This article is written by Aditya Dubey, student of Indore Institute of Law, Indore(M.P.). The author in this article has discussed the doctrine of ‘basic structure’ of the Constitution of India and the Cases which led to the clarity of the concept.

Introduction

As per the Constitution of India, the Parliament and the state legislatures in the nation have the powers to make laws within the scope of their respective jurisdictions. However, this power is not absolute in nature. The Constitution has awarded the judiciary the power to adjudicate upon the constitutional validity of all laws. If a law made by Parliament or the state legislature is violative in nature of any provision enshrined under the Constitution of India, the Supreme Court has the power to declare such a law made by Parliament to be deemed as invalid or ultra vires.

The founding fathers of the Constitution wanted the Constitution to be an adaptable document and not a rigid framework for Governance. Hence, the Parliament was invested with the power to amend the Constitution of India.

Article 368 of the Constitution makes it appear as the Parliament’s amending powers are absolute and encompass all parts of the Constitution of India. But the Supreme Court has had curtailed the legislative enthusiasm of Parliament ever since the independence of the nation. 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 term ‘basic structure’ cannot be found in the Constitution but its essence is available.

The Supreme Court of India has recognised the concept of ‘basic structure’ for the first time in the historic case of Kesavananda Bharati v. the State of Kerala in the year 1973. And ever since then, the Supreme Court has been the translator of the Constitution and the arbiter of all amendments made by Parliament.

What was the position before the Kesavananda Bharati case?

• The Parliament’s authority to amend the Constitution, specifically the chapter on the fundamental rights of the citizens of India, was challenged as early as in 1951. After the independence of India, many laws were enacted in the states with the aim of reforming land ownership and tenancy structures.
• Such a thing was done for keeping up with the ruling Congress party’s electoral promises of implementing the socialistic goals of the Constitution (these are contained in Article 39 (b) and (c) of the Directive Principles of State Policy). These required fair and impartial distribution of resources of production among all citizens of India and prevention of concentration of wealth in the hands of a few.
• The Property owners were adversely affected by these laws, hence, they had petitioned in the courts. The courts struck down the land reforms laws saying that they were acting above the fundamental right to property guaranteed by the Constitution.
• Curious by the unfavourable judgements, the Parliament placed these laws in the Ninth Schedule of the Constitution by the First and Fourth amendments (made in the years 1951 and 1952 respectively), this resulted effectively into removing these laws from the scope of judicial review by the independent judiciary.
• Owners of properties then once again challenged the constitutional amendments which then placed land reforms laws in the Ninth Schedule before the Supreme Court, saying that they violated Article 13 (2) of the Constitution of India.
• Article 13 (2) ensures the protection of the fundamental rights of all the citizens of India. Hence, the Parliament and the state legislatures were clearly prohibited from making laws that may take away or abridge or infringe the fundamental rights guaranteed to every citizen of India. They argued that any amendment made to the Constitution of India had the status of the law as understood by Article 13 (2).

Golaknath v. State of Punjab

• In the year 1967, an eleven-judge bench of the Supreme Court of India reversed the pre-existing position. By giving a  6:5 majority judgement in the Golaknath v. State of Punjab case, Chief Justice Subba Rao put forth the curious position that Article 368, that contained provisions related to the amendment of the Constitution, merely laid down the amending procedure.
• Article 368 did not grant the power to the Parliament to amend the Constitution. Hence, the amending power of Parliament came from other provisions contained in the Constitution of India under various Articles such as Article 245, 246, and 248, which gave Parliament the power to make laws. Thus, the Supreme Court held that the amending power and legislative powers of Parliament were the same essentially. Therefore, any amendment of the Constitution must be deemed law as enshrined under Article 13 (2) of the Constitution of India.
• Most part of the judgement called upon the concept of implied limitations on Parliament’s power to amend the Constitution of India. This view was held that the Constitution gives a place of permanence to the fundamental freedom of the citizen. Article 13, as per the view of the majority of the people, expressed this limitation on the powers of Parliament. Hence, Parliament could not modify, restrict, or impair fundamental freedoms due to this very scheme of the Constitution and the nature of the freedoms granted under it.
• The judges then stated that the fundamental rights were so sacred and supernatural in their importance that they could not be restricted even if such a move were to receive through the unanimous approval of both houses of Parliament. The judges observed that a Constituent Assembly may be summoned by Parliament for the purpose of amending the fundamental rights if it is found to be necessary.
• In other words, the Supreme Court of India held that some features of the Constitution lay at its core and required much more than the usual procedures to change them.
• The term ‘basic structure‘ was introduced for the very first time by M.K. Nambiar while arguing for the petitioners in the landmark case of Golaknath v. the State of Punjab, but it was only until 1973 that the concept surfaced in the text in written format of the apex court’s verdict.

What led to the Nationalisation of Banks and the Abolition of Privy Purses?

• After a few weeks of the Golaknath case, the Congress party had suffered huge losses in the parliamentary elections and it lost its power in several states. Though a private member’s bill, tabled by Barrister Nath Pai, seeking to restore the supremacy of Parliament’s power to amend the Constitution was introduced and debated in both the houses of Parliament and in the Select Committee, it could not be passed due to political pressure at the time.
• The chance to test Parliament’s ascendancy came back into play once again when Parliament introduced some laws which provided greater access to bank credit for the agricultural sector and ensured fair and impartial distribution of wealth and resources of production by the nationalisation of banks.
• Parliament then questioned that it was implementing the Directive Principles of State Policy but the Supreme Court struck down both the moves. By now, it was clear that the Supreme Court and Parliament were at a clash over the relative position of the fundamental rights and the Directive Principles of State Policy.
• On one hand, the battle was about the supremacy of Parliament and the power of the courts to interpret and uphold the Constitution. On the other hand, the dispute was over the holiness of the property as a fundamental right jealously guarded by an affluent class much smaller than that of the large impoverished masses for whose profit the Congress-led government claimed to put forth its socialist developmental programme.
• Less than two weeks after the Supreme Court struck down the President’s order derecognising the princes, in a quick move to secure the mandate of the people and to bolster her own stance, then Prime Minister Indira Gandhi dissolved the Lok Sabha and called it a ‘snap election’.
• For the very first time, the Constitution of India itself had become an electoral issue in India because of such a move. Eight of the ten manifestos in the 1971 elections called for changes in the Constitution in order to restore the supremacy of Parliament.
• A.K. Gopalan, a member of the Communist Party of India (Marxist), went to the limit by saying that the Constitution can be done away with lock, stock and barrel and can be replaced with one that enshrined the real sovereignty of the people.
• Later on, the Congress party came back to power once again with a two-third majority. The Congress party’s socialist ideology was fully supported by the electorate which among many other things spoke of making basic changes to the Constitution in order to restore Parliament’s supremacy.
• Through a ton of amendments made between July 1971 and June 1972, the Parliament sought to regain it’s lost stance. The Parliament restored for itself the absolute power to amend any part of the Constitution of India including Part III, dealing with the fundamental rights. Even the President of India was made duty bound to provide his assent to any amendment bill passed by both houses of Parliament.
• Several restrictions on the right property were passed into law. The right to equality before the law and equal protection of the laws (Article 14) and the fundamental freedoms guaranteed under Article 19 were made as subordinate to Article 39 (b) and Article 39 (c) in the Directive Principles of State Policy. Privy purses of the former princes were abolished and an entire category of legislation dealing with land reforms was placed in the Ninth Schedule which was made to be beyond the scope of judicial review.

The Need for the Basic Structure Doctrine

• Eventually, the constitutional validity of these amendments was challenged in front of a full bench of the Supreme Court of India (thirteen judges). Their decision can be found in eleven separate judgements. Nine judges signed a summary statement which records for the most important conclusions reached by them in this case.
• Granville Austin addresses that there are many inconsistencies between the points which are enshrined in the summary signed by the judges and the opinions which were expressed by them in their separate judgements. Regardless, the concept of ‘basic structure’ of the Constitution gained recognition in the majority verdict conclusion. All the judges upheld the validity of the Twenty-fourth Amendment of the Constitution by saying that Parliament had the power to amend any or all provisions of the Constitution.
• All signatories to the summary held that the Golaknath v. State of Punjab case had been decided incorrectly and that Article 368 contained both the powers and the procedure for amending the Constitution.
• However, they were clear that an amendment to the Constitution was not the same as a law as per Article 13 (2).
• It is very much needed to point out the major difference that exists between two kinds of functions which are performed by the Indian Parliament:

1. It can make laws for the country by exercising its legislative power; and
2. It can amend the Constitution by exercising its constituent authority.

Constituent authority is much more superior to the ordinary legislative power

• Unlike in the case of British Parliament which is a sovereign body (in the absence of a written constitution), the powers and functions of the Indian Parliament and State legislatures are subject to certain limitations which are laid down in the Constitution of India.
• The Constitution does not have all the laws that govern the country. Parliament and the state legislatures make laws from time and again on many subjects, which are within their respective jurisdictions.
• The framework for making such laws is provided through the Constitution of India. Parliament itself alone is given the power to make changes to this framework under Article 368 of the Constitution of India. Unlike normal laws, the amendments made to the constitutional provisions require a special majority vote in Parliament.
• According to Article 21 of the Constitution of India, no one in the nation can be deprived of his life or personal liberty except in accordance with the procedure which is established by the law. The Constitution of India does not lay down the details of the procedure as that role is given to the legislatures and the executive.
• Parliament and the state legislatures make the necessary laws by identifying offensive activities for which a person may be imprisoned or even sentenced to death. The executive lays down the procedure of implementing these laws which are made by Parliament and the State legislature and hence, the accused person is tried in a Court of law. The changes to these laws may be done by a simple majority vote in the concerned state legislature. There is no need to amend the Constitution of India in order to put changes to these laws. In certain cases, if there is a demand to convert Article 21 into the fundamental right to life by abolishing the death penalty, the Constitution may have to be amended suitably to the circumstances by Parliament using its constituent power.
• The most important part of this is that, seven of the thirteen judges in the Kesavananda Bharati v. State of Kerala case, including Chief Justice Sikri who had signed the summary statement and declared that the Parliament’s constituent power, was subjected to certain limitations. Parliament cannot use its amending power under Article 368 to cause ‘damage’, or to ’emasculate’, or even ‘destroy’, or ‘abrogate’, or ‘change’ ,or ‘alter’ the ‘basic structure’ of the Constitution of India.

Basic Features of the Constitution according to the Kesavanada Bharati case

Each judge, in this case, gave their opinions separately about what they thought were the basics or essential features of the Constitution of India. There was no consensus within the majority view either.

Chief Justice Sikri explained that the concept of the basic structure included the following:

• The Supremacy of the Constitution of India;
• The Republican and Democratic forms of government;
• The Secular character of the Constitution;
• The Separation of powers between the three bodies i.e. the legislature, executive and the judiciary; and
• The Federal character of the Constitution.

Justice Shelat and Justice Grover added two more features to the list provided by Justice Sikri which are as follows:

• The authority to build a welfare state contained in the Directive Principles of State Policy;
• The Unity and Integrity of India.

Justice Jaganmohan Reddy said that the elements of the basic features could be found in the Preamble of the Constitution of India and the provisions into which they were translated. These were:

• The Sovereign Democratic Republic;
• The Parliamentary form of Democracy; and
• The three organs of the State.

He further stated that the Constitution of India would not itself be without the fundamental freedoms and the directive principles. Only six judges of the thirteen judges bench came to the consensus that the fundamental rights of the citizens of India belonged to the basic structure of the Constitution and Parliament cannot amend it.

State of Uttar Pradesh v. Raj Narain

• In the year 1975, The Supreme Court of India once again had the chance to pronounce on the basic structure of the Constitution. A direct challenge to Prime Minister Indira Gandhi’s electoral victory was put forth by the Allahabad High Court on grounds of electoral malpractice in 1975.
• Pending the appeal, the vacation judge, Justice Krishna Iyer, granted a stay which allowed Smt. Indira Gandhi to function as the Prime Minister of India on the condition that neither will she take any salary nor will she speak or vote in Parliament until the case was decided. On the other hand, the Parliament passed the Thirty-ninth amendment to the Constitution of India which then removed the authority of the Supreme Court of India to adjudicate certain petitions related to the elections of the President, Vice President, Prime Minister and the Speaker of the Lok Sabha. Instead, a body constituted by the Parliament would be granted with the power to resolve such election disputes.
• Section 4 of the Amendment Bill prevented any attempt to challenge the election of an existing official, occupying any of the above offices in a court of law. This was clearly a pre-emptive action designed to profit Smt. Indira Gandhi whose election victory was the main object of the ongoing issue.
• The Amendments were also made to the Representation of Peoples Acts of 1951 and 1974 and placed in the Ninth Schedule along with the Election Laws Amendment Act, 1975 in order to save the Prime Minister from any embarrassment in case if the Supreme Court of India delivered an unfavourable judgement.
• The mala fide (in bad faith) intention of the government was then proved in which the Thirty-ninth amendment was passed. The bill was introduced on August 7, 1975, and passed by the Lok Sabha the same day.
• The Rajya Sabha (Upper House) passed it the next day and the President gave his assent two days after that. The amendment was later confirmed by the state legislatures in a Special Saturday Session. It was gazetted on August 10. When the Supreme Court opened the case for hearing the very next day, the Attorney General asked the Court to remove out the case in the response to the new amendment.
• The Counsel for Raj Narain who was the political opponent who had challenged Mrs. Gandhi’s election argued that the amendment was against the basic structure of the Constitution of India as it severely affected the conduct of free and fair elections and the power of judicial review.
• The counsel also questioned that Parliament was not competent enough to use its constituent powers for validating an election that was declared void by a High Court.
• One judge, Justice Beg upheld that the thirty-ninth amendment in its entirety established Mrs Gandhi’s election to be declared valid on the basis of the amended electoral laws. The judges then had accepted Parliament’s power to pass laws which had a retrospective effect.

Basic Features of the Constitution as per the Election case verdict

In this case, as well, each judge expressed his views about what amounts to the basic structure of the Constitution of India:

1. Justice H.R. Khanna stated that democracy is a basic feature of the Constitution and includes free and fair elections;
2. Justice K.K. Thomas stated that the power of judicial review is an essential feature of the independence of the judiciary;
3. Justice Y.V. Chandrachud made a list of four basic features which he considered to be not amendable by Parliament. These were:

• The Sovereign Democratic Republic status;
• The Equality of status and opportunity to each individual;
• Secularism and the Freedom of conscience and religion; and
• The rule of law.

1. Chief Justice A.N. Ray stated that the constituent power of Parliament was above the Constitution itself and therefore it was not bound by the principle of separation of powers. Parliament could, therefore, exclude laws relating to electoral disputes from judicial review. He said that democracy was a basic feature but free and fair elections were not. Hence, he held that ordinary legislation was not within the scope of basic features.
2. Justice K.K. Mathew agreed with Chief Justice Ray and said that the ordinary laws did not fall within the purview of the ‘basic structure’ of the Constitution of India. But he also held that democracy was an essential feature and that election-related disputes must be decided on the basis of law and facts by the independent judiciary.
3. Justice M.H. Beg disagreed with Chief Justice Ray and stated that it would be unnecessary to have a Constitution if Parliament’s constituent power was said to be above it. Judicial powers were vested in the Supreme Court and the High Courts as the Parliament could not perform them. He further stated that the supremacy of the Constitution and separation of powers were basic features as understood by the majority in the Kesavananda Bharati v. State of Kerala case. Beg emphasised that the doctrine of the basic structure included ordinary legislation also.

Despite the disagreement between the judges on what constituted the basic structure of the Constitution, the idea that the Constitution had a core content which was sacred and was upheld by the majority view.

The Kesavananda Bharati case Review Bench after the decision of the Election case

• After three days of the decision on the Election case Chief Justice Ray, directed a thirteen judge bench to review the Kesavanada verdict on the pretext of hearing a number of petitions related to the land ceiling laws which had been rotting in the high courts. The petitions said that the application of land ceiling laws violated the basic structure of the Constitution. In effect to this, the Review bench was to decide whether or not the basic structure doctrine prevented the Parliament’s powers to amend the Constitution. The decision made in the Nationalisation of Bank case was also up for review.
• While Prime Minister Indira Gandhi, in a speech in Parliament, did not accept the concept of the basic structure, it must also be remembered that no specific petition seeking a review on the Kesavananda Bharati case verdict filed before the Supreme Court of India, a fact noted with much annoyance by several members of the bench. N. N. Palkhivala appearing for and on behalf of a coal mining company questioned against the move to review the Kesavananda Bharati case’s decision. Later on, Ray dissolved the bench after two days of hearings. Many people had suspected the government’s indirect involvement in this episode seeking to undo an unfavourable judicial precedent set by the Kesavananda decision. However, efforts were made to pursue the case.
• The declaration of a National Emergency in June 1975 and result of it such as the suspension of the fundamental freedoms, including the right to move courts against preventive detention, rerouted the attention of the country from this issue.

Sardar Swaran Singh Committee and the Forty-second amendment

During the National Emergency in the year 1776, the Indira Gandhi led Congress party set up a committee under the Chairmanship of Sardar Swaran Singh for studying and questioning of amendments of the Constitution in the light of past experiences. Based on its recommendations, the government made many changes to the Constitution of India including the Preamble, through the Forty-second amendment (passed in 1976 which came into effect on January 3rd, 1977).

The Amendment stipulated the following:

• Gave the Directive Principles of State Policy priority over the Fundamental Rights contained under Article 14 (the right to equality before the law and equal protection of the laws), Article 19 (many freedoms like the freedom of speech and expression, right to assemble peacefully, right to form associations and unions, right to move and reside freely in any part of the country and the right to pursue any trade or profession) and Article 21 (the right to life and personal liberty). Article 31C was amended to prevent any challenge to the laws made under any of the Directive Principles of State Policy;
• It laid down that the amendments made to the Constitution of India made in the past or those likely to be made in the future could not be questioned in any court on any grounds;
• It removed all the amendments made to the fundamental rights from the scope of judicial review; and
• It deleted all limitations on Parliamentary powers to amend the Constitution under Article 368.

Conclusion

It can be established from this article that the final word on the issue of the basic structure of the Constitution has not been declared by the Supreme Court of India. It is a scenario that may change in the near future. While the idea that there is such a thing as a ‘basic structure’ of the Constitution of India has been well established and its content cannot be completely determined with any measure of finality until a judgement of the Supreme Court spells it out to be. From the cases mentioned in the article, it can be said that the concept of the ‘basic structure’ will definitely change in the near future as similar cases of this kind are likely to arise.