Basic structure
Encyclopedia
The basic structure doctrine is the judge-made principle that certain features of the Constitution of India
are beyond the limit of the powers of amendment of the Indian parliament
. The doctrine, which was first expressed by the Indian Supreme Court
in Kesavananda Bharati v. State of Kerala (1973), reflects judicial concern at the perceived threat to the liberal constitutional order posed by the Indian National Congress
' majority in central and state legislatures, in particular under Indira Gandhi
.
The basic structure doctrine applies only to the constitutionality of amendments and not to ordinary Acts of Parliament, which must conform to the entirety of the Constitution and not just to its basic structure.
On April 24, 1973, the Supreme Court ruled in Kesavananda that although the Twenty-fifth Amendment of 1971 was valid, the court still reserved for itself the discretion to reject any constitutional amendments passed by Parliament by declaring that the amendments cannot change the constitution's "basic structure".
provisions of the constitution could be revoked or limited by amendment of the constitution. This question had previously been considered in Shankari Prasad v. Union of India and Sajjan Singh v. State of Rajasthan. In both cases, the power to amend the rights had been upheld on the basis of Article 368. Chief Justice Subba Rao writing for the majority (six judges in special bench of eleven, overruled the previous decisions) held that:
Nani Palkhivala, assisted by Fali Nariman, presented the case against the government in both cases. The decision of the Judges is complex, consisting of multiple opinions taking up one complete volume in the law reporter "Supreme Court Cases". The findings included the following:
However nine judges (including two dissentients) signed a summary stating that "the view of the majority" in the case was
(The summary also included a statement as to the view of the majority on the particular amendments under scrutiny.) It follows therefore that this case established the principle that the basic structure cannot be amended on the grounds that a power to amend is not a power to destroy.
Justices Shelat and Grover added three features to the Chief Justice's list:
Justices Hegde and Mukherjea instead provided, in their opinion, a separate and shorter list:
Justice Jaganmohan Reddy preferred to look at the preamble, stating that the basic features of the constitution were laid out by that part of the document, and thus could be represented by:
On the morning of November 12 Chief Justice Ray tersely pronounced that the bench was dissolved, and the judges rose. The doctrine could thus famously be applied in Indira Gandhi vs. Raj Narain to the 39th Amendment
of 1975, which attempted, among other provisions, to pass legislative judgment over the election of Indira Gandhi
in 1971.
, s. 55. The clauses read:
The Court held that since, as had been previously held in the Kesavananda case, the power of Parliament to amend the constitution was limited, it could not by amending the constitution convert the power into an unlimited power (as it had purported to do by this amendment). The court went on to invalidate the amendment of Article 31-C by the Forty-second Amendment
. This view of Article 31-C, but not the basic structure doctrine, was questioned but not overruled in Sanjeev Coke Mfg. Co v Bharat Cooking Coal Ltd.
Constitution of India
The Constitution of India is the supreme law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedures, powers, and duties of government institutions, and sets out fundamental rights, directive principles, and the duties of citizens...
are beyond the limit of the powers of amendment of the Indian parliament
Parliament of India
The Parliament of India is the supreme legislative body in India. Founded in 1919, the Parliament alone possesses legislative supremacy and thereby ultimate power over all political bodies in India. The Parliament of India comprises the President and the two Houses, Lok Sabha and Rajya Sabha...
. The doctrine, which was first expressed by the Indian Supreme Court
Supreme Court of India
The Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution of India...
in Kesavananda Bharati v. State of Kerala (1973), reflects judicial concern at the perceived threat to the liberal constitutional order posed by the Indian National Congress
Indian National Congress
The Indian National Congress is one of the two major political parties in India, the other being the Bharatiya Janata Party. It is the largest and one of the oldest democratic political parties in the world. The party's modern liberal platform is largely considered center-left in the Indian...
' majority in central and state legislatures, in particular under Indira Gandhi
Indira Gandhi
Indira Priyadarshini Gandhara was an Indian politician who served as the third Prime Minister of India for three consecutive terms and a fourth term . She was assassinated by Sikh extremists...
.
The basic structure doctrine applies only to the constitutionality of amendments and not to ordinary Acts of Parliament, which must conform to the entirety of the Constitution and not just to its basic structure.
On April 24, 1973, the Supreme Court ruled in Kesavananda that although the Twenty-fifth Amendment of 1971 was valid, the court still reserved for itself the discretion to reject any constitutional amendments passed by Parliament by declaring that the amendments cannot change the constitution's "basic structure".
Background
In 1967, in Golak Nath vs. The State of Punjab, a bench of eleven judges (such a large bench constituted for the first time) of the Supreme Court deliberated as to whether any part of the Fundamental RightsFundamental Rights in India
'Part III - Fundamental Rights' is a charter of rights contained in the Constitution of India. It guarantees civil liberties such that all Indians can lead their lives in peace and harmony as citizens of India...
provisions of the constitution could be revoked or limited by amendment of the constitution. This question had previously been considered in Shankari Prasad v. Union of India and Sajjan Singh v. State of Rajasthan. In both cases, the power to amend the rights had been upheld on the basis of Article 368. Chief Justice Subba Rao writing for the majority (six judges in special bench of eleven, overruled the previous decisions) held that:
- A law to amend the constitution is a law for the purposes of Article 13.
- Article 13 prevents the passing of laws which "take away or abridge" the Fundamental Rights provisions.
- Article 368 does not contain a power to amend the constitution but only a procedure.
- The power to amend comes from the normal legislative power of Parliament.
- Therefore, amendments which "take away or abridge" the Fundamental Rights provisions cannot be passed.
The Kesavananda case (1973)
Six years later in 1973, thirteen judges of the Supreme Court, including then Chief Justice Sikri, heard arguments in Kesavananda Bharati v. The State of Kerala and thus considered the validity of the 24th, 25th and 29th amendments, and more basically the correctness of the decision in the Golak Nath case. This time, the court held, by the thinnest of margins of 7-6, that although no part of the constitution, including fundamental rights, was beyond the amending power of Parliament (thus overruling the 1967 case), the "basic structure of the Constitution could not be abrogated even by a constitutional amendment".Nani Palkhivala, assisted by Fali Nariman, presented the case against the government in both cases. The decision of the Judges is complex, consisting of multiple opinions taking up one complete volume in the law reporter "Supreme Court Cases". The findings included the following:
- All of the Judges held that the 24th, 25th and 29th Amendments Acts are valid.
- Ten judges held that Golak Naths case was wrongly decided and that an amendment to the Constitution was not a "law" for the purposes of Article 13.
- Seven judges held that the power of amendment is plenary and can be used to amend all the articles of the constitution (including the Fundamental Rights).
- Seven judges held (six judges dissenting on this point) that "the power to amend does not include the power to alter the basic structure of the Constitution so as to change its identity".
- Seven judges held (two judges dissenting, one leaving this point open) that "there are no inherent or implied limitations on the power of amendment under Article 368".
However nine judges (including two dissentients) signed a summary stating that "the view of the majority" in the case was
(The summary also included a statement as to the view of the majority on the particular amendments under scrutiny.) It follows therefore that this case established the principle that the basic structure cannot be amended on the grounds that a power to amend is not a power to destroy.
Defining the basic structure
In Kesavananda there was little consensus in the majority for what the "basic structure" of the constitution comprised. Chief Justice Sikri, writing for the majority, indicated that the basic structure consists of the following:- The supremacy of the constitution.
- A republicRepublicA republic is a form of government in which the people, or some significant portion of them, have supreme control over the government and where offices of state are elected or chosen by elected people. In modern times, a common simplified definition of a republic is a government where the head of...
an and democratic form of government. - The secular character of the Constitution.
- Maintenance of the separation of powersSeparation of powersThe separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
. - The federalFederationA federation , also known as a federal state, is a type of sovereign state characterized by a union of partially self-governing states or regions united by a central government...
character of the Constitution.
Justices Shelat and Grover added three features to the Chief Justice's list:
- The mandate to build a welfare stateWelfare stateA welfare state is a "concept of government in which the state plays a key role in the protection and promotion of the economic and social well-being of its citizens. It is based on the principles of equality of opportunity, equitable distribution of wealth, and public responsibility for those...
contained in the Directive Principles of State Policy. - Maintenance of the unity and integrity of India.
- The sovereignty of the country.
Justices Hegde and Mukherjea instead provided, in their opinion, a separate and shorter list:
- The sovereignty of India.
- The democratic character of the polity.
- The unity of the country.
- Essential features of individual freedoms.
- The mandate to build a welfare state.
Justice Jaganmohan Reddy preferred to look at the preamble, stating that the basic features of the constitution were laid out by that part of the document, and thus could be represented by:
- A sovereign democratic republic.
- The provision of social, economic and political justice.
- Liberty of thought, expression, belief, faith and worship.
- Equality of status and opportunity.
The Emergency (1975)
In 1976, shortly after the imposition of the Emergency, a bench of thirteen judges was hastily assembled to hear the case of Indira Gandhi v. Raj Narain. Presided over by Chief Justice A.N. Ray, the court had to determine the degree to which amendments were restricted by the basic structure theory. On November 10 and 11, the team of civil libertarian barristers–again led by Palkhivala–continuously argued against the Union government's application for reconsideration of the Kesavananda decision. Some of the judges accepted his argument on the very first day, the others on the next; by the end of the second day, the Chief Justice was reduced to a minority of one.On the morning of November 12 Chief Justice Ray tersely pronounced that the bench was dissolved, and the judges rose. The doctrine could thus famously be applied in Indira Gandhi vs. Raj Narain to the 39th Amendment
Thirty-ninth Amendment of the Indian Constitution
The Thirty-ninth Amendment of the Constitution of India, enacted in 1975, placed the election of the President, the Vice President, the Prime Minister, and the Speaker of the Lok Sabha beyond the scrutiny of the Indian courts. It was passed during the Emergency of 1975-1977...
of 1975, which attempted, among other provisions, to pass legislative judgment over the election of Indira Gandhi
Indira Gandhi
Indira Priyadarshini Gandhara was an Indian politician who served as the third Prime Minister of India for three consecutive terms and a fourth term . She was assassinated by Sikh extremists...
in 1971.
Extending the doctrine (1981)
The doctrine was expanded in the Minerva Mills case of 1981. In Minerva Mills Ltd. v. Union of India, Palkhivala successfully moved the Supreme Court to declare that Clauses (4) and (5) of Article 368 of the Constitution are invalid. These clauses had been inserted as a response by the Gandhi government to the decision in the Kesavananda case by the Constitution (Forty-Second Amendment) ActForty-second amendment of the Indian Constitution
The Forty-second Amendment of the Constitution of India, enacted in 1976, attempted to reduce the power of the Indian Supreme Court and High Courts to pronounce upon the constitutional validity of laws...
, s. 55. The clauses read:
The Court held that since, as had been previously held in the Kesavananda case, the power of Parliament to amend the constitution was limited, it could not by amending the constitution convert the power into an unlimited power (as it had purported to do by this amendment). The court went on to invalidate the amendment of Article 31-C by the Forty-second Amendment
Forty-second amendment of the Indian Constitution
The Forty-second Amendment of the Constitution of India, enacted in 1976, attempted to reduce the power of the Indian Supreme Court and High Courts to pronounce upon the constitutional validity of laws...
. This view of Article 31-C, but not the basic structure doctrine, was questioned but not overruled in Sanjeev Coke Mfg. Co v Bharat Cooking Coal Ltd.