INTRODUCTION
Ever since independence there was a hidden struggle for power between the legislature and judiciary. Though this doctrine itself is a result of the hidden struggle for power between parliament and judiciary, but it act as a check against authoritarianism and ensure constitutional supremacy.
The aim of the founding fathers of our Constitution was to have a document which is not too rigid or flexible in its operation. Thus the parliament was given the power to amend the Constitution under Article 368. Article 368 of the Constitution applies to all parts of the Constitution including fundamental rights. But in India the laws made by the legislatures are subject to judicial review. Thus, the Supreme Court has power to declare a law as ultra vires and invalid if it is violative of the Constitution.
In the early years of Independence, absolute power was given to the parliament to amend the Constitution. But, later this power was misused according to various political interests. In that situation the doctrine of basic structure was evolved from 1960s to 1970s as a common law doctrine. On 24th April, 1973, a 13 judge Constitution Bench by a 7-6 verdict propounded this doctrine in the landmark judgment in the case Kesavananda Bharati v. State of Kerala[1].
Though the phrase basic structure itself cannot be found in the Indian Constitution, the ‘Doctrine of Basic Structure’ is one of the main principles of Constitutional Law in India. Bangladesh, Malaysia, Pakistan and Uganda also recognized this doctrine. Thus, now the parliament can amend any part of the constitution including fundamental rights without affecting the basic structure of the Constitution.
Basic features of the Constitution include Supremacy of the constitution, Republican and democratic form of govt., secular character of Constitution, Separation of power and Federal character of Constitution etc. But still some people call it as undemocratic as the unelected judges are given a power to declare an amendment as unconstitutional. The other group of people supports this doctrine and considers it as a check against authoritarianism.
MEANING AND DEFINITION
The term basic structure relates to those provisions which are integral part of the Indian Constitution. They cannot be amended by the parliament. Though the term basic structure is not defined anywhere in the Constitution, the Court has interpreted its meaning in various decisions. The court will define its meaning in each case accordingly. In general, the term includes,
- Supremacy of the Constitution.
- Welfare state.
- Principle of equality
- Sovereign, democratic and republican nature of the Indian polity.
- Judicial review
- Free and fair election
- Secular character of the Constitution
- Freedom and dignity of the individual
- Independence of judiciary
- Separation of powers between the legislature, the executive and the judiciary.
- Parliamentary system
- Limited power of Parliament to amend the Constitution.
- Federal character of the Constitution
- Rule of law
- Effective access to justice
- Unity and integrity of the nation
- Harmony and balance between fundamental rights and directive principles
- Reasonableness
IMPORTANCE
The parliament was entrusted with the power to amend the Constitution under Article 368. The framers of the Constitution tried to avoid excess rigidity of the Constitution. But as the time passed, governments in power started misusing this. The Court realized that there is a chance of abusing this amending power especially by temporary governments. They might be using the amending power for safeguarding their interests. Even there is a dangerous situation of amending the essential features of the Constitution. Thus in that situation something which limits the parliaments power was necessary. The Court then exercised the power of judicial review under article 13 and propounded the doctrine of basic structure.
EVOLUTION
- In Sri Sankari Prasad Singh Deo vs. Union Of India And State Of Bihar and others[2], the first Constitutional Amendment Act was challenged. It was held that Parliament can amend any part of the constitution including fundamental rights in Part III of the Constitution.
- While discussing the topic Basic Structure Doctrine, the case Sajjan Singh vs. State Of Rajasthan[3] is very much relevant. In this case the decision in Sankari Prasad’s case was upheld. It is important to note that, the term ‘basic features’ was first expounded by Justice Mudholkar in his dissenting judgment in this case in 1953.
- The above two decisions were prospectively over-ruled in the case I. C. Golaknath & Ors vs. State Of Punjab & Anrs[4]. It was held that article 368 describes only the procedure of amending the Constitution and does not confer the power to amend the Constitution on the Parliament. For effecting any change in fundamental rights, a new Constituent Assembly would be required. It was also held that the power to amend the Constitution including the fundamental rights are subjected to judicial review. A ‘transcendental and immutable’ position was given to the fundamental rights.
- Through the 24th Constitutional Amendment Act, 1971, the parliament’s power to take away any of the fundamental right under Art. 368 was again fixed. It was added that, judicial review is not applicable to auch an Act.
- In Kesavananda Bharati Sripadagalvaru and Ors vs. State of Kerala and Anr[5], the decision in Golak Nath’s case was overruled. In this case by 7:6 majority it was held that parliament can amend any part of the Constitution including fundamental rights, without affecting the basic structure of the Constitution. Therefore, parliament cannot make an amendment which will be having a destroying effect on the Constitution. Judiciary can interfere if an amendment violates the basic structure of the Constitution.
- In Indira Nehru Gandhi vs Shri Raj Narain & Anr[6], the court emphasized that, free and fair election is a basic feature of the Indian Constitution. The court had struck down clause (4) of Article 329 A, which was inserted by the 39th Amendment Act as it extracted the election of the prime minister, the president, the vice-president and the speaker of the Lok Sabha from the purview of judicial review. The amending power under article 368 was misused to suppress the prosecution of the then prime minister Smt. Indira Gandhi for corrupt electoral practices.
- By 42nd Amendment, the Parliament amended article 368 and two clauses that is clause (4) and clause (5) were added to it. By virtue of clause (4) of article 368, the parliament has absolute power to amend any part of the Constitution including fundamental rights. Clause (5) says that those amendments are unchallengeable in courts. The main objective behind the 42nd amendment was to reduce the scope of judicial review in Constitutional Amendments.
- Two clauses added to article 368 by the 42nd amendment was struck down in the case Minerva Mills Ltd. & Ors vs Union Of India & Ors[7]. This case again retained the basic structure doctrine. The court ruled that judicial review and a balance between fundamental rights and directive principles of state policy are included in basic features of the Constitution. they also held that limited amending power itself is also a basic feature of the Indian Constitution.
- The 29th Amendment Act, 1972 placed the Kerala Land Reforms Act, 1963 and its amending Act in the 9th Schedule of the Constitution. In 1951 first amendment was made in which 9th schedule was added along with article 31 B for providing a protective umbrella to land reform laws. By virtue of article 13 (2) of the Constitution, any law made in contravention of fundamental rights shall be void. But article 31 B protects laws from challenging before the court. In Waman Rao And Ors vs. Union Of India And Ors[8], the doctrine of basic structure was upheld and it was held that, amendments made to 9th schedule before kesavananda bharati case are valid. It was also added that amendments made after the said date of judgment in kesavananda bharati case, that is, 24th April, 1973 can be challenged or scrutinized.
- 9th Schedule was inserted in the Constitution for protecting land reform laws. It was added as a consequence of removing property right as a fundamental right.
- ‘Rule of law’ was added to basic features while deciding the case Indra Sawhney vs. Union Of India And Others[9]. It was held that, the list of basic features are not complete and new items can be included in it as the need arise. Here in this case the court examined the scope and extent of Article 16(4) and upheld the validity of 27% reservation of jobs for backward classes subject to certain conditions. Thos econditions include, no reservation in promotion, total resrved quota should not exceed 50%, creamy layer exclusion etc.
- R. Bommai vs Union Of India[10] is a landmark case regarding basic structure docrtine as well as relating to the blatant misuse of article 356. It was held that, the “policies of a state government directed against an element of the basic structure of the Constitution would be a valid ground for the exercise of the central power under Article 356”.
- In Chandra Kumar v. Union of India[11], the Supreme Court held that the power of judicial review over legislative action vested in High Courts under Article 226 and the Supreme Court under Article 32 of the constitution. It is an essential feature of the constitution and formed part of basic structure of the Constitution.
- In Nagraj v. Union of India[12], the court held that, The Constitution (77th Amendment) Act, 1995, which introduced Art 16(4-A), The Constitution (81st Amendment) Act, 2000 which inserted clause 4B in Article 16, The Constitution (82nd Amendment) Act, 2000 introducing proviso to Article 335 and The Constitution (85th Amendment) Act, 2001 which changed the wording of Article 16(4-A) are valid.
- In I R Coelho v. State of Tamil Nadu[13], the validity of the provision in the Tamil Nadu Reservation Act which provided 69% reservation was challenged. Here the Act was put in 9th schedule. As per Mandal case decision, reservation must not exceed 50%, thus, the court held the provision as invalid. In this case it was held that judicial review is a part of basic structure. It was also emphasized that after Kesavananda Bharati case, 9th schedule can be subjected to judicial review.
- The doctrine of Basic Structure has been developed by the Supreme Court through a series of cases[14].
Hidden Struggle for Power between Parliament and the Judiciary
In the case RC Cooper vs. Union of India[15], the court had struck down bank nationalization policy brought by Prime Minister Indira Gandhi. In Madhavrao Scindia vs. Union of India[16] the court had annulled the abolition of privy purses of former rulers. In order to overcome these decisions and an earlier decision in Golak Nath’s case, four major amendments (24th, 25th, 26th and 29th) were done to the Constitution by the then prime minister Indira Gandhi.
Again all these four amendments and judgment in Golak Nath’s case were challenged before the court in Kesavananda Bharati case. Here the relief was sought by a religious monk in Kerala Swami Kesavananda Bharati against the land reform laws brought by the Kerala government. The main issue arose was that, whether the parliament’s amending power is limited especially when it comes to Fundamental rights or not. In this case 29th amendment Act was challenged. By a majority of 7:6 it was held that, parliament is empowered to amend and bring law with respect to the changing situation but it cannot alter the basic structure of the Constitution.
After independence, the ruling parties promised to safeguard the socialistic goal of the Constitution. For that an equitable distribution of resources of production among all citizens was essential. Concentration of wealth in the hands of a few must also be prevented. Therefore lots of land reform laws were implemented for this purpose. Then the persons aggrieved by these decisions approached the court. In some cases the government received unfavorable judgments. In order to avoid judicial review all those laws were included in 9th schedule of the constitution which acted as a protective umbrella. Property owners then challenged it and stated that they are violative of Article 13(2) of the Constitution. Then finally court ruled that parliaments amending power is not absolute, it should not be violative of basic structure doctrine. Protection given under 9th schedule is now applicable to amendments made before the judgment in Kesavananda Bharati case.
THE DOCTRINE OF BASIC STRUCTURE
The phrase ‘basic structure’ was introduced for the first time by M.K. Nambiar and other counsels while arguing for the petitioners in Golaknath’s case. The doctrine of basic structure says that parliament should not use its amending power to damage or destroy the basic framework or structure of the Constitution.
In Kesavananda verdict each judge had given separate interpretations for the term basic structure.
According to Sikri, C.J., the concept of basic structure include,
• Supremacy of the Constitution
• Republican and democratic form of government
• Secular character of the Constitution
• Separation of powers between the legislature, executive and the judiciary
• Federal character of the Constitution
Shelat, J. and Grover, J. added two more basic features to this list:
• The mandate to build a welfare state contained in the Directive Principles of State Policy
• Unity and integrity of the nation
Hegde, J. and Mukherjea, J. identified a separate and shorter list of basic features:
• Sovereignty of India
• Democratic character of the polity
• Unity of the country
• Essential features of the individual freedoms secured to the citizens
• Mandate to build a welfare state
Jaganmohan Reddy, J. stated that elements of the basic features were to be found in the Preamble of the Constitution and the provisions into which they translated such as:
• Sovereign democratic republic
• Parliamentary democracy
• Three organs of the State
He said that the Constitution would not be itself without the fundamental freedoms and the directive principles[17].
RECOGNITION
The doctrine of Basic Structure has been adopted other countries including Bangladesh, Uganda, Pakistan etc.
Bangladesh
While deciding the case, Anwar Hossain Chowdhary v. Bangladesh[18], the Supreme Court of Bangladesh adopted basic structure doctrine, by relying on kesavananda bharati case.
Belize
The doctrine of basic structure was invoked by the Supreme Court of Judicature of Belize in the case Bowen v. Attorney General[19]. But in another one case, the court rejected the basic structure doctrine and held that it does not apply to Belize.
Malaysia
The basic structure doctrine was first cited in Sivarasa Rasiah v. Badan Peguam Malaysia[20], before ultimately being applied by the same court in Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat & Ano’r Case[21], the Federal Court held that the vesting of the judicial power of the Federation in the civil courts formed part of the basic structure of the Constitution, and could not be removed even by constitutional amendment.
Pakistan
The Basic Structure doctrine was considered and rejected shortly after the Kesavananda decision, revived in 1997, and rejected again in 1998[22]. In 2015 the doctrine was again accepted.
Uganda
Taking note of the judgments in Kesavananda Bharati v. State of Kerala[23] and Minerva Mills v. Union of India[24], the Supreme Court of Uganda in Mabirizi Kiwanuka & ors. v. Attorney General[25] unanimously upheld the doctrine.
CRITICISM
The most important criticism lies in the definition of the term ‘Basic Structure’. As it is not defined anywhere in the Constitution, some people oppose it in limitting the amending power of the parliament. Moreover, many people believe it as a tyranny of the unelected judges. They also believe that doctrine of basic structure is against the democratic principles.
But those who support it are of the view that this doctrine help to safeguard the basic framework of the Constitution. They also argue that the doctrine is a protection given to the Constitution from destruction. It was also argued that the doctrine performs an important democratic role that the essential constitutional features will not be destroyed by the temporary or majority governments.
CONCLUSION
Through the Doctrine of Basic Structure the supremacy of the Constitution is ensured. A final say on this topic lies with Supreme Court and in the history, the court applied and interpreted the doctrine inorder to safeguard the essential features of the Constitution. Those basic features include Rule of Law, Fundamental rights of citizens, sovereign, democratic, secular character of the polity etc. Thus today the Parliament can amend any part of the constitution including fundamental rights under Article 368 without affecting the “basic structure” of the constitution.
The Doctrine of Basic Structure is a Common Law Legal Doctrine that evolved through various cases. Though this doctrine itself is a result of the hidden struggle for power between parliament and judiciary, but it act as a check against authoritarianism and ensure constitutional supremacy.
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[1] Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461.2.
[2] Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar and others, 1951 AIR 458.
[3] Sajjan Singh v. State Of Rajasthan, 1965 AIR 845.
[4] I. C. Golaknath & ors v. State of Punjab & anrs, 1967 AIR 1643.
[5] Kesavananda Bharati Sripadagalvaru and Ors vs. State of Kerala and Anr, (1973) 4 SCC 225.
[6] Indira Nehru Gandhi v. Shri Raj Narain & Anr, 1975 AIR 1590.
[7] Minerva Mills Ltd. & Ors v. Union Of India & Ors, 1980 AIR 1789.
[8]Waman Rao And Ors v. Union Of India AndOrs, (1981) 2 SCC 362.
[9]Indra Sawhney v. Union Of India And Others, AIR 1993 SC 477.
[10]R. Bommai v. Union Of India, 1994 AIR 1918.
[11] AIR 1997 SC 1125.
[12]Nagraj v. Union of India , 2006 8 SCC 212.
[13] I.R. Coelho v. State of Tamil Nadu and others, (2007 2 SCC 1)
[14]Waman Rao v. Union of India, (AIR 1981 SC 271) ; Bhim Singhji v. Union of India, (AIR 1981 SC 234) ; S.P.Gupta v. President of India, (AIR 1982 SC 149) ; S.P. Sampath Kumar v. Union of India, (AIR 1987 SC 386) ; P. Sambamurthy v. State of Andhra Pradesh, (AIR 1987 SC 663) ; Kihota Hollohon v. Zachilhuand others, (1992 1 SCC 309) ; L. Chandra Kumar v. Union of India andothers, (AIR 1997 SC 1125) ; P. V. Narsimha Rao v. State (AIR 1998 SC 2120) ; I.R. Coelho v. State of Tamil Nadu and others, (2007 2 SCC 1) ; Raja Ram Pal v. The Hon’ble Speaker, Lok Sabha and others, (JT 2007 (2) SC 1).
[15] RC Cooper vs. Union of India, 1970 AIR 564.
[16] Madhavrao Scindia vs. Union of India, 1971 AIR 530.
[17] His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala and anr., 1973 (4) SCC pp. 637-38.
[18] Anwar Hossain Chowdhary v. Bangladesh, (41 DLR 1989 App. Div. 165, 1989 BLD (Spl.) 1).
[19] Bowen v Attorney General, BZ 2009 SC 2.
[20] Sivarasa Rasiah v. Badan Peguam Malaysia, [2010] 2 M.L.J. 333.
[21] Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat & Ano’r Case [2017] 3 M.L.J. 561.
[22] Rizvi, Majid (2015-09-18). “South Asian Constitutional Convergence Revisited: Pakistan and the Basic Structure Doctrine”. I-CONnect. Oxford University Press. Archived from the original on 2020-08-08. Retrieved 2020-11-22.
[23] Kesavananda Bharati v. State of Kerala, AIR 1973 SC.
[24] Minerva Mills v. Union of India, AIR 1980 SC 1789.
[25] Mabirizi Kiwanuka & ors. v. Attorney General, [2019] UGSC 6.
