BASIC STRUCTURE DOCTRINE

The Parliament has the power to make law within its jurisdiction, but this power is
not absolute. To preserve the ideals and philosophy of the original constitution, the Supreme
Court has laid down the basic structure doctrine. The doctrine allows the Supreme Court to
strike down any amendments that may alter the ‘basic structure’ of the constitution. This
doctrine is only applicable in the situation of Constitutional Amendments. The judiciary has
not defined what exactly are the basic structure of the constitution are, but they are deemed
by the Court on a case to case basis.

The concept of the Basic Structure Doctrine was recognised for the first time in the landmark
case of Kesavananda Bharati vs. State of Kerala1. The court by majority overruled
the Golak Nath case which denied parliament the power to amend fundamental rights of the
citizens. The majority held that article 368 even before the 24th Amendment contained the
power as well as the procedure of amendment. The Supreme Court declared that Article 368
did not enable Parliament to alter the basic structure or framework of the Constitution and
parliament could not use its amending powers under Article 368 to ‘damage’, ’emasculate’,
‘destroy’, ‘abrogate’, ‘change’ or ‘alter’ the ‘basic structure’ or framework of the
constitution. This decision is not just a landmark in the evolution of constitutional law, but a
turning point in constitutional history.

Effect of the Kesavananda Bharati Case

A 13 judge Constitutional bench, in 1973 reviewed the decision of Golaknath and held that
no part of the constitution, including fundamental rights, was beyond the amending power of
Parliament, thus effectively overruling Golaknath. One major outcome of the judgment
delivered was the definition of ‘basic structure’ by the judges. Each of the judges, separately
put out what they thought were the basic features of the constitution. These are only
illustrative, and not exhaustive.

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

1
((1973) 4 SCC 225)
  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 three more basic features to this list:

 The mandate to build a welfare state contained in the Directive Principles of State
Policy.

 Unity and integrity of the nation.

 Sovereignty of the country.

Justice Hegde and Justice Mukherjea identified a separate and shorter list of basic features:

 Sovereignty of India

 Democratic character of the polity

 Unity of the country

 Essential features of the individual freedoms secured to 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 -

 Sovereign democratic republic.

 Justice - social, economic and political.

 Liberty of thought, expression, belief, faith and worship.

 Equality of status and the opportunity.

The doctrine of Basic Structure was applied during the Emergency Period in 1975 in the
case of Indira Gandhi vs. Raj Narayan2, where the Apex Court struck down Clause 4 and 5
of Article 329A. It violated free and fair elections, which forms the pillar of democracy.
Justice Chandrachud declared it as unconstitutional on the grounds that they were an ‘outright
negotiation of the right of equality conferred by Article 14, which is a basic postulate of our
constitution.’ He held that these provisions were arbitrary and were calculated to damage the
Rule of Law. The Supreme Court thus added the following into the ‘basic features’ list -

 The Rule of Law

 Judicial Review

 Democracy, which implies free and fair election

The doctrine was further illustrated in Minerva Mills Ltd vs. Union of India3 . The 42nd
Amendment had been introduced in an effort to reduce the power of the judicial review of
constitutional amendments by the Supreme Court. In the Minerva Mills case, sections 4 and
55 of the 42nd Amendment were declared as unconstitutional. Few more ‘basic features’
were added

 Limited Power of Parliament to amend the Constitution

 Harmony and Balance between fundamental rights and directive principles

 Fundamental Rights in certain cases

 Power of Judicial Review

42ND AMENDMENT ACT, 1976 AND ARTICLE 368

42nd Amendment Act, 1976 was passed by the Parliament soon after. Amendment added
clause 4 and clause 5 to Article 368. Article 368(4) provided that no Constitutional
Amendment shall be called in any court on any ground. Article 368(5) provided that there
shall be no limitation whatsoever on the constituent power of the Parliament.

Minerva Mills V. Union of India4 , Supreme Court struck down clauses (4) and (5) of Article
368 inserted by the 42nd amendment. Justification for the deletion of the said clauses was
based on the destruction of Basic Structure. The Court was satisfied that 368 (4) and (5)

2
(AIR (1975) SCC 2299)
3
(AIR (1980) SC 1789)
4
(AIR 1980 SC 1789)
clearly destroyed the Basic Structure as it gave the Parliament absolute power to amend
Constitution. Limitation on the amending power of the Parliament is a part of the Basic
Structure explained in Kesavananda’s case.

S. P. Sampath Kumar V. Union of India5: The Constitutional validity of Article 323A and the
provisions of the Administrative Tribunals Act was challenged on the ground that it excluded
the jurisdiction of High Court under Article 226 and 227. Supreme Court held that Article
323A and Administrative Tribunals Act was valid as it has not excluded Judicial Review
under Article 32 and 136. It was not proved beyond reasonable doubt that Article 323A and
Administrative Tribunals Act destroyed the basic structure and the Court upheld their
validity.

L. Chandra Kumar V. Union of India6 : The Supreme Court struck down clause 2(d)of Article
323A and clause 3(d) of Article 323B as they excluded the jurisdiction of High court under
Article 226 and 227 as well as jurisdiction of Supreme Court under Article 32 as they damage
the power of Judicial Review which is a basic feature of Constitution.

LIMITATION OF BASIC STRUCTURE DOCTRINE

The doctrine has been criticized several times for its unambiguous nature and the lack of a
precise definition from the Court in regards to what the ‘basic features’ are. Although the
thoughts of the judges have been listed, it has been stated that they are only illustrative and
not exhaustive. A limitation of this doctrine is that every amendment can be challenged on
the base that it affects some ‘basic structure’ or the other. The amending power of the
Parliament cannot be subject to such uncertain and dubious terms.

The Constitution can be amended only by Parliament and only in the manner provided.
Although Parliament must preserve the basic framework of the Constitution, there is no other
limitation placed upon the amending power, meaning that there is no provision of the
Constitution that cannot be amended. In Abdul Rahiman Jamaluddin v. Vithal Arjun7 the
Bombay High Court held that any attempt to amend the Constitution by a Legislature other
than Parliament, and in a manner different from that provided for, will be void and
inoperative.

5
(AIR 1987 SC 386)
6
(AIR 1997 SC 1125)
7
AIR 1958 SC 94
The Supreme Court first struck down a constitutional amendment in 1967, ruling in the case
of I.C. Golak Nath and Ors. vs. State of Punjab and Anr8. An amendment was struck down on
the basis that it violated Article 13: “The State shall not make any law which takes away or
abridges the rights conferred by the charter of Fundamental Rights”. The term “law” in this
article was interpreted as including a constitutional amendment. Parliament responded by
enacting the twenty-fourth Amendment of the Constitution of India which declared that
“nothing in Article 13 shall apply to any amendment of this Constitution”.

The current limitation on amendments comes from Kesavananda Bharati v. The State of
Kerala, where the Supreme Court ruled that amendments of the constitution must respect the
“basic structure” of the constitution, and certain fundamental features of the constitution
cannot be altered by amendment. Parliament attempted to remove this limitation by enacting
the Forty-second Amendment, which declared, among other provisions, that “there shall be
no limitation whatever on the constituent power of Parliament to amend this Constitution”.
However, this change was itself later declared invalid by the Supreme Court in Minerva Mills
v. Union of India.

The issue of whether an entire constitutional amendment is void for want of ratification or
only an amended provision required to be ratified under proviso to clause (2) of article 368
was debated before the Supreme Court in KihotaHollohon v. Zachilhu9, in which the
constitutional validity of the Tenth Schedule of the Constitution inserted by the 52nd
Amendment in 1985 was challenged. The decisions of the Speakers/Chairmen on
disqualification, which had been challenged in different High Courts through different
petitions, were heard by a five-member Constitution Bench of the Supreme Court. The case,
now popularly known as Anti-Defection case, was decided in 1992. The Constitution Bench
in its majority judgement upheld the validity of the Tenth Schedule, but 7 of the Schedule
invalids because it was not ratified by the required number of the Legislatures of the States as
it brought about in terms and effect, a change in articles 136, 226 and 227 of the Constitution.
While doing so, the majority treated Paragraph 7 as a severable part from the rest of the
Schedule. However, in the dissenting opinion, the minority of the Judges held that the entire
Amendment is invalid for want of ratification.

TERRITORIAL CHANGES & DEMOCRATIC REFORMS

8
AIR 1971 SC 1643
9
AIR 1993 SC 412
Territorial changes

Constitutional amendments have been made to facilitate changes in the territorial extent of
the Republic of India due to the incorporation of the former French colony of Pondicherry,
the former Portuguese colony of Goa, and a minor exchange of territory with Pakistan.
Amendments are also necessary with regard to littoral rights over the exclusive economic
zone of 200 mi and the formation of new states and union territories by the reorganization of
existing states. Constitutional amendment under article 368 allows peaceful division of the
country provided fundamental rights (Article 13) are ensured in all the resultant countries.
The constitution (ninth amendment) act, 1960 is an example which has ceded territory to old
Pakistan.

Democratic reforms

Amendments have been made with the intent of reform the system of government and
incorporating new “checks and balances” in the Constitution. These have included the
following:

Creation of the National Commission for Scheduled Castes. Creation of the National
Commission for Scheduled Tribes. Creation of mechanisms for Panchayati Raj (local self-
governance). Disqualification of members from changing party allegiance. Restrictions on the
size of the cabinet. Restrictions on imposition of an internal emergency.

Now we can say, there is no hard and fast rule for basic feature of the Constitution. Different
judge keeps different views regarding to theory of basis structure. But at one point they have
similar view that parliament has no power to destroy, alter, or emasculate the ‘basic structure’
or framework of the constitution. If the historical background, the preamble, the entire
scheme of the constitution and the relevant provisions thereof including article 368 are kept
in mind then there can be no difficulty, in determining what are the basic elements of the
basic structure of the constitution. These words apply with greater force to doctrine of the
basic structure, because, the federal and democratic structure of the constitution, the
separation of powers, the secular character of our state is very much more definite than either
negligence or natural justice. So, for the protection of welfare state, fundamental rights, Unity
and integrity of the nation, Sovereign democratic republic and for Liberty of thought,
expression, belief, faith and worship, interpretation of judiciary is mandatory. We can say
none is above constitution even parliament and judiciary.
However, the criticism cannot be justified on the grounds of being uncertain and dubious.
The basic structure of the Constitution is not vague. The absence of a complete list of ‘basic
features’ is not a strong enough defence to say that they do not exist. There are several
aspects of the law that remain unclear and cannot be defined accurately. Yet, they all form a
part of the sphere of law and continue to play important roles in it.

CONCLUSION

A rigid constitution is a must in a federal system of governance. In case of the

Indian constitution, it has been argued that it is not rigid enough. That there have been
93 amendments in last 50 years proves this fact. As a comparison, there have been only 27
amendments in the constitution of USA in the past 200 years. In Australia, out of 30
amendments proposed by the absolute majority of Australian Parliament, only four
were accepted and 26 were rejected by the people. In the hindsight, it can be said that
the safeguards to prevent the spirit of the constitution were not enough.

Politicians have time and again shown that they can modify it easily to serve their vote-based
politics. This has been done deliberately to ensure that the constitution can be changed as
per the needs of the times. However, to prevent excessive changes on the whims of the ruling
party, sufficient safeguards have been put. The Constitution has to be changed at every
interval of time. Nobody can say that this is the finality. A constitution which is static is a
constitution which ultimately becomes a big hurdle in the path of the progress of the nation.

BIBLIOGRAPHY:

i. Jain, M.P. , Indian Constitutional Law Vol- 1, 2

ii. Bakshi, P.M., The Constitution of India- Delhi: Universal Law Publishing Co.,
2013

iii. Pandey, J.N., The Constitutional Law of India ,Central Law Agency,2013

iv. Prof.Narender Kumar, Constitutional Law of India Allahabad Law

Agency,2014

v. Durga Das Basu’s Commentary on the Constitution of India, 2014, Vol. 2.

Websites:

i. http://www.legalserviceindia.com/article/l70-Article368.html
 ii. http://www.ebc-india.com/lawyer/articles/73v4a1.htm
iii. http://www.humanrightsinitiative.org/publications/const/the_basic_structure_o
f_the_indian_constitution.pdf
iv. http://www.lawteacher.net/administrative-law/essays/jurisprudence-
prospective-overruling-in-reference-administrative-law-essay.php