Q. Examine the evolution of basic structure doctrine and its core values.
Indian Constitution aimed to create a balance between rigidity and flexibility to adapt to changing times. At the same time, it provided for judicial review to maintain the sanctity of Constitutional values. In course of practicing of Indian Constitution, it brought the Judiciary and Legislature at loggerheads. While Article 368 seems to bestow the Legislature with all encompassing powers, the Judiciary often provides breaks on the legislative enthusiasm. The ‘basic structure doctrine’ hopes to harmonise this tug of war organs of the government.
Basic structure doctrine is judge- made doctrine to put a limitation on the amending powers of the Parliament so that the basic structure of the basic law of the land cannot be amended in exercise of its constituent power under the Constitution. It is seen as being instrumental in helping constitutionalism survive in India.
• Sankari Prasad judgement 1951: Initially judiciary was of the view that the amendment power of the parliament is unrestricted because it can amend any part of the constitution, including those which affect the Fundamental rights of the land. In this case the Supreme Court kept the ‘law of amendment’ beyond the scope of Article 13(2).
Sajjan Singh Case: After the Shankari Prasad case, the Constitution (Fourth Amendment) Act, 1955 was passed amending some Articles in Fundamental Rights Part, but its validity was never challenged. The Constitution (Seventeenth Amendment) Act, 1964 introduced a major change and put a number of laws in the Ninth Schedule, so as to keep them away from the judicial review and was challenged before the Court. The majority of the judges in this (Sajjan Singh) case on the same logic as held in the Shankari Prasad case held that the law of amendment is superior law and is not subject to Article 13.
• Golak Nath V State of Punjab 1967: The Seventeenth Constitutional Amendment was challenged in the Golaknath case. By a majority of 6:5 it was held that the Parliament had no power to amend the fundamental rights. The Supreme Court adopted a new vision to see the powers of parliament that it cannot amend the Part III of the constitution and thus awarded fundamental rights a “Transcendental Position”. It said that Article 368 contains only the procedure to amend the Constitution. The word ‘amend’ envisaged only minor modifications in the existing provisions but not any major alterations therein. The Court held that the amending power and legislative powers of Parliament were essentially the same. Therefore, any amendment of the Constitution must be deemed law as understood in Article 13 (2).
Kesavananda Bharti V State of Kerala 1973: The Constitution (Twenty-fourth Amendment) Act was passed to nullify the Golakh Nath decision. The Constitution (Twenty-fifth Amendment) introduced a new provision Article 31C in the Constitution under which law giving effect to the Directive Principles of the State Policy enumerated under Part IV of the Constitution were deemed automatically be valid despite any inconsistency with the fundamental rights granted under Articles 14,19and 31. It gave birth to the landmark judgement which pronounced that the parliaments cannot alter or disturb the basic structure of the constitution. It was held that, however, the parliament has unfettered power to amend the constitution but it cannot disturb or emasculate the basic structure or fundamental features of the constitution as it has only the power of amendment and not of re-writing constitution. It held that the Golaknath case had been decided wrongly and that Article 368 contained both the power and the procedure for amending the Constitution.
• Indira Nehru Gandhi v. Raj Narain and Minerva Mills v. Union of India: Constitution Benches of the Supreme Court used the basic structure doctrine to strike down the 39th Amendment and parts of the 42nd Amendment respectively, and paved the way for restoration of Indian democracy. In Minerva Mills, the majority held the amendment to Article 31C unconstitutional as it destroyed the harmony and balance between fundamental rights and directive principles which is an essential or basic feature of the Constitution. It further upheld the power of judicial review of constitutional amendments.
• Ingredients & core values of basic structure: The Basic Structure Doctrine has not been defined anywhere in our Constitution. The features and the core values of this principal were evolving with time. There are some of the features of this Basic Structure Doctrine as extracted from different judicial pronouncements. The list is not exhaustive-
1. The doctrine of equality enshrined in Art.14 of the Constitution, which is the basis of the Rule of Law, is the basic feature of the Constitution.
2. The unity and integrity of the nation and Parliamentary system. 3) Secularism and Democracy and Federalism are essential
3. features of our Constitution and are part of its basic structure.
4. Judicial review is a part of the basic constitutional structure and one of the basic features of the essential Indian Constitutional Policy.
5. 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.
6. Independence of judiciary is a basic feature of the Constitution as it is the sine qua non of democracy.
7. Maintenance of the unity and integrity of India & the sovereignty of the country.
Drawbacks of Basic structure Doctrine:
1. 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-‘tyranny of unelected’
2. Each judge defines the basic structure concept according to his own subjective satisfaction. This leads to the fact that the validity of invalidity of the Constitution Amendment lies on the personal preference of each judge and the judges will acquire the power to amend the Constitution.
3. The attempt by a constitutional court to review the substance of the constitutional amendments would be dangerous for a democratic system.
4. An amendment to a Constitution may be necessary even to change the original intention of the Constitution framers, which may not augur well for the subsequent generation which is to work with the Constitution.
Significance of the Basic Structure Doctrine:
1. The doctrine of Basic Structure helped in maintaining the supremacy of the Constitution and to prevent its destruction by a temporary majority in Parliament.
2. It acts as a limitation upon the constituent power and has helped in arresting the forces which may destabilize the democracy. Parliament does not and should not have an unlimited power to amend the Constitution.
3. It helps to retain the basic ideals of the Constitution which was meticulously constituted by the founding fathers our Constitution.
4. If Basic structure doctrine would not have been their India would most certainly have degenerated into a totalitarian State or had one-party rule. Most importantly, the Constitution would have lost its supremacy.
5. It, by restraining the amending powers of legislative organ of State, provides basic Rights to Citizens which no organ of State can overrule. These rights are called Fundamental Rights.
6. 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.
Conclusion: N. Madhava Menon correctly remarks that along with basic structure, the evolution of ‘due process’ through Maneka Gandhi case and the easing of rule of ‘locus standii’ via judicial activism has only aiding in expanding the scope of Constitutionalism.