Doctrine of Basic Structure
This article is broadly divided into 3 parts. In Part-A, we will understand the background of the doctrine of basic structure. Under Part-B, we will understand the development of this doctrine by various judgments of the Supreme Court of India. And in the last Part-C, we will understand the future implications of the doctrine of basic structure.
Part-A [Background]
On 26th Nov, 1949, the Constituent Assembly of India completed the task of making the Indian Constitution. On 26th Jan, 1950, the Constitution of India came into force. Although the Constitution of India took 2 years and 11 months to come into its final shape, the time period during which the Assembly acted was not good. Many riots happened in different parts of India due to the partition situation, and a very tense and chaotic environment existed in the whole country.
By the time of the final stage of its making, it was realised by our forefathers that this document is not a perfect document. Even though it is the living document and fundamental law of the land, they considered it an imperfect document because of its time of making.
Perhaps that is the reason they incorporated Article 368 into Part XX of the Indian Constitution. Article 368 gives the procedure to amend the Constitution of India. This Article is very necessary for making the Constitution of India a living document.
A living constitution, just like the Indian Constitution, is not too rigid, is flexible, and changes from time to time and society to society to meet the needs of the future.
If any constitution is too rigid, very hard to change or amend, and becomes a hurdle for the future development of the nation, then in that situation, the people of the nation themselves destroy that constitution.
In contrast, if any constitution is very flexible and very easy to change or amend, then the elected majoritarian government can become authoritarian and arbitrary, and the future of the nation can become dark.
The best constitution is one which is neither too rigid nor too flexible. The constitution can be amended to meet the needs of the future, but the procedure to amend and power to amend is not uncontrolled by the constitution.
The Constitution of India is neither too rigid nor too flexible. The procedure and power to amend it can itself be controlled/restricted under Article 368.
Article 368 –
368. [Power of Parliament to amend the Constitution and procedure therefor]
- Notwithstanding anything in this Constitution, Parliament may, in exercise of its constituent power, amend by way of addition, variation, or repeal any provision of this Constitution in accordance with the procedure laid down in this article.
- An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill, and thereupon the Constitution shall stand amended in accordance with the terms of the Bill:
Provided that if such amendment seeks to make any change in:
- Article 54, Article 55, Article 73, Article 162, Article 241, or Article 279A; or
- Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI; or
- Any of the Lists in the Seventh Schedule; or
- The representation of States in Parliament; or
- The provisions of this article,
The amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.
Although Article 368 of the Indian Constitution gives the power to Parliament of India to amend any part of the Constitution, the question arises in the mind: “Whether this power of Parliament to amend the Constitution is unlimited and uncontrolled? It means, can Parliament amend all the parts, every article and provision of the Constitution as it wants?”
But there is some rider, either express or implied, in the Constitution to control the power of Parliament to amend the Constitution. This question came before the Supreme Court of India in different cases.
Part-B [Development of Basic Structure Doctrine]
That question first came before the Hon’ble Supreme Court in the landmark case, Sankari Prasad Dev v. Union of India, 1951.
1st Case – Sankari Prasad Dev v. Union of India, 1951
Fact
Provisional Parliament passed the Constitution First Amendment Act, 1951, inserting Articles 31A and 31B. Earlier, Bihar Legislative Assembly passed the Bihar Land Acquisition Act, 1951, to abolish the Zamindari system and promote social and economic justice by acquiring surplus land from Zamindars and distributing it to landless farmers.
The Bihar Act was challenged in Kameshwar Singh v. State of Bihar, 1951, and the Patna High Court struck it down for violating Article 19(1)(f) and Article 31 (Right to Property).
To implement social justice, the Parliament inserted Article 31B and created the 9th Schedule, where Acts violating Part III could be kept beyond judicial review under Article 13.
In this case, petitioners challenged the validity of the Constitution First Amendment Act, 1951.
Issue
- Is the First Amendment Act, 1951 constitutional and valid?
- Does Parliament have unlimited power to amend any part of the Constitution, including Part III?
Judgment
Supreme Court held that Article 368 provides three ways to amend the Constitution:
- By simple majority (e.g., Article 4, 169);
- By 2/3 majority in both Houses (under Article 368);
- By 2/3 majority plus ratification by 1/2 of the states (as per proviso to Article 368).
Court ruled that Parliament, as the representative of the people, has full, unrestricted power to amend any part of the Constitution.
Court emphasized the need for social and economic justice as mentioned in the Preamble and Directive Principles. The 1st Amendment aimed to abolish Zamindari and promote these goals. Court’s duty is to balance Fundamental Rights and Directive Principles.
It held that “Constitutional Law” is not covered under the term “law” in Article 13(3). Article 13 does not include constitutional amendments. Its language is clear, so amendments, even if they affect fundamental rights, cannot be struck down under Article 13.
Hence, the Constitution First Amendment Act, 1951 is constitutional. The Patna High Court judgment was set aside, and the petition was dismissed without cost.
Analysis
In this judgment, the Supreme Court leaned towards the idea of social justice by removing or abolishing the Zamindari system in the country.
The Supreme Court adopted the literal interpretation and declared the law that the Parliament has the power to amend each and every part of the Constitution.
The Supreme Court believed that the 1st Amendment of 1951 was done by the same Provisional Parliament which was the Constituent Assembly, for promoting social and economic justice by acquiring land from Zamindars. This amendment was done to protect the national/societal interest at large, while the individual rights of Zamindars were subject to the interest of poor farmers. The Supreme Court did not realise the other aspects of such wide power in the hands of Parliament.
After this case, that question again arose in the case of Sajjan Singh v. State of Rajasthan, 1966.
2nd Case – Sajjan Singh v. State of Rajasthan, 1966
Facts:
Petitioner Sajjan Singh challenged the Constitution Seventh Amendment Act, 1966, which amended Articles 31A and 31B. He also challenged the Supreme Court’s earlier decision in Sankari Prasad, where the Court upheld the Constitution First Amendment Act, 1951. He challenged this amendment based on violation of the Right to Property under Articles 19(1)(f) and 31.
Issues:
- Whether the Constitution Seventh Amendment Act, 1966 is valid and constitutional?
- Whether Parliament has unlimited powers to amend the Constitution?
- Whether Sankari Prasad was correctly decided or open to review?
Judgment:
Supreme Court held that courts should not frequently overturn earlier judgments, as it harms the principle of finality. But if a wrong decision is made, it’s the court’s duty to correct it. However, in this case, the court refused to review Sankari Prasad, holding it correctly decided.
Court stated that Article 13 contains the doctrine of judicial review, where courts can strike down laws inconsistent with Part III. But the term ‘law’ in Article 13(3) includes ordinances, rules, byelaws, notifications, etc., but not constitutional amendments.
The Court said constitutional amendments are deliberately kept outside the scope of ‘law’ under Article 13(3), and Parliament has complete power to amend any part of the Constitution, including Part III. Although there seems to be conflict between Articles 13 and 368, the court used harmonious construction, saying Article 13 must be read along with Article 368.
Thus, constitutional amendments affecting or abridging fundamental rights cannot be reviewed under Article 13. Therefore, the Constitution (Seventh Amendment) Act, 1966 is valid and constitutional.
Dissenting Opinion (Justice Hidayatullah & Justice Mudholkar):
Justice Hidayatullah disagreed with the majority. He said fundamental rights cannot be removed by constitutional amendment through special majority. Constitution makers never intended to allow fundamental rights to be destroyed this way.
He said the term ‘law’ under Article 13 is wide and includes constitutional law. There’s no reason to treat constitutional amendments separately from other laws just because they follow a different procedure. He agreed with the majority on the validity of the amendment, but said the definition of law under Article 13(3) should be revisited — otherwise, any government could destroy fundamental rights under the cover of constitutional amendment.
In this judgment, while the majority in the Supreme Court adopted the view of Sankari Prasad Dev and agreed that the Parliament has unfettered power to amend the Constitution including Part-III, the majority adopted Sankari Prasad Dev’s view because it was the thinking of the majority that to curb the evil of the Zamindari system, the state should have the power to acquire the lands and individual interest should not become a hurdle in the nation’s interest, which is the upliftment of poor farmers and implementation of social justice in this country.
The majority adopted the same reasoning of the Sankari Prasad case, but two extraordinary/visionary judges, i.e., Justice M. Hidayatullah and Justice Mudholkar, dissented from the majority view. Both wrote their separate and dissenting opinions.
The extraordinary and visionary judges like Justice Hidayatullah and Justice Mudholkar could foresee the future of their judgments. Perhaps Justice Hidayatullah and Mudholkar had foreseen what would be the outcome of both these judgments, in which uncontrolled and unfettered power is provided in the hands of Parliament.
They had foreseen that it may be possible that today they amend one or two articles in the Constitution, but tomorrow they can amend the entire Part-III, delete Article 21, or even destroy the Constitution itself. This can become a very drastic situation in a democratic country like ours.
Thus, the dissenting opinion of Justice Hidayatullah and Justice Mudholkar became the majority opinion in the next case.
3rd Case: I.C. Golaknath v. State of Punjab, 1966
Facts – Petitioner Golaknath challenged the Punjab Land Acquisition Act, 1966, under Article 19(1)(f) and 31, claiming his property was acquired through the Constitution 17th Amendment Act, 1965 which amended Articles 31A and 31B and put the Act in the 9th Schedule. Petitioner argued this violated his fundamental rights and that Parliament had no power under Article 368 to amend Part III. He also contended that placing laws in the 9th Schedule limited the powers of the Supreme Court (Article 32) and High Courts (Article 226), and therefore required state ratification under Article 368’s proviso.
Issues:
- Does Parliament have unfettered power to amend the Constitution?
- Does ‘law’ under Article 13(3) include Constitutional Amendments?
- Are Sankari Prasad and Sajjan Singh good law?
Judgment – An 11-Judge Bench held that Article 368 lays out only the procedure, not power, to amend. Parliament’s power lies in Articles 245 and 246, so Constitutional Amendments are also ‘law’ under Article 13(3) and subject to judicial review. Court said both amendments and legislations have the same character and the only difference is the procedure. Therefore, if any amendment violates Part III, it can be struck down under Article 13(2).
The Court referred to Constituent Assembly Debates – quoting Dr. Ambedkar and Nehru – to assert that Part III was intended to be permanent and unamendable. Parliament is not sovereign like the UK Parliament, and its power is limited. Article 368 does not allow destruction of the Constitution. The basic structure, including fundamental rights, cannot be amended.
The Court rejected the majority views in Sankari Prasad and Sajjan Singh and accepted the dissent of Justice Mudholkar and Justice Khanna. It ruled that Parliament cannot amend fundamental rights, and that there’s no real conflict between Part III and Directive Principles. However, applying prospective overruling, the Court held that though the 17th Amendment is unconstitutional, the ruling would apply prospectively to avoid chaos.
In this judgment, the Supreme Court accepted the minority view of the Sajjan Singh case and categorically held that under Article 368 of the Indian Constitution, the Parliament has no power to amend Part-III (Fundamental Rights) altogether. The Fundamental Rights are sacrosanct and cannot be touched by the Parliament.
The Court also said there is no special power given to Parliament for the amendment of the Constitution. Article 368 does not give power; it only provides the procedure. The power of amendment is like the ordinary law-making power of Parliament as given under Article 246, and the Supreme Court and High Courts have the power of judicial review of constitutional amendments under Articles 32 and 226 respectively.
This above judgment gave a setback to the then Government in power, especially Mrs. Indira Gandhi, then Prime Minister of India; her Government felt that this was an unnecessary judicial encroachment in the field of the other two branches of the State, i.e., Executive and Legislature.
To undo the judgment of I.C. Golaknath, the Parliament of India passed the 24th, 25th, and 29th Amendments to the Constitution of India.
The challenge to the above Amendments was made in the 4th historical and landmark judgment of Kesavananda Bharati v. State of Kerala, 1973.
4th Case: Kesavananda Bharati v. State of Kerala, 1973
Facts:
Kesavananda Bharati, a priest of a Mutt, challenged the Kerala Land Acquisition Act under which his land was acquired. Meanwhile, after the judgment in I.C. Golaknath v. State of Punjab, the Parliament passed the Constitution 24th, 25th, and 29th Amendments. These amendments amended Articles 13, 368, and inserted laws in the Ninth Schedule, including the Kerala Act. Petitioner challenged these on the ground that they violated his fundamental rights under Article 19(1)(f) and 31.
He also contended that Parliament has no power to amend Part-III of the Constitution and that Article 368 only provides the procedure, not power, to amend. He also said that inclusion of laws in the 9th Schedule limits the power of judicial review under Article 32 and 226, which requires ratification of half of the states under the proviso to Article 368.
Issues:
- Whether Parliament has unfettered powers to amend the Constitution?
- Whether the 24th, 25th, and 29th Amendments are valid?
- Whether Parliament can use Article 368 to amend Part III or the entire Constitution?
Judgment
A 13-judge bench gave the judgment. The majority (7 judges) held that the Constitution is a living and flexible document. It can be amended to meet new needs. Parliament has the power under Article 368 to amend any part of the Constitution, including Part III. But this power is not unlimited.
The Court laid down the Basic Structure Doctrine. Some features are so fundamental that they cannot be amended. If such features are removed, the identity of the Constitution itself will be lost. It was not the intention of the framers to give Parliament the power to destroy the Constitution.
Parliament can amend the Constitution but cannot alter or destroy its basic structure. Article 368 gives amending procedure, but not absolute power.
The Court listed examples of basic structure:
- Supremacy of Constitution
- Democratic and Republican form of government
- Secularism
- Separation of powers
- Federal structure
This list is not exhaustive. Courts can add more features in future. Any amendment or law that violates basic structure can be struck down by the Supreme Court or High Courts under Article 32 and 226.
The Court held that 24th, 25th, and 29th Amendments are constitutional and valid. However, Clause (4) in Article 13 and Clause (4) in Article 368 were held unconstitutional.
The Court overruled the judgment in Golaknath case and accepted the dissenting opinion of J. Hidayatullah and Mudholkar in Sajjan Singh. But applied doctrine of prospective overruling—ruling will apply to future cases to avoid confusion.
Golaknath judgment partly overruled by the court.
This is the most landmark judgment of the Hon’ble Supreme Court and the largest sitting bench judgment, where the judgment is divided 7:6, where 7 judges form the majority and categorically accept the doctrine of basic structure, while the other 6 judges form the minority, reject the doctrine and affirm the unlimited power of Parliament to amend each & every part of the Constitution.
By coming to this case, the Supreme Court has understood that the situation arises where the deadlock can happen. It may be possible that the Parliament and Executive do not respect the rulings of this Court or even reject the judgment altogether. For resolving this situation & preventing the possible deadlock, the Supreme Court has adopted a more liberal and balanced approach. The Court realised that if the Parliament does not respect the authority of courts, then there can be a constitutional machinery failure. Hence, the Court accepted that the Parliament has power to amend each & every part of the Constitution including Part-III, but at the same time, the Court put a rider upon this power that the power of Parliament to amend the Constitution is subject to the basic structure of the Constitution.
The Supreme Court does not define the meaning of basic structure but only illustrates the doctrine by including some examples which are not exhaustive.
Chief Justice S.M. Sikri held that the basic structure means basic or fundamental elements of the Constitution. If these basic elements are destroyed, then the identity of the Constitution is changed.
There are certain basic elements in every Constitution, either the Indian Constitution or the US Constitution or any other country’s Constitution. If these basic elements/features are changed/altered, then the spirit of the Constitution is destroyed and the whole identity of the Constitution is changed altogether.
The question arises: who decides what forms the basic structure or not?
The Supreme Court held that the Supreme Court has the power to decide what is the basic structure or what is not. Through this judgment, very wide power is taken by the Supreme Court into its hands. The Court allowed that Parliament can do whatever amendment it wants to do, but the constitutionality of that amendment upon the basic structure theory is decided by the Supreme Court under Article 32 and the High Court under Article 226.
If any constitutional amendment is against the doctrine of basic structure, then that amendment can be declared null & void by the Supreme Court & High Courts.
PART – C [Future Implication of Basic Structure]
Before dealing with this part, first we should know how the Supreme Court found out this theory of basic structure or where it came from?
The First Origin of the Doctrine
The Doctrine of Basic Structure is found in the Constitution of Germany. We all know that after World War I, Hitler came into power and became the President/Chancellor of Germany and he assumed unlimited power in his hands, after destroying the Constitution of Germany and becoming the dictator of Germany.
When World War II was won by the Allied powers, Germany enacted their new Constitution and adopted this Doctrine of Basic Structure.
As per this doctrine, certain basic features of the Constitution are beyond the power of amendment.
Germans incorporated this theory expressly, but in our Constitution, nowhere the term basic structure is used. So the Supreme Court adopted this Doctrine and held that this Doctrine can be found impliedly in the Constitution of India.
There are some fundamental or basic elements in the Constitution which cannot be amended, and these fundamental or basic elements are necessary to protect the basic spirit of the Constitution.
Future Implication:
Initially in the judgment of Kesavananda Bharati v/s State of Kerala, 1973:
C.J. Sikri illustrated this doctrine as: “The basic structure may be said” –
- Supremacy of the Constitution
- Republican & Democratic forms of government
- Secularism
- Separation of powers between the legislature, the executive, and the judiciary
- Federal character of the Constitution
The Court said these illustrations are not exhaustive. A new illustration can be added in future, if the Supreme Court is satisfied that the illustration forms the basic structure of the Constitution.
Afterwards, through many judgments, the Supreme Court added new illustrations, these are –
-
- Independence of judiciary
- Free and fair election
- Power of judicial review
are also the basic structure of the Indian Constitution.
Recently, the Supreme Court, by using the Basic Structure Doctrine, declared the National Judicial Appointment Commission (NJAC) as unconstitutional because this is against the principle of independence of judiciary which is the basic structure of the Indian Constitution.
Thus, the Doctrine of Basic Structure is necessary for judicial activism & protection of the spirit of the Constitution.
- References:
-
- Constitution of India, 1950
- Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458
- Kameshwar Singh v. State of Bihar, AIR 1952 SC 252
- Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845
- I.C. Golaknath v. State of Punjab, AIR 1967 SC 1643
- Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461
- Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1
