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Evolution of Concept of Basic Structure

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  • Last Updated : 21 Oct, 2021

The Indian Constitution does not provide the term ‘Basic Structure‘. The term Basic question which arose in the series of judgements made by the Supreme Court was whether the Fundamental Rights were amendable so as to take away or abridge any Fundamental Right provided by The Constitution of India. At That time the questionnaire and decisions and few amendments constituted the term Basic Structure when Fundamental rights and their violation came up in question by amendments made by the parliament of India. Through a series of decisions, it has been settled by the Supreme court that what is the basic structure in general and what constitutes it.

The main object of the Basic structure is to protect the fundamental rights of citizens of India and to preserve the main character of the Indian Constitution provided in the Preamble of the Indian Constitution like to preserve the democracy of India and the main spirit of the Indian Constitution. The parliament should make amendments in such a manner so that it does not affect the Basic Structure of the Constitution.

It would be pertinent to see whether the doctrine of basic structure provides an answer to the question: “If the whole constitution cannot be repealed, how much of it must be left ?”  What, Article 393 states, that means, If parliament made an amendment then what remains should be a constitution. The answer to the question is not to be found in Article 368, the basic structure doctrine tries to provide an answer to the same.

In Keshvanand Case(1973) it was held that the essential features of the Constitution as a part of the basic structure of the Constitution can not be amended. Even the Fundamental rights can be abridged only to the extent of reasonableness in the public interest.

The Supreme Court gave an illustrative list of certain features which are regarded as the Basic Structure of the Constitution, they are:-

  • The sovereignty of the constitution.
  • Republic as well as a democratic form of government.
  • Secularism.
  • Power’s separation between Legislative, Executive & the Judiciary.
  • Federalism of the Constitution.
  • Part 3 of the Constitution i.e. Fundamental Rights

This list is merely illustrative and it is for the courts to decide what is the basic structure of the Constitution on a case to case basis.

Basic structure’s Evolution Step by Step:

The basic issue that arises to the amendment has been as to whether the fundamental rights can be amended by the parliament or not? Article 13 clause 2 on the one hand, says that the parliament can not make a law that takes away or abridges the fundamental rights, on the other hand, Article 368 gives the parliament the power to amend the fundamental rights by a special majority in the parliament. The question is: Can the Parliament exercise its power under article 368 so as to nullify the effect of Article 13 clause 2? Does one of the above articles prevail over the other or is it that we have to give a harmonious construction to both of them so as to render them mutually coexist in light of each other.

By The First Amendment of the Constitution, Parliament abridged the Right to property (Fundamental Rights) by inserting Article 31-A and Article 31-B. That amendment created chaos between the Judiciary and Parliament. It generally seems that Parliament tries to abridge or limit the fundamental rights but Judiciary always interferes to protect the Fundamental Rights. And by the number of judgements, the Court gives views on the basic structure of the Indian Constitution.

The resolution of this basic issue has passed through phases of judicial development as follows:

  1. First amendment to Shankari Prasad Case. (1951)
  2. Seventeenth amendment to GolakNath case. (1967)
  3. Twenty Fourth Amendment to Keshvanand Bharti Case(1973).
  4. Forty-second amendment to Minerva Mills Case. (1980)

Let’s move to the brief description of evolution step by step by amendments and judicial review.

1. Shankari Prasad V. Union of India (1951):

Therein the validity of the Constitution first amendment act, 1951, which inserted Article 31-A & 31-B, curtailing the Fundamental Right to property was challenged. These articles had been introduced in Part 3 in order to nullify the Supreme Court ruling that the Bihar Land Reforms Act, 1950 was violative of Article 14. Justice Patanjali Shastri, by a majority, held that the word ‘law‘ under Article 13(2) includes only ordinary law made in the exercise of legislative powers and does not include any constitutional amendment which is held in the constituency’s exercise. The power of Article 368 is general and it gives the power to Parliament to amend the Constitution even if it violates the Fundamental Rights.

2. Golak Nath Case(1967):    

The seventeenth amendment by parliament inserted 44 laws in the 9th schedule to abolish the Zamindari system. (Now the question is what is the 9th schedule, so in short, 9th schedule is that part of the constitution that if any laws are inserted in the 9th schedule then it can not be challenged in any Courts of India.)

Later, this was challenged in Sajjan Singh v. State of Rajasthan, AIR 1965 SC, Supreme Court approved the majority judgement in Shankari Prasad’s case and held that ‘amendment of the Constitution’ means amendment of all parts of the Constitution. If the Constitution makers intended to exclude the Fundamental Rights from the scope of the amending, they would have made a clear provision on that behalf. The majority of that bench refused to accept the argument that Fundamental rights were constant, untouched and far off the reach of Article 368. Thus, the Shankari Prasad case was upheld. 

Subsequently, it was again challenged in Golak Nath v. State of Punjab, AIR 1967 SC, an 11 judge bench was constituted to reconsider the matter and Chief Justice Subba Rao speaking for the majority held that Power to amend the Constitution was not a sovereign power, it was also subject to Judicial Review. The Court observed that Article 368 provides the only procedure to amend the Constitution & the power to amend the Constitution is found in residuary legislative power under article 248. The term ‘law‘ under article 13(2) includes statutory as well as constitutional laws and amendment is law within Article 13(2), hence if it violates any fundamental rights, it is void as per Article 13(2). This case overruled both Shankari Prasad & Sajjan Singh’s case. The court shrank from the grave consequences of the judgement and therefore used the doctrine of prospective overruling i.e. previous amendments made was held valid but after this judgement passed this new rule will apply.

3. Keshwanand Bharti case(1973):

The Parliament could not acquiesce to this situation and the 24th amendment was brought to suppress the GolakNath’s case. By the 24th amendment, parliament added a new clause (4) to Article 13 which states that Nothing in this Article shall apply to the Constitutional amendment under Article 368. And new clause (3) was added to article 368 which was in correspondence to article 13(4) & Clause (1) was also added to article 368 which made constituent power no anymore an ordinary power, it had wide power to repeal, amend, variate any provision of the constitution and also new clause (2) was added to article 368 which replaces the word ‘may’ by ‘shall’ for President’s assent and all this amendment was intentionally made to nullify the GolakNath’s case. Later, a few more amendments like the 25th amendment & 29th amendment were made.

Subsequently, the 24th Constitutional amendment Act, 1971 was challenged in the Landmark judgement of Keshvananda Bharti V. State Of Kerala, AIR 1973 SC, Supreme Court overruled the GolakNath’s Case and upheld the validity of 24th amendment & 25th amendment. The Supreme Court held that the power to amend the Constitution is found itself in Article 368 even before the 24th amendment. The 24th amendment merely made it definite and easy. 

However, the court held that parliament had the power to amend any provision of the constitution but it was limited to one limitation and that is the ‘Basic Structure’. And it will be based on case to case & will be decided by the Court what is the basic structure under the Constitution. Every majority judge accepted the basic structure doctrine and hence, the Basic Structure of the Constitution was finally introduced in this Landmark judgement.

4. Minerva Mill’s case(1980):

Later, Parliament passed 42nd Constitutional Amendment Act, 1976 to nullify the judgement passed in the Keshvanand Bharti case and by this amendment new clauses (4)&(5) were inserted into Article 368. These clauses basically provided that No amendment made can be called in question in any court(4) and Parliament’s power to amend any part of the Constitution has no limitation(5). Later, it was challenged in Case Minerva Mills v. Union of India, AIR 1980 SC, and Supreme court held both Clauses be invalid on the grounds that Judicial Review is also Basic Structure and no amendment can destroy the basic structure. Limited power to amend the Constitution is itself a basic structure and as clause(5) gives unlimited power so it was held violative of Basic Structure.                            

Conclusively, there are many cases and the amendment made which creates chaos on the term Basic structure between parliament and judiciary, as to who is superior for making laws, However, if any law which will affect the basic structure of the Indian Constitution then it is Judiciary which will apply it’s judicial mind and would prevail it’s a judicial review on such law. Hence, the Basic Structure of the Indian Constitution is the main reason which preserves Fundamental Rights, Sovereignty, secularism etc which are included in it by the court time by time. At present time there is no dispute as to the existence of the Basic Structure, only questions arise as to what comes in it or what not.

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