Basic Structure of Constitution:

The phrase ‘basic structure’ itself is no where mentioned in the Constitution. The Supreme Court recognized this concept for the first time in the historic Kesavananda Bharati case in 1973. Ever since the Supreme Court has been the interpreter of the Constitution and the arbiter of all amendments made by Parliament. Article 368 of the Constitution gives the impression that Parliament’s amending powers are absolute and encompass all parts of the document. With the intention of preserving the original ideals envisioned by the constitution-makers, the apex court pronounced that Parliament could not distort, damage or alter the basic features of the Constitution under the pretext of amending it.

Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr. is a landmark decision by the Hon’ble Supreme Court of India that outlined the basic structure doctrine of Indian Constitution. The doctrine forms the basis of power of the Indian judiciary to review and override amendments to the Constitution of India enacted by the Indian parliament. The Kesavananda judgment also defined the extent to which Parliament could restrict property rights, in pursuit of land reform and the redistribution of large landholdings to cultivators, overruling previous decisions that suggested that the right to property could not be restricted. The case was a culmination of a series of cases relating to limitations to the power to amend the Constitution.

History of Basic Structure of Constitution:-

In the year 1951, Parliament added the Ninth Schedule to the Constitution for the very first amendment in 1951 as a means of immunizing certain laws against judicial review. Under the provisions of Article 31 laws places in the Ninth Schedule-pertaining to the acquisition of private property and compensation payable for such acquisition-cannot be challenged in a court of law on the ground that they violated the fundamental rights of the citizen. The above constitutional amendment challenged before the Hon’ble Supreme Court of India on the ground that they violated the Article 13(2) of the Constitution.

Article 13(2) states that 2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

In 1952 (Sankari Prasad Singh Deo v. Union of India) and 1955 (Sajjan Singh v. Rajasthan), the Supreme Court rejected both arguments and upheld the power of Parliament to amend any part of the Constitution including that which affects the fundamental rights of citizens

Golaknath vs State of Punjab Case 1967:-

Thereafter in the year 1967, the above verdict was reversed by the Hon’ble Supreme Court of India (11 Judge Bench). the apex court held that the amending power and legislative powers of Parliament were essentially the same. Therefore, any amendment of the Constitution must be deemed law as understood in Article 13 (2). It held that  the Constitution gives a place of permanence to the fundamental freedoms of the citizen. Parliament could not modify, restrict or impair fundamental freedoms due to this very scheme of the Constitution and the nature of the freedoms granted under it. The judges stated that the fundamental rights were so sacrosanct and transcendental in importance that they could not be restricted even if such a move were to receive unanimous approval of both houses of Parliament.

It is to be noted that the Term Basic Structure of Constitution was only mentioned during the arguments of the case by the Lawyers.

After the Golaknath case, a bill was introduced to amend Article 368 but it was shelved as the Shantilal Mangal Das Case (1969) gave effect to the 4^th amendment which made the adequacy of compensation of acquisition of property a non-justiciable issue. But after a year the Bank Nationalisation Case (R.C. Cooper vs Union of India), nullified the 4^th amendment The Privy Purses case (1971) held that Article 291 conferred on the rules of Indian States justicialble rights of property in their Privy purses.

The 24^th Amendment

The parliament could not acquiesce to the situation and the 24^th amendment was brought. I t added a new clause (4) to Article 13. “Nothing in this Article shall apply to constitutional amendment under Article 368” The marginal heading to Article 36 was changed from “Procedure for amending the constitution” to “Power of Parliament to amend the constitution and procedure thereof” A new clause (1) was added to Article 368 “Notwithstanding anything in this constitution, Parliament may, in exercise of its constituent power, amend by way of addition, variation or repeal any provision of the constitution in accordance with the procedure laid down in Article 368. President’s Assent was made obligatory by replacing may by shall. A new clause (3) was added to Article 368 “nothing in Article 13 shall apply to any amendment made under this Article”

Concept of Basic Structure of Constitution:

Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr

The constitutional validity of amendments was challenged before the Full bench of the Supreme Court of India. Question to be decided was: “What is the scope of the amending power of Parliament”

It was held that the power to amend the constitution was implicit in the constitution (in Article 368) even before the 24^th amendment. It contained earlier also the power as well as the procedure of amendment. The 24^th Amendment merely made it explicit or declaratory, However, the basi features of the Constitution cannot be taken away by amendment. The word amendment postulates that the old constitution must survive through in its basic elements. Six out of the seven judges if the majority accepted the theory of implied limitation but J. Khanna who concurred, rejected the theory of implied limitation but he accepted the basic structure doctrine.

As to fundamental rights, it was held that they cannot be abrogated or repealed but can be abridged only to the extent that they remain a basic feature of the constitution. He held that property was not a basic feature of the constitution. This J. Chandrachud in the Election Case (discussed later) tool to imply that fundamental rights were not a basic feature.

And the validity of 24^th Amendment was upheld by observing that the Parliament had the power or amend any or all provisions of the Constitution and Golaknath case was overruled and Article 368 had both the power & procedure to amend the Constitution.

As to the meaning of Amendment, it was held that it should derive its colour from Article 368 and the rest of the provisions of the Constitution. Reading the preamble , the fundamental importance of the individual’s freedom, its inalienability, the importance of economic, social and political justice, the fundamental importance of directive principles of state policy, the non-inclusion of Articles 52, 53 etc in Article 368(1) it can be concluded that it was not the intention of the constitution makers to use the word amendment in its widest sense. There was an intention and belief that the fundamental rights, the fundamental features like secularism, democrace etc. would always subsist in welfare state. An amendment has to be within the broad contours of the Preamble and the directive Principles of State Policy. Fundamental rights cannot be abrogated but can be abridges by way of imposition of reasonable restriction in the public interest.

Parliament could not use its amending powers under Article 368 to ‘damage’, ’emasculate’, ‘destroy’, ‘abrogate’, ‘change’ or ‘alter’ the ‘basic structure (Basic Structure of Constitution)’ or framework of the Constitution.

Minority view: J. BEG

The minority view was that there was a wide and unlimited power with the Parliament to amend by addition, alteration or repeal. There is no distinction between essential and non-essential features. He opined that the amendment did not mean abrogation of the Constitution is one stroke but this could be done step by step

The Basic Structure Doctrine:

In order to answer the question as to what are the essential features of the Basic Structure, the intention of the framers has to be looked into.

If we give plain meaning to change in “Article 368” proviso, it would mean that the essential ingredients cannot be taken away. And this is what the basis structure doctrine purports to mean. (Basic Structure of Constitution)

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