Doctrine of Basic Structure - Constitution of India - Notes

·         The Doctrine of Basic Structure was first used in Kesavananda Bharati. The doctrine has its origins in the tussle between state legislation carrying out land reformations on basis of directive principles of state policy and the fundamental right to property (Article 19(1)(f) & 31 - Repealed).

·         Parliament thus in order to carry out the agrarian reforms passed the first amendment act which provided for insertion of Article 31 & 31B and the ninth schedule.

·         The first amendment was challenged in Shankari Prasad Case (discussed below) and then started a series of judicial pronouncements and constitutional amendments giving rise to doctrine of basic structure. Post Kesavanadna Bharati cases have helped determine the content of the ambiguous basic structure.

Shankari Prasad v. Union of India (1951)

·         First amendment, validity of insertion of 31A & 31B  and agrarian reforms was challenged

·         Petitioner contended that Parliament by amending constitution cannot take away fundamental rights

·         Argued that Article 13(2) prohibits making of ‘law’ abridging fundamental right and that amendment is ‘law’ for the purpose of Article 13(2)

·         Court  held that Parliament can exercise its constituent power and unlike parliament’s legislative power, its constituent power cannot be limited by Article 13(2)

·         Also held that amendment is not law for purposes of Article 13(2)

State of West Bengal v. Bela Banerjee

·         Held that the law seeking to provide for the acquisition of private property for public purpose had to provide for compensation which must be a “just equivalent” of what the owner had been deprived.

·         Just equivalent meant market price and would have been a huge burden on Indian economy which was in its nascent development

·         To counter this fourth amendment act was passed which provided that no law on agrarian reforms could be questioned in a court on the ground that the compensation provided by that law is not adequate.

Sajjan Singh v. State of Punjab (1964)

·         Seventeenth amendment which a44 new entries to IX^th schedule was challenged

·         Petitioner contended that parliament does not have power to abridge right to property or any other fundamental right

·         Majority of the court upheld the ruling of Shankari Prasad

IC Golak Nath v. State of Punjab (1967)

·         Inclusion of legislation in ninth schedule was challenged

·         Majority of 6 judges (5 dissenting) dissented from Shankari Prasad and Sajjan Singh

·         J. Subba Rao held Fundamental rights are sacrosanct, inviolable and natural rights of man which cannot be taken away

·         Held Fundamental Rights were outside the amendatory process if amendment took away or abridged fundamental rights

·         Judgment applied the doctrine of ‘prospective overruling’ (Judgment’s effect was kept prospective and did not applied retrospectively)

·         Held Constitution incorporates inherent limitation it is not what Parliament regards at a given moment as conducive to public benefit but what Part III of Constitution declares protected, which determines the ambit of freedom.

·         Inherent limitation emanates from Preamble of Constitution

·         Article 368 does not contain power to amend but merely provides the procedure for amending constitution. Power to amend Constitution is legislative process and is included within the plenary legislative power of parliament.

·         Residuary power of legislation is vested in parliament and it includes power to amend constitution. Whether in the field of statutory law or constitutional law amendment can only be brought about only by law. The imposition of several conditions on amendment of constitution is only a safeguard against a hasty action or protection to the states but does not change the legislative character of the amendment.  The word ‘law’ in Article 13(2) includes constitutional amendment.

·         Power to amend constitution cannot be accepted as sovereign power that said power is superior to legislative power and does not contain any implied limitation cannot be accepted. Amending power as sovereign power is sovereign only within the scope of power conferred by Constitution.

·         If all provisions guaranteeing fundamental rights must be amended so as to curtail these rights, this could be done only by a Constituent Assembly which might be convoked by Parliament by enacting a law for that purpose in the exercise of its residuary power.

·         After this Article 13(4) was inserted nullifying Golak Nath stating that Article 13 does not apply to constitutional amendments.

·         Article 368 marginal note was changed to “Power of Parliament to amend constitution” and sub clause 3 was inserted which said that article 368 is not affected by Article 13.

24^th Amendment 1971 (Effectively Nullified Golaknath Judgment)

1.      Clause 4 was added to Article 13 providing that nothing in Article 13 shall apply to a Constitutional amendment under Article 368.

2.      Clause 3 was added to Article 368 to provide that nothing in Article 13 will apply to amendments made under Article 368

3.      Marginal note to Article 368 was changed as power and procedure to amend the Constitution

4.      Article 368(1) clarified that Parliament may in the exercise of constituent power amend by way of addition, variation or repeal any provision of the Constitution.

25^th Amendment Act

·         Parliament restricted the right to property even further by removing the word ‘compensation’ and substituting it with ‘amount’.

·         Also, provided that fundamental rights under Arts. 14, 19 & 31 may be abridged in order to give effect to policies contained under Art. 39 (b) & (c).

29^th Amendment Act

·         Kerala Land Reforms Amendment Act, 1969, and the Kerala Land Reforms Amendment Act, 1971 were included in the Ninth Schedule.

·         Was challenged in Kesavananda Bharati Case.

Kesavananda Bharati v. State of Kerala

·         Challenged Kerala Land Reforms Act, 1963 as amended in 1969 (was kept in IX^th schedule) and 24^th,25^th, and 29^th amendment to constitution

·         Petitioner contended that:-

o   Parliament having only such constituent power as is conferred on it by the Constitution which is given by people unto themselves , Parliament cannot on its own enlarge its own power so as to abrogate its inherent limitation

o   Being a functionary created under Constitution, Parliament cannot arrogate itself to destroy essential features of Constitution

o   Parliament cannot destroy basic fundamental or human rights which were reserved by people for themselves when they gave themselves the constitution

o   Parliament cannot abrogate the limits of its constituent power by repealing limitations imposed on it and thereby purporting to do what is prohibited by these limitations.

·         Constitutional amendment cannot be equated with the expression ‘law’ within the meaning of Art. 13. (Overruling Golak Nath)

·         Held that 24^th amendment is constitutional

·         Fundamental rights are means to ends

·         Held that power under Article 368 is subject to certain inherent limitations and in the exercise of amending power Parliament cannot damage or destroy the basic structure or framework of the Constitution.

·         Each judge gave its own elements for basic structure.

·         Sikri’s, list of basic features of the Constitution:

o   Supremacy of the constitution

o   Republican and democratic form of government

o   Secular character

o   Separation of powers

o   Federal character of constitution

Post Kesavananda Bharati

·         Allahabad High Court invalidated the election of Indira Gandhi and disqualified her for next six years from contesting election on a finding that she had committed corrupt practice during her election.

·         To overcome the effect of the High Court order Parliament passed 39th Constitution Amendment Act in 1975 withdrawing the jurisdiction of all courts over the election dispute involving the Prime Minister.

Indira Nehru Gandhi v Raj Narain

·         Supreme Court struck down the 39th amendment as violating democracy implicit in free and fair election, equality and rule of law which are the basic feature of the constitution. The exclusion of judicial review damaged the basic structure of the Constitution.

Minerva Mills Ltd v Union of India

·         Clauses 4 and 5 were added to Article 368 which validated all existing and future constitutional amendments and removed all limitations on the amending power of the Constitution. 

·         Amendment made to Article 31 C provided that a law to implement directive principles could not be challenged on the ground of violation of Articles 14, 19 and 31.

·         The Supreme Court unanimously invalidated clause 4 and 5 of Article 368 as violating the basic feature of limited amending power. Limited amending power is one of the basic features of the Constitution and Parliament cannot enlarge its limited power by amending the Constitution.

·         The majority of judges declared the amendment to Article 31C was declared as disturbing the harmony and balance between Fundamental Rights and Directive Principles which a basic feature of the Indian Constitution.

Waman Rao v Union of India

·         Held that any addition to 9th Schedule but after 23rd April 1973 the date of Kesavananda judgment any addition to 9th schedule could be challenged on the ground of violation of Basic Structure.

·         Basic structure does not apply retrospectively.

M Nagraj v Union of India

·         Supreme Court unanimously upheld the validity of 77th, 81st 82nd and 85th amendment in Article 16 (4-A) (4-B) and proviso to Article 335 holding that these provisions did not destroy the equality code of the Constitution.

·         Test of Identity - It is not an amendment of a particular article but an amendment that adversely affects the wider principle of constitutional law such as republicanism, secularism, equality and democracy or other foundational values that changes the identity of the Constitution are impermissible.

I R Coelho v Union of India

·         Reaffirmed basic structure doctrine.

·         Articles 14, 15, 19 and 21 are parts of basic structure.