According to the Constitution, the Parliament and the State Legislatures can make laws within their jurisdictions. The power to amend the Constitution is only with the Parliament and not the state legislative assemblies. However, this power of the Parliament is not absolute. The Supreme Court has the power to declare any law that it finds unconstitutional void.
The concept of ‘basic structure’ came into existence in the landmark judgment in Kesavananda Bharati vs State of Kerala case (1973) 47 years ago.
As per the Basic Structure Doctrine, any amendment that tries to change the basic structure of the constitution is invalid.
There is no mention of the term “Basic Structure” anywhere in the Indian Constitution.
Basic Structure Of Constitution
The Constitution of India did not emerge from a vacuum. It is a continuous process of evolution, reformation, and recreating the existing system of governance by eminent scholars, experts, and judges, etc.
No Constitution can remain static. It must respond to new challenges and take account of unanticipated and unforeseen events that were not within the contemplation of the framers of the Constitution.
Ours is the living Constitution which requires an amendment from time to time according to the societal changes. Parliament in its constituent power can amend by way of addition, alteration, variation, or repeal any provisions of the Constitution.
On its plain terms, Art.368 is plenary and is not subject to any limitations or exceptions. The Constituent Assembly debates indicate that the founding fathers did not envisage any limitation on the amending power.
Bringing alteration to the Constitution provisions by the Parliament was a very easy process before Kesavananda Bharathi’s Case because there was no implied or express limitation on its amending power exercised under the Constitution. But in the Kesavananda case, the uncontrolled power of the Parliament has been controlled and curtailed by the Doctrine of Basic Structure.
We did not have this doctrine at the commencement of the Constitution of India. This doctrine conceived in the case of Sajjan Singh and took real birth in the case of Kesavananda Bharathi’s Case.
It is the product of a long struggle between the Judiciary and the Parliament. Through this basic structure principle, the Supreme Court changed the course of Constitutional history by denying the assertion of the supremacy of Parliament in the matter of amending the Constitution solely on the basis of requisite voting strength, quite unmindful of the basic or fundamental rights of citizens.
Art.31-B and Ninth Schedule are the main root cause for developing this doctrine by the Judiciary in so many cases. The reason is, this Schedule made the controlled Constitution uncontrolled by excluding the judicial review which is also a form part of the Basic Structure.
Since the adoption of the Indian Constitution, debates have started regarding the power of the Parliament to amend key provisions of the Constitution.
In the early years of Independence, the Supreme Court conceded absolute power to Parliament in amending the Constitution, as was seen in the verdicts in Shankari Prasad case (1951) and Sajjan Singh case (1965).
Shankari Prasad Case (1951)
Case questioning whether fundamental rights can be amended under Article 368 & also questioned the constitutional validity of the First amendment act that curtailed the right to property.
SC said that Parliament can amend the Fundamental rights under article 368. Also, laws under Article 13 are ordinary laws & hence can be taken away by Parliament by amendment.
Golak Nath Case (1967)
The case questioned the constitutional validity of putting some state laws under Schedule 9 of the constitution (by 7th Amendment Act)
Any law put under Schedule 9 is not available for Judicial Review.
SC said that its decision in Shankari Prasad Case was wrong & Fundamental rights have an important position in the constitution & hence can’t be amended under Article 368.
The constitutional amendment is also law under Article 13 & hence can’t take away the fundamental rights.
Parliament after this judgment enacted the 24th amendment act, 1971 which amended Article 13 & Article 368. The new law stated that Parliament can take away any Fundamental right by use of Article 368 & such a constitutional amendment act will not be considered as a “law” under article 13.
To get over the judgments of the Supreme Court in the Golaknath case (1967), RC Cooper case (1970), and Madhavrao Scindia case (1970), the then government headed by Prime Minister Indira Gandhi had enacted major amendments to the Constitution (the 24th, 25th, 26th and 29th).
All the four amendments brought by the government were challenged in the Kesavananda Bharati case.
Kesavananda Bharati case
In Kesavananda Bharati case, a relief was sought against the Kerala government vis-à-vis two state land reform laws, which imposed restrictions on the management of religious property.
- The case was challenged under Article 26, concerning the right to manage religiously owned property without government interference.
- The question underlying the case: Was the power of Parliament to amend the Constitution unlimited? In other words, could Parliament alter, amend, abrogate any part of the Constitution even to the extent of taking away all fundamental rights?
SC stated that the 24th Constitutional amendment act is valid & Parliament can take away Fundamental rights.
The Constitutional Bench in Kesavananda Bharati case ruled by a 7-6 verdict that Parliament could amend any part of the Constitution so long as it did not alter or amend the basic structure or essential features of the Constitution, i.e. Parliament can’t take away those fundamental rights that are a part of the Basic Structure of the constitution.
Parliament then enacted the 42nd Constitutional amendment act, 1976. It states that there is no limit to the power conferred by Article 368 to the Parliament & any change brought about by article 368 cannot be questioned in the court of law.
Minerva Mills Case (1980)
The provisions that were laid down by the 42nd Constitutional Amendment Act, 1976 were declared invalid by the Supreme Court in this 1980 Supreme Court case.
The judgement makes it clear that the Constitution, and not the Parliament is supreme.
In this case, the Court added two features to the list of Basic Structure features. They were: judicial review and balance between Fundamental Rights and DPSP.
The judges ruled that a limited amending power itself is a basic feature of the Constitution.
Waman Rao Case (1981)
- The SC again reiterated the Basic Structure doctrine.
- It also drew a line of demarcation as April 24th, 1973 i.e., the date of the Kesavananda Bharati judgment, and held that it should not be applied retrospectively to reopen the validity of any amendment to the Constitution which took place prior to that date.
- In the Kesavananda Bharati case, the petitioner had challenged the Constitution (29th Amendment) Act, 1972, which placed the Kerala Land Reforms Act, 1963 and its amending Act into the 9th Schedule of the Constitution.
- The 9th Schedule was added to the Constitution by the First Amendment in 1951 along with Article 31-B to provide a “protective umbrella” to land reforms laws.
- This was done in order to prevent them from being challenged in court.
- Article 13(2) says that the state shall not make any law inconsistent with fundamental rights and any law made in contravention of fundamental rights shall be void.
- Now, Article 31-B protects laws from the above scrutiny. Laws enacted under it and placed in the 9th Schedule are immune to challenge in a court, even if they go against fundamental rights.
- The Waman Rao case held that amendments made to the 9th Schedule until the Kesavananda judgement are valid, and those passed after that date can be subject to scrutiny.
Indra Sawhney and Union of India (1992)
- SC examined the scope and extent of Article 16(4), which provides for the reservation of jobs in favour of backward classes. It upheld the constitutional validity of 27% reservation for the OBCs with certain conditions (like creamy layer exclusion, no reservation in promotion, total reserved quota should not exceed 50%, etc.)
- Here, ‘Rule of Law’ was added to the list of basic features of the constitution.
S.R. Bommai case (1994)
- In this judgement, the SC tried to curb the blatant misuse of Article 356 (regarding the imposition of President’s Rule on states).
- In this case, there was no question of the constitutional amendment but even so, the concept of basic doctrine was applied.
- The Supreme Court held that policies of a state government directed against an element of the basic structure of the Constitution would be a valid ground for the exercise of the central power under Article 356.
Read More about S.R. Bommai
So, as of now, Parliament can do any type of amendment & even amend the Fundamental rights but which are not changing the “basic structure” of the constitution.
In I.R.Coelho’s case, the Supreme Court held that Art.31-B gives validation based on fictional immunity. In judging the validity of the Constitutional amendment, we have to be guided by the impact test i.e. Right Test. The basic structure doctrine requires the State to justify the degree of invasion of Fundamental Rights.
The Parliament is presumed to legislate compatibly with the Fundamental Rights and this is where judicial review comes in. The greater invasion into essential freedoms, the greater is the need for justification and determination by the Court whether the invasion was necessary and if so to what extent.
The degree of invasion is for the court to decide. Compatibility is one of the species of judicial review which is premised on compatibility with rights regarded as fundamental. The power to grant immunity, at will, on a fictional basis, without full judicial review, will nullify the entire basic structure doctrine.
Thereby Supreme Court reaffirms the Constitution Supremacy through this basic structure and now we can say that the “Doctrine of Basic Structure made uncontrolled Constitution into Controlled one.”
Read more about Coelho Case
Elements of 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 have emerged as ‘basic features’ of the Constitution or elements/components/ingredients of the ‘basic structure’ of the constitution:
1. Supremacy of the Constitution.
2. Sovereign, democratic and republican nature of the Indian Polity.
3. Secular character of the Constitution.
4. Separation of powers between the L, E, and J.
5. Federal character of the Constitution.
6. Unity and integrity of the Nation.
7. Welfare State (socio-economic justice)
8. Judicial Review
9. Harmony and balance between FRs and DPs
10. Parliamentary System
11. Rule of Law
12. Freedom and dignity of the individual
13. The principle of Free and fair elections
14. Principle of Equality, not every feature of equality, but the quintessence of equal justice
15. Independence of Judiciary
16. Effective access to justice
17. Principle of reasonableness
18. Limitations upon the amending power conferred by Article 368
19. Articles 32 and 226
20. Powers of the Supreme Court under Articles 32, 136, 141, 142
21. Welfare State
Significance of Basic Structure
The basic structure limitation comes out of the realization that the only way to safeguard the Constitution from opportunistic destruction and defilement by temporary majorities in Parliament is to reject those amendments which go to tarnish its identity.
It arises out of the need to strengthen the Constitution and to prevent its destruction by a temporary majority in Parliament.
What is basic structure will depend upon what is vital to Indian democracy and that cannot be determined except with reference to history, politics, economy, and social milieu in which the Constitution functions.
The Court cannot impose on society anything it considers to be basic. What the judges consider to be basic structure must meet the requirement of national consciousness about the basic structure.
Whatever may be the merits or demerits of judicial review, to an extent, the basic structure limitation upon the constituent power has helped arrest such forces to some extent and to stabilize the democracy.