Overview: The Doctrine of Basic Structure of the Constitution, as established by the Kesavananda Bharati judgment, places limitations on Parliament's authority to make significant amendments that could undermine the core principles enshrined in the Constitution, such as secularism and federalism.

It also affirmed the Supreme Court's authority to review parliamentary laws judiciously. This doctrine introduced the concept of a clear separation of powers among the three branches of government: the legislative, executive, and judiciary.

In this Blog we will cover:

• Background on Basic Structure Doctrine
• The Judgements of Indian Constitution
• Notes on Basic Structure Doctrine (Download)

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Key tenets of the Doctrine of Basic Structure include:

Parliament's power to amend the Constitution is subject to one significant restriction: it must not dilute or violate the fundamental structure of the Constitution. Amendments should not disrupt or undermine this core structure.

The evolution of the Doctrine of Basic Structure can be traced through several key legal cases:

1. Shankari Prasad vs. Union of India (1951): The Supreme Court initially ruled that Parliament, under Article 368, had the authority to amend any part of the Constitution, including fundamental rights.
2. Sajjan Singh vs. State of Rajasthan (1965): The Supreme Court upheld the Shankari Prasad judgment, affirming Parliament's authority to amend the Constitution.
3. Golak Nath vs. State of Punjab Case (1967): In this landmark case, the Supreme Court overturned the Shankari Prasad judgment, asserting that Article 368 merely outlined the procedure for amending the Constitution and did not grant unrestricted power to Parliament.
4. 24th Constitution Amendment Act (1971): To circumvent the constraints imposed by the Golaknath judgment, the government enacted this amendment, explicitly stating that Parliament had the power to curtail fundamental rights.
5. Kesavananda Bharati vs. State of Kerala (1973): In this pivotal case, the Supreme Court upheld the validity of the 24th Constitution Amendment Act while introducing the concept of the "Basic Structure of the Constitution." This doctrine meant that while Parliament could amend any provision of the Constitution, amendments could be subject to judicial review to ensure the Basic Structure remained intact.
6. 42nd Amendment Act (1976): The government introduced this amendment, which sought to limit judicial review of constitutional amendments. However, it was partially invalidated by the Supreme Court in the Minerva Mills case (1980).
7. Minerva Mills vs. Union of India (1980): The Supreme Court ruled that Parliament could not curtail the power of judicial review, as it was an essential part of the Basic Structure.
8. Waman Rao vs. Union of India (1981): This case introduced the "Doctrine of Prospective Overruling," indicating that laws placed under the Ninth Schedule before the Kesavananda judgment could not be challenged for violating fundamental rights, but laws passed afterward could be questioned.

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The situation before the Kesavananda Bharati judgment:

As early as 1951, challenges arose regarding Parliament's authority to amend the Constitution, particularly concerning citizens' fundamental rights. After gaining independence, several states enacted laws aimed at reforming land ownership and tenancy structures to align with the socialist goals of the Constitution.

These goals, outlined in Article 39(b) and (c) of the Directive Principles of State Policy, called for the equitable distribution of production resources among all citizens and the prevention of wealth concentration.

Property owners adversely affected by these land reform laws sought redress in the courts.

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The courts, in response, invalidated these laws, asserting that they encroached upon the fundamental right to property guaranteed by the Constitution. In reaction to these unfavorable judgments, Parliament strategically placed these laws in the Ninth Schedule of the Constitution through the First and Fourth Amendments in 1951 and 1952, respectively. This maneuver effectively shielded them from judicial review.

The Ninth Schedule was introduced into the Constitution via the initial amendment in 1951 as a means of safeguarding specific laws against judicial scrutiny.

Under the provisions of Article 31, subsequently amended multiple times, laws included in the Ninth Schedule—primarily related to the acquisition of private property and compensation for such acquisition—were immune from legal challenges asserting violations of citizens' fundamental rights.

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This protective measure encompassed over 250 laws passed by state legislatures with the intent of regulating landholding size and abolishing various tenancy systems. The primary objective of creating the Ninth Schedule was to prevent the judiciary, which had previously upheld citizens' property rights on several occasions, from obstructing the social revolution agenda of the Congress party-led government.

Property owners once again contested the constitutional amendments that placed land reform laws in the Ninth Schedule before the Supreme Court.

They argued that these amendments violated Article 13(2) of the Constitution, which safeguards citizens' fundamental rights. Article 13(2) explicitly prohibits Parliament and state legislatures from enacting laws that could diminish or infringe upon these fundamental rights.

They contended that any amendment to the Constitution should be considered a "law" as understood by Article 13(2).

In 1952, in the case of Sankari Prasad Singh Deo v. Union of India, and in 1955, in Sajjan Singh v. Rajasthan, the Supreme Court rejected both arguments. The Court upheld Parliament's authority to amend any part of the Constitution, including provisions affecting citizens' fundamental rights.

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However, it is noteworthy that in the Sajjan Singh v. Rajasthan case, two dissenting judges expressed concerns about whether the fundamental rights of citizens could be subject to the whims of the majority party in Parliament.

Subsequent cases further clarified and expanded the Basic Structure Doctrine:

• Indra Sawhney & Others vs. Union of India (1992): The Mandal case declared the "Rule of Law" as a Basic Structure of the Constitution.
• Kihoto Hollohan Case (1993): The Defection case added "Free and fair elections," "Sovereign," "Democratic," and "Republican structure" to the Basic Structure.
• S.R. Bommai vs. Union of India (1994): This case affirmed "Federalism," "Secularism," and "Democracy" as components of the Basic Structure.

The Basic Structure Doctrine's significance lies in several key aspects:

• Promoting Constitutional Ideals: It aims to preserve the constitutional principles and ideals envisioned by the Constitution's framers.
• Maintaining Constitutional Supremacy: The doctrine safeguards the Constitution from being undermined by temporary parliamentary majorities.
• Ensuring Separation of Powers: It strengthens democracy by delineating a clear separation of powers, with an independent judiciary.
• Protecting Fundamental Rights: The Basic Structure Doctrine safeguards citizens' fundamental rights against legislative arbitrariness and authoritarianism.
• Constitution as a Living Document: It allows for adaptability and evolution, making the Constitution a dynamic and progressive document that can respond to changing times.

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The Genesis of the Basic Structure Concept - the Kesavananda Landmark

The constitutional validity of these amendments inevitably faced a challenge before a full bench of the Supreme Court, consisting of thirteen judges. The outcome of this case can be found in eleven distinct judgments. It's worth noting that there were disparities between the points outlined in the summary statement signed by the judges and the opinions expressed in their individual judgments. Nonetheless, the seminal concept of the 'basic structure' of the Constitution gained prominence in the majority verdict.

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All judges concurred on the validity of the Twenty-fourth amendment, asserting that Parliament possessed the authority to amend any or all provisions of the Constitution. The signatories to the summary held that the Golaknath case had been incorrectly decided and that Article 368 encompassed both the power and procedure for amending the Constitution.

However, they clarified that an amendment to the Constitution differed from a law as defined in Article 13(2).

[It's essential to highlight the subtle distinction between two functions performed by the Indian Parliament:

a) It can legislate for the nation by exercising its legislative power and

b) It can amend the Constitution by exercising its constituent power.

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The constituent power holds precedence over ordinary legislative power. Unlike the British Parliament, which is sovereign (in the absence of a written constitution), the powers and functions of the Indian Parliament and State legislatures are subject to constraints specified in the Constitution.

The Constitution does not encompass all the laws governing the country. Parliament and state legislatures enact laws as needed on various subjects within their respective domains. The Constitution furnishes the general framework for formulating these laws.

Parliament alone is granted the authority to modify this framework under Article 368. Unlike regular laws, amending constitutional provisions mandates a special majority vote in Parliament.

Another example illustrates the difference between Parliament's constituent power and legislative powers. According to Article 21 of the Constitution, no individual in the country may be deprived of their life or personal liberty except as per the procedure established by law.

The Constitution does not specify the procedural details, as this responsibility falls to the legislatures and the executive. Parliament and state legislatures enact the necessary laws that define unlawful activities for which an individual may be incarcerated or sentenced to death.

The executive determines the procedure for implementing these laws, and the accused person is tried in a court of law. Changes to these laws may be enacted with a simple majority vote in the respective state legislature. There is no requirement to amend the Constitution to introduce changes to these laws.

However, if there is a demand to elevate Article 21 to a fundamental right to life by abolishing the death penalty, Parliament may have to amend the Constitution appropriately using its constituent power.

Most notably, seven of the thirteen judges in the Kesavananda Bharati case, including Chief Justice Sikri, who signed the summary statement, asserted that Parliament's constituent power was subject to inherent limitations. Parliament could not employ its amending authority under Article 368 to 'damage,' 'emasculate,' 'destroy,' 'abrogate,' 'change,' or 'alter' the 'basic structure' or framework of the Constitution.

Basic Features of the Constitution as per the Kesavananda verdict

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Each judge separately enumerated what they believed constituted the fundamental or essential features of the Constitution. Within the majority view, there was no unanimous opinion.

Chief Justice Sikri explained that the concept of the basic structure encompassed:

• Supremacy of the Constitution

• Republican and democratic form of government

• Secular character of the Constitution

• Separation of powers among the legislature, executive, and judiciary

• Federal character of the Constitution

Justices Shelat and Grover added two more basic features to this list:

• The mandate to establish a welfare state contained in the Directive Principles of State Policy

• Unity and integrity of the nation

Justices Hegde and Mukherjea identified a more concise list of basic features:

• Sovereignty of India

• Democratic character of the polity

• Unity of the country

• Essential elements of individual freedoms guaranteed to citizens

• The mandate to establish a welfare state

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Justice Jaganmohan Reddy stated that components of the basic features were found in the Preamble of the Constitution and the provisions derived from it, such as:

• • Sovereign democratic republic
• • Parliamentary democracy
• • Three organs of the State

He argued that the Constitution would lose its essence without fundamental freedoms and the directive principles.

Only six judges on the bench, constituting a minority view, agreed that the fundamental rights of citizens were part of the basic structure and could not be amended by Parliament.

Golak Nath v. the State of Punjab: In this case, three writ petitions were consolidated. The first, filed by the children of Golak Nath, challenged the inclusion of the Punjab Security of Land Tenures Act, 1953, in the Ninth Schedule. The other two petitions contested the inclusion of the Mysore Land Reforms Act in the Ninth Schedule.

This landmark decision was rendered by an 11-judge bench, and by a narrow majority of 6:5, the Hon’ble Supreme Court ruled that fundamental rights fell outside the scope of constitutional amendment. The judgment was based on the following key points:

1. Parliament's authority to amend the Constitution is not solely derived from Article 368 but also from Article 245, in conjunction with Entry 97 of List I of the Constitution. Article 368 merely deals with the procedural aspects of amendments.
2. The Court clarified that the term 'law' in Article 13(2) encompasses constitutional amendments. Therefore, any amendment infringing upon fundamental rights would be deemed void.
3. The argument that the power to amend the Constitution is sovereign and beyond judicial review was rejected.

However, the Court did not invalidate the 1st, 4th, and 17th Amendments but gave its ruling a prospective effect. This meant that no future amendments could violate fundamental rights. Additionally, the Court declared that the judgments in the Shankari Prasad and Sajjan Singh cases were incorrect in holding that Article 13(2) did not cover constitutional amendments under Article 368.

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Constitution 24th Amendment: The Golak Nath case restricted Parliament's ability to freely amend the Constitution. To restore its powers, the 24th Constitutional Amendment was enacted. This amendment not only reinstated Parliament's authority but also expanded it. The key changes brought about by this amendment included:

1. Adding a new clause (4) to Article 13, stating that Article 13 would not apply to any amendment made under Article 368.
2. Changing the marginal heading of Article 368 from 'Procedure for amendment of the Constitution' to 'Power of Parliament to amend the Constitution and Procedure, therefore.'
3. Introducing a new sub-clause (1) to Article 368, emphasizing Parliament's Constituent Power to amend, add, vary, or repeal any constitutional provision, following the prescribed procedure.
4. Modifying the language regarding the President's assent to constitutional amendment bills.
5. Including clause (3) in Article 368, reiterating that Article 13 would not apply to amendments made under this article.

Kesvananda Bharati v. the State of Kerala: Originally filed to challenge the validity of the Kerala Land Reforms Act of 1963, this case gained significance when the 29th Amendment placed it in the Ninth Schedule. The petitioner was allowed to challenge not only the 29th Amendment but also the validity of the 24th and 25th Amendments.

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In a historic ruling by a 13-judge bench, with a majority of 7:6, the Golak Nath case was overruled. The Court held that while Parliament possessed broad powers to amend the Constitution, it could not, in doing so, destroy its basic features or fundamental framework.

Conclusion:

The basic structure doctrine safeguards the core principles of the Indian Constitution from arbitrary amendments. Over time, the judiciary has clarified and expanded the doctrine, asserting that amending powers are not absolute and must not infringe upon the Constitution's basic features. This doctrine plays a vital role in upholding the democratic and constitutional values of India.