DOCTRINE OF BASIC STRUCTURE- CONSTITUTIONAL LAW

 

Within a year after enforcement of constitution, a question was raised for the consideration of Supreme Court whether parliament can amend the fundamental rights under article 368.

Article 368 in part XX of the constitution deals with the powers of the parliament to amend the constitution and its procedure. It express that the parliament may, in exercise of its constituent power, amend by way of addition, variation or repeal any provision of the constitution in accordance with the procedure laid down for the purpose.

However, the parliament has no power to amend those provisions which form the basic structure of the constitution. This was ruled by Supreme Court in the Kesavananda Bharti Case.

EVOLUTION OF THE BASIC STRUCTURE CONCEPT

In 1951- 1st Amendment- Parliament curtailed Right to Property

SHANKARI PRASAD SINGH V. UNION OF INDIA, 1951[1]

In this case, the constitutional validity of 1st amendment was challenged on the ground of power of parliament to amend fundamental rights under Article 368.

Judgement: Supreme Court upheld the constitutional validity of 1st amendment.

Supreme Court held that: 

  • Parliament’s power to amend constitution under A.368 includes power to amend fundamental rights also.

  • The interpretation of law in A.13 includes only ordinary laws and not Constitution Amendment Act. So, constitution amending power of parliament under A.368 is not subject to judicial review under A.13(2).

 

In 1964 – 17th Amendment- Parliament inserted certain acts related to Agrarian reforms in the IX Schedule to save them from challenge in any court of law.

 GOLAKNATH V. STATE OF PUNJAB, 1967 [11 JUDGES][2]

In this case, the constitutional validity of the above amendment was challenged.

Judgement: 11 judges, divided 6:5 overruled the previous judgement in Shankari Prasad Case, 1951 and declared 17th amendment invalid.

Supreme Court held that:

  • Parliament’s power to amend constitution under A.368 does not include power to amend fundamental rights. No fundamental right can be curtailed by the parliament.

  • The interpretation of word ‘law’ in A.13 includes ordinary laws and constitution amendment acts. So constitution amending power of parliament under A.368 is subject to judicial review under A. 13(2).

 

In 1971- 24th Amendment- to nullify the effect of judgement of Golaknath case, parliament amends A.13 and A.368.

  • Amendment to A.13- A clause was added to A.13 declaring that A.13 shall not apply to any constitutional amendment under A.368 by the parliament.

So, indirect meaning of this clause was the power of parliament to amend constitution is not subject to Judicial Review under A. 13(2).

  • Amendment to A.368- A clause was added to A.368 declaring that A.13 shall not apply to any constitutional amendment made under A.368 by the parliament. So, parliament can amend fundamental rights.

 

In 1973-

KESAVANANDA BHARTI V. STATE OF KERALA [13 JUDGE BENCH][3]

The constitutional validity of 24th amendment was challenged in this case.

Supreme Court held that-

  • The interpretation of ‘law’ in A.13 includes only ordinary laws and not constitutional amendment acts. Therefore, it means that parliament has power to amend fundamentals rights or for that matter any provision of the constitution. (To this extent, the judgement in Golaknath Case was now overruled.

  • Basic structure or basic feature- The Kesavananda bharti judgement did not concede or give unlimited amending power to parliament under A.368.

  • The parliament can’t exercise the amending power in such a manner as to destroy or violate the basic feature or structure of the constitution.

 

In 1976- 42nd Amendment-

  • By this amendment parliament tried to nullify the Kesavananda bharti judgement, amendment to A.368.

  • There is no limitation (such as basic structure) on the amending power of parliament.

  • No amendment can be questioned in any court of law (no judiciary review).

 

In 1980-

MINERVA MILLS Ltd V. UNION OF INDIA[4]

In this case, Supreme Court held that power of judicial review of the Supreme Court is the basic structure of the constitution.

As, this amendment is violating the basic structure, hence invalid.

 

In 1981-

THE WOMAN RAO CASE[5]

The Supreme Court adhered to the doctrine of the ‘basic structure’ and further clarified that it would apply to constitutional amendment enacted after April 24, 1973 (i.e., the date of the judgement in the Kesavananda bharti case).

 

 

ELEMENTS OF THE BASIC STRUCTURE

The present position is that the Parliament under Article 368 can amend any part of the Constitution including the Fundamental Rights but without affecting the ‘basic structure’ of the Constitution.

 However, the Supreme Court is yet to define or clarify as to what constitutes the ‘basic structure’ of the Constitution. From the various judgments, the following has emerged as ‘basic features’ of the Constitution or elements / components / ingredients of the ‘basic structure’ of the constitution:

  • Supremacy of the Constitution

  • Sovereign, democratic and republican nature of the Indian polity

  • Secular character of the Constitution

  • Separation of powers between the legislature, the executive and the judiciary

  • Federal character of the Constitution

  • Unity and integrity of the nation

  • Welfare state (socio-economic justice)

  • Judicial review

  • Freedom and dignity of the individual

  • Parliamentary system

  • Rule of law

  • Harmony and balance between Fundamental Rights and Directive Principles

  • Principle of equality

  • Free and fair elections

  • Independence of Judiciary

  • Limited power of Parliament to amend the Constitution

  • Effective access to justice

  • Principle of reasonableness

  • Powers of the Supreme Court under Articles 32, 136, 141 and 142

 

 

CONCLUSION

Now it can be concluded that there is no defined general rule for basic feature of the constitution. Many different views have been given out by many judges in regards to the theory of basic structure. But the common point of all is that parliament has no authority to destroy or alter or emasculate the basic structure or framework of the constitution. “If the historical background, the preamble, the entire scheme of the constitution and the relevant provisions thereof including article 368 are kept in mind then there can be no difficulty, in determining what are the basic elements of the basic structure of the constitution. These words apply with greater force to doctrine of the basic structure, because, the federal and democratic structure of the constitution, the separation of powers, the secular character of our state is very much more definite than either negligence or natural justice.”[6] So for the protection of fundamental rights, unity and integrity of the nation and for liberty of belief, thought, expression, faith and worship, the interpretation of judiciary is mandatory. So we can say no one is above the constitution, the constitution is supreme.

                                                                                        

                                                                 

     

                   CHESTHA

GEETA INSTITUTE OF LAW

                                                                                                                          

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