In this article, Neitseizonuo Solo pursuing B.A.LL.B. honours from Hidayatullah National Law University, Raipur discusses how the basic structure doctrine has been developed in India.
What is the Basic Structure Doctrine?
The basic structure doctrine was developed by the Indian judiciary in the late 20th century as a means of protecting the constitution and to protect the limited degree of review the Supreme Court had over the legislature. This doctrine basically propounds that there are certain basic features of the constitutions that cannot be changed or abrogated by any amendments made by the legislative body of the country, i.e., the parliament. The basic structure doctrine has since become the hallmark decision of the Supreme Court and has been exported to foreign countries to be incorporated into their own legal systems.
The Power of Judicial Review granted to the Supreme Court
Before getting into the development of the doctrine, a brief look at the power of judicial review of the Supreme Court is necessary. The Supreme Court has the power to declare any legislation void in the face of Article 13 which states that any law which takes away the fundamental rights or abrogates it will be void. The above statement necessitates the question of what would be considered as law in relation to this article and this is the main question that the courts have tried to answer which has brought about the birth of the novel doctrine of basic features.
The Nature of Amendments
The big question that arose after the constitution came into effect was whether amendments given in Article 368 could be considered as law under Article 13. Article 13 has provided that “…Ordinance, order, bye-law, rule, regulation, notification, custom or usages” will also come under the ambit of law but there was no mention of amendments. If amendments are considered as law than any amendment that is made will be subject to the restrictions given in Article 13 meaning that no amendment can be made which changes or abrogates the fundamental rights. If amendments are not law as meant in Article 13 than amendments can be made to fundamental rights.
Development of the Doctrine of Basic Structure
Shankari Prasad v. Union of India A.I.R. 1951 S.C. 2193
Facts: the first amendment of the constitution which inserted Article 31-A and 31-B was contested on the grounds that there was a violation of fundamental rights. Article 31-A gave power to the government to acquire any land for development and such acquisition cannot be questioned on the grounds that it is in violation of Article 14 and 19. Article 31-B further created the 9th Schedule and any law under the 9th Schedule was saved from being challenged in any court.
Judgement: It was contested that since amendment was law under Article 13, any amendment which changed or abrogated the fundamental rights would be void. The Supreme Court held that amendments were made in exercise of extraordinary powers of legislation while laws under Article 13 were just laws made in the exercise of ordinary powers of legislation. Thus amendments made under Article 368 were beyond the scope of Article 13. The court held that the 1st amendment was valid and could not be questioned on the grounds that it was violative of the Fundamental Rights.
Sajjan Singh v. State of Rajasthan [1965] 1 SCR 933
Facts: Constitution (Seventeenth Amendment) Act, 1964 added 44 acts in the 9th Schedule which was challenged in the court.
Judgement: The court upheld the judgement of Shankari Prasad case and held that amendments under Article 368 were superior laws and therefore, they were not subject to the limitation provided in Article 13 (1). Two judges gave dissenting judgements; Justice Hidayatullah and Justice Mudholkar.
Justice Hidayatullah held that “I would require stronger reasons than those given in Shankari Prasad to make me accept the view that Fundamental Rights were not really fundamental but were intended to be within the powers of amendment in common…”
Justice Mudholkar held that, “…it is also a matter for consideration whether making a change in the basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of the Article 368?”
I. C. Golaknath & Ors. v. State of Punjab [1976] 2 SCR 762
Facts: Due to the fact that the minority judgement was so strong in the Sajjan Singh case, the Chief Justice Subba Rao convened a bench of 11 judges to reconsider the validity of 1st, 4th, and 17th amendments. It was in this case that the 17th amendment was challenged.
Judgement: By a slim majority of 6:5 the court overruled the Sajjan Singh and Shankari Prasad cases. The court held that amendments under Article 368 are within the purview of Article 13 and thus no amendments taking away or abridging Part III of the constitution can be made. The court adjudged the following propositions:
- Article 368 simply provides the procedure for amendment and the substantive law for amendment is not derived from Article 368.
- An amendment under Article 368 of the constitution is within the ambit of Article 13 and thus any amendment is subject to the restrictions given in Article 13.
Historical Context
The Constitution (Twenty-fourth Amendment) Act, 1971 was passed right after the Golaknath case by the parliament. It was a direct consequence of the case, this amendment set out to null the judgement passed by the court limiting the power of the parliament. It was a time of great turbulence and there was an unspoken struggle between the legislature and the judiciary as the ruling fought to stay under Indira Gandhi sought to stay in power. The 24th, 25th, and 26th amendments greatly widened the scope of powers of the parliament and Articles 14 and 19 which contained the fundamental rights to equality and freedoms were made subordinate to Article 39, privy purses of the princes were abolished and a large number of land reform acts were placed under the 9th schedule. Further amendment was made to Article 13 which placed amendments under Article 368 beyond the purview of Article 13 which meant that amendments to fundamental rights could be made.
Kesavananda Bharati Sripadagalvaru v. State of Kerala A.I.R. 1973 S.C. 1461
Facts: this case challenged the validity of the 24th, 25th and 26th amendments to the constitution. Kesavananda Bharati approached the court to challenge the Kerala Land Reforms Act, 1963 which was altered due to the 24th and 25th amendment, be declared as void due to it being ultra vires to the constitution.
Judgement: The court held that the 24th amendment was valid. This is the case that first laid down the basic structure doctrine that would change the face of Indian Jurisprudence. By a majority of 7:6 the court held that the basic structure of the constitution could not be altered by the parliament.
The court was tasked with answering certain issues, the most pertinent of which are given below:
- Where is the power to amend derived?
In answer to this, the court said that the power to amend comes from Article 368. This article contains both the procedural and substantive law relating to amendments.
- Is Article 368 controlled by the restriction provided in Article 13?
It was held that Article 368 should be harmonized with Article 13. Amendments are a constituent power of legislation and are subject to the basic structure doctrine.
- Whether the fundamental rights can be amended or not?
This was the most important question answered, the court held that fundamental rights can be amended but with a caveat that such amendment is subject to the basic structure doctrine. The fundamental rights can be amended if it does not ‘damage’, ’emasculate’, ‘destroy’, ‘abrogate’, ‘change’ or ‘alter’ the basic structure of the constitutions.
- Whether the Basic Structure Doctrine was too vague or not?
The court was of the view that the doctrine was vague as a rigid framework could not be formed. They set a loose criteria for ascertaining whether an article was part of the basic feature of the constitution or not: “Any principle of law which if taken away from the Constitution would result into a loss of fraternity and unity and integrity of the nation and the dignity of the individual would be considered to be an essential feature of the Basic Structure.”
Some basic features were named in this judgement though the judges seemed to have differing opinions on what were the basic features. Some of them are given below:
- Equality of status and of opportunity
- Secularism
- The rule of law
- Democratic nature of India
42nd Amendment
A committee was set up under Swaran Singh during the National Emergency. This committee analysed the question of amendment and as a result of their findings and recommendations the 42nd amendment which was passed in 1976. It altered the constitution in the following ways:
- Parliament was allowed to amend the constitution freely and amended article 368 which restricted the power of judicial review.
- The DPSPs were given primacy over the fundamental rights.
- President is to follow the advice given by the Council of Ministers.
- Article 31C was amended to prohibit challenge to laws made under Directive Principles of State Policy.
Minerva Mills v. Union of India AIR 1980 SC 1789
Facts: Minerva Mills was an industrial firm which was nationalised. They challenged the validity of the 42nd amendment. Specifically the validity of Section 55 which added two new sub-clauses to Article 368 giving unrestricted power to amend the constitution as well as the restriction of power of judicial review of the Supreme with respect to amendments.
Judgement:
The judges ruled that section 4 and 55 were unconstitutional. They held that the power to amend was not unlimited and the parliament could not destroy the constitution. The court was also not allowed to question such amendments which gave the parliament unlimited powers to amend the constitution.
Section 4 had placed DPSPs above fundamental rights, this section was also struck down by the court on the reasoning that the harmony between the DPSs and fundamental rights was a basic feature of the constitution and thus the parliament could not destroy this balance.
Waman Rao v Union of India 1981 2 SCC 362
In this case, a dispute involving agricultural property was brought before the Supreme Court, held that all constitutional amendments made after the date of the Kesavananda Bharati judgement were open to judicial review. Any law kept in the 9th schedule which kept it outside the scope of judicial review will be subject to judicial review if the laws were added to the Ninth Schedule after Kesavananda Bharati case.
The laws can be challenged on the grounds that they are beyond Parliament’s constituent power or that they have damaged the basic structure.
Test for Basic Structure Doctrine
A test for finding out whether a particular amendment violates the basic structure doctrine has been developed in M. Nagraj v. Union of India 2006 8 SCC 212. In this case, twin tests have to be applied, they are;
- Width test
The width test involves questioning whether the relevant law goes beyond the limitation constitution. Whether the wider basic principles of the constitution are violated.
- Identity Test
The identity test involves questioning whether the amendment changes the identity of the constitution.
Later in the case of I.R. Coelho v. State of Tamil Nadu A.I.R. 2007 S.C. 861 two tests were further extrapolated;
- Essence of right test
It involves the question of whether the law in question violates the essence of any fundamental right or any basic feature of the constitution.
- Rights test
It includes both the impact and effect test. It basically involves looking at the effect of the amendment and not the form of the law.
Arguments Against the Basic Structure Doctrine
The Basic Structure doctrine has been criticized by many people and even the Judges of the Kesavananda Bharati case. The following are the criticisms of the Basic Structure doctrine;
- Justice Wanchoo argued that in Golaknath case that, “basic feature would lead to the position that any amendment made to any Article of the Constitution would be subject to the challenge before the Courts on the ground that it amounts to the amendment of the basic structure.”
- Justice Ray observed in Kesavananda Bharati case that there are no limitations to the amending powers of the parliament. He further stated that “the power to amend is wide and unlimited.”
- Justice Beg in the same case held that “―in such a Constitution as ours, we must strongly lean against a construction which may enable us to hold that any part of the Constitution is exempt from the scope of Article 368 as originally framed.”
Conclusion
The Basic Structure doctrine has been developed to safeguard the Indian Constitution from being destroyed by the legislature. In turn, the constitution acts as a protector of the rights of the people. The foundation on which the country has been built is the constitution, it holds the principles like universal adult franchise, equality, liberty, and freedom which are essential to any democratic country. The Supreme Court in the exercise of its power of judicial review has provided a filter for the constitution, weeding out any amendment which threatens to damage or destroy the fundamental principles of the constitution.
References
The Doctrine of “Basic Structure” in the Indian Constitution: A Critique by Aqa Raza (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2661127)
Judicial Review (https://www.outlookindia.com/website/story/judicial-review/233588)
I.R.Coelho V. State of Tamil Nadu (https://lawlex.org/lex-bulletin/case-analysis-i-r-coelho-v-state-of-tamil-nadu-air-2007-sc-861/10158)
Behind the ‘basic structure’ doctrine (http://www.frontline.in/static/html/fl1809/18090950.htm)
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