Journey of Basic Structure of Indian Constitution by Neha Gupta Rajesh

Introduction:

The doctrine of basic structure of Constitution means the Constitution itself does not give the power to anyone to amend its feature constitution gives the power to make laws to the parliament and state legislatures according to their jurisdiction and amendment power to the parliament. However if the Supreme Court recognizes any law or amendment to be unconstitutional, it has the power to declare

such law as void. The main aim of the doctrine of basic structure of the constitution is to protect rights and duties of citizens and to preserve the democracy in India. The doctrine helps to maintain the soul and spirit of the Constitution.

Statue and Provisions:

Article 16(4),32,136,142,147,226,227,368 Constitution of India,1950

The features of Basic Structure of Indian Constitution:

The term ‘basic structure’ is not mentioned in our Indian Constitution and so the concept of basic construction was recognized and is evolving due to continuous interference of Supreme Court in various legislations and amendments. There are no exclusively specified features of basic structure however in the case of Keshavananda Bharti vs. State of Kerala in which brought this doctrine in the public view and it was held that basic structure of Constitution could not be changed even by Constitutional amendment .The Supreme Court in this case mentioned some features of basic structure of Indian Constitution as :

1. Supremacy of Constitution

2. Federal and Secular Character of Constitution

3. Democratic and Republican form of Government.

4. Separation of power among the three organs of Government.

5. Unity and Sovereignty of India

Further, in many cases, some other features of the basic structure have been added to the list such as:

• Rule of Law

• Judicial Review

• Parliamentary system

• Harmonious construction between Fundamental Rights and Directive Principles of State Policy

• Free and fair elections

• Power of Supreme Court under Article 32,136,142 and 147 while Power of High Courts under Article 226 and 227

• Lastly, limited power granted to the parliament to amend the constitution.

Over time, the Supreme Court as per various facts of different case laws has mentioned specifically some principles of basic structure and any law or amendment which contravenes with such principles will be quashed on grounds of distorting the basic structure of the Constitution.

Evolution of the doctrine of basic Structure (TIMELINE):

Over time the concept of basic structure has been evolved through different case laws such as:

1. Shankari Prasad vs. Union of India :

In this case, the first amendment, 1951 was challenged on the grounds that it violated part III of the Constitution i.e. Fundamental rights. However the Supreme Court stated that Parliament under Article 368 has the power to amend any part of the Constitution including the Fundamental Rights.

2. Sajjan Singh vs. the State of Rajasthan :

In this case, the judgment declared by SC in the Shankari Prasad case was upheld.

3. Golak Nath vs. the State of Punjab :

In this case, the Supreme Court overruled its earlier judgments in Shankari Prasaad and Sajjan Singh’s case and held that Parliament under Article 368 does not have the power to amend Part III of the Constitution and Fundamental rights as ‘transcendental and immutable’. The SC laid down that Article 368 gives the power to amend the Constitution though does not provide absolute power to amend any provision or part according to their will.

4. Keshavananda Bharti Case:

The Supreme Court upheld the validity of the 24th Constitution Amendment, 1971 which granted absolute power to the parliament to amend the constitution including part III and hence overruled the GolakNath case.

The Supreme Court held that any part of the Constitution can be amended including Fundamental Rights but the Basic Structure of the Constitution should not be changed/ amended.

The SC here stated that ‘Power to amend is not Power to destroy’ and hence established the Basic Structure Doctrine. This landmark case has helped to define the concept of Basic Structure and the SC here has also mentioned some features of the basic structure.

Hence, the Supreme Court can strike down any law which contravenes the features of the basic structure of the constitution.

5. Indira Nehru Gandhi vs. Raj Narain Case :

The 39th Amendment Act, 1975 was passed by the parliament during the emergency period and it excluded the election of President, Vice-President, Prime Minister, and Speaker of Lok Sabha from the scrutiny of Judicial Review.

The SC as per the doctrine of Basic Structure struck down clause 4 of Article 329-A inserted by the 39th Amendment Act on the grounds that it ultra-vires the Basic Structure of Constitution.

The Supreme Court reaffirmed the Doctrine of Basic Structure in this case.

6. Minerva Mills vs. Union of India :

In this case, it was established that the Constitution of India is Supreme of all and the judges stated that ‘limited amending power’ in itself is a feature of the basic structure.

It struck down two changes (Clause4 and 5 of Article 368) made in the constitution by the 42nd amendment, 1976 as they damaged the basic structure.

Also, Harmonious construction between fundamental Rights and DPSP and Judicial review was added as the features of basic structure in this case.

7. Indra Sawhney vs Union of India :

In this case, the Supreme Court examined the scope and extent of Article 16(4) which states for reservations of job in favor of

backward class and hence upheld its constitutional validity.

‘Rule of Law’ was added as the feature of Basic structure in this case.

8. S.R Bomai vs Union of India viii

In this case, ‘Federal structure, unity and integrity of India, secularism, socialism, and social justice’ were added as the feature of the Basic Structure of the Constitution.

There are some important case laws that evidence the evolution of the doctrine of the basic structure of the Indian Constitution.

Conclusion:

The concept of the basic structure of the constitution though discussed in various cases has not been clearly defined in either the Constitution or in any other case law. Some of the features of the basic structure have been mentioned in different cases however there are other features as well which are presently not explicitly defined and overtime may be specified on the basis of facts of different cases. One thing which is made clear in all case laws is parliament can amend any part of the constitution including the Fundamental rights and excluding the basic structure and if it amends the basic structure; Supreme Court has the authority to quash such law or amendment. The Constitution is the Supreme law and hence in order to preserve its spirits it is necessary to protect its basic structure.

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i) (1973) 4 SCC 225: AIR 1973 SC 1461

ii) AIR. 1951 SC 458

iii) 1965 AIR 845, 1965 SCR (1) 933

iv) 1967 AIR 1643, 1967 SCR (2) 762

v) 1975 AIR 865, 1975 SCR (3) 333

vi) AIR 1980 SC 1789

vii) AIR 1993 SC 477

viii)1994 AIR 1918, 1994 SCC (3)