DOCTRINE OF BASIC STRUCTURE

ABSTRACT

The Constitution gives the Indian Parliament and state legislatures the power to pass laws within their respective domains of influence. This ability has a restricted range. The Constitution gives the judiciary the power to decide whether a piece of law is valid or invalid. If a law approved by Parliament or state legislatures violates any provisions of the Constitution, the Supreme Court has the power to declare the law extra-vires. The founding fathers wanted the Constitution to function as a flexible manual rather than a rigid framework for governing, notwithstanding this check. As a result, Parliament was given the authority to alter the Constitution. The Constitution’s Article 368 states that Parliament has the full right to alter the whole text. However, the Supreme Court has acted as a restraint on Parliament’s desire for legislation ever since the country’s independence. The highest court held that in order to maintain the original objectives intended by the Constitution’s writers, Parliament may not change, eliminate, or distort any of the document’s core principles while posing as a constitutional amendment.

KEYWORDS

Basic structure – Fundamental Right (part III) – Kesavananda Bharati case- 42^nd Amendment – Minerva Mills Case – the validity of articles

INTRODUCTION

The Indian Constitution’s framers granted Parliament the authority to change the document in response to the demands and requirements of “We the People”. Article 368, grants the authority to the Parliament to change the Constitution, which can also be changed. The “Doctrine of Basic Structure” is a frequent name for a defense mechanism that prevents Parliament from abusing its power. It limits the power of Parliament to amend the law, preventing it from using its constitutional authority to alter the “basic structure of the basic law of the land.”

The question of whether the modifying authority of Parliament is subject to any restrictions is therefore posed. If the conclusion is “no,” for any explanation, including the fact that the authors of the Constitution had no intent to make such a restriction exist, they would have inserted it into the text. The next issue is: to what extent may Parliament alter the Constitution? If there are no restrictions on this power, then what is the Parliament’s capacity to change legislation under the pretext of “constituent authority” that may be exploited? These issues and the article’s scope are further addressed through court decisions and knowledge of the Doctrine of Basic Structure.

BASIC STRUCTURE DOCTRINE

Recognizing that the Constitution established a republic with self-government is the first step toward understanding the laws of the Constitution. One of nature’s laws is the Constitution. “A Constitution is an ever-developing thing and is continuously ongoing as it embodies the spirit of the nation,” remarked Edmund Burke also known as the Father of Conservatism. The effects of the past have enriched it, and the future will be far more prosperous than the present.

According to Article 368 of Chapter XX of the Constitution, which describes the methods that may be employed to alter the constitutional provisions, the provisions of the Constitution may be amended in specific circumstances. Simple majority, special majority, and special majority amendments with State approval are all acceptable amendment processes. The Constitution must be amended frequently because civilization is dynamic. The constitution’s stagnation is a major roadblock to the nation’s progress. A provision for amending the Constitution is being made in the Preamble for dealing with any problems “We the People” might encounter throughout centuries as the Constitution operates since time cannot remain static; it constantly evolves, just as the socioeconomic, political, and economic circumstances of the people do.

The phrase “Basic Structure” is not even included in the Indian Constitution. The idea that the legislative body is unable to pass laws that would amend the Constitution’s core structure finally came to light through time and via several incidents. The goal is to maintain the distinctive features of Indian democracy while safeguarding people’s rights and liberties. The original meaning of the Indian Constitution is preserved and honored by the Basic Structure idea.

HISTORY OF THE BASIC STRUCTURE DOCTRINE

Before 73 years, the people who drafted the Constitution felt strongly about the honor and integrity of India, but in modern times, The Parliament is making every effort to avoid coming under the court’s supervision, which is the protector of the Constitution. In 1973’s Kesavananda, the phrase “basic structure” was used for the first time in Indian law and jurisprudence.  While Dieter Conrad is referred to, Professor John Rawls’ well-known book A Theory of Justice (1971), in which Rawls introduced the phrase “basic structure” of a just society, is not. But until 1973, neither the Bench nor the Bar was familiar with it.

FEATURES OF THE DOCTRINE

Theverdict that has been given by the 13-judge bench in the Kesavananda Bharati case has structured the features of the Doctrine of Basic Structure.

• The supremacy, democratic and constitutional systems of government, secular nature, separation of powers between the legislature, executive authorities, and judicial departments, and the federal nature are among the core characteristics of the Constitution, according to Chief Justice Sikri.
• Shelat, J., and Grover, J. added two more fundamental principles to this list:
• The directive Principles of State Policy contains the instruction to create a social security system.
• safeguarding the nation’s integrity and cohesion.
• • Hegde, J., and Mukherjea, J., separately and further succinctly listed India’s fundamental characteristics as being its sovereignty, the democratic nature of the polity, the country’s unity, the essential components of the personal liberty protected for its citizens, and the mandate to establish a welfare state.
• The Preamble in the Constitution and the clauses of the Constitution that they were translated into, such as “sovereign democratic republic,” “parliamentary democracy,” and “three organs of the state,” according to Jaganmohan Reddy, J., had elements of the fundamental traits.

Justice K.K. Thomas in the case of Indira Gandhi v. Raj Narain (1975), argued that the availability of judicial review is a key factor. In addition, Justice Y.V. Chandrachud listed four essential principles that he thought were immutable. These include

• The status of a sovereign democratic republic,
• Equality of opportunity and position for all individuals,
• Secularism, religious and moral freedom,
• The law is supreme (Justice Mudholkar hinted that it was a component of the fundamental framework associated with the Golak Nath case from 1967.)

In the Minerva Mills judgment, the court concurred that “limiting the amending power” is a basic principle of the Constitution.

The Court made a vague mention of democracy as a component of the basic framework in Kihoto Hollohon v. Zachillhu (1992).

Additionally, in S. R. Bommai v. Union of India (1994), it was recognized that democratic structures, federalism, and secularism were important components of the essential structure.

DOCTRINE OF BASIC STRUCTURE ACCORDING TO THE PRINCIPLE OF NATURAL JUSTICE

The foundation of natural law is the notion that there is a higher, everlasting law that is independent of the desires of the ruler. Since natural law sometimes refers to the full corpus of rights, it is the highest supplementary collection of rights. The notion of human rights originated from natural law. Each person possessed a unique identity at birth that was unrelated to their state. Then Grotius offered a non-theistic justification for natural law. This leads to the conclusion that individual freedoms are a component of the greater natural law system.

The Indian Constitution’s Part III explicitly enshrined human rights. However, only a small number of human rights were safeguarded as Fundamental Rights. The rights to life and liberty under Article 3 of the Universal Declaration of Human Rights have been changed to become Article 21 of the Indian Constitution, Article 10 of the UDHR has been replaced with Article 22 of Part III, which now guarantees the right to a fair trial., Article 17 of the UDHR, which was originally Article 31 of the country’s constitution, has been changed to qualify as a constitutional right under Article 300, and Article 19 of the UDHR, which protects the priva­cies of the individual, has also been changed. As a result, it is also demonstrated that human rights in general—the next connection in the rights chain—are a subset of basic rights.

EVOLUTION OF DOCTRINE IN INDIA

• Shankari Prasad Singh v. Union of India 1951

The Shankari Prasad case, which has since been overruled, is significant in India’s constitutional history. It served as an initial legal action brought against the original Constitutional Amendment that inserted Articles 31A and 31B. The ‘right to property’ was included in the original Constitution’s Article 19’s “rainbow of rights,” but it was later removed by the 44th constitutional amendment in 1978. However, this provision caused issues for the Indian government when the Constitution of India was adopted since it prevented it from implementing any agrarian reforms. The “Zamindari (landholding) system,” which resulted in the consolidation of a significant quantity of property in the hands of just a few individuals while a significant portion of Indians were landless, was abolished by the government. ‘Patanjali Shastri’, the second Supreme Court Chief Justice of India, was the jurist who authored this ruling.

• I.C. Golaknath and Ors. vs State of Punjab and Anrs 1961

Regarding the possibility that the Fundamental Rights might be modified, the court had a change of heart. It said that the Fundamental rights are not subject to the legislative restriction outlined in Article 13 of the Constitution and that a new Constituent Assembly may be required to amend them. It was also noted that while Article 368 lays out the process for amending the Constitution, Parliament is not given the authority to do so. This decision gives Fundamental Rights a “transcendental position”. The judgment made use of the notion of inherent limitations on the Parliament’s capacity to change the Constitution. This viewpoint contends that the Constitution permanently protects the fundamental rights of the people. When the Constitution was written, the people reserved some rights for themselves.

• Kesavananda Bharati v. State of Kerala 1973

The fundamental structure doctrine underwent a sea change as a result of this case. Although the Parliament is free to alter any aspect of the Constitution, including the Fundamental Rights, the Supreme Court determined that the Constitution’s “basic structure as a whole is unable to be annulled even through a constitutional amendment.” The decision states that the parliament may only alter the constitution, not entirely rewrite it. The two concepts of ability and obliteration are not the same. Based on this concept of Indian law, the judge may declare unconstitutional any amendment passed by the legislature that conflicts with the fundamental principles of the Constitution.

• Case of Minerva Mills (1980)

This example further strengthens the Basic Structure notion. The 42nd Amendment to the Constitution of 1976’s introduction of two amendments was ruled to have violated the essential structure and to be unconstitutional. The ruling makes it quite clear that the Constitution is superior to the Parliament. In this case, the Court added two more elements to the list of key structural considerations. They represented the balance between DPSP, judicial review, and basic rights. The judges concluded that one of the core features of the Constitution is its flexibility in revision.

CONCLUSION

With a growing number of privileges being integrated into the Constitution every year since it was initially founded in the 1970s, it can be said that the Constitution’s fundamental structure has altered through time. Thus, decades of judicial oversight of fundamental rights plus the corresponding constitutional framework have led to the basic structure currently discernible today. It is sensible and well-advised to limit the fluid nature of social problems by adhering to the philosophy of fundamental structure. It cannot be exploited to challenge conventional law.  It would damage the Constitution’s framework. It may not be inaccurate to say that using the basic structure theory to judge the constitutionality of ordinary legislation would weaken and destroy the Constitution’s fundamental design.

REFERENCE

1. H.M. Seervai, Constitutional Law of India 3113 (2006).
2. Today’s Promise, Tomorrow’s Constitution: ‘Basic Structure’, Constitutional Transformations and the Future of Political Progress in India (2008) 1 NUJS L Rev 417
3. Basic Structure of the Indian Constitution: Doctrine of Constitutionally Controlled Governance: [From Kesavananda Bharati to I.R. Coelho] 49 JILI (2007) 365
4. Kesavananda Bharati case https://indiankanoon.org/doc/257876/
5. Shankari Prasad case https://indiankanoon.org/doc/1706770/
6. Golaknath case https://indiankanoon.org/doc/120358/

7. Minerva Mills case https://indiankanoon.org/doc/1939993/

This article is written by Amritha U ,student of Lloyd Law College, Delhi NCR during her internship.