UNVEILING THE EVOLUTION AND SIGNIFICANCE OF INDIA'S BASIC STRUCTURE DOCTRINE

 

UNVEILING THE EVOLUTION AND SIGNIFICANCE OF INDIA'S BASIC STRUCTURE DOCTRINE

Our constitution has so many features like our constitution is rigid and flexible and talks about checks and balances. The whole story of basic structure doctrine revolves around these features of our constitution. Article 368 talks about amendments to the constitution, it provides for three kinds of amendment i.e., amendment by simple majority; amendment by special majority; and amendment by special majority and ratification by the States. The Supreme Court is the supreme that decides whether any amendment made by the parliament is within the constitutional limits or not. In making the basic structure as a doctrine there is involvement of many cases which are decided by the Supreme Court and many amendments made by the parliament.

In every society that is evolving its constitution should be flexible to accept the changes Edmund Burke has said that “a Constitution is an ever growing thing and is perpetually continuous as it embodies the spirit of the nation. It is enriched at present by the past influence and it makes the future richer than the present.”

The principle of basic structure doctrine was propounded by the Supreme Court of India in the case of Kesavananda Bharati v. State of Kerela and others in 1973 where 13 judges sat for 68 days and pronounced the judgment of thousand pages. The judgment puts a limit on the parliament on how far they can amend the constitution. The Supreme Court believes that the amendment should be within the limits of the essence of the Constitution. Any amendment that destroys the fundamentals of the Constitution cannot be treated as a law. But it was not an easy task to do or to reach this conclusion of the basic structure doctrine there has been so much tussling of power between legislature and judiciary throughout many years in the form of judgments and constitutional amendments as we say “Rome wasn’t build in a day”.

WHAT IS THE BASIC STRUCTURE DOCTRINE?

The Constitution of India is a dynamic document that has been amended as per the needs and requirements of the society. The doctrine of basic structure is just a judicial innovation that ensures that the power of amendment is not being misused by Parliament. The general idea behind this doctrine is that the basic features of the Constitution of India should not be altered to such an extent that the true identity of the Constitution gets lost in the process. C
ertain governing rules are provided in the Indian Constitution, for the Parliament. And any amendment cannot be made that changes these principles. The doctrine has evolved over the years through various judgments, overruling, criticism and many dissenting opinions.

EVOLUTION OF BASIC STRUCTURE DOCTRINE

The basic structure doctrine acts as a safeguard in other words act as a shield of the constitution to preserve the principles of the constitution and also preserve the thoughts of the constituent assembly. Now we talk about how the thought of the Basic Structure Doctrine came into existence and how it shaped the Constitution.

Our main story all revolves around Article 13 which talks about laws inconsistent with or in derogation of fundamental rights and Article 368 which talks about the powers of the parliament to amend the constitution. Here is the chronological order of how the Supreme Court reached the Basic Structure Doctrine.

1st Constitutional Amendment Act 1951

Initially, we had 7 fundamental rights one of them was the Right to property which was amended under the 44th Constitutional Amendment Act. In this constitutional amendment Article 31A, Article 31B, and the 9th Schedule were added to take control over the property. The intention of the government was clear they wanted to abolish the zamindari system and make equal distribution of the land by fixing the limit on the land holdings under the 9th schedule government made a rule that the judiciary cannot apply judicial review over the acts which are under the 9th Schedule. Another amendment was by adding Article 19(1)(g) which talks about government can acquire the business completely or partially.

These are some amendments which have been curtailed the fundamental rights of the citizens by the 1st Amendment Act 1951.

Shankari Prasad v. Union of India

Under this case, the 1st Constitutional Amendment Act was challenged on the grounds of violation of the fundamental rights of the citizens. Under this Supreme Court held that any amendment made is not ordinary law and Article 13 is applied on the ordinary law only not on the constitutional amendment. This judgment gave Parliament more power to amend the constitution and also gave it the power to alter fundamental rights.

17th Constitutional Amendment Act 1964

Here parliament added more entries under Article 31A and Schedule 9 which provides immunity to that act that this act cannot be challenged and cannot be reviewed by the Supreme Court. Here different state governments started to make land reforms and then shift that particular act to schedule 9 of the constitution. 9th schedule provides immunity to the acts passed by the parliament and state legislatures.

Sajjan Singh v. State of Rajasthan 1964

Under this case, the 17th Constitutional Amendment was challenged but the Supreme Court revised the same statements as given under the Shankari Prasad v. Union of India that parliament can amend the Fundamental Rights as Constitutional Amendments are not covered under Article 13.

While the judgment of Chief Justice Gajendragadkar stated that “if the constitution maker wants to protect the Fundamental Rights to be not amended then it had mentioned expressly in the constitution” Justice Hidaytullah and Justice Mudholkar were not satisfied so they wanted to refer this to the larger bench and this bench have the strength of the five judges then it should be referred to the larger bench which should be of more than the five judges. Then an eleven-judge bench was constituted to hear a referred case.

I.C Golaknath v. State of Punjab1967

Under this, there is the family of Henry and willam golaknath owned over 500 acres of farmland. Under the Punjab Security and Land Tenures Act, the government held that the brothers could keep only thirty acres and few were given to tenants, and the rest were declared surplus. The family challenged the case under Article 32 because their fundamental right to acquire and hold property was denied by the state government. In this case, the development of the basic structure doctrine started when the eleven-judge bench of the Supreme Court held that the powers that are given to parliament under Article 368 are not absolute and are subject to judicial review. They cannot abridge the fundamental rights of the citizens and Article 13 will also apply to the Constitutional Amendments but the judgment also gave clarity that the effect of this judgment is prospective only.

24th Constitutional Amendment Act 1971

During the Prime Minister ship of Indira Gandhi, they bought the 24th Constitutional Amendment Act which added clauses in Article13(4) which state that Nothing in this article shall apply to any amendment of this constitution made under Article 368, and another additional clause was under Article 368(3) which states that Nothing in Article 13 shall apply to any amendment made under this article. After this amendment several constitutional amendments were passed they are as follows:

25th Constitutional Amendment Act 1972- this act added Article 31C and divided it into 2 parts: (i) No law for giving effects to directive principles can be declared unconstitutional because it violates Article 14, Article 19 and Article 31.

(ii) No law containing a declaration for giving effect to such policy shall be questioned in any court on the ground that it does not affect such a policy.

26th Constitutional Amendment Act 1971- This act abolished the Privy Purses.

29th Constitutional Amendment Act 1972- This act places Land reform acts and amendments to these acts under Schedule 9 of the Constitution.

These Constitutional Amendments violated the fundamental rights of the citizens and Parliament made a curtain of Schedule 9 to protect the laws.

Kesavananda Bharati v. State of Kerela 1973

Under this case, the 24th, 26th, 29th and Golaknath judgment was challenged and the Supreme Court held that parliament has the power to amend the constitution but not the basic structure of the constitution so the 25th amendment under 31C (i) is only valid and (ii) is not valid because judicial review is the basic structure. The basic structure can be seen from the intention of the constitution makers and the list of the basic structure is not limited it with be updated from time to time.

After this move, the parliament cannot make any law that will hamper the basic structure of the constitution and the intention of the constitution makers.

Indira Gandhi v. Raj Narain

Before this case, we have to understand the background when Allahabad High Court found Indira Gandhi guilty of malpractices in the election. She challenged this case to the Supreme Court and before that, she passed a 39th Constitutional Amendment that added Article 329A (iv) that the Supreme Court cannot try electoral disputes of the President, Prime Minister, Vice President and Speaker of the Lok Sabha.

So under this case, the judgment of the Kesavanada Bharati was applied and Article 329(iv) became unconstitutional because it violates the basic structure. During all these things going on the National Emergency was declared and after it was ended the Janta party came into power and abolished the 39th Constitutional Amendment and the 42nd Constitutional Amendment Act was passed also known as the mini-constitution.

42nd Constitutional Amendment Act

Under this Act Article 368(4) and 368(5) was added which conferred unlimited amending power to the parliament and the parliament can make changes in Part IV and Part III and they cannot challenged in any court of law.

Minerva Mills v. Union of India and Ors. 1980

In this case, the Supreme Court held that the parliament cannot exercise the unlimited power it is limited by the Basic Structure Doctrine. Under this court said that judicial review is itself a basic structure of the Constitution, parliament has the limited power of the amendment and there should be harmony between PART IV and PART III.

After this, there are two more case laws Waman Rao v. Union of India 1980 and IR Coelho Case 2007 these two cases discuss the applicability of the Basic structure doctrine and it was held that the after 24th April 1973 means after Kesavanada Bharati’s judgment after this only judicial review should be applied on the Acts means the judgment have the retrospective effect only. The rest acts of before Kesavanada Bharati's judgment was treated as like they were treated as before there should be no changes applied to that Act.

CONCLUSION

The basic structure thus came as a savior of the Indian Constitution to save the sanctity of the Fundamental rights of the citizens from the ever-encroaching executive and legislature. Thus the legislature is barred from any act which may damage, emasculate, destroy, abrogate, change, or alter such provision, which destroys the identity of the constitution.