Constitutional Law

The Doctrine of Basic Structure

By Rishika Bagaria

“The glory of justice and the majesty of law are created not just by the Constitution – nor by the courts – nor by the officers of the law – nor by the lawyers – but by the men and women who constitute our society – who are the protectors of the law as they are themselves protected by the law.”

Robert Kennedy

The Doctrine of Basic Structure is the unwritten principles which govern the written constitution. Till the present date, it is difficult to define it but some examples can be given. Even SC has not given the complete exhaustive list but the only indicator was provided till now. The doctrine of “Basic Structure” is judicial innovation. It is not mentioned any were in the Indian constitution. The concepts of the “Basic Structure” ensure the supremacy of the Indian constitution. It is also the correct interpretation of the constitution. The constitution is supreme and all organs should draw its power from the constitution. The concept of “Basic Structure” also ensures the check and balance in the constitution. If parliament has the power to amend the constitution, the Supreme Court has the power to declare it invalid and this ensures the judicial supremacy when it comes to the Constitutional Amendments.

The concept of basic structure became a controversial topic because of the philosophical argument that exists that the power to amend the constitution is the ordinary legislative power or Constituent power. The ordinary legislative power means that the parliament has the power to make a law and therefore this power was given by our Indian constitution. Constituent power means that the power which is given by our Indian constitution. As we know that the constituent assembly body was the one who made the constitution therefore this body later known as the parliament of India. So, it has the inherent power to change it because it made it because of this argument we can say that Article 13(4) & Article 368 are valid and constitutional so, the power to amend the constitution is the power of the parliament which it possesses naturally & therefore cannot be restricted by the constitution and cannot be treated as law under Article 13(2)&(3). The only power to restrict the power to amend the constitution is the doctrine of the Basic Structure.

The journey of the philosophical topic begins with the case of Shankari Prasad v. union of India 1951, where the Supreme Court accepted the argument that the power to amend the constitution is the constituent power and therefore any constitutional amendment is not the law under Article 13(2)&(3). This is about the 1st constitutional amendment and therefore it restricted some of the FRs especially article 19 1(A) which is freedom of speech and expression as it is already restricted in a written form in A 19(2). This was continued until the case of Sajjan Singh v. the state of Rajasthan 1965 again the same question was asked and the same justice provided by the SC in the case of Shankari Prasad was brought forward. That the Fundamental Rights can be amended & article 13 not a restriction. After 2years this argument was changed in the case of Golaknath v. state of Punjab 1967, 11 bench judge’s decision was of 6:5 ratio. It was said that any amendment to the constitution under Article 368 comes within the definition of law under Articles 13(3) & therefore is bound by the restriction of 13(2). The case supported to the other side of the argument. Counter to Golaknath to nullify the judgment 24th amendment to the constitution 1971 inserted article 368(3) & 13(4). To counter this there was a case of Keshavananda Bharti v. State Of Kerela 1973, SC said that the power to amend the constitution is a constituent power & therefore is not restricted by 13(2) & (3) hence, any power to amend the constitution is not an ordinary law. The basic feature of the Indian constitution cannot be changed to reduce its scope. For examples right to life, Article 14, 15& 16. Therefore we cannot reduce the Fundamental Rights but can expand through various amendments. Hence, the amendment to the Basic Structure is an unwritten principle. This case also said that we can expand the scope of secularism but we cannot reduce its scope. Finally, it said that we can amend Fundamental Rights but it should violate the basic feature. Finally in the case of Minerva mills v. UOI 1980, this is the case was for the first time use the term Doctrine of Basic Structure. Therefore struck down the provisions in the constitution that goes against the Basic Structure Article 368(4) & (5) and held it unconstitutional. Later SC gave many examples to be as a basic structure like JUDICIAL REVIEW, RULE OF LAW, and PREAMBLE etc.

I strongly support the presence of Doctrine of Basic Structure, as because of it today we can enjoy a lot of rights in a true sense. I also support the intention of the SC for not defining it because we all know that if the proper definition of the basic structure would be provided then it will hamper our FRs in a worse way and the situation of the country cannot be imagined. As many people are ready to make laws according to their avaricious. We can take the example of a very famous politician like Indra Gandhi some cases like P Sambhamurthy Vs. State Of Andhra Pradesh & the most important the case Golaknath Vs. state of Punjab 1967, where I am against the judgement of this case as it seems to be so unconstitutional and vague. Hence, the presence of the doctrine is the best right we can enjoy ever.    

Critics argued that the Supreme Court did not precisely define as to what bare the essential features of“Basic Structure”. Moreover, according to them the amending powers of the parliament should not be subject to a vague and uncertain doctrine like this. But according to the supreme court, this doctrine is not vague, not precisely define does not mean it is non-existence. If historical background, the preamble the entire scheme of the constitution and relevant provision including article 368 are considered, then there is no difficulty in determining what are the elements of the Basic Structure. For example,In the case of S.R. Bommai vs. Union of India in 1994, theSupreme Court declares that Secularism is a part of Basic Structure.

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