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The evolution of the Fundamental Construction Doctrine

This article explains The Evolution of the Basic Structure Doctrine in India. This article has been written by Ashwin Pandey, associated with The West Bengal National University of Juridical Sciences

Ever since the Constitution of India came into force, there has been a debate that has raged on with regards to the powers of the Parliament to amend the Constitution and whether there should be any limits on the same, which in turn gave rise to the doctrine of the basic structure before we can get into what the doctrine itself states, it is crucial to understand the events preceding it which led to the courts eventually giving the basic structure in the Kesavananda Bharti case.

The first event came in the 1950s when the Constituent Assembly introduced the First Amendment[1] to the Constitution. Among other things, this amendment introduced Articles 31A[2] and 31B[3] which aimed to put Real estate laws beyond the scope of Judicial Review and introduced the ninth schedule respectively, this had been done in pursuance of the land reforms as envisaged by Nehru. The ninth schedule will be particularly important to the discussion going forward since it stated that any laws that are put into this schedule could not be challenged in any court of law.

This Amendment was challenged in the Sankari Prasad Case.[4] While giving the judgment of this case the then Chief Justice of India, Patanjali Shastri, made some observations. He first looks to resolve the question: Are amendments law? He answers in the negative, his reasoning for the same was that amendments are a part of the constituent powers, i.e. when the Parliament is making amendments to the Constitution it is acting as the original Constituent Assembly and can therefore not be challenged. He further states that Article 13[5] of the constitution, which states that any law that breaches fundamental rights is to be struck down, specifically uses the term law and hence it cannot be applied to amendments. This gave the Parliament an unlimited power to amend whichever parts of the Constitution they please.

Justice Mudholkar

These views were backed up by the majority judgment in the 1965 case, Sajjan Singh V. State of Rajasthan,[6] which dealt with challenges to the 1st, 4th[7] and 17th Amendments. However, there was one Judge who made an observation which even he could not have known would go on to become one of the most hotly contested constitutional topics in years to come. While giving his judgment, Justice Mudholkar, took inspiration from the Supreme Court of Pakistan and cited the Mohd Abdul Haque Judgment, which had come in 1963,[8] where Chief Justice Cornelius had held that the President did not have the power to alter certain fundamental features of the Pakistani Constitution. Justice Mudholkar questioned whether the Parliament has the power to amend certain ‘Basic Features’ of the Constitution. This was the first-time basic features were talked about in India.

CJI Subba Rao

Two years later, in 1967, CJI Subba Rao constituted an eleven-judge bench to hear the I.C Golaknath Case.[9] This case again dealt with the 1st, 4th and 17th amendments and by a ratio of 6:5, overturned the decision in Sajjan Singh. Subba Rao made some crucial observations through the course of his judgment, first, he dismantled the Constituent power argument that had been put forth by Patanjali Shastri by stating that the power to make amendments come from articles 245, 246 and 248,[10] essentially stating that the power to amend comes to the parliament in the form of a residuary power by referring to Entry 97 in the Union List as well as 248, and uses the fact that anything under article 248 is deemed to be a law to show that amendments are indeed laws and hence they are brought under the purview of Article 13.

This means that the power to amend the constitution is not unlimited for the Parliament and if any amendments impede on fundamental rights then they can be struck down. This judgment was far from perfect and some of its fallacies would be noted later in the Kesavananda Bharti case, but this was a crucial step in the development of the Basic Structure Doctrine.

Indira Gandhi

A couple of years after I.C Golaknath, when Mrs Indira Gandhi came to power, she had 2 flagship policies, which were abolished the privy purse and the Nationalization of banks. When her initial attempts to carry out these measures were struck down in the Madhavrao Scindia[11] and RC Cooper[12] cases respectively she decided to call for fresh elections and when she came back to power with a landslide majority, she went about introducing some crucial Constitutional Amendments.

First came the 24th amendment[13] which introduced Article 368 (1)[14] which stated that the Parliament could make amendments as an exercise of their constituent power. Further 368 (3)[15] stated that any amendment made under 368 would not be deemed to be a law and it also added 13 (4)[16] which laid down that the article could only be applied to laws. Lastly, it changed the short title of Article 368 from procedure to amend to power to amend.

Next came the 25th amendment[17] which added Article 31 (C),[18] this article stated that if any law were to be made in pursuance of Articles 39 (B) or (C) which were DPSP’s on the concentration of wealth, then it could not be challenged on the basis of Articles 14, 19 or 31.

The 26th amendment abolished the privy purse.[19]

And finally came the amendment which started it all, the 29th Constitutional Amendment[20] sought to put the Kerala Land reform Law into the Ninth schedule which led to Kesavananda Bharti losing his land. This sparked perhaps the most famous case in the history of independent India, Kesavananda Bharti V. State of Kerala.[21] This case challenged the 24th, 25th and 29th amendments.

Kesavananda Bharti v. State of Kerala

In order to be able to overturn the judgment in I.C Golaknath, a special 13 judge bench was formed with 2 ad hoc judges in the form of Justices Dwivedi and Mukherjee. The case was decided by a majority of 7:6 with the 7 judges having their own separate opinions. It is in these opinions that the doctrine of the basic structure took birth.

First, Justice Sikri listed certain things that he believed should remain outside the amending power of the Parliament, these included the supremacy of the Constitution, Federalism, Secularism, Democratic form of Government, Separation of Powers, Dignity of the individual.[22]

Next, Justices Grover and Shellat noted that the list given by Justice Sikri must remain open-ended, they also added that sovereignty unity and integrity[23] of India should also remain outside the amending powers alongside the welfare mandate under part IV.

The question of where were these fundamental features found was answered by Justice Hegde and Justice Mukherjee, they said that these features could be derived from the preamble of the Constitution. They went on to state that the Preamble is a part of the Constitution since unlike the preambles of other nations, the preamble of the Indian constitution was discussed in the Constituent Assembly before being adopted,[24] and overturned In Re Berubari by stating the same.

Justice Reddy too reiterated that this list of features needs to be illustrative in nature and not exhaustive.

Justice Khanna

Finally came the judgment of Justice Khanna, he started off by noting the flaws in the judgment of Golaknath. He pointed out that something as critical as a Constitutional Amendment could not be demoted to the status of a residuary power, furthermore, while Subba Rao argued that amendments fell under Entry 97 of the Union List, certain amendments needed ratification from the states so this could not be the case, he also pointed out that article 245 began with ‘subject to the Constitution’,[25] how could one amend something whilst remaining subjected to the same?

Till this point, we have talked about features that had to be kept outside the powers of amendment of the Parliament, Justice Khanna finally gave these features a common name by using the term ‘Basic Structure’.

This was the first time this term was used. Justice Khanna accepted that the powers to make amendments to the Constitution were not unlimited and the Basic Structure could not be amended. He said that the basic structure would remain abstract in nature, i.e., it would not have any clear-cut boundaries and demarcations, what forms a part of the basic structure could be decided on a case to case basis by the courts and it would continually grow.[26]

One key observation made by Justice Khanna with regards to the basic structure was that the Fundamental Rights did not form a part of the Basic Structure. To back this up he refereed to the Draft Article 304 A[27] which had been discussed by the Constituent Assembly during its debates. This article had proposed that Fundamental Rights ought to remain unamendable, but this had been rejected. Justice Khanna used this to show that it was always the intention of the makers of the Constitution to keep the Fundamental Rights amendable.

However, if a specific fundamental right was said to form a part of the basic structure then that specific right would remain beyond amendment. And just like that, the doctrine of Basic Structure was born.

Following Kesavananda, the doctrine was explored in a lot of landmark cases.

When the election of Indira Gandhi from her constituency in Rai Bareilly was challenged by Raj Narain,[28] her election was invalidated by a single judge bench of the Allahabad High Court. While a vocational bench of the Supreme Court did grant her a stay order, it was conditional and stated that while she could continue to remain as the PM, she would not be allowed to vote or voice her opinions on the floor of the house. A day after this order, a state of emergency was declared across India and in this Emergency, the 39th Amendment[29] was introduced.

This amendment introduced Article 329 A with retrospective effect through which the election of the President, PM, speaker and VP became solely regulated by the Parliament and no Judicial Review was permitted against the same. It also put the Representation of People’s Act and the Election Law Amendment Act into the ninth schedule. This amendment was challenged in the case, Indira Nehru Gandhi V. Raj Narain[30] where some observations were made by the Court.

They said that 329 A could not be upheld since it would violate free and fair elections, and the Parliament could not give the power of adjudication to itself since it went against the principle of separation of powers. Hence, 329A was struck down.

Regarding the laws that had been placed into the ninth schedule, Kesavananda Bharti had said that the basic structure could only be applied to amendments to the constitution and since these were laws, they could not be made subject to the basic structure test.

It was during his dissent in this case that Justice Beg said that ordinary laws should be brought under the purview of the basic structure test. It was also noted by Justice Matthew in this case that any ordinary law that is inserted into the ninth schedule should also be made subject to all fundamental rights that fall under the basic structure.

Post this judgment, the 42nd amendment[31] was introduced. It added clauses 4 and 5 to Article 368 which stated that courts could not challenge constitutional amendments, and there was no limit on the amending power of the Parliament respectively.

It further expanded Article 31C, stating that laws that were made under it in pursuance of DPSP’s could not be challenged under Articles 14, 19 and 31, in essence giving DPSP’s precedence over the fundamental rights. Even though the 44th amendment[32] rolled back most parts of the 42nd amendment, these provisions survived.

nani palkhivala

Following these events came the Minerva Mills case[33] which challenged the Sikh Textile Undertaking Nationalization Act that had been used to nationalize Minerva Mills and subsequently been inserted into the ninth schedule. In the case, it was argued by Nani Palkhivala that any amendment that seeks to limit the basic structure is in itself violative of the basic structure.

The court went on to accept that limited amending power of the Parliament is a part of the basic structure. Finally, in its judgment, the court struck down articles 368-4 and 368-5 since it gave unlimited amending power to the Parliament. It also struck down the expanded 31-C on grounds that it disrupted the harmony between the DPSP’s and the Fundamental Rights. It was also in this case that Justice Chandrachud mentioned the golden triangle, i.e., articles 14, 19 and 21, stating that these articles form a part of the basic structure.

At the same time as Minerva Mills, even the Waman Rao[34] case was being heard. In this case, the bench noted that the Basic Structure had always existed and was simply brought to light in the Kesavananda Bharti case, they went on to scrutinize all amendments that came before Kesavananda and found that none of them violated the basic structure.

Crucially, they also held that post-Kesavananda Bharti, any amendment that put an ordinary law into the ninth schedule could be challenged on the basis of the basic structure, and since the amendment is a hollow shell without the law itself, they would be scrutinizing the ordinary law on the basis of a basic structure test.

The next major development in the basic structure occurred in the M. Nagraj[35] case where the court gave the Essence of Rights Test. This test stated that it would have 2 prongs, the width test, which means expanding an amendment to its widest possible meaning to see if it violates any constitutional provision, and if the width test was met then they would move on to the identity test, this test would check whether the amendment seeks to alter the identity of the Constitution as a whole.

Justice Sabharwal

Finally, the I.R Coelho case[36] gave us the Rights test. It was stated in the case that fundamental rights could be a part of the basic structure and be used to scrutinize laws in the ninth schedule. Justice Sabharwal went on to state that Articles 14, 15, 16, 19, 21 and 32 are all a part of the basic structure. According to the rights test, the amendment would be challenged under any of these articles.

Since Article 32 is the right to Constitutional remedies, it includes all of the fundamental rights in its purview, this meant that now any amendment that would be inserted into the ninth schedule could be scrutinized against all of the fundamental rights.

The rights test basically made the ninth schedule redundant since it could now be scrutinized under all of the fundamental rights, this is why it was said in the Glanrock Estates case[37] that it ought to only be used for major transgressions, and for smaller errors, the essence of rights test was to be used. The Indian Medical Association Case[38] further reiterated this by stating that if the entire Fundamental Rights chapter is being taken away then use the Rights test and if a specific Fundamental Right has been impeded then the essence of rights test was to be used.

It can be said that the issue of the basic structure is one that is still ongoing with no final word having been issued on the same by the Supreme Court, and it would seem like this is going to be the situation for the foreseeable future.

But the idea that there exists a basic structure has become well established, with elements such as the sovereign, democratic and secular character of India, the independence of the judiciary, certain fundamental rights having been regularly reiterated as elements of the basic structure by the courts.

However, what we can say with complete surety today is that the amending powers of the Parliament are not absolute in nature and the Supreme Court is once again the final judge on Constitutional amendments, and any amendment that they feel violate the basic structure will continue to be struck down.

[1] The Constitution (First Amendment) Act, 1951.

[2] India const. art. 31, cl. A.

[3] India const. art. 31, cl. B.

[4] Sri Sankari Prasad Singh Deo vs Union Of India, 1951 AIR 458 (India).

[5] India const. art. 13.

[6] Sajjan Singh vs State Of Rajasthan, 1965 AIR 845 (India).

[7] The Fourth Amendment had expanded the scope of Article 31-A to make it inclusive of all social welfare schemes, and it also added Article 31-2 which differentiated between compulsory acquisition of property and deprivation of property through a statute.

[8] Fazlul Quader Chowdhry vs Muhammad Abdul Haque, P L D 1963 SC 486 (Pak.).

[9] I. C. Golaknath & Ors vs State Of Punjab & Anrs, 1967 AIR 1643 (India).

[10] Article 245 talks about the extent of the laws made by the Parliament and the state Legislatures. 246 contains the State, Union and Concurrent lists, and 248 talks about the residuary powers of the Parliament.

[11] H. H. Maharajadhiraja Madhav Rao Jiwaji Raoscindia Bahadur vs Union Of India, 1971 AIR 530 (India).

[12] Rustom Cavasjee Cooper vs Union Of India, 1970 AIR 564 (India).

[13] The Constitution (Twenty Fourth Amendment) Act, 1971

[14] India const. art. 368, cl. 1.

[15] India const. art. 368, cl. 3.

[16] India const. art. 13, cl. 4.

[17] The Constitution (Twenty Fifth Amendment) Act, 1971

[18] India const. art. 31, cl. C.

[19] The Constitution (Twenty Sixth Amendment) Act, 1971

[20] The Constitution (Twenty Ninth Amendment) Act, 1972

[21] Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (India).

[22] Id. at 620.

[23] Id. at 1206.

[24] Id. at 1945. 

[25] Id. at 425.

[26] Id. at 1664.

[27] Id. at 1970. 

[28] Raj Narain vs Smt. Indira Nehru Gandhi, 1972 AIR 1302 (India).

[29] The Constitution (Thirty Ninth Amendment) Act, 1975

[30] Indira Nehru Gandhi vs Shri Raj Narain ,1976 (2) SCR 347 (India).

[31] The Constitution (Forty Second Amendment) Act, 1976

[32] The Constitution (Forty Fourth Amendment) Act, 1978

[33] Minerva Mills Ltd. v Union of India, 1980 3 SCC 625 (India).

[34] Waman Rao v Union of India, 1981 2 SCC 362 (India).

[35] M. Nagaraj v. Union of India, AIR 2007 SC 71 (India).

[36] I.R.Coelho V. State of Tamil Nadu, AIR 2007, SC 861 (India).

[37] Glanrock Estate (P) Ltd. v. State of T.N, (2010) 10 SCC 96 (India).

[38] Indian Medical Assn. v. Union of India, (2011) 7 SCC 179 (India).

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