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BIWEELY - DOCTRINE OF BASIC STRUCTURE

IN INDIAN CONSTITUTION

Questions for Practice

1. Trace the evolution of currency system in India before and after

Independence
2. By highlighting the major demonetisation of currencies in Indi, Discuss its
objective
3. What are the aim of Demonetisation of High Value Currency in 2016?
Critically analyse its impact on Indian economy since its introduction
4. What are the concerns with government’s latest demonetisation decision?
Also discuss the Judiciary view about it.

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Doctrine of Basic Structure in Indian Constitution

Vice President Jagdeep Dhankhar recently sparked a debate on the separation of
powers between the executive and the judiciary. He criticized the Supreme Court once again,
for using the doctrine of basic structure to strike down the constitutional amendment that
introduced the National Judicial Appointments Commission Act.

An Overview of Amendment to the Constitution

 The Constitution of a country is the fundamental law of the land. It is based on this
document that all other laws are made and enforced.
 According to the Constitution, Parliament and the state legislatures in India have the
power to make laws within their respective jurisdictions. This power is not absolute in
nature.
 The Constitution vests in the judiciary, the power to adjudicate upon the constitutional
validity of all laws.
 If a law made by Parliament or the state legislatures violates any provision of the
Constitution, the Supreme Court has the power to declare such a law invalid or ultra vires.
 This check notwithstanding, the founding fathers wanted the Constitution to be an
adaptable document rather than a rigid framework for governance.
 Hence Parliament was invested with the power to amend the Constitution. Article 368 of
the Constitution gives the impression that Parliament's amending powers are absolute and
encompass all parts of the document.
 But the Supreme Court has acted as a brake to the legislative enthusiasm of Parliament
ever since independence.
Evolution of Basic Structure Doctrine

 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
(1951) and Sajjan Singh (1965).
 The reason for this is believed to be that in those initial years, the apex court had reposed
faith in the wisdom of the then political leadership, when leading freedom fighters were
serving as Members of Parliament.
 In subsequent years, as the Constitution kept being amended at will to suit the interests of
the ruling dispensation, the Supreme Court in Golaknath case (1967) held that

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Parliament’s amending power could not touch Fundamental Rights, and this power
would be only with a Constituent Assembly.
 In the early 1970s, the government of then Prime Minister Indira Gandhi had enacted
major amendments to the Constitution (the 24th, 25th, 26th and 29th) to get over the
judgments of the Supreme Court in RC Cooper (1970), Madhavrao Scindia (1970) and
the earlier mentioned Golaknath.
 The 24th amendment diluted the fundamental rights; 26th abolished privy purses and
recognition granted to the rulers of Indian states; and the 29th amendment included the
Kerala Land Reforms (Amendment) Act, 1969, and the Kerala Land Reforms
(Amendment) Act, 1971 in the Ninth Schedule to the Constitution to protect the laws
under Article 31B.
 In RC Cooper, the court had struck down Government’s bank nationalization policy,
and in Madhavrao Scindia it had annulled the abolition of privy purses of former
rulers.
 All the four amendments, as well as the Golaknath judgment, came under challenge in the
Kesavananda Bharati case where relief was sought by the religious figure Swami
Kesavananda Bharati against the Kerala government vis-à-vis two state land reform laws.
 Since Golaknath was decided by eleven judges, a larger bench was required to test its
correctness, and thus 13 judges formed the Kesavananda bench.
About Basic Structure Doctrine

 About:
 The Doctrine of Basic Structure is a form of judicial review that is used to test the
legality of any legislation by the courts.
 There is no mention of the term “Basic Structure” anywhere in the Indian
Constitution.
 Origin:

 The origins of the basic structure doctrine are found in the post-war German
Constitution law which, after the Nazi regime, was amended to protect some basic
laws.
 Jurist Nanbhoy Palkhivala who appeared against the government relied on the
writings of Professor Dietrich Conrad in support of the basic structure doctrine.

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 Under the Weimar regime, the legislature reigned supreme and legal positivism was
brought to an extreme.
 The re-action after World War II was characterized by decreases of legislative
power matched by an increase of judicial power
 Evolution in India

 The basic structure theory was first introduced by Justice Mudholkar in the Sajjan
Singh case (1965) by referring to a 1963 decision of the Supreme Court of Pakistan.
 The doctrine was evolved further by the Supreme Court in the 1973 landmark ruling
in Kesavananda Bharati v State of Kerala.
 In a 7-6 verdict, a 13-judge Constitution Bench ruled that the ‘basic structure’ of
the Constitution is inviolable, and could not be amended by Parliament.
 The judgement read, “The above structure is built on the basic foundation, i.e., the
dignity and freedom of the individual. This is of supreme importance. This cannot by
any form of amendment be destroyed.”
 Ever since the Supreme Court has been the interpreter of the Constitution and the
arbiter of all amendments made by Parliament.
 Purpose:

 If a law is found to “damage or destroy” the “basic features of the Constitution”, the
Court declares it unconstitutional.

 The test is applied to constitutional amendments to ensure the amendment does not
dilute the fundamentals of the Constitutional itself.

 The test is widely regarded as a check on majoritarian impulses of the Parliament

since it places substantive limits on the power to amend the Constitution. .

 The idea is to preserve the nature of Indian democracy and protect the rights and
liberties of people. This doctrine helps to protect and preserve the spirit of the
constitution document.

 Features of the Doctrine

 Over the years, various facets of the basic structure doctrine have evolved, forming
the basis for judicial review of Constitutional amendments. The basic structure may
be said to consist of the following features:
 Supremacy of the Constitution;

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 Republican and Democratic forms of Government.

 Secular character of the Constitution;
 Separation of powers between the Legislature, the executive and the judiciary;
 Federal character of the Constitution.
 There is no such exhaustive or exclusive definition of basic structure given by the
judiciary. Judicial approach has been on case to case basis to define what basically
includes in the doctrine of basic structure.

The judgment in Kesavananda Bharati case

 The Constitutional Bench, whose members shared serious ideological differences, ruled
by a 7-6 verdict that Parliament should be restrained from altering the ‘basic structure’
of the Constitution.

 The court held that under Article 368, which provides Parliament amending powers,
something must remain of the original Constitution that the new amendment would
change.

 The court did not define the ‘basic structure’, and only listed a few principles such as
federalism, secularism, democracy as being its part. Since then, the court has been
adding new features to this concept.

‘Basic structure’ since Kesavananda

 Newer features have been constantly added to this premium list that is “basic”, giving
them the immunity that the basic structure enjoys.

 The ‘basic structure’ doctrine has since been interpreted to include the supremacy of
the Constitution, the rule of law, Independence of the judiciary, doctrine of separation of
power federalism, secularism, sovereign democratic republic, the parliamentary system of
government, the principle of free and fair elections, welfare state, etc.

 For instance, in Indira Nehru Gandhi v. Raj Narain and Minerva Mills v. Union of
India, Constitution Benches of the Supreme Court used the basic structure doctrine to
strike down the 39th Amendment and parts of the 42nd Amendment respectively, and
paved the way for restoration of Indian democracy.
 The Supreme Court’s position on constitutional amendments laid out in its judgement is
that Parliament can amend the Constitution but cannot destroy its “basic structure”.

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 In 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.

 An another example of its application is SR Bommai (1994), when the Supreme Court
upheld the dismissal of BJP governments by the President following the demolition of the
Babri Masjid, invoking a threat to secularism by these governments.

 It should also be noted in this context, that some of the fundamental rights have
themselves achieved the status of basic structure of the Constitution. This was held by the
Supreme Court in I.R. Coelho v. State of Tamil Nadu, where a nine-judge bench of the
Supreme Court considered the scope of judicial review of inclusion of a law in ninth
schedule by a constitutional amendment thereby giving immunity from challenge in view
of article 31B of the Constitution.

Significance of Basic Structure Doctrine

 The doctrine of ‘basic structure’ is considered the most potent tool in the hands of the
Indian judiciary to maintain the balance of power, the checks and balances that are
required for a smooth functioning of a democracy.

 The doctrine which was evolved by the Indian Supreme Court, through its numerous
landmark judgments over the years, acts as a testimony to the theory of
Constitutionalism to prevent the damage to essence of Constitution by brute majority of
the ruling majority.

 The doctrine saved the Indian democracy as it acts as a limitation of constituent power
or else unlimited power of parliament might have turned India into a totalitarian or
authoritarian regime.

 It helps us to retain the basic tenets of our constitution so meticulously framed by the
founding fathers of our Constitution.

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 It strengthens our democracy by delineating a true separation of power where Judiciary

is independent of other two organs. It has also given immense untold unbridled power
to Supreme Court and made it the most powerful court in the world

 By restraining the amending powers of legislative organ of State, it provided basic Rights
to Citizens which no organ of State can overrule.

 Being dynamic in nature, it is more progressive and open to changes in time unlike the
rigid nature of earlier judgement.

Limitations of Basic Structure Doctrine

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 Vagueness: The doctrine is often criticized for being too vague and not providing clear
guidelines. There is no proper definition or what constitutes basic structure.

 Inflexibility: It is also criticized for being too rigid and not accommodating change and
growth. For instance, There are various instances where it can be proved that judiciary
has restricted parliamentary powers like in case of NJAC bill (99th amendment to
constitution), Aadhaar bill (diluted provisions of bill), Set aside reservations in promotion
and above 50% reservation in states granted by certain state governments.

 Judicial Discretion: The broadness of the doctrine also means that it allows for
significant judicial discretion, which can lead to inconsistencies and a lack of
predictability. Preamble of the constitution says people are sovereign (Give to ourselves
this constitution) and they passed on this power to elected representatives but judiciary
has taken over to itself in name of Judicial review.

 Political Influence: Some have raised concerns about the political influence on the
interpretation and application of the doctrine.

 Limited scope: The doctrine only applies to the basic structure of the Constitution and
not all provisions, which can lead to potential limitations in protecting individual rights

 Undermining the democratic principles: It is also argued that the basic structure
doctrine upsets the balance of powers in favour of the Supreme Court over Parliament,
and hence, can hurt democratic principles.

The Way Ahead

India is the only country with basic structure doctrine which was subject to intense
debate from the date of its inception and lack of textual basis of the same. However, the
doctrine has effectively ensured that constitution of India remains free from political
influence in addition to preserving core values and is a mean to give a momentum to the
living principles of the “Rule of Law” and connotes that none is above the Constitution and
the Constitution is supreme

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