DOCTRINE OF BASIC STRUCTURE

CONTENTS

• INTRODUCTION
• BACKGROUND
• DOCTRINE OF BASIC STRUCTURE
• EVOLUTION OF THE BASIC STRUCTURE
• CONCLUSION

INTRODUCTION

Constitution is the basic legal document of a country. The Constitution of India had undergone major evolution, changes and interpretation by many experts, scholars, judges etc. Among this the judiciary played a key role in the interpretation of Constitution. Judiciary is the custodian of the Indian Constitution and the protector of the Fundamental Rights of an individual. The basic structure doctrine depicts that the Constitution of India has certain basic features that can’t be altered or destroyed through amendments by the parliament. The Parliament has amended the constitution many times but many of them violated the basic structure. But the Judiciary has saved the basic structure of the Constitution.

BACKGROUND

The earlier view was that according to Article 368 of the Constitution the Parliament have unrestrictable power to amend any part of the Constitution including the fundamental rights. The Supreme Court in the case of Shankari Prasad v. Union of India[1], the First Constitution Amendment Act was challenged and was held that under Article 368, Parliament has the power to amend any part of the Constitution including the Fundamental Rights. Later in the case of Sajjan Singh v. State of Rajasthan[2], the same ruling was applied and held that even if the powers to amend the Fundamental Rights were not included in Article 368, the parliament by a suitable amendment can make changes to it. The basic features was first theorized in this case by Justice Mudholkar.

DOCTRINE OF BASIC STRUCTURE

The Constitution of India is a living constitution in which changes and evolution are always been made as time is changing. According to the doctrine of basic structure the basic structure of the constitution cannot be abrogated by the Parliament through amendment. The doctrine of basic structure is not mentioned anywhere in the constitution but it is a principle that is gradually evolved by the Indian Supreme Court through landmark judgments over the years. The main aim of this doctrine is to protect the fundamental or basic rights, ideals and philosophy of the Constitution.

The basic feature of the Constitution is as follows:

1. Supremacy of the constitution.
2. Republican and democratic form of government.
3. Secular character of the constitution.
4. Federal character of the constitution.
5. Separation of power.
6. Unity and Sovereignty of India.
7. Individual freedom.

The list of basic structure is always added up with new contents from time to time and the complete list has not yet formed.

EVOLUTION OF THE BASIC STRUCTURE

According to Article 368 of the Constitution Parliament can make amendments to the Constitution. The Supreme Court cannot take suo moto cognizance of violation of the basic structure of the Constitution regarding the amendment of the Constitution made by the Parliament. 

The Supreme Court can take cognizance, only when the constitutional amendment is challenged through writs, PIL or judicial review There are various cases in which the Supreme Court made many landmark judgments on basic structure doctrine. The major cases are as follows:

Shankari Prasad v. Union of India[3], The question whether Fundamental Rights can be amended under Article 368 came up for consideration for first time before the Supreme Court in this case. The validity of First Constitution Amendment Act, 1951 was challenged which inserted inter alia, Articles.31-A and 31-B of the Constitution were also challenged. The amendment was challenged on the ground that it abridges Part III of the Constitution and hence it was void. The Supreme Court however rejected the above argument and brought out the distinction between legislative power and constituent power and held that “law” in Article13 did not include an amendment of the Constitution made in the exercise of constituent power and Fundamental Rights were not outside the scope of amending power. The same view was also expressed in Sajjan Singh v. State of Rajasthan[4].

In Golak Nath v. State of Punjab[5], the Supreme Court overruled its earlier decision and held that the Parliament has no power to amend Part III (fundamental rights) of the Constitution because Art.368 does not give absolute power to amend the Constitution by the Parliament.

In 1971, the Parliament passed the 24^th Constitution Amendment Act[6] and it gives absolute power to the Parliament to make any changes including fundamental rights of the Constitution. The Parliament till the year 1973 continued to enjoyed the absolute power of amending the constitution. While the Supreme Court tried to restrict the Parliament through the Bank Nationalization case, Privy Purses case etc.

In the year 1973 a landmark judgement was made by the Supreme Court in the case of Kesavananda Bharti v. State of Kerala[7], also known as Fundamental Right’s case. It was heard by a full Bench of the Supreme Court consisting of 13 Judges. Hon’ble S.M. Sikri was the Chief Justice who led the majority. The majority overruled the earlier decision in Golak Nath’s case and held that the Parliament can amend any provision, but can’t dilute the basic structure of the Constitution.

Later in several cases the doctrine of basic structure got expanded. In Indira Gandhi v. Raj Narain[8], the court unanimously held that the 39^th Constitutional Amendment Act, 1975[9] is violative of the basic structure. The Supreme Court reaffirmed the concept of basic structure in this case. In the case of Minerva Mills v. Union of India[10], the Supreme Court quashed the amendments to Article 31C and 368 in 42^nd Amendment Act, 1976[11] as it is violative of the basic structure of the Constitution. Also the judicial review, balance between Fundamental Rights and Directive Principles were added to the basic structure.

In the 52^nd Constitutional Amendment Act, 1985[12] a new schedule was inserted, which is popularly known as the Anti-Defection Law. Later in the case of Kihoto Hollohan v. Zachillhu[13], the anti-defection law was challenged as it is against the freedom of speech, right to dissent and freedom of conscience. The Supreme Court held that the powerful role given to the speaker violated the doctrine of basic structure and also free and fair elections was added to basic features.

In the case of Indra Sawhney Vs. Union of India[14], popularly known as the Mandal Commission Case the Supreme Court held that creamy layer was violative of the basic structure of the Constitution and rule of law was added to the basic features.

In the case of S.R. Bommai v. Union of India[15], although no question of constitutional amendment was involved in the case the Supreme Court held that the policies of a state government directed against an element of basic structure of the Constitution would be a valid ground for exercise of the central power under Art.356, that is, imposition of President’s rule. Federal structure, unity and integrity of India, secularism, socialism, social justice and judicial review were reiterated as basic features in this case.

The above mentioned are some of the main cases in which the doctrine of basic structure was developed. There are also numerous other cases which is connected with the basic structure doctrine. Thus the basic structure is a developing principle.

CONCLUSION

The doctrine of basic structure empowers the judiciary to keep a check on the legislature and restrains the Parliament from misusing Article 368 of the Constitution. The seed of basic structure doctrine was planted firstly in the case of Sajjan Singh v. State of Rajasthan[16] and took birth in the case of Kesavananda Bharti v. State of Kerala[17]. There are lot of debates continuing on the basic structure doctrine. The main criticism of this doctrine is that the unelected judges can strike down a constitutional amendment, since it is unconstitutional. While the supporters is of the opinion that it will act as a shield by protecting the values of the Constitution.

By- AJIN RAJ S R