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The Constitution of India is an organic, living document. It must stand the test of time and evolve itself to adapt itself to the changing socio-economic conditions. Now, such changes in the Constitution can be incorporated only by two measures: legislative amendments and judicial interpretations. Judicial interpretations are done by the guardian of the Constitution of India i.e. the Supreme Court, whereas Legislative Amendments are done by the Parliament on being approved by a special majority.
Judicial interpretation does not change in the Constitution, rather it provides for an expansive interpretation of the existing provisions of the Constitution. For instance, the Right to Life under Article 21 was interpreted to include the right to clean environment. On the other hand, legislative amendments change the Constitution, which alters its structure. For example, after the 44th Amendment, the Right to Property was no longer a fundamental right, but became a mere legal right under Article 300.
But, the constitution does not provide for any fetter to this legislative power of the Constitution of India. So, does that mean this legislative power of the Parliament to amend the Constitution is unchecked? The answer is no. This is because of the evolution of a judicial doctrine known as the doctrine of Basic Structure by the Supreme Court of India. This doctrine states that the Parliament cannot amend or change those features of the Constitution which are the ‘Basic Features’ of it. Basic features can be termed as those features which are unalterable or which set the rudimentary foundations of the Constitution. The Supreme Court did not list out all the features of the Constitution which are to be termed as ‘Basic Features’. Rather, it declared that from time to time, as and when individual cases would arise, it would try to determine whether the feature which the Parliament is trying to amend is a Basic Feature or not.
This doctrine was evolved primarily by Justice Hans Raj Khanna in the case of Kesavananda Bharti v. State of Kerala (1973). This doctrine has been widely appreciated for putting a check on the abuse of legislative power, but also has been criticized as it did not lay out the basic features, thus not reaching any finality.
How did this concept evolve?
Justice J. R. Mudholkar in his dissent, in the case of Sajjan Singh v. State of Rajasthan, in 1964, theorized the concept that the Constitution contains “basic features” beyond the purview of the power of Constitutional Amendment under Article 368. In the year 1973, Justice Hans Raj formally introduced this concept under rigorous legal reasoning. He was inspired by a Pakistan Supreme Court judgment which was delivered by Justice Beg which for the first one mentioned about this doctrine.
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.. In Indira Nehru Gandhi v. Raj Narain and the Minerva Mills Case, 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 the 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”.
Purposes served by it
The following can be highlighted as the purposes served by the doctrine of basic structure:
- Check on legislative power– Article 368 of the Constitution empowers the Parliament to amend the Constitution of India. But, the doctrine of basic structure prevents this power from being absolute in nature. It puts a judicial check on this power, and ensures that it is not exercised arbitrarily.
- Safeguarding the sine qua non – Every Constitution has certain features or attributes, which are its fundamental features i.e. which cannot be tampered with, or else, it will not function the way it was envisioned to perform. These features are extremely fundamental to its functioning and cannot be done away with, to protect the essence of the Constitution. This doctrine protects such essential features of the Constitution so as to ensure that the very basic character of the Constitution is not done away with.
- Upholding the intention of the framers– The framers of the Constitution have certain values and intentions which they wish to present and channelize with the help of the Constitution. Such intention is reflected through those features of the Constitution which can be termed as the basic features of the Constitution. Upholding them and protecting them would ensure that the intention and will of the framers are respected and these two are to be given the paramount importance under all circumstances.
How are basic features protected?
Whenever a Constitutional Amendment takes place, it can be challenged by means of Judicial Review by the citizens. Under Article 32, when such a Writ Petition reaches the Supreme Court, the Court, first of all, tries to find out what are the given features that are alleged to be violated by the said Amendment. Then, it tries to examine whether the feature can be termed as a Basic Feature of the Constitution or not.
In order to determine the same, the Court would try to examine the intention and will of the framers, that are reflected by the feature and how it stood the test of time and eventually became a sine qua non for the functioning of the Constitution.
If it is so, they would declare the said feature to be that as a Basic Feature of the Constitution. Thereafter, the said Constitutional Amendment aiming to negate the feature would be declared by the Supreme Court.
Landmark judgements on the basic feature doctrine
The judicial journey of this doctrine can be traced with the help of the following cases:
- The Sajjan Singh Case- It was held in the case that the power to amend is supreme and beyond the purview of the test of Article 13(2). But the dissenting view of the Court stated that such amendment should be brought under the purview of Article 13(2) and is not supreme in nature.
- The I. C. Golaknath Case- This case held that the law made under Article 368 is also subject to the test of Article 13(2) and that the provisions of Part III of the Constitution cannot be altered at any cost. So, this judgment followed the majority view of the Sajjan Singh Case.
- The Kesavananda Bharti Case- It held that every Constitutional Amendment, even if it is placed under Ninth Schedule as immune from Judicial Scrutiny, can be attacked on grounds of violation of the Basic Structure of the Constitution, even if it might be saved from scrutiny despite violating fundamental rights.
So, for an ordinary legislature it must pass the test of Article 13(2) and for a Constitutional Amendment it must satisfy the test of Basic Structure, even if it is placed under Ninth Schedule.
These are the 3 landmark judgments, besides which there are a few notable judgments such as the Education Trust Case, the S.R. Bommai Case, Indira Gandhi v. Raj and the judgment on Ninety-Ninth Amendment.
The doctrine has been found of extreme importance and intense debate since its inception. The question arises whether such a doctrine can really be termed as constitutional as neither it has a constitutional genesis nor is it practiced as a constitutional convention. This doctrine has an anti-majoritarian flavor and is of prime importance as it prevents the Parliament from abusing its majoritarian power.
Criticizing this doctrine with the argument that the constituent power gets transferred from the elected representatives of the people to the judges of the Supreme Court one should not forget the majoritarian power of which the Parliament is in possession of. The judiciary is the protector and final interpreter of the Constitution and it is also below the Constitution. But it has also appeared from the few judicial pronouncements that the Supreme Court has assumed much power in the name of basic structure what may be termed as power of veto to every Constitutional amendment.
Further, this doctrine is vague and leaves a major part of its articulation to the discretion of the judges as it does not lay down a clear-cut list of which provisions are to be termed as part of the basic structure. This doctrine prevents the dubious use to which Ninth Schedule can be put to.
It is to be admitted that like all doctrines, this too, is not free of flaws, but we cannot deny that the benefits that are reaped by this is much more than the drawbacks.
Author: Koustav Bhattacharya from National Law Institute University, Bhopal.
Editor: Anna Jose Kallivayalil from NLU, Delhi.