Basic structure

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The "Basic Structure" doctrine is the judge-made doctrine whereby certain features of the Constitution of India are beyond the limit of the powers of amendment of the Parliament of India. The doctrine which was first expresed in Kesavananda Bharati vs. The State of Kerala reflects judicial concern at the perceived threat to the liberal constitutional order posed by the Indian National Congress, in particular under Indira Gandhi.

The Basic Structure doctrine applies only to the constitutionality of amendments and not to ordinary Acts of Parliament, which must conform to the entirety of the constitution and not just its basic structure.

On April 24, 1973, the Supreme Court ruled in Kesavananda Bharati v State of Kerala that although the 25th Amendment of 1971 was constitutional, the court still reserved for itself the discretion to reject any constitutional amendments passed by Parliament by declaring that the amendments cannot change the constitution's "basic structure".

Contents

[edit] Background: the Golak Nath Case of 1967

In 1967, in Golak Nath vs. The State of Punjab, a bench of 11 judges (constituted for the first time) of the Supreme Court deliberated as to whether any part of the fundamental constitutional rights could be revoked or limited by amendment to the Constitution. This question had previously been considered in Shankari Prasad v. Union of India and Sajjan Singh v. State of Rajasthan. In both cases, the power to amend the rights had been upheld on the basis of Article 368.

Chief Justice Subba Rao writing for the majority (5 Judges dissenting) held that:

a) A Law to amend the Constitution is a Law for the purposes of Article 13.

b) Article 13 prevents the passing of Laws which "take away or abridge" the Fundamental Rights.

c) Article 368 does not contain a power to amend the Constitution but only a Procedure.

d) The power to amend comes from the normal legislative power of Parliament.

e) Therefore, amendments which "take away or abridge" the Fundamental Rights cannot be passed.

[edit] The Kesavananda Case of 1973

Six years later in 1973, 13 judges of the Supreme Court, including then Chief Justice Sikri, heard arguments in Kesavananda Bharati vs. The State of KeralaHTMLPDF, and thus considered the validity of the 24th, 25th and 29th amendments, and more basically the correctness of the decision in the Golak Nath case. This time, the court held, by the thinnest of margins of 7-6, that although no part of the Constitution, including fundamental rights, was beyond the amending power of the Parliament (thus overruling the 1967 case), the "basic structure of the Constitution could not be abrogated even by a constitutional amendment".

Nani Palkhivala, assisted by Fali Nariman, presented the case against the government in both cases.

The decision of the Judges is complex consisting of multiple opinions taking up one complete volume in the law reporter "Supreme Court Cases." The following can be said:

  1. All the Judges held that 24th, 25th and 29th amendments acts are valid.
  2. 10 Judges held that Golak Nath's case was wrongly decided and that an amendment to the Constitution was not a Law for the purposes of Article 13.
  3. 7 Judges held that the power of amendment is plenary and can be used to amend all the articles of the Constitution (including the Fundamental Rights).
  4. 7 Judges held (six Judges dissenting on this point) that "the power to amend does not include the power to alter the basic structure of the Constitution so as to change its identity"
  5. 7 Judges held (two Judges dissenting, one leaving this point open) that "there are no inherent or implied limitations on the power of amendment under Article 368."

However 9 Judges (including 2 dissentients) signed a summary stating that "the view of the majority" in the case is

"1. Golak Nath's case is overruled.

2. Article 368 does not enable Parliament to alter the basis structure or framework of the Constitution."

[The summary also included a statement as to the view of the majority on the particular amendments under scrutiny.)

It follows therefore that this case established the principle that the basic structure cannot be amended on the grounds that a power to amend is not a power to destroy.

[edit] What comprises the Basic Structure?

In the above case, there was little consensus in the majority for what the Basic Structure of the Constitution comprised.

Chief Justice Sikri, writing for the majority, indicated that the Basic Structure was:

  1. The supremacy of the Constitution;
  2. A Republican and democratic form of government;
  3. The secular character of the Constitution;
  4. Maintenance of the separation of powers;
  5. The federal character of the Constitution.

Justices Shelat and Grover added three features to the Chief Justice's list:

  1. The mandate to build a welfare state contained in the Directive Principles of State Policy;
  2. Maintenance of the unity and integrity of India;
  3. The sovereignty of the country.

Justices Hegde and Mukherjea instead provided, in their opinion, a separate and shorter list:

  1. The Sovereignty of India;
  2. The democratic character of the polity;
  3. The unity of the country;
  4. Essential features of individual freedoms;
  5. The mandate to build a welfare state.

Justice Jaganmohan Reddy preferred to look at the Preamble; stating that the basic features of the Constitution were laid out by that part of the document, and thus could be represented by:

  1. A sovereign democratic republic;
  2. The provision of social, economic and political justice;
  3. Liberty of thought, expression, belief, faith and worship;
  4. Equality of status and opportunity.

[edit] The challenge during the emergency: Indira Gandhi vs. Raj Narain, 1975

In 1975, shortly after the imposition of the Emergency, a bench of 13 judges was hastily assembled, and presided over by Chief Justice A.N. Ray to determine the degree to which amendments were restricted by the Basic Structure theory. On November 10 and 11, the team of civil libertarian barristers—again led by Palkhivala—continuously argued against the Union government's application for reconsideration of the Kesavananda decision. Some of the judges accepted his argument on the very first day, the others on the next; by the end of the second day, the Chief Justice was reduced to a minority of one.

On the morning of November 12 Chief Justice Ray tersely pronounced that the bench was dissolved, and the judges rose.

The doctrine could thus famously be applied in Indira Gandhi vs. Raj Narain to the 39th Amendment of 1975, which attempted, among other provisions, to pass legislative judgment over the election of Indira Gandhi in 1971.

[edit] Extending the doctrine: Minerva Mills, 1981

The doctrine was expanded in the Minerva Mills case of 1981. In Minerva Mills Ltd. v. Union of India, Palkhivala successfully moved the Court to declare that clause (4) and (5) of Article 368 of the Constitution unlawful. These clauses had been inserted as a response by the Gandhi government to the decision in the Kesavananda case by the Constitution (Forty-Second Amendment) Act, s. 55 which provided

55. Amendment of article 368.- In article 368 of the Constitution, after clause (3), the following clauses shall be inserted, namely:-

"(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976] shall be called in question in any court on any ground.

(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.".

The Court held that since, as had been previously held in the Kesavananda case, the power of Parliament to amend the Constitution was limited, it could not by amending the Constitution convert the power into an unlimited power (as it had purported to do by this amendment.) The court went on to invalidate the amendment of Article 31-C by the Forty-second Amendment.

This view of Article 31-C, but not the Basic Structure Doctrine, was questioned but not overruled in Sanjeev Coke Mfg. Co v Bharat Cooking Coal Ltd.

[edit] References

  • H M Seervai, 'Constitutional Law of India'
  • V.N. Shukla 'Constitution of India' 10th edition
  • Anuranjan Sethi (October 25, 2005), 'Basic Structure Doctrine: Some Reflections". SSRN 835165