Evolution of the Basic Structure of Constitution of India
Basic Structure (Doctrine) of Constitution
Evolution of the Basic Structure of Constitution
Table of Contents
- The word “Basic Structure” is not mentioned in the constitution of India. The concept developed gradually with the interference of the judiciary from time to time to protect the basic rights of the people and the ideals and the philosophy of the constitution.
- The “basic features” principle was first expounded in 1964, by Justice J.R. Mudholkar in his dissent, in the case of Sajjan Singh v. State of Rajasthan.
Important cases in Indian Polity
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- Shankari Prasad case vs. Union of India, 1951
- Sajjan Singh vs. State of Rajasthan, 1965
- Golak Nath vs. The State of Punjab, 1967
- Kesavananda Bharati vs. The State of Kerala, 1973
- Indira Gandhi vs. Raj Narain, 1975
- Minerva Mills Ltd. vs. Union of India, 1980
- Chandra Kumar vs. Union of India, 1997
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- After independence, the government started the land reforms with aim of reforming land ownership and tenancy structure and to implement the socialist goals of Directive principles of State policies, according to which the resources should be divided equally among the citizens.
- To fulfill their goals of land reforms, Government passed Zamindari abolition act. However, the Constitution have the “Right to Property” as Fundamental Right under the Article 19 initially.
- Thus, the Property owners moved the court to protect their right. The Supreme Court reviewed these cases and upheld the fundamental right to property of Zamindars and struck down the Zamindari abolition laws.
- Thus, parliament needed to secure the constitutional validity of these laws. This led to the first amendment of the constitution in 1951. Via this amendment, Article 31B and a 9th Schedule were inserted in the Constitution.
- To immunize the law and to prevent it from the scope of judicial review, Article 31B and the Ninth Schedule were introduced in the Constitution by the Constitution First Amendment Act 1951 by the Parliament and it effectively placed these laws in the 9th Schedule of the Constitution.
- However, the 1st amendment act itself was now challenged because it would violate article 13(2) and Article 14 (Right to Equality).
- The first amendment was challenged in Shankari Prasad Case (discussed below) and then started a series of judicial pronouncements and constitutional amendments giving rise to doctrine of basic structure. Post Kesavananda Bharati cases have helped determine the content of the ambiguous basic structure.
1. Shankari Prasad Case vs. Union of India, 1951
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- Shankari Prasad vs. Union of India is a landmark case in the basic structure of our constitution.
- First amendment act, validity of insertion of Article 31A & 31B and land reforms was challenged.
- Petitioner contended that Parliament by amending constitution cannot take away fundamental rights.
- Court held that Parliament can exercise its constituent power and unlike parliament’s legislative power, its constituent power cannot be limited by Article 13(2)
- Also held that amendment is not law for purposes of Article 13(2) and Fundamental Rights were not outside the scope of amending power.
- In the cases, the power to amend the rights had been upheld on the basis of Article 368.
2. Sajjan Singh vs. State of Rajasthan, 1965
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- 17th amendment which added new entries to 9th schedule was challenged.
- Petitioner contended that parliament does not have power to abridge right to property or any other fundamental right.
- Majority of the court upheld the ruling of Shankari Prasad.
3. Golak Nath vs. the State of Punjab, 1967
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- Golak Nath case was related to property of two brothers having about 500 acres of land in Jalandhar. Under the Punjab Security and Land Tenure Act, the state government held that they could keep some 20 acres and rest was declared surplus land.
- The Golak Nath family challenged it on the ground that it denied them constitutional right to acquire and hold property; practice any profession; and equality before the law / equal protection of law.
- Since the Punjab act was placed in Ninth Schedule via 17th amendment, they also pursued to declare it beyond the authority of Government. Thus, challenged the Inclusion of legislation in 9th schedule.
- Majority of 6 judges (5 dissenting) dissented from Shankari Prasad and Sajjan Singh.
- Supreme Court ruled that the Parliament had no power to amend Part III of the Constitution and overruled its earlier decision in Shankari Prasad and Sajjan Singh case.
- Further, the majority judgement invoked the concept of implied limitations on Parliament’s power to amend the Constitution.
- The bench observed the following:
- Article 368 does not contain power to amend but merely provides the procedure for amending constitution. Power to amend Constitution is legislative process and is included within the plenary legislative power of parliament.
- Held that Fundamental rights are sacrosanct, inviolable and natural rights of man which cannot be taken away. Moreover, Fundamental Rights were outside the amendatory process if amendment took away or abridged fundamental rights.
- The amending power of Parliament arose from other provisions contained in the Constitution such as Articles 245, 246, 248 all of which gave it the power to make laws.
- Residuary power of legislation is vested in parliament and it includes power to amend constitution. Whether in the field of statutory law or constitutional law, amendment can only be brought about only by law. The imposition of several conditions on amendment of constitution is only a safeguard against a hasty action or protection to the states but does not change the legislative character of the amendment.
- The amending power and legislative powers of Parliament were essentially the same. Hence, law under Article 13 includes the amendment laws also.
- Constitution gives a place of permanence to the fundamental freedoms of the citizen. In giving the Constitution to themselves, the people had reserved the fundamental rights for themselves.
- 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.
- They observed that a Constituent Assembly might be summoned by Parliament for the purpose of amending the fundamental rights if necessary.
Aftermath of Golak Nath Judgement
1. 24th Amendment 1971 (Effectively Nullified Golak Nath Judgment)
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- The 24th amendment, 1971 restored the parliamentary power to amend any part of the constitution including the part III.
- This amendment made president duty bound to give assent to a Constitution Amendment Bill when presented to him.
- Clause 4 was added to Article 13 providing that nothing in Article 13 shall apply to a Constitutional amendment under Article 368.
- Clause 3 was added to Article 368 to provide that nothing in Article 13 will apply to amendments made under Article 368.
- Marginal note to Article 368 was changed as power and procedure to amend the Constitution
- Article 368(1) clarified that Parliament may in the exercise of constituent power amend by way of addition, variation or repeal any provision of the Constitution.
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2. 25th Amendment Act
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- The right to property still was intact and to dominate, the government brought in 25th amendment of the constitution.
- Amendment of Article 31A which now stated that if the government acquires your property for public purpose and pays you an insignificant compensation, you cannot question that in court.
- Provided that fundamental rights under Article 14, 19 & 31 may be curtailed in order to give effect to policies contained under Article 39B & 39C. It cannot be questioned in the court on the ground that it does not give effect to such policy.
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3. 29th Amendment Act
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- Kerala Land Reforms Amendment Act, 1969, and the Kerala Land Reforms Amendment Act, 1971 were included in the Ninth Schedule.
- Was challenged in Kesavananda Bharati Case.
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4. The Kesavananda case vs. State of Kerala, 1973
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- The Kesavananda Bharati case was the culmination of a serious conflict between the judiciary and the government.
- The Supreme Court recognized basic structure concept for the first time in the historic Kesavananda Bharati case in 1973.
- Challenged Kerala Land Reforms Act, 1963 as amended in 1969 (was kept in 9th schedule) and validity of 24th, 25th, and 29th constitutional amendments.
- Petitioner contended that:-
- Parliament having only such constituent power as is conferred on it by the Constitution which is given by people unto themselves , Parliament cannot on its own enlarge its own power so as to revoke its inherent limitation
- Being a functionary created under Constitution, Parliament cannot assume itself to destroy essential features of Constitution
- Parliament cannot destroy basic fundamental or human rights which were reserved by people for themselves.
- Parliament cannot revoke the limits of its constituent power by repealing limitations imposed on it and thereby claiming to do what is prohibited by these limitations.
- This decision is not just a landmark in the evolution of constitutional law, but a turning point in constitutional history.
- The validity of these amendments was challenged before a Constitution Bench comprising five judges, which then referred it to a 13 judge Bench, which heard the case for over six months before delivering its verdict on April 24, 1973.
- Major outcomes of the Kesavananda Bharati’s case were as follow –
- The important concept of ‘basic structure’ of the Constitution gained recognition in the majority verdict.
- All judges upheld the validity of the 24th amendment saying that Parliament had the power to amend any or all provisions of the Constitution.
- All signatories to the summary held that the Golak Nath case had been decided wrongly and that Article 368 contained both the power and the procedure for amending the Constitution.
- Held that power under Article 368 is subject to certain inherent limitations and in the exercise of amending power Parliament cannot damage or destroy the Basic Structure of the Constitution and Parliament could not use its amending power under Article 368 to ‘damage’, ’emasculate’, ‘destroy’, ‘abrogate’, ‘change’ or ‘alter’ the ‘basic structure’ or framework of the Constitution..
- An amendment to the Constitution was not the same as a law as understood by Article 13 (2).
- Unlike ordinary laws, amendments to constitutional provisions require a special majority vote in Parliament.
- According to Justice Sikri the basic features of the Constitution:
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- Supremacy of the constitution
- Republican and democratic form of government
- Secular character
- Separation of powers
- Federal character of constitution
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- It is a landmark of the Supreme Court of India, and is the basis in Indian law for the exercise by the Indian judiciary of the power to judicially review, and strike down, amendments to the Constitution of India passed by the Indian Parliament which conflict with or seek to alter the Constitution’s basic structure.
- This doctrine counts as one of the greatest contribution of Indian judiciary in the field jurisprudence.
Post Kesavananda Bharati Case
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- Allahabad High Court invalidated the election of Indira Gandhi and disqualified her for next six years from contesting election on a finding that she had committed corrupt practice during her election.
- To overcome the effect of the High Court order Parliament passed 39th Constitution Amendment Act in 1975 withdrawing the jurisdiction of all courts over the election dispute involving the Prime Minister.
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1. 39th Amendment Act
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- Article 329A was inserted into the Constitution.
- Article 329A dealt with special provision as to elections to Parliament in the case of Prime Minister and Speaker.
- Along with this Article 329A, the Parliament added 38 unrelated laws in the Ninth Schedule.
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5. Indira Gandhi vs. Raj Narain, 1975
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- Basic Structure concept reaffirmed in this case. The Supreme Court applied the theory of basic structure and struck down article 329A, which was inserted by the 39th Amendment Act, 1975.
- Supreme Court struck down the 39th amendment as violating democracy implicit in free and fair election, equality and rule of law which are the basic feature of the constitution.
- The exclusion of judicial review damaged the basic structure of the Constitution.
- Justice Y.V. Chandrachud listed four basic features which he considered unamendable:
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- Sovereign democratic republic status.
- Equality of status and opportunity of an individual.
- Secularism and freedom of conscience and religion.
- ‘Government of laws and not of men’ i.e. the rule of law.
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Post Indira Gandhi Case
42nd Amendment Act, 1976
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- The parliament reacted to the concept of Basic Structure by enacting the 42nd Amendment Act (1976). A committee under the Chairmanship of Sardar Swaran Singh was formed to study the question of amending 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 Amendment would put an end to any controversy as to which is supreme, Parliament or the Supreme Court.
- Gave the Directive Principles of State Policy precedence over the Fundamental Rights contained in Article 14, 19 and 21.
- Laid down that amendments to the Constitution made in the past or those likely to be made in future could not be questioned in any court on any ground.
- Removed all amendments to fundamental rights from the scope of judicial review.
- Removed all limits on Parliament’s power to amend the Constitution under Article 368.
- Asserted the supremacy of the parliament. It was urged that Parliament represents the will of the people and if people desire to amend the Constitution through Parliament there can be no limitation whatever on the exercise of this power.
- This amendment removed the limitation imposed on the amending power of the Parliament. It was said that the theory of ‘basic structure’ as invented by the Supreme Court is vague and will create difficulties. The amendment was intended to rectify this situation.
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6. Minerva Mill vs. Union of India, 1980
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- The 42nd amendment was challenged before the Supreme Court by the owners of Minerva Mills, a sick industrial firm which was nationalized by the government in 1974.
- The validity of 42nd amendment Act was challenged on the ground that they are destructive of the ‘basic structure’ of the Constitution.
- The attempt to immunize constitutional amendments against judicial review violated the doctrine of basic structure which had been recognized by the Supreme Court. Further, it was argued that this deprived courts of the ability to question the amendment even if it damaged the Constitution’s basic structure.
- The historical Judgment laid down that:
- The Supreme Court struck down clauses 4 & 5 of the article 368 inserted by 42nd Amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the constitution i.e. limited nature of the power to amend and judicial review.
- It was ruled by court that a limited amending power of Parliament itself is a basic feature of the Constitution. Hence the parliament cannot exercise this limited power to grant itself an unlimited power.
- The courts cannot be deprived of their power of judicial review. If the amendment is passed without complying with the procedure it would be invalid.
- The Fundamental Rights and the Directive Principles are required to be viewed as the two sides of the same coin. Both should be complementary to each other and there should be no confrontation between them. Hence a harmonious balance should be maintained between Part III and Part IV of the Constitution and real synthesis should come out only from harmonising the spirit of political democracy with the spirit of economic democracy.
- The Judgment of the Supreme Court thus makes it clear that the Constitution is Supreme not the Parliament. Parliament cannot have unlimited amending power so as to damage or destroy the Constitution to which it owes its existence and also derives its power.
7. Waman Rao vs. Union of India
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- Implications of the basic structure doctrine for Article 31B were reexamined.
- Held that any addition to 9th Schedule after 23rd April 1973, the date of Kesavananda judgement, could be challenged on the ground of violation of Basic Structure.
- Basic structure does not apply retrospectively.
8. I R Coelho vs. Union of India
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- Reaffirmed basic structure doctrine.
- Articles 14, 15, 19 and 21 are parts of basic structure.
9. Chandra Kumar vs. Union of India, 1997
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- Article 323A and 323B, both dealing with tribunals, were inserted by the 42nd Amendment. Article 323A and 323B provided for exclusion of the jurisdiction of the High Court under Article 226 and 227 and the Supreme Court under Article 32.
10. Some Other Important Cases
Nachane, Ashwini Shivram vs. State of Maharashtra, 1998
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- The doctrine of equality enshrined in Article 14 of the Constitution, which is the basis of the Rule of Law, is the basic feature of the Constitution.
Raghunath Rao vs. Union of India case, 1993
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- The unity and integrity of the nation and Parliamentary system.
Bommai vs. Union of India, 1994 and Poudyal vs. Union of India, 1994
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- Secularism and “Democracy and Federalism are essential features of our Constitution and are part of its basic structure.”
Sampath Kumar vs. Union of India, 1987, Subhesh Sharma vs. Union of India, 1991
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- “Judicial review is a part of the basic constitutional structure and one of the basic features of the essential Indian Constitutional Policy.” Several Articles in the Constitution, such as Article 32, 136, 226 and 227, guarantee judicial review of legislation and administrative action.
Kihoto hollohan vs. Zachillhu, 1992
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- Democracy is a part of the basic structure of our Constitution, and rule of law; and free and fair elections are basic features of democracy.
Important judgements of Supreme Court regarding Basic Structure
Case |
Decision by the Supreme Court |
Shankari Prasad Vs. Union of India, 1951 |
The Parliament, under Article 368, has power to amend any part of the constitution |
Sajjan Singh Vs. State of Rajasthan, 1965 |
The Parliament, under Article 368, has power to amend any part of the constitution |
Golak Nath Vs. State of Punjab, 1967 |
The Parliament is not powered to amend the Part III (Fundamental Rights) of the constitution |
Kesavananda Bharti Vs. State of Kerala,1971 |
The Parliament can amend any provision, but can’t dilute the basic structure |
Indira Gandhi Vs. Raj Narain, 1975 |
The Supreme Court reaffirmed its concept of basic structure |
Minerva Mills Vs. Union of India, 1980 |
The concept of basic structure was further developed by adding ‘judicial review’ and the ‘balance between Fundamental Rights and Directive Principles’ to the basic features |
Kihoto hollohan Vs. Zachillhu, 1992 |
‘Free and fair elections’ was added to the basic features |
Indira Sawhney Vs. Union of India, 1992 |
‘Rule of law’, was added to the basic features |
S.R Bommai vs Union of India, 1994
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Federal structure, unity and integrity of India, secularism, socialism, social justice and judicial review were reiterated as basic features |
So, this was all about the Evolution of the Basic Structure of the Constitution in India. You can read about the significance and Features of Basic Structure of Indian Constitution Here.
In the Next Post (Click Here), we will discuss the Parliamentary System.