Basic Structure Doctrine: Exploring The Journey From Evolution To Application

Author: Mohammed Sufiyan

INTRODUCTION

The Constitution of India is a sacrosanct document that governs the Republic, demarcates the spheres of functioning for all the organs of government, and ensures that all its citizens live with liberty and enjoy their rights and freedoms. It determines the path on which the nation moves and prospers. But what happens when two of its organs which derive their authority from the same constitution contest against each other for gaining supremacy?  The above statement was once a reality in Indian democracy.

BEGINNING OF POWER TUSSLE

India witnessed a tussle for power between the legislature and the judiciary for supremacy over each other in constitutional interpretation.^[1] Before we move onto the tussle let us first understand the events leading up to the tussle. The Supreme Court of India in Shankari Prasad V. Union of India[2] was faced with the question, whether the expression LAW in Article 13(2)^[3] includes constitutional amendments or not? A five-judge bench of the apex court ruled that there is a clear difference between ‘ordinary law, which is made in exercise of legislative power and constitutional law, which are made in exercise of constituent power’^[4] and asserted that constitutional amendments could not be reviewed by the courts.

More than a decade later, the Supreme Court got another opportunity to decide in a similar case in Sajjan Singh V. State of Rajasthan.^[5] Here, the court had to decide the validity of the 17th amendment for which again a five-judge bench was formed and which gave a similar as given in Shankari Prasad. However, the saving grace of this judgment was the dissent by 2 of 5 judges, Justices M Hidayatuallah and J R Mudholkar which gained more prominence in the history of the Indian judiciary. In fact, it is widely accepted that it was Justice J R Mudholkar who sowed the seeds for the development of Basic Structure Doctrine when he said “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.”[6]  So far the Supreme Court took a conservative view.

The actual battles in the war of power tussle for supremacy between the legislature and judiciary ignited with the crucial ruling in I.C. Golak Nath V. State of Punjab.[7] In this case, the question, whether the parliament could amend the fundamental rights rose yet again and the validity of the 1st, 4th, 17th amendments [8] was challenged. An eleven-judge bench, the largest till then, was formed to examine the questions raised. The apex court, through a paper-thin majority of 6:5, ruled that fundamental rights were sacrosanct and inviolable and could not be abridged or taken away. The apex court overruled the decision in Shankari Prasad and declared that its distinction of the expression LAW under Article 13 was inaccurate and therefore included constitutional amendments as well. However, the effect of this ruling was limited due to the application of prospective overruling doctrine by the court to avoid chaos and confusion. The Supreme Court’s decision in Golak Nath was a significant sign of judicial supremacy.^[9]

The war of power tussle reached unprecedented scales when the parliament, in the early 70s hurriedly and successively enacted the 24th, 25th, and 26^th amendments^[10]  and made attempts to either bypass or overrule the Supreme Court. The 24^th amendment was a ploy used by the parliament to effectively nullify the Golak Nath ruling of the Supreme Court. Further, the 25^th amendment largely overcame the judgment in R.C. Cooper V. Union of India.^[11] And the 26^th amendment nullified the decision in Madhav Rao Scindia V. Union of India.^[12]

Hitherto, if a narrow view is taken, then the tussle supremacy between legislature and judiciary basically originated from conflict between Article 13 and Article 368. While Art.13 says that state should not make any law that contravenes part III of the constitution, Art.368 confers on state the power to amend the constitution. This conflict was settled by the Supreme Court In the landmark Kesavananda Bharati and Ors V. State of Kerala and Anr.^[13]

EVOLUTION OF THE BASIC STRUCTURE DOCTRINE

The boiling point in the ongoing power tussle between legislature and judiciary came in the mid-70s and culminated in the kesavananda Bharati case. Sri kesavananda was a priest of a mutt that held large tracts of land. He was adversely affected by the Kerala land reform legislation. His lawyer, Nani Palkhiwala seized the opportunity and challenged the constitutional validity of the 24th, 25th, and 29th amendments. Another issue raised before the court was regarding thescope of amending powers of the Parliament conferred on it under Article 368 of the constitution.’

To adjudicate on the issues raised before the court, a bench of 13 judges was constituted. This was the largest bench to be formed in the history of Indian judiciary. At the time of judgement, the bench was deeply divided and with 7:6 majority ruled the following on the above issues:

1. The court upheld the validity of the 24^th amendment.
2. The court partially upheld the 25^th amendment while declaring the part of section 3 which curtails judicial review as void.
3. The court upheld the validity of the 29th amendment.
4. The court on the question on the scope of amending power of Parliament under Art. 368 held that there are no implied restrictions on the power of the Parliament under Art.368 and overruled the Golak Nath judgment which ruled that fundamental rights cannot be amended. However, the apex court also expressed that though the Parliament has wide powers to amend the constitution, they are not unfettered or without any limit.

Finally, the Supreme Court, in Kesavananda Bharti found that Parliament cannot use the power of amendment to alter or destroy any of the basic concept or spirit of the Constitution. These findings of the apex court led to the promulgation of ‘BASIC STRUCTURE DOCTRINE’.

BASIC STRUCTURE DOCTRINE

The Basic Structure Doctrine was propounded by Justice Hans Raj Khanna in the kesavananda Bharati judgement when he observed that, basic structure only referred to broad outlines of the constitution and not any specific provision or detail of the Constitution.

The concept behind the establishment of Basic Structure Doctrine is that the’ Constitution is a precious document and its distinct identity must be preserved and protected. According to the Basic Structure Doctrine, the Constitution of India has certain features or framework or parts that are so basic or essential that if they are altered; diminished or destroyed the Constitution will be robbed of its original identity. Therefore, any of the features which are found to be essential to the Constitution shall not be abridged or abolished.

The Basic Structure Doctrine settled the power tussle between the legislature and judiciary to gain supremacy over each other and ensured that the supremacy of the constitution prevails in the country. It created a shield to protect the constitution from any malicious attempts to alter or destroy its essence and spirit.

SIGNIFICANCE OF BASIC STRUCTURE DOCTRINE

The Basic Structure Doctrine has carved a special place for itself in Indian constitutional matters. The obvious significance can be simply understood by the observation made by Justice Hedge and Justice Mukherjee in their joint judgment. They observed “Our Constitution is not a mere political document. It is an essential document…… like every religion has two main features namely basic and circumstantial. The former remains constant but the practices with it may change. Likewise, a constitution like ours contains features which are so essential that they cannot be changed or destroyed.”^[14]

Since the establishment of the Basic Structure Doctrine, an additional responsibility was placed on the legislature. This doctrine effectively prohibits the legislature from enacting any law which could alter or change the basic features of the constitution. Any law or constitutional amendment passed by the legislature since the formulation of the doctrine has to pass a ‘basic structure test’. Also, the doctrine empowered the Supreme Court to evaluate any law or amendment and declare it void and unconstitutional if they seek to change any basic feature of the constitution. Ultimately the doctrine broadened the Supreme Court’s scope of judicial review.

The Basic Structure Doctrine postulated by the apex court made it the ‘custodian of the Constitution’ established its supremacy ‘in the realm of interpretation of the Constitution’.^[15] The Basic Structure Doctrine is a sparkling gem of Indian jurisprudence which reflects high level of judicial creativity by Supreme Court of India.

WHAT ARE THE FEATURES OF BASIC STRUCTURE OF CONSTITUTION?

The majority of judges of the supreme court, while formulating the Basic Structure Doctrine in Kesavananda Bharati had different views on the basic features of the Constitution, indicating that there was no clear consensus among the bench as to what features are the basic and essential. Almost all the majority of judges came up with their own list of basic features. The following is the list of the basic features of the Constitution delineated by the apex court:

1. SUPREMACY OF THE CONSTITUTION 
2. SECULAR CHARACTER OF THE CONSTITUTION
3. REPUBLICAN AND DEMOCRATIC FORM OF GOVERNMENT
4. SEPARATION OF POWERS BETWEEN EXECUTIVE, LEGISLATURE AND JUDICIARY
5. FEDERAL CHARACTER OF THE CONSTITUTION
6. DEMOCRATIC CHARACTER OF THE CONSTITUTION
7. PARLIAMENTARY DEMOCRACY
8. THE DIGNITY OF INDIVIDUAL (SECURED BY FUNDAMENTAL RIGHTS)
9. THE MANDATE TO BUILD A WELFARE STATE (PRESCRIBED IN DPSP) AND EGALITARIAN SOCIETY
10. SOVEREIGNTY AND UNITY OF INDIA^[16]

At the time of outlining the basic features, the judges relied upon the Preamble, the fundamental rights, and the directive principles of state policy.^[17] The court expressly held that the above list is only illustrative and not exhaustive. It would be open for the courts in the future to include more characteristics of the Constitution as its basic features.

APPLICATION AND EXPANSION OF THE BASIC STRUCTURE DOCTRINE

The supreme court of India has applied the Basic Structure Doctrine in various seminal rulings which have strengthened the democracy and kept the spirit of the constitution alive. The first test for application of the doctrine came up in Indira Nehru Gandhi V. Raj Narain.^[18] In this case, inter alia, the validity of the 39^th amendment, which places the election of President, Vice president, Prime Minister, and Speaker the Lok Sabha beyond the purview of the courts, was questioned by the defendant. The apex court applied the Basic Structure Doctrine and with a majority of 4:1 declared it to be unconstitutional as it violated the Basic Structure Doctrine. The court further included ‘free and fair elections’ and ‘rule of law’ as basic features of the Constitution.

In another landmark judgment Minerva Mills V. Union of India^[19], the apex court struck down section 55 of the 42^nd amendment for contravening the Basic Structure Doctrine and added ‘judicial review’ and ‘limited amending power’ to the basic feature list.

Similarly, the courts through various seminal rulings expanded the Basic Structure Doctrine and included federalism and secularism^[20]; judicial review of the judgments of High Courts under Art.226 and Supreme Court under Art.32^[21]; individual freedom of citizen under art.19^[22]; independence of judiciary^[23] and judicial primacy in the judicial appointment process.^[24]

CONCLUDING REMARKS 

The Constitution of India is the supreme law of the land. It is the fruitful result of the tedious hard work and dedication of the Constituent Assembly which took 2 years, 11 months, and 18 days to form, draft and adopt the Constitution in its final shape. Each and every clause, article, and the chapter was meticulously discussed, debated and only then it was passed by the Constituent Assembly to be included in the Constitution. The framers of the constitution formulated the longest constitution in the world and ensured it to be strong enough to stand tall in adversities, flexible enough to adapt itself with changing circumstances, and finally humble enough to protect the liberties of its citizen and to secure a mandate for developing welfare state for the people. The Basic Structure Doctrine, since its formulation has protected the Constitution from any radical changes which could weaken, diminish or emasculate its spirit and reverse the intentions with which it was created by the Constituent Assembly.  The Basic Structure Doctrine holds that the basic features of the Constitution are non-amendable and established that there are several other parts of the Constitution, which are as important, if not more, as the fundamental rights.^[25]

The Constitution of India has so far witnessed 104 amendments ^[26](30 before Basic Structure Doctrine and 74 after it) and yet the intention and spirit of the Constitution as envisaged and adopted by the Constituent Assembly still remains alive. It is apt to credit the Basic Structure Doctrine for it.

As M.P. Jain said, to conclude, “it may be stated that the Supreme Court has made a very great contribution to the cause of Constitutionalism in India by enunciating the doctrine of the inviolability of the basic features of the Constitution. The doctrine is the result of a feeling among the judges that certain values and ideals embedded in the Constitution should be preserved and not destroyed by any process of a constitutional amendment. The doctrine places an embargo on the erosion of basic feature, but a Constitutional amendment seeking to promote, strengthen and enlarge a basic feature would be most welcome.”^[27]

( The Author is a 2nd Year Law Student from University College of Law, Osmania University, Hyderabad)

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^[1] Zia Mody, ’10 Judgements That Changed India’, pg 3.

^[2] [1952] 1 SCR 89.

^[3] Article 13(2) prohibits the state from making any law that violates fundamental rights.

^[4] Shankari Prasad v. Union of India [1952] 1 SCR 89.

^[5] AIR 1965 SC 845.

^[6] Ibid.

^[7] AIR 1967 SC 1643.

^[8] 1^st amendment inserted Art. 31A and 31B into constitution. 4^th amendment amended Art. 31A. 17^TH amendment inserted 44 statutes into ninth schedule.

^[9] Zia Mody, ’10 Judgements That Changed India’, pg 15.

^[10] 24h amendment inserted clause 4 to Art. 13 and declared constitutional amendments are not law under Art. 13. 25^th amendment, inter alia, inserted Art.31(c) and barred judicial review for any law giving effect to Directive Principles of State Policy. 26^TH amendment abolished the privy purses given to rulers of former princely states.

^[11] AIR 1970 SC 564.

^[12] AIR 1971 SC 530.

^[13] AIR 1973 SC 1461.

^[14] Kesavananda Bharti and Ors v. State of Kerala and Anr (AIR 1973 SC 1461).

^[15] Zia Mody, ‘10 Judgements That Changed India’, pg 18.

^[16] Supra, note14.

[17] Ramachandran, essay, “The Supreme Court and the basic structure doctrine’, pg115, in ‘Supreme but not Infallible : Essays in Honour of the Supreme Court of India.

^[18] AIR 1975 SC 2299.

^[19] AIR 1981 SC 271.

^[20] S.R. Bommai V. Union of India, AIR 1994 SC 1918.

^[21] S.P. Sampath Kumar V. Union of India, AIR 1987 SC 386; L. Chandra Kumar V. Union of India, AIR 1997 SC 1125.

^[22] I.R. Coelho V. State o Tamil Nadu. AIR 2007 SC 861.

^[23] Supreme Court Advocates-on-record Association and Anr V. Union of India, (1993) 4 SCC 441. 

^[24] Supreme Court Advocates-on-record Association and Anr V. Union of India, Writ Petition (Civil) No 13 of 2015 (October 16, 2015).

^[25] M.P. Jain,’Indian Constitutional Law’, pg 2331. 

^[26] 104^th amendment(latest) was notified on 21^st January 2020. 

^[27] M.P. Jain,’Indian Constitutional Law’, pg 1699.