Basic Structure Doctrine

Introduction:

The Kesavananda Bharati judgment introduced the Basic Structure doctrine which limited Parliament’s power to make drastic amendments that may affect the core values enshrined in the Constitution like secularism and federalism. The verdict upheld the power of the Supreme Court to judicially review laws of Parliament. It evolved the concept of separation of powers among the three branches of governance — legislative, executive and the judiciary.

Doctrine of Basic Structure says that

The parliament’s unlimited power to amend the constitution is subject to only one restriction i.e it should not dilute or violate the basic structure of the constitution.
Or the effects of the amendment should not be abrogating or disturbing in nature towards the basic structure.

The following four cases are important to understand the genesis of ‘Basic structure’ doctrine-

Evolution of doctrine of basic structure

Shankari Prasad case	SC opined that the power of the parliament to amend the constitution under Article 368 also includes the power to amend Fundamental Rights It based its judgment on the logic that the word ‘law’ mentioned in Article 13 includes only ordinary laws and not constitutional amendment acts
Golaknath case	SC overruled its judgment It ruled in this that- Fundamental Rights are given a transcendental and immutable position and hence the Parliament cannot abridge or take away any of these rights It opined the constitutional amendment act is also a law under Art 13 Parliament reacted to this judgment by enacting 24^th amendment act which included a provision in Art 368 which declared that Parliament has power to take away any of the fundamental rights
Keshavananda Bharati case	SC overruled its judgment in the Golaknath case It upheld the validity of the 24^th amendment act and opined that parliament is empowered to take away or abridge any of the FRs. However, such changes should not alter the ‘basic structure’ of the constitution
42^nd CAA 1976	Amended Art. 368 – no limitation on the constituent power of Parliament. Any amendment cannot be questioned in any court on any ground.
Minerva mills case	Parliament reacted to the above case by enacting 42^nd amendment act which declared under article 368 that there is no limitation on the constituent power of Parliament and it barred the courts from questioning such amendments This provision was invalidated by the SC stating that Parliament cannot take away the ‘judicial review’ power of the constitution since it is part of the ‘basic structure of the doctrine’
Waman Rao case 1981	SC clarified that doctrine would be apply to constitutional amendments enacted after April 24, 1973 (Kesavananda Bharati case) (Including 9th schedule)

Elements Of Basic structure:

The doctrine of basic structure though is not exactly defined but through its contents which have been provided by the judicature clarifies a scope defining the frame or the structure of the constitution. From time-to-time basic structure is enhanced with some new contents and hence the Supreme Court is yet to define the exact basic structure of the constitution.

Supremacy of the constitution
Rule of law
Sovereignty, liberty and republic nature of Indian polity.
Judicial review
Harmony and Balance between fundamental rights and directive principles.
Separation of power.
Federal character.
Parliamentary system.
Rule of equality.
Unity and integrity of the nation.
Free and fair elections. o Powers of SC under Article 32,136,142,147
Power of HC under Article 226 and 227.
Limited power of parliament to amend the constitution.
Welfare state.
Freedom and dignity of an individual.
The Basic Structure concept got highlighted in various judgments of Supreme Court such as Indira Nehru Gandhi, Minerva Mills, Waman Rao and I.R.Coelho etc.

Significance of Basic Structure:

The basic structure doctrine is a testimony to the theory of Constitutionalism to prevent the damage to essence of COI by brute majority of the ruling majority.
The basic doctrine saved the Indian democracy as it acts as a limitation of constituent power or else unlimited power of parliament might have turned India into a totalitarian
It helps us to retain the basic tenets of our constitution so meticulously framed by the founding fathers of our Constitution.
It strengthens our democracy by delineating a true separation of power where Judiciary is independent of other two organs. It has also given immense untold unbridled power to Supreme Court and made it the most powerful court in the world
By restraining the amending powers of legislative organ of State, it provided basic Rights to Citizens which no organ of State can overrule.
Being dynamic in nature, it is more progressive and open to changes in time unlike the rigid nature of earlier judgements.

Main criticisms of Basic Structure:

The common criticism is that the doctrine has no basis in the Constitution’s language. The doctrine does not have a textual basis. There is no provision stipulating that this Constitution has a basic structure and that this structure is beyond the competence of amending power
Its detractors also believe the doctrine accords the judiciary a power to impose its philosophy over a democratically formed government
There is no definite elucidation on what exactly constitutes basic structure, thereby, making the doctrine ambiguous
In recent times, the doctrine has been invoked in cases that has been regarded as examples of judicial overreach. Ex: NJAC bill was declared null and void by the SC by relying on this doctrine

Some important terminologies:

Judicial activism	*Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions.* Examples: Keshavananda Bharati case, Maneka Gandhi case PIL has become the major tool for giving effect to judicial activism in recent times
Judicial overreach	*Using judicial powers to interfere with the proper functioning of executive and legislature.* Examples: Banning firecracker, regulations related to allowing bars near highways
Judicial review	Judicial review is the power of courts to decide the validity of acts of the legislative and executive branches of government. Courts derive powers for their judicial review under Art 13(2), Art 32 and Art 142. Example: Scrapping section 66A of the IT act

Conclusion:

At the end of the day, whether the Supreme Court chooses to invoke the basic structure doctrine is at its discretion. There have been cases in recent times which have been quite relevant to the India society and basic structure doctrine was challenged but the court did not invoke the doctrine during its final decision.

Practice Questions:

It may well be the case that the basic structure doctrine is derived from the abstract. But that scarcely means it doesn’t exist within the Constitution. Comment. (250 words) (Insights secure)
Examine the limitations in amending any part of the Indian constitution. (250 words) (Insights secure)