Updated February 5, 2022
The word “Basic Structure” is not mentioned in the constitution of India. The basic structure doctrine advocates that the constitution of India has certain basic features which cannot be altered or repealed through amendments by the parliament. The concept of the Basic Structure gradually developed over the years from the interference of Judiciary to protect rights of the people and the ideals of the constitution. There are various judicial reviews in the Indian constitution which shows that parliament had the desire to grab the absolute power to amend any laws. But this desire was struck down by the various judicial judgements. The case of Kesavananda Bharati v. State of Kerala (Kesavananda Bharati) is perhaps the most well-known constitutional decision of the Supreme Court of India (Supreme Court). This case empowers the Judiciary to make amendment invalid if it violates the Doctrine and Basic structure of the constitution.
Parliament and the State Legislatures can amend by way of addition, variation or repeal any provision of the constitution in accordance with the procedure laid down for the purpose. So, under article 368 of the constitution, parliament can amend laws if it does not violate the Basic Structure of the constitution. It shows that Parliament’s power to amend the constitution is limited and it cannot be enlarged into absolute power. In fact, it established the Supreme Court’s right to review and, therefore, established its supremacy on constitutional matters.
If the Supreme Court finds any law made by the Parliament inconsistent with the constitution, it has the power to declare that law to be invalid. Thus, to preserve the ideals and philosophy of the original constitution, the Supreme Court has laid down the basic structure doctrine. According to the doctrine, the Parliament cannot destroy or alter the basic structure of the doctrine. So, Basic Structure of the Indian Constitution has not been established apparently, rather it developed after the various contentious judicial judgement of the Supreme Court. A glimpse of the issues that substantiates the fact:
Shankari Prasad Vs Union of India Case-
The first Constitution Amendment Act, 1951 was challenged in the Shankari Prasad Vs Union of India case. In this case, some state govt. enacted the Zamindari Abolition Act to obtain the large lands holding by the rich Zamindari and redistribute it among the tenants. But it was challenged as being unconstitutional or violating the Right to Property. Further, the Patna High court held it unconstitutional whereas some state’s High court upheld the Act. Then, the matter was placed before the Supreme Court. During all this, the Union govt. amended the constitution in which validating the Zamindari Abolition laws and limiting the Fundamental Right to Property.
The Zamindars challenged the First Amendment Act 1951 in the Supreme Court, stating that it was unconstitutional and invalid. But the Supreme Court upheld the amendment. In this regard, SC stated that Parliament can amend the constitution including Fundamental Rights under Article 368 and it is not violative of the provisions of the constitution.
In the Shankari Prasad Vs Union of India case, the Supreme Court gave absolute power to amend the laws by the way of addition, variation or revoking under article 368.
Sajjan Singh Vs State of Rajasthan Case: The Court gave the same ruling in Sajjan Singh Vs State of Rajasthan case in 1965.
Golak Nath Vs State of Punjab Case (1967)-
In this case, the Supreme Court had reversed its earlier decision. The Supreme ruled that the Fundamental rights are given a “Transcendental” and “Immutable” position and parliament cannot take away any of these rights. Meaning, the fundamental rights cannot be excluded or immunized from the process of constitutional amendment under Art. 368.
The Parliament has no power to amend Part III of the constitution. According to the Supreme Court ruling, Article 368 only lays down the procedure to amend the constitution and does not give absolute powers to the parliament to amend any part of the constitution. Here, the Supreme Court developed jurisprudence around what was known as the basic structure doctrine.
On SC’s judgement, the Parliament reacted in 1971 by enacting 24th Constitution Amendment Act 1971. This Amendment Act in 1971 gave the parliament absolute power to make any changes in the constitution including the fundamental rights under article 368 and such an act will not a law under the meaning of Article 13. It also made it obligatory for the President to give his assent on all the Constitution Amendment bills sent to him.
Kesavananda Bharti Vs State of Kerala Case (1973)-
The Supreme Court in Kesavananda Bharti 1973 case gave a landmark judgment. The Supreme court held that the judiciary has the power to declare an amendment null or void if it violates the elements of Basic Structure.
In Kesavananda Bharti vs. State of Kerala case, the Supreme Court overruled its judgement in the Golak Nath Case (1967). It upheld the validity of the 24th Constitution Amendment Act by reviewing its decision in the Golaknath case. The Supreme Court stated that the Parliament is empowered to take away any of the Fundamental Rights until it does not violate the Basic Structure of the constitution. But the Apex Court did not mention any clear definition of the Basic Structure. Thus, the constituent power of the parliament under article 368 does not enable it to alter the “Basic Structure” of the constitution. Even, it held that the “basic structure of the Constitution could not be abrogated by a constitutional amendment”.
Indira Gandhi Vs. Raj Narain (1975)–
This was the landmark case that created history and led to the imposition of Emergency in India from 1975 to 1977. In this case, parliament tried to establish its Supremacy but it was put in place by the judiciary.
Indira Gandhi and Raj Narrain were contesting election from the Bareilly constituency in 1971 Lok Sabha election. In this Lok Sabha election, Indira Gandhi party emerged victoriously, secured 352 seats out of 518 seats. Although Raj Narain was confident to triumph the election, he lost with huge margins. Then, Raj Narrain filed a petition against Indira Gandhi that she has used corrupt practices to win the elections. This case questioned so many integral aspects of the Constitution such as its Basic structure, power of jurisdiction of courts, separation of three organs of the state that are: Legislative, executive and judiciary, functions of Legislature, right to free and fair elections, rule of law and judicial review and lastly, political justice.
The decision in the Indira Gandhi vs Raj Narain case was a brave judgement given by the judiciary to put the ‘greedy’ Parliament in its place in the Constitution. It forced the parliament to kneel down and held that the judiciary will always be there to prevent the constitution from harmful acts. In this case, the doctrine of the Basic Structure of the constitution of India was reaffirmed and applied by the Supreme Court. The Supreme Court invalidated a provision of the 39th Amendment Act (1975) which kept the election disputes involving the Prime Minister and the Speaker of Lok Sabha outside the Jurisdiction of all courts. The court said that this provision was beyond the amending power of Parliament as it affected the basic structure of the constitution.
Minerva Mills Vs. Union of India (1980)-
Again, the parliament tried to establish its supremacy by enacting the 42nd Amendment Act (1976). This Act amended Article 368 and declared that there is no limitation on the constituent power of parliament and amendment can be questioned in any court on any ground including that of the contravention of any of the Fundamental Rights.
However, the Supreme Court in the Minerva Mills case 1980 invalidated this provision as it excluded judicial review which is a “Basic Structure” of the constitution. It’s stated that parliament cannot increase its amending power by amending Art. 368.
Some of the basic elements of the Basic Structure of the Constitution including Supremacy of the constitution, Republican and democratic form of government, Secular character of the constitution, Federal character of the constitution, Separation of power, Unity, and Sovereignty of India, and Individual freedom… etc. have emerged from the various judgements. These cannot be amended by parliament by using its amending power under article 368, thus limiting Parliament’s power to amend the constitution.
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