Evolution of 'The Basic Structure of The Construction

Wednesday, August 5, 2020

The question of whether the Fundamental Rights can be amended or not, came just after one year of the enactment of the Constitution in 1950, when 1st Amendment Act of the constitution 1951, enacted by the Parliament took away Fundamental Right to Property (Article 31). This amendment resulted into Shankari Prasad Case (1951), in which Supreme Court ruled that the 1st Amendment Act 1951 was valid by certifying that the term 'Law' under Article 13 does not mean Constitutional Amendments, rather it means only ordinary Acts. 
  • Article 13 - It declares a 'Law' as null and void, when the 'Law' violates any of the fundamental Rights in Part-3 of the constitution.
But things does not stopped there, in the Golaknath Case (1967), Supreme Court overruled it's own judgement in the Shankari Prasad Case and declared that the Fundamental Rights enshrined in the constitution as 'transcendental and immutable', hence the Parliament has no power to amend Fundamental Rights at all. The Supreme Court also said that a Constitutional Amendment Act is also a 'Law' under the Article 13.
In response to the Golak Nath Case (1967) judgement, the Parliament reacted enacted 24th Amendment Act (1971), which amended Articles 13 Article 368 and declared that the Parliament has power to amend any of the Fundamental Rights. And declared that such acts will not be deemed as 'Law' under Article 13. 
In Keshvanand Bharati Case 1973, Supreme Court, again overruled it's own judgement in the Golaknath Case a(1967) and declared the provisions related to Amendment in Article 13 and 368 as valid and Constitutional. But the Supreme Court put a restriction on amendment of the Fundamental Rights or any part of the constitution which violates 'Basic Structure" of the Constitution. Hence, Supreme Court laid the foundation of 'The Doctrine of Basic Structure' in the constitutional history of India. The Supreme Court in judgement said that the founding fathers of the Constitution had some visions, while drafting the constitution, some those visions were basic in nature, which were then seen as immutable, should not be amended. Those visions include Parliamentary system of governance, Principles underlying Fundamental Rights,  Federalism(though Quasi-Federal), Rule of Law etc.

The doctrine of basic structure was also validated again in the judgement of the Indira Gandhi Case (1975), in which Supreme Court invalidated the 39th Amendment Act (1975) of the Parliament, which put the election disputes of the Prime Minister and the Speaker of the Loksabha, out of the Judicial Review. The Supreme Court in this case declared Judicial Review as the Fundamental rights.

Parliament again reacted against the judgement by the Supreme Court in Indira Gandhi Case 1975 and brought the 42nd Amendment Act, 1976. This act amended the Article 368 and declared that there is no restriction on the constituent power of the Parliament and declared that non of the amendments passed by the Parliament can be questioned in any court of Law even if it violates any of the Fundamental Rights in Part 3 of the Constitution. But this amendment again negated by the Supreme Court in the Minerva Mills Case(1980) which declared this provision of the 42nd Amendment Act as null and laid and again validated the doctrine of basic structure by declaring the 'Judicial Review' as the Basic Structure of the Constitution.

Elements of the Basic Structure of the Constitution

In subsequent years after the Keshvanand Bharati Case 1973, many other judgements expanded the list by new basic structure each time.
  1. Supremacy of Constitution.
  2. Sovereign, democratic and republican nature of Indian Polity. 
  3. Secular character of the constitution.
  4. The separation of power between the legislature; the executive and the judiciary.
  5. Federal character of the constitution.
  6. Unity and Integrity of the Nation.
  7. Welfare state (socio-economic justice).
  8. Judicial Review. 
  9. Freedom and dignity of the individual.
  10. Rule of Law.
  11. Harmony and balance between Fundamental Rights and DPSP. 
  12. Free and fair elections. 
  13. Principles of Equality.
  14. Limited Power of Parliament to amend the Constitution.
  15. Independence of judiciary.
  16. Effective access to justice.
  17. Principles underlying fundamental rights.
  18. Parliamentary System of governance.
  19. Powers of Supreme Court under Articles 32,136, 141, and 142.
  20. Powers of the High Courts under Articles 226,227.