This article has been written by Abhinav Khadikar from NMIMS Kirit P Mehta School of Law, Mumbai

Introduction:

Almost every single law student and law graduate throughout India knows the importance of the basic structure doctrine. Many of them generally know about the doctrine even before they step inside a law school. It is probably considered the most important doctrine as it protects the identity of our constitution and our democracy.

It provides a ceiling that cannot be penetrated by the most powerful of legislators. Article 368 of the Indian constitution gives the parliament a power to amend the constitution. It is common knowledge that the basic structure of the constitution cannot be altered. Hence, the power under Article 368 cannot be used to alter the basis structure of the constitution.

However, what is this basic structure doctrine? How and why did it get established? Why can you not amend the basic structure of the constitution through powers vested in the Parliament under Article 368? You can only find answers to these questions when you understand the evolution of the basic structure doctrine.

This evolution provides full context. It involves a primary battle between the Legislature and Judiciary which spans over 3 decades and even after that, some residual matters were left to be solved. This article sheds light on why the basic structure doctrine was established and why the parliament has no power to amend the basic structure doctrine under Article 368.

The Very Beginning:

In 1951, India witnessed the first ever amendment to our constitution. This amendment bought into the picture Articles 31A and 31B along with the 9^th Schedule. Article 31A was essentially brought to abolish the zamindari system. In doing so, what happened was that that Article 31A gave certain laws related to acquisition of land an immunity.

This immunity was that such laws would not be deemed to be void based on the ground that such a law takes away or infringes upon the owners’ fundamental rights. It essentially gave the government free reign to acquire land without giving appropriate compensation because the laws provided with them that power and the laws were immune from being declared as void on the grounds that it is violative of fundamental rights.

There were several laws mentioned in the Ninth Schedule. According to Article 31B, these laws were immune from being declared unconstitutional on the ground that they are inconsistent with fundamental rights.

A string of important case laws begins here with respect to evolution of basic structure doctrine. First is the Sankari Prasad case. The first constitutional amendment was challenged on the grounds that the amendment violates Article 13(2) of the Constitution. This article basically states that no law shall be made that infringes upon fundamental rights.

The Supreme Court in this case held that the term ‘law’ in Article 13(2) relates to laws made under ordinary legislative power. Amendments are made under constituent power. Article 368 confers upon the parliament this constituent power. Hence, the parliament has the power to amend any part of the constitution including fundamental rights.

The 17^th Constitutional Amendment:

This amendment added 44 different Acts to the list under Ninth Schedule and made certain modifications to Article 31A such as modifying the meaning of the term ‘estate’, ensuring that in case a person is using agricultural land for personal cultivation then for acquisition of such land, the compensation value cannot be less than the market value of such land. Certain other modifications were made but what is important is how the amendment was challenged in the case of Sajjan Singh vs State of Rajasthan.

It was challenged on the grounds that the amendment affects powers prescribed under Article 226 of the constitution and this amendment has not been a result of special procedures prescribed in Article 368. Once again, an issue arose whether fundamental rights can be amended or not. The contentions were rejected. Ultimately, it was held that the constitutional amendment is completely valid. This was done by completely agreeing to the judgement of the Sankari Prasad case.

The first blow to the government came through the landmark case of IC Golaknath. In this case, the validity of one of the Acts added to the Ninth schedule was challenged. In doing so, the validity of the 1^st, 4^th, and 17^th Constitutional amendments were challenged.

This means that the question once again became whether fundamental rights can be amended or not and whether an amendment can be considered as a law or not under Article 13(2). The Supreme Court in this case took a completely different view to the partnership of Sankari Prasad case and Sajjan Singh case. This partnership was broken as it was held that amendment comes under the purview of law under Article 13(2).

It was held that Article 368 merely provides the procedure for amendment. Ultimately, it was held that fundamental rights cannot be touched or amended. These rights were given huge importance as they were declared to be necessary for the development of the human personality and it was held that these rights have a transcendental position in the constitution. Hence, they should be beyond the reach of the parliament.

The amendments were held to be valid for the past but using the doctrine of prospective overruling, they were deemed to be invalid for the future. Additionally, it is in this case that the term ‘basic structure’ started to be debated.

The Birth of Basic Structure Doctrine:

Well, it is 1967 and the government has just suffered a huge blow. I guess they realize that the courts will not always be by their side and that they should start respecting this judgement. This is what one would have thought but the reality begged to differ. In Hindsight, the government did a funny thing. They straight up amended the constitution once again.

This was the 24^th and 25^th amendment to the constitution in 1971. In the 24^th amendment, changes were made to articles 13 and 368. Before the amendment, Article 368 read as procedure for amendment. After the amendment, procedure was switched with the term ‘power.’

The amendment gave the parliament a constituent power to amend, it made it mandatory for the president to give his assent to any constitutional amendment bills along with a declaration that nothing in article 13 shall apply to any amendments under Article 368. For the sake of clarity, Article 13(4) was also added just to state that nothing in Article 13 applies to any amendment under Article 368.

Under the 25^th amendment, compensation under Article 31 was switched to amount and this amount that is given because of acquisition was kept outside the purview of judicial review. Additionally, Article 31C was inserted which gave immunity to any law from being subject to judicial review if said law has been made to give effect to a directive principle of state policy under Articles 39(b) and 39(c).

In 1972, the 29^th Amendment added Kerala Land Reforms (Amendment) Act, 1969 and Kerala Land Reforms (Amendment) Act, 1971 to the Ninth Schedule.

Here, the Landmark judgement of Kesavananda Bharati case comes into picture. A lot of challenges were made in this case. What you need to know is the 24^th, 25^th, and 29^th amendments were challenged. The petition was filed for enforcement of fundamental rights under Article 14, 19(1)(f), 25, 26, and 31. The power to amend fundamental rights was once again debated. A very brief summary of the case is that only a part of 25^th constitutional amendment was held to be invalid.

This was the part that barred judicial review. Ultimately, the basic structure doctrine was formed. It was held that the parliament does have constituent power to make amendments which is different from a law under Article 13(2). However, it was held that no amendment can be made that amends or infringes upon the basic structure doctrine.

This basic structure doctrine included supremacy of the constitution, federal character of the constitution, separation of powers between the three pillars of democracy, etc. In several cases in the future, additions were made such as judicial review, rule of law, harmony and balance between fundamental rights and directive principles of state policy, etc.

Stubbornness of the Government:

The government once again tried to get absolute power to amend. Before we get into that, it is to be noted that the government brought into force the 39^th Constitutional amendment Act in 1975 to take away the court’s right to decide on election matters by inserting Article 329A. This Article was directly struck down in the case of Indira Gandhi vs Raj Narain. This was done as free and fair elections, rule of law, rule of equality, and judicial review were deemed to be an integral part of the basic structure doctrine.

The 42^nd Amendment to the constitution is incredibly important. It is often regarded as mini constitution as the amendment basically rewrote the constitution significantly. What is relevant to the topic at hand is sections 4 and 55 of the Constitutional Amendment Act, 1976. Section 4 essentially replaced the purview of Article 31C in the sense that it now applied to the entirety of part IV of the constitution which are the directive principles of state policy.

Laws to fulfil purpose of these principles would now be barred from judicial review instead of just Articles 39(b) and 39(c). Additionally, two clauses were added to Article 368 which gave the parliament unlimited constituent power to amend the constitution along with ensuring that no amendment shall be subject to judicial review.

When these sections were challenged in the Minerva Mills case, it was held that supremacy of the constitution is part of the basic structure doctrine. Any unlimited and unchecked power to amend the constitution would be against the supremacy of the constitution. Additionally, judicial review is also a part of basic structure doctrine. Hence, the amendment to Article 31C and addition of clauses to Article 368 were struck down.

Final Nail in the Coffin?

By this point, the amending powers of the parliament under Article 368 are not only wide but also restricted to a certain extent in a healthy manner. A big question was circulating for years regarding laws under schedule IX or the Ninth Schedule were immune from judicial review.

Long story short, it was held in the case of IR Coelho vs State of Tamil Nadu that any Act inserted after the Kesavananda Bharati case could be challenged in a court of law. Judicial review was once again affirmed as being part of the basic structure doctrine.

Conclusion:

As years have gone by, our democracy has unfortunately faced threats from our own government from time to time. You do have to see the irony in the fact that whenever the judiciary stepped in and tried to correct the power-hungry moves by the government, the government just stepped in and said to the judiciary “Hi, we are going to completely disregard your opinion and just do what we want.” Fortunately, the constitution did give the judiciary enough power to restrict the government.

Left unchecked, the Government would have had so much power under Article 368 that they could have turned this democracy into a dictatorship at any time they wished to. Thankfully, that is not the case as power to amend under Article 368 cannot alter the basic structure doctrine. The Basic Structure Doctrine stands firm and strong.

References:

• Christopher J. Beshara, “Basic Structure Doctrines and the Problem of Democratic Subversion: Notes from India” 48 Verfassung Und Recht in Übersee 99-123 (2015).
• I R. Coelho (Dead) by LRs v. State of Tamil Nadu, AIR 2007 SC 861.
• I. C. Golaknath vs State of Punjab, 1967 AIR 1643.
• Indira Nehru Gandhi vs Shri Raj Narain, (1975) 2 SCC 159.
• Kamala Sankaran, “From Brooding Omnipresence to Concrete Textual Provisions: I.R. Coelho Judgement and Basic Structure Doctrine” 49 Journal of the Indian Law Institute 240-248 (2007).
• Kesavananda Bharati Sripadagalvaru vs State of Kerala, AIR 1973 SC 1461.
• Minerva Mills Ltd vs Union of India, 1980 AIR 1789.
• Sajjan Singh vs State of Rajasthan, 1965 AIR 845.
• Sri Sankari Prasad Singh Deo vs Union of India, 1951 AIR 458.
• Virendra Kumar, “Basic Structure of the Indian Constitution: Doctrine of Constitutionally Controlled Governance [From Kesavananda Bharati to I.R. Coelho]” 49 Journal of the Indian Law Institute 365-398 (2007).