Basic Structure

• The phrase ‘basic structure’ was recognised for the first time in the historic case of Kesavananda Bharati v. State of Kerala in 1973 by the Supreme Court.

• This doctrine says that there are some root and basic features of the constitution which are bedrock of the constitution and can not be amended.

Background and evolution of Basic Structure

1. 1951-

• After election congress party Started Land reforms and  called for a fair distribution of resources of production, among all citizens and the prevention of wealth concentration in the hands of a select few.

• Land owners approached the court and court invalidated these reforms.

Reaction of The government-

• Parliament placed these laws in the Ninth Schedule of the Constitution via the First and Fourth Amendments and removing them from the scope of judicial review.

• The Constitution of India was amended as early as 1951, which introduced the Article(s) 31A and 31B to it.

• Article 31B created the 9th Schedule which stated that any law provided under it could not be challenged for the violation of Fundamental Rights as per Article 13(2) of the Constitution.

2.Shankari Prasad case(1951) and Sajjan Singh Case(1965)-

• The Supreme Court ruled that the power of the Parliament to amend the Constitution under Article 368 also includes the power to amend Fundamental Rights.

• The word ‘law’ in Article 13 includes only ordinary laws and not the constitutional amendment acts.

3.Golaknath vs State of Punjab (1967)-

• It is an 11 judge bench decision decided by 6:5 majority by clubbing 3 different writs.

• Under this Jundgement of Supreme court parliament was not given the authority to modify the Constitution under Article 368.

• Other sections of the Constitution Such as Articles 245, 246, and 248 granted Parliament the authority to create legislation gave rise to the amending power (constituent power) of Parliament.

• Hence , the Supreme Court determined that Parliament’s amending and legislative powers were basically equivalent.

• As a result, any changes to the Constitution must be interpreted in accordance with Article 13(2).

• It means that The words Law mentioned in article 13 also include constitutional amendments.

• The expression ‘basic structure’ was introduced for the first time by M.K. Nambiar and other attorneys while arguing for the petitioners in the Golaknath case.

Reaction of The Government-

• The government passed the 24th Amendment act 1971 with the purpose to overrule I.C. Golaknath ruling.

The 24th Amendment act 1971-

• 24th amendment inserted clause (4) to Article 13 which stated that Article 13 would not apply to constitutional amendments.

The 25th Amendment Act-

It inserted a new Article 31C which contained the following two provisions:

• No law which seeks to implement the socialistic Directive Principles specified in Article 39 (b) and (c) shall be void on the ground of contravention of the Fundamental Rights conferred by Article 14, Article 19, or Article 31.

• No law containing a declaration for giving effect to such a policy shall be questioned in any court on the ground that it does not give effect to such a policy.

4.Kesvananda Bharati v. the State of Kerala(1973)

• It was special bench of the Supreme Court of India consisting of 13 judges in this case and ruled with a 7–6 majority.

• Case:This case was filed to challenge the validity of the Kerala Land Reforms Act, 1963. But the 29th Amendment of the Constitution placed it under the Ninth Schedule.

Judgement-

• All judges upheld the twenty-fourth amendment’s legality, stating that Parliament has the authority to alter any or all Constitutional provisions.

• They also held that the Golaknath case had been ruled incorrectly and that Article 368 provided both the authority and the process for altering the Constitution.

• It was declared that constitutive power of the Parliament was subject to inherent restrictions and limitations.

• The basic structure or the fundamental framework of the Constitution should not be “damaged,” “emasculated,” “destroyed,” “abrogated,” “modified,” or “altered” due to the use of the amending powers granted to Parliament under Article 368.

• But there was no unanimity of opinion about what is included in the basic structure but it can be inferred from other judgement of the Supreme court.

5.Indra Gandhi election dispute-

Indra Gandhi vs Raj Narayan 1975-

• In 1975 there was dispute related to  Indira Gandhi’s election victory based on allegations of electoral malpractices.

• In between Government passed 39th Constitutional Amendment which eliminated the Supreme Court’s power to adjudicate on cases involving the election of the President, Vice President, Prime Minister and Speaker of the Lok Sabha.

Judgement-

• The doctrine of Basic structure was reaffirmed and 39^th amendment act was invalidated

Reaction of the Government-

• The Parliament reacted to this judicially innovated doctrine of ‘basic structure’ by enacting The 42nd Amendment Act (1976).

• This Act amended Article 368 and declared that there is no limitation on the constituent power of Parliament and no amendment can be questioned in any court on any ground including that of the contravention of any of the Fundamental Rights.

• It Gave the Directive Principles of State Policy precedence over the Fundamental Rights contained in Article 14 (Right to equality before the law or equal protection of the laws), Article 19 (various freedoms like freedom of speech and expression, right to assemble peacefully etc.) and Article 21 (Right to life or personal liberty).

• Article 31C was amended to prohibit any challenge to laws made under any of the Directive Principles of State Policy.

Criticisms of Basic Structure-

• They are not clearly defined.

• Judicial overreach of judiciary.

• Can create conflict between union and judiciary due to wider interpretation.

6.Minerva Mills v. Union of India (1980)

Petition -

• 42ndAmendment was challenged before the Supreme Court by the owners of Minerva Mills, a sick industrial firm which was nationalised in 1974 by the government.

Judgement-

• In the Minerva Mills case, the Supreme Court held that ‘the Indian Constitution is founded on the bedrock of the balance between the Fundamental Rights and the Directive Principles.

• Fundamental rights can be amended to implement Directive principles but it should not alter basic structure of constitution.

• Amendment to Article 31C was held Unconstitutional.

List of Some of the Basic Feature:

• Supremacy of the Constitution.

• The principles of separation of power.

• Rule of law(declared under Indra Sawhney vs Union of India).

• Judicial review.

• Objectives of the Preamble to the Constitution.

• Federalism,Secularism,Democracy.

• Unity and integrity of nation and social justice (S.R. Bomani case).

• Freedom and dignity of an individual.

• Sovereign, democratic and republic structure.

• The principles of equality.

• Fundamentals Rights enshrined in Part III.

• Provisions of social and economic Justice.

• Balance between Fundamentals Rights and DPSP.

• Parliamentary form of Government.

• Free and Fair Elections.

• Limitations on amending power under Article 368.

• Social justice.

• Power of Supreme Court and High Courts.