Overview: Basic Structure of the Constitution

Constitution is the supreme law of land, on which all other laws are based and enforced. It contains Laws concerning the Government and the public. Each and every organ of the State derives its power from the Constitution in terms of powers, procedure and duties.

“The Constitution is not an instrument for the government to restrain the people; it is an instrument for the people to restrain the government.”-Patrick Henry, an American Lawyer and politician.

Regarding the nature of the Indian Constitution, because it was created by Special Constituent Assembly, it reflects faith, will and aspirations of the people of the country. It empowers the Union and State Legislature to make and amend the laws to run the State (in their jurisdiction) from time to time. The question arises, whether this amending power of the Parliament is absolute? Is the Constitution truly an instrument to restrain the Government? How the will of the framers of the Constitution and legal sanctity of supreme law are protected?

It was first challenged in Shankari Prasad v Union of India[1] in 1951. The question here for consideration was whether first constitutional amendment act was valid or not, since it intends to give power to the Parliament to amend Part III of the Constitution i.e. Fundamental Rights.

It was contented that amendment must be void as it was abridging the basic rights of people, conferred on them by the Constitution. To the contrary, the Supreme Court held that Parliament, under article 368, has power to amend any part of the Constitution including Fundamental Rights. Later on, in Sajjan Singh case[2] (1964), the Apex Court observed the same.

The earlier decision was overruled in Golaknath v. State of Punjab[3] case in 1967 wherein the Supreme Court observed that Parliament has no power to amend the Part III of the Constitution as Fundamental Rights are “transcendental and immutable”. It further said that the Article 368 of the constitution lays down the procedure of amendment though, it does not intend to give absolute powers in the hands of Parliament to amend any part of the Constitution. Still the tussle of power between legislature and judiciary continued.

The term “Basic structure of constitution” is not contained in the Constitution; however it found its recognition for the first time in the landmark judgment of Keshavnanda Bharti v. Kerala[4] case in 1973 and evolved gradually through various judgments propounded by the apex court from time to time. This judicial innovation intends to protect and preserve the will of framers, basic rights of people, ideals & philosophy of the Constitution and to stop abuse of law-making powers by the Parliament in preach of their political will.

The constitutional validity of twenty-fourth, twenty-fifth and twenty- ninth amendment act was challenged in this case (supra). Power of “Judicial Review” was getting snatched by law makers with the use of amended provision of Article 368. Thus, the Supreme Court, by using the doctrine of basic structure struck down the amendment intending to deprive judiciary from keeping check and balance on the law making powers of the government; which is a basic feature of the Constitution.

In this breakthrough decision, the court by majority of 7:6 held that the amending power of Parliament is wide enough to reach every part of the Constitution, however, is not unlimited and does not include power to destroy or abrogate the “basic feature” of the Constitution.

The majority verdict (seven judges) in Keshavananda observed that power of Parliament to alter each and every provision of the Constitution except anything which tends to abrogate basic framework or fundamental principles of the Constitution so as change its identity wherein Justice Khanna opined:

“that there are certain limitations inherent in the concept of amendment. The word “amendment” postulates that the old Constitution survives without loss of its identity despite the change and continues even though it has been subjected to alterations.”

and according to Sikri, C.J., the Basic Structure of the Constitution consists of the following features:

(1)Supremacy of the Constitution,

(2)Republican and Democratic forms of the Government,

(3)Secular Character of the Constitution,

(4)Separation of the Powers between the Legislature, the Executive and the Judiciary

(5)Federal character of the Constitution

In the same judgment, Justice Shelat and Grover,JJ. were of the view that

“…the power in Article 368 is wide enough to permit amendment of each and every Article of the Constitution by way of addition, variation or repeal so long as its basic elements are not abrogated or denuded of their identity.”

Minority view: It was held that there is no implied limitation on the amending power. Six Judges were dissenting on the view that powers are absolute and could be used to amend all the articles of the Constitution, even Fundamental Rights, though power to amend does not include power to abrogate the Constitution. It was observed that all parts of the Constitution were integral and no distinction can be made between its essential and non- essential parts.

Thus, in some total, it was accepted that since Constitution vouches for integrity and sovereignty and is adopted by people of India, thus, it does not provide plenary powers to amend and alter the pillars it is structured and standing upon, or else, it will put basic human rights at stake and loses its moral character.

The next couple of years witnessed evolution and consolidation of the doctrine. Feature of secularism, right to equality, right to life came into picture as basic features as well. There were attempts to strike down the applicability of basic structure theory, for instance- in the Indira Gandhi v. Raj Narain[5] and Minerva Mills[6] case but, all in vain, it stood strong and proved to be one of the fundamental principle developed in constitutional and legal history of the nation.

However, the doctrine may have some drawbacks. The judiciary has not explicitly defined the basic feature, thus, even after laying down certain essentials of “basic structure”, it is not yet exhaustive and will keep developing on the basis of the circumstances and facts of each case that comes before the court. It further lies on the discretion of the Court; what feature is to be given shape as to the very basic feature which the doctrine intends to encompass. It has a very wide sweep and tends to give extra power to the Court but at the same time, the work of strengthening and maintaining the sanctity of the Constitution that doctrine does cannot by any means go unnoticed and unappreciated.

[1] 1951 AIR 458

[2] 1965 SCR (1) 933

[3] AIR 1967 SC 1643

[4] AIR 1973 SC 1461

[5] AIR 1975 SC 2299

[6] AIR 1980 SC 1789

Richa is a second year law student at University of Delhi.