The Parliament and the State legislature can make laws within its jurisdiction, but the power to amend the Constitution is only with the Parliament. The State legislature has no such power. However, the Parliament’s authority to amend the Constitution can be declared void and unconstitutional by the Supreme Court if it affects its basic structure. This article will discuss the basic structure doctrine, the importance of the Kesavananda Bharti Case, its evolution, and criticism. Can the basic structure of the Constitution be amended and the basic structure doctrine in other countries?
Case Summary – Kesvananda Bharati V State of Kerala, 1973
This case is the reason to bring about the discussion on the Basic Structure Doctrine. In this case, Kesavananda, the chief of Edneer Mutt, a religious sect in Kerala, owned a particular plot of land. The State Government had acquired rights under the Land Reforms Amendment Act, 1969.
Kesavananda Bharti had moved to the Supreme Court on 21st March 1970 on the following grounds, Section 32 of the Indian Constitution for the enforcement of rights under
- Article 25 (Right to practice and propagate the religion of one’s choice),
- Article 26 (Right to manage one’s religious affairs),
- Article 14 (Right to equality),
- Article 19 (1)(f) (Freedom to acquire property),
- Article 31 (Compulsory Acquisition of Property).
The Kesavanada Bharti Case also challenged the rulings passed in the Golaknath V State of Punjab, wherein the 24th, 25th, and 29th Amendment was passed. The Kesavananda Bharti Case had raised various issues before the Court, namely;
- Whether Constitutional Amendments such as the 24th, 25th, and 29th are constitutionally valid or not?
- The degree or extent to which the Parliament can exercise its power to amend the Constitution.
The Supreme Court ruled that Article 368 of the Constitution contains the provision to amend the Constitution and overruled the rulings outlined in the Golaknath case, which denied the Parliament to amend the fundamental rights. It declared that Article 368 does not empower the Parliament to amend, destroy, emasculate, abrogate, destroy, or alter the Constitution’s basic structure.
Different judges had their definitions of the “Basic Structure of the Constitution,” which is elaborated below;
C.J. Sikri explained basic structure as;
- Constitutional supremacy,
- Republican and democratic form of government,
- Secular character of the Constitution,
- Separation of powers between the legislature, executive, and the Judiciary,
- Federal character of Constitution.
J. Shelat and J. Grover added the following features to the above list;
- Commanded to build a welfare state as stated in the Directive Principles of State Policy,
- Unity and integrity of the nation,
- The sovereignty of the Country
J. Unegde and J. Mukherjea identified as separate and shortlisted of the features:
- The sovereignty of the Country,
- The democratic character of the polity
- Unity of the Country
- Individual freedoms secured to the citizens,
- Commanded to create a welfare state
J. Jaganmohan Reddy stated that elements of the basic structure can be seen in the Preamble of the Constitution and the provisions that they translate, namely;
- Sovereignty, Republic, democracy
- Social, economic, and political – Justice
- Freedom of thought, belief, expression, faith, and worship,
- Equality of opportunity and status.
The Learned Judge further said that the Constitution would be meaningless if there without the fundamental rights and directive principles.
Further features that were added to the list are:
- Free and fair elections
- Limited power of the Parliament to amend the Constitution
- Power of the Supreme Court under Article 32, 136, 142 and 147.
- Power of the High Court under Article 226 and 227.
The Supreme Court can strike down any amendments and laws made by the Parliament that violate these principles because they abrogate the basic structure of the Constitution.
What is the Basic Structure Doctrine?
The Basic Structure Doctrine originated in the German Constitution, followed by the Nazi regime, which the Weimar Constitution inspired. The Parliament was allowed to amend the Constitution with a two-thirds majority of the members. The German Constitution introduced a substantive limit on the Parliament to amend certain parts that formed the Constitution’s ‘basic laws.’
In India, the Basic Structure doctrine came into the picture in the renowned Kesavananda Bharti Case in 1973. Though the Constitution does not mention anything about the “Basic Structure”, the Supreme Court had given an elaborate list of things to be included in the Constitution’s ‘Basic Structure’. They are the supremacy of the Constitution, sovereignty, unity, integrity of the nation, the rule of law, etc. In this case, the Parliament can amend the Constitution, but the Parliament cannot amend the intrinsic and inherent part of the Constitution.
Can the Basic Structure of the Constitution be amended?
No. The motto behind not allowing the Parliament to make laws that would affect the Constitution’s basic structure is to preserve the democracy, rights, and liberty of the people and thereby protect the Constitution’s spirit.
Evolution of the Basic Structure Doctrine from landmark judgments
The Basic Structure of the Constitution has been developed for a long time. Let us look into other landmark judgments that talk about the ‘basic structure’ of the Constitution.
Shankari Prasad Case – 1951 and Sajjan Singh Case – 1965
In this case, the Supreme Court had declared that the Parliament could amend any part of the Constitution, including Part III of the Fundamental Rights.
Golaknath Case – 1967
The Supreme Court held that Article 368 provides the procedure to amend the Constitution but does not empower the Parliament to amend it. Article 13 empowers the Constituent Assembly to amend the Fundamental Rights.
Kesavananda Bharti Case – 1973
This case had elaborately defined the ‘basic structure’ of the Constitution. It stated that the Parliament can amend the Constitution as far as it does not destroy or abrogate its basic structure. It further noted that the Judiciary could strike down any amendment made by the Parliament against the Constitution’s basic structure.
Indira Nehru Gandhi Case – 1975
In this case, Article 329-A Clause (4) inserted by the 32nd Amendment, 1975, was declared unconstitutional because the Parliament had no power to amend the Constitution as it abrogated the Constitution’s basic structure.
Minerva Mills Case – 1980
In this case, the 42nd Amendment was declared unconstitutional as it was against the Constitution’s basic structure. It thereby strengthened the basic structure by adding two more features: judicial review and balance between Fundamental Rights and Directive Principle of State Policy. The Court also held that limiting amending power is also a feature of the Constitution’s basic structure.
Waman Rao -1981
The Supreme Court had held that basic structure doctrine should not be used backward to reopen the validity of any amendments made prior to the 24th April 1973 (Kesavananda Bharti case Judgement date). It further stated that any amendments made to the 9th Schedule of the Constitution till the Kesavanada Bharti case judgment date are valid, and the one that is passed after the date can be inquired into or challenged.
Indira Sawhney – 1992
In this case, the ‘Rule of Law’ was added to the Constitution’s basic feature. It declared Article 16(4) ‘s constitutional validity that provides for the 27 % job reservation for the Other Backward Classes based on certain conditions.
S.R. Bommai Case – 1994
The Supreme Court held that the State Government policies that are in contravention of the elements of basic structure would be valid under Article 356 of the Constitution – the imposition of President’s Rule on State.
L. Chandra Kumar 1997
The Supreme Court held that the Judicial Review’s power over legislative action vested in the High Court and Supreme Court under Article 226 and Article 32 of the Indian Constitution. And it further says that the Judicial Review is an essential feature of the Basic Structure of the Constitution.
Criticism of the Basic Structure Doctrine
The Basic Structure Doctrine is inspired by the foreign judgment that came into Kesavanada Bharti’s case judgment, 1973. The Basic Structure Doctrine’s major backdrop is that it fails to mention what constitutes the Constitution’s basic structure, framework, and how it will be implied.
The Supreme Court has applied the basic structure but always has difficulties defining the basic structure’s margin and scope. It has always created pathways to imply the basic structure’s features, but its origin is always unknown.
Mathew J. in Indira Nehru Gandhi Case has said that the concept of basic structure is vague and indefinite and cannot provide a yardstick for the ordinary law validity. In I.R. Coelho Case, the Court had laid down the basic structure criteria, but there is doubt regarding the applicability. In the Kesavananda Bharti Case, Raj J. observed that all the constitutions’ provisions are equally important. One cannot restrict what is important and what is not unless the constitutional makers themselves have suggested the same in the Constitution. Such distinction would create confusion and uncertainty about the Constitution’s provision, which needs to be clear and precise.
Palekar J. pointed out that the Court should not invent limitations when there is none and that Article 368 provides the same.
It has deflected the balance of power in favor of the Judiciary at the cost of the Parliament.
Judicial Review is the foundation of the Rule of Law. Nevertheless, it should not consider itself as a superior legislature while reviewing the constitutionality of the law and sit in judgment on discerning of policies embraced by the legislature.
Fundamental Structure Doctrine in other Countries
The Basic Structure Doctrine has also been adopted by other countries but has limited the amending power of certain features only; it is not as elaborate as in India. Let’s look into few countries that have adopted the basic structure and what has been defined as their basic structure.
Pakistan initially had added Preamble as a basic structure but was later struck down. Later, it outlined the Democracy, Judiciary, and Parliamentary form of government as the basic structure and that the Parliament may add economic, political, or social aspects at its discretion.
Malaysia, the Federal Court held that the Constitution’s basic structure is the vesting of the Federation’s judicial power in the civil courts.
Uganda passed a Constitutional Amendment that amended the age limit of 75 years for the President and Chairperson of the Local Council.
The Basic Structure Doctrine is necessary to protect the Parliament from overusing or misusing its power under Article 368. It was the first time elaborately explained in the Kesavanada Bharti Case. The different judges have their views as to what constitutes the basic structure of the Constitution. There are various critiques about the basic structure doctrine, but whenever any question arises about the validity of the constitutional amendment, the Court always looks into the Basic Structure Doctrine provided in the Kesavanada Bharti Case.