The Doctrine of Basic Structure

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Two Articles of the Indian Constitution become very important in the evolution of this Doctrine i.e., Article 13, which serves as Protector of Fundamental Rights and Article 368, which holds the power to Amend the Constitution.

 When we clash Article 13 & Article 368, some very questions come before us.

Can the Constitution be amended by the Parliament?

Can the Preamble be amended by the Parliament?

Can the Fundamental Rights be amended by the Parliament?

 Is the Amendment Power under Article 368 being absolute?

Are there any restrictions on it?


Now the whole discussion was over the tussle of Power and the question is who is supreme, the Supreme Court or the Parliament? And for that, we need to see the series of events.


The question is whether FRs can be amended by the parliament under Article 368 came for the consideration of the supreme court within a year of the constitution coming into force. In the Shankari Prasad Case, 1951, the constitutional validity of the first amendment Act, 1952(which is known as the abolition of the Zamindari System) which curtailed the right to property, was challenged. The question before the court was whether Parliament can amend Fundamental Rights?

  The Supreme Court held that the power of the parliament to amend the constitution under Article 368 also includes the power to amend FR's. The word 'law' in Article 13 includes only ordinary laws and not the constitutional amendment acts. Therefore, the parliament can abridge or take away any of the FRs by enacting a Constitutional Amendment act and such a law will not be void under Article 13.

 I.                Sajjan Singh v. State of Rajasthan, 1965

 The 17th Constitutional Amendment Act was challenged because it was restricting the powers of the High Court. The Court held that the word "amendment of this constitution under Article 368", meant Amendment of any part of the Constitution including Fundamental Rights.

 II.             But in the Golak Nath Case, 1967


 The Supreme court reversed its earlier stand. This time the question was whether the power to amend the FR's is limited or unlimited? The Supreme Court held that the power to amend the constitution including FR's is not unlimited power, rather it is limited and subject to Judicial Review and that FRs are given an immutable position and hence the parliament cannot abridge or take away any of these rights. A constitutional Amendment Act is also a law within the meaning of Article 13 and hence, would be void for violating any of the FRs.

 So, until now we had settled the position that Article 368 had unlimited power i.e. even Article 13 could not stop Article 368.

But this case reversed the position and said Article 368 is subject to the limitations of Judicial Review under Article 13. The Supreme Court further held that the Parliament has no right to abridge and amend FR's and that under Article 13(2) Law includes Amendments and if any amendment violates FR's, it would be void.

 Up till now, there has been a tussle of power for who is supreme between Parliament & Judiciary.

 • Shankari Prasad and Sajjan Singh held that- Parliament is Supreme.

• Golak Nath held that Judiciary is Supreme.

IV.    Parliament could not digest what happened in the Golak Nath Case, so they came up with the 24th Amendment Act. They made some changes in Articles 13 & 368.

• Clause (4) was added to Article 13 which stated that Nothing in Article 13 would apply to Article 368 which means anything can be done in Article 368, it would not attract the attention of Judicial Review under Article 13.

 • Marginal heading under Article 368 was changed from "Procedure for Amending the Constitution" to  "The Power of Parliament to Amend the Constitution & Procedure thereof".

Therefore, the Golaknath case holds no value, after the 24th Amendment, Parliament can amend Fundamental Rights.

 V.    Kesavananda Bharati v. State of Kerala, 1973

In this case, the 24th Constitutional Amendment was challenged. The question was what is the scope of the Amendment that the parliament reserves? The SC gave the balanced Judgment, where SC held that the BASIC STRUCTURE cannot be amended i.e., parliament can amend the Constitution but should not disturb the BASIC FEATURE because they act as certain implied restrictions over the amending power of the Parliament under Article 368 of the Constitution of India.

VI.         Indira Gandhi v. Raj Narain, 1975

This case qualified certain features as Basic Features. Clauses (4) & (5) under Article 368 were added, which stated that even if Part III was amended, it cannot be questioned in any court. They clearly said that there is no Limited to the power of Parliament to amend the Constitution. This case stated that parliament is supreme as it respects the will of the people.

VII.   Minerva Milla v. Union of India, 1980

The validity of the 42nd Amendment Act and clauses (4) & (5) were challenged as they were attacking the limited nature of power to amendment and power of Judicial review.It was finally settled that The constitution is Supreme and Parliament cannot exercise unlimited amending power.

 ELEMENTS OF THE BASIC STRUCTURE

The present position is that the parliament under Article 368 can amend any part of the constitution including the FR's but without affecting the Basic Structure of the constitution. However, SC is yet to define or clarify what constitutes the 'Basic Structure of the constitution. From the various judgments, the following have emerged as basic features of the Constitution:

·       Supremacy of the Constitution.

·       Sovereign, democratic and republican nature of the Indian Polity.

·        Secular character of the Constitution.

·        Separation of power.

·       Federal the character of the Constitution.

·       Unity and The integrity of the Nation.

·       Welfare State.

·       Judicial Review.

·       Freedom and Dignity of the Individual.

·        Parliamentary System.

·        Rule of law.

·        Effective access to justice, etc.

 

The basic structure doctrine is an Indian judicial principle that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments to the parliament. But what should be considered as the basic features of the Indian Constitution is not explicitly defined by the Judiciary. It is widely believed that democracy, independence of the judiciary, secularism, etc. are part of the basic structure.

 

 

 

 

 

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