The Doctrine of Basic Structure

“Without the basic structure, we end up with a constitution without constitutionalism”.

  -Upendra Buxi

How comprehensively can Parliament amend the Constitution? Can it change the very nature of the Constitution? Can it rewrite the whole Constitution?

These were the questions that our Supreme Court, the final interpreter of the Constitution, faced in the 1960s and 70s when, in just 10 years, more than 20 amendments were made. Some of which challenged the very basis of the Fundamental Rights.

Thus, the Supreme Court came up with the doctrine of Basic Structure. It is a Judicial innovation based on the idea that a change in the Constitution does not involve its destruction. There is an underlying basic structure that the Parliament cannot change. Only a constituent Assembly has the power to rewrite the Constitution.

The doctrine of basic structure continues to evolve with the judicial pronouncement of the Supreme Court. Its essence lies in those features, which, if amended, would change the very identity of the Constitution itself, ceasing its current existence.

The doctrine of basic structure was given in the Kesavanand Bharti Case, where the Supreme Court held that “every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remain the same.”

• Regarding the amending power under Article 368, The Supreme Court in Kesavanand Bharti’s Judgement held that “one cannot legally use the Constitution to destroy itself”.
• This is inspired by the doctrine of basic structure in the German Constitution, which is based on the principle that democracy is not just a form of government but rather a philosophy of life that appreciates dignity and inalienable individual rights. These basic rights cannot be affected in any circumstances.

The emergence of the doctrine of Basic structure

The Parliament’s authority to amend the Constitution, especially the fundamental rights, became a subject of contestation as early as 1951. The Congress Party’s electoral promise of implementing the socialistic principles (abolition of inequality) in the Directive Principles came into conflict with the Right to Property.

Shankari Prasad Case (1951)

• This case came up with the First Amendment Act (1951), which added a 9^th schedule to exclude such laws that restricted the Right to Property and was challenged in the Court.
• The government was trying to abolish the Zamindari by placing Land Ceiling Acts and Tenure Abolition Acts. It inserted Article 31A and the 9th Schedule in the Constitution, which was now outside the purview of Judicial review. Any state law which acted against the Zamindari system was added to the 9^th schedule.
• The property owners (Zamindars) argued that this Amendment violates Article 13, which protects the fundamental rights of the citizens.

Article 13

“Laws” inconsistent with or in derogation of the fundamental rights shall be void. The term “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;

• In this case, the Supreme Court held that the word ‘law’ in Article 13 does not include a Constitutional Amendment Act. This means the Constitution can take away any fundamental right, and it will not be void under Article 13.
• Harmonious Construction: The Court found that the fundamental rights and the DPSPs are not conflicting ideals but are two sides of the same coin, and it would be beneficial if they worked together. Thus, fundamental rights can be amended to bring them into conformity with the DPSPs.
• Conclusion: The Parliament was fully competent to make any amendment to the Constitution. The authority of the Parliament under Article 368 also includes the authority to amend fundamental rights.

However, until 1967, it was observed that whenever the judiciary gave unfavourable Judgement, the government would bring amendments to overrule it. In 1964, the government brought the 17^th Amendment to amend Article 31A and the 9^th Schedule. It added 44 acts in the 9^th Schedule in one go.

Golak Nath Case (1967)

• In the Golaknath case, the 17^th Amendment was challenged, and the Supreme Court reversed its earlier decision. It equated the constituent power and legislative powers of the Parliament.
• Since a constitutional amendment is a legislative process, the term ‘Law’ also includes constitutional amendments. Thus, even constitutional amendments cannot be inconsistent with the Fundamental Rights.
• Therefore, it ruled that a Constitutional Amendment Act would also be void if it violates fundamental rights.
• Conclusion: The Fundamental Rights were given a ‘transcendental and immutable’ position; hence, they cannot be taken away.

24^th and 25^th Constitutional Amendment Act (1971)

After the Golaknath judgement, several policies of the Indira Gandhi government, like the abolition of privy purses to the erstwhile princes and the nationalisation of banks, were struck down by the Supreme Court.

The Parliament and Supreme Court were once again at loggerheads over the relation between Fundamental Rights and Directive Principles as well as Parliamentary supremacy vis-a-vis the Court’s authority to interpret and uphold the Constitution.

The 24^th Constitutional Amendment Act was brought to overrule the Golaknath judgement. The Act amended Article 13 and Article 368. The Provisions added were:

1. It stated that the Parliament could abridge any of the fundamental rights under Article 368.
2. Such a Constitutional Amendment Act would not be considered as ‘law’ in the context of Article 13.
3. It also made it binding on the president to give assent to the Constitutional Amendment Act.

The government brought the 25^th Amendment Act, which inserted Article 31C, giving primacy to Directive Principles mentioned in Article 39 (b) and (c) over fundamental rights contained in Articles 14, 19 and 31.

• It meant that when the government aimed to implement welfare provisions of the Constitution, the fundamental Right to Property could be violated, and this could not be challenged on the ground of equality before the law in the Court.

Conclusion: The 24^th Amendment Act, which gave unrestricted power to the Parliament to amend the Constitution, and the 25^th Amendment Act enabled the government to give primacy to the welfare provisions of DPSP over the Fundamental rights of equality, freedom and Property.