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Doctrine Of Basic Structure

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Published in: Law, Ethics and Communication
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Doctrine of Basic Structure: A Review

Sakshi C / Noida

6 years of teaching experience

Qualification: LLM (Faculty of Law, University of Delhi, New Delhi, with three centres: Campus Law Centre, Law Centre I and Law Centre II - 2015)

Teaches: IBPS, SBI Exam, CLAT, Law Entrance, LLB, LLM, Judicial Services

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  1. DOCTRINE OF BASIC STRUCTURE: A REVIEW INTRODUCTION: Every civilised society runs on a set of rules and regulations often taking the form of laws of the land. The supreme law of the land of any such society is confined and framed by its constitution. Like many nations, India too is governed by the provisions of the Constitution. The Indian Constitution is the supreme and fundamental law o the land and all government organs, which owe their origin to the Constitution and derive their powers from its provisions, must function within the framework of Constitution and must not do anything which is inconsistent with its provisions. Indian Constitution is a dynamic and organic instrument, capable of change according to the changes in the society. At first it may appear that the Constitution is rigid and inflexible but in practice it has been amended more than 100 times. It is often said that the amendments more often than not represent the incapacity of the political parties to function in terms with the constitutional mandate. I An inflexible constitution is a farfetched idea. Every society goes through changes and the constitution must answer the calls of the needs of its ideological transitions. One must however be cautious that the supremacy of the ethics on which the constitution stands must not shift. In order to maintain this supremacy, the idea of Basic Structure originated in the Supreme Court in the famous case of Keshavanad Bharti v. State ofl
  2. This difference became even more apparent when the issue of property rights was raised. Nehru wanted that no compensation should be paid to the ones whose land was being taken by the government whereas Patel favoured full compensation. This resulted in an ambiguous provision in the Constitution prior to any amendment. Since the courts too didn't favour the complete take all role of the State in property rights, the government quickly resorted to amendment procedure and introduced Article 31 A and Article 31 B. Article 31 A stated that any acquisition of property by the state through law could not be called into question under the rights to property, equality, freedom of speech, or freedom to practice one's profession. Article 31B created the Ninth Schedule, a list of laws inserted in the back of the Constitution. Laws that were placed into this schedule through Constitutional amendment could not be found invalid by the judiciary on the basis of any of the fundamental rights. In the First Amendment, thirteen land reform laws were placed into this protected schedule. Although the First Amendment only protected land reform laws, the Ninth Schedule could be used to protect any law placed into it from fundamental rights review. Power of judicial review was under attack. The natural response of the property owners raised the question of the amendment violating the provisions of Article 13 (2) of the Constitution. Article 13 (2), inter alia, provides for the protection of the fundamental rights of the citizen. Parliament and the state legislatures are clearly prohibited from making laws that may take away or abridge the fundamental rights guaranteed to the citizen. They argued that any amendment to the Constitution had the status of a law as understood by Article 13 (2). In Sankari Prasad v Union of India 4 , the Supreme Court held that the power to amend the Constitution including the fundamental rights is contained in the Article 368 and that the word 'law' in Article 13 includes an ordinary law and does not include constitutional amendment which is made in exercise of constituent power. The court thus distinguished between the ordinary legislative power and constituent power. In Sajjan Singh v. State of Rajasthan 5, it was held that the words 'amendment of Constitution' means amendment of all the provisions of Constitution. The first step towards protection of the power of judicial review was taken by the Supreme Court in Golak Nath v. State of Punjab6 wherein by a majority of 6:5 the court overruled it earlier decisions in Sankari Prasad and Sajjan Singh and held that fundamental rights cannot be amended. The court rejected the argument that the power to amend the Constitution was a sovereign power and observed that amendment is a legislative process and Article 368 lays down merely the 'procedure' for that. An amendment is a 'law' within the meaning of Article 13 (2) and therefore, if it violates any of the fundamental rights it may be declared void. It was observed that a Constituent Assembly might be summoned by Parliament for the purpose of amending the fundamental rights if necessary. In other words, the apex court held that 4 AIR 1951 SC 455 5 AIR 1965 SC 845 6 AIR 1971 SC 1643
  3. some features of the Constitution lay at its core and required much more than the usual 7 procedures to change them. In order to remove the hurdles created by the decision in Golak Nath case, parliament enacted 24th amendment, 1971. It not only restored the amending power of the parliament but also extended it scope by adding the words in article 368 " to amend by way of the addition or variation or repeal any provision of this constitution in accordance with the procedure laid down in this article" . A new clause added to Article 13 which provides that "nothing in this Article shall apply to any amendment of this Constitution made under Article 368." As an open display of supremacy, in 1971 and 1972, Parliament enacted many amendments that directly challenged the Court's declaration that the fundamental rights could not be amended and further shielded laws from fundamental rights review. These amendments being over- ambitious were inevitably challenged in Keshavanand's case. KESHAVANAD BHARTI V. STATE OF KERELA: THEORY OF BASIC STRUCTURE: In 19738 the famously called "Fundamental Rights Case" was heard by a bench of 13 judges. The case was heard for five months and the longest running judgement running into 595 pages was delivered. The Golak Nath case was overruled and the majority held that Article 368 even before 24th Amendment contained the power as well as the procedure of Amendment. Hence, limitations upon the amending power must be found from Article 368 itself. It was held that the parliament has wide powers of amending the Constitution and it extends to all the Articles, but amending power is not unlimited and does not include the power to destroy or abrogate the 'basic feature' or 'framework' of the Constitution . There are implied or inherent limitations on the power of the amendment under Article 368. Sikri, C.J. said that the word "amendment" must derive its colour from Article 368 and rest of the constitutional provisions. The expression "amendment of Constitution" in Article 368 means any change in any of the provisions of the Constitution within the broad contours of Preamble. Thus, it would mean that while fundamental rights cannot be abrogated, reasonable abridgements of fundamental rights can be effected in the public interest. It was further held that the "basic structure" of the Constitution consist of the following features: supremacy of constitution, republican and democratic form of government, sovereignty of the country, secular and federal character of the constitution and separation of powers between the three organs. Shelat and Grover, J.J. also included fundamental rights and directive principles in the basic structure. POST KESHA VANAD BHARTI•. In Indira Gandhi v. Raj Narain9 the issue of basic structure again came up for consideration. 39th Amendment of 1975 was passed by the parliament with retrospective effect to validate the election of Mrs. Indira Gandhi as the Prime Minister which was invalidated by the 7 Supra note 1. 8 AIR 1973 SC 1461 9 AIR 1975 SC 2299
  4. Allahabad High Court on the ground of having committed corrupt practices. The amendment was invalidated on the ground that it violates free and fair elections which was an essential component of a democracy which in turn was a basic structure of the Constitution. It be noted that although the amendment was upheld but the provision curbing judiciary's right to keep a check on elections was struck down as violating the separation of powers and judicial review, both core principles of the Indian Constitution. In Minerva Mills Ltd. v. Union of India10 the validity of 42nd Constitutional amendment was challenged. The Supreme Court by majority by 4 to 1 majority struck down clauses (4) and (5) of the Article 368 inserted by 42nd Amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the Constitution. It was ruled by court that a limited amending power itself is a basic feature of the Constitution. In Waman Rao v. Union of Indian the Supreme Court upheld Minerva mill's judgment that amendments to Article 368 introducing Clauses 4 and 5 are void. The court held that article 31 C as it stood prior to the 42nd Amendment is valid. The 42nd Amendment gave primacy to all Directive Principles over Fundamental Rights, by amending Article 31 C. In Minerva mills, the court held it invalid. It was further held in this case that all laws placed in 9th Schedule after Keshavanand Bharti, judgement are also available for judicial review. In S. P. Sampath Kumar v. Union of Indianand P. Sambamurthy v. State ofA.P. 13the judges laid down that the rule of law and judicial review were integral part to the Constitution and therefore constitute the Basic Structure. Effective access to justice is part of the 'Basic Structure' according to the decision in Central Coal Fields Ltd. v. Jaiswal Coal Co.14 . In Bhim Singhji v. Union oflndia 15 Krishna lyer and Sen, J.J., asserted that the concept of social and economic justice—to build welfare state forms a part of the of Basic Structure. Article 32, 136, 141 and 142 of the Constitution conferring power on the Supreme Court were held as a Basic Structure in Delhi Judicial Service Assn. v. State of Gujarat. 16 The independence of judiciary within the limits of the Constitution, judicial review under Article 32, 226 and 227 of the Constitution, Preamble, Independence of Judiciary, Secularism, federalism, Separation of powers, free, fair and periodic election are all declared to be the Basic Structure of the Constitution. The power of the High Court to exercised judicial superintendence over the decision of al courts within their respective jurisdiction is also part of Basic Structure. In the Mandal case it was held that the failure to exclude the creamy layer or the inclusion of forward castes in the list of backward class would violate the provisions of Article 14 and 16 which form the Basic Structure of the Constitution. 10 AIR 1980 SC 1789 11 AIR 1981 SC 271 12 AIR 1987 SC 386 13 AIR 1987 SC 663 14 1980 supp. SCC 471. 15 AIR 1981 SC 234 16 AIR 1991 4 SCC 406 17 Indira Sawhney Il v. Union of India, AIR 2000 SC 498
  5. The fact that the judiciary has a say in the matter of amendment of the Constitution is the most notable aspect of the doctrine of Basic Structure. In M. Nagraj v. Union of India18 the court observed that the amendment should not destroy Constitutional identity and it is the theory of Basic Structure only to judge the validity of Constitutional amendment. In I.R. Coelho v. State of Tamil Nadu] 9 further developed its interpretation of Article 31B, which created the Ninth Schedule to protect particular laws from fundamental rights review. Although originally only thirteen land reform laws were placed in the Ninth Schedule, more than 280 laws have now been added to it through Constitutional amendment. Most of these laws concern land reform, but many do not, including some laws that relate to caste-based reservations and security laws from Indira Gandhi's era. The Court reasserted in Coelho that many, if not all, of the current fundamental rights were part of the basic structure of the Constitution, and that the laws in the Ninth Schedule would have to be tested by them. The direct impact and effect test i.e. rights test, which means the form of an amendment is not relevant factor, but the consequences thereof would be the determinative factor. CRITICAL VIEW: The Doctrine of Basic Structure without a doubt makes the aspirations of the citizens accessible in real terms. The Supreme Court with the potent weapon of basic structure doctrine keeps a check on the arbitrariness of the State. The strong role played by the Supreme Court in maintaining the basic structure was sometimes viewed as Judicial Activism by the critics. Through its activism over the years, the Indian Supreme Court has arguably become the most powerful court in the world. Some major instances of activism, which directly provided impetus to PIL are: introducing the due process requirement in Article 21, despite its rejection by the Constituent Assembly; employing Directive Principles to create Fundamental Rights; reading implied limitations in the form of basic feature on the power of Parliament to amend the Constitution; declaring judicial review a basic feature of the Constitution; and becoming, in effect, a self appointed judiciary with almost no real constitutional checks. Because of these landmark decisions, the judiciary became almost 20 untouchable. The doctrine is further criticized on various grounds, for instance, that it lays down a vague and uncertain test. The question may arise, like, whether a basic feature such as the parliamentary system of government may be replaced by a Presidential system? Furthermore, what would happen if two basic structures come in conflict with each other? In view of the recent controversies of selection of judges, one can raise questions over the creditability of a person professing basic structure whose selection is based on debate and nepotism. 18 AIR 2007 SC 71 19 2007 1 S.C.R. 706 20 https://papers.ssrn.com/s013/papers.cfm?abstract_id=1424236
  6. BASIC STRUCTURE IN OTHER COUNTRIES: Most Constitutions have features which are fixed and cannot be altered under any circumstances. These features represent the basic values of the State. Germany, Greece, Portugal, Italy and France have features which are unamenable. In Thailand, the 2007 Constitution prohibits amendments that "chang[e] the democratic regime of government with the King as Head of State or chang[e] the form of State. In Iran, the Constitution makes both its Islamic and democratic character unamenable, as well as the objectives of the Republic (which include many social and economic goals), but the Constitution goes even further. 22 The Guardian Council in Iran must approve all laws passed 23 by Parliament and can veto them if they violate either Islamic law or the Constitution. The Council also supervises elections and has the power to ban candidates from running. 24 In this way, the Council acts like a mixture of a Constitutional court, an upper chamber or Parliament, and an election commission. The latter two are new roles that this judicial institution was given to check Iran's representative institutions. This judicial setup helps maintain the power of the Supreme Leader, as half of the Council is appointed by the Supreme Leader, while the other half is appointed by the head of the judiciary (who is also appointed by the Supreme Leader).25 In Bangladesh, where the two principal political parties are viciously distrustful of each other, the Constitution directs a retired Chief Justice or another retired member of the higher judiciary to head a caretaker government during elections. This function marks a new institutional role for the judiciary, or more accurately the retired judiciary, to check the representative branches. CONCLUSION: The Doctrine has been hailed by one and all for its role in bringing about certainty in the rights and positions of the citizens at one end and the state on the other end. The lofty ideals of the framers of the constitution have been well preserved by this doctrine. No doubt, the list of the concepts which are included in basic structure is ever increasing, yet it reflects that there is debate and debate is the answer to the solutions of problems which are never ending too. It has been observed in Keshavanand Bharti that there are many concepts which are incapable of a precise definition, such as natural justice or negligence. The argument that because something cannot be cut and dried or nicely weighed or measured and therefore does not exist is fallacious. Thus, the doctrine of basic structure acts as a safety valve against the arbitrary use of amending power. 21 Somdet Phra Paramintharamaha Bhumibol Adulyadej [Interim Constitution of Thailand], 2006, B.E., at Ch. 15 22 Qanuni Assassi Jumhuri'i Isla'mai Iran [The Constitution of the Islamic Republic of Iran], 1980, at 177(5) 23 ibid at Article 94 24 ibid at Article 99 25 ibid at Articles 91, 157

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