The doctrine of Basic Structure?
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 basic structure doctrine is no stranger to disciples of the law. Frequently tied in with the issue of constitutional amendments, the basic structure doctrine, as its name suggests, posits that there are several features within the Constitution that form the basic fabric of our nationhood, and cannot simply be taken away by virtue of a constitutional amendment or legislation propounded by Parliament.
The Supreme Court of India developed it in a series of constitutional law cases in the 1960s and 1970s that culminated in Kesavananda Bharati v. State of Kerala (1973 SC), where the doctrine was formally adopted.
Bangladesh is perhaps the only legal system in the world which recognizes this doctrine with an expressed, written and rigid constitutional manner through article 7B of its Constitution.
Evolution of doctrine of basic structure
The Basic Structure Doctrine, evolved by Hon’ble Supreme Court of India, through its numerous landmark judgments over the years, brings in that required factor of Constitutionalism, which is necessary for sustenance, protection, maintenance and upkeep of the Constitutional essence of Rule of law.
Although the concept of Basic Structure originated and evolved in its early years in form of Constitutional Provisions as has been provided in the existing Constitution of Germany, but In India the same is extra- Constitutional i.e. not expressly provided in the Constitution but developed judicially through various judicial pronouncements over the time. Moreover the power to change/ add the unamendable parts of the Constitution i.e. the Basic Structure of the Constitution is vested with the Constitutional Courts having tool of Judicial Review.
The Basic Structure Doctrine is a Judge made Doctrine where certain features of the Constitution are beyond the limit of amending powers of the Parliament. In India, the Doctrine of Basic Structure is a judicial innovation and it continues to evolve through the judicial pronouncements of the Hon’ble Apex Court.
We can see the evolution of the Basic Structure through the landmark judgements as mentioned below-
Case 1: Shankari prashad v/s Union of India, 1951 SC
The world law in Article 13 (2) does not include amendments
Case 2: Sajjan singh v/s state of Rajasthan 1965 SC.
Upheld the shankari prashad judgement
Case 3: I.C Golakhnath v/s State of Punjab 1967 SC.
Overruled the above to judgement and explicitly held that the word law in article 13 (2) include amendments
Concept of prospective overruling was introduced
Reaction to Golakhnath judgement 24 CAA 1971,
In article 368, the word ‘power’ was added more over clause 1 and clause 2 was added
Case 4: Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr.,
Overruled Golakhnath judgement. It was held that preamble is a part of constitution unlike said in Re: Berubari union case. However, it said that “preamble Is not a source of power neither can be a source of limitation of power. Upheld the changes made in article 368 and article 13 by 24th CAA 1971
Introduced the landmark Basic structure doctrine (open to interpretation)
Reaction: 42nd CAA 1976.
- Changes made in 7th schedule (transfer 5 subject from state list to current list)
- Article 51 A, was added upon the recommendation of Swarn Singh committee
- Curtailed the judicial review power of High Court
Case 5: Minerva Ltd. And Ors. UOI 1980 SC
The Supreme Court added a new clause to the basic structure doctrine That is judicial review and harmony between fundamental rights and DPSB
Case 6: Waman Rao other v/s UOI 1981 SC
The concept of Basic Structure will apply only to those cases after 24/4/1973The court will see whether the amendment impact the Basic Structure or not.
The ‘Doctrine of Basic Structure’ is a judge-made doctrine which was propounded by the Indian Judiciary on 24th April 1973 in Keshavananda Bharati Sripadagalvaru case to put a limitation on the amending powers of the Parliament so that the ‘basic structure of the basic law of the land’ cannot be amended in exercise of its ‘constituent power’ under the Constitution.
Though the attempt was first made in the year 1967 in the Golakh Nath case by M. K. Nambyar to get it approved in the name of ‘necessarily implied restraint on the amending power of the Parliament’ but it took almost half a decade for the Indian judiciary to overcome its hesitancy and pronounce it in Keshavananda case the same thing what German Professor Dietrich Conrad already said in his lecture that he delivered in India in 1965.
The Constitution-makers gave the power to amend the Constitution of India in the hands of the Parliament so as to cope up with the changing needs and demands of ‘we the people’ under Article 368 and to make the Constitution 'stand amended' but the Parliament in the exercise of its constituent power under Article 368 of the Indian Constitution can amend any of the provisions of the Constitution and this power empowers the Parliament to amend even Article 368 itself which might led the Constitution of India opposite of 'stand amended' i.e., 'sit amended'.
Such unlimited power of amendment in the hand of Parliament without defined limit raises the number of questions like, is not there any limitation on the amending powers of the Parliament? If the answer of this question is not in the affirmative with a reason that the Constitution makers did not intend for such limitation otherwise, they would have provided for such limitations in the Constitution, then another question arises to what extent can the Parliament amend the basic law of the land? And if there will be no limitation on the amending power of the Parliament, are there no chances that this power of amendment in the name of ‘constituent power’ can be abused? Such raised propositions in this paper are covered and discussed in various Parts. Part II covers the constitutional concept of the ‘Basic Structure doctrine.
The judicial journey and development of the ‘Basic Structure’ doctrine have been covered from Shankari Prasad v. Union of India (1951) in Part III, Sajjan Singh v. State of Rajasthan (1965) in Part IV, I. C. Golakhnath v. State of Punjab (1967) in Part V and finally the Keshavananda Bharati v. State of Kerala (1973) in Part VI. The constitutional-unconstitutional game that Parliament played in the name of the Ninth Schedule of the Constitution has been covered in Part VII where the Hon’ble Supreme Court applied the doctrine of 24th April 1973 in the I. R. Coelho case (2007). Part VIII deals with the Pramati Educational and Cultural Trust case (2014) where the Supreme Court applied the Basic Structure doctrine and declared that Articles 15(5) and 21-A of the Indian Constitution are in consonance with the spirit of the doctrine and are not violative of the Basic Structure doctrine. Part IX covers the test of Basic Structure doctrine with the recapitulating words in Part X.
