The basic structure doctrine, propounded 50 years ago, continues to be an effective check against politically motivated amendments
By GB Reddy
Any law is expected to be dynamic as it has to change in accordance with changing times and needs of society. The Constitution, the supreme law of any country, is not an exception to this rule, though there could be a certain fundamental characteristic or features akin to that of DNA in a human body which cannot be changed under any circumstances.
When we look at the Indian Constitution, we find that till almost 17 years after its commencement, the then statesmen believed that it was the prerogative of Parliament in general and Parliament, along with the State legislatures, in particular cases, had the primacy to amend the Constitution and this view was also supported by the Supreme Court through its judgments which tested the first 16 amendments.
Prospective Overruling
However, in I C Golaknath v. State of Punjab (1967), the apex court for the first time sounded a caveat on the so-called constituent power of Parliament by holding that the fundamental rights are beyond the reach of amendments. Thus, emerged the doctrine of prospective overruling. The then union government could not digest this restriction, and accordingly made the 24th Amendment to the Constitution by specifically amending Article 13 defining Law for the purpose of fundamental rights and Article 368 dealing with power and procedure to amend the Constitution.
The net result has been that Parliament can now amend any part of the Constitution while exercising its unlimited power, and further that a constitutional amendment would not be considered as law under Article 13. This amendment itself was challenged in the landmark case of Kesavanada Bharati v State of Kerala (1973) in which seven out of the 13 judges propounded the Basic Structure theory by declaring that every provision of the Constitution can be amended provided the basic foundation and structure of the Constitution remain the same. The majority judges held that though Parliament has unlimited power to amend any part of the Constitution, the basic structure of the Constitution cannot be amended.
Basic Features
They identified through their concurrent but separate judgments 11 features as basic features of the Constitution beyond the scope of Parliament’s amending power, including the supremacy of the Constitution, republican and democratic form of government, secular character of the Constitution, separation of powers between the Legislature, the executive and the judiciary, democracy, rule of law, free and fair elections, and federal character of the Constitution.
It was categorically held that the power is not wide enough to totally abrogate or what would amount to an abrogation or emasculating or destroying in a way as would amount to an abrogation of any of the fundamental rights or other essential elements of the basic structure of the Constitution and destroy its identity. Within these limits, Parliament can amend every article. The judgment was delivered on 24 April 1973, and the same day in 2023 marks the golden jubilee of the historical judgment.
As on 24 April 2023, a total of 105 amendments have been made to the Constitution of India, and since the Basic Structure theory was propounded 50 years ago as many as 75 amendments have been made.
Amendments Challenged
Many post-Kesavanada amendments have been challenged on the ground of violation of the basic structure of the Constitution. They include:
• 39th Amendment which placed restrictions on judicial scrutiny of post of Prime Minister
• 42nd Amendment which sought to change the equation between judicially enforceable fundamental rights and the directive principles of state policy which are not justiciable, among other radical changes
• 44th Amendment which nullified many effects of the 42nd Amendment
• 52nd Amendment which introduced anti-defection law
• 72nd Amendment which made statutory provisions for Panchyati Raj as third level of administration in villages
• 74th Amendment which made statutory provisions for local administrative bodies as third level of administration in urban areas such as towns and cities
• 76th Amendment to enable continuance of 69% reservation in Tamil Nadu by including the relevant Tamil Nadu Act under 9th Schedule of the Constitution
• 77th Amendment for providing reservation to SC and ST Employees in promotions and the related 81st, 82nd and 85th amendments
• 86th Amendment to provide free and compulsory education for children between 6 and 14 years of age
• 91st Amendment to restrict the size of Council of Ministers at union and State levels
• 99th Amendment which proposed to replace the collegium system with National Judicial Appointments Commission (NJAC) for appointing Supreme Court and High Court judges
• 101st Amendment which introduced the GST regime
• 103rd Amendment which introduced economically weaker sections (EWS) reservation
The Supreme Court invoked the basic structure, also sometimes called basic features or essential features doctrine, to invalidate the 39th Amendment on the ground that judicial review is a basic feature and that it cannot be deprived, 42nd Amendment in order to protect the balance between fundamental rights and directive principles, 99th Amendment and the consequent NJAC on the ground that it would affect another basic feature ‘independence of judiciary’ among other amendments.
No Plaything
Probably, the Indian Supreme Court is the only court in the world which has institutionalised the doctrine of basic features to curtail the amending power of Parliament by effectively but informally making an important amendment by way of judicial interpretation. In the process, the apex court exhibited unprecedented judicial activism which has succeeded in applying speed breakers on the indiscriminate amending power of the political organs of the State.
Now it has become quite common to test the validity of even ordinary laws on the touchstone of the Basic Structure theory. While laying down this theory, the apex court judges referred to the intention of the framers of the Constitution and the objectives of the Constitution as reflected in the Preamble. The majority judges identified 11 features to be the basic features of the Constitution. In a few cases, the apex court’s commissions and omissions by way of judicial interpretation of basic structure also attracted criticism. For instance, while recognising the power of judicial review as a basic feature in the 1970s on one hand but invoking it in respect of the laws included in the ninth schedule for excluding them from judicial review only in 2007 ie, after 34 years of the basic structure doctrine’s birth.
Similarly invoking the ‘independence of judiciary’ as a basic feature and extending to their own cause ie, appointment of the judges of higher judiciary to strike down the 99th Amendment and NJAC. Barring these few controversies, it can be said the basic structure doctrine has served its purpose very well during the last 50 years. One can now legitimately hope that the doctrine continues to be an effective check against the politically motivated future amendments which might be caused by undue demands of the majority population of the world’s most populous country. As fundamental rights cannot be a plaything of the brute majority, so is the sacred document called the Constitution.