Doctrine of Basic Structure

Introduction

• The Indian Constitution, like a strong building, rests on a foundation of core principles. These principles, known as the Basic Structure Doctrine, are the essential elements that define the Indian system of governance. Amending the Constitution is a powerful tool, but the Basic Structure Doctrine ensures this power isn’t used to demolish the very foundation it’s meant to build upon. The Supreme Court, in its wisdom, hasn’t provided an exhaustive list of these core principles. Instead, it has left the interpretation to the courts on a case-by-case basis.
• The Indian Constitution, according to the court in Kesavanada Bharati v. State of Kerala[1], is more than just legal guidelines; it is a social contract reflecting the values of the freedom struggle. Imagine the Indian Constitution not just as a legal document but as a solemn agreement – a social contract – forged between the people of India. This agreement reflects the shared values and aspirations that fueled the freedom struggle.
• These principles are the bedrock of India’s Constitution, inviolable and essential. They are the pillars upholding our democracy, safeguarding it from chaos or tyranny. While Parliament can amend the Constitution, the basic structure doctrine ensures its integrity.

Establishment of the Basic Structure Doctrine: Kesavananda Bharati v. State of Kerala (1973)[2]

• In the landmark Kesavananda Bharati case, a massive 13-judges bench of the Supreme Court grappled with complex questions about amending the Constitution. To reach a well-informed decision, the court emphasized the importance of interpreting the Constitution as a whole. This meant carefully considering the intentions of the Constitution’s framers, the overall structure and interconnectedness of its various provisions, and even the debates that took place within the Constituent Assembly.
• By taking this comprehensive approach, the court aimed to arrive at an interpretation that would eliminate ambiguities and inconsistencies, ultimately promoting the smooth and harmonious functioning of the Constitution for the nation’s benefit.

Issues

• The Bench had to decide on several significant issues in this case:

1.   Whether 24^th, 25^th and 29^th Amendment are constitutionally valid?

              YES

The Kesavananda Bharati case wasn’t just about the future of amendments; it also cast a light on the legality of already passed amendments. The case specifically challenged the validity of the 24th, 25th, and 29th amendments. These amendments were passed in the early 1970s and aimed to give the government more power, particularly in land reform areas.

The challenge to these amendments stemmed from the earlier Golaknath judgment, which limited Parliament’s power to amend the Constitution, especially regarding Fundamental Rights. However, the Kesavananda Bharati case introduced a new concept: the “Basic Structure Doctrine.” This doctrine essentially stated that Parliament could amend the Constitution, but those amendments couldn’t change the core principles or framework on which the Constitution is built.

• So, how did this apply to the past amendments?

Under the new doctrine, the court upheld the validity of the 24th, 25th, and 29th amendments. However, this wasn’t a blanket approval. The court essentially said, “These amendments are valid for now, as long as they don’t violate the basic structure of the Constitution.” This meant that if, in the future, someone challenged these specific amendments and argued that they went too far and undermined the Constitution’s core principles, the court could revisit the issue.

In prioritizing social justice, the Court ruled that Articles 14 (equality before law) and Article 19 (fundamental freedoms) would be subject to the directive principles enshrined in Articles 39(b) and 39(c) (promoting social welfare and reducing inequality). The court acknowledged the importance of upholding the Constitution’s socialist principles, viewing the 25th Amendment, which empowered the government to acquire property for social good, to achieve this goal. Consequently, the 25th Amendment was deemed valid.

2.   What is the scope of law under Article 13(2)?

The Kesavananda Bharati case didn’t definitively answer whether amendments are “law” under Article 13(2). This means the issue remains open for future court interpretations. However, by establishing the “Basic Structure Doctrine”, the court indirectly limited the scope of amendments, as any amendment altering the basic structure could potentially be seen as violating Article 13(2) by abridging Fundamental Rights.

3.   What is the extent of Parliament’s amending power?

• Before Kesavananda Bharati, the landmark case of I.C. Golaknath (1967)[3] had tilted the scale towards limitations. The Golaknath judgment declared that Parliament could not amend Fundamental Rights under Article 368, the amendment provision of the Constitution. This offered significant protection to these fundamental rights but also created a potential roadblock for any future changes or adaptations deemed necessary.
• The Kesavananda Bharati case entered this debate and introduced a new framework: the “Basic Structure Doctrine”. Unlike Golaknath’s absolute prohibition, Kesavananda Bharati recognized Parliament’s power to amend the Constitution, including Fundamental Rights. According to the court, if a rigid interpretation of Article 368 is made out, it would render the amendment almost impossible.
• Whereas, if a liberal interpretation is provided, it would allow Parliament to do almost anything and everything. Both interpretations would be detrimental to society, and therefore, the court held that a middle path should be adopted. The court did not explicitly mention it, but the obiter dicta of the case states that it has hinted towards a purposive interpretation of the statute.
• While answering all the questions, the court constantly emphasized the doctrine of basic structure. It becomes crucial to understand this doctrine because all the past and future amendments have to conform to this doctrine.

Critical Analysis of the doctrine of Basic Structure

1. Are fundamental rights Amenable?

• Fundamental rights have been regarded as among the most superior rights enshrined in the Indian Constitution. These are the rights that the State cannot take away under any circumstances, except when certain reasonable restrictions are imposed upon them. This posits a very important question of whether these rights are amenable or not. From various landmark judgments such as Shankari Prasad[4], Sajjan Singh[5], and Kesavananda Bharati, it can be clearly inferred that fundamental rights can be amended but only to obtain the goals prescribed by the Constitution.
• Therefore, fundamental rights are amenable only to the extent that basic structure is not taken away. This does not mean that fundamental rights in itself are a basic structure, but the essential principles implicit in the fundamental rights constitute a basic structure. Imagine the basic structure as a building and the principles of fundamental rights as the pillars on which the building rests. Now, if the pillar is taken away, the building will collapse.
• While the specific wording of some fundamental rights might be amended, the essential principles they embody are part of the basic structure. For instance, the wording of Article 14 can be amended, but the essential principles of social justice and equality cannot be taken away.

2. Does Article 368 fall within the purview of Article 13(2)?

• Article 13(2) and Article 368 of the Indian Constitution represent two vital pillars: the former safeguarding fundamental rights and the latter enabling constitutional amendments. However, their apparent conflict – Article 13(2) barring laws that violate fundamental rights, while Article 368 empowers amendments – necessitated judicial interpretation to achieve a harmonious construction.
• The landmark case of Golaknath v. State of Punjab[6] (1967) tilted the scales towards Article 13(2). The court interpreted it to mean that Parliament could not amend the Constitution under Article 368 to abridge fundamental rights. This decision essentially rendered Article 368 powerless to alter fundamental rights, creating a potential roadblock for necessary adaptations to the evolving social and economic landscape.
• Kesavananda Bharati v. State of Kerala (1973) ushered in a paradigm shift. While acknowledging the importance of fundamental rights, the court recognized the need for a dynamic Constitution capable of adapting to changing times. It introduced the doctrine of “basic structure,” propounding that Article 368 empowers Parliament to amend the Constitution, including fundamental rights, as long as such amendments do not destroy the basic framework of the Constitution.
• In conclusion, the harmonious construction of both the Articles is the way to the future. However, The crucial distinction lies like amendments. Unlike “laws” restricted by Article 13(2), amendments made under Article 368 stem from a higher authority – the constituent power. Therefore, amendments don’t fall under the same category as laws that can be challenged for violating fundamental rights. Therefore, Article 13(2) does not control Article 368.

Scope of Judicial review:

A judicial review is an essential aspect that inspects whether the legislation that is enacted is consistent with the provisions of the Constitution. Like any law, the courts can review amendments to the Constitution under Article 368. This ensures the changes align with the Constitution itself. But how far can this review go? Can the courts delve into the amendment’s content (substantive review) or check if the proper procedure was followed (procedural review)?

Here are some benefits of judicial review:

• Protects Individual Rights: It ensures that government actions comply with the fundamental rights enshrined in the constitution.
• Upholds the Rule of Law: It guarantees that everyone, including the government, is subject to the law.
• Maintains Checks and Balances: It prevents any one branch of government from becoming too powerful.

From various legal pronouncements, it can be concluded that Article 368 is subjected to judicial review concerning both substantive (basic structure) and procedural (Article 368) aspects. The amending power of the Parliament is subject to procedural and substantive restrictions.[7]

Procedural vs. Substantive Review: A Two-Pronged Approach

Judicial review of Article 368 operates on two planes:

• Procedural Review: This ensures Parliament follows the prescribed steps for amending the Constitution. The court meticulously examines whether the amendment bill garnered the required majority in both houses and was ratified by the stipulated number of state legislatures in specific cases. Additionally, it verifies adherence to any procedural safeguards mandated by the Constitution.
• Substantive Review: The more contentious aspect is substantive review. Here, the court delves into the “content” of the amendment, employing the doctrine of the ‘basic structure.’ The features, like federalism, secularism, and judicial review, cannot be abrogated by Parliament under Article 368. The court acts as a guardian, ensuring amendments don’t demonstrably alter these core principles.

To elaborate on the concept of the basic structure, courts have observed its connection to the Constitution’s identity. The basic structure ensures the core character of the Constitution is preserved, essentially maintaining its essential identity. Further analysis reveals the concept revolves around the Constitution’s overarching principles.

These principles function as a system, bringing coherence to the entire document. They are the foundation that binds the Constitution together, ensuring its various provisions function as a unified whole and are inherently interconnected.

• The 1980 case of Minerva Mills v. Union of India[8] stands as a landmark decision in Indian jurisprudence. It significantly expanded the scope of judicial review under Article 368. The Minerva Mills case addressed a series of amendments enacted during the Emergency period (1975-77). These amendments, particularly Clause (5) of Article 368, sought to curtail judicial review by declaring Parliament’s amending power to be absolute.
• The court held that the power to amend granted by Article 368 is not unlimited. Parliament cannot use this power to expand its own amending authority beyond the confines set by the Constitution. The court emphasized its role in protecting the basic structure from erosion through amendments. The judiciary can strike down any amendment that demonstrably alters these essential features.
• While acknowledging Parliament’s authority to follow a specific procedure for amendments, the court asserted its power to review the substantive aspect of the amendments. This meant examining whether the amendments violated the basic structure, not just procedural irregularities.
• The court declared Clause (5) of Article 368, which sought to bar judicial review of amendments, unconstitutional. This established the court’s right to scrutinize amendments for their impact on the basic structure. Furthermore, the court observed that any amendment that effectively destroys federalism, secularism, or judicial review would be deemed unconstitutional.

Conclusion

• In conclusion, the Basic Structure Doctrine stands as a vital safeguard within the Indian Constitution, ensuring that its core principles remain inviolable. By introducing this doctrine, the landmark Kesavananda Bharati case marked a significant turning point in constitutional jurisprudence.
•  The doctrine serves as a protective barrier against any amendments that could undermine the essential framework of the Constitution, preserving the integrity of India’s democratic and socio-economic foundation. Through meticulous judicial interpretation, the Supreme Court has maintained a balance between the need for constitutional flexibility and the preservation of its fundamental ethos.
• This ongoing judicial oversight ensures that while the Parliament holds the power to amend the Constitution, such power is exercised within the bounds of the Constitution’s basic structure, thereby preventing any drift towards anarchy or totalitarianism. Ultimately, the Basic Structure Doctrine has played a crucial role in maintaining the stability and continuity of the Indian constitutional order, upholding the principles of democracy, social justice, and the rule of law.

[1] AIR 1973 SC 1461.

[2] Ibid.

[3] AIR 1967 SC 1643.

[4] AIR 1951 SC 458.

[5] AIR 1965 SC 845.

[6] AIR. 1967 SC 1643.

[7] M. Nagaraj v. Union of India, AIR 2007 SC 71.

[8] AIR 1980 SC 1789.