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This article is written by Srishti Sinha, a student at the Institute of Law, Nirma University. This article deals with the basic structure of doctrine of the constitution with the recent verdict of Kenya High Court which has ruled that doctrine of Basic Structure is applicable in Kenya.

Introduction

The term Basic Structure is nowhere mentioned in the Indian Constitution. The concept that the Parliament cannot pass laws that change the Constitution’s essential framework has evolved throughout time and in various circumstances. The goal is to defend people’s rights and liberties while preserving the character of Indian democracy. This doctrine aids in the protection and preservation of the Constitution’s spirit.

The case of the Doctrine of Basic Structure in Kenya is solely based on people’s rights and preserving the aim of the Constitution. The justices based their decision on several factors, including Kenya’s constitutional making history, reasoning that the unmaking of the Constitution must be led by the people in the same manner that the making of the Constitution was. 

Basic Structure Doctrine in India – an overview

What is the Doctrine of Basic Structure?

The Constitution is a vast document that can be amended according to the needs and requirements of society. Till today, there have been various amendments in our Constitution, as over time the requirements and expectations of societal changes and so, there is a need to change the laws. Article 368 of the Indian Constitution grants the power to the Parliament to make amendments in the Constitution, whenever necessary. 

The Doctrine of Basic Structure is nothing more than a judicial invention designed to prevent Parliament from abusing its amendment power. The concept is that the core aspects of the Indian Constitution should not be changed to the point that the Constitution’s uniqueness is lost. The idea of basic structure supports that the Indian Constitution upholds certain principles that are the governing norms for the Parliament. No amendment can modify these principles. 

Evolution of Doctrine of Basic Structure of Constitution

The constitution’s underlying foundation has evolved throughout time. In this part, we’ll look at how this concept has evolved with the assistance of several important cases.

  • In the case of Shankari Prasad v. Union of India (1951), the First Constitution Amendment Act of 1951 was challenged. The amendment was contested because it violated Part III (Fundamental Rights) of the Constitution and should thus be deemed unlawful. The Supreme Court ruled that the Parliament has the power to change any part of the Constitution, including basic rights, under Article 368. 
  • In the case of Sajjan Singh v. State of Rajasthan (1964), the Supreme Court gave the same ruling, i.e., the Parliament has the power to change any part of the Constitution, under Article 368. 
  • The Supreme Court overruled its earlier decision in the case of Golak Nath v. State of Punjab (1967). The Supreme Court ruled that Parliament does not have the authority to modify Part III of the Constitution since basic rights are eternal and unchangeable. According to the Supreme Court ruling, Article 368 simply lays out the mechanism for amending the Constitution and does not grant the parliament full power to modify any part of the Constitution. 

Later, in the year 1971, the 24th Constitution Amendment Act, 1971 was approved by Parliament. The legislation provided parliament with the unrestricted authority to amend the Constitution, including basic rights. It also made it mandatory for the President to give his assent on any Constitution Amendment legislation that was brought to him.

  • The Supreme Court upheld the legality of the 24th Constitution Amendment Act in the Kesavananda Bharati v. State of Kerala (1973), after reconsidering its verdict in the Golaknath case. The Supreme Court ruled that the Parliament has the authority to change any provision of the Constitution, but that the Constitution’s basic structure must be preserved. In the judgment, the Apex Court did not mention any specific definition of the Basic Structure.
    Kesavananda Bharati case is considered as the landmark case which brought this doctrine into the limelight. In this case, the justices determined that the Constitution’s “fundamental structure could not be repealed even by a constitutional amendment”, and they also created a list of essential aspects of the Constitution.
  • In the case of Indira Gandhi v. Raj Narain (1975), the Supreme Court used the basic structure theory to strike down Clause(4) of Article 329-A, which was added by the 39th Amendment in 1975, because it was outside Parliament’s amending power since it undermined the basic structure of the Constitution. 
  • In the case of Minerva Mills v. Union of India (1980), the concept of Basic Structure was developed by adding two features to the list of basic structure features: Judicial Review and balance between Fundamental Rights and Directive Principle of State Policy.
  • In the case of Kihoto Hollohan v. Zachillhu (1992), the list of Doctrine of Basic Structure was further amended by adding free and fair elections into the list. 
  • In another landmark case of Indira Sawhney v. Union of India (1992), the Rule of Law was added as the basic feature of the Constitution.
  • In another landmark case of S.R Bommai v. Union of India (1994), federal structure, unity and integrity of India, secularism, socialism, social justice, and judicial review were included in the list of basic structures.

With these cases, a list of Doctrine of Basic Feature was made ready and any amendment made into these features is considered as a breach of the Constitution’s Basic Structure.

How did the Basic Structure Doctrine become applicable in Kenya

Background

In the recent Kenyan case of David Ndii v. The Attorney General (2020), the High Court of Kenya has declared that the idea of Basic Structure is applicable in Kenya. The Constitution of Kenya (Amendment) Bill, 2020 was disqualified by 5 High Court judges on 13th May 2021. This Bill was disqualified because it aimed to implement the President’s Building Bridges Initiative (BBI).

The Bill was a comprehensive constitutional reform proposal that attempted to “build a permanent unity in the country” by introducing certain major amendments to many chapters of Kenya’s 2010 Constitution. Among the many changes made by the Bill was the redesign of the legislature by returning the Government to Parliament, the expansion of the national executive by creating the Office of the Prime Minister and Deputy Prime Ministers, the inclusion of the Leader of the Official Opposition in Parliament, and the creation of 70 new constituencies. 

Contentions 

The following are the arguments made by both parties:

Arguments of Petitioners

The petitioners argued that the amendment powers enshrined in Articles 256 and 257 of the Kenyan Constitution can only be used to amend the Constitution’s “ordinary provisions,” and that they do not include the power to destroy the Constitution, nor the power to establish a new form of government or enact a new Constitutional Order. The petitioners contended that the Bill threatens to overturn the Presidential form of governance by amending Chapter 9 of the Constitution, which goes against the decisions and reasoning of the Constitution’s framers. The petitioners argued that the Basic Structure Doctrine imposes logical constraints on the right of modification.

They claimed that the doctrine exists to defend the Constitution’s basic features and that the ability to change the basic structure is restricted since doing so would damage the Constitution’s basic character. To give authority to their contentions, the petitioners took a famous and landmark Indian case of Kesavananda Bharati v. State of Kerala (1973), to stress their point that when it comes to parliament’s amending authority, the Constitution imposes certain inherent limits on that power.

Arguments of Respondent

The respondent claims that the petitioner’s contention that the Basic Structure should be applied in Kenya ignores “the Kenyan Constitution distinctive cultural, historically evolved Constitutional standards, and national identity.” The respondents responded to the petitioners’ citation of the Kesavananda Bharati case (India) by stating that the Kesavananda Bharati decision recognizes the uniqueness of the Indian Constitution and the applicability of this doctrine within the Indian context, which is not at all similar to the Kenyan perspective.

They contend that, unlike in India, the Constitution’s modification authority does not lay only with Parliament, because Kenyans have the last say in a referendum. They claimed that the basic structure doctrines, as well as the amenability and eternity provisions, do not apply in Kenya. They chastised the petitioners for conflating the notions of Basic Structure Doctrine, the concept of amenability, and eternal clause, which they claimed needed to be separated. Furthermore, the respondents said that the Basic Structure Doctrine is not universally accepted. 

Observations by the Kenya HC 

After analyzing  the arguments of both sides, the bench of 5 Justices observed the following:

  • The basic framework of the Constitution is made up of the preamble’s basic structure, the eighteen chapters, and the six schedules of the Constitution. The design of the judiciary, parliament, executive, independent commissions and offices, and devolved forms of government are all outlined in this framework. It also lists the exact substantive topics that Kenyans believed were significant enough to be included in the Constitution. As a result, without recalling the people’s primary constituent power, this core cannot be changed. Thus, the basic structure of doctrine is applicable in Kenya.
  • The basic structure doctrine limits the amending authority of Articles 255 to 257 of the Constitution. The doctrine, in particular, restricts the ability to change the Constitution’s basic structure and perpetuity sections.
  • The entire BBI process, crowned in the launch of the Constitution of Kenya Amendment Bill, 2020, was done unconstitutionally and in the usurpation of the people’s exercise of sovereign power, and that the President violated Chapter 6 of the Constitution and Article 73(1)(a)(i) by initiating and promoting a constitutional change process contrary to the Constitution’s provisions on amendment of the Constitution.
  • That only the primary constituent power can modify the Constitution’s basic structure and eternity articles, which must comprise of 5 consecutive processes: civic education, public involvement, collation of opinions, constituent assembly discussion, and, finally, a referendum.

Indian precedents crossing boundaries- a proud moment for the Indian legal system

The controversial Constitution of Kenya Amendment Bill, 2020 has finally got its verdict on 13th May 2021. The High Court was hearing a slew of constitutional petitions challenging the Building Bridges Initiative (BBI), as well as the consequent Constitution Amendment Bill and its related popular initiative, in various ways.

The contentions and arguments of both parties have given the support of an Indian landmark case of Kesavanada Bharati. Both the parties heavily relied on this case for presenting their arguments. It is a proud moment for India that its landmark case of Kesavanada Bharati is being cited as a supportive case in deciding a Constitutional matter of any foreign country. Further, the change that is brought in Kenya’s Constitution signals winds of change for constitutionalism in Africa. 

Conclusion

The transformational ethos is one of the most prominent elements of Constitutions in the global south, including Kenya. Constitutions in the global south are not just tools for establishing and restricting political authority, but also for facilitating greater societal change.

This is critical not only for Kenya, but also for much of the global south, where societies may not be able to afford violent revolutions that might undo beneficial socioeconomic and political achievements, and where post-revolutionary constitutional outcomes may not be certain.

The controversial judgment of the Kenyan Court on Doctrine of basic structure analyzes the fundamental problems that the decision was based on while placing them within Kenya’s larger constitutional and socioeconomic framework.  It is expected that the change which has been brought into the constitution of Kenya will improve the condition in Africa and the rights of people will not be affected further. 

References 

 


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