Author: Dishi Shivpuriya Student, JLU School of Law, Bhopal
The Doctrine of Basic Structure of Indian Constitution is basically the legal doctrine of Constitution which states that, neither the Parliament nor the Judiciary is supreme but Constitution of India is supreme. It states that there are some basic structure of the constitution which cannot be amended at any point. The Doctrine revolves around two Articles, Article 13 and 368. There are two questions which arises, they are:-
Can Fundamental Rights be amended?
And what is the limit of parliament power?
The concept of Doctrine of Basic Structure of Indian Constitution is not expressly mentioned in our constitution, it grew with intervention of judiciary for protecting the rights, ideals and principles of the citizen of Indian. The Doctrine was first coined in the Kesavananda Bharti Case.
After independence, Right to Property was introduced by the Congress let government and also set up an Agrarian Reform Committee. The Chairman of that committee was J.C. Kumarapppa. The Committee abolished the Zamindari System with an objective of increasing agricultural production and providing equity status & opportunity to rural population. Fulfilling to which there was fix ceilling limit on which land holding can be done. This all was done in the 1st Constitutional Amendment Act which deals with Article 31 that is, Right to Property. 1st Constitutional Amendment Act was passed in 1951 which inserted Art. 31(a), 31(b), 9th schedule and lastly the restrictions were included in Article 19 (1) (g).
The 1st Constitutional Amendment Act effected the Fundamental Rights of Individuals and it was challenged in regards with the same in the case of Shankari Prashad v. UOI[1]. It questioned the validity of 1st Constitutional Amendment Act. Supreme Court stated that 1st Constitutional Amendment Act is valid and parliament can amend the Fundamental Rights which means that Parliament has more power and stated that Article 13 will only be applicable on ordinary laws and not Constitutional Amendment Act. It also provided that Article 368 is supreme. The following judgement was further confirmed in the case of Sajjan Singh v. State of Rajasthan[2]. In this case 9th Schedule was challenged as it provided immunity to the state governments and the state governments started putting their land reforms in it which were violating the Fundamental Rights. The judgement here was in 3:2 ratio. C.J. Gajendragadkar in this case stated that if Fundamental Rights were not meant to be amended than there must be a specific provision and since there is no such provision it will be assumed that they can be amended. Opposing to which J. Hiddaytullah and J. Mudholkar challenged it and refered the particular case to 11 judges bench.
Further, the same question was raised in the case of Golaknath v. State of Punjab[3]. Answering to which Supreme Court stated that power given to Parliament under the provisions of Article 368 is not absolute, it is subjected to limitations and judicial review. Thus, parliament cannot abridge Fundamental Rights and Article 13 will be applicable to Constitutional Amendment Act as well. Now as per this Judgment Article 13 was considered to be supreme. This Case overruled the last two judgement. As the Judgement was given all the provision were challenged and it was stated that this judgement will be applicable to all the prospective laws and not on retrospective laws.
To reverse this judgement, Parliament came up with new Amendment that is 24th Constitutional Amendment Act. According to which new clauses were added to Article 13 that is clause (4) which stated that Article 13 will not apply to Article 368 and clause (3) in Article 368 which stated that if Parliament comes up with any new amendment it will not be covered under the provisions of Article 13. Now after this Constitutional Amendment Parliament had the power to amend any part of constitution including Fundamental Rights. After this new Amendments took place such as 25th Constitutional Amendment Act which reduces Property Rights, 26th Constitutional Amendment Act which abolished Privy Purse and 29th Constitutional Amendment Act that came up with land reforms.
In case of Kesavananda Bharti v. State of Kerala[4], 24th,25th, 26th, 29th Constitutional Amendment Act and the Judgment of Golaknath case was challenged in a 13 judge bench. This case is also known as Fundamental Rights Case. The question here was again that,
How much can power does parliament have to amend any provision?
Can parliament amend the whole constitution?
Answering to which Supreme Court stated that, yes, Parliament can amend and it was having the same power before the 24th Constitutional Amendment Act and it has just explicitly explained it properly. But can Parliament amend all Fundamental Rights? Replying to which Supreme Court answered with a different balanced approach. It came up with the Basic Structure Doctrine according to which Parliament cannot amend the basic features of constitution. The judgement recorded some basic structure of the constitution as:
Supremacy of the constitution
Unity and sovereignty of India
A democratic and republican form of government
Federal character of the constitution
Secular character of the constitution
Separation of power
Individual freedom
Over years many more features were added to the list such as, freedom and dignity of individual, parliamentary system, Rule of Law, free and fair elections, the limited power of the parliament to amend the constitution. If any Law or Amendment will infringe this feature the Supreme Court will declare the same as invalid.
On 12th June, 1975 Allahabad High Court pronounced a historic judgement in case of Indira Gandhi v. Raj Narain[5] because of electoral malpractice, court quashed Indira Gandhi’s election and has also disbarred her form holding any election position for next 6 year. After this judgment she filed an appeal in Supreme Court against the Allahabad HC. And while the case was pending she came up with 39th Amendment which stated that according to new Article 329(a) Supreme Court has no power to try electoral disputes of Presidents, P.M., Vice President and speaker of Lok Sabha. It also abolished Article 71 of the Constitution of India. So as per the provision of 39th Constitutional Amendment Act Supreme Court was not able to try Gandhi’s case.
This amendment was later abolished by Bhartiya Janta Party after election. After this 42nd Constitutional Amendment Act was introduced which was also known as Mini Constitution of India as it amended many parts of the Constitution. Clause (4) was added to Article 31(c) which stated that if any provision is introduced by parliament to Part IV and if it is violative of Fundamental Rights then it will be void and no judicial review will be done. Clause (4) & (5) were also added to Article 368. Article 368(4) states that no amendment of Constitution of India including to that of Part III of the Constitution of India which are made before or after the commencement of Section 55 of Constitution (Forty Second Amendment) Act, 1976 shall be called in question by any court on any grounds and Article 368(5) states that if parliament adds or amend any provision of Part III than there will be no Judicial Review and Parliament has full power of amendment. This Amendment aimed at nullifying the impact of Basic Structure Doctrine of Kasvananda Bharti Case.
The 42nd Constitutional Amendment Act was again challenged in case of Minerva Mills v. Union Of India[6] and it stated that 42nd Constitutional Amendment Act was invalid and also gave some basic features such as, Limited amending power, harmony between part III and IV, Judicial Review.
New Dimensions To The Doctrine
In Case of I.R. Coelho v. State of Tamil Nadu[7] it was stated that, there is no certainty or unanimity about what constitutes the Basic Structure. Supreme Court imposes certain limitation on constituent power of parliament. Any constitutional amendment which entails violation of Fundamental Rights which the court regard as basic structure can be struck down as per consequences.
At present parliament can amend any part of Constitution including Fundamental Rights without affecting the Basic Structure of Constitution. Judicial Review is needed to maintain Supremacy of Constitution and to protect Fundamental Rights of Citizens.
[1] AIR 1951 SC 458
[2] 1965 SCR (1) 933)
[3] 1967 AIR 1643
[4] (1973) 4 SCC 225
[5] 1975 AIR 865
[6] 1980 AIR 1789
[7] AIR 2007 SC 86
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