Basic structure of the Constitution

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. The basic features of the Constitution have not been explicitly defined by the Judiciary, and the claim of any particular feature of the Constitution to be a "basic" feature is determined by the Court in each case that comes before it. Key among these "basic features", are the fundamental rights granted to individuals by the constitution. The basic structure doctrine does not apply to ordinary Acts of Parliament, which must itself be in conformity with the Constitution.

FEATURES :-

The majority had differing opinions on what the "basic structure" of the Constitution comprised.

Chief Justice Sarv Mittra Sikri, writing for the majority, indicated that the basic structure consists of the following:

• The supremacy of the constitution.
• A republican and democratic form of government.
• The secular character of the Constitution.
• Maintenance of the separation of powers.
• The federal character of the Constitution.

Justices Shelat and Grover in their opinion added three features to the Chief Justice's list:

• The mandate to build a welfare state contained in the Directive Principles of State Policy.
• Maintenance of the unity and integrity of India.
• The sovereignty of the country.

Justices Hegde and Mukherjea, in their opinion, provided a separate and shorter list:

• The sovereignty of India.
• The democratic character of the polity.
• The unity of the country.
• Essential features of individual freedoms.
• The mandate to build a welfare state.

Justice Jaganmohan Reddy preferred to look at the preamble, stating that the basic features of the constitution were laid out by that part of the document, and thus could be represented by:

• A sovereign democratic republic.
• The provision of social, economic and political justice.
• Liberty of thought, expression, belief, faith and worship.
• Equality of status and opportunity.

HISTORY :-

The history of development of basic structure doctrine can be divided in Four Periods:

(1) Sankari Parasad judgement and ending with I.C. Golaknath judgement
(2) Starting with post Golaknath scenario and ending with Keshawanand bharti’s judgement
(3) Starting with post Keshavanand Bharti’s senario and ending with Indira Gandhi’s case
(4) Judgement like Minerva Mill’s case and Vaman Rao’s case

The Supreme Court's initial position on constitutional amendments was that no part of the Constitution was unamendable and that the Parliament might, by passing a Constitution Amendment Act in compliance with the requirements of article 368, amend any provision of the Constitution, including the Fundamental Rights and article 368.

The "basic features" principle was first expounded in 1953, by Justice J.R. Mudholkar in his dissent, in the case of Sajjan Singh v. State of Rajasthan. He wrote, "It is also a matter for consideration 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?" In 1967, the Supreme Court reversed its earlier decisions in Golaknath v. State of Punjab. It held that Fundamental Rights included in Part III of the Constitution are given a "transcendental position" and are beyond the reach of Parliament. It also declared any amendment that "takes away or abridges" a Fundamental Right conferred by Part III as unconstitutional.

By 1973, the basic structure doctrine triumphed in Justice Hans Raj Khanna's judgment in the landmark decision of Kesavananda Bharati v. State of Kerala. Previously, the Supreme Court had held that the power of Parliament to amend the Constitution was unfettered. However, in this landmark ruling, the Court adjudicated that while Parliament has "wide" powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution.

Although Kesavananda was decided by a narrow margin of 7-6, the basic structure doctrine has since gained widespread acceptance and legitimacy due to subsequent cases and judgments. Primary among these was the imposition of a state of emergency by Indira Gandhi in 1975, and her subsequent attempt to suppress her prosecution through the 39th Amendment. When the Kesavananda case was decided, the underlying apprehension of the majority bench that elected representatives could not be trusted to act responsibly was perceived as unprecedented. However, the passage of the 39th Amendment by the Indian National Congress' majority in central and state legislatures, proved that in fact such apprehension was well-founded.

In Indira Nehru Gandhi v. Raj Narain and Minerva Mills v. Union of India, Constitutional Benches of the Supreme Court used the basic structure doctrine to strike down the 39th Amendment and parts of the 42nd Amendment respectively, and paved the way for restoration of Indian democracy. The Supreme Court's position on constitutional amendments laid out in its judgements is that Parliament can amend the Constitution but cannot destroy its "basic structure".

CONCLUSION:-

The basic structure doctrine had been applied by the judges every now and then. It has till date proved to be a very effective tool in deciding the validity of the constitutional amendments. The doctrine, however, had not yet been defined in any of the judgements adequately and sufficiently. There are many things which are basic to the constitution and they cannot be decided beforehand. While the idea that there is such a thing as a basic structure to the Constitution is well established its contents cannot be completely determined with any measure of finality until a judgement of the Supreme Court spells it out. Nevertheless the sovereign, democratic and secular character of the polity, rule of law, independence of the judiciary, fundamental rights of citizens etc. are some of the essential features of the Constitution that have appeared time and again in the apex court's pronouncements.

However , Seeravi H.M. in his book “Constitutional Law of India” has dealt these major objections against the doctrine of basic structure are:

• Amending power is not necessary to amend non-essential parts of the constitution.
• This power is needed to make changes in the basic features of the constitution.
• The doctrine leads to the uncertainty in mind of the parliament as to where it stands as to the extent of its amending power.

One certainty that emerged out of this tussle between Parliament and the judiciary is that all laws and constitutional amendments are now subject to judicial review and laws that transgress the basic structure are likely to be struck down by the Supreme Court. In essence Parliament's power to amend the Constitution is not absolute and the Supreme Court is the final arbiter over and interpreter of all constitutional amendments. It has necessarily pointed out to the parliament that constitution is not any party’s manifesto which can be changed at their own will but is a national heritage which can be amended only when a national consensus demands for it.

With Inputs from

• Basu, D.D., Commentary on the Constitution of India
• Seervai, H.M., Constitutional Law of India
• Chagla, M.C., Role of Judiciary in Parliamentary Democracy
• Pandey, J.N., Constitutional law of India
• Commonwealth Human Rights Initiative
• Social Science Research Network

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