Basic Structure Doctrine

The basic structure doctrine is a common law legal doctrine that the constitution of a sovereign state has certain characteristics that cannot be erased by its legislature. The doctrine is recognised in India, Bangladesh, Pakistan, and Uganda. It was developed by the Supreme Court of India in a series of constitutional law cases in the 1960s and 1970s, culminating in Kesavananda Bharati v. State of Kerala, where the doctrine was formally adopted.

Bangladesh uniquely recognizes this doctrine explicitly through Article 7B of its Constitution. In Kesavananda, Justice Hans Raj Khanna stated that the Constitution of India has basic features that cannot be altered or destroyed through amendments by Parliament.

Key "Basic Features" include:

• Fundamental rights guaranteed to individuals by the Constitution.
• The Supreme Court's power to review and strike down constitutional amendments that conflict with or alter the "basic structure" of the Constitution.
   

• The Supreme Court initially held that any part of the Constitution was amendable, but in 1967, it reversed this position in Golaknath v. State of Punjab, declaring that Fundamental Rights in Part III were beyond Parliament's reach.
   
• In 1973, the basic structure doctrine was formally introduced in Justice Hans Raj Khanna's judgment in Kesavananda Bharati v. State of Kerala.
• The Court ruled that while Parliament has wide powers, it cannot destroy or emasculate the basic elements or fundamental features of the Constitution.

The doctrine has been upheld in several landmark cases, including:

• Indira Nehru Gandhi v. Raj Narain
• Minerva Mills v. Union of India

• These cases used the basic structure doctrine to strike down unconstitutional amendments and restore Indian democracy.
• While the doctrine has been rejected in some jurisdictions (e.g., Singapore), it has been accepted in others (e.g., Malaysia).
• Justice J.R. Mudholkar first theorized the concept of "basic features" in his dissent in Sajjan Singh v. State of Rajasthan (1964).
• Justice H.R. Khanna's judgment in Kesavananda Bharati emphasized that the Constitution's basic foundation rests on the dignity and freedom of its citizens, which cannot be destroyed by parliamentary legislation.

[9]The basic features of the Constitution have not been explicitly defined by the Judiciary. At least, 20 features have been described as "basic" or "essential" by the Courts in numerous cases, and have been incorporated in the basic structure. Only Judiciary decides the basic features of the Constitution. In Indira Nehru Gandhi v. Raj Narain and also in the Minerva Mills case, it was observed that the claim of any particular feature of the Constitution to be a "basic" feature would be determined by the Court in each case that comes before it. Some of the features of the Constitution termed as "basic" are listed below:

1. Supremacy of the Constitution
2. Rule of law
3. The principle of separation of powers
4. The objectives specified in the preamble to the Constitution of India
5. Judicial review
6. Articles 32 and 226
7. Federalism (including financial liberty of states under Articles 282 and 293)
8. Secularism
9. The sovereign, democratic, republican structure
10. Freedom and dignity of the individual
11. Unity and integrity of the nation
12. The principle of equality, not every feature of equality, but the quintessence of equal justice
13. The "essence" of other fundamental rights in Part III
14. The concept of social and economic justice — to build a welfare state: Part IV of the Constitution
15. The balance between fundamental rights and directive principles
16. The parliamentary system of government
17. The principle of free and fair elections
18. Limitations upon the amending power conferred by Article 368
19. Independence of the judiciary
20. Effective access to justice
21. Powers of the Supreme Court of India under Articles 32, 136, 141, 142

The Supreme Court's initial position on constitutional amendments was that no part of the Constitution was unamendable and that the Parliament might, by passing a Constitution Amendment Act in compliance with the requirements of article 368, amend any provision of the Constitution, including the Fundamental Rights and article 368.

• In Shankari Prasad Singh Deo v. Union of India, the Supreme Court unanimously held:
  • "The terms of article 368 are perfectly general and empower Parliament to amend the Constitution without any exception whatever."
  • In the context of article 13, "law" must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power, with the result that article 13 (2) does not affect amendments made under article 368.
     
• In Sajjan Singh v. State of Rajasthan, by a majority of 3–2, the Supreme Court held:
  • "When article 368 confers on Parliament the right to amend the Constitution, the power in question can be exercised over all the provisions of the Constitution."
  • It would be unreasonable to hold that the word "Law" in article 13 (2) takes in Constitution Amendment Acts passed under article 368.
• In both cases, the power to amend the rights had been upheld on the basis of Article 368.
   
• Golaknath case:
  • In 1967, the Supreme Court reversed its earlier decisions in Golaknath v. State of Punjab.
  • A bench of eleven judges (the largest ever at the time) of the Supreme Court deliberated as to whether any part of the Fundamental Rights provisions of the constitution could be revoked or limited by amendment of the constitution.
     
  • The Supreme Court delivered its ruling, by a majority of 6-5 on 27 February 1967, holding that:
    • An amendment of the Constitution is a legislative process, and that an amendment under article 368 is "law" within the meaning of article 13 of the Constitution.
    • If an amendment "takes away or abridges" a Fundamental Right conferred by Part III, it is void.
  • Article 13(2) reads, "The State shall not make any law which takes away or abridges the right conferred by this Part and any law made in contravention of this clause shall, to the extent of contravention, be void."
     
  • The Court ruled:
    • Fundamental Rights included in Part III of the Constitution are given a "transcendental position" under the Constitution and are kept beyond the reach of Parliament.
    • The scheme of the Constitution and the nature of the freedoms it granted incapacitated Parliament from modifying, restricting, or impairing Fundamental Freedoms in Part III.
  • Parliament passed the 24th Amendment in 1971 to abrogate the Supreme Court ruling in the Golaknath case.
     
  • This amendment:
    • Expressly provided that Parliament has the power to amend any part of the Constitution including the provisions relating to Fundamental Rights.
    • Amended articles 13 and 368 to exclude amendments made under article 368 from article 13's prohibition of any law abridging or taking away any of the Fundamental Rights.
       
  • Chief Justice Koka Subba Rao, writing for the majority, held that:
    • A law to amend the constitution is a law for the purposes of Article 13.
    • Article 13 prevents the passing of laws which "take away or abridge" the Fundamental Rights provisions.
    • Article 368 does not contain a power to amend the constitution but only a procedure.
    • The power to amend comes from the normal legislative power of Parliament.
    • Therefore, amendments which "take away or abridge" the Fundamental Rights provisions cannot be passed.

Keshavananda Bharti Case 1973

Six years later in 1973, the largest ever Constitution Bench of 13 Judges heard arguments in Kesavananda Bharati v. State of Kerala (case citation: AIR 1973 SC 1461). The Supreme Court reviewed the decision in Golaknath v. State of Punjab, and considered the validity of the 24th, 25th, 26th, and 29th Amendments. The Court held, by a margin of 7–6, that although no part of the constitution, including fundamental rights, was beyond the amending power of Parliament (thus overruling the 1967 case), the "basic structure of the Constitution could not be abrogated by constitutional amendment". The decision of the Judges is complex, consisting of multiple opinions taking up one complete volume in the law reporter "Supreme Court Cases".

The findings included the following:

• All of the Judges held that the 24th, 25th, and 29th Amendments Acts are valid.
• Ten judges held that Golak Nath's case was wrongly decided and that an amendment to the Constitution was not a "law" for the purposes of Article 13.
• Seven judges held that the power of amendment is plenary and can be used to amend all the articles of the constitution (including the Fundamental Rights).
• Seven judges held (six judges dissenting on this point) that "the power to amend does not include the power to alter the basic structure of the Constitution so as to change its identity".
• Seven judges held (two judges dissenting, one leaving this point open) that "there are no inherent or implied limitations on the power of amendment under Article 368".

Nine judges (including two dissenters) signed a statement of summary for the judgment that reads:

1. Golak Nath's case is over-ruled.
2. Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.
3. The Constitution (Twenty-fourth Amendment) Act, 1971 is valid.
4. Section 2(a) and 2(b) of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid.
5. The first part of section 3 of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid. The second part, namely "and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy," is invalid.
6. The Constitution (Twenty-ninth Amendment) Act, 1971 is valid.

The ruling thus established the principle that the basic structure cannot be amended on the grounds that a power to amend is not a power to destroy.

Defining the basic structure

The majority had differing opinions on what the "basic structure" of the Constitution comprised.
Chief Justice Sarv Mittra Sikri, writing for the majority, indicated that the basic structure consists of the fol lowing:

• The supremacy of the constitution.
• A republican and democratic system.
• The secular character of the Constitution.
• Maintenance of the separation of powers.
• The federal character of the Constitution.

Justices Shelat and Grover in their opinion added three features to the Chief Justice's list:

• The mandate to build a welfare state contained in the Directive Principles of State Policy.
• Maintenance of the unity and integrity of India.
• The sovereignty of the country.

Justices Hegde and Mukherjea, in their opinion, provided a separate and shorter list:

• The sovereignty of India.
• The democratic character of the polity.
• The unity of the country.
• Essential features of individual freedoms.
• The mandate to build a welfare state.

Justice Jaganmohan Reddy preferred to look at the preamble, stating that the basic features of the constitution were laid out by that part of the document, and thus could be represented by:

• A sovereign democratic republic.
• The provision of social, economic and political justice.
• Liberty of thought, expression, belief, faith and worship.
• Equality of status and opportunity. [15]