Doctrine of Basic Structure

 The basic structure doctrine is a common law legal doctrine which states that the constitution of a sovereign state has certain characteristics that cannot be erased by its legislature. It was developed by the Supreme Court of India in a series of constitutional law cases in the 1960s and 1970s that culminated in Kesavananda Bharati v. State of Kerala (1973), where the doctrine was formally adopted. The UPSC Indian Polity and Governance Syllabus includes Basic Structure Doctrine which is described in this article.

Basic Structure Doctrine - Historical Background

  • Since the adoption of the Indian Constitution, debates have started regarding the power of the Parliament to amend key provisions like Fundamental Rights.
  • In the early years of Independence, the Supreme Court conceded absolute power to Parliament in amending the Constitution which was seen in the verdicts of Shankari Prasad case (1951) and Sajjan Singh case (1965).
  • The Supreme Court ruled that the power of the Parliament to amend the Constitution under Article 368 also includes the power to amend Fundamental Rights and the word ‘law’ in Article 13 includes only ordinary laws and not the constitutional amendment acts (constituent laws).
  • Therefore, the Parliament can abridge or take away any of the Fundamental Rights by enacting a constitutional amendment act and such a law will not be void under Article 13.
  • But in the Golak Nath case (1967) which challenged the constitutional validity of the Seventeenth Amendment Act (1964) that inserted certain state acts in the Ninth Schedule, the Supreme Court reversed its earlier stand.
  • The Supreme Court ruled that the Fundamental Rights are given a ‘transcendental and immutable’ position and hence, the Parliament cannot abridge or take away any of these rights.
  • It also stated that a constitutional amendment act is also a law within the meaning of Article 13 and hence, would be void for violating any of the Fundamental Rights.
  • The Parliament reacted to the Supreme Court’s judgment in the Golak Nath case by enacting the 24th Amendment Act (1971), which amended Articles 13 and 368.
  • It declared that the Parliament has the power to abridge or take away any of the Fundamental Rights under Article 368 and such an act will not be law under the meaning of Article 13.
  • However, in the Kesavananda Bharati case (1973), the Supreme Court overruled its judgment in the Golak Nath case.

Kesavananda Bharati v. the State of Kerala (1973) Verdict

  • It upheld the validity of the 24th Amendment Act and stated that Parliament is empowered to abridge or take away any of the Fundamental Rights.
  • At the same time, it laid down a new doctrine of the basic structure (basic features) of the Constitution and ruled that the constituent power of Parliament under Article 368 does not enable it to alter the basic structure of the Constitution. It meant that the Parliament cannot abridge or take away a Fundamental Right that forms a part of the ‘basic structure’ of the Constitution.
  • The doctrine of the basic structure of the constitution was reaffirmed and applied by the Supreme Court in the Indira Nehru Gandhi case (1975) which invalidated a provision of the 39th Amendment Act (1975) that kept the election disputes involving the Prime Minister and the Speaker of Lok Sabha outside the jurisdiction of all courts.
  • Again, the Parliament reacted to the doctrine of the basic structure by enacting the 42nd Amendment Act (1976) which amended Article 368 and declared that there is no limitation on the constituent power of Parliament and no amendment can be questioned in any court on any ground including that of the contravention of any of the Fundamental Rights.
  • The Supreme Court in the Minerva Mills case (1980) invalidated this provision as it excluded judicial review which is a ‘basic feature’ of the Constitution.
The doctrine is recognized in India, Bangladesh, Malaysia, Pakistan, Kenya, and Uganda. Bangladesh is perhaps the only legal system in the world that recognizes this doctrine with an expressed, written, and rigid constitutional manner through article 7B of its Constitution. 
Elements

Basic Structure Doctrine - Elements

The Supreme Court is yet to define or clarify what constitutes the basic structure of the Constitution. From the various judgments, the following have emerged as basic features of the Constitution or elements of the basic structure of the constitution:

  1. Supremacy of the Constitution.
  2. Sovereign, democratic and republican nature of the Indian polity.
  3. Secular character of the Constitution.
  4. Separation of powers between the legislature, the executive, and the judiciary.
  5. Federal character of the Constitution.
  6. Unity and integrity of the nation.
  7. Welfare state (socio-economic justice).
  8. Judicial review.
  9. Freedom and dignity of the individual.
  10. Parliamentary system.
  11. Rule of law.
  12. Harmony and balance between Fundamental Rights and Directive Principles.
  13. Principle of equality.
  14. Free and fair elections.
  15. Independence of Judiciary.
  16. Limited power of Parliament to amend the Constitution.
  17. Effective access to justice 18. Principles (or essence) underlying fundamental rights.
  18. Powers of the Supreme Court under Articles 32, 136, 141 and 142.
  19. Powers of the High Courts under Articles 226 and 227.
Conclusion

Conclusion

  • The basic structure doctrine seeks to achieve a fine balance between majoritarianism, democracy, separation of powers, and basic individual rights.
  • By the very virtue of its complexity, its implementation can never be perfect; but then, as Aristotle understood so long ago, nothing ever can.

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