Date: 24 November, 2020
by Shwas Bajaj, UILS, Panjab University
In the case of Kesavananda Bharati v. State of Kerala, seven of the thirteen judges observed that the Parliament in the exercise of its amending power under Article 368 of the Constitution could not alter the basic structure or framework of the Constitution.
The Doctrine of Basic Structure is essentially developed from the German Constitution and has been held to be a limitation on the amending power of the Parliament. It provides a touchstone to test the extent of Parliament’s power to amend the Constitution.
It is not easy to identify with certainty as to what is basic structure or which provisions of the Constitution constitute the basic structure or the framework. It is, therefore, for the Supreme Court, to determine finally, as to what constituted the basic structure or what features and essential features constituted the framework of the Constitution.
APPLICATION OF THE DOCTRINE OF BASIC STRUCTURE
The Supreme Court had an occasion to refer to the doctrine of basic structure in Indira Gandhi v. Raj Narain, popularly known as the Election case. In this case the Constitutional (39th Amendment) Act, 1975, was challenged which inserted Article 329A to the Constitution. According to Clause (4) of this Article, the decision of the High Court, which invalidated the election of the appellant, was nullified and the jurisdiction of all courts was withdrawn in disputes relating to elections involving the Speaker and the Prime Minister. The Supreme Court unanimously struck down Clause (4) of Article 329A. The majority of the Supreme Court, declared the following features as constituting the basic structure of the Constitution:
Free and fair elections
Rule of law
Right to equality
42ND AMENDMENT, 1976 AND DOCTRINE OF BASIC STRUCTURE
The Government could not reconcile to any limitation, whatsoever, be read into the constituent power of the Parliament. In order to remove these impediments the Constitutional (42nd Amendment) Act, 1976 was enacted.
The amendment inserted Clause (4) and (5) in Article 368 to the effect that an amendment of the Constitution under Article 368 shall not be called in question in any Court on any ground and that there shall be no limitation, whatever, on the constituent power of the Parliament.
The above Clauses were challenged in Minerva Mills Ltd. v. Union of India.
The Supreme Court unanimously held that Clauses (4) and (5) of Article 368, inserted by the 42nd Amendment Act, 1976, to be unconstitutional as being beyond the amending power of Parliament, as these destroyed the basic structure of the Constitution.
DISTINCTION BETWEEN INTEGRAL PART AND BASIC STRUCTURE
In Madhav Rao Scindia v. Union of India, the Constitution (26th Amendment) Act, 1971, was challenged. The court while upholding the validity of the Act observed that every integral part of the Constitution was not necessarily an essential feature of the Constitution. Both were totally distinct and qualitatively different concepts. Therefore, destroying an integral part of the Constitution did not amount to destroy the basic structure or framework of the Constitution.
NINTH SCHEDULE AND BASIC STRUCTURE
A nine-judge Constitution Bench of the Supreme Court in I.R. Coelho v. State of Tamil Nadu referred to the question of determining the nature and character of protection provided by Article 31B to the laws added to the Ninth Schedule. Holding that the Basic Structure doctrine was the touchstone to test the extent of Parliament’s power to amend the Constitution, the Court ruled that any law granted Ninth Schedule protection, deserved to be tested against this principle.
ORDINARY LEGISLATION AND DOCTRINE OF BASIC STRUCTURE
In Kuldip Nayar v. Union of India, the Apex Court held that the doctrine of Basic Structure did not apply to ordinary legislation.
The observation made in Kuldip Nayar case stands overruled by a Constitution Bench of the Supreme Court in Madras Bar Association v. Union of India, wherein Hon’ble Justice J.S. Kher, speaking for the majority held that “basic structure” was invoiable and that the rule would apply to all the ordinary legislations as well, even though the legislation has been enacted following the prescribed procedure and was within the domain of enacting legislation.
There is no hard and fast rule for the basic feature of the Constitution. Different judges keep different views regarding the theory of basis structure. But at one point they have a similar view that parliament has no power to destroy, alter, or emasculate the 'basic structure' or framework of the constitution. So for the protection of the welfare state, fundamental rights, Unity and integrity of the nation, Sovereign democratic republic and for Liberty of thought, expression, belief, faith and worship, interpretation of judiciary is mandatory. We can say none is above the constitution, even parliament and judiciary.