Basic Structure Doctrine

The doctrine of Basic Structure was propounded by the Indian Judiciary on 24th April 1973 in the Keshavananda Bharati case to put a limitation on the amending powers of the Parliament so that the ‘Basic Structure of the Constitution’ cannot be amended in the exercise of its ‘constituent power’ under Article 368 of the Indian constitution.

• It is a judicial creation whereby certain features of the constitution of India are beyond the limits of amending powers of parliament of the constitution.
• The word "Basic Structure" is not mentioned in the constitution but was recognized for the first time in the Kesavananda Bharati case of 1973.

What is the Genesis of the Doctrine of Basic Structure?

The Supreme Court, since independence, has time and again reformed and revised its stance on parliament's power to amend the constitution.

The evolution of the Basic Structure doctrine can be traced from the issue of the right to property and the first Constitutional Amendment Act of 1951.

• Shankari Prasad vs. Union of India (1951):
  • The Supreme Court held that the Parliament, under Article 368, has the power to amend any part of the constitution, including fundamental rights.
• Sajjan Singh vs. State of Rajasthan (1965):
  • The Supreme Court agreed with its judgment in the Shankari Prasad case 1951 and held that under Article 368, Parliament could amend any part of the constitution.
  • However, the concurring opinion by Justice Hidyatullah and Justice Mudholkar raised doubts over the unrestricted power of the Parliament to amend the Constitution and limit the fundamental rights of citizens.
• Golak Nath vs. State Of Punjab Case (1967):
  • In the Golaknath case (1967), the Supreme Court overturned Shankari Prasad judgment and ruled that Article 368 only lays down the procedure to amend the constitution and does not give absolute powers to the Parliament to amend any part of the constitution.
• 24^th Constitution Amendment Act (1971):
  • To surpass the Golaknath judgment constraints, the government enacted the 24th Amendment act, which introduced a provision to Article 368 of the Constitution, which stated that the Parliament has the power to take away any of the fundamental rights.
  • It also made it obligatory for the President to give his assent on all the Constitution Amendment bills sent to him.
• Kesavananda Bharati vs. State of Kerala (1973):
  • The Supreme Court, in this case, upheld the validity of the 24th Constitution Amendment Act by reviewing its decision in the Golaknath case.
  • However, the Supreme Court held that the Parliament has the power to amend any provision of the constitution, but in doing so, the Basic Structure of the constitution is to be maintained.
  • The Court propounded what has come to be known as the “Basic Structure of the Constitution”.
  • Thus, this landmark judgment meant that every provision of the Constitution could be amended, but these amendments can be subjected to judicial review to ascertain that the Basic Structure of the Constitution remains intact.
• 42nd Amendment Act (1976):
  • The government in 1976 enacted the 42nd Amendment Act that declared no limitation to the constituent power of Parliament under article 368.
  • The amendment, also called the "Mini-constitution" for introducing wide-ranging constitutional changes, barred the courts from questioning constitutional amendments.
• Minerva Mills vs. Union of India (1980):
  • In this case, the Supreme Court invalidated provisions of the 42nd CAA and ruled that the Parliament cannot take away the power of ‘judicial review’ as it is a part of the ‘Basic Structure’.
• Waman Rao vs. Union of India (1981):
  • Also known as the ‘Doctrine of Prospective Overruling’, the court decided that all the laws placed under Ninth Schedule before the Kesavananda judgment cannot be called into question for violating Fundamental Rights. However, the laws post the judgment can be raised before a court of law.
  • The Supreme Court again reiterated the Basic Structure doctrine in this case.
• Indra Sawhney & Others vs. Union of India(1992):
  • Also known as the Mandal case, the Supreme Court declared the Rule of Law as a Basic Structure of the constitution.
• Kihoto Hollohan Case (1993):
  • Popularly known as the Defection case, the Supreme Court added Free and fair elections, Sovereign, Democratic and Republican structure to the Basic Structure of the Constitution.
• S.R. Bommai vs. Union of India (1994):
  • The Supreme Court declared Federalism, Secularism, and Democracy as the Basic Structure of the Constitution.

Which features of the constitution constitute the Basic Structure?

The components of the Basic Structure provided in the constitution have been recognized by the judiciary in various cases to date.

Some of these components are:

• Supremacy of the Constitution
• Sovereign, democratic and republican nature of the Indian
• Polity
• Secular character of the Constitution
• Separation of powers between the legislature, the executive, and the judiciary
• Federal character of the Constitution 
• Unity and integrity of the nation
• Welfare state (socio-economic justice) 
• Judicial review
• Freedom and dignity of the individual
• Parliamentary system
• The rule of law
• Harmony and balance between Fundamental Rights and Directive Principles
• Principle of equality
• Free and fair elections
• Independence of Judiciary
• Limited power of Parliament to amend the Constitution
• Principles (or essence) underlying fundamental rights
• Powers of the Supreme Court under Articles 32, 136, 141 and 142.
• Powers of the High Courts under Articles 226 and 227.

What is the significance of the Basic Structure Doctrine?

• Promotes Constitutional Ideals: Basic Structure Seeks to preserve constitutional principles and Basic ideals envisioned by the founding fathers.
• Maintains Supremacy of the Constitution: The doctrine has helped to maintain the supremacy of the Constitution and has prevented its destruction by a temporary majority in Parliament.
• Separation of powers: Basic Structure strengthens our democracy by delineating a true separation of power where the Judiciary is independent of the other two organs.
  • Granville Austin argues that with Basic Structure Doctrine, a balance has been reached between the responsibilities of Parliament and the Supreme Court for protecting the seamless web of the Indian Constitution.
• Protects Fundamental Rights: Basic Structure protects the fundamental rights of the citizens against arbitrariness and authoritarianism of the legislature.
• Constitution as a living document: Being dynamic in nature, it is more progressive and open to changes in time, making the constitution a living document.

What are some of the criticisms of the Doctrine of Basic Structure?

Some grounds for the criticism of Basic Structure doctrine are

• Inconsistent with the principle of separation of powers: A system of checks and balances is healthy only when the duties of one branch are not usurped by another. A court may have the power to review but not rewrite a constitutional amendment.
• Vagueness and elusiveness of the Basic features of the Constitution: There is no definite elucidation on what exactly constitutes Basic Structure, thereby making the doctrine ambiguous.
• Translates judiciary into the third decisive chamber of parliament: By invoking the Basic Structure doctrine, the Judiciary acts as the third house and thereby renders the work done by the Parliament meaningless.
• Judicial Overreach: Recently, the doctrine has been invoked in cases regarded as examples of judicial overreach. Ex: National Judicial Appointment Commission Act, 2014 was declared null and void by the Supreme Court by relying on this doctrine.