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Content

• Evolution of the Basic Structure Doctrine
• Elements of the Basic Structure
• Other important Supreme Court Verdicts which expanded the Basic Structure Doctrine

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What is the Basic Structure Doctrine?

• The Basic structure doctrine is a judicial innovation of the Constitution of India which puts a limitation on the amending powers of the Parliament. It says that the Constitution has some ‘Basic Features’ that can’t be altered or destroyed by amendments by Parliament.

Evolution of the Basic Structure Doctrine – Keshavanand Bharti Case and Minerva Mill Case

• The extent of amending powers exercised by Parliament became a cause of adjudication from the very first Constitutional Amendment Act (1951) which curtailed the Right to Property (which was a fundamental right then).
• In Shankari Prasad case (1951) the SC held (6/11 majority) that the powers of Parliament to amend the Constitution under Article 368 of the Constitution includes the power to amend Fundamental Rights and that the word ‘law’ in Article 13 of the Constitution includes only ordinary laws and not the Constitutional Amendment Acts. Thus, the Parliament can take away any of the fundamental rights by Constitutional Amendment.
• However, in Golak Nath case (1967), the Supreme Court reversed its earlier stand and held “the Fundamental Rights are given a transcendental and immutable’ position and hence Parliament can’t abridge or take away any of these rights. It also held that a CAA is also law within the meaning of Article 13 of the Constitution and hence would be void for violating Fundamental Rights.
• The Parliament sought to supersede the Golakhnath judgement by amending Article 368 itself through 24th CAA, 1971.
• The amendment said that an amendment under Article 368 will not be considered a law within the meaning of Article 13 of the Constitution and the CAA can’t be challenge on the ground that it affects a fundamental Right.
• In Keshavananda vs State of Kerala 1973, the Supreme Court upheld the 24th CAA.
  • Thus, the question of amendability of the Fundamental Rights have been settled i.e. a CAA can amend fundamental rights in India and a CAA will not be considered law under the meaning of Article 13 of the Constitution.
• However, the Constitutional Bench (largest ever – 13 judges) also held that there are certain basic features of the Constitution of India, which can’t be modified by an amendment under Article 368 of the Constitution of India.
• These basic features include (without being exhaustive) – sovereignty and territorial integrity of India, the federal system, judicial review, Parliamentary system of government etc.
• Using the doctrine of the ‘Basic feature of the Constitution’, the Apex court declared second part of the section 3 of 25th CAA as unconstitutional as it limited the powers of Judicial review which is one of the basic features of the Constitution.
• Through 42nd CAA, the Parliament tried to remove any limitation on its power of amendment by adding that there is no limitation on the constituent power of the Parliament and no amendment can be questioned in any court on any ground including that of the contravention of any FR.
• However, the Supreme Court in the Minerva Mills case invalidated the above amendment as it excluded Judicial review which is one of the basic features of the Constitution.
• The Court held “Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed a limited amending power is one of the basic features of the Constitution and, therefore, the limitations on that power cannot be destroyed”

­ Elements of the Basic Structure

• So far, Supreme Court has not defined an exhaustive list of the Basic structure doctrine. But from various judgments we can enumerate following features as part of basic features of the Constitution of India
• Supremacy of the Constitution; Sovereign, Democratic and Republican nature of the Indian Polity; Secular character of the Constitution of India; Separation of Power; Federal Character of the Constitution of India, Unity and Integrity of the nation; Welfare State; Judicial Review; Freedom and Dignity of the individual; Parliamentary System; Rule of Law; Principle of Equality; Free and Fair Elections; Independence of Judiciary etc.

 Other important Supreme Court Verdicts which expanded the Basic Structure Doctrine:

• Indira Gandhi vs Raj Narain 1975: The Basic structure doctrine was used for the first time to strike down 39th Constitutional amendment Act (1975) provision that barred court’s jurisdiction over election disputes.
• Kihoto Hollohan vs Zachillhu (1992): Free and Fair Elections
• Indira Sawhney vs Union of India, 1992: Rule of Law
• Bommai Case (1994): Democracy, Federalism, and Secularism.
• M Nagraj Case (2006): Equality
• Coelho Case (2007): Judicial Review
• NJAC Case (2015): Judicial Independence

Analysis: Positives

• The doctrine helps to preserve and protect the basic spirit of the Constitution from the legislative and executive overreach.
• Legal scholar Upendra Baxi says that the basic structure doctrine was useful to apply the brakes when the engine of amending power threatened to overrun the constitution.
• It strengthens democracy by limiting the power of a majoritarian government to undermine the Constitution’s central ideals.
• Unlimited power of amendment may have turned India into a totalitarian regime.
  • For e.g. through 39th Constitutional amendment, the Indira Gandhi government tried to remove the election of the highest constitutional functionaries such as the PM, President etc. from the purview of judicial review. But, Supreme Court set this aside using the basic structure doctrine.
• India has Constitutional sovereignty rather than Parliamentary sovereignty (followed in Britain)
•  It strengthens the Democracy of India by enhancing the separation of power – >Judicial review is protected as one of the basic features.
• It also protects basic rights of citizens of India as basic features like ‘Welfare State’ ensure that governments need to care for people.
• Infrequent use of Basic Structure doctrine by the courts makes fears of its critics misplaced.
• In 50 years of the doctrine, there has been hardly any blatant case of the misuse of the provision and after the 1973 verdict only 6 Constitutional amendments have been stuck down.

Analysis: Criticisms of the Basic Structure Doctrine

• The doctrine gives judiciary the power to impose itself over a democratically formed government. It was never contemplated by Constitution Makers.
  • Former Law Minister, Arun Jaitely had termed it as the “tyranny of the unelected”.
• Amendments help a constitution to evolve according to the changing circumstances and scenarios. And even the basic features of the Constitution may need to be amended for the purpose.
• The doctrine is counter-majoritarian in nature and the power is exercised by unelected judges.
  • The doctrine has put the judiciary in the exact position of unlimited power that it sought to prevent from occupying.
• It has acted as a shield to resist judicial transparency and accountability.
  • E.g., NJAC case

Challenges to Basic Structure Doctrine

• The doctrine has remained ineffective in reducing the threats to federalism.
  • For e.g., governors still misuse the emergency provisions and hamper basic structure.
• Pressure on Judiciary in recent years is impacting judicial independence and challenging the basic structure doctrine.

Conclusion

• The Basic structure doctrine has served a very important role in promoting and protecting the democratic, federal principles of the Constitution of India. Lack of exhaustive definition of the basic structure doctrine have also allowed it to remain flexible and expand or reduce the scope as per the changing circumstances. At the same time, its crucial that the Apex Court continues with its infrequent and limited use of the doctrine, only when the core principles of the Constitution are being violated.

Example Questions

a. “Parliament’s power to amend the constitution is a limited power and it cannot be enlarged into absolute power”. In the light of this statement explain whether parliament under article 368 of the constitution can destroy the Basic structure of the constitution by expanding its amending power? (15 marks, 2019)
b. In the quest to protect democracy from the hands of elected parliamentary representatives, it is unacceptable to place it entirely in the hands of an unelected judiciary. In light of this comment, critically analyse the Basic structure doctrine formulated by the Supreme Court in the Keshavnand Bharti case. [15 marks, 250 words]
c. Discuss the evolution of the Doctrine of Basic Structure of the Constitution. How does it contribute towards strengthening India’s democracy? [15 marks, 250 words]