Author: Mansewak Singh

The Constitution of a nation is not merely a legal document; it is the fundamental law that embodies the aspirations, philosophy, and enduring spirit of its people. In a dynamic democracy, the power to amend the Constitution is essential for accommodating societal change, yet this power, if absolute, harbours the peril of constitutional obliteration. In India, this tension was resolved by one of the most significant judicial innovations in common law history: the Basic Structure Doctrine. This doctrine, articulated by the Supreme Court in the landmark case of Kesavananda Bharati v. State of Kerala (1973), serves as a fundamental bulwark, ensuring that the foundational identity of the Constitution remains intact, even in the face of parliamentary majority.

The Genesis of the Basic Structure: A Constitutional Tug-of-War

The Basic Structure Doctrine emerged from a prolonged constitutional conflict between the Parliament and the Judiciary concerning the scope of Parliament’s amending power under Article 368 of the Constitution.

The Evolution of Amending Power

The debate can be traced through a series of key judgments:

1. Shankari Prasad v. Union of India (1951): The Supreme Court initially held that the power to amend the Constitution under Article 368 included the power to amend Fundamental Rights. It ruled that a constitutional amendment was not a ‘law’ under Article 13(2), which bars the state from making any law that takes away or abridges Fundamental Rights.
2. Golak Nath v. State of Punjab (1967): The Court reversed its earlier position, holding by a narrow majority that Fundamental Rights were granted a “transcendental position” and could not be amended by Parliament. It classified a constitutional amendment as a ‘law’ under Article 13. This severely restricted Parliament’s ability to introduce socio-economic reforms.
3. Parliamentary Response: In a decisive countermove, Parliament enacted the 24th Amendment Act (1971) and the 25th Amendment Act (1971). The 24th Amendment explicitly restored the power to amend Fundamental Rights, stating that Article 368 conferred the constituent power and that amendments made thereunder would not be considered ‘law’ under Article 13. The 25th Amendment sought to give precedence to the Directive Principles of State Policy (DPSP) over Fundamental Rights in certain areas.

The Kesavananda Bharati Verdict

This legislative-judicial confrontation climaxed in the Kesavananda Bharati case. A 13-judge Constitution Bench was tasked with determining the extent of Parliament’s amending power. The Court delivered a split 7:6 verdict, which was a masterful exercise in judicial statesmanship:

• It upheld the validity of the 24th Amendment Act, affirming Parliament’s power to amend any part of the Constitution, including the Fundamental Rights (overruling Golak Nath).
• Crucially, it simultaneously imposed an intrinsic limitation on this power, ruling that Parliament could not amend the provisions which form the ‘basic structure’ or ‘framework’ of the Constitution.

The judgment successfully balanced constitutional flexibility (allowing amendments) with constitutional stability (protecting its core identity).

The Contours of the Doctrine: Identifying the ‘Basic’

The Supreme Court intentionally chose not to provide an exhaustive definition or list of the features constituting the Basic Structure, leaving it to be determined on a case-by-case basis by the Judiciary. This dynamic approach has allowed the doctrine to evolve and adapt to new challenges, ensuring the Constitution remains a ‘living document.’

Key Identified Elements

Over the decades, through various judgments, the Judiciary has identified several core principles as part of the Basic Structure. While the list is non-exhaustive, prominent features include:

• Supremacy of the Constitution: The Constitution is the paramount law of the land.
• Sovereign, Democratic, and Republican Structure: The fundamental political character of the nation.
• Secularism: The state’s equal regard for all religions.
• Federal Character: The division of powers between the Union and the States, though with a unitary bias.
• Separation of Powers: The distinct functions of the Legislature, Executive, and Judiciary.
• Judicial Review: The power of the courts to examine the constitutionality of legislative and executive actions.
• Freedom and Dignity of the Individual: The essence of fundamental rights, particularly Article 14 (Equality), Article 19 (Freedoms), and Article 21 (Life and Personal Liberty).
• Rule of Law: Governance by law, not by men.
• Free and Fair Elections: An essential postulate of democracy.

Landmark Affirmations and Expansions

The Basic Structure Doctrine has been repeatedly affirmed and expanded, most notably in:

• Indira Gandhi v. Raj Narain (1975): The Supreme Court struck down Clause (4) of the 39th Amendment, which placed the election of the President, Vice-President, Prime Minister, and Speaker beyond judicial review, holding that the Rule of Law and Judicial Review are part of the Basic Structure.
• Minerva Mills Ltd. v. Union of India (1980): The Court held that the balance between Fundamental Rights and Directive Principles of State Policy (DPSP) is a part of the Basic Structure. It struck down a provision that gave DPSP complete supremacy over Fundamental Rights.
• S.R. Bommai v. Union of India (1994): Federalism, Secularism, and Democracy were strongly reiterated as Basic Structure elements in the context of the misuse of Article 356 (President’s Rule).

Critical Analysis and Significance

The Basic Structure Doctrine is not without its critics, yet its significance to India’s constitutionalism is profound.

Criticisms

The primary criticisms levelled against the doctrine include:

• Judicial Overreach: Critics argue it grants the judiciary excessive power, allowing it to become a ‘third chamber’ of the Parliament by reviewing and invalidating amendments based on an unwritten, judicially-created doctrine.
• Lack of Definitive Content: The absence of a fixed list of Basic Structure features is seen as creating uncertainty and subjectivity, allowing the doctrine to be invoked selectively based on judicial discretion.
• Impediment to Change: Some argue that by limiting the amending power, the doctrine can stifle necessary constitutional evolution required to address new societal, economic, and political realities.

Significance and Legacy

Despite the criticisms, the doctrine remains a cornerstone of Indian constitutional law, serving several vital functions:

1. Safeguarding Constitutional Identity: It prevents Parliament, often driven by temporary political majorities, from dismantling the core democratic, secular, and republican identity of the nation established by the Constituent Assembly.
2. Protecting Fundamental Rights: It provides an ultimate safety valve against any legislative attempt to abrogate or emasculate the fundamental rights guaranteed to citizens, reinforcing the idea of limited government.
3. Upholding Constitutional Supremacy: By making the Constitution, rather than the Parliament’s will, the supreme authority, it reinforces the principle that all institutions operate under and are bound by the founding document.
4. Promoting the Rule of Law: It ensures that the actions of the State, even in its constituent capacity, are subject to legal scrutiny and conform to higher constitutional principles.

The Basic Structure Doctrine is a remarkable instance of judicial creativity, transforming the Supreme Court from a mere interpreter of the Constitution into its ultimate guardian and conscience. It is the non-negotiable threshold that upholds the fundamental spirit of the Republic, ensuring that the foundational contract between the State and its citizens remains forever protected.

The doctrine’s continued relevance is demonstrated by its application in recent years, such as the Supreme Court’s declaration of the National Judicial Appointments Commission (NJAC) Act as unconstitutional in 2015, which was struck down on the grounds that it violated the basic structure element of the independence of the judiciary. This clearly underscores the doctrine’s function as the ultimate check on majoritarian impulse.

In conclusion, the Basic Structure Doctrine provides a brilliant solution to the inherent paradox of a flexible Constitution: how to allow for change while simultaneously preserving the original intent. By drawing a line in the sand—a line that safeguards the dignity and freedom of the individual which forms the ultimate foundation of the Constitution—the Judiciary has ensured the stability and endurance of India’s democratic experiment.