The Author, Lakshay Bansal is BBA.LLB student of Geeta Institute of Law, Panipat. He is currently interning with LatestLaws.com.
Basic Structure
It is an Indian judicial principle developed by judges by analysing various cases. There are some basic features of constitution of India which cannot be amended because they are most crucial part of the constitution. Justice Khanna has explained Fundamental Rights as the key features which are granted to all the citizen of our country. Before proposition of Basic structure any part of the Constitution including the fundamental rights was amendable by parliament through Article 368. Art.31-B and Ninth Schedule that were added through (First Constitutional Amendment) Act, 1951 are the main root cause for developing this doctrine by the Judiciary in so many cases because the said amendment was violating the right to property which was the fundamental right of the people.
That the Constitution has "basic features" was first theorized in 1964, by Justice J.R. Mudholkar in his dissent, in the case of Sajjan Singh v. State of Rajasthan. He wrote, 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; and if the latter, would it be within the purview of Article 368? The landmark judgements of the Supreme Court of India regarding the basic structure doctrine of the Indian Constitution are as under:
Shankari Prasad vs. Union of India
Facts and arguments raised in the case: After independence the government of India applied various agrarian reforms which were challenging the fundamental rights of the people and especially the Right to Property and because of that it was challenged in many High Courts. The first enactment on agrarian reform was the Bihar Land Reforms Act, 1950 which was later on challenged in Patna High Court. So to immunize this law and to nullify the judgements of High Courts the First constitutional Amendment Act was introduced. In this case (First Constitutional Amendment) Act, 1951 was challenged. Through this amendment act certain laws were brought which were curtailing right to property. By this amendment act A31-A and A31-B was added. In this case the argument which was put forward that as per article 13, no law can infringe or abrogate fundamental rights so how can the constitutional amendment can violate it?
Judgement: The Supreme Court upheld the validity of the first amendment of the Constitution. It also held that Article 13 cannot overtake Article 368 because Article 13 which is the protector of the fundamental rights, in this article the world law is used which indicates only ordinary laws. It means law is exercising only legislative powers and not the constitutional authority. The Supreme Court had clearly drawn the line of distinction between ordinary law and constitutional amendment. The scope of Article 13 is restricted to ordinary law whereas the scope of article 368 is restricted to constitutional amendments made by the Parliament. In this case the principle of Harmonious Constitution was used so as to remove the conflict between Article 13 and Article 368. As per the said principle when any conflict arises between the two articles then one article is restricted in comparison to another. So finally it was held that the parliament has power to amend any fundamental right under the Article 368
Sajjan Singh vs. State of Rajasthan
Facts and arguments raised in the case: In this case (Seventeenth Constitutional Amendment) Act, 1964 was challenged. Again the question of Shankari Prasad Case was raised whether the fundamental rights can be amended or not. The Ninth Schedule consist of certain statutes relating to the property and the speciality of the Ninth schedule was that it is not subject to judicial review and because of that right to judicial review was taken away which is one of the basic features of the constitution. The principle of Pith and Substance was applied to this case.
Judgement: The Supreme Court held that the article 368 empowers the Parliament to amend any of the articles of the Indian Constitution. Once again it was said that the Article 13 is just limited to the ordinary laws not with the constitutional amendment whereas the scope of article 368 is limited to constitutional law. Among the 5 judge bench, 2 judge given a dissenting judgement – Mudholkar and Hidayatulah. Justice Mudholkar was of the opinion that fundamental features of the Constitution cannot be changed. According to him each and every constitution of the world has certain fundamental features. Such features must not be changed. He was of the opinion that fundamental features of the Constitution of India cannot be changed. Thus, Justice Hidayatullahb was of the opinion about making no alterations in the basic features of the Indian Constitution. But according to the majority decision it was said that parliament can amend fundamental rights of the people.
L.C Golaknath vs. State of Punjab & Haryana
Facts and arguments raised in the case: Again (Seventeenth Constitutional Amendment) Act, 1963 was challenged. The question which was raise whether the power to amend the constitution is limited or unlimited, basically the whole scope was also challenged in this case. Until this case we had a position that Article 368 has more power than Article 13 but Article 368 is subject to the limitation of judicial review. Supreme Court went ahead and also said that parliament does not have any power to amend or abridge the fundamental right in the way of the amendment and because of that no change can be made in fundamental rights in future. Further the ambit of Article 13(2) was discusses that the word law used under Article 13(2) includes amendment and if any amendment violates fundamental right it would be void.
Judgement: The majority of justices in the said petition overruled the judgements given in Shankari Prasad case and Sajjan Singh Case but out of eleven judge bench, five justices were dissenting. In both of these previous cases Supreme Court had held that we can make amendments in the fundamental rights but in this present case majority of the judges considered fundamental rights as transcendental. It is also expressed by the Supreme Court that if parliament will get the power to amend the fundamental right then a time will also come when there will be no fundamental rights of the people. Justice Hidayatullah also expressed his views by proposing a separate judgment in which he says that because of Article 13, parliament does not have power to amend the fundamental rights and he said that article 13 covers not only legislative amendments but constitutional amendments also. So finally it was held that fundamental rights are the fundamental needs of the people and parliament cannot amend it and it is necessary to protect them.
Kesavananda Bharti vs. State of Kerala
Facts and arguments raised in the case: In this case the Constitution Twenty-third Amendment Act and Twenty-fourth Amendment Act was challenged before Supreme Court of India. Twenty-fourth Amendment Act amendment act seeks to amend Article 13 of the constitution to make it inapplicable to any amendment of the constitution under article 368. Nothing in the Article 13 shall affect the amending power of the Article 368. So basically the question which was raised in this case that does parliament have power to abridge the fundamental rights of the people by the means of Article 368?
Judgement: It was held that provision pertaining to the amendment of the Constitution is the characteristic or most important aspect of the modern Constitution s of the World. Each judge laid out separately, what they thought were the basic or essential features of the Constitution. There was no unanimity of opinion within the majority view either. According to Justice S.M. Sikri, there are some basic features of the Indian Constitution that cannot be changed under Article 368 which are as follows:
- Supremacy of the Constitution
- Republican and democratic form of the government
- Secular character of the Constitution
- Separation of powers between the legislature, the executive and the judiciary
- Federal character of the Constitution
According to Justice Sikri, the Parliament has power amend any article of the Constitution except the basic structure of the Constitution. Hegde, J. and Mukherjea, J. proposed a separate and shorter list of basic features:
- Sovereignty of India
- Democratic character of the polity
- Unity of the country
- Essential features of the individual freedoms secured to the citizens
- Mandate to build a welfare state
The Kesavananda Bharati case upheld the validity of the Twenty-fourth amendment saying that Parliament had the power to amend any or all provisions of the Constitution. Further the Court also held that certain key words in the Preamble formed part of the basic structure of the Constitution and declared that this basic structure was inviolable thereby casting a limitation to Parliament’s power to amend the Constitution.
Indira Nehru Gandhi vs. Raj Narain
Facts and arguments raised in the case: In the elections of Rae Bareilly in Uttar Pradesh Raj Narain was the leader of Ram Manohar Lohia’s SSP who stood against Indira Gandhi. Raj Narain was very confident of his victory and when he loses from Indira Gandhi he filed a petition in Allahabad High Court challenging the Prime Minister’s elections on violating election code under the Representation of the People Act of 1951. Allahabad High Court declared the elections as void on the ground of corrupt practices and at that time Supreme Court was also not in working and that’s why she was granted a conditional stay. After that she imposes a national emergency and introduced Article 329A to the constitution of India. According to the Article 329A election of the prime minister and the speaker cannot be questioned and because of this reason it was challenged.
Judgement: Supreme Court applied the concept of Basic Structure which was given in the Kesavananda Bharati v. State of Kerala. It expressed that Clause (4) of Article 329-A needed to be struck down on the ground that it hampers the standards of free and fair elections which is a piece of the basic structure of the Constitution. So the apex court upheld the contentions raised by the Raj Narain and Clause (4) of Article 329-A was declared unconstitutional. It was said by Mathew J. “a healthy democracy can only function when there is the possibility of free and fair elections” and this amendment destroyed this possibility and therefore violated the basic structure of the constitution. So finally 39th (Amendment) Act, 1975 was struck down because it violates the basic structure of the constitution.
Minerva Mills Ltd., Bangalore vs. Union of India
Facts and arguments raised in the case: In this case the Constitution (Forty-Second Amendment) Act, 1976 was challenged. By this amendment act clause 4 and 5 brought in Article 368. Through this amendment most widespread changes to the Constitution and also to the Preamble and because of that it is sometimes called as a "mini-Constitution". The Forty-Second Amendment also leads to the addition of some new articles and sections. By this amendment parliament was given unrestrained power to amend any parts of the Constitution, without any judicial review. It transferred more power from the state governments to the central government, eroding India's federal structure. It changes the words "unity of the nation" to "unity and integrity of the nation" and the description of India from “sovereign democratic republic” to a “sovereign, socialist secular democratic republic”
Judgement: Justice Y.V. Chandrachud considered the Forty-Second amendment act beyond the amending power of the Parliament. He considered it void. He considered the said amendment as destroyer of the basic structure or basic features of the Constitution of India. Justice Bhagwati also considered the amendment as unconstitutional. According to Justice Bhagwati the said damaged the basic structure of the constitution. Justice Bhagwati also mentioned that parliament has limited power in amending the constitution and the parliament cannot exercise any absolute or unlimited power. So finally the basic structure was maintained through this judgement and the only thing which was accepted of this amendment was that Socialist and Secular were added in this.
Conclusion
In India we have a proper system of checks and balances. Checks and balances acts in such a way that no organ of the state becomes too powerful. Judiciary has played an important role in interpretation of the Constitution of India. The Parliament of India has made several amendments in the Constitution of India amongst which many of them violated the basic structure doctrine. It is the judiciary that has tried its level best in sustaining the basic structure of the Indian Constitution so that no organ of the constitution gets an unlimited power. We have seen in various cases how an unlimited power can become threat to the democracy so separation of power in a democracy is to prevent abuse of power and to safeguard freedom of all. Courts are competent to strike down the unconstitutional amendment made by the legislature and in various instances we have also seen legislature opposing the decisions of the judiciary. There is a necessity that each pillars of the state to evolve a healthy trend that respects the powers and responsibilities of other organs of the government.
Picture Source :
