BASIC STRUCTURE DOCTRINE
The Basic Structure Doctrine was enacted by the Supreme Court of India which promulgated that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the parliament .The most prominent among these are the fundamental rights granted to individuals by the constitution.
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.
This notion got a formal approval in the Shankari Prasad case.
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Shankari Prasad vs Union of India & State of Bihar 1951:
This is a case that challenged the validity of the First Amendment Act to the Constitution of India. The first amendment of the constitution of India, enacted in 1951, made several changes to the Fundamental Rights provisions of the constitution. It placed restrictions on the freedom of speech and expression, validated of zamindari abolition laws which interfered with the right to property, and clarified that the right to equality does not bar the enactment of laws which provide “special consideration” for weaker sections of society
The grounds for the challenge was that it compromised the Fundamental Rights under Part of individuals guaranteed under the Constitution of India.
The Supreme Court of India held that the power to amend the Constitution, including Fundamental Rights is contained in Article 368. It ruled that an amendment is not a law within the meaning of Article 13(2) which states that – “The State shall not make any law which takes away or abridges the rights conferred by this part and any law made in contravention to this clause shall, to the extent of the contravention, be void”. An amendment is valid even if it abridges any fundamental Right.
This position got further emboldened in the Sajjan Singh case.
Sajjan Singh vs State of Rajasthan 1965:
This is a case that challenged the Seventeenth Amendment which limited the jurisdiction of the High Courts and, therefore, required ratification by one-half of the States under the provisions of article 368. In this case the Supreme Court opined that 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.
This position changed after the Golaknath case.
Golak Nath vs. State of Punjab 1967:
This is a case that challenged Punjab government’s claim on privately held “surplus” land. A bench of eleven judges 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 judgment reversed the Supreme Court’s earlier decision which had upheld Parliament’s power to amend all parts of the Constitution, including Part III. The judgement left Parliament with no power to curtail Fundamental Rights. All constitutional amendments thus far which were in contravention or which had made an exception to fundamental rights chapter of the Constitution were said to be void.
Parliament passed the 24th Amendment in 1971 to abrogate the Supreme Court judgement. It also amended article 368 to provide expressly that Parliament has power to amend any provision of the Constitution. The amendment further made it obligatory for the President to give his assent, when a Constitution Amendment Bill was presented to him.
Similarly, after the government lost a Supreme Court case for withdrawing the privy purse given to erstwhile princes, Parliament passed the 26th Amendment. This gave constitutional validity to the government’s abolition of the privy purse and nullified the Supreme Court’s order.
This tussle came to precipitation in the Kesavananda Bharati case
Kesavananda Bharati vs State of Kerala 1973:
Sri Kesavananda Bharati challenged the Kerala government’s attempts, under two state land reform acts, to impose restrictions on the management of religious property which conflicted with Article 26, concerning the right to manage religiously owned property without government interference. In this case the Court ruled that constitutional amendments pursuant to Article 368 were subject to fundamental rights review. The court upheld the 24th amendment but ruled that it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution. The Basic Structure doctrine forms the basis of power of the Indian judiciary to review, and strike down, amendments to the Constitution of India enacted by the Indian parliament which conflict with or seek to alter this basic structure of the Constitution.
The Court reaffirmed and applied the basic structure doctrine in Raj Narain case:
State of Uttar Pradesh v. Raj Narain 1975:
It was case that had been filed by the defeated opposition candidate, Raj Narain against Indira Gandhi accusing her of electoral malpractices. It was heard by the Allahabad High Court that found the then-Prime Minister of India Indira Gandhi guilty. The court invalidated Gandhi’s win and barred her from holding elected office for six years. The decision and a series of events post that led to the imposition of a state of emergency by Gandhi’s government from 1975 to 1977.
Post the imposition of emergency the government designed an amendment to negate the judgement of Allahabad High Court. The 39th amendment placed restrictions on judicial scrutiny of post of Prime Minister. The amendment was introduced and passed in the Lok Sabha on August 7, 1975 and again introduced and passed in the Rajya Sabha on August 8, 1975. As many as 17 State Assemblies, summoned on Saturday, August 9 ratified this amendment and President Fakhruddin Ali Ahmad gave his assent on Sunday, August 10 and the civil servants issued gazette notification on Sunday, August 10, 1975. As a consequence of this amendment to the Constitution of India, Supreme Court of India’s scheduled hearing on August 11, 1975 of petition challenging Prime Minister Indira Gandhi’s election became infructuous
Indira Nehru Gandhi v. Raj Narain, popularly known as Election case:
The Supreme Court validated the appointment of Indira Gandhi but applied the theory of basic structure and struck down article 329-A,which was inserted by the 39th Amendment in 1975 on the ground that it was beyond the amending power of the parliament as it destroyed the basic feature of the constitution.
After the decision of the Supreme Court in Kesavananda Bharati and Indira Nehru Gandhi case the constitution (42nd Amendment) Act, 1976 was passed which added two new clauses, namely, clause (4) and (5) to Art.368 of the Constitution. It declared that there shall be no limitation whatever on the constituent power of parliament to amend by way of addition, variation or repeal of the provisions of the Constitution under this Article.
This came to a head in the Minnerva Mills case:
Minerva Mills vs Union of India 1980:
Minnerva Mills was a textile undertaking held by a private limited company which was nationalized and taken over by the Central Government. The petitioners challenged the constitutionality of Sections 4 and 55 of the Constitution (42nd Amendment) Act, 1976. In the Minerva Mills case, the Supreme Court provided key clarifications on the interpretation of the basic structure doctrine. The court unanimously ruled that the power of the Parliament of India to amend the constitution is limited by the constitution. Hence the parliament cannot exercise this limited power to grant itself an unlimited power. In addition, a majority of the court also held that the parliament’s power to amend is not a power to destroy. Hence the parliament cannot emasculate the fundamental rights of individuals, including the right to liberty and equality. The ruling struck down section 4 and 55 of the Constitution (Forty-Second Amendment) Act.
This doctrine was further cemented in the Chandra Kumar case:
Chandra Kumar vs Union of India 1997
The court held that fundamental rights conferred by Part III of the Constitution cannot be abrogated, though a reasonable abridgement of those rights could be effected in public interest. There is a limitation on the power of amendment by necessary implication which was apparent from a reading of the preamble. Every provision of the Constitution was open to amendment provided the basic foundation or structure of the Constitution was not damaged or destroyed.
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