alter fundamental rights. These rights are protected by fundamental protections that are exempt from parliamentary action. Therefore, the majority decided that parliament cannot modify the fundamental rights entrenched in Part III of the Indian Constitution in order to protect democracy from the dictatorial actions of the legislature. The majority of respondents claimed that natural and fundamental rights are equivalent. These rights are crucial for a person’s growth and development. Henceforth it revoked the authority of the parliament to amend fundamental rights.

In order to nullify the effect of Golaknath, the 24^th constitutional amendment was enacted by the Indira Gandhi led government in 1971 which curtailed the power of the judiciary to adjudge any such matters in  future and expressly gave authority to Parliament to amend any part of the constitution and dilute the fundamental rights as per requirement.

This move of the government came under scrutiny of the courts rather quickly as the amendment came to be challenged by the petitioners in one of the most landmark cases in Indian legal history as well as the one with the largest bench strength till date, comprising of 13 Judges.

The Kerela Land Reforms Act which was enacted to put a hold on the zamindari system in Kerela, was challenged on the grounds that it violated the right to own and manage religious institutions guaranteed under Article 26 and it was contended that adding the act in the 9^th schedule was an arbitrary move. It collectively violated Article 25, 26 and 29^th of the Indian constitution.

Subsequently all the 13 Judges held that the 24^th amendment is valid and parliament has the power and right to amend any or all the clauses of the constitution including the fundamental rights but this power under Article 368 is subject to certain implied and inherent limitations and Parliament while exercising this power cannot hamper or destroy the basic structure of the constitution. 7 of the 13 Judges including CJI Sikri formulated certain points which are to be considered as a part of the basic structure. Few of them are as follows :-

• Supremacy of Constitution
• Republican and Democratic form of government
• Secular character
• Separation of Powers
• Federal Character
• Mandate to build a welfare state
• Unity of the Country

Thus, the decision in Golaknath was overruled and the Basic Structure Doctrine was formulated which implied that, although the Parliament has the authority to amend the entire Constitution, they must do so in a way that does not contradict the features so fundamental to the Constitution that it would be spiritless without them.

Then came the landmark case of Indira Gandhi v. Raj Narain (1975) in which while the appeal was pending before SC the 39^th amendment was enacted which took away the power of judiciary to adjudge election disputes thus making the whole case void ab initio. Kesvananda Bharati was followed; free and fair elections were considered to be a part of the basic structure by virtue of the nation’s democratic character. So the 39^th amendment was struck down by the courts as diminishing the power to ensure free & fair elections would be a direct attack on the basic structure.

Following the order, nation-wide emergency was proclaimed from 1975 to 1977 during which the 42^nd amendment was enacted. This added clause 4 to article 368 – no amendments made, before or after the commencement of section 55, can be called into questioning any court on any ground. This was challenged in Minerva Mills v. Union of India (1980) . Though still a part of the test, clause 4 henceforth was declared invalid as it was excessively arbitrary and a sheer violation of the basic structure.

Post-Kesvananda Bharati the courts started taking sternly review such policies as could abrogate the basic structure and the list of provisions under the basic structure has been increasing with time as the courts have ditched their narrow viewpoint of essential features, which is a positive step as it would help an individual to live freely and with dignity and without fear of the government in order to be useful citizens if the country. It can be said that Basic Structure Doctrine is the gift of the judiciary to the masses.