Introduction

The Indian Constitution is neither flexible nor rigid but a synthesis of both that can be amended according to the needs of society whenever required. Constitution under Article 368 grants power to the Parliament to amend whenever there is a necessity. The Article also lays down the procedure for amendment in detail. However, this power of the Parliament is not absolute. The Supreme Court has the power to declare any law that it finds unconstitutional void. As per the Basic Structure Doctrine of the Indian Constitution, any amendment that tries to change the basic structure of the constitution is invalid.

However, there is no mention of the term “Basic Structure” anywhere in the Constitution of India. The Constitution makers wanted any provisions of the Constitution to be absolutely amendable. The concept of ‘basic structure’ came into existence in the landmark judgment in Kesavananda Bharati vs State of Kerala case (1973). The basic features of the Constitution of India should not be altered to an extent that the identity of the Constitution is lost in the process. The basic structure of the Constitution is nothing but a judicial innovation to ensure that the power of amendment is not misused by Parliament. Indian Constitution upholds certain principles which are the governing rules for the Parliament, any amendment cannot change these principles and this is what the doctrine of basic structure upholds.

Evolution of the Basic Structure Concept

Since the adoption of the Indian Constitution, debates had started regarding the power of Parliament to amend key provisions of the Constitution. In the Shankari Prasad case (1951), the Supreme Court ruled that the Parliament’s power of amending the Constitution under Article 368 included the power to amend the Fundamental Rights guaranteed in Part III as well. After this, several amendments were brought to the Constitution and in the 1965 Sajjan Singh case, once again the Supreme Court held that the Parliament can amend any part of the Constitution including the Fundamental Rights. But for the first time two dissenting judges, in this case, remarked whether the fundamental rights of citizens could become a plaything of the majority party in Parliament. However, in the Golaknath case (1967), the Supreme Court reversed its earlier stance that the Fundamental Rights can be amended. It means that the Supreme Court held that Parliament could not amend Fundamental Right. The Parliament reacted to the Supreme Court’s judgement in the Golak Nath case (1967) by enacting the 24th Amendment Act (1971). This Act amended Articles 13 and 368. It declared that the Parliament has the power to abridge or take away any of the Fundamental Rights under Article 368.

In the Kesavananda Bharati case (1973), the historic judgment was delivered by a 13-judge bench of the Supreme Court with a majority of 7:6. They overruled the Golak Nath case. It was held that the power of Parliament to amend the Constitution is far and wide and extends to all the Articles, but it is not unlimited to an extent that it destroys certain basic features or framework of the Constitution. This means that the Parliament cannot abridge or take away a Fundamental Right that forms a part of the ‘basic structure’ of the Constitution. After that, in 1975 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. The court said that this provision was beyond the amending power of Parliament as it affected the basic structure of the Constitution.

Again, the Parliament reacted to this judicially innovated doctrine of ‘basic structure’ by enacting the 42nd Amendment Act (1976). This act amended Article 368 and declared that there is no limitation on the constituent power of Parliament, and no amendment can be questioned in any court or any ground, including fundamental rights. However, the Minerva Mills case (1980) judgement again strengthens the Basic Structure doctrine. This judgement struck down 2 changes made to the Constitution by the 42nd Amendment Act 1976, declaring them to be violative of the basic structure. The judgement makes it clear that the Constitution, and not the Parliament, is supreme. In this case, the Court added two features to the list of basic structure features. They were judicial review and balance between Fundamental Rights and Directive Principles of State Policy. The judges ruled that a limited amending power itself is a basic feature of the Constitution. Again, in the Waman Rao Case (1981), the Supreme Court adhered to the doctrine of the ‘basic structure’ and further clarified that it would apply to constitutional amendments enacted after April 24, 1973, i.e., the date of the Kesavananda Bharati judgement.

List of Basic Structure in the Constitution

The various judgments of Supreme Court have emerged as ‘basic features’ of the Constitution or elements/ components of the ‘basic structure’ of the Constitution. The Supreme Court has refused to foreclose its list of ‘basic features’. The following list may be drawn up.

• Supremacy of the Constitution.
• Secular character of the Constitution
• Rule of law.
• The sovereign, democratic and republican nature of the Indian Polity
• Federal character of the Constitution
• Separation of powers between the legislature, the executive and the judiciary
• Judicial review.
• Free and fair elections.
• Dignity and freedom of the individual.
• Welfare state
• Unity and integrity of the nation.
• Parliamentary system of government
• The balance between Fundamental Rights and Directive Principles.
• The principle of equality, not every feature of equality, but the quintessence of equal justice.
• Independence of the Judiciary.
• Effective access to justice.
• Limitations upon the amending power conferred by Article 368.
• The ‘essence’ of other Fundamental Rights in Part III.
• Powers of the Supreme Court under Articles 32, 136, 141, and 142.
• Power of High Courts under Article 226 and 227.

To know about the evolution of the Basic Structure of the Constitution, refer to the table below.