Table of Contents
DOCTRINE OF BASIC STRUCTURE
Introduction
There was long tussle between judiciary and legislature that who is supreme between both of them. Doctrine of basic structure was coming into existence as a result of tussle between judiciary and legislature. Doctrine of basic structure is not defined in the constitution. Doctrine of basic structure is dynamic in nature and not static in nature
Example of basic structure are- Equality, Liberty and Fraternity etc.
Article 13 of the Indian constitution states that whether there is any which pre constitutional law or post constitutional law it should not be inconsistent with the fundamental right of the constitution.
Article 368 of the Indian constitution states that parliament has the power to amend the constitution.
1st Amendment of the Indian constitution was done by the Parliament in 1951. ARTICLE 31A and 31B was inserted into constitution by the first amendment 1951.
Article 31A – State can take control of any public corporation for public intrest and state can modify or extinguish the right of owner of public corporation.
Article 31B –Judicial review shall not apply on schedule 9 of the Indian constitution.
Shankari Prasad Vs Union of India1951
In this case the validity of first constitution amendment act 1951 ( Article 31A and Article 31B) was challenged. Amendment was challenged on the ground that Article 31A and 31B were against Article 13 of the constitution so an amendment was void and the term law in Article 13 include constitution amendment.
In this case the Supreme Court had held that amendment was valid because in Article 13 the term law includes only ordinary law and it does not include constitutional amendment. The Supreme Court had also held that according to Article 368 of constitution the Parliament had power to amend the constitution including fundamental right of the constitution.
17th Constitutional Amendment was done by the Parliament in 1964 and in 17th amendment of the constitution more provision were added in schedule 9 of constitution.
Sajjan Singh Vs state of Rajasthan1964
In this case17th constitutional amendment act validity was challenged. In this case 5 judges bench of Supreme Court in 3:2 held Shankari Prasad case judgment valid. The majority of judges in this case also held that fundamental right can be also amended by constitutional amendment and there is no provision in constitution which says that fundamental rights should not amended by constitutional amendment. The majority of judges said that the word law in Article 13 includes only ordinary law and does not include constitutional amendment.
Golaknath vs State of Punjab 1967
In this case the validity of 17th constitution amendment act was challenged again. In this case 11 judges bench gave the decision (in 6:5) overrule the judgment of both Sajjan Prasad case and Shankari Singh case.
The Supreme Court held in this case that parliament had no power to amend the constitution in such way it take away or abridge the fundamental rights of people. The Supreme Court also held the following things in this case-
Majority of the judges said that the power of Parliament to amend the constitution was not supreme and it is subject to the constitutional provision so that is why limitation was put on the power of the Parliament regarding amendment of the constitution.
Article 245 of the Indian constitution gave the power to Parliament for the amendment of the constitution and 368 says about the procedure for amending the constitution.
The word Law in Article 13 also includes constitutional amendment so if any amendment is done against the fundamental rights of the constitution then it can be declared void.
The Supreme Court had use the doctrine of Prospective Overruling in this case it means that this judgment did not have retrospective effect, only prospective effect and whatever the amendment had done before judgment of this case continue to be remain valid.
24th Amendment Act was passed by the Parliament in 1971 after the Golaknath case judgment. By 24th Amendment act Parliament had amended the Article 368 of the constitution before 24th amendment Article 368 contains only procedure for amending the constitution but after 24th amendment Article 368 contains procedure as well as power for amending the constitution. By 24th amendment Parliament in Article 368 Parliament had added the word that ‘Parliament can amend any provision of the constitution by way of addition, repeal or variation. Article 368 was become supreme than article 13 and Article 13 was not applied on Article 13 it means that the position of Article 368 had became superior than Article 13.
The main aim of 24th amendment is that the Parliament had wanted to increase its power and become more powerful than judiciary. The Supreme Court had restricted the power of Parliament by Golaknath case.
25th Amendment act was passed by the parliament in 1971. Parliament inserted a new Article 31C in the constitution by 25th amendment act. In Article 31C Parliament inserted 2 clause. In Article 31C clause(a)- The directive principle of state policy Article39(b) and Article 39(c) was supreme to Article14, 19 and 31. In Article 31A clause(b)- If any law is passed by the parliament for giving effect to Article39(b) and 39(c) then that law cannot challenged if it against article 14, 19 and 31 of the Indian constitution.
26th Amendment act was passed by the Parliament in1971. By this amendment act there was abolition of Privy Purse.
29th Amendment act was passed by the Parliament in 1972. By 29th Amendment act Parliament inserted more land reforms act under schedule 9th schedule of the constitution.
Kesawananda Bharti Vs State of Kerala 1971
This case is also known as fundamental rights case. In this the validity of 24th amendment act as well as the validity of 25th amendment act was challenged in this case.
In this case 13 judges bench in 7:6 gave the judgment. The Supreme Court had formulated the doctrine of basic structure in this case. The majority of judges had overruled the judgment of Golakanth case. The majority of judges had also held that Article 368 gave the power to the Parliament for amending the constitution and Parliament can amend the Fundamental rights by Article 368 of the constitution but Parliament cannot amend fundamental rights by violating the basic structure of the Indian constitution. The court held that 24th amendment act was declarative in nature and even before 24th amendment Article368 said about the procedure as well as power to amend the constitution.
The majority of judges held that clause b of Article31C was against the basic structure of the constitution (25th amendment act) and if any law is giving effect to Article 39 clause b and c if the law is against Article14, 19 and 31 of the constitution then it can be the ground of the judicial review.
The majority of judges said about the doctrine of basic structure that it was not define in the Indian constitution and it is not static but dynamic in nature. Supremacy of constitution, Sovereignty, Unity and Equality etc are examples of the basic structure of the constitution.
The Keshwananda Bharti case Judgment was delivered on 24th July1973
Indira Gandhi Vs Raj Narain 1975
Allahabad High Court was found the PM of India guilty of Election malpractices then Indira Gandhi had filed appeal in Supreme Court against the decision of Allahabad High Court. When Indira Gandhi filed appeal in Supreme Court then Supreme Court was at holiday. Indira Gandhi had taken the advantage of the situation and passed 39th constitutional amendment act.
39th Amendment act was passed in 1975 Parliament insert Article 329A in the constitution. Article 329A took away the power of the Supreme Court to try Electoral disputes in relation to election of President, Prime Minister, Vice President and Speaker of lok sabha.
The case of Raj Narain Vs Indira Gandhi was the first landmark judgment in which Kesavananda Bharti case judgment was applied. The Supreme Court in the case of Raj Narain Vs Indira Gandhi declared that the newly added Article 329A clause 4 as unconstitutional because it violates the basic structure of the constitiution.
42nd constitutional amendment was done by the Parliament in 1976. It is also said to be mini constitution of India. 42nd constitutional amendment was controversial amendment of Indian constitution.
Parliament added 368(4) and 368(5) which conferred unlimited amending power to the Parliament for amending the constitution. Parliament can even amend the basic structure of the constitution by inserting 42nd amendment in the Indian constitution.
Article 31C was amended again and all DPSP became supreme than article 14, 19 and 31 of the constitution.
Minerva Mills Vs Union of India 1980
In this case Supreme Court by 4:1 majority held that power of the Parliament cannot be unlimited and limited power was itself part of the basic structure. The Supreme Court had struck down Article 368(4) and Article 368 (5) and declared it unconstitutional because it was taking away the power of judicial review as well as violate the basic structure of the constitution. The Supreme Court also restored Article31C to its pre1976 position.
Waman Rao Vs Union of India 1980
In this case all law which were included in 9th schedule before 24 April 1973 challenged.
The Supreme Court had applied the doctrine of basic structure prospectively but not retrospectively and it was held that acts which were included in 9th schedule before 24 April1973 cannot be declared void. Any law put in the 9th schedule after 24th April 1974 can be ground of the judicial review.
IR Coelho Vs State of Tamil Nadu 2007
In this case 9 judges bench reiterated Waman Rao judgment that all law put in 9th schedule after 24 April 1974 shall be under the preview of the judicial review.
Conclusion
Doctrine of basic structure is one the important doctrine because it puts the limitation on the legislature that it cannot do any amendment against the basic structure of the constitution. If there is no basic of structure doctrine then Parliament may have unlimited powers for amending the constitution and it may also do an exploitation of the rights of the people so that is why doctrine of basic structure is one of the most important part of our Indian constitution.
Author-Vaibhav Narayan Yadav
BA LLB 3rd YEAR , CPJ COLLEGE GGSIPU