Basic Structure Doctrine
Anshveer Nath
Indian Institute of Management, Rohtak
This Article is written by Anshveer Nath, a Third-year law student of Indian Institute of Management, Rohtak
Introduction
The Basic Structure Doctrine is a new construction introduced in the field of Indian constitutional law that allows some aspects in Place to be maintained by way of a constructed framework, which would protect it from changing hands or being reinterpreted as Parliament so wills. It justifies that the Constitution can be amended according to time and situation, but some basic things could not tampered with: democracy, the rule of law, & Judicial Review. This emerged from the famous case of Kesavananda Bharati v State of Kerala.[1], it was held that though Parliament has been given the power to amend the Constitution, such amendment cannot strike at a fundamental structure on which the Constitution stands. Over the years, this doctrine has acted as a sword against whoever tries to throw India into anarchy by disturbing the delicate balance of power between court and government.
Dietrich Conrad, in 1965, delivered a lecture on implied limitations of the amending power that influenced the fundamental feature doctrine in Indian Constitutional law. He suggested how his questions reflected the constitutional amending process (e.g., whether the Parliamentary could amend Article 1 or your religious reference clause to divide Tamil Nadu from Hindusthan proper and abolish Article XXI entirely). It was not a creation of the Indian judiciary but borrowed from a civil law tradition because when the framers did their search, they only looked at Common law countries. A whole battery of tests relating to different provisions will have to be resorted in appropriate cases, and this dynamites the theory irrespective of right or left at first blush, which is a good law. If any such law is held insufficient, one must trace it. Implied limitation as having substantive force was agreed on by the majority view of later taken up militarily in the Non-Palkhivala: Kesavananda Bharati case. This argument was later converted to the doctrine of basic structure, which is still in use today, with additional features added by the Supreme Court over the years.
Subject Matter of Basic Structure of Doctrine
The Supreme Court of India, over time through key legal decisions, has played its role in shaping and extending the structure doctrine. It has recognized therein elements forming part of the integral scheme of the Constitution and is not within the amplitude of the power of amendment under Article 368, be it about maintaining the authority of the Constitution or furthering the republican and democratic form of government, stressing secularism, and the separation of powers. On the other hand, legal principles are contained in the considerations of jurisprudence that also involve federalism and the duty to create a welfare state under the Directive Principles of State Policy. Again, the Court continues to impress unity and integrity sovereignty, and protection of freedoms. Prestige and possibilities for everyone, social fairness combined with economic and political equity may form the foundational principles necessary for the structure to subsist. Tolerating free thinking expression and faith, the rule of law judiciary, and the right, and facility to challenge the legality of laws and administrative actions are also seen as part of the foundation. The form of government is also protected under the above framework. In the instant case, the Court has stressed the role of the equality principle enshrined in Article 14 as part of the rule of law and therefore of the basic structure of the Constitution. These broad visions of the plan have substantially hindered the ability of Parliaments to effect changes to the constitution and this has, fostered disputes over the division of authority between the courts and legislatures. The fact that the Court is continuing to add to this list it appears-some would argue beyond its authority; yet, others view it as a counterbalance against the abuses by the legislature.
Evolution of the Doctrine
The Basic Structure Doctrine can further be explained through different case laws.
Shankari Prasad vs Union of India [2]The case was one of the first times the Supreme Court of India had to think about how to protect the most important parts of the Constitution. They were looking at a law passed in 1951 that made it harder for people to own property. The Court said it was okay to change the Constitution, even parts about basic rights if the government wanted to. This meant the government could take away or limit people's rights by changing the Constitution. They said this kind of change wouldn't be blocked by a rule in the Constitution that says the government can't make laws that break basic rights. So, after this case, things were tricky. It looked like the government could change the Constitution to take away people's rights and there wasn't much to stop them.
Sajjan Singh vs Union of India[3], While agrarian reforms were being introduced in India, the Parliament enacted the Constitution (Seventeenth Amendment) Act, 1964 with the object of further amending Article 31A and bringing several statutes within the ambit of the Ninth Schedule. The petitioners argued that fundamental rights cannot be amended through Article 368 of the Indian Constitution, but the majority opinion upheld the amendment's validity, stating that Parliament can amend these rights prospectively and retrospectively. However, the dissenting view was by Justice Mudholkar and Justice Hidayatullah, who said that the nomenclature of the term 'fundamental rights' itself suggested that these rights were implicit and intrinsic to all citizens and as such ought not to be permitted to be amended or altered in any manner whatsoever.
The I.C. Golaknath[4] Judgment had questioned the Constitution Seventeenth Amendment Act, 1964, after a restriction imposed by the Punjab Security and Land Tenures Act, 1953, on the petitioners from holding more than thirty acres of land. The eleven-judge Constitutional Bench held that fundamental rights, being related to minorities and backward communities' development of human personality, cannot be amended and, therefore, were beyond Parliament's reach.
Kesavananda Bharati v. State of Kerala has received the utmost attention among cases relating to the doctrine of basic structure. A ruling given on this day by the Supreme Court was that the oft-claimed amending power of Parliament has bearings on every element and detail of the Constitution. However, this power must not be used to obliterate or alter the Constitution’s basic structure. Such judgment provided an explication of the basic structure doctrine and asserted that some features, namely, the supremacy of the Constitution, secularism, democracy, federalism, and judicial review, which are essential attributes of the Indian Constitution, cannot be amended by Parliament.
In the case of Indira Gandhi v. Raj Narain[5], the DOCS was also applied for the 39th amendment act in question and the subject amendments were held by the Supreme Court to impair the constitution and in particular democracy and the right to free and fair elections of the Fourth Modi regime dominated generation suppression act. No such amendments to free and fair elections shall ever be accepted, or held in the court.
The judgment in Minerva Mills Ltd. v. Union of India [6](1980) it is stated that the Basic Structure Doctrine has been utilized by the Supreme Court, in which legislative changes made during the Emergency 42nd Amendment Act were held as null and void. The court noted that such provisions and changes have a flaw extending to the independence of the judiciary.
The Supreme Court was visited by Waman Rao v. Union of India. [7](1981) It is the normal course of the Supreme Court to strike out the amendatory powers of parliament to harm the first principles of the Constitution and Basic Structure Doctrine. and it has been affirmed that the judicial review is intrinsic to the basic structure of the Constitution. The Court struck down those provisions of the 42nd Amendment Act which imposed limits to the power of judicial review.
During the S.R. Bommai v. Union of India [8], for example, the Supreme Court applied the Basic Structure Doctrine about federalism. The court stereotyped that the principles of secularism, as well as federalism in the Constitution, are retained and centered by the Parliament. The judgment clarified that if any such effort is made to harm or destroy any part of the democratic structure or the secularism of the country, it will be considered as violating the basic structure.
Criticism
The theory of inherent basic structure in the Indian Constitution has also been subjected to some fair criticism and even debates. For instance, it has been reported that there is not much clarity as well precision in the phrase hence granting any or all judicial authorities, the reasonableness or the power to interpret it. Additionally, it has also been maintained that such positive discrimination results in judicial supremacy and erosion of other government powers. Some other critics have also provided that the doctrine is the child of the passions and prejudices of the judges who created it. Another main such critique is that this is detrimental to representative democracy by placing constraints on the representatives. Political scientist Rajeev Dhavan has a more strict criticism of the doctrine, calling it anti-democratic because it usurps the power of the people’s representatives, the representatives who elected the members of the judiciary. Finally, some political scientists take the point that this principle generates judicial elitism which prevents democracy by insulating power from the people, constitutionally there is none so no one is accountable. Notwithstanding however these conclusions and discussions, the basic structure doctrine is an essential and enduring aspect of Indian constitutional law. Legal scholar H. M. Seervai has also stated that this is an important attribute of the Indian constitution and signifies such ideas and principles as laying down democracy in India. However, disagreements and debates about the precise contents and limitations of the doctrine still arise.
References
[1] Kesavananda Bharati v State of Kerala [1973] 4 SCC 225
[2] Sankari Prasad Singh v. Union of India, [1951] AIR 458
[3] Sajjan Singh v. State of Rajasthan, [1965] AIR 845
[4] Golak Nath v. State of Punjab,[1967] 2 SCR 762
[5] Indira Gandhi v. Rajnarain [1975] 3 SCC 34
[6] Minerva Mills Ltd. v. Union of India [1980] SCR (1) 206