Sample Material of Our IAS Mains GS Online Coaching Programme
Subject: General Studies (Paper 2 - Governance, Constitution, Polity, Social Justice and International relations)
Topic: Significant Provisions and Basic Structure
Significant Provisions and Basic Structure
According to the Constitution, Parliament and the state
legislatures in India have the power to make laws within their respective
jurisdictions. This power is not absolute in nature. The Constitution vests in
the judiciary, the power to adjudicate upon the constitutional validity of all
laws. If a law made by Parliament or the state legislatures violates any
provision of the Constitution, the Supreme Court has the power to declare such a
law invalid or ultra vires. This check notwithstanding, the founding fathers
wanted the Constitution to be an adaptable document rather than a rigid
framework for governance. Hence Parliament was invested with the power to amend
the Constitution. Article 368 of the Constitution gives the impression that
Parliament's amending powers are absolute and encompass all parts of the
document. But the Supreme Court has acted as a brake to the legislative
enthusiasm of Parliament ever since independence. With the intention of
preserving the original ideals envisioned by the constitution-makers, the apex
court pronounced that Parliament could not distort, damage or alter the basic
features of the Constitution under the pretext of amending it. The phrase 'basic
structure' itself cannot be found in the Constitution. The Supreme Court
recognised this concept for the first time in the historic Kesavananda Bharati
case in 1973.1 Ever since the Supreme Court has been the interpreter of the
Constitution and the arbiter of all amendments made by Parliament.
The phrase 'basic structure' was introduced for the first
time by M.K. Nambiar and other counsels while arguing for the petitioners in the
Golaknath case, but it was only in 1973 that the concept surfaced in the text of
the apex court's verdict. During the period 1950-1972, the question of the
amendability of fundamental rights came before the Supreme Court in three
different cases, namely, Shankari Prasad Vs. Union of India (AIR 1951 SC 458);
Sajjan Singh Vs. State of Rajasthan (AIR 1965 SC 845) and Golak Nath Vs. State
of Punjab (AIR 1967 SC 1643). Until the Supreme Court decision in the Golak Nath
case, the law was as follows:
- Constitution Amendment Acts are not ordinary laws and are passed by
Parliament in exercise of its constituent powers as contra-distinct from
ordinary legislative powers. There is no separate constituent body for the
purposes of amendment of the Constitution, constituent power also being
vested in ‘Parliament’. (Later—as late as in 1981— the Supreme Court
confirmed that the amending power under article 368 is a constituent power
independent of the scheme of the distribution of legislative powers under
the Seventh Schedule (Sasanka v. Union of India, AIR, 1981 SC522)).
- There is no limitation placed upon the amending power, that is to say,
there is no provision of the Constitution which cannot be amended. The terms
of article 368 are perfectly general and empower Parliament to amend the
Constitution without any exception whatever.
- Fundamental Rights guaranteed under the Constitution (Part III) are
subject to Parliament’s power to amend the Constitution.
In the Golak Nath case, the Supreme Court by a 6:5 majority
reversed its earlier decisions and held that the fundamental rights enshrined in
the Constitution were transcendental and immutable, that article 368 of the
Constitution laid down only the procedure for amendment and did not give to
Parliament any substantive power to amend the Constitution or any constituent
power distinct or separate from its ordinary legislative power, that a
Constitution Amendment Act was also law within the meaning of article 13 and as
such Parliament could not take away or abridge the fundamental rights even
through a Constitution Amendment Act passed under article 368.
The court further said: Since the Constitution had conferred
a limited amending power on the Parliament, the Parliament cannot under the
exercise of that limited power enlarge that very power into an absolute power.
Indeed, a limited amending power is one of the basic features of the
Constitution and, therefore, the limitations on that power cannot be destroyed.
In other words, Parliament cannot, under article 368, expand its amending power
so as to acquire for itself the right to repeal or abrogate the Constitution or
to destroy its basic and essential features.
The court, however, did not show where in the Constitution,
the power of amendment had been said to be a qualified or limited power except
for the procedural requirements laid down in article 368. Be it as it may, the
present state of the doctrine of ‘basic features’ is that so long as the
decision in the Kesavananda case is not overturned by another full Bench of the
Supreme Court, any amendment to the Constitution is liable to be interfered with
by the court on the ground of affecting one or other of the basic features of
In the S.R. Bommai case regarding the dismissal of BJP
Governments in Madhya Pradesh, Himachal Pradesh and Rajasthan, Justice Jeevan
Reddy and Justice Ramaswamy reiterated that federalism inter alia was a basic
feature of the Constitution. Justice Ramaswamy held that a democratic form of
Government, federal structure, unity and integrity of the nation, secularism,
socialism, social justice and judicial review were among the basic features of
In some cases, there is a difference of opinion among the Judges as regards a
particular element forming an element of the basic features.
For example, Chief Justice Ray did not find it possible to
hold the concept of free and fair elections as a basic feature whereas Justice
Khanna, in the same case, found this principle to be an element of the
fundamental features of the Constitution (Indira Nehru Gandhi case, paras 55 and
Justice Chandrachud did not subscribe to the view that the
Preamble to the Constitution holds the key to its basic structure (para 665).
Justice Beg, on the other hand, found that the Court can find
the test (of constitutional validity) primarily in the Preamble to the
Constitution. The Preamble, he believed, furnished the yardstick to be applied
even to constitutional amendments (para 623).
The majority had differing opinions on what the "basic structure" of the
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
- 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
- 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.