Doctrine of Basic Structure
Genere: Constitutional Law | LLB Notes
Resources
Keshavanada Bharathi v. State of KeralaGolakhnath v. State of Punjab
Author:ANOOP CHANDRAN SKnow the Author
Originally, when the Constitution was framed, the Parliament had the authority to amend any part of the Constitution. The Parliament’s amending power is subject to substantive limitations was first raised in Sankari Prasad Deo v. Union of India. The Constitutional challenge had arisen with respect to Part III of the Constitution, which contains fundamental rights such as the right to life, equality, freedom of expression etc. The challenge in Sankari Prasad was premised upon the wording of Article 13 of the Constitution, which prohibits the State from making any law in violation of any fundamental rightright enumerated in Part III. It was argued that a Constitutional amendment was “law”, properly called; and so, under Article 13, it was impermissible for the State to amend Part III of the Constitution. The argument was unanimously rejected by a constitution bench of the Supreme Court, which held that the Parliament had the power to amend any provision of the Constitution, without exception.
The question came up again fourteen years later in Sajjan Singh v. State of Rajasthan, also before a Constitution bench. Gajendragadkar C.J., speaking for him and two others, upheld Sankari Prasad. Mudholkar J. observed that the framers may have intended to give permanency to certain “basic features” such as the three organs of the State, separation of powers etc. He also questioned whether a change in the basic features of the Constitution could be defined as an “amendment” within the meaning of Article 368, or whether it would amount to rewriting the Constitution itself.
The position of law was then reversed in I.C. Golak Nathv. State of Punjab. An eleven judge bench of the Supreme Court held that the Parliament had no power to amend Part III of the Constitution. All provisions dealing with fundamental rights were thus placed beyond the reach of the legislature.
In order to overcome GolakNath, Parliament enacted the Twenty-Fourth Constitutional Amendment. This provided, inter alia, that the prohibition in Article 13 would not apply to an amendment of the Constitution under Article 368. It also substituted the words “amendment by way of addition, variationor repeal” for only “amendment” in Article 368. The Constitutional validity of the Twenty-Fourth Amendment, amongst others, was strongly challenged in Kesavananda Bharati v. State of Kerala.In Keshavanand Bharati case, initially a writ petition was filed for the validity of Kerala Land Reforms Act of 1963. But the Act was subsequently amended and was placed in the IXth Schedule.
Later on Court was permitted to challenge the 25th and 29th Amendment of the Constitution. The Petition was heard before the thirteen Judges of the Supreme Court. The Court held that the Parliament’s amending power was plenary, and extended to every provision of the Constitution; the Parliament could not damage or destroy the basic structure of the Constitution. In order to determine the basic structure of the Constitution, recourse was taken to the preamble, the Constitutional “scheme”, the struggle for independence from colonial rule, and the drafting history of the Constitution. Chief Justice Sikri, in his majority opinion, provided five such “basic features” present in the Constitution viz.
- (i) supremacy of the Constitution,
- (ii) republican and democratic form of government,
- (iii) secular character of the Constitution,
- (iv) separation of powers between the executive, legislature and judiciary, and
- (v) federal character of the Constitution.
The basic structure doctrine was crystallized in three further decisions of the decade. In Indira Nehru Gandhi v. Raj Narain, a Constitutional amendment dealing with the election of the Prime Minister and the Speaker was struck down for violating the basic features of democracy, the rule of law and equality.
In Minerva Mills v. Union of India, the Parliament attempted to overturn Kesavananda by inserting the 42ndAmendment, which expressly stated that the amending power was unlimited, and not open to judicial review. The amendment was struck down by the Court on the ground that the limited amending power of the Parliament was itself part of the basic structure. Lastly, in Waman Rao v. Union of India, it was held that laws placed in the 9th Schedule, and thus beyond the pale of fundamental rights view, would nevertheless have to be tested on the touchstone of the basic structure before they were given immunity.
In the next two decades there was consolidation of the doctrine. In a series of judgments, which may collectively be called the Tribunals Cases, it was held that judicial review of the Supreme Court under Article 32, and of the High Courts under Article 226, was a basic feature. First enunciated in S.R. Bommaiv. Union of India, and then crystallized in the decisions of Ismail Faruqui v. Union of India and Aruna Roy v. Union of India, the Court developed the concept of the basic feature of secularism as an attitude of even- handedness towards all religions. In I.R. Coelho v. State of Tamil Nadu, the Court added Articles 14 (right to equality), Article 19 (fundamental freedoms) and Article 21 (right to life) to the list of basic features.