Indian constitution gives the legislative, or the parliament to make laws and also amend the constitution. The constitution has also given powers to the Supreme Court to review all the laws passed by parliament and make sure they do not violate the rights of the people.
A conflict took place when Parliament claimed that it has been given powers to change the constitution and it can change anything in it. Supreme Court objected to this idea. They said that you can amend the constitution but cannot change the basic structure of the constitution. And thus the concept of “basic structure of the constitution” was formed.
With 488 articles organized in 25 parts and 12 schedules, our constitution is the largest constitution in the world.
As per the constitution, the parliament and state legislature can make the laws within their jurisdiction but the power of amendment of the constitution if given only to the parliament of India.
As we know the time is not static, it keeps on changing. The social, political and economic conditions of people also change and so as to overcome the difficulties encountering in future the amendment is necessary.
However, the framers of the constitution were aware of the dirty politics, which could be played in coming years so to avoid the ruling party treating the constitution as playing cars, the framers adopted a middle course neither too rigid nor too flexible.
Parliament having the power of amending the constitution is not absolute. Although the Supreme Court has the power to declare any law that it finds inconsistent with the constitution, void.
So as to safeguard the ideals and philosophy of the original constitution and protect the rights and liberties of people, the Supreme Court has laid down the basic structure doctrine.
Where did the concept of Basic structure came from?
It was the famous case of Kesavananda Bharati VS State of Kerala.
His Holiness SripadGalvaru Kesavananda Bharati was chief of a religious sect in Kerala which had certain lands acquired under its name.
Some of these lands by virtue of Kerala Land Reforms (Amendment) Act, 1969 were to be acquired by the state government to fulfil their socio-economic obligations.
Therefore, on 21st March 1970, the petitioner moved to the court under article 32 for the enforcement of rights under Articles 25 (Right to practice and propagate religion), 26(Right to manage religious affairs), 14(Right to Equality), 19(1)(f) (Freedom to acquire property), 31(Compulsory Acquisition of Property).
The issue of the above case was the power of parliament to amend the constitution unlimited? Meaning does the parliament has the right to change or amend any part of the constitution according to their wish?
The Constitutional Bench in the Kesavananda Bharati case ruled by a 7-6 verdict that Parliament could amend any part of the Constitution so long as it did not alter or amend the basic structure or essential features of the Constitution.
However, the court did not define the term ‘basic structure’, and only listed a few principles — federalism, secularism, democracy — as being its part.
What does basic structure include?
The ‘basic structure doctrine has since been interpreted to include:
- the Supremacy of the Constitution: it means that the constitution is the supreme law of the land and all the state organs including parliament and the state legislature are bound by it
- The rule of law: Creation of laws, enforcement of laws that supports the equality of all the citizens before the law and no one is above the law.
- Independence of the judiciary: the ability of courts and judges to perform their duties free of influence or control by other actors, whether governmental or private.
- The doctrine of separation of powers: dividing the power among the three organs of the government namely legislature, executive and judiciary.
- Sovereign democratic republic: sovereign means Independent country. Democratic means political power is vested in the people. Republic means India has an elected head called the president.
- The parliamentary system of government: it says that the party with the greatest representation in the parliament forms the government.
- The principle of free and fair elections: elections that are not based on any political torture, where people have the right to choose their representatives.
- welfare state: refer to a type of government where government plays a key role in the protection and promotion of the economic and social well-being of its citizen.
How did the concept of Basic Structure evolved?
The basic structure of constitution evolved over time. Below there are some landmark cases which dealt with this concept.
1. SR Bommai case (1994).
In this case, the Supreme Court upheld the dismissal of BJP governments by the President following the demolition of the Babri Masjid, invoking a threat to secularism by these governments.
2. Sajjan Singh case (1965) (referring to a 1963 decision of the Supreme Court of Pakistan.)
Chief Justice of Pakistan had held that the President of Pakistan could not alter the “fundamental features” of their Constitution.
3. Golaknath case (1967)
In this case, the court reversed its earlier stance that the Fundamental Rights can be amended saying that Fundamental Rights are not amenable to the Parliamentary restriction as stated in Article 13 and that to amend the Fundamental rights a new Constituent Assembly would be required. Also stated that Article 368 gives the procedure to amend the Constitution but does not confer on Parliament the power to amend the Constitution.
4.Indira Nehru Gandhi v. Raj Narain case (1975)
Here, the SC applied the theory of basic structure and struck down Clause(4) of Article 329-A saying that it was beyond the Parliament’s amending power as it destroyed the Constitution’s basic features.
The basic structure doctrine grants the fine balance between flexibility and rigidity that should be present in the amending powers of any Constitution. There is no hard and fast rule for basic feature of the constitution but we can say that the parliament cannot amend the basic structure of the constitution according to them.