Introduction
In the intricate tapestry of constitutional law, few doctrines hold as much significance and controversy as the Doctrine of Basic Structure. Embedded within the constitutional framework of various nations, this doctrine serves as a support system against arbitrary exercises of power, safeguarding the essence and integrity of the constitution. As legislative drafting serves as the blueprint for governance, understanding the relevance and implications of the Doctrine of Basic Structure is paramount for lawmakers, legal scholars, and citizens alike.
At its core, the Doctrine of Basic Structure posits that certain fundamental principles and features of a constitution are immutable and cannot be amended by the ordinary legislative process. Originating from the Indian judiciary's landmark decision in the Kesavananda Bharati case (1973), this doctrine has since permeated legal systems globally, shaping constitutional interpretation and legislative practices.
In the realm of legislative drafting, the Doctrine of Basic Structure serves as both a guiding principle and a constraint. Legislators must navigate the intricate balance between enacting laws to address contemporary needs and respecting the foundational principles enshrined in the constitution. This delicate equilibrium requires a nuanced understanding of constitutional jurisprudence and the ability to craft legislation that upholds the constitution's basic structure. The relevance of the Doctrine of Basic Structure in legislative drafting becomes particularly pronounced in contexts where political dynamics may seek to undermine constitutional principles for short-term gains. By establishing a judicially enforceable boundary on the power of the legislature, this doctrine acts as a check against legislative overreach and ensures the continuity of constitutional governance.
Moreover, the Doctrine of Basic Structure fosters legal certainty and stability, essential elements for fostering an environment conducive to economic growth and social progress. Investors, businesses, and individuals rely on the predictability of the legal framework within which they operate, and any erosion of the basic structure can undermine confidence in the rule of law.
In this article, we will be discussing about how this Doctrine of Basic Structure evolved, relevant cases and statutes regarding this doctrine and how it is important in legislative drafting.
Doctrine of Basic Structure
What is Doctrine of Basic Structure?
The Doctrine of the Basic Structure of the Constitution, upheld by the Indian Judiciary, asserts that specific fundamental principles and elements of the Constitution are inviolable and cannot be modified or removed by Parliament. According to this doctrine, any amendment aiming to tamper with or eliminate these fundamental features is considered unconstitutional and null. Consequently, this doctrine serves as a protective measure against arbitrary or extreme alterations to the Constitution, preserving its stability, consistency, and commitment to fundamental constitutional principles.
Evolution of Doctrine of Basic Structure
The Doctrine of Basic Structure of the Constitution is not explicitly outlined in the Constitution itself. Rather, it has been developed by the judiciary through a sequence of Supreme Court rulings concerning Parliament's amending authority under Article 368, which provides the parliament the power of amending the constitution. The dispute over the extent of Parliament's power to amend the Constitution began as early as 1951, sparking a conflict between the Legislature and the Judiciary. This conflict eventually led to the emergence of the Basic Structure doctrine.
The Evolution of this Doctrine over the years can be seen as follows:
Shankari Prasad Case, 1951: In this case, the Supreme Court determined that the term "law" in Article 13 encompasses solely regular statutes and excludes Constitutional Amendment Acts. Consequently, Parliament has the authority to diminish or revoke any Fundamental Rights through the enactment of a Constitutional Amendment Act.
Sajjan Singh case, 1965: In this instance as well, the Supreme Court affirmed that Parliament possesses the authority to amend any portion of the Constitution, including Fundamental Rights. Notably, it's worth highlighting that two dissenting judges in this case questioned whether the Fundamental Rights of citizens could be subject to the whims of the majority party in Parliament.
Golak Nath Case, 1967: In this case, the Supreme Court reversed its previous stand and concluded that the term "law" in Article 13 encompasses Constitutional Amendment Acts as well. Consequently, Parliament is not permitted to diminish or revoke a Fundamental Right through a Constitutional Amendment Act.
24th Constitutional Amendment Act, 1971: To counter to the Supreme Court's decision in the Golak Nath Case, Parliament enacted the 24th Constitutional Amendment Act of 1971. This amendment modified both Article 13 and Article 368, affirming Parliament's authority to diminish or revoke any Fundamental Rights through a Constitutional Amendment Act under Article 368. Additionally, it stipulated that such an act would not fall within the definition of "law" as per Article 13.
29th Constitutional Amendment Act, 1972: The 29th Amendment, passed in 1972, incorporated the Kerala Land Reforms Act (1963) into the 9th Schedule. This Act aimed to exempt matters related to the Kerala Land Reforms Act from judicial review. Specifically added to the 9th Schedule to prevent judicial intervention, these amendments by the Central Government shielded state government amendments from legal scrutiny. In the Kesavananda Bharati case, provisions of the Kerala Land Reforms Act, along with the 24th, 25th, and 29th Amendments, were contested in court.
Kesavananda Bharati Case, 1973: In this case, the Supreme Court affirmed the validity of the 24th Constitutional Amendment Act, acknowledging Parliament's authority to diminish or revoke Fundamental Rights. However, it introduced a novel Doctrine of the Basic Structure of the Constitution, which delineates that Parliament's constituent power under Article 368 does not extend to modifying the fundamental framework of the Constitution. Consequently, the overarching stance following this ruling is that Parliament cannot diminish or revoke a Fundamental Right integral to the 'basic structure' of the Constitution.
Indira Nehru Gandhi v. Raj Narain case, 1975: Here, the SC applied the theory of basic structure and struck down Clause (4) of Article 329-A, which was inserted by the 39th Amendment in 1975 on the grounds that it was beyond the Parliament’s amending power as it destroyed the Constitution’s basic features. The 39th Amendment Act was passed by the Parliament during the Emergency Period. This Act placed the election of the President, the Vice President, the Prime Minister and the Speaker of the Lok Sabha beyond the scrutiny of the judiciary. This was done by the government in order to suppress Indira Gandhi’s prosecution by the Allahabad High Court for corrupt electoral practices.
42nd Constitutional Amendment Act, 1976: In response to the introduction of the new Doctrine of Basic Structure, Parliament passed the 42nd Constitutional Amendment Act of 1976. This amendment altered Article 368 to assert that there are no constraints on Parliament's constituent authority. Consequently, no amendment can be legally contested on any basis, including the violation of Fundamental Rights.
Minerva Mills Case, 1980: In this case, the Supreme Court deemed the provision of the 42nd Constitutional Amendment Act of 1976 invalid because it omitted Judicial Review, which is deemed a fundamental aspect of the Constitution.
Waman Rao Case, 1981: In this scenario, the Supreme Court reaffirmed its commitment to the Doctrine of Basic Structure and clarified that it would be applicable to all Constitutional Amendment Acts passed after the date of the Kesavananda Bharati Case Judgment, which was April 24, 1973.
Present Position: As it stands now, Parliament, under Article 368, retains the authority to amend any aspect of the Constitution, including Fundamental Rights, provided such amendments do not impinge upon the Basic Structure of the Constitution.
Elements of Doctrine of Basic Structure
The Supreme Court has yet to provide a definitive definition of the 'basic structure' of the Constitution. But, it has continuously developed and refined the components of the basic structure through its rulings. Some of the key elements identified as part of the Basic Structure of the Constitution include:
1. Supremacy of the Constitution: As per the concept of constitutional supremacy, all governmental bodies, including parliament and state legislatures, are subject to the Constitution, which serves as the supreme law of the land. They are obligated to operate within the limits set forth by the Constitution. Since the Constitution grants them existence and authority, their actions must align with its provisions.
2. Sovereign, Democratic, and Republican nature of the Indian Polity: Before independence, India comprised various princely states. The Constitution established India as a republic, defined by "sovereign democratic republic," where both "sovereign" and "democratic" are vital. If prioritized, "sovereign" holds deeper complexity, being both a characteristic and a source of democracy. Thus, "democratic" precedes "republic" to define it accurately. A "sovereign democratic republic" must ensure justice, liberty, equality, and fraternity for all citizens. "To secure" denotes assurance. Justice ensures liberty, and liberty ensures justice, guaranteeing equality. Without justice, liberty, and equality, "fraternity" remains idealistic. These words symbolize a philosophical journey and operational explanation of the Constitution, with "justice" as paramount. The Indian Constitution mandates "rule of law" governance, relying on the legislature, executive, and judiciary, crucial for democracy's survival.
3. Secular Character of the Constitution: Secularism stands as a foundational principle guiding state policy and conduct within the Constitution. It represents a crucial aspect of building an egalitarian and progressive society. Embracing secularism in a positive sense is essential for fostering a unified national identity in a diverse, socially divided, and multi-religious society. It serves as an effective approach for resolving conflicts, fostering harmony, and ensuring lasting peace. Secularism ensures the protection of civil liberties, constitutional rights, and equal opportunities for all citizens, providing followers of every religion with a sense of security.
4. Separation of powers between the legislature, the executive and the judiciary: This doctrine suggests that it's not wise for one person or entity to possess all three powers: making laws, enforcing them, and interpreting them. Even if the Constitution doesn't explicitly specify which entities are responsible for these functions, courts still consider the principle of separation of powers as fundamental to it. The allocation of powers is intentionally designed to establish checks and balances among government branches and to enable specialization of roles.
5. Federal character of the Constitution: The Indian Constitution underscores federalism, portraying the Union of India as enduring and invincible. Both the Central and State governments are collaborative entities with their own autonomy, tasked with exercising their authority with respect, comprehension, and mutual accommodation. While not strictly federal or unitary, the Indian Constitution is often characterized as having a quasi-federal structure. It frequently emphasizes India's unity as a singular nation. India is described as a sovereign, socialist, secular, and democratic republic, known as a union of states. However, certain aspects like the states' right to draft their own constitutions and the absence of dual citizenship are considered federalism requirements not entirely met by the Indian Constitution, contributing to its quasi-federal nature.
6. Unity and integrity of the nation: National integrity is the cohesive force that binds citizens together within a country, transcending divisions based on caste, religion, language, and culture. Despite these differences, it fosters a sense of unity and oneness among the populace, emphasizing allegiance to the nation above all else. It signifies a shared commitment to the collective welfare and progress of the country, regardless of individual identities or affiliations. This unity reinforces social cohesion, stability, and resilience within the nation, promoting mutual respect, understanding, and cooperation among its diverse populace. National integrity serves as the cornerstone of a harmonious and inclusive society, embodying the strength of unity amidst diversity.
7. Welfare State (socio-economic justice): The expression "Social and Economic Justice" involves the concept of "Distributive Justice" which connotes the removal of economic inequalities and rectifying the injustice resulting from dealing or transaction between unequal in society.
8. Judicial Review: Judicial review, a principle in India despite the separation of powers among the executive, legislative, and judiciary branches, grants the judiciary authority to scrutinize actions by the executive and legislative branches. This doctrine empowers the judiciary to assess the legality and constitutionality of governmental actions, ensuring they align with constitutional provisions. While each branch retains distinct functions, the judiciary serves as a check on potential abuses of power by the other arms of the state. The power of “judicial review” of legislative and executive action is considered to be an essential tool for preserving the doctrine of separation of powers and the rule of law.
9. Freedom and dignity of the individual: It means that every person has the inalienable right to live with dignified life without discrimination and is free to put his opinion in the society. They are entitled to claim equal respect from the state as well as from other persons. It should be kept in mind while legislative drafting that the law does not violate this principle.
10. Parliamentary system: The Indian Parliament symbolizes the trust placed by the Indian populace in democratic principles, namely, the participation of citizens in decision-making and governance based on consent. Its substantial authority stems from its role as the people's representative body
11. Rule of law: Rule of law means that all laws apply equally to all citizens of the country and no one can be above the law. Any crime or violation of law has a specific punishment as well as a process through which the guilt of the person has to be established. It also says that no person shall be subject to harsh, uncivilized or discriminatory treatment even for the sake of maintaining law and order.
12. Harmony and balance between Fundamental Rights and Directive Principles: Both Fundamental Rights and Directive Principles are vital in maintaining the principles of justice, equality, and welfare in India. They serve as the bedrock for a fair and advancing society, guaranteeing the safeguarding of individual liberties and advancing social and economic prosperity for all members of society.15 These principles establish the framework for a harmonious and equitable nation, where every citizen's rights are upheld, and efforts are made to enhance the overall welfare of the populace. Together, they contribute to building a more inclusive and progressive society, guided by principles of equity and collective well-being.
13. Principle of Equality: The principle of equality means not every feature of equality, but the quintessence of equal justice. According to the Constitution, the government is prohibited from discriminating against any individual in India by ensuring equality before the law and equal protection of the laws. This implies that the laws are universally applicable to everyone, irrespective of their social or legal standing.
14. Free and fair elections: This doctrine ensures that free and fair elections should be conducted. Elections are a central feature of democracy. For elections to express the will of the electorate, they must be ‘free and fair’.
15. Independence of Judiciary: An independent judiciary guarantees a justice system free from control by other branches of government or political influences, while remaining accountable to the Constitution. This independence safeguards against the abuse of power by any governmental entity
16. Limited Power of Parliament to amend the Constitution: This means that Parliament is not permitted to amend or dismantle the Basic Structure of the Constitution, which encompasses fundamental elements such as the rule of law, separation of powers, judicial review, democracy, and federalism.
17. Effective access to justice: Access to justice entails guaranteeing equitable opportunities for all individuals to pursue and attain justice, irrespective of their socio-economic background, gender, caste, religion, or any other consideration.
18. Principles (or essence) underlying fundamental rights: The Fundamental Rights, integral to the Indian Constitution, stand as a cornerstone of its democracy. They play a pivotal role in nurturing principles of justice, equality, and fraternity, shielding individuals from arbitrary state actions. These rights are fundamental for upholding the essence of democracy, ensuring that every citizen is treated fairly and has equal opportunities. They serve as guardians of individual liberties, empowering citizens to challenge any unjust exercise of state power. In essence, Fundamental Rights are indispensable pillars that bolster the foundation of Indian democracy, fostering a society where every person's rights and dignity are protected.
19. Powers of the Supreme Court under Articles 32, 136, 141 and 142: It means that this doctrine prevents any law to limit the power of supreme court as defined under Articles 32, 136, 141 and 142.
20. Powers of the High Courts under Articles 226 and 227: It means that this doctrine prevents any law to limit the power of supreme court as defined under Articles 226 and 227.
Kesavananda Bharati vs State of Kerala
Facts
Keshvananda Bharati, the leader of the Edneer Mutt, a religious sect in Kerala's Kasaragod district, owned certain lands registered in his name within the sect. When the State Government of Kerala introduced the Land Reforms Amendment Act in 1969, allowing the government to acquire some of the sect's land, Bharati contested this in the Supreme Court on March 21, 1970, invoking Article 32 of the Indian Constitution. He argued for the protection of his rights under Articles 25 (freedom of religion), 26 (management of religious affairs), 14 (equality), 19(1)(f) (property rights), and 31 (compulsory acquisition of property). As the case was ongoing, the Kerala government enacted another law, the Kerala Land Reforms (Amendment) Act, 1971.
Issues before the court:
• Whether the Constitutional Amendment can be applied to fundamental rights as per Article 368 of the Constitution?
• Whether the 24th Constitutional (Amendment) Act, 1971, is constitutionally valid or not?
• Whether the 25th Constitutional (Amendment) Act, 1972, is constitutionally valid or not?
• Whether the 29th Constitutional (Amendment) Act is valid, and to what extent can Parliament exercise its power to amend the Constitution?
Judgement of the case:
On April 24, 1973, in a closely divided decision of 7:6, the landmark judgment was delivered. The majority ruled that Parliament could amend any provision of the Indian Constitution to fulfil socioeconomic obligations outlined in the Preamble, as long as such amendments didn't alter the Constitution's basic structure. The dissenting minority, however, expressed concern about granting unlimited amending power to Parliament.
The court upheld the validity of the 24th Constitutional Amendment but deemed the first part of the 25th Constitutional Amendment intra vires (within the scope of authority) and the second part ultra vires (beyond the scope of authority).
Basic Structure Doctrine
The basic structure doctrine asserts that while Parliament possesses broad authority to amend the Constitution, it cannot alter its fundamental framework. Although the bench didn't explicitly define the Constitution's basic structure, this principle was later clarified through subsequent judgments by the Supreme Court.
The court argued that the term "amend" in Article 368 does not encompass changes that would modify the Constitution's basic structure. Any amendment aimed at altering a constitutional provision must therefore undergo scrutiny under the basic structure test.
Significance
Previous judicial rulings suggested that several provisions of the Constitution hold equal, if not greater, significance compared to fundamental rights, but Golak Nath had limited this understanding solely to fundamental rights. However, Kesavananda Bharati expanded this concept by identifying additional elements constituting the "basic structure" of the Constitution, which cannot be altered by a constitutional amendment.
Golak Nath had made all fundamental rights non-amendable, a stance viewed by many, including the government, as excessively rigid. Kesavananda Bharati introduced flexibility by asserting that not all fundamental rights collectively constitute the Constitution's fundamental design. Only those fundamental rights deemed part of the 'basic structure' are non-amendable.
Significance in Legislative Drafting
The Doctrine of Basic Structure of the Constitution is of utmost importance in India's constitutional framework due to several reasons:
1. Preservation of Constitutional Integrity: This doctrine ensures that while the Constitution remains flexible to accommodate changes, its fundamental identity and integrity are safeguarded. This is vital for maintaining the stability and coherence of the constitutional order over time.
2. Maintenance of Constitutional Supremacy: By asserting that the Constitution reigns supreme, the doctrine reinforces the idea that all laws and actions must conform to its provisions. This prevents any entity, including the government, from overstepping its bounds or acting contrary to constitutional principles.
3. Upholding Constitutional Morality: The doctrine ensures that any amendments to the Constitution adhere to the overarching values of justice, equality, and fairness. It prevents amendments that may undermine these core principles, thereby fostering a constitutional culture based on morality and ethical conduct.
4. Prevention of Authoritarianism: By acting as a check against authoritarian tendencies, the doctrine prevents the concentration of power in the hands of a few and protects against the erosion of democratic institutions and norms. It reinforces the idea that the Constitution is a bulwark against arbitrary rule and ensures that democratic principles are upheld.
5. Ensuring Stability and Consistency: The doctrine discourages frequent and radical changes to the Constitution, which could disrupt governance and lead to instability. By promoting a more measured approach to constitutional amendments, it contributes to the stability and consistency of the legal system.
6. Protection of Democracy: By safeguarding democratic values as 'basic features' of the Constitution, such as sovereignty, socialism, secularism, and democracy itself, the doctrine helps to maintain India's status as a democratic republic. It ensures that the foundational principles of democracy remain intact and protected from manipulation or erosion.
7. Protection of Fundamental Rights: The doctrine shields fundamental rights from infringement through constitutional amendments. By ensuring that these rights are preserved and cannot be easily diluted or curtailed, it safeguards individual liberties and promotes social justice and equality for all citizens.
8. Promotion of Judicial Review: Finally, the doctrine empowers the judiciary to review constitutional amendments to ensure their compliance with the basic structure of the Constitution. This enhances the judiciary's role as a guardian of the Constitution and promotes the rule of law by holding the government accountable for any actions that may violate constitutional principles
Overall, the Doctrine of Basic Structure of the Constitution plays a crucial role in maintaining the integrity, supremacy, and democratic character of India's constitutional framework. It acts as a safeguard against abuse of power, protects fundamental rights, and promotes a system of governance based on constitutional principles and the rule of law.
Conclusion
In conclusion, the Doctrine of Basic Structure stands as a cornerstone in the realm of legislative drafting, encapsulating fundamental principles that safeguard the essence and integrity of a constitutional framework. Its relevance transcends mere legal discourse; it embodies the very essence of democratic governance, ensuring the preservation of constitutional values, separation of powers, and the rule of law.
The relevance of the Doctrine of Basic Structure in legislative drafting is immense. A legislature must adhere to the tenets of the Doctrine while drafting laws. As the Doctrine provides protection to the Constitution’s foundational structure, it plays a vital role in preserving the Constitution’s sanctity. In terms of legislative drafting, the Doctrine of Basic Structure acts as a check for arbitrary legislation that could potentially damage the Constitution’s core values and principles. The Doctrine of Basic Structure also informs judicial interpretation, where the Supreme Court has the power to interpret the Constitution. Over time, the Supreme Court has used the Doctrine to strike down laws that violate the Constitution's basic structure. This has created checks and balances in the Indian legal system, protecting the Constitution from any legislative or executive acts that could infringe upon its core structure. Furthermore, the Doctrine of Basic Structure encourages the maintenance of a stable legal system. By defining the core features of the Indian Constitution that cannot be altered, it creates a sense of stability and continuity that is crucial in ensuring the rule of law. This allows people to have trust in the legal system, making it easier for citizens to go about their daily lives. It also helps eliminate any potential for political instability, as everyone can be sure that the core values of the Constitution will not be altered arbitrarily.
The Doctrine of Basic Structure is a crucial concept in the Indian legal system, with far-reaching implications in legislative drafting. The Doctrine provides a framework for the preservation of the Constitution's fundamental structure and ensures that the core tenets of the Constitution are protected. It also creates checks and balances within the legal system and ensures stability and continuity that is crucial for the rule of law. Therefore, adherence to the Doctrine of Basic Structure is integral to ensuring a just and democratic legal system in India.
-- Chhavi Patial
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