Law and You > Constitutional Law > The Doctrine of Basic Structure of the Constitution
In this article, we shall discuss the doctrine of basic structure of the Constitution.
Constitution of India did not expressly provide any limitation on the power of amendment under Article 368. The Constitution makers did not think it necessary to provide for any alternative procedure such as referendum or a new Constituent Assembly for amending the provisions of the Constitution. Under the Constitution of India, a Constitutional amendment should be considered valid provided the prescribed procedure is followed. There are two kinds of limitation imposed against amendment power: (a) Express limitations and (b) Implied Limitations
Express Limitations:
Express limitations Express limitations are those limitations which are expressly mentioned in the provisions of the Constitution. The Constitutions of various countries place certain express limitations on the amending powers in their Constitutions, many countries Constitutions treat certain provisions therein as sacred provisions and put absolute restrictions on the amendment of such provisions, these provisions thus place express limitations on the amending powers; such limitations may or may not be absolute.
Implied Limitations:
The limitations are those which inhere in any authority from its very nature, character and composition, and the limitations are those which are not expressed but implicit in the scheme of the Constitution are called iimplied limitations.
In India, though the original Constitution did not speak about to impose either express or implied limitations upon the constitutional amendments.
Challenge to Supremacy of Parliament in Court:
In Shankari Prasad vs. Union of India, AIR 1951 SC 455 case. The SC ruled out that the power to amend the Constitution under Article 368 also included the power to amend fundamental rights and that the word “law” in Article 13 (8) includes only an ordinary law made in exercise of the legislative powers and does not include Constitutional amendment which is made in exercise of constituent power. Therefore, a Constitutional amendment will be valid even if it abridges or takes any of the fundamental rights.
In Golaknath v. State of Punjab 1967 AIR 1643 case, the Supreme Court overruled its decision in Shankari Prasad and Sajjan Singh cases and held that Parliament had no power to amend Part III of the Constitution so as to abridge or take away any of the Fundamental Rights. It also added that Article 368 merely lays down the procedure for the purpose of amendment. Further, the Court said that an amendment is a law under Article 13(2) of the Constitution of India and if it violates any fundamental right, it may be declared void. Therefore, amendments which “take away or abridge” the Fundamental Rights provisions cannot be passed. Article 368 does not contain a power to amend the constitution but only a procedure.
But the verdict of the Supreme Court was annulled in 24th Amendment of the Constitution. Thereby Parliament removed the obstacle of express limitation which was imposed through judicial verdict in the Golaknath’s case.
Basic Structure Theory:
In Keshavananda Bharathi v. State of Kerala, AIR 1973 SC 1461 case the Doctrine of Basic structure is proposed by the Apex Court.
Basic Structure theory is a direct manifestation of inherent and implied limitations on the power of amendment. The question of determining Inherent and Implied limitations on the amending power arises particularly when there are no express limitations and the power is otherwise unlimited. Art.368 of Indian Constitution provides plenary power of amendment but this plenary power can be turned into limited power under compelling logical, sociological, economic or historical reasons. Even the court can consider these extrinsic aids while making Constitutional interpretation. The only limitation upon the power of Parliament to amend the Constitution is that such an amendment cannot seek to destroy the enduring values such as liberty, justice, and equality enshrined in the Constitution, this limitation is, however, a rule of political morality its sanction lies not in the judicial process but in the vigilance of public opinion and the working of political process.
In Keshavananda Bharathi v. State of Kerala, AIR 1973 SC1461case, the court by a majority of 7:6 held that Parliament can amend any and every provision of the constitution subject to the condition that such amendment does not violate Basic Structure of the constitution. Thus the concept of the Basic Structure of the Constitution was introduced in Keshavananda Bharathi v. State of Kerala case.
The court deduced the Doctrine of Basic Structure which implies that though Parliament has the prerogative to amend the entire Constitution but subject to the condition that they cannot in any manner interfere with the features so fundamental to this Constitution that without them it would be spiritless. The court after hearing both sides came to the conclusion that in reality there do lies a difference between an ordinary law and an amendment.
The court found that the word “amend” in the provision of Article 368 stands for a restrictive connotation and could not ascribe to a fundamental change. The parliament in order to pass a constitutionally valid amendment, the particular amendment is subject to the application of Basic Structure test and has to pass it.
The court suggested few basic structures that they could locate such as Free & Fair Elections, Supremacy of Constitution, Independent judiciary, Secularism, Federal Character of Nation, Separation of Power, Republic & Democratic form of Government etc. However, the list they prepared is not exhaustive and future courts on interpretation can add features they find as Basic Structures.
39 th Amendment, 1975
Parliament by 39th Amendment Act 1975: Clause 4 of this Act inserted Articles 71(2) and 329A which provided that disputes regarding the election of four high officials, namely, the President, Vice-President, the Prime Minister and Speaker of the Lok Sabha, should be adjudicated by whatever authority and procedure was provided by law, and that any court order, made before its commencement, declaring such an election to be void, should be deemed null and void.
In Indira Nehru Gandhi v. Raj Narayan, AIR 1975 SC 2299, case, the Supreme Court applied the theory of basic structure and struck down Cl.(4) of Article 329-A. on the ground that it was beyond the amending power of Parliament as it destroyed the ‘basic feature’ of the Constitution. The Supreme Court has added the features like Rule of law, Judicial Review and Democracy which implies free and fair elections as part of the basic structure of the Constitution.
42nd Amendment and Article 368
After the decisions of the Supreme Court in Keshavananda Bharati and Indira Gandhi cases the Constitution (42nd Amendment) Act, 1976, was passed which added two new clauses, namely, clauses (4) and (5) to Article 368 of the Constitution. Clause (4) provided that “no constitutional amendment (including the provision of Part III) or purporting to have been made under Article 368 whether before or after the commencement of the Constitution (42nd Amendment) Act, 1976 shall be called in any court on any ground. Clause (5) removed any doubts about the scope of the amending power. 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.
In Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, case, the Supreme Court by 4 to I majority struck down clauses (4) and (5) of Article 368 inserted by the 42nd Amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the Constitution. Limited amending power is a basic structure of the Constitution. Supreme Court has held that the limited power of Parliament to amend the Constitution; the harmony and balance between fundamental rights and directive principles; the fundamental rights in certain cases; the power of judicial review in certain cases as part of the basic structure of the Constitution.
The court, however, held that the doctrine of basic structure is to be applied only in judging the validity of amendments to the Constitution and it does not apply for judging the validity of ordinary laws made by Legislature.
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