Doctrine of Basic Structure

On 16 oct 2015, Supreme Court quashed the National Judicial Appointment Commission (NJAC) and unpinned the 99th amendment act from the constitution’s board as it was diluting the independence of the judiciary and hence violating the doctrine of basic structure.

In India, parliament can amend any provision of the constitution and is vested with such power under Article 368 of the constitution itself but cannot disturb the basic structure of the constitution through amendment or any type of alteration.

Understanding doctrine of basic structure

Doctrine of basic structure is nowhere expressed or mentioned in the constitution of India so why are we limiting the powers of the parliament with a reason which is even not mentioned in the constitution? J. Khanna provided that the power in Article 368 of ‘amend’ is not of nature of arbitrary but limited.

Verbatim Article 368 -”Power of parliament to amend the constitution”, here the word ‘amend’ gives birth to the doctrine of basic structure. The word amend itself expresses that the parliament can amend the constitution but cannot change its ideals and philosophy or briefly say- the structure.

So the doctrine of basic structure says that

1. the parliament’s unlimited power to amend the constitution is subject to only one restriction i.e it should not dilute or violate the basic structure of the constitution.
2. Or the effects of the amendment should not be abrogating or disturbing in nature towards the basic structure.

Subject matter

The doctrine of basic structure though is not exactly defined but through its contents which have been provided by the judicature clarifies a scope defining the frame or the structure of the constitution. From time to time basic structure is enhanced with some new contents and hence the Supreme Court is yet to define the exact basic structure of the constitution.

• Supremacy of the constitution
• Rule of law
• Sovereignty, liberty and republic nature of Indian polity.
• Judicial review
• Harmony and Balance between fundamental rights and directive principles.
• Separation of power.
• Federal character.
• Parliamentary system.
• Rule of equality.
• Unity and integrity of the nation.
• Free and fair elections.
• Powers of SC under Article 32,136,142,147
• Power of HC under Article 226 and 227.
• Limited power of parliament to amend the constitution.
• Welfare state.
• Freedom and dignity of an individual.

Evolution of doctrine of basic structure

The developeent history of the doctrine of basic structure can be divided into four state –

First stage – Sankari Prasad judgement and ending with I.C. Golaknath judgement

Initially judiciary was of the view that the amendment power of the parliament is unrestrictable because it can amend any part of the constitution even also the article-368 which provides the power to amend to the parliament. But in 1967, Golak Nath V State of Punjab, the Supreme Court adopted a new vision to see the powers of parliament that it cannot amend the part III of the constitution i.e Fundamental rights and thus awarded fundamental rights a “Transcendental Position”

NOTE-The “basic features” principle was first expounded in 1953, by Justice J.R. Mudholkar in his dissent, in the case of Sajjan Singh v. State of Rajasthan.

He wrote, “It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Article 368?”

The second stage (main stage) – Starting with Post Golakhnath Scenario and ending with Keshavananda case Judgment

– In 1973, Keshavanada Bharti V State of Kerala gave birth to the landmark judgement which pronounced that the parliaments cannot alter or disturb the basic structure of the constitution. It was held that however the parliament has unfettered power to amend the constitution but it cannot disturb or emasculate the basic structure or fundamental features of the constitution as it only the power of amendment and not of re-writing constitution.

The Third stage – Starting with Post Keshavananda’s case and ending with Indira Gandhi’s case

– Although the doctrine of basic structure was given in Keshavanand case but it got widespread acceptance and legitimacy due subsequent cases and judgments. The main evolution of this doctrine started at the emergency period imposed by then powerful PM Indira Gandhi. 39th amendment was passed by the government in order to suppress her prosecution which also extracted the elections of Prime Minister from the purview of judicial review. However, in the case of Indira Nehru Gandhi v. Raj Narain, the 39th amendment act was quashed down with the help of doctrine of basic structure.

The fourth stage – Judgment like Minerva Mill’s case and Vaman Rao’s case

– In the Minerva Mills case, the Supreme Court provided key clarifications on the interpretation of the basic structure doctrine.

Under the limited power of parliament to amend the constitution, two important factors were added-

• To keep harmony and balance between the rights and directive principles.
• Judicial review

Keshwanand Bharti’s case and the way it was pronounced.

An opposition is the core of conflict and that is what lead to the case. Six different petitions were filed by different petitioners seeking that whether the parliament’s amending power is limited especially when it comes to Fundamental rights or not.

Kesavananda Bharati Sripadagalvaru, the leader of a math in Kerala, challenged the Constitution (29th Amendment) Act, 1972, which placed the Kerala Land Reforms Act, 1963 and its amending Act into the IX Schedule of the Constitution.

Chief Justice S.M. Sikri headed the 13 judges bench, constituted for hearing the petitions in the case. The judgement was passed by a majority with 7/6 ratio concluding the statement that the basic structure of the constitution of India cannot be amended by the parliament. But was it as simply passed as it seems?

The case of Keshwanand Bharati created a “poisonous” atmosphere in the court-as alleged by an author. Also, a judge later spoke about the “unusual happenings” which brings the judgement in the question mark “was the decision pronounced in the case was judicial one? ”

“I got the impression [from the first day] that minds were closed and views were determined.”-Justice Jaganmohan Reddy through this record against his colleagues again puts a question mark on the nature of the judgement.

With such 5 months frictional environment the case was decided with 11 pronounced judgments by nine judges collectively contributing to approx. 1000 pages. Discussing in other form, this match was decided by the umpire Justice Khanna as there was a tie between the other judges- 6 were of the opinion that parliament’s amendment power is limited as the constitution itself contains inherent and distinct limitations, with 6 other who were of the opinion that parliament’s power with regards to amendment process is unlimited, but it was justice Khanna who suggested that parliament although can amend any provision of the constitution but as the power is to “amend” so it cannot violate or amend the basic structure of the constitution.

H.R. Khanna J.

1. H.R Khanna in his judgement said that however, the parliament has full power to amend the constitution but here ‘the power to amend’ should not shrink or dilute the basic framework or the structure of the constitution. Other six judges also who favoured the limitation on power, contended that parliament cannot amend essential elements of the judgment as they are implied in the constitution.

According to Honourable Justice, parliament is empowered to amend and bring law with respect to the changing situation but it cannot touch or alter the boundaries of the constitution.

But how can the judgement of one unit lead to a majority name? Thereby hangs a tale not generally known. After the 11 judges were done with their judgement, CJ Sikri who was of the opinion that parliament’s amendment power is inherently limited and also with implied limitations, immediately passed a paper named “View of the majority” for the assent of the thirteen judges. However, the paper was the conclusion of Justice Khanna’s judgment i.e Basic structure of the constitution cannot be amended” but only 9 judges signed the paper and so other were not called for the press conference expressing the majority view.

This is the brief struggling story of “Doctrine of Basic Structure”.

Important judgments of Supreme Court regarding Basic Structure

Conclusion

Subsequently, we find that basic structure as an idea has developed over years since its origin in the 1970s, with each passing year there has been to an ever increasing extent right being incorporated into the basic structure of the Constitution. Basic structure as we see today is consequently a finish of long periods of legal supervision of Rights and related constitutional structure. Through the ‘rights chain’ we have substantiated that basic structure is a summit of judicial decision to pick the simple best in the rights buffet and secure them despite seemingly insurmountable opposition. In this way, an essential structure is the distillate of centre natural rights, human rights and Fundamental Directly under the Indian situation. Be that as it may, as we have seen the judiciary never gave a solid test to discover what basic structure is leaving the definition so dubious that legal have abundant moving space. Be that as it may, from dubious words like constitutional identity’, ‘basic value of constitution’, we have discovered that dependent on the rights chain fundamental structure would be restricted to natural rights and to those zones of lawful structure that straightforwardly influences those.