Basic Structure Doctrine of Indian Constitution

The Basic Structure Doctrine is a foundation stone in comprehending the vitality and plastic nature of our Constitution. This doctrine, established by the Indian Supreme Court serves as a guiding principle. It protects Constitution’s basic structure against amendments that might change its essential concepts. But defining the core of Basic Structure Doctrine reveals the crux of India’s constitutional spirit and its promise to defend democratic values, rights, and rule by law. This article discusses the Basic Structure Doctrine in India, a constitutional principle that limits Parliament’s power to amend fundamental aspects of the Constitution, preserving its core principles.

Basic Structure Doctrine of Indian Constitution

Evolution of Basic Structure Doctrine

The faith in the doctrine was thus affirmed and established by Indra Nehru Gandhi v. Raj Narain (S). Here, the appellant had appealed against an order of Allahabad High Court declaring invalid her election as Prime Minister. In the middle of petitioning, an act for the 39th amendment to Constitution phrase that no court has jurisdiction over a dispute in relation to election procedures concerning President or Prime Minister was promulgated and took effect.

The Hon’ble Supreme Court, relying on the decision of Kesavananda Bharati stated that democracy is constitutional in character and forms part of basic structure. The bench added certain other features to the list of the basic structure, which was: Rule of Law and the power of Judicial Review.

Such a basic structure, then came to light in the matter of Minerva Mills Ltd. v. Union of India when the Supreme Court crystallised the doctrine and held that this power amending under Article 368 is limited while absolute exercise thereof cannot be envisioned at all. The basic structure doctrine of the Constitution included a limited amending power as part. Furthermore, the harmony and balance between fundamental rights and directive principles is also a part of basic structure. Anything that would destroy this balance in itself constitutes an ipso facto violation of doctrine.

In the case L. Chandra Kumar v. Union of India, it again reaffirmed that powers under Article 32 (for disputes involving infringements upon rights guaranteed in Part III) and Article 226 are included within basic structure doctrine; they cannot be attenuated or watered down by being handed over to administrative tribunals for determination.

Evolution of the Basic Structure Concept

The concept of the basic structure of the constitution evolved over time. In this section, we shall discuss this evolution with the help of some landmark judgement related to this doctrine.

Name of the case	Year
Shankari Prasad Case	1951
Berubari Union Case	1960
Sajjan Singh case	1965
Golaknath case	1967
24th Constitution Amendment Act	1971
Kesavananda Bharati vs. State of Kerala	1973
Indira Nehru Gandhi v. Raj Narain case	1975
42nd Amendment Act	1976
Minerva Mills case	1980
Waman Rao Case	1981
Indra Sawhney versus Union of India	1992
Kihoto Hollohan Case	1993
S.R. Bommai case	1994

Shankari Prasad Case – 1951

One of the early cases, on Hon’ble Supreme Court setting about developing basic structure doctrine in India is that of Shankari Prasad. In this case, the court was dealing with constitutionality of First Amendment Act 1951 which affected fundamental right under article 300A relating to property. Upholding the amendment, the Supreme Court opined that the Parliament had the power under Article 368 to modify any part of the Indian Constitution by way of constitutional amendment, including the fundamental rights. Thus, the position of law after this judgment was that the State had the power to take away/restrict the fundamental rights of people through a constitutional amendment and such an amendment would not be even nullified by Article 13 of the Indian Constitution.

• A court case where Shankari Prasad and others challenged the government of India in 1951 about certain issues related to citizenship rights.In this instance, the legality of the First Amendment Act (1951) was questioned.
• The Supreme Court said that the power of Parliament, using Article 368 in their rules, can also change Fundamental Rights.The word ‘law’ in Article 13 covers just normal laws and not changes to the constitution (laws made by a country).
• So, the Parliament can remove or reduce any Basic Rights by passing a law that changes the constitution. Such laws cannot be thrown out under Article 13.

Berubari Union Case – 1960

• The Supreme Court said in the Berubari Union case (1960) that according to it, the Preamble shows what they were trying to achieve with different parts of their constitution. So it helps us understand better how this part was made.
• Additionally, when the words in any article are unclear or can have more than one meaning, a little help with understanding might be taken from the goals written down in the Preamble.
• Even though people know the Preamble is important, the Supreme Court said clearly that it isn’t part of the Constitution.

Sajjan Singh Case -1965

It was during this period of agrarian reforms in India that the Parliament passed the Constitution (Seventeenth Amendment) Act, 1964 to amend Article 31A and make a number of statutes fall within the scope on Ninth Schedule. Faced with the amendment, petitioners in this case argued an issue as to whether a fundamental right could be overridden by article 368 of constitution and challenged constitutionality. Relying the constitutional amendment and Shankari Prasad judgment, majority view defined that further provisions of fundamental rights could also be modified by Parliament prospectively as well retrospectively in pursuance to powers under Article 368. However, referring to the dissenting opinion Justice Mudholkar and Hidayatullah held that basis of nomenclature ‘fundamental rights’ denoted such basic features inherent in every individuals right which could not be modified.

In this case also, the SC held that the Parliament can amend any part of the Constitution including the Fundamental Rights. It is of particular significance that two dissenting judges in this case asked whether the fundamental rights of citizens could become a toy for majority party members in Parliament.

Golaknath case – 1967

• This time, the court overturned its previous decision that claims of Fundamental Rights can be repealed.
• It argued that the Fundamental Rights are not subject to parliamentary restrictions as enunciated in Article 13 and if it were sought by Parliament to amend the Fundamental rights a new Constituent Assembly would be needed.
• It was also said that Article 368 provides a procedure for amendment of the Constitution but does not confer on Parliament any power to alter it.This case conferred upon Fundamental Rights a ‘transcendental position’.
• The majority judgement 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.
• The top court decided that Parliament can’t take away or lessen any of the Basic Rights.
• The Court said that the basic rights cannot be changed to put Directive Principles into action.
• To the 1967 High Court decision in the Golaknath Case, this government response took form as a two law measures christened; The 24 th Amendment Act (1971)
• Under its 24th Amendment Act, the government could restrict or erase any of your fundamental rights by adopting laws called Constitutional Amendments.
• The 25th Amendment Act inserted a new Article 31C which contained the following two provisions: No law that tries to put into action the socialist ideas in Article 39 (b) and (c) will be useless just because it goes against fundamental rights given by Article 14, Article 19 or Article.

24th Constitution Amendment Act – 1971

• The government passed the 24th amendment act to get around Golaknath judgement limits, which introduced a provision into Article
• It also provided that the President must assent to all Constitution Amendment bills forwarded to him.

Kesavananda Bharati vs. State of Kerala – 1973

• On the other hand, Supreme Court decided that Parliament could change any part of constitution so long as it did not touch its basic structure.
• The Court laid the basis of constitutionalism.
• Thus this landmark judgment implied that every provision of the Constitution can be amended but these amendments are subject to judicial review in order to detect whether they affect or not Iraqi constitution’s Basic Structure.

Indira Nehru Gandhi v. Raj Narain case – 1975

Instead, basic structure doctrine was entrenched far before it Kesavananda Bharati case had been established that nothing in constitution can be altered in any fashion. However within just two years, the problem resurfaced yet another one Indira Gandhi versus Raj Narain case bothered the court The particulars were that Allahabad High court rescinded petitioner’ election on ground of bribery and cheating. Thus, Parliament passed the 39^{th} Constitutional Amendment Act in order to render null and void such a judgment. Amendment made judgment of the former Allahabad High Court invalid in light that judicial review could never be used against President, Vice-President, Prime Minister and Lok Sabha Speaker.The Amendment provided that the President, the Vice President, the Prime Minister and the Speaker of the Lok Sabha could not be subjected to the judicial review, thereby nullifying the effect of the Allahabad High Court judgment. Eventually, the Amendment was constitutionally challenged contending whether it was permissible to nullify the effect of the judgment and also affect the procedure concerning elections. The Supreme Court held that free and fair elections form part of the basic structure doctrine and hence, the clause was held to be invalid. Further, the Court added a few more elements to the doctrine, one of which was democracy implying free and fair elections. Other elements included judicial review, rule of law and Article 32 empowering the Supreme Court.

42nd Amendment Act – 1976

• The Amendment Act of the Constitution in 1976 nullified Article368 with respect to parliament limiting constituent power.
• Nowhere there was a room to doubt constitutional amendments by judge with the mini-constitution its name, which made huge number of changes in an original constitution.

Minerva Mills case -1980

• This case again strengthens the Basic Structure doctrine. The justification struck down 2 amendments made to the Constitution through the 42 Amendment Act in 1976 as hit unto basic structure.
• The judgement shows that the constitution is supreme and not parliament.
• 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.
• The Supreme Court has laid down that though Parliament may alter any other part of the Constitution, it just cannot change its “basic structure”.
• In the Minerva Mills case, the Supreme Court said that ‘India’s Constitution is built on two pillars: important rights and guiding ideas.
• They together make up the main part of their promise to social change.
• The Directive Principles need to be accomplished without breaking the methods given by Fundamental Rights.
• Right now the situation is that Basic Rights are more important than Directive Principles.
• This does not mean that the Directive Principles can’t be put into action.
• The Parliament can change the Basic Rights to put into action the Guiding Principles as long as it doesn’t hurt or ruin this main structure of our Constitution.

Waman Rao Case (1981)

• The SC again reiterated the Basic Structure doctrine.
• It also made a cut off as April the 24th, 1973 i.e., date of Kesavananda Bharati judgement and stated that it should not be used backward (retrospective) to reopen discussion on validity of any amendment taken place prior to such a day in future
• In the case of Kesavananda Bharati, the petitioner had challenged Constitution (29th Amendment) Act 1972 by which Kerala Land Reforms Act and its amending act were placed in nineth Schedule.
• The 9 th Schedule was added to the Constitution with Article 31-B as a protective umbrella of land reforms laws by First Amendment in delegating powers under article
• This was to avoid them being sued in court.
• Article 13 (2) states that there shall be no law in the state which is anti fundamental rights and any law made under contravention of fundamental right will stand void.
• 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.
• Based on the Waman Rao case, amendments to 9 th Schedule legislations up until Kesavananda judgement are lawful and those passed after that date might be tested.

Indra Sawhney versus Union of India – 1992

• SC looked at the ambit of Article 16 (4) that mandates reservations for backward classes vis-à-vis jobs. It made their 27% reservation for the OBCs valid in terms of Constitution with certain provisos (conditions).
• In this case, Rule of Law was included in the list of constitution structure´s principles.

Kihoto Hollohan Case -1993

• Popularly known as the Defection case, the Supreme Court added Free and fair elections, Sovereign, Democratic and Republican structure to the Basic Structure of the Constitution.

S.R. Bommai case – 1994

• In this judgement, 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.

Significance of the Basic Structure Doctrine

Promotes Constitutional Ideals: The basic structure tries to maintain the fundamental concepts and constitutional ideals that were envisioned by our founding fathers

Maintains Supremacy of the Constitution: The doctrine has also ensured that the Constitution is preserved from destruction by a passing majority in Parliament.

Separation of powers: Basic Structure strengthens our democracy by delineating a true separation of power where the Judiciary is independent of the other two organs.

According to Austin: Basic Structure Doctrine has achieved a balance between the roles of Parliament and Supreme Court in safeguarding seamless web of the Indian Constitution.

Protects Fundamental Rights: Basic Structure ensures that the basic rights of citizens are not violated and authoritarianism by legislature is avoided.

Constitution as a living document: Given its dynamic nature, it is much more progressive and open to evolution with the passage of time rendering constitution a living document.

Criticisms of Basic Structure Doctrine

Some grounds for the criticism of Basic Structure doctrine are

Inconsistent with the principle of separation of powers: However, a system of checks and balances is deemed healthy only when the power held by one branch do not get taken over from another. A court can reverse a constitutional amendment but not revise it.

Vagueness and elusiveness of the Basic features of the Constitution: There is no definite elucidation on what exactly constitutes Basic Structure, thereby making the doctrine ambiguous.

Translates judiciary into the third decisive chamber of parliament: By invoking the Basic Structure doctrine, the Judiciary acts as the third house and thereby renders the work done by the Parliament meaningless.

Judicial Overreach: In more recent years, it has been referred to in cases which have passed as examples of judicial over-reach. Ex: Based on this doctrine, the Supreme Court invalidated National Judicial Appointment Commission Act 2014.

Frequently Asked Questions

What is the Basic Structure Doctrine?

Basic Structural Doctrine is a constitutional principle which holds that Parliament does not have power to change some basic aspect in Constitution.

What was the development of Basic Structure Rule?

But the doctrine of basic structure was conceived in Kesavananda Bharati case by India’s Supreme Court which came from year 1973.

How is basic structure defined? Is there a definitive list?

No, there’s no complete list. The court has pointed out that some of the features such as supremacy, democracy and federalism etc which should be catered for in its structure.

What does the Basic Structure Doctrine make of constitutional amendments?

Therefore, the role of court is to tame amendment power and check it against issuing alterations which affect fundamental structure.

Does this mean that the Basic Structure Doctrine can be adaptable or amendable?

This interpretation and implementation however may change under other court orders.