This article is written by Arya Mittal from Hidayatullah National Law University. The article aims to discuss the basic structure doctrine – its concept, evolution, criticism and its reflection in other countries.
Recently, the Former Chief Justice of India, Mr. Ranjan Gogoi, who is currently a Rajya Sabha member, remarked that the basic structure doctrine has “a debatable, a very debatable, jurisprudential basis”. Gogoi referred to the basic structure doctrine while the members of the Rajya Sabha were discussing the Delhi Services Bill, 2023 (now the Government of National Capital of Delhi (Amendment) Act, 2023) to control the administration and civil servants in the National Capital Region. This led to the long-standing debate on the validity of the basic structure doctrine.
In India, the basic structure doctrine has been promulgated through a series of judgments, including the renowned case of Kesavananda Bharati. Thus, the basic structure doctrine does not have a limited scope. The application of the doctrine has evolved only through the judicial interpretation of the Constitution. The Hon’ble Supreme Court and the High Courts, through their writ jurisdiction, intervene and interpret the Indian Constitution to impart its true meaning. However, the question that needs a proper response is whether the doctrine provides the judiciary an overhauling power over the legislature? A brief overview of the doctrine along with the timeline of cases discussing the doctrine, and the presence of such provisions under the Constitutions of other democratic countries forms the scope of the present article and has been discussed hereafter.
Brief Overview of “Basic Structure Doctrine”
In simple terms, the basic structure doctrine suggests that certain parts of the Indian Constitution form the core, have intrinsic value and hence, they cannot be altered or removed from the Indian Constitution. Such parts form the basis and reflect the principles of the makers of the Constitution. Not only that, they also throw light on the basic tenets of constitutionalism in India and hence, referred to as the basic structure. The doctrine has been formulated by the Indian judiciary through various cases as elaborated below.
Shankari Prasad v. Union of India (1951)
The case of Shankari Prasad is among the initial cases of the Hon’ble Supreme Court evolving the basic structure doctrine in India. Here, the Court was concerned with the constitutional validity of the First Amendment Act, 1951 which restricted the fundamental right to property. Upholding the amendment, the Supreme Court opined that the Parliament had the power under Article 368 to modify any part of the Indian Constitution by way of constitutional amendment, including the fundamental rights. Thus, the position of law after this judgment was that the State had the power to take away/restrict the fundamental rights of people through a constitutional amendment and such an amendment would not be even nullified by Article 13 of the Indian Constitution.
Sajjan Singh v. State of Rajasthan (1965)
During the advent of agrarian reforms in India, the Parliament passed the Constitution (Seventeenth Amendment) Act, 1964 to further amend Article 31A and bring a number of statutes within the ambit of the Ninth Schedule. Petitioners in this case, being affected by the amendment, raised an issue challenging the constitutional validity of the amendment, contending that a fundamental right could not be amended by way of Article 368. Upholding the validity of the constitutional amendment and following the judgment of Shankari Prasad, the majority view held that fundamental rights could also be amended by the Parliament, both prospectively and retrospectively by virtue of its power under Article 368 of the Indian Constitution. Nevertheless, giving the dissenting view, Justice Mudholkar and Justice Hidayatullah opined that the nomenclature of the term ‘fundamental rights’ indicated that these rights were inherent and fundamental to every citizen and hence, should not be allowed to be amended or modified.
Golak Nath v. State of Punjab (1967)
In the landmark I.C. Golaknath judgment, the Constitution (Seventeenth Amendment) Act, 1964 was once again questioned after the Punjab Security and Land Tenures Act, 1953 restricted the petitioners from holding more than thirty acres of land. The Petitioners held the statute to be violative of Article 14 and Article 19(1)(g) since they were not allowed to hold additional land and resultantly, were unable to rent out this additional land causing them economic loss. This was the first case where an eleven-judge Constitutional Bench was made to adjudicate the issue. In a ratio of 6:5, the majority view held that the fundamental rights could not be amended in any manner. In the words of the Court, “Fundamental rights are the primordial rights necessary for the development of human personality. They are the rights which enable a man to chalk out his own life in the manner he likes best. Our Constitution, in addition to the well-known fundamental rights, also included the rights of minorities and other backward communities in such rights. The fundamental rights are given a transcendental position under our Constitution and are kept beyond the reach of Parliament.”
Kesavananda Bharati v. State of Kerala and Anr. (1973)
The Kesavananda Bharati case turned out to be the longest judgement in the history of the Indian legal system and also laid the foundation of one of the most imperative doctrines, i.e., the basic structure doctrine. Here, the petitioner was the leader of Edneer Mutt, a religious sect in the state of Kerala. He held some of the land of the sect under his own name. Government sought to acquire a part of such land. Immediately after the Golaknath case, the 24th Constitutional Amendment Act was passed to nullify the effect of the judgement. The Amendment provided that the Parliament had the power to amend or modify any provision of the Indian Constitution without being hit by Article 13. Thereafter, a series of amendments basis the 24th Constitutional Amendment were also passed to nullify the Golaknath verdict. Hence, petitioner approached the Hon’ble Supreme Court contending violation of Article 25 and Article 26 which deal with right to practice and propagate religion and right to manage religious affairs respectively. While the petition was still pending, the Kerala Land Reforms (Amendment) Act, 1971 was passed making amendments in the Kerala Land Reforms Act, 1963 and brought within Ninth Schedule. Thus, the said law was also challenged.
The case saw the largest Constitutional Bench of thirteen judges to decide upon the matter. Pursuant to 68 days of hearing, the verdict of the case was passed with a ratio of 7:6. The Court opined that the wide powers of the Parliament under Article 368 of the Indian Constitution were subjected to the basic structure doctrine. Any component forming part of the basic structure was not open to amendment by the legislature. Justice S.M. Sikri states as follows:
“The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same. The basic structure may be said to consist of the following features:
(1) Supremacy of the Constitution;
(2) Republican and Democratic form of Government.
(3) Secular character of the Constitution;
(4) Separation of powers between the Legislature, the executive and the judiciary;
(5) Federal character of the Constitution.
The above structure is built on the basic foundation, i.e., the dignity and freedom of the individual. This is of supreme importance. This cannot by any form of amendment be destroyed.”
The Court also said that Preamble was an intrinsic part of the basic structure as it is the basis of the Indian Constitution and envisages the fundamental rights for all the people. The Court also established the golden triangle consisting of Article 14, Article 19 and Article 21 of the Indian Constitution and held that the same bounds the Indian legal system.
The judgement acted as a cornerstone of the Indian Constitution which secured the rights of the people and ensured that the amending powers could not be usurped by the Parliament to get political gains. It reserved the essence of Indian democracy and ensured that constitutionalism continues to exist in the country.
Indira Nehru Gandhi v. Raj Narain (1975)
Kesavananda Bharati case had already laid down the foundation of basic structure doctrine in India by holding that certain parts of the Constitution cannot be amended in any manner. Just two years later, another issue in the form of the case of Indira Gandhi v. Raj Narain came up before the Court. The facts were such that the Allahabad High Court had invalidated the petitioner’s election owing to corruption and malpractices. As a consequence, the Parliament passed the 39th Constitutional Amendment Act to invalidate the judgment. The Amendment provided that the President, the Vice President, the Prime Minister and the Speaker of the Lok Sabha could not be subjected to the judicial review, thereby nullifying the effect of the Allahabad High Court judgment. Eventually, the Amendment was constitutionally challenged contending whether it was permissible to nullify the effect of the judgment and also affect the procedure concerning elections. The Supreme Court held that free and fair elections form part of the basic structure doctrine and hence, the clause was held to be invalid. Further, the Court added a few more elements to the doctrine, one of which was democracy implying free and fair elections. Other elements included judicial review, rule of law and Article 32 empowering the Supreme Court.
Minerva Mills v. Union of India (1980)
In Minerva Mills Ltd. v. Union of India, the issue before the Hon’ble Supreme Court was the constitutional validity of Sections 4 and 55 of the Constitution (Forty-Second Amendment) Act, which transgressed the limitations of amending powers of the Parliament. The Parliament, by way of the 42nd Amendment, introduced clause (4) and clause (5) to Article 368, which, in essence, excluded the amendments to the Constitution from being subject to the judicial review, and provided the Parliament an unrestricted power to amend the Constitution.
The Supreme Court held that in India, the supremacy of the Constitution is the most crucial aspect. The power to amend the Constitution provided to the legislature, thus, cannot be an absolute one, and it must respect the basic structure of the Constitution. If an absolute power is granted, the amendments would be outside the scope of judicial review, in which case, Article 13 would be a dead letter, as the legislature would escape the scrutiny of the Courts. However, judicial review was viewed as a part of the basic structure of the Constitution, and the amendment could not bypass the powers of the Courts to scrutinise laws, including the Constitutional amendments. The Court also held that harmonising the Fundamental Rights (Part III) and the Directive Principles of State Policy (Part IV) is also a part of the basic structure.
Madras Bar Assn. v. Union of India (2014)
In Madras Bar Association case, the issue before the Hon’ble Supreme Court were threefold: firstly, the constitutional validity of the NCLT and NCLAT on the grounds that it violated the basic structure of the Constitution; secondly, the prescription of qualifications including term of their office and salary allowances etc. of president and members of the NCLT and as well as chairman and members of the NCLAT; and lastly, the criteria for selection of the committee for appointing the members of both the tribunals. The Supreme Court did not accept the contentions of the Petitioner. It was held that the NCLT and NCLAT are compliant with the basic structure of the Constitution, as it was in consonance with the separation of powers, judicial review, and independence of judiciary. The Parliament is empowered to create a law which transfers a judicial function on a specific subject to any tribunal, given that the tribunal shall follow the principles of natural justice and the provisions of the Constitution. Additionally, the jurisdiction of the courts can be shifted to tribunals if it would abrogate the pendency and delay. Thus, NCLT and NCLAT were held to be constitutionally valid.
Supreme Court Advocates-on-Record Assn. v. Union of India (2016)
One of the very recent cases on basic structure doctrine is the NJAC case or famously called the Fourth-Judges case. By virtue of the 99th Constitutional Amendment, the Parliament replaced the then mechanism of selection of judges with the National Judicial Appointments Commission (NJAC). The initial composition of NJAC was thought to be comprising of Chief Justice of the Supreme Court along with four senior-most judges of the Supreme Court. However, at the time of enactment of the NJAC Act, the commission was composed of the Union Minister of Law and Justice and two eminent persons, alongside Chief Justice of India and two senior-most judges. Resultantly, petitions were filed challenging the constitutionality of amendment and NJAC Act raising the serious concern that the impugned law affected the independence of judiciary and caused lack of transparency and accountability. By a ratio of 4:1, the majority view held that the said Amendment and Act were violative of the basic structure doctrine since it affected the independence of judiciary by including the executive in selection process of judges. The Court was of the view that the impugned law goes against the judicial precedents set in Kesavananda Bharati and Minerva Mills case. The only dissent i.e. Justice Chelameswar opined that the present collegium system which is full of defects could have been corrected by the constitution of NJAC. He stated, “NJAC could have acted as a check on unwholesome trade-offs within the collegium and incestuous accommodations between Judicial and Executive branches.”
Criticism around the Basic Structure Doctrine
The basic structure doctrine is often criticised for the reason that it does not find its roots in the Constitutional text. No provision of the Constitution, neither expressly nor impliedly, discusses the basic structure. The critics believe that the Constitutional value of sovereignty of the people is the supreme power, which vests with the democratically elected government. Any judgement overturning such power of the people shall thus be against the spirit of the Constitution. The Constitution emphasizes on the separation of powers among the functionaries established thereunder. As much as the legislature does not have the power to pen down the verdict of a case, the judiciary also does not have the power to declare any Constitutional amendment void.
The NJAC Case
The NJAC Case discussed above has been a very recent case in the history of basic structure doctrine. However, the judgement is much criticised at various instances. The argument made by the critics related to the fact that NJAC Act did not affect the independence of judiciary. Moreover, a question is raised in this regard on how the collegium system is necessary for the independence of the judiciary. Referring to the 2015 verdict which had invoked the basic structure theory, Jagdeep Dhankar, the Vice President of India, addressing the 83rd All India Presiding Officers’ Conference, remarked that the scrapping of the NJAC Act was “a scenario perhaps unparalleled in the democratic history”. According to him, Parliamentary sovereignty and autonomy cannot be permitted to be compromised by the executive or judiciary.
Another aspect on which the basic structure is criticised is that the structure is not defined properly. The way the basic structure functions can be referred to as the ‘Ex-Post Review Mechanism’. Under the mechanism, since the contents of the basic structure are not defined or fixed, it comes to picture as a review mechanism after the amendment is implemented. This is because the function of the basic structure is to keep a check on the impact of the amendment rather than the contents of the amendment. Thus, the Court takes into account the socio-economic and political circumstances of the given time at which the amendment comes into effect. As a result, the basic structure excludes the legislative and executive functions from its scope, giving space to ambiguity, and raising an important question – whether the basic structure should be confined to the amendments to the Constitution only?
Apart from the aforementioned criticisms, the critics also question the judicial power to impose its philosophy over a democratically elected government. More specifically, the question is related to judicial overreach, as the Constitution does not empower the judiciary to abrogate any legislative action.
Is the Basic Structure still intact in India
Time and again, the High Courts as well as the Hon’ble Supreme Court have held that the basic structure of the Constitution is one of the most crucial aspects in the largest democracy of the world. It ensures that nothing in the country is above the Constitution and the Constitution is indeed the Suprema Lex. The non-definite structure of the doctrine provides the judiciary an opportunity to apply the Constitution in its true sense.
After Kesavananda Bharati, the basic structure of the Constitution has been kept intact by various Courts. In Vemireddy Pattabhirami Reddy v. Yendapalli Srinivasulu Reddy and Others (2002), while the Andhra Pradesh High Court was deciding whether the non-disclosure of criminal cases by an electoral candidate would render the election result as void, the basic structure of the Constitution was resorted to. It was held that a ‘free and fair’ election is a basic feature of our democracy, and hence, the basic structure of the Constitution.
In All India Judges Association v. Union of India & Ors. (2023), the Hon’ble Supreme Court has reiterated that the independence of the judiciary is a part of the basic structure of the Constitution, and it includes the independence of the district judiciary as well.
In State (NCT of Delhi) v. Union of India (2023), the issue before the Hon’ble Supreme Court was the asymmetrical federal model of governance in India, especially in the case of the National Capital Territory of Delhi. The issue was the constitutional validity of Article 339AA(3)(a) of the Constitution. The Constitutional bench of the Hon’ble Supreme Court held that an interpretation of Article 239AA(3)(a) in an expansive manner would further the basic structure of federalism.
Thus, it can be seen that not only the basic structure is still intact in the current times, the doctrine is still evolving and is construed to incorporate as many crucial aspects of the Constitution as the contemporary times deem fit.
Basic Structure Doctrine in Other Countries
The basic structure doctrine can be explained as that part of the Constitution which cannot be amended by the Parliament. The doctrine, in India, evolved through various cases and was finally spelt out in Kesavananda Bharati, as discussed above. However, the doctrine can be found in various countries. This section shall discuss the provisions of the countries where the doctrine can be found. These include, inter alia, Germany, France, Greece, Portugal, and Pakistan.
The German Constitution, known as the Basic Law for the Federal Republic of Germany, is one of the prime examples of the Constitutions which include the doctrine of basic structure. Article 79(3) (Amendment of the Basic Law) states that the “Amendments to this Basic Law affecting the division of the Federation into Länder, their participation in principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.”The Constitution has defined the basic structure under Article 1 and Article 20, and has safeguarded the same by excluding it from the scope of amendments. Article 1 of the Basic Law provides that the human dignity shall be inviolable, and the German people shall have inalienable human rights. Moreover, it is the duty of the State to protect the human rights of the people. Article 20 provides that the Federal Republic of Germany shall be a democratic and social federal state.
The German Constitution laid down the basic structure in express terms only after the Nazi rule ended in 1945, in order to avoid any similar situation again. The Federal Court of Justice (the Apex Court in Germany) recognized the provisions envisaged under Article 79(3) and referred to it as the “constitutional identity” in the renowned Solange I and Solange II judgements. Thus, the basic structure in Germany is now known as the constitutional identity of Germany.
Similar to the German Constitution, the Constitution of France expressly limits the powers of the government to amend the Constitution. Such limitation is expressed under Article 89 of the Constitution of France, 1958. The provision, apart from the procedure for amendment, states that “The republican form of government shall not be the object of any amendment.”Thus, the structure of the republican form of government is the basic structure provided under the French Constitution, and is protected from any amendment by the Government.
The Greek Constitution also expressly protects the basic structure like the German and the French Constitution. Article 110 of the Constitution provides for the procedure of revision. It states that “The provisions of the Constitution shall be subject to revision with the exception of those which determine the form of government as a Parliamentary Republic and those of articles 2 paragraph 1, 4 paragraphs 1, 4 and 7, 5 paragraphs 1 and 3, 13 paragraph 1, and 26.” Thus, the basic structure of the Greek Constitution is provided under these provisions, and are safeguarded by Article 110.
The Portuguese Constitution also provides explicit provisions for protection of the basic structure of the Constitution. Article 288 enlists 14 limitations on the Constitutional revision. These include the national independence and unity, republican form of government, separation of powers, citizen’s freedoms, rights and guarantees, independence of judiciary etc.
Pakistan has followed the steps of India while promulgating the basic structure doctrine. In Pakistan, the question regarding limitations on amendments to the Constitution were raised after Kesavananda Bharati, but to no avail. However, the question was revisited by the Supreme Court of Pakistan in Mahmood Khan Achakzai v. Federation of Pakistan (1997). In this case, the issue before the Court was the constitutional validity of the amendment allowing the President to dissolve the National Assembly. This provided an opportunity to the Apex Court to pen down the basic structure doctrine in Pakistan. This decision, however, was overruled by a larger bench within a year. The question regarding the basic structure was again raised before a 12-judge bench in 2015, which held by a majority of 8:4, in the case of District Bar Association & Ors. v. Federation of Pakistan (2015), that “This Court is vested with the jurisdiction to interpret the Constitution in order to ascertain and identify its defining Salient Features. It is equally vested with jurisdiction to examine the vires of any constitutional amendment so as to determine whether any of the Salient Features of the Constitution has been repealed, abrogated or substantively altered as a consequence thereof.” Thus, the Court held the Democratic and Parliamentary form of government, along with the Judiciary as a part of the basic structure of the Constitution of Pakistan.
Although it is true that the basic structure doctrine provides an overhauling power to the judiciary, it is pertinent to note that the Indian Constitution has been drafted with a pious and sacred intent. The makers of the Constitution endowed the responsibility of protecting the true values of the Constitution upon the judiciary. Thus, the judiciary has to protect and uphold the true values of the Constitution above everything surrounding it. If these values themselves are amended by the legislature, it would be detrimental to the spirit of the Constitution. These values are what form the basic structure of the Constitution.
However, the biggest problem faced while protecting the basic structure is that it has not been clearly defined. As discussed above, the basic structure is also found in various other democracies. Since the scope of the basic structure is defined in these countries, the scope of criticism is limited. Thus, a definite basis of the basic structure is the need of the hour.
- Indian Constitutional Law, M.P. Jain (2018).
- Constitution of India, V.N. Shukla (2022).
- Constitutional Law, Mamta Rao (2021).
- Karim, F.: Judicial Review of Public Actions: A Treatise on Judicial Review (Karachi, Pakistan Law House 2006), 1254–76.
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