BrightCareerMaker

Basic Structure of Constitution

Topics Discussed: -

· Introduction

· Evolution of the Basic Structure

· Features of Basic Structure

· Importance of Basic Structure

· PRACTICE QUESTIONS

· Introduction

I. 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 by the parliament via Article 368.

II. The basic features of the Constitution have not been explicitly defined by the Judiciary, and the claim of any particular feature of the Constitution to be a "basic" feature is determined by the Court in each case that comes before it.

III. Key among these "basic features", are the fundamental rights granted to individuals by the constitution.

IV. The basic structure doctrine does not apply to ordinary Acts of Parliament, which must itself be in conformity with the Constitution.

· Evolution of the Basic Structure

The word "Basic Structure" is not mentioned in the constitution of India. The concept developed gradually with the interference of the judiciary from time to time to protect the basic rights of the people and the ideals and the philosophy of the constitution.

1. Shankari Prasad vs. Union of India case.

The First Constitution Amendment Act, 1951 was challenged on the ground that it violates the Part-III of the constitution and therefore, should be considered invalid. The Supreme Court held that the Parliament, under Article 368, has the power to amend any part of the constitution including fundamental rights.

2. Golak Nath vs State of Punjab case

In 1967, the Supreme Court overruled its earlier decision. The Supreme Court held that the Parliament has no power to amend Part III of the constitution as the fundamental rights are transcendental and immutable. According to the Supreme Court ruling, 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.

3. The Parliament, in 1971, passed the 24th Constitution Amendment Act.

The act gave the absolute power to the parliament to make any changes in the constitution including the fundamental rights. It also made it obligatory for the President to give his assent on all the Constitution Amendment bills sent to him.

4. Kesavananda Bharti vs. State of Kerala case

The Supreme Court upheld the validity of the 24th Constitution Amendment Act by reviewing its decision in Golaknath case. The Supreme Court held that the Parliament has power to amend any provision of the constitution, but doing so, the basic structure of the constitution is to be maintained. But the Apex Court did not any clear definition of the basic structure. It held that the basic structure of the Constitution could not be abrogated even by a constitutional amendment.

5. Indira Nehru Gandhi v. Raj Narain case (1975)

Here, the SC applied the theory of basic structure and struck down Clause (4) of article 329-A, which was inserted by the 39th Amendment in 1975 on the grounds that it was beyond the Parliament’s amending power as it destroyed the Constitution’s basic features. The 39th Amendment Act was passed by the Parliament during the Emergency Period. This Act placed the election of the President, the Vice President, the Prime Minister and the Speaker of the Lok Sabha beyond the scrutiny of the judiciary. This was done by the government in order to suppress Indira Gandhi’s prosecution by the Allahabad High Court for corrupt electoral practices.

6. Minerva Mills case (1980)

This case again strengthens the Basic Structure doctrine. The judgement struck down 2 changes made to the Constitution by the 42nd Constitutional Amendment Act declaring them to be violative of the basic structure.

The judgement makes it clear that the Constitution, and not the Parliament is supreme.

In this case, the Court added two features to the list of basic structure features. They were: judicial review and balance between Fundamental Rights and DPSP.

The judges ruled that a limited amending power itself is a basic feature of the Constitution.

7. Waman Rao Case (1981)

The SC again reiterated the Basic Structure doctrine.

It also drew a line of demarcation as April 24th, 1973 i.e., the date of the Kesavananda Bharati judgement, and held that it should not be applied retrospectively to reopen the validity of any amendment to the Constitution which took place prior to that date.

In the Kesavananda Bharati case, the petitioner had challenged the Constitution (29th Amendment) Act, 1972, which placed the Kerala Land Reforms Act, 1963 and its amending Act into the 9th Schedule of the Constitution.

Ø The 9th Schedule was added to the Constitution by the First Amendment in 1951 along with Article 31-B to provide a “protective umbrella” to land reforms laws.

Ø This was done in order to prevent them from being challenged in court.

Ø Article 13(2) says that the state shall not make any law inconsistent with fundamental rights and any law made in contravention of fundamental rights shall be void.

Ø Now, Article 31-B protects laws from the above scrutiny. Laws enacted under it and placed in the 9th Schedule are immune to challenge in a court, even if they go against fundamental rights.

The Waman Rao case held that amendments made to the 9th Schedule until the Kesavananda judgement are valid, and those passed after that date can be subject to scrutiny.

8. Indra Sawhney and Union of India (1992)

SC examined the scope and extent of Article 16(4), which provides for the reservation of jobs in favour of backward classes. It upheld the constitutional validity of 27% reservation for the OBCs with certain conditions (like creamy layer exclusion, no reservation in promotion, total reserved quota should not exceed 50%, etc.)

Here, ‘Rule of Law’ was added to the list of basic features of the constitution.

· Features of Basic Structure

Ø Supremacy of the Constitution

Ø Rule of law

Ø The principle of Separation of Powers

Ø The objectives specified in the Preamble to the Constitution

Ø Judicial Review

Ø Articles 32 and 226

Ø Federalism

Ø Secularism

Ø The Sovereign, Democratic, Republican structure

Ø Freedom and dignity of the individual

Ø Unity and integrity of the Nation

Ø The principle of equality, not every feature of equality, but the quintessence of equal justice;

Ø The "essence" of other Fundamental Rights in Part III

Ø The concept of social and economic justice — to build a Welfare State: Part IV via DPSPs

Ø The balance between Fundamental Rights and Directive Principles

Ø The Parliamentary system of government

Ø The principle of free and fair elections

Ø Limitations upon the amending power conferred by Article 368

Ø Independence of the Judiciary

Ø Effective access to justice

Ø Powers of the Supreme Court under Articles 32, 136, 141, 142

Ø Legislation seeking to nullify the awards made in exercise of the judicial power of the State by Arbitration Tribunals constituted under an Act [8]

Ø Welfare state

Significance of basic structure:

1. The basic structure doctrine is a testimony to the theory of Constitutionalism to prevent the damage to essence of COI by brute majority of the ruling majority.

2. The basic doctrine saved the Indian democracy as it acts as a limitation of constituent power or else unlimited power of parliament might have turned India into a totalitarian

3. It helps us to retain the basic tenets of our constitution so meticulously framed by the founding fathers of our Constitution.

4. It certainly saved Indian democracy from degenerating into authoritarian regime.

5. It strengthens our democracy by delineating a true separation of power where Judiciary is independent of other two organs. It has also given immense untold unbridled power to Supreme Court and made it the most powerful court in the world.

6. By restraining the amending powers of legislative organ of State, it provided basic Rights to Citizens which no organ of State can overrule.

7. Being dynamic in nature, it is more progressive and open to changes in time unlike the rigid nature of earlier judgements.

· PRACTICE QUESTIONS

Q.1. Which of the following are included in the basic structure of the constitution?

1) Judicial review.
2) Special leave to appeal by the Supreme Court.
3) Limited power of Parliament to amend the Constitution.
4) Free and fair elections.

A. 1 and 4 only

B. 1 and 3 only

C. 1, 3 and 4 only

D. All of the above

ANS: D

Q.2. Match the cases correctly with the amendments they are related to.

Case	Amendment
A. Golak Nath case	1. Constitutional validity of the 7th Amendment.
B. Shankari Prasad case	2. Constitutional validity of the 42nd Amendment.
C. Kesavananda Bharati case	3. Constitutional validity of the 1st Amendment.
D. Minerva Mills case	4. Constitutional validity of the 24th Amendment.