This post has been authored by Hiral Chandrakant Jadhav- Panchal
EVOLUTION OF BASIC STRUCTURE DOCTRINE
1. A.K. Gopalan v. State of Madras (1950)
In the A.K. Gopalan v. State of Madras (1950) case, the Supreme Court interpreted the Fundamental Rights under Part III of Indian Constitution.
In this case, it held that the protection under Article 21 is available only against arbitrary executive action and not from arbitrary legislative action.
This means that the State can deprive the right to life and personal liberty of a person based on a law.
This is because of the expression ‘procedure established by law’ in Article 21, which is different from the expression ‘due process of law’ contained in the American Constitution.
Hence, the validity of a law that has prescribed a procedure cannot be questioned on the ground that the law is unreasonable, unfair, or unjust.
Secondly, the Supreme Court held that ‘personal liberty’ means only liberty relating to the person or body of the individual.
2. Shankari Prasad v. Union of India (1951)
In this case, the constitutional validity of the First Amendment Act (1951), was challenged.
The Supreme Court ruled that the power of the Parliament to amend the Constitution under Article 368 also includes the power to amend Fundamental Rights.
The word ‘law’ in Article 13 includes only ordinary laws and not constitutional amendment acts (constituent laws).
Therefore, the Parliament can abridge or take away any of the Fundamental Rights by enacting a constitutional amendment act and such a law will not be void under Article 13.
To learn more about the Indian Constitution, enrol for Certificate in Constitutional Law.
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Berubari Union Case (1960)
In this case, the issue was resolved about whether the Preamble is part of the Constitution or not.
According to the Supreme Court, in the Berubari Union case (1960), the Preamble shows the general purposes behind the several provisions in the Constitution and is thus a key to the minds of the makers of the Constitution.
Further, where the terms used in any article are ambiguous or capable of more than one meaning, some assistance at interpretation may be taken from the objectives enshrined in the Preamble.
Despite this recognition of the significance of the Preamble, the Supreme Court specifically opined that the Preamble is not a part of the Constitution.
Therefore, it is not enforceable in a court of law.
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Golaknath v. State of Punjab (1967)
In that case, the Supreme Court ruled that the Parliament cannot take away or abridge any of the Fundamental Rights.
The Court held that the Fundamental Rights cannot be amended for the implementation of the Directive Principles.
The Parliament reacted to the Supreme Court’s judgement in the Golaknath Case (1967) by enacting the 24th Amendment Act (1971) and the 25th Amendment Act (1971).
- The 24th Amendment Act declared that the Parliament has the power to abridge or take away any of the Fundamental Rights by enacting Constitutional Amendment Acts.
- The 25th Amendment Act inserted a new Article 31C which contained the following two provisions: No law which seeks to implement the socialistic Directive Principles specified in Article 39 (b) and (c) shall be void on the ground of contravention of the Fundamental Rights conferred by Article 14, Article 19, or Article 31.
No law containing a declaration for giving effect to such a policy shall be questioned in any court on the ground that it does not give effect to such a policy.
To learn more about the Indian Constitution, enrol for Certificate in Constitutional Law.
5. Indira Nehru Gandhi v. Raj Narain case (1975)
The doctrine of basic structure of the constitution was reaffirmed and applied by the Supreme Court in the Indira Nehru Gandhi case (1975).
In this case, the Supreme Court invalidated a provision of the 39th Amendment Act (1975) which kept the election disputes involving the Prime Minister and the Speaker of Lok Sabha outside the jurisdiction of all courts.
As per the court, this provision was beyond the amending power of Parliament as it affected the basic structure of the constitution.
The Parliament reacted to this judicially innovated doctrine of ‘basic structure’ by enacting the 42nd Amendment Act (1976).
This Act amended Article 368 and declared that there is no limitation on the constituent power of Parliament and no amendment can be questioned in any court on any ground including that of the contravention of any of the Fundamental Rights.
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Minerva Mills v. Union of India (1980)
The Supreme Court reiterated that Parliament can amend any part of the Constitution but it cannot change the “Basic Structure” of the Constitution.
In the Minerva Mills case, the Supreme Court held that ‘the Indian Constitution is founded on the bedrock of the balance between the Fundamental Rights and the Directive Principles.
They together constitute the core of the commitment to social revolution.
The goals set out by the Directive Principles have to be achieved without the abrogation of the means provided by the Fundamental Rights.
Therefore, the present position is that Fundamental Rights enjoy supremacy over Directive Principles.
Yet, this does not mean that the Directive Principles cannot be implemented.
The Parliament can amend the Fundamental Rights for implementing the Directive Principles, so long as the amendment does not damage or destroy the basic structure of the Constitution.
7. S. R. Bommai v. Union of India (1994)
In this case, the Supreme Court laid down that the Constitution is federal and characterised federalism as its ‘basic feature’.
It observed the fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis-a-vis the states does not mean that the states are mere appendages of the Centre.
The states have an independent constitutional existence. They are not satellites or agents of the Centre. Within the sphere allotted to them, the states are supreme.
The fact that during an emergency and in certain other eventualities their powers are overridden or invaded by the Centre is not destructive of the essential federal feature of the Constitution.
They are exceptions and an exception is not a rule. Let it be said that the federalism in the Indian Constitution is not a matter of administrative convenience, but one of principle–the outcome of our own process and a recognition of the ground realities.
To learn more about the Indian Constitution, enrol for Certificate in Constitutional Law.
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Keshavanda Bharti v. State of Kerala (1973)
It was the Kesavananda Bharati case that brought this doctrine into the limelight. It held that the “basic structure of the Indian Constitution could not be abrogated even by a constitutional amendment”. The judgement listed some basic structures of the constitution as:
- Supremacy of the Constitution
- Unity and sovereignty of India
- Democratic and republican form of government
- Federal character of the Constitution
- Secular character of the Constitution
- Separation of power
- Individual freedom
Over time, many other features have also been added to this list of basic structural features. Some of them are:
- Rule of law
- Judicial review
- Parliamentary system
- Rule of equality
- Harmony and balance between the Fundamental Rights and DPSP
- Free and fair elections
- Limited power of the parliament to amend the Constitution
- Power of the Indian Supreme Court under Articles 32, 136, 142 and 147
- Power of the High Court under Articles 226 and 227
Any law or amendment that violates these principles can be struck down by the SC on the grounds that they distort the basic structure of the Constitution.
9. 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.
- 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.
- This was done in order to prevent them from being challenged in court.
- 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.
- 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.
To learn more about the Indian Constitution, enrol for Certificate in Constitutional Law.
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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.