Doctrine of Basic Structure

Introduction

There is no mention of the term “Basic Structure” anywhere in the Constitution of India. The
idea that the Parliament cannot introduce laws that would amend the basic structure of the
constitution evolved gradually over time and many cases. The idea is to preserve the nature of
Indian democracy and protect the rights and liberties of people. This Basic Structure doctrine of
the Indian Constitution helps to protect and preserve the spirit of the constitution document.

What constitutes the basic structure? (IR Coelho Case)

The most recent turning point in the legal definition of the Constitution’s basic structure is the IR
Coelho case. The five-judge bench judgment in the M. Nagaraj case, which was rendered a few
months earlier, has been expanded upon by the IR Coelho court. The Court had taken into
consideration the conflict between the necessity to interpret the Constitution textually based on
the original meaning on the one hand, and the ambiguous nature of the constitutional text that
allows for the interpretation of diverse values in the Constitution on the other. The Court in
Nagaraj stated that the fundamental framework need not be contained in the language of the
Constitution.

The Nagaraj Court reaffirmed that the secularism, federalism, socialism, and reasonableness
elements that provide the Constitution’s coherence were part of the constitutional law even if
they were not explicitly stated in the text of the Constitution. The IR Coelho Court elaborates on
this issue by pointing out that the basic structure may include both textual provisions and such
underlying principles. The Court defined the contrast between the ‘essence of the rights test’ and
the ‘rights test,’ which in this context corresponds to the difference between the fundamental
principle supporting an express right and the express right stated in the constitutional text.

The Kesavananda Bharati case, according to the IR Coelho Court, could not be interpreted to
mean that fundamental rights are not a part of the basic structure. The Court could then continue
to develop its theme as a result of this. The IR Coelho Court wisely relies on Nagaraj to support
its conclusion that people’s fundamental rights are not gifts from the government but rather their
own. Part III only just confirms their core existence and grants people protection through it.
Therefore, every fundamental right in part III has “foundational value,” as per the Court.

The Court then identified Article 32 as part of the basic structure. It cited Minerva Mills and then
reiterated that Articles 14, 19, and 21, which were identified by the Court as the ‘golden triangle’
are also a part of the basic structure of the Constitution.

Case Laws

Shankari Prasad Case (1951)

 In this case, the SC contended that the Parliament’s power of amending the Constitution
under Article 368 included the power to amend the Fundamental Rights guaranteed in
Part III as well.

Sajjan Singh case (1965)

 In this case also, the SC held that the Parliament can amend any part of the Constitution
including the Fundamental Rights

 It is noteworthy to point out that two dissenting judges, in this case, remarked whether
the fundamental rights of citizens could become a plaything of the majority party in
Parliament.

Golaknath case (1967)

 In this case, the court reversed its earlier stance that the Fundamental Rights can be
amended.
  It said that Fundamental Rights are not amenable to the Parliamentary restriction as stated
in Article 13 and that to amend the Fundamental rights a new Constituent Assembly
would be required.

 Also stated that Article 368 gives the procedure to amend the Constitution but does not
confer on Parliament the power to amend the Constitution. This case conferred upon
Fundamental Rights a ‘transcendental position’.

 The majority judgment called upon the concept of implied limitations on the power of the
Parliament to amend the Constitution. As per this view, the Constitution gives a place of
permanence to the fundamental freedoms of the citizens.

 In giving to themselves the Constitution, the people had reserved these rights for
themselves.

Kesavananda Bharati case (1973)

 This was a landmark case in defining the concept of the basic structure doctrine.

 The SC held that although no part of the Constitution, including Fundamental Rights, was
beyond the Parliament’s amending power, the “basic structure of the Constitution could
not be abrogated even by a constitutional amendment.”

 The judgment implied that the parliament can only amend the constitution and not rewrite
it. The power to amend is not a power to destroy.

 This is the basis in Indian law in which the judiciary can strike down any amendment
passed by Parliament that is in conflict with the basic structure of the Constitution.

Basic structure of constitution according in the said case

1. Supremacy of the Constitution

2. Unity and sovereignty of India

3. Democratic and republican form of government

4. Federal character of the Constitution

5. Secular character of the Constitution

 6. Separation of power

7. Individual freedom

Indira Nehru Gandhi v. Raj Narain case (1975)

 Here, the SC applied the theory of basic structure and struck down Clause(4) of Article
329-A, which was inserted by the 39th Amendment in 1975 on the grounds that it was
beyond the Parliament’s amending power as it destroyed the Constitution’s basic
features.

 The 39th Amendment Act was passed by the Parliament during the Emergency Period.
This Act placed the election of the President, the Vice President, the Prime Minister and
the Speaker of the Lok Sabha beyond the scrutiny of the judiciary.

 This was done by the government in order to suppress Indira Gandhi’s prosecution by the
Allahabad High Court for corrupt electoral practices.

Minerva Mills case (1980)

 This case again strengthens the Basic Structure doctrine. The judgment struck down 2
changes made to the Constitution by the 42nd Amendment Act 1976, declaring them to
be violative of the basic structure.

 The judgment 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.

o 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.

o This was done in order to prevent them from being challenged in court.

o 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.

o 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 judgment 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 favor 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 judgment, 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 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.

Kesavananda Bharati Case Scope

On April 24, 1973, the landmark decision in the “Essential Features Case” was handed down. In
the official law reports, the verdict filled more than 700 densely printed pages. Despite its length,
Kesavananda is not regarded as a case that specifically addresses the issues raised by the parties;
rather, it takes on the duty of extensively describing the constitutional jurisprudence surrounding
amendments in the Indian legal system. The thirteen-judge Constitutional Bench responded with
eleven judgments, only two of which were written jointly by Shelat J. and Mukerjea J. (first) and
Hegde J. and Grover J. (second).

What is interesting to know about this case is that out of the 13 judges, 6 ruled in favor of the
petitioners while the other 6 ruled against them, leaving the 13th judge, Justice Khanna, with a
neutral position. He decided on a mid-away between the two conflicting opinions of the rest of
the judges. The most interesting part is that the opinion of Justice Khanna, to which none of the
other 12 judges fully agreed, has actually become the law of the land. He held that the power of
amending is limited and that Parliament is not enabled to alter the basic structure of the
Constitution. The substantive portion of Article 31-C, which repealed the fundamental rights,
was constitutional since it did not change the Constitution’s fundamental framework, which is its
basic structure. Whereas, the remaining part of the article which ousted the judicial jurisdiction
was held to be invalid. Lastly, on the issue of amending power under Article 368, he held that
parliament does not enjoy unlimited power in this situation either.

Twenty-fourth Amendment issue

In order to determine whether the Twenty-fourth Amendment is

constitutional, Kesavananda’s concept was immediately used. The arguments against a limitless
amending power were founded on the concern that, if given, the Fundamental Rights and other
important aspects of the Constitution may be in jeopardy. According to Seervai (the author), this
argument was refuted in the same way it always has by stating that, despite the fact that actual
abuse of power would be upheld, “the dread of abuse of power was not a justification against its
existence.”

In Kesavananda, the government argued that even though it had unlimited authority to change
the Constitution following the twenty-fourth Amendment and could eliminate human freedoms
under Article 31-C, the legislature would not exercise the authority. The Bench itself expressed
concern about this viewpoint because, if the argument of dread were to be followed to its logical
conclusion, many other significant parts of the Constitution would also have to be deemed
unamendable. Looking back, it appears that the Court reached the logical conclusion of the
debate but ultimately favored Privy Council’s position over the poet’s reflections. The Twenty-
fourth Amendment as a whole was upheld as legal. However, there was a condition that applied
to the use of the amending power under the revised Article 368: Parliament could only change
fundamental rights subject to the general constraint of the Constitution’s “basic structure” not
being amendable. Additionally, it was believed that the Golak Nath decision’s overturning
restored the pre-Golak Nath status quo, rendering the Twenty-fourth Amendment superfluous. In
this way, Kesavananda had accomplished for the government what the state had hoped to do
through the 24th Amendment.

Twenty-fifth Amendment

The following was upheld regarding the twenty-fifth Amendment, subject to some qualifications:

1. The courts could not address the issue of the sufficiency of the ‘amount’ payable for
property acquired or requisitioned, notwithstanding the fact that ‘amount’ was not the
same idea as ‘compensation.’ However, the ‘amount’ must, have some reasonable
relation to the original worth of the subject property and cannot be illusory or arbitrary.

2. The Amendment had brought things back to how they were before the Supreme
Court’s Golak Nath ruling when it was decided that Art 19 (1) (f) and Article 31(2) were
mutually exclusive, hence Article 19(1) (f) was not applied to a statute that was passed
under Article 31(2).

3. The first part of Article 31-C, which sought to shield laws from liability for violating
Articles 14, 19, and 31, was upheld because it defined a specific category of legislation
 intended to secure the obligation under Articles 39(b) and (c). As a result, no amendment
authority delegation was necessary.

4. Article 31-C’s second clause was declared unlawful. This decision was made with the
intention that while a law passed to implement Articles 39(b) and (c) would not have
been subject to a challenge under Articles 14, 19, and 31, the courts still had the authority
to determine whether the contested law actually accomplished the goals set forth in those
Articles or whether this privilege was being abused for a different reason. If the second
portion of Article 31-C had remained in effect, this would not have been possible. The
Court overturned it and declared that no legislature can, by its own proclamation,
establish a statute immune to legal challenges.

Twenty-ninth Amendment

The petitioners’ primary defense of the Twenty-ninth Amendment’s legality focused only on the
connection between Articles 31A and 31B. It was argued that Article 31B was closely related to
Article 31A and that only laws that fell under Article 31A could be listed in the Ninth Schedule
in accordance with Article 31B.

The State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga (1952), Visweshwar
Rao v. The State of Madhya Pradesh (1952), and N.B. Jeejeebhoy v. Assistant Collector, Thana
Prant, Thana (1964) were among the cases that the Court considered had already resolved the
same concerns raised in the present case. It was determined in each of these situations that
Article 31B stood alone from Article 31A. It was difficult to reopen a case that had been closed
for so long. However, the question of whether the Acts incorporated into the Ninth Schedule by
the Twenty-ninth Amendment or any of their provisions nullified any fundamental tenets of the
constitutional framework or stripped the Constitution of its distinctive character remained open
for the Court to resolve. A Constitution Bench was given the authority to rule on the Twenty-
sixth Amendment’s constitutionality and determine if it is consistent with Kesavananda’s ruling.

Significance of the case

Kesavananda’s ruling was most significant in the following ways:

 1. In the earlier judgments, the judiciary opined that there are several other provisions of the
Constitution that are equally significant, if not more, then in the same manner as the
fundamental rights. However, Golak Nath had restricted such comprehension to solely
fundamental rights. Kesavananda identified some more elements as constituting the
“basic structure” of the Constitution, which cannot be altered by a constitutional
amendment.

2. All of the fundamental rights were rendered non-amendable by Golak Nath, which many
people, including the government, viewed as an overly rigorous formulation. In this
regard, Kesavananda introduced some flexibility and asserted that not all FR’s en
bloc are a part of the Constitution’s fundamental design. Only those FRs that are
considered to be a component of the ‘basic structure’ are non-amendable.

Few Other Features of Basic Structure of Constitution

Rule of law

Judicial review

Parliamentary system

Rule of equality

Harmony and balance between the Fundamental Rights and DPSP

Free and fair elections

Limited power of the parliament to amend the Constitution

Power of the Supreme Court of India under Articles 32, 136, 142 and 147

Power of the High Court under Articles 226 and 227

Conclusion

The doctrine of basic structure is very significant to the Constitution of India as it protects the
Constitution from the misuse by the Parliament of its power to make amendments to the
Constitution. Due to this doctrine, Parliament cannot amend the Constitution as per their whims
and fancies.