The Basic Structure Doctrine emerged from the Kesavananda Bharati judgment of the Supreme Court, delivered by a majority of 7:6 on April 24, 1973. It held that Parliament could not alter the basic structure of the Constitution by an amendment.
There is no exclusive and definitive list of what the basic features are, for the judiciary decides this on a case-by-case basis. In consequence, as cases accumulate, the list of areas off-limits to the executive gets longer.
This creates a peculiar political environment where frenzied elections generate tall mandates that are undeliverable. The executive remains hamstrung, constrained not just by limited material resources but bound by limited and uncertain legal room to manoeuvre.
The consequence of this gap between parliamentary competence and executive impotence knocks the wind out of the power and capacity of electoral democracy.
The political culture it breeds is known as “cheap talk” in game theory, seen in such emphatic gestures as grandstanding and heady rhetoric followed by inaction, empty rhetoric and costless, non-binding, unverifiable communication between politicians and the electorate.
If you look at the syllabus of GS Paper II:
General Studies- II: Governance, Constitution, Polity, Social Justice and International relations.
- Indian Constitution—historical underpinnings, evolution, features, amendments, significant provisions and basic structure.
“Parliament’s power to amend the Constitution is a limited power and it cannot be enlarged into absolute power.” In the light of this statement explain whether Parliament under Article 368 of the Constitution can destroy the Basic Structure of the Constitution by expanding its amending power?
But in order to understand the Basic Structure concept, we will have to move sequentially from understanding the:
- Amendment procedure
- Genesis of the doctrine through various Supreme court judgments
- The current ambit of the term
- Merits and Demerits of the Basic Structure.
- Like any other written Constitution, the Constitution of India also provides for its amendment in order to adjust itself to the changing conditions and needs. However, the procedure laid down for its amendment is neither as easy as in Britain nor as difficult as in USA. In other words, the Indian Constitution is neither flexible nor rigid but a synthesis of both. Article 368 in Part XX of the Constitution deals with the powers of Parliament to amend the Constitution and its procedure.
- It states 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 cannot amend those provisions which form the ‘basic structure’ of the Constitution. This was ruled by the Supreme Court in the Kesavananda Bharati case1 (1973).
PROCEDURE FOR AMENDMENT
The procedure for the amendment of the Constitution as laid down in Article 368 is as follows: An amendment of the Constitution can be initiated only by the introduction of a bill for the purpose in either House of Parliament and not in the state legislatures.
The bill can be introduced either by a minister or by a private member and does not require prior permission of the president.The bill must be passed in each House by a special majority, that is, a majority of the total membership of the House and a majority of two-thirds of the members of the House present and voting.
Each House must pass the bill separately. In case of a disagreement between the two Houses, there is no provision for holding a joint sitting of the two Houses for the purpose of deliberation and passage of the bill. If the bill seeks to amend the federal provisions of the Constitution, it must also be ratified by the legislatures of half of the states by a simple majority, that is, a majority of the members of the House present and voting. After duly passed by both the Houses of Parliament and ratified by the state legislatures, where necessary, the bill is presented to the president for assent.
The president must give his assent to the bill. He can neither withhold his assent to the bill nor return the bill for reconsideration of the Parliament.
After the president’s assent, the bill becomes an Act (i.e., a constitutional amendment act) and the Constitution stands amended in accordance with the terms of the Act.
Emergence of the basic structure
The question whether Fundamental Rights can be amended by the Parliament under Article 368 came for consideration of the Supreme Court within a year of the Constitution coming into force. In the Shankari Prasad case (1951), the constitutional validity of the First Amendment Act (1951), which curtailed the right to property, was challenged.
The Supreme Court ruled that the power of the Parliament to amend the Constitution under Article 368 also includes the power to amend Fundamental Rights. The word ‘law’ in Article 13 includes only ordinary laws and not the constitutional amendment acts (constituent laws).
Therefore, the Parliament can abridge or take away any of the Fundamental Rights by enacting a constitutional amendment act and such a law will not be void under Article 13.
But in the Golak Nath case (1967), the Supreme Court reversed its earlier stand. In that case, the constitutional validity of the Seventeenth Amendment Act (1964), which inserted certain state acts in the Ninth Schedule, was challenged.
The Supreme Court ruled that the Fundamental Rights are given a ‘transcendental and immutable’ position and hence, the Parliament cannot abridge or take away any of these rights. A constitutional amendment act is also a law within the meaning of Article 13 and hence, would be void for violating any of the Fundamental Rights.
The Parliament reacted to the Supreme Court’s judgement in the Golak Nath case (1967) by enacting the 24th Amendment Act (1971). This Act amended Articles 13 and 368.
However, in the Kesavananda Bharati case3 (1973), the Supreme Court overruled its judgement in the Golak Nath case (1967). It upheld the validity of the 24th Amendment Act (1971) and stated that Parliament is empowered to abridge or take away any of the Fundamental Rights. At the same time, it laid down a new doctrine of the ‘basic structure’ (or ‘basic features’) of the Constitution.
It ruled that the constituent power of Parliament under Article 368 does not enable it to alter the ‘basic structure’ of the Constitution. This means that the Parliament cannot abridge or take away a Fundamental Right that forms a part of the ‘basic structure’ of the Constitution.
The doctrine of basic structure of the constitution was reaffirmed and applied by the Supreme Court in the Indira Nehru Gandhi case (1975).
In this case, 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.
Again, the Parliament reacted to this judicially innovated doctrine of ‘basic structure’ 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 no 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 case4 (1980) invalidated this provision as it excluded judicial review which is a ‘basic feature’ of the Constitution.
Applying the doctrine of ‘basic structure’ with respect to Article 368, the court held that: “Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power.
Indeed, a limited amending power is one of the basic features of the Constitution and, therefore, the limitations on that power cannot be destroyed. In other words, Parliament cannot, under article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic features. The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one”.
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 judgements, the following have emerged as ‘basic features’ of the Constitution or elements 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
Criticism of the doctrine of Basic Structure
- Legitimacy of the judgement can be questioned as the verdict was given on a very thin margin (7-6).
- Judiciary is “overlooking the letters of the constitution” and “inventing its soul”.
- It’s metaphysical appraoch “Basic Structure” disturbs the separation of power and establishes judicial sovereignty
- Judiciary is least representative and most elitist, least accountable hence assuming the role of super legislature is unsuitable for democracy.
- Since entire spectrum of BS is undefined, it creates uncertainty and discretion affecting the working of executive.
Arguments in favor:
- The fundamental structure concept serves as evidence for the constitutionalist thesis that majority rule by force cannot destroy the core of the COI.
- “Parliament too is a creature of the Constitution”. Therefore, it can only have such powers that are expressly vested on it. If those powers are seen as unlimited, Parliament, the Court found, “would cease to be an authority under the Constitution”; it would instead “become supreme over it, because it would have power to alter the entire Constitution including its basic structure”. In other words, the principle that Parliament is proscribed from changing the Constitution’s essential features is rooted in the knowledge that the Constitution, as originally adopted, was built on an intelligible moral foundation.
- Because it serves as a check on constituent power, the fundamental concept preserved Indian democracy; otherwise, unchecked parliamentary power may have turned India into a totalitarian state.
- Retaining the fundamental principles of our constitution, which our founding fathers so painstakingly crafted, is beneficial.
- It gave citizens fundamental rights that no state organ can alter by restricting the legislative branch’s ability to amend laws.
- Being dynamic in nature, it is more progressive and open to changes in time unlike the rigid nature of earlier judgements.
It’s important to note that the doctrine’s implications and future depend on legal, political, and societal developments. Hence:
- The courts will need to maintain their independence and commitment to upholding the Constitution’s core values. Upholding the doctrine will require judges to have a deep understanding of constitutional principles and an unbiased approach to evaluating amendments.
- The courts must ensure that the doctrine is not misused to stifle legitimate amendments that aim to enhance democratic governance.
- As society and legal thinking continue to evolve, the doctrine’s interpretation may also adapt. The judiciary should consider contemporary challenges and contexts when applying the doctrine.
- Citizens need to understand the importance of safeguarding the Constitution’s core principles and how the Basic Structure Doctrine plays a role in that protection.
- Comparative analysis can help refine the Basic Structure Doctrine and adapt it to India’s unique constitutional context.
- While the doctrine primarily concerns the judiciary, it’s crucial for the other branches to respect the Constitution’s core principles.
- Over time, it might be beneficial to assess whether the existing procedure for amending the Constitution is suitable or if any modifications are needed to balance the need for change with the need to protect the Constitution’s core.
Remember that the evolution and future of the Basic Structure Doctrine will be influenced by various factors, including legal developments, political dynamics, societal changes, and the commitment of stakeholders to uphold the Constitution’s values.