Doctrine of Basic Structure

The doctrine of Basic structure is a judicial principle developed by the Supreme Court of India in the Kesavananda Bharati judgment in 1973. A thirteen judge constitutional bench while deciding on parliament’s power to amend the Constitution and constitutional validity of the recently passed agricultural reform laws came up with this doctrine.

Pre-Kesavananda Verdict:

Parliament’s authority to amend the Constitution had been a controversial and unsettled issue, particularly in relation to the fundamental rights guaranteed in Part III of the Constitution. The government had through various constitutional amendments secured certain legislations related to agricultural reform and Article 39(b)(c) that required equitable distribution of resources of production among all citizens and prevention of concentration of wealth in the hands of a few from being questioned on the ground that these violate the fundamental rights. This power of the government was questioned in the Golaknath case, wherein the apex court’s seven-judge bench in 1967 held that Parliament could not modify, restrict or impair fundamental freedoms. It considered the fundamental rights to be sacrosanct and at the very ‘core’ of Constitutional morals and the parliament cannot amend them through usual procedures used. The phrase ‘basic structure’ was first used by M.K. Nambiar and other counsels while arguing for the petitioners in the Golaknath case, but it was only in 1973 that the concept surfaced in the text of the apex court’s verdict.

Kesavananda Bharati Judgement:

In the Kesavananda Bharati v. Union of India,  the Court systematically laid down and recognized the ‘basic structure doctrine. This was a turning point for the Supreme Court for the first time the judiciary came forth to keep in check the power of the parliament. Thirteen judges gave their verdict in this case, while deciding on the validity of the 24th, 25th amendment and the scope of power under Article 368. By a majority of 9 judges, the view held was that the power does has power to amend any and all parts/provisions of the Constitution, stating the Golaknath case to be wrongly decided. It was a 900 page judgement with each judge penning down his opinion and views, which ultimately encapsulated the basic structure doctrine into Constitutional jurisprudence.

The Basic Structure Doctrine:

Thus the basic structure doctrine was developed as a limitation to the otherwise wide and expansive amending power of the Parliament. The judges held by a majority that the parliament cannot pass any law or any amendment that would violate the ‘basic structure’ of the Parliament. 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. There was no unanimity among the judges as to what constituted the ‘basic structure’ of the constitution. Each judge laid down and listed what he considered to be part of the basic structure. Some popularly and commonly held features include:

The sovereignty of India,

Separation of powers between the legislature, executive and judiciary,

Federal character,

Unity and integrity of the nation,

Preamble,

Secular structure,

Rule of law

Equality of opportunity to every individual etc.

The courts gave the judiciary the power to decide what would and would not constitute as the basic structure of the constitution, that is part of ‘core’ values as envisaged by the Constitution makers and outside the scope of parliamentary intervention. The list is an expansive list and it is the responsibility.

This doctrine is considered to be the saviour of the Constitutional values, as a protector of India’s democracy and liberal values. But it has also met with some criticism. By not defining the phrase ‘basic structure’ and keeping it open to judicial interpretation the courts have bestowed excessive powers to themselves and increased chances of ambiguity and incongruent interpretations. Some judges and advocated call this as an act of excessive ‘judicial activism’. But even so, the doctrine is widely accepted and has been reaffirmed in various subsequent judgements where subject matters have been added to the expansive list of ‘basic structure’. It opened the door to the judicial review of all legislations and amendments passed by the parliament.

Can it be amended?

As the basic structure doctrine was decided by a constitutional bench of 13 judges to completely overrule it, a  bench of higher number of judges would be required. The doctrine has stood the test of time and was reaffirmed in various subsequent judgments like Maneka Gandhi, Indira Gandhi v. Raj Narain, Waman Rao, etc. The possibility of overruling the doctrine is bleak and unlikely. But the doctrine has been amended several times, the courts have stepped up and made modifications to the list of provisions which are considered included in the basic structure doctrine.

Conclusion:

In essence, the basic structure doctrine states that the Parliament’s power to amend the Constitution is not absolute and the Supreme Court is the final arbiter over and interpreter of all constitutional amendments.

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