Basic structure doctrine


The basic structure doctrine is a common law legal doctrine that the constitution of a sovereign state has certain characteristics that cannot be erased by its legislature. The doctrine is recognised in India, Bangladesh, Pakistan, and Uganda. 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, where the doctrine was formally adopted. Bangladesh is perhaps the only legal system in the world that recognizes this doctrine in an expressed, written and rigid constitutional manner through Article 7B of its Constitution.
In Kesavananda Bharati, Justice Hans Raj Khanna propounded that the Constitution of India contains certain basic features that cannot be altered or destroyed through amendments by the Parliament of India. Key among these "basic features", as expounded by Justice Khanna, are the fundamental rights guaranteed to individuals by the constitution. The doctrine thus forms the basis of the Supreme Court of India's power to review and strike down constitutional amendments and acts enacted by the Parliament that conflict with or seek to alter this "basic structure" of the Constitution. The basic features of the Constitution have not been explicitly defined by the Judiciary, and the determination of any particular feature as a "basic" feature is made by the Court on a case-by-case basis.
The Supreme Court's initial position on constitutional amendments had been that any part of the Constitution was amendable and that the Parliament might, by passing a Constitution Amendment Act in compliance with the requirements of article 368, amend any provision of the Constitution, including the Fundamental Rights and article 368.
In 1967, the Supreme Court reversed its earlier decisions in Golaknath v. State of Punjab. It held that Fundamental Rights included in Part III of the Constitution are given a "transcendental position" and are beyond the reach of Parliament. It also declared any amendment that "takes away or abridges" a Fundamental Right conferred by Part III as unconstitutional. In 1973, the basic structure doctrine was formally introduced with rigorous legal reasoning in Justice Hans Raj Khanna's decisive judgment in the landmark decision of Kesavananda Bharati v. State of Kerala. Previously, the Supreme Court had held that the power of Parliament to amend the Constitution was unfettered. However, in this landmark ruling, the Court adjudicated that while Parliament has "wide" powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution.
Although Kesavananda was decided by a narrow margin of 7–6, the basic structure doctrine, as propounded in Justice Khanna's judgement, has since gained widespread legal and scholarly acceptance due to a number of subsequent cases and judgments relying heavily upon it to strike down Parliamentary amendments that were held to be violative of the basic structure and therefore unconstitutional. Primary among these was the imposition of a state of emergency by Indira Gandhi in 1975, and her subsequent attempt to suppress her prosecution through the 39th Amendment. When the Kesavananda case was decided, the underlying apprehension of the majority bench that elected representatives could not be trusted to act responsibly was perceived as unprecedented. However, the passage of the 39th Amendment by the Indian National Congress' majority in central and state legislatures, proved that in fact such apprehension was well-grounded. In Indira Nehru Gandhi v. Raj Narain and Minerva Mills v. Union of India, Constitution Benches of the Supreme Court used the basic structure doctrine to strike down the 39th Amendment and parts of the 42nd Amendment respectively, and paved the way for restoration of Indian democracy.
The Supreme Court's position on constitutional amendments laid out in its judgements is that Parliament can amend the Constitution but cannot destroy its "basic structure".
The basic structure doctrine was rejected by the High Court of Singapore and the Supreme Court of Papua New Guinea. It was initially also rejected by the Federal Court of Malaysia, but was later accepted by it. Conversely, the doctrine was initially approved in Belize by the Supreme Court but was later reversed on appeal by the Belize Court of Appeal.

Definition

That the Constitution has "basic features" was first theorised in 1964, by Justice J.R. Mudholkar in his dissent, in the case of Sajjan Singh v. State of Rajasthan. He wrote that it is a matter for consideration
The Supreme Court of India, through the decisive judgement of Justice Hans Raj Khanna in Keshavananda Bharti v. State of Kerala case, declared that the basic structure/features of the constitution is resting on the basic foundation of the constitution. The basic foundation of the constitution is the dignity and the freedom of its citizens which is of supreme importance and can not be destroyed by any legislation of the parliament. The basic features of the Constitution have not been explicitly defined by the Judiciary. At least, 20 features have been described as "basic" or "essential" by the Courts in numerous cases, and have been incorporated in the basic structure. Only Judiciary decides the basic features of the Constitution. In Indira Nehru Gandhi v. Raj Naraian and also in the Minerva Mills case, it was observed that the claim of any particular feature of the Constitution to be a "basic" feature would be determined by the Court in each case that comes before it. Some of the features of the Constitution termed as "basic" are listed below:
  1. Supremacy of the Constitution
  2. Rule of law
  3. The principle of separation of powers
  4. The objectives specified in the preamble to the Constitution of India
  5. Judicial review
  6. Articles 32 and 226
  7. Federalism
  8. The sovereign, democratic, republican structure
  9. Freedom and dignity of the individual
  10. Unity and integrity of the nation
  11. The principle of equality, not every feature of equality, but the quintessence of equal justice;
  12. The "essence" of other fundamental rights in Part III
  13. The concept of social and economic justice — to build a welfare state: Part IV of the Constitution
  14. The balance between fundamental rights and directive principles
  15. The parliamentary system of government
  16. The principle of free and fair elections
  17. Limitations upon the amending power conferred by Article 368
  18. Independence of the judiciary
  19. Effective access to justice
  20. Powers of the Supreme Court of India under Articles 32, 136, 141, 142

    Background

The Supreme Court's initial position on constitutional amendments was that no part of the Constitution was unamendable and that the Parliament might, by passing a Constitution Amendment Act in compliance with the requirements of article 368, amend any provision of the Constitution, including the Fundamental Rights and article 368. In Shankari Prasad Singh Deo v. Union of India, the Supreme Court unanimously held, "The terms of article 368 are perfectly general and empower Parliament to amend the Constitution without any exception whatever. In the context of article 13, "law" must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power, with the result that article 13 does not affect amendments made under article 368. In Sajjan Singh v. State of Rajasthan, by a majority of 3–2, the Supreme Court held, "When article 368 confers on Parliament the right to amend the Constitution, the power in question can be exercised over all the provisions of the Constitution. It would be unreasonable to hold that the word "Law" in article 13 takes in Constitution Amendment Acts passed under article 368." In both cases, the power to amend the rights had been upheld on the basis of Article 368.

''Golaknath'' case

In 1967, the Supreme Court reversed its earlier decisions in Golaknath v. State of Punjab. A bench of eleven judges of the Supreme Court deliberated as to whether any part of the Fundamental Rights provisions of the constitution could be revoked or limited by amendment of the constitution. The Supreme Court delivered its ruling, by a majority of 6-5 on 27 February 1967. The Court held that an amendment of the Constitution is a legislative process, and that an amendment under article 368 is "law" within the meaning of article 13 of the Constitution and therefore, if an amendment "takes away or abridges" a Fundamental Right conferred by Part III, it is void. Article 13 reads, "The State shall not make any law which takes away or abridges the right conferred by this Part and any law made in contravention of this clause shall, to the extent of contravention, be void." The Court also ruled that Fundamental Rights included in Part III of the Constitution are given a "transcendental position" under the Constitution and are kept beyond the reach of Parliament. The Court also held that the scheme of the Constitution and the nature of the freedoms it granted incapacitated Parliament from modifying, restricting or impairing Fundamental Freedoms in Part III. Parliament passed the 24th Amendment in 1971 to abrogate the Supreme Court ruling in the Golaknath case. It amended the Constitution to provide expressly that Parliament has the power to amend any part of the Constitution including the provisions relating to Fundamental Rights. This was done by amending articles 13 and 368 to exclude amendments made under article 368, from article 13's prohibition of any law abridging or taking away any of the Fundamental Rights. Chief Justice Koka Subba Rao writing for the majority held that:
  • A law to amend the constitution is a law for the purposes of Article 13.
  • Article 13 prevents the passing of laws which "take away or abridge" the Fundamental Rights provisions.
  • Article 368 does not contain a power to amend the constitution but only a procedure.
  • The power to amend comes from the normal legislative power of Parliament.
  • Therefore, amendments which "take away or abridge" the Fundamental Rights provisions cannot be passed.