Ashwani Singh BA (H) History Roll no• 2023/05/037

The Basic Structure of the Indian

Constitution
The ‘Doctrine of Basic Structure also known as the basic law of land’ was
first recognized in Keshavananda Bharati Sripadagalvaru case to limit the
power of parliament to amend the Constitution of India. The Doctrine of
Basic Structure is a judge-made doctrine and was interpreted by Judges in
case to case. The first time attempt was made in Golakh Nath case by M.
K. Nambyar to get it approved in the name of ‘necessary implied restraint
on the amending power of the Parliament’ but it took almost half decade for
the Indian judiciary to overcome its hesitancy and pronounce it in
Keshavananda case. Article 368 of Constitution gave power to amend the
Constitution of India in the hands of the Parliament to amend the
Constitution with changing needs and demands of ‘we the people’ but the
Parliament abused the power and amended the basic structure also known
as the basic law of land. On many occasions it tried to interfere in Judicial
Independence by introducing the NJAC act in constitution and it was held
that Rule of Law, Separation of Power, and Independence of Judiciary
forms the Basic Structure of Constitution. it is believed that the doctrine of
basic structure is applicable to constitutional amendments exclusively,
however, various judges of the Supreme Court have viewed this aspect
differently and there have been contrasting opinions on this subject. The
present article is about the study of basic structure doctrine and efforts
made by judiciary by checks and balance and exercising the power of
Judicial Review. Author will try to trace the features and applicability held
by different judges of Supreme Court on case to case basis.

INTRODUCTION

Parliament is given power by the Constitution to make laws and amend

with the changing needs and demands of the people. The Parliament in
exercise of its constituent power under Article 368 of the Indian Constitution
can amend any of the provisions of the Constitution and this power
empowers the Parliament to amend even Article 368 itself. The Doctrine of
Basic Structure ‘is a judge made doctrine to protect the basic structure of
the Constitution and put a limitation on the amending powers of the
Parliament so that the basic structure cannot be amended in exercise of its
constituent power under the Constitution. The debate on the 'basic
structure' of the Constitution, have been seen in many cases of the
Supreme Court.

This power is not absolute in nature. The Constitution vests in the judiciary,
the power to adjudicate upon the constitutional validity of all laws. Judiciary
can exercise the power of Judicial review. If a law made by Parliament or
the state legislatures violates any provision of the Constitution, the
Supreme Court being the protector and interpreter of the constitution has
the power to declare such a law invalid or ultra vires. Article 368 of the
Constitution gives the impression that Parliament's amending powers are
absolute and encompass all parts of the document and can amend any part
and change and alter it but the Supreme Court has acted as a brake to the
legislative enthusiasm of Parliament ever since independence. With the
intention of preserving the original ideals envisioned by the
constitution-makers, the apex court pronounced that Parliament could not
distort, damage, change or alter the basic features of the Constitution
under the pretext of amending it. The phrase 'basic structure' itself cannot
be found in theConstitution. The Supreme Court recognised this concept
for the first time in the historic Keshavananda Bharati case in 1973. Ever
since the Supreme Court has been the interpreter of the Constitution and
the arbiter of all amendments made by Parliament. In this case this concept
was recognised and stated that Parliament can amend the constitution but
the basic structure cannot be changed and every law is subject to Judicial
Review.
3. DOCTRINE OF BASIC STRUCTURE

The Doctrine of Basic Structure was first recognised in the Keshavananda

Bharati case (1973). This Doctrine was brought because the parliament
was altering the basic structure of constitution by its power of amendment.
Part XX of the Constitution under Article 368 states Power ofParliament to
amend the Constitution and provides the procedure. It provides for three
kinds of amendment i.e., amendment by simple majority; amendment by
special majority; and amendment by special majority and ratification by the
States. The Constitution has to be amended at every interval of time. A
Constitution, which is a static constitution, becomes a big hurdle in the path
of the progress of the nation. As the time is not static; it goes on changing
in the same way the political, economic and social conditions of the people
also goes on changing so for that reason provision of amendment of the
Constitution is made with a view to overcome the difficulties of the people.
which may encounter in future in the working of the Constitution. It simply
means that laws need to be amended according to the needs and demands
of the people, it has to be rigid as well as flexible in nature. This doctrine as
evolved in the Kesavananda Bharti seeks to resolve a legal conundrum
which arises in written Constitutions out of the interplay between those
provisions of the Constitution which guarantees the fundamental rights and
those which enable the Parliament to amend the Constitution.

In Minerva Mills case C.J. Chandrachud, observed thus, “the Indian

Constitution is founded on the bedrock of the balance between Parts III and
IV. To give absolute primacy to one over the other is to disturb the harmony
of the Constitution. This harmony and balance between fundamental rights
and directive principles is an essential feature of the basic structure of the
Constitution.” The rule of law and judicial review was held as basic
structure in Waman Rao, Sampath Kumar and Sambamurthy cases.In a
recent judgment I.R. Coelho v. State of Tamil Nadu the Supreme Court
applied this doctrine and held that:

“All amendments to the Constitution made on or after 24th April, 1973 by

which the Ninth Schedule is amended by inclusion of various laws therein
shall have to be tested on the touchstone of the basic or essential features
of the Constitution as reflected in Article 21 read with Article 14, Article 19
and the principles underlying them. To put it differently even though an Act
is put in the Ninth Schedule by a Constitutional amendment, its provision
would be open to attack on the ground that they destroy or damage the
Basic Structure if the fundamental right or rights taken away or abrogated
pertains or pertain to the Basic Structure.”

This states that if the provision is ultra vires or invalid it can be challenged
in Supreme court and it will be strike down. There is no such exhaustive
definition of basic structure given by the judiciary. Judicial approach about
basic structure has been changed depending on case to case.

4. FEATURES OF BASIC STRUCTURE

Supremacy of Constitution

Republic and Democratic form of Government

Secular Character of Constitution

Separation of Powers between the Legislature, the Executive and the

Judiciary

Federal Character of Constitution; Keshavananda Bharati Sripadgalvara c.

State of Kerala, AIR 1973 SC 1461: (1973) 4 SCC 225: (1973) Supp SCR
(Justice Sikri).[6

]5. JUDICIAL JUDGMENTS ON “Basic Structure”

Preamble as Basic Structure:

Keshavanada Bharati Sripadgalvaru v. State of Kerala, AIR 1973 SC 1461:

(majority view).

Excel Wear v. Union of India, AIR 1979 SC 25: (1978) 4 SCC 224: (1988) 2
LLJ 527, paragraph 24.

Preamble may therefore be pressed into service to interpret the provision

as to:

Fundamental rights – Keshavananda Bharati Sripadgalavaru v. State of

Kerala, AIR 1973 SC 1461: (1973) 4 SCC 225: (1973).

Directive principles – Chandra Bhavan v. State of Mysore, AIR 1970 SC

2042: (1969) 3 SCC 84: (1990) 2 LLJ 403, paragraph 13
I.C. Golaknath Case

In 1967 an eleven-judge bench of the Supreme Court reversed its position.

Delivering its 6:5 majority judgement in the Golaknath v. State of Punjab
case, C.J. Subba Rao put forth the curious position that Article 368, that
contained provisions related to the amendment of the Constitution, merely
laid down the amending procedure. Article 368 did not confer upon
Parliament the power to amend the basic structure. The amending power
(constituent power) of Parliament arose from other provisions contained in
the Constitution (Articles 245, 246, 248) which gave it the power to make
laws. Thus, the apex court held that the amending power and legislative
powers of Parliament were essentially the same Article 13(2) constituted a
bar to an amendment abridging or taking away fundamental rights.
Therefore, any amendment of the Constitution must be deemed law as
understood in Article 13 (2).

The majority judgement invoked the concept of implied limitations on

Parliament's power to amend the Constitution. These limitations were put
to protect the fundamentals and basic structure of constitution. This view
held that the Constitution gives a place of permanence to the fundamental
freedoms of the citizen. In giving the Constitution to themselves, the people
had reserved the fundamental rights for themselves. Article 13, according
to the majority view, expressed this limitation on the powers of Parliament.
Parliament could not modify, restrict or impair fundamental freedoms due to
this very scheme of the Constitution and the nature of the freedoms
granted under it and in case of infringement the aggrieved person can
move to court. The judges stated that the fundamental rights were so
sacrosanct and transcendental in importance that they could not be
restricted even if such a move were to receive unanimous approval of both
houses of Parliament. They observed that a Constituent Assembly might be
summoned by Parliament for the purpose of amending the fundamental
rights if necessary. The phrase 'basic structure' was introduced for the first
time by M.K. Nambiar and other counsels while arguing for the petitioners
in the Golaknath case, but it was only in 1973 that the concept surfaced in
the text of the apex court's verdict in Keshavananda case.

Basic Features laid down by judges in Keshavananda Bharati Case

Each judge laid out separately, what he thought were the basic or essential
features of the Constitution. There was no unanimity of opinion within the
majority view either. The Chief Justice Sikri, explained that the concept of
basic structure included -supremacy of the Constitution, republican and
democratic form of government, secular character of the Constitution,
separation of powers between the legislature, executive and the judiciary,
federal character of the Constitution Justice Shelat and Justice Grover
added two more basic features to this list - the mandate to build a welfare
state contained in the Directive Principles of State Policy and unity and
integrity of the nation. Justice Hegde and Justice Mukherjee identified a
separate and shorter list of basic features as sovereignty of India,
democratic character of the polity, unity of the country, essential features of
the individual freedoms securedto the citizens, mandate to build a welfare
state. Justice Jaganmohan Reddy stated that elements of the basic
features were to be found in the Preamble of the Constitution and the
provisions into which they translated such as sovereign democratic
republic, parliamentary democracy, three organs of the State. He said that
the Constitution would not be itself without the fundamental freedoms and
the directive principles.[7]
Only six judges on the bench (therefore a minority view) agreed that the
fundamental rights of the citizen belonged to the basic structure and
Parliament could not amend it.

The minority view in judgement - The minority view delivered by Justice

A.N. Ray and after the pronunciation of the Keshavananda verdict he was
widely considered to be politically motivated. Justice M.H. Beg, Justice K.K.
Mathew and Justice S.N. Dwivedi also agreed that Golaknath had been
decided wrongly. All of them agreed that Parliament could make
fundamental changes in the Constitution by exercising its power under
Article 368. In summary the majority verdict in Keshavananda Bharati
recognised the power of Parliament to amend any or all provisions of the
Constitution “provided such an act did not destroy its basic structure”.
Though the Supreme Court very nearly returned to the position of Sankari
Prasad (1952) by restoring the supremacy of Parliament's amending
power, in effect it strengthened the power of judicial review much more.[8]

6. THE NINETY-NINTH CONSTITUTIONAL AMENDMENT & NJAC ACT.

The Ninety-Ninth Constitutional Amendment and the National Judicial

Appointment Commission Act (NJAC Act) was proposed to be a
constitutional body to replace the existing system of judicial appointments,
whereby the three senior-most judges of the Supreme Court decide upon
the appointments to the Supreme Court, with a nominally consultative role
played by the Executive. Through a new Article 124A of the Constitution,
they seek to bring into existence a National Judicial Commission,
comprising of six members i.e., the Chief Justice of India and two
senior-most judges of the Supreme Court, two eminent persons (who would
be nominated by a committee consisting of the CJI, Prime Minister of India
and Leader of opposition or leader of single largest party) and the Law
Minister. Under a new Article 124B, the NJAC will recommend
appointments to the higher judiciary.

The Constitution Ninety-Ninth Amendment was challenged in the Supreme

Court Advocates on Record v. Union of India. The issue in the case was
whether the impugned amendment alters or damages the said basic
structure and is void on that ground?

The petitioners contended that the appointment of judges and absence of

interference of executive is a basic structure of the and being integral part
of independence of judiciary and separation of judiciary from the Executive.
Independence of Judiciary also forms part of the Basic Structure because if
Executive appoints judiciary then they can be bias and appoint the
interested person which would in future affect the decision of judiciary
against the Executive to re-pay the favour. The Court rejected the
contentions made by the respondent and by a majority of 4:1 held that the
new scheme damages the basic structure of the Constitution under which
primacy in appointment of judges must be with the judiciary. Under the new
schemesuch primacy has been given a go-bye. Thus, the impugned
amendment cannot be sustained. Articles 124A, B and C form the
backbone of the 99th Amendment and have been impugned as violating
the basic structure by destroying the independence of the judiciary, the
separation of powers, and the rule of law and it can’t be allowed because it
was about to change the basic structure of the constitution.
7. CONCLUSION

The Doctrine of Basic Structure is said to be Judge made doctrine and it

has been subject to an intense debate in the Constitutional field. This
doctrine is of very importance as it prevents the Parliament from misusing
and abusing its power. This doctrine was meant for special use in times
when Constitutional amendments threatened the basic framework of the
Constitution by the Parliament. This doctrine is subjective and vague. As
there is certain and exact list given by the judiciary that this constitutes the
basic structure and judges decided the features on the case to case basis.
This doctrine was recognized first time in Keshavananda Bharati case.
Nani Palkhivala successfully propounded in the Keshavananda case what
Mr. M. K. Nambyar tried in Golakh Nath but because of judicial hesitation it
took about half a decade time after Golakh Nath to be approved. This
doctrine protects our basic rights and every acts of the Parliament is now
subject to this doctrine. Basic structure doctrine is the reply to the void and
ultra vires amendments made and steps adopted by the Parliament to
misuse the Ninth Schedule. Mr. K. R. Narayanan once said, we have
destroyed the Constitution, and Constitution has not destroyed us and it
clearly states that Parliament on many occasions misused its power
changed the basic structure of the Constitution. This doctrine is the result of
attempts which were made by the Parliament many times to bring change
in the Constitution in exercise of its “constituent power”, then only judiciary
came forward with this theory of implied limitation‘ to limit the power in the
form of basic structure that the Parliament can amend whatever it wants to
but cannot amend the basic structure of the Constitution. It was simply said
everything can be subject to amendment by the Parliament except the
Basic Structure of the Constitution. It is just like when the Parliament is in
doubt it has no other option than to amend which has the clear example of
Indira Gandhi case. Whereas in Keshavananda case it was held that the
amendments that violate the basic structure of the Constitution are
unconstitutional despite the fact that the formal conditions for amendment
of the Constitution (laid down in article 368 of the Constitution) had in fact
been fulfilled and in such way the basic structure doctrine has been defined
by the judges being the interpreter and guardian of the Constitution. The
basic structure doctrine is a mean to protect the basic structure of the
Constitution, maintain Independence of Judiciary and to set in motion the
principles of the Rule of Law. It connotes that none is above the
Constitution and the Constitution is supreme.

8. REFERENCES

● Dr. N. Sathish Gowda - Constitutional Basis for Basic Structure Doctrine

in India: Effects and Applicability
● Setu Gupta - Vicissitudes and Limitations of the Doctrine of Basic
Structure

9. BIBLIOGRAPHY

● PM Bakshi - The Constitution of India by, Edition twelve, Reprint 2015.

● M.P. Jain - Indian Constitutional Law, Sixth edition 2010, reprint 2012.
● D.D. Basu. – Commentaries of Indian Constitutional Law.