Any discussion whatsoever with respect to the progress of the country especially India starts with the three pillars of democracy i.e legislative, executive and the judiciary and the fourth pillar being the media. These pillars have been conferred the nature of being interlocutory to each other. Bharat being a democracy, each of these pillars have also been conferred powers to bring about a noticeable change primarily driven towards achieving a 'welfare state' where every citizen is treated equally irrespective of their social status, caste, creed, religion, race etc. as in scripted in the article 14 of the Constitution of India.

Within the ambit of Articles 12-35, the Indian Constitution has granted all its citizens the fundamental rights due to which people living in the country have been conferred several necessary rights such as right to equality, against discrimination, right to life and personal liberty etc. The objective of this paper is to critically analyze the historical significance of basic structure doctrine through chronology of cases starting from the famous landmark Keshavananda Bharati case post which opened new doors that made the doctrine unbreakable.

The authors have chalked out a series of events due to which led to sprouting of the largest democracy in the world and not an anarchy. With earliest instances such as the Shankari prasad case and the most crucial events in the history such as the national emergency of 1975 which has completely changed the fabric of basic structure doctrine and amenability of laws by the parliament of India.

Introduction
The Indian Constitution presently stands as the largest written constitution in the world which contained 395,22 parts and 8 schedules at the time of its adoption on 26th January 1950 and presently contains about 448 articles, 25 parts and 12 schedules due to over 105 amendments taken place till date.[i] The praises it receives as on date for being the most comprehensive and supreme in its nature had been subjected to a lot of tussle and criticisms in its past and even now, after about 105 amendments, the law makers and the judiciary continue to carry the friction between them. The country 'Bharat' stands triumphantly its three massive pillars to safeguard the democracy i.e the legislature, executive and the Judiciary with each of its functions clearly defined.

There was always a requirement to set up comprehensive guidelines on the extent of amending power of the parliament. But since when the makers of the constitution proposed a 'procedure' for its amending power in article 368, it was short anticipated that the scope of amending power of the parliament would cause a growing friction between the parliament and the judiciary. It was never foreseen that their focus has to be turned towards agrarian reforms, free speech and compensatory discrimination.

Nehru's evocative statement that lawyers had 'purloined' the constitution, did not stop.[ii] (B.N. Kirpal, Ashok H. Desai, Gopal Subramanium, Rajeev Dhanav, & Raju Ramachandran,Supreme but not infalliable, Oxford Printing press, New Delhi India 2000). With more and more amendments being taken place, the more it went in the direction to overturn the judicial decicions purely on the basis of them being an obstruction to welfare state and progress.

This paper attempts to discuss the chronology of events and instances that took place over a period of time that permanently changed the meaning of basic structure doctrine. There arises various questions attached with the tern basic structure doctrine. The primary question being that what are the early traces of basic structure doctrine that existed? Was it time immemorial or is it a concept developed very recently that caused disharmony withing the parliament and thejudiciary.

This requires a bit of historical diving into the ancient judicial system in order to find even minued traces of this doctrine in scripted. The second question being about the mindset of law makers while amending the laws and how various regimes have used or misued the power of 'unlimited amendability' of the constitution at its initial stage and what has forced the judiciary to revolve their decicions just around compensatory discrimination and free speech at its initial point.

Separate Powers: Executive, Legislature And The Judiciary
The executive, legislature and the judiciary are the organs of the Indian Constitution and they all are interlocutory to each other. It is very important for all the three to maintain a coordial, harmonious relationship between each other. Especially between the legislature and judiciary because the functioning of the executive body is purely dependant on the manner in which the latter two gel with each other.

The main reason being that the executive is given a role of 'law enforcement' which means that its primariry duty is to implement and impose the law on the general public- that law which has been developed after a prolonged discussion, parliament sessions, parliament sessions accompanied by assents and dissents towards the law. Each body has been assigned powers 'seperately' so that they can function in their own autonomus capacity.

However the interlocuity between the three arises with the common goals they carry with them such as welfare state, socialist[iii], secular, democratic republic[iv]. Each authority are required to make laws which are compatible to the Constitution of India as No authority created under the constitution if supreme; it is the Constitution which is supreme[v].

The Executive
The Executive is defined in the Part V of the constitution of India under the head of 'The Union' under the chapter I which defines the powers, oath and affirmations and duration of the office of of the president [vi], Oath and affirmations, powers and term of office of the Vice President [vii]. It also provides for the Council of ministers[viii], the Attorney general[ix] and the conduct of Government Business[x]. The blend of President, Vice- president, and the Council of ministers and the Prime minister as an aid is what forms the executive body of the center replaced by the Governer, Council of ministers and the chief ministers at the state level. The Executive power is vested in the president- directly exercised by him or with the help of Council of ministers.

With respect to presidents role in law making, he acts as the de-jure head and gives assent to bills subjected to financial and money matters.He can absorb power of a state or a union territory and impose presidents rule in cases of constitutional disfunctionality in any of the states or union territories and also dissolve the Lok Sabha[xi].

There has been various talks on separation of powers and admisnistrative law making to cater to complicated socio-economic needs of the contemporary society and for ends to meet effectively[xii].There were discussions about achieving act of balance in compatability with rule of law in order to avoid misuse of power by the executive body in ADM Jabalpur vs Shiv Kand Shukla[xiii].To sum up the law making power of the executive, firstly an executiveis required by the parent act to bring it into operation on a specified date[xiv].

This is wholly relied on the executive to decide when shall the law be initiated. Secondly, the legislature shall pass a framework legislation and demand executive to provide the matter related to the legislature[xv]. Finally, the executive is expected to formulate regulations to fulfill the purpose of the said law.

The Legislature
The power of law making has been conferred by the Constitution of India under the articles 245-255 but the most important are in scripted in the articles 245-246[xvi]. Article 245 provides for the extent of laws made by the parliament and the legislatures of the state. Article 245 (1) states that parliament may make laws for the whole or any part of the territory of India, and the legislature may make laws for whole or any part of the territory of the state. Article 246 (1) states that Parliament has exclusive power to make laws with respect to any of the matters enumerated in the List 1 in the seventh schedule referred to as "union List", "state List"[xvii] and concurrent list[xviii].Union of legislature which ids called parliament, consists of two houses, known as Council of states (Rajya Sabha) and House of the people (Lok Sabha)[xix].

A bill becomes a law when it is assented by both the houses and ultimately the president. Article 368 of the Constitution of India talks about the power of parliament to amend the constitution[xx].Amendment of 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 not less than two-thirds of the members of that house present and voting[xxi].

The question with respect to the fundamental question of law is that what is the extent of the power of parliament to amend. If it is regarding any other act, it can be answered as 'absolute' but for the question of amending fundamental rights, there has been a lot of turmoil and brain drain between law makers(legislation) and the law keepers(judiciary).This can be understood elaborately in the chronology events yet to be discussed.

The Judiciary
The role of judiciary has always been to interpret, adjudicate and decide disputes in accordance with law. It is the constitutional prerogative of the superior courts to decide as whether the law is according to justice and if not, should it not be interpreted in accordance with justice[xxii]. In the case of Vishakha vs State of Rajasthan [xxiii], the Supreme Court has been commended by the general public for providing a framework to govern the laws regarding sexual harassment at workplace. There are many cases where the judiciary has used its fine and dispassionate sense of judgment to ensure justice. The judiciary has always used its discretionary powers to provide directives to the executive and legislative body[xxiv] and always looked up to a cordial relationship with them.

There are instances when judiciary triumphed over legislature. The first when in 1952 when Justice H J Kania died while in office and Jawaharlal nehru wanted to supersede Justice Patanjali Sastri. As a result all the six senior judge bench threatened to resign from their offices if Sastri was superseded with only few days left for retirement. Second instance when a plea was filed by Raj Narain, a social activist against the appointment of Indira Gandhi. Her appointment was found to be frivolous and she was told to vacate the office[xxv].

The nature of autonomous judiciary and the vested power of the judiciary to act for the natural justice and not for the benefits of power of executive or the judiciary has always caused a never-ending friction between the pillars of the democracy.

Chronology Of Events That Led To Basic Structure Doctrine:
Amendment Act
Case Law And Description
1ST Amendment 1951[xxvi]

1st amendment inserted Article 31(a),(b) and 9th schedule[xxvii].

In Shankari Prasad case[xxviii], Supreme Court gave absolute power to the legislature to even amend fundamental rights and that Article 13 is applicable only to ordinary laws and not Constitutional Amendment acts.

There was also a Right to Property[xxix] granted by the state under Article 31(1) and (b) which says that state has the power to completely or partially acquire any business. This is the outcome of abolition of Zamindari system by agrarian committee chaired by J.C Kumarappa in order to ensure equity status, increase agro production and opportunity to the rural population. Article 31 has been repealed and all the provisions have been shifted to article 19(1)(g), making it a legal right.

17th Amendment act 1964
17th amendment proposed to amend the definition of "estate" in the article 31(a) and included Ryotwari lands. In the case of Sajjan Singh vs State of Rajasthan[xxxi], the 9th schedule was challenged. It is that in the 9th schedule, any law violative of fundamental rights would be struck down but any law included in the 9th schedule is applicable even if it is violative in nature. There is a huge scope of misuse of power. Justice Hidayatullah and justice Mudholkar were not satisfied by this decision of justice Gajendra Gadkar and it was forwarded to even a larger bench consisting of 12 judge bench in the case of Golaknath vs State of Punjab[xxxii] and was held that parliament cannot abridge fundamental rights and is subjected to Judicial review and that article 13 will apply to Constitutional amendments too.[xxx]

24th Amendment act 1971
This particular amendment act brought in changes in these two conflicting articles i.e. Article 13 Cl (4) and Article Cl (3) which said that any Constitutional amendment brought in by the parliament would not be covered under Article 13, would not be applicable for Article 368 and vice versa. In the historic Judgement of Keshavananda Bharati case[xxxiv], the Basic structure doctrine was laid down which said that for the pillars of the constitution i.e socialist, secular, democratic republic[xxxv] etc. which form the basic structure, rest of the fundamental right are amendable. Justice Sikre said that there are many things which has the scope to fall under the basic structure and knowing the intention of law makers is important to understand the basic structure.[xxxiii]

25th Amendment act 1971
25th amendment talks about Right to Property and compensation. It says that according to article 31, any law made for fixing the amount of compensation for acquiring of a property or requestioning of the amount fixed shall be questioned in any court of law until and unless it fulfills the requirements of Article 19(1)(f)[xxxvii].

26th Amendment act 1971:
26th amendment act abolished the Privy purse and said that all rights, liabilities and obligations of the privy purse are extinguished and any ruler or prince would be ceased of his status to be called as ruler or prince.[xxxviii]

29th Amendment act 1972:
This brought in land reforms especially with respect to Kerala Land Reforms act 1963[xl] as it was included in the schedule 9 of the Constitution. There were continuous amendments made to the principal act through various amendment acts and through 29th amendment, the state inserted The Kerala Land Reforms (amendment) act, 1969 (Kerala Act of 1969) and The Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of 1971) as they may have protection under Article 31 B.[xxxix]

39th Amendment act 1975:
The 39th amendment act introduced Article 329 (a) instead of Article 71 which says that disputes arising out of the election of the President or Vice President shall be decided by the Supreme Court. Article 329(a) is inserted which is contrary to Article 71 which says that any election conducted shall not be questioned in any court of law. Emergency was imposed and Allahabad High Court Quashed Indira Gandhi's election. [xli]

42nd Amendment Act 1976:
The 42nd Amendment also known as the mini constitution inserted Article 31 (c) under section 3 and 4. Which amended article 31 (d) which combined Part 3 with part 4 of the constitution. In the case of Minerva mills[xliii], it was laid down for the inclusion of Judicial review, limited amending power, harmony between part 3 and part 4 of the constitution of India.[xlii]

Waman Rao Case:
As a concluding step towards classifying the basic structure doctrine, all the amendments were challenged and was finally held that the doctrine would be held prospectively and not retrospectively i.e on all the cases after 24th April 1973. Waman Rao applied the basic structure doctrine to uphold the validity on the basis of stare decisis.[xliv]

Understanding The Basic Structure Doctrine And Its Contents
After referring to the above table containing chronology of events, we have a rough idea regarding the basic structure doctrine which is now being consolidated and put forward in consolidated format. Basic structure doctrine was laid down by the Supreme Court as a 'no mans statute' which allowed the parliament to make or amend laws in without touching these statutes in order to uphold the integrity of the nation and maintain harmony between various bodies.

The primary content which plays a vital role in forming the basic structure is:

• Judicial review: The early traces of judicial review were seen in the case of Marbury vs Madison (1803) in which the Supreme Court was deemed powerful and limited the power of congressional and stated legislation unconstitutional. In our Indian constitution, the articles 13 (any law which contravenes FRs is void), article 32 (judicial remedy), Article 143 (confers power on SC advisory jurisdiction), articles 246, 254 etc. are linked with judicial review. It was first laid down in Shankari Prasad case [xlv], while the SC held that Right to property is not a fundamental right and rejected the contention of article 368. In Golakhnath case [xlvi], 1st, 4th, and 17th constitutional amendments were challenged and it was held that article 368 has no power to amend FRs. Finally, in Minerva Mills case [xlvii], through 42nd amendment act 1976, it allowed interpretation of various provisions by the judiciary.
   
• Secularism: Secularism stands as one of the crucial pillars which forms the basic structure doctrine. This is laid down in one of the landmark judgments by the Supreme Court i.e., S.R. Bommai vs Union of India (1994), delivered by a nine-judge bench. This laid down that it abolished the concept of theocratic state and restricts state from calling itself to be favoring one particular religion. Hence it is said that the concept of secularism is embedded in the constitution itself and is a vital part of the Basic Structure Doctrine. There has been granted a right to profess and propagate and promote any religion as per the article 35 of the constitution of India.
   
• Rule of Law: The rule of law forms another crucial pillar of the basic structure doctrine which says that the law is supreme and no other entity other than the law itself is superior. It was held in the case of Golakhnath vs Union of India (1967) as a basic structure by Justice Mudholkar. In India, we believe in the concept of constitutional supremacy as it is the supreme law applicable to all the citizens and provides the fundamental rights to the people living in the country.
   
• Judicial review: The rule of judicial review was included in the case of Indira Gandhi vs Raj Narain case [xlviii] as it was a crucial component to maintain a cordial relationship with all the bodies to ensure peace and harmony in society and to remain a democracy in its true sense. It is just and necessary as it prevents a country from becoming an anarchy. It bars the state from misuse of power and judges the laws passed in the parliament and dispassionately approves according to the supreme national interests. It upheld the concept of constitutional supremacy.

Other Important Aspects Of Basic Structure
As stated by Justice Sikre while delivering the Keshavananda Bharati case judgement:
There is much broader scope for basic structure which can arise in the future. It is just and necessary to understand the intention of the law makers in order to understand the wider scope of basic structure. There are further two possible aspects which has the potential to add up to the basic structure doctrine. They are:

• Judicial Activism: It is the process of taking the help of law courts to assess the various actions taken by the governments. Articles 32 and 226 grants the power to law courts at various levels to look into the matters of any body i.e legislative, executive, or administrative activities and declare unconstitutional or extinguish the law itself. It was held in the case of Fertilizer Corporation Kamgar Union vs Union of India[xlix] that the authority of SC is a crucial part to safeguard the fundamental rights. Article 136 grants the power to challenge any judgment, decree or sentence given by any lower-level tribunal or courts.
   
• Judicial Overreach: Judicial activism and judicial overreach are often interchanged but are different by a minuet point i.e judicial activism in excess can lead to judicial over reach. It includes imposing patriotism in national anthem as in the case of bijoe Emmanuel vs Union of India[l].As in the case of Sham Narayan chouksey[li] i.e singing national anthem inside of movie theatres, standing up during the national anthem, national flags displayed on the screen while the anthem is played. Other instances such as permanent liquor ban, cancellation of telecom licenses in 2g case, etc. Often judicial over reach is often criticized for being undemocratic in nature and held responsible for destroying the spirit of constitutionalism as it is seen as extreme and that which goes against freedom of choice.

Conclusion
As a democratic country and an independent, sovereign, socialist, republican country, it is just and necessary that the direction of law-making proceeds in a direction that it takes into account the supreme national interests of the citizens of the country.

All the organs of the democracy are bound to understand the intentions and mindset of the makers of the constitution of India on how did they develop for ourself such a supreme text due to which we are able to feel independent and are entitled to make our own choices and decisions rather than being a puppet in the land of aliens. Thus, every citizen has a duty to feel a sense of pride and embrace the multilateral mindset of the makers of the constitution due to which we are conferred with basic fundamental rights.

End Notes:

1. https://eoi.gov.in/kabul/?4645?000 written by Sumant Batra, para 2 dd
2. XII-XIII Parliamentary Debates (PD) (Pt II) Col8832 (17 May 1951)
3. Excel Wear vs Union of India A.I.R 1979 S.C 25, D.S Nakara vs Union of India A.I.R 1983 S.C. 130
4. Substituted by the Constitution (Forty-second Amendment) Act 1976
5. Golaknath vs State of Punjab A.I.R 1967 S.C. 1643
6. The Constitution of India Part V Chapter I Articles 52-61
7. The Constitution of India Part V Chapter I Articles 67-69
8. The Constitution of India Part V Chapter I Articles 74-75
9. The Constitution of India Part V Chapter I Article 76
10. The Constitution of India Part V Chapter I Articles 77-78
11. https://knowindia.india.gov.in/profile/the-union/executive.php
12. Bharat Bank vs Employees of Bharat Bank, AIR 1950 SC 306
13. AIR 1976 SC 1207
14. S. P. Sathe, Administrative Law, LexisNexis, 7th Edn., Pg 33.
15. S. P. Sathe, Administrative Law, LexisNexis, 7th Edn., Pg 36
16. Constitution of India, Part XI, Chapter 1 Legislative Relations
17. Constitution of India Article 246(2)
18. Constitution of India Article 246(3)
19. https://knowindia.india.gov.in/profile/the-union/legislature.php
20. Substituted by the Constitution twenty fourth Amendment Act, 1971, S.3 (w.e.f. 5-11-1971)
21. Article 368 enumerated as Cl. (2) thereof and Cl. (3) inserted by the Constitution (Twenty-fourth Amendment) Act, 1971, S.3 w.e.f. (5-11-1971)
22. https://www.legalserviceindia.com/legal/article-2142-judges-and-law-making.html
23. MANU/SC/0786/1997
24. IBID
25. https://www.legalserviceindia.com/legal/article-5602-influence-of-legislature-on-judiciary.html
26. The Constitution (First Amendment) Act, 1951
27. Added by the Constitution (First Amendment) Act, 1951, s. 14.
28. 1951 AIR 458, 1952 SCR 89
29. Commr. Hindu Religious Endowment v. L.T. Swamiar, AIR 1954 SC 282
30. The Constitution (Seventeenth Amendment) Act, 1964
31. 1964 AIR 464, 1964 SCR (4) 630
32. 1964 AIR 464, 1964 SCR (4) 630
33. The Constitution (Twenty Fourth Amendment) Act, 1971
34. Keshavananda Bharati vs state of kerala and anr on 24 April 1973 Writ Petition (civil) 135 of 1970
35. Substituted by the Constitution (forty-second amendment) Act, 1976, S.2, for "Sovereign Democratic Republic" w.e.f. 3-1-1977
36. The Constitution (Twenty-Fifth Amendment) Act, 1971
37. Sub0Cl. (f) omitted by the Constitution (forty-fourth Amendment) Act, 1978, S.2 (w.e.f. 20-6-1979
38. The Constitution (Twenty-Ninth Amendment) Act, 1972
39. Inserted by the Constitution (Twenty-ninth Amendment) Act, 1972, S.2 (w.e.f. 9-6-1972)
40. Inserted by the Constitution (Twenty-ninth Amendment) Act, 1972, S.2 (w.e.f. 9-6-1972)
41. The Constitution (Thirty-Ninth Amendment) Act, 1975
42. The Constitution (Forty-Second Amendment) Act, 1976
43. 1980 AIR 1789, 1981 SCR (1) 206
44. Waman Rao and ors vs Union of India (1981) 2 SCC 362, 1981 2 SCR 1
45. 1951 AIR 458, 1952 SCR 89
46. 1967 AIR 1643, 1967 SCR (2) 762
47. 1980 AIR 1789, 1981 SCR (1) 206
48. Indira Gandhi vs Rajnarain and anr 1975 AIR 1590, 1975 SCC (2) 159
49. 1981 AIR 344, 1981 SCR (2) 52
50. 1987 AIR 748, 1986 SCR (3) 518
51. AIR 2003 MP 233

Written By: G V Kowstubh Sarma, IIIrd year BBA LLB, Kristu Jayanti College of Law - Karnataka State Law University Email: [email protected], Ph No: 9490475840