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Doctrine Of Basic Structure: Its Inception And Evolution

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By Himanshu Mehra

Introduction

Democracies in the world are usually governed by a Constitution, which is their supreme law. The Constitution lays down the principles and procedures of law making, governance and rights of the people etc. It also creates the pillars of governance i.e. Executive, Legislature and Judiciary. The Legislature makes the law, the Executive implements the same and Judiciary adjudicates the disputes arising out of that law. Parliament is the body entrusted with the task of making laws, which invariably includes the power to amend and/or repeal the laws. However often it is asked whether this power to modify or repeal that law includes the Constitution as well, which created the Parliament[1]. The common answer is in affirmative and the process is called amendment, wherein a change by addition, deletion or correction is made in the Constitution[2].

The Basic Structure Doctrine is a doctrine of Judicial Review that the Constitution of India has certain Basic features that cannot be altered or destroyed through amendments by Parliament. On April 24, 1973, a Special Constitutional bench comprising of 13 Judges of the Hon’ble Supreme Court of India, in the case of Kesavananda Bharti Versus State of Kerala” ruled by a majority of 7-6, that Article 368 of the Constitution ‘does not enable Parliament to alter the Basic Structure or framework of the Constitution[3]. The Hon’ble Apex Court propounded, what has come to be known as ‘the Basic Structure’ Doctrine. Any part of the Constitution may be amended by following the procedure prescribed in Article 368 of the Constitution, but no part can be so amended as to ‘alter the basic structure’ of the Constitution. The case of Kesavananda Bharti is unique for the reason that it is the longest reported judgment in the history of Supreme Court of India, and was heard by the largest bench ever constituted i.e. 13 Judges with 11 opinions and had longest hearing ever.

Himanshu Mehra, Senior Associate, Singh and Advocates, New Delhi

THE FOUNDATION OF DOCTRINE OF ‘BASIC STRUCTURE’

For the countries across the world, the bitter experiences of Germany played a pivotal role in the evolution and subsistence of this doctrine. It is pertinent to mention here that this doctrine has been borrowed by our Courts from Germany itself. 

Germany was governed by the Constitution titled as ‘Weimar Constitution’ during the Weimar Republic era which subsisted from 1919 till 1933 and the same declared Germany as Democratic Parliamentary Republic, with a legislature elected under proportional representation[4].

Under the Weimar Constitution, the citizens enjoyed inviolable rights[5]. Citizens had the right to be notified within a day of their arrest or detention as to the authority and reasons for their detention and be given the opportunity to object. The privacy of Correspondence, of mail, telegraph and telephone was made inviolable and the citizens of Germany were entitled for free expression of opinion in word, writing, printand image. They also has a right to assemble peacefully and unarmed without prior permission. The citizens of Germany were entitled to form clubs and societies also[6]. In other words, the Weimar Constitution was also described as “on paper, the most liberal and democratic document of its kind, the twentieth century had ever seen[7].

The ‘Weimar Constitution’ vested the legislature with the power to amend, with the procedural restraint of requiring 2/3rd votes of the members of its Parliament[8].

In the year 1933 Adolf Hitler was elected as Chancellor in Germany and within a month, the Reichstag[9], Fire Decree invoked Article 48 of the Weimar Constitution thereby suspending several Constitutional protections on Civil rights. By virtue of the Decree as mentioned above, the following Articles of Weimar Constitution were suspended: Article 114 (Habeas Corpus), Article 115 (Inviolability of Residence), Article 117 (Correspondence privacy), Article 118 (Freedom of Expression/ Censorship), Article 123 (Assembly), Article 124 (Association) and Article 153 (Expropriation). With the further rise of Hitler and Nazis, the said Decree was used as the Legal basis for the incarceration of any person who was considered as opponent of Nazis and also to suppress the publications, gatherings which were not considered as Nazi- friendly[10].

After the passing and implementation of the above said Decree, Nazis inflicted one more blow on the Weimar Constitution by bringing in an amendment to the Weimar Constitution in form of “The Enabling Act of 1933”, which gave the Chancellor Adolf Hitler, the power to enact laws without the involvement of Reichstag.

In plain language, it can be concluded that by complying with the procedure of amendment after requiring 2/3rd majority of the members of the Parliament, the German Chancellor Adolf Hitler overhauled the entire Weimar Constitution and took away the rights of the citizens and people of Germany. 

After considering the agitation which took place in Germany, the German and French Constitutional lawyers Carl Schmitt and Maurice Hauriou, developed the idea of implied Constitutional limits on Constitutional amendments. Carl Schmitt distinguished between the essential norms of the Constitution, which formed part of the material Constitution and other provisions which did not have the value of Constitutional norms[11]. Schmitt’s theory is significant in German Constitutional thought today. The Eternity Clause contained in Article 79 of the current German Constitution enumerates in itself explicit Constitutional limits on Constitutional amendments. The said provision has been interpreted in a way that Article 79 of the German Constitution is understood as an expression of the General idea that Constitutional amendments should not touch upon the ‘ the basic choices of the constituent power, the identity and the core of the Constitution’[12].

Regarding the power to amend, Maurice Hauriou[13] implied that due to special nature of a Constitution as the highest law, an amendment should be made by a special procedure that could be distinguished from ordinary legislation. He also provided a difference between a partial and total revision of a Constitution and as per him a total revision of the Constitution can only be done by national assembly specifically elected for the said purpose. The scholar even argued that ideally even a Constitutional assembly should be bound by the relevant constitutional limits during the amendment process and further stated that certain principles were so essential that they had a higher legitimacy than the written Constitution itself. He described them as ‘principles that have a higher legitimacy than the text of the written Constitution and that do not have to be expressly embodied in the Constitution. He also addressed the judicial oversight of Constitutional amendments and argued that a Constitutional judge should have right and power to annul unconstitutional amendments and that even the Constitutions should not be deprived of Constitutional control.

INDIA AND THE DOCTRINE OF ‘BASIC STRUCTURE’

The aspect of having implied limits on the power to amend was advocated by German lawyer and Scholar Dietrich Conrad who delivered a lecture at Law Faculty, Banaras Hindu University in the year 1965. Professor Conrad was influenced by the disaster of the Weimar Constitution in Germany and he strongly supported the fact that the amending powers of the Parliament should impliedly be limited and that the basics of the Constitution are beyond the amending powers of the Constitution.

Post the above mentioned lecture, the doctrine of Basic Structure was introduced in India for the first time by Justice Mudholkar in his dissent judgment in the case of Sajjan Singh[14], when he used the phrase “basic features of the Constitution” to argue that there are certain features of the Constitution that cannot be amended by the Parliament through its amending powers under Article 368 of the Constitution of India[15]. Justice Mudholkar while giving his dissenting judgment, drew upon the attention on Pakistan Supreme Court decision in Fazlulquaderchowdhry versus Mohd. Abdul Haque[16] (The then Chief Justice of Pakistan, Justice Cornelius had held that the President of Pakistan could not alter the ‘fundamental features of their Constitution) In this case, the Hon’ble Supreme Court of India held by the majority of 3-2 that when Article 368 confers on the Parliament, the power to amend the Constitution, the power in question can be exercised over all the provisions of the Constitution.

The phrase ‘basic structure’ or ‘basic feature’ of the Indian Constitution has arisen in some decisions before Justice Mudholkar pointed it out in the year 1964, but it is fair to say that the introduction by Justice Mudholkar was the first important introduction of this concept in the Indian Jurisprudence[17].

In the year 1967, in the case of Golak Nath Versus State of Punjab[18], an 11 judge bench of the Hon’ble Supreme Court headed by Chief Justice KokaSubba Rao, put forth the position that Article 368 did not confer upon the Parliament the power to amend the Constitution, and reversed its earlier decision. It was held by the Hon’ble Supreme Court that an amendment of the Constitution is a legislative process, and that an amendment under Article 368 is law within the meaning of Article 13 of the Constitution and therefore if an amendment takes away a Fundamental Rights conferred by part III, it is void. The court also ruled that Fundamental Rights included in part III of the Constitution are given transcendental position under the Constitution and are kept beyond the reach of Parliament. The court also held that the scheme of the Constitution and the nature of freedom it granted incapacitated Parliament from modifying, restricting or impairing fundamental freedoms in part III. The then Chief Justice KokaSubba Rao, while writing the majority judgment held that:-

  1. A law to amend the Constitution is a law for the purpose of Article 13.
  2. Article 13 prevents the passing of laws which take away the Fundamental Rights.
  3. Article 368 does not contain a power to amend the Constitution but only a procedure.
  4. The power to amend comes from the normal legislative power of the Parliament.
  5. Amendments which take away the Fundamental rights provisions cannot be passed.

To get over the judgments of the Hon’ble Supreme Court in the Golak Nath Case (1967), R.C Cooper case (1970) and MadhavraoScindhia case (1970), the then government headed by Prime Minister Indira Gandhi enacted major amendments to the Constitution namely the 24th, 25th, 26th and 29th Constitutional Amendments[19]. All the four amendments brought by the then government were challenged in the case of Kesavananda Bharti Versus State of Kerala[20].

In the year 1973, the largest ever constituted bench of Hon’ble Supreme Court of India, comprising of 13 judges heard the arguments in the case of Kesavananda Bharti case. The Hon’ble Supreme Court reviewed the decision of Golaknath Versus State of Punjab case and also considered the validity of Constitutional 24th, 25th, 26th and 29th Amendment Acts.

Nine judges signed a statement of summary for the judgment that read:-

  1. Golaknath case is over-ruled.
  2. Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.
  3. The Constitution (24th Amendment, 25th Amendment) Act, 1971 are valid.
  4. The Constitution (29th Amendment) Act, 1971 is valid.

The Hon’ble Supreme Court further held that Parliament could not use its power under Article 368 to damage, emasculate, destroy, abrogate, change or alter the basic structure or framework of the Constitution. The Basic features of the Constitution according to the Kesavananda Bharti verdict were laid out separately by each judge based on what he thought were the basic features of the Constitution.

  • According to the then Chief Justice, the concept of Basic Structure included:-
  • Supremacy of the Constitution.
  • Republican and Democratic form of Government.
  • Secular character of the Constitution.
  • Separation of Powers between legislature, Executive and Judiciary.
  • Federal Character of the Constitution.
  • According to Shelat, J and Grover, J, the concept of Basic structure includes:-
  • The mandate to build a welfare state.
  • Unity and Integrity of the nation.
  • Sovereignty of the country.
  • According to Hegde, J and Mukherjea, J, held the following as Basic Structure:-
  • Sovereignty of India.
  • Democratic character of the polity.
  • Unity of the country.
  • Essential features of the individual freedoms secured to the citizens.
  • Mandate to build a Welfare state.
  • According to Justice Jagmohan Reddy, the following were the Basic structure:-
  • Sovereign Democratic Republic.
  • Justice- Social, Economic and Political.
  • Liberty of thought, Expression, belief, faith and worship.
  • Equality of status and opportunity.
  • According to Justice Khanna, the following were the basic features:-
  • Implied restrictions on amending powers.
  • Supremacy of Fundamental Rights above all.

It is pertinent to mention here that NaniPalkhivala[21], the Counsel for Kesavananda Bharti argued that the Parliament having unfettered power to amend the Constitution would render the document null and void[22]. There must be some restraints on the amending powers of the Parliament. Certain features like Rule of Law and Fundamental Rights could not be touched. The then Chief Justice Ray, convened a 13 judge bench to review the Kesavananda Bharti verdict on the pretext of hearing a number of petitions relating to land ceiling laws. The petitions contended that the application of land ceiling laws violated the Basic Structure of the Constitution. Meanwhile, the then Prime Minister Indira Gandhi refused to accept the doctrine of Basic Structure. N.N Palkhivala who was appearing on behalf of Coal mining company, argued against the move to review the Kesavananda Bharti decision[23]. Ultimately, the Chief Justice Ray dissolved the bench after two days of hearing. The declaration of Emergency in June 1975 and consequent suspension of Fundamental Rights and Right to move the Courts against illegal detention diverted the attention of the Country from this issue. One certainty that emerged out of this tussle between the Parliament and Judiciary is that all the laws and Constitutional amendments are now subject to judicial review and the law that transgress the Basic Structure are to be struck down by the Supreme Court.

CONCLUSION

It is true that the abrogation of Weimar Constitution in Germany taught the world to provide themselves with the tools, so as to avoid the circumstances which Germany faced and in furtherance of the same and with the able and efficient works of some great Legal experts, eminent jurists, Scholars and thinkers, the theory of Basic Structure has evolved only to develop and improve as a backbone and protector of Constitutions across the globe.

The Basic Structure Doctrine, evolved by Hon’ble Supreme Court of India, through its  numerous landmark judgments over the years, brings in that required factor of Constitutionalism, which is necessary for sustenance, protection, maintenance and upkeep of Constitutional essence  of Rule of law.

Although the concept of Basic Structure originated and evolved in its early years in form of Constitutional Provisions as has been provided in the existing Constitution of Germany, but In India the same is extra- Constitutional i.e. not expressly provided in the Constitution but developed judicially through various judicial pronouncements over the time. Moreover the power to change/ add the unamendable parts of the Constitution i.e. the Basic Structure of the Constitution is vested with the Constitutional Courts having tool of Judicial Review.

The Basic Structure Doctrine is a Judge made Doctrine where certain features of the Constitution are beyond the limit of amending powers of the Parliament.  In India, the Doctrine of Basic Structure is a judicial innovation and it continues to evolve through the judicial pronouncements of the Hon’ble Apex Court.

Lastly, it is pertinent to note here that in the largest democracy of the World, with conflicting interests emerging constantly, the framers of our Constitution, works of numerous eminent lawyers and jurists, Scholars and Hon’ble Supreme Court and its judges deserves to be lauded for their ability to withstand the challenges so faced with changing circumstances of the society and world and protect the essence of the Constitution thereby protecting the great nation, we live in.

The Author is an Advocate and Senior Associate, Singh and Advocates, New Delhi.

BIBLIOGRAPHY


[1]The Basic Structure Doctrine- Origins and Nature by Swapnil Tripathi.

[2]Definition from Black’s Law Dictionary.

[3]AIR 1973 SC 1461; (1973) 4 SCC 225.

[4]‘Lessons from Germany for us’ by Faisal C.K (Published in National Herald on 01.03.2019)

[5]English Translation of Weimar Constitution available in Carl Schmitt Constitutional theory, Duke University Press, 2008- 421

[6]Ibid 4

[7]Book: The Rise and fall of the Third Reich by William L. Shirer.

[8]The Implications of Eternity Clauses by Professor Ulrich K. Preuss, Professor Emeritus, University of Berlin.

[9]Federal Assembly/ Lower House of German National Legislature.

[10]Ibid 6

[11]The Basic Structure doctrine and its German and French origins: a tale of migration by Monika Polzin (Indian Law Review- Volume-5, 2021- Issue-1)

[12]Ibid 11

[13]French lawyer and Professor of Administrative Law and Constitutional Law at University of Toulouse, France.

[14]AIR 1965 SC 845

[15]KLE Law Journal- The Basic Structure Doctrine- Post Globalization- A Critique by Dr. Sandeep S. Desai.

[16]1963 PLC 486.

[17]The Genesis of India’s ‘basic structure’ doctrine by Pratik Datta, published on April 23, 2012.

[18]AIR 1967 SC 1643.

[19]Article on Basic Structure of the Constitution by Drishti- IAS Coaching Institute

[20]AIR 1973 SC 1461

[21]Eminent Jurist and Constitutional Expert/ Indian Ambassador to USA- 1977/ Padma Vibhushan- 1998.

[22]A study of Basic Structure Doctrine by S. Krishnaswamy (Oxford University Press- 2011); Constitution of India by V N Shukla (Eastern Book Company, 1982)

[23]Judicial Activism and Public Interest Litigation by P.N Bhagwati (Edition 1984) 

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