Doctrine of Basic Structure: Safeguarding the Spirit of the Constitution

CONSTITUTIONAL AMENDMENT

The term “Constitutional Amendment” refers to making changes in the existing Constitution of India through addition, repeal, or deletion of any of its provisions. India has the largest written Constitution in the world, which has been in existence since 1950 and continues to guide the nation even today. Being the supreme law of the land, the Constitution embodies the principles of constitutional morality and provides the foundation for governance. However, as society progresses, the Constitution must also evolve to reflect the changing economic, social, and political conditions of the country. Without such adaptability, the process of development and reform in the nation would stagnate.

The Constitution of India is a living document, capable of adapting to the changing needs of society. The incorporation of the amendment procedure ensures that the Constitution remains relevant and effective over time. Through constitutional amendments, it becomes possible to change the provisions of the Constitution according to the requirements of socio-economic and political conditions. In this way, the amendment process acts as a way for introducing progressive changes in the legal and social framework of the India.

For instance, significant amendments such as Article 15(4), which enables reservations for Scheduled Castes, Scheduled Tribes, and Socially and Educationally Backward Classes in educational institutions, Article 16(4A) which provides for reservation in promotions, and Article 21A which guarantees the Right to Education as a Fundamental Right, reflect how constitutional amendments serve to advance social justice and equality. Till date, the Constitution of India has undergone 106 amendments, each contributing to its continuous evolution.

TYPES OF AMENDMENT

The Constitution of India divides the amendment process into three types. The first one is amendment by simple majority. Some of the provisions that are easier to change can be amended through a simple majority, as provided under Article 3. Examples of such provisions include change in the name of a state, admission or establishment of new states, formation of new states, and alteration of areas, boundaries, or names of existing states. Other examples include matters such as use of the English language in Parliament, and provisions under the Fifth and Sixth Schedules, etc.

The second type is amendment by special majority, which is provided under Article 368. It states that a resolution must be passed by both Houses of Parliament with a special majority.  Here special majority means that two-thirds of the members present and voting, representing more than 50% of the total membership of the House. Some of the provisions that can be amended by special majority include Fundamental Rights and the Directive Principles of State Policy.

The third type is amendment by special majority and ratification by the States, also provided under Article 368. In this category, the resolution must be passed by both Houses with a special majority and also ratified by not less than half of the State Legislative Assemblies. Some of the key provisions that can be amended through this process include the election of the President and its manner, and the extent of the executive power of the Union and the States, etc.

EXPLAIN THE CONSTITUTIONAL BASIS

Article 12 talks about the definition of the State, and this definition applies to both Fundamental Rights and Directive Principles of State Policy.

The term State includes the following:

1.The Union Legislature and Union Government,

2.The State Legislature and State Government,

3.Local Authorities within the territory of India, and

4.Other Authorities within the territory of India.

However, the language provided in the Constitution is somewhat vague, and the meaning of some of these terms is not entirely clear. Therefore, the Supreme Court, in Ajit Singh v. State of Punjab, clarified that local authorities refer to local bodies such as Panchayats and Municipalities.

Further, in R.D. Shetty v. International Airport Authority of India (1979), the Supreme Court laid down certain tests to determine whether an organization can be considered a “State” under Article 12. The tests include:

1.Whether the organization is functioning as an instrument or agency of the State,

2.Whether the entire or substantial amount of expenditure of the organization comes from the government,

3.Whether the objectives and functions of the organization are similar to those of the government, and

4.Whether any government department or authority exercises control or supervision over the functioning of the organization.

Article 13 is related to the concept of Judicial Review. The term Judicial Review is not explicitly mentioned in the Constitution, but Article 13 indirectly provides for it by defining the scope of law and its validity.

Article 13 (i) applies to pre-Constitutional laws, that is, laws that were in force before 26th January 1950. It states that if any such law is inconsistent with the provisions of the Fundamental Rights, it shall be null and void to the extent of such inconsistency. In other words, any pre-Constitutional law that violates the Fundamental Rights will become invalid to that extent.

Article 13(2):This sub-clause applies to post-Constitutional laws, i.e., laws made after 26th January 1950. It provides that the State shall not make any law that takes away or abridges the Fundamental Rights guaranteed under Part III of the Constitution. If such a law is made, it shall be void to the extent of its inconsistency with the Fundamental Rights.

Article 13(3):The term “law” used in clauses (1) and (2) includes ordinances, orders, by-laws, rules, regulations, notifications, or any custom or usage having the force of law within India. Thus, not only statutes but also executive and customary laws are subject to the test of Fundamental Rights.

Article 13(4):This clause was inserted by the 24th Constitutional Amendment Act, 1971. It clarifies that the term “law” in Article 13 does not include Constitutional Amendment Acts made under Article 368.

Article 368 – Power of Parliament to Amend the Constitution

Part XX of the Constitution (Article 368) deals with the procedure and power to amend the Constitution of India. There are two types of constitutional amendments:

1.By Special Majority of Parliament, and

2.By Special Majority plus Ratification by at least 50% of the State Legislatures.

Article 368(1): This clause states that the power to amend the Constitution is vested in the Parliament. Only Parliament has this power, no State Legislature can amend the Constitution.

Article 368(2): A Constitutional Amendment Bill can be introduced in either House of Parliament. It must be passed in each House separately by a Special Majority (i.e., a majority of the total membership and two-thirds of the members present and voting). After being passed by both Houses, the Bill is presented to the President for assent, and upon his assent, it becomes a part of the Constitution.

However, if the amendment seeks to make changes in certain federal provisions — such as:

• The election of the President,
• The distribution of powers between the Union and the States,
• The powers of the Supreme Court and High Courts,
• The representation of States in Parliament, or
• The Goods and Services Tax (GST) Council (Article 279A),

then such an amendment must also be ratified by at least half of the State Legislatures in addition to being passed by Parliament.

Article 368(3): Inserted by the 24th Constitutional Amendment Act, 1971, this clause declares that Article 13 shall not apply to Constitutional Amendments made under Article 368.

Hence, the power of Parliament to amend the Constitution cannot be challenged under Article 13.

Article 368(4): Inserted by the 42nd Constitutional Amendment Act, 1976, it stated that no Constitutional Amendment could be questioned in any court on any ground.

Article 368(5): Also inserted by the 42nd Amendment (1976), it declared that there shall be no limitation on the power of Parliament to amend the Constitution.

However, in Minerva Mills v. Union of India (1980), the Supreme Court held clauses (4) and (5) of Article 368 as unconstitutional and ultra vires.

Basic Structure Doctrine

The basic structure of the Constitution refers to those essential and non-negotiable parts that cannot be altered or destroyed, as they form the core values and philosophy of the Indian Constitution. If these basic features are changed, the spirit of the Constitution would be affected.

After independence, most of the agricultural land was in the hands of the zamindars. In order to provide land rights to peasants and farmers, the government introduced several land reform laws. However, since the Right to Property was a Fundamental Right under Article 31, the zamindars began challenging these laws in courts. The judiciary use to struck down such laws on the ground that they violated Fundamental Rights under Article 31.

To resolve this issue, Parliament enacted the First Constitutional Amendment Act, 1951, which introduced Articles 31A and 31B, and added the Ninth Schedule to the Constitution.

• Article 31A protected laws related to agrarian reforms from being challenged for violating Fundamental Rights.
• Article 31B stated that the laws placed in the Ninth Schedule would be immune from Judicial Review.

In Shankari Prasad v. Union of India (1951), the First Amendment was challenged, but the Supreme Court upheld its validity, holding that Parliament could amend any part of the Constitution, including Fundamental Rights.

Later, through the 17th Constitutional Amendment Act, 1964, several more land reform laws were added to the Ninth Schedule. In Sajjan Singh v. State of Rajasthan (1965), the Court upheld the validity of the 17th Amendment, reaffirming its earlier decision in Shankari Prasad.

However, in Golak Nath v. State of Punjab (1967), an eleven-judge bench of the Supreme Court held that Parliament’s power to amend the Constitution was not unlimited. It ruled that Parliament could not amend Fundamental Rights under Article 368.

In response, Parliament passed the 24th Constitutional Amendment Act, 1971, which inserted Article 13(4) and Article 368(3):

• Article 13(4) clarified that the term “law” in Article 13 does not include Constitutional Amendments.
• Article 368(3) stated that nothing in Article 13 would apply to Article 368, meaning that Parliament could amend even Fundamental Rights.

The turning point came with the landmark case of Kesavananda Bharati v. State of Kerala (1973), decided by a thirteen-judge bench, the largest ever in Indian judicial history, on 24th April 1973. The Supreme Court introduced the Basic Structure Doctrine, holding that Parliament may amend any part of the Constitution, including Fundamental Rights, but cannot change or destroy the basic structure of the Constitution.

Although the Court did not give a final or definite list of what constitutes the basic structure, it identified several essential features, such as Judicial Review, Independent Judiciary, and Separation of Powers, as part of basic structure of constitution.

Subsequently, the 42nd Constitutional Amendment Act, 1976 added clauses (4) and (5) to Article 368, which sought to make Parliament’s amending power unlimited. However, in Minerva Mills v. Union of India (1980), the Supreme Court struck down these clauses as ultra vires the Constitution.

Later, the 44th Constitutional Amendment Act, 1978 repealed Article 31 and Article 19(1)(f), thereby removing the Right to Property from the list of Fundamental Rights. Instead, it was inserted as Article 300A, making it a legal right rather than a Fundamental Right.

Conclusion

The Basic Structure Doctrine is one of the most important parts of the Indian Constitution. It plays a vital role in protecting not only the Constitution but also in safeguarding the Fundamental Rights, which are essential for the development of an individual’s personality. The doctrine can be seen as a classic example of judicial activism, as it emerged through judicial interpretation rather than legislative action.

The Basic Structure Doctrine preserves the core values and philosophies embedded within the Constitution and maintains a balance between the conflicting provisions of Article 13 and Article 368. However, the doctrine has also faced certain criticisms. Some critics argue that it violates the principle of separation of powers, since the authority to declare any feature as part of the basic structure lies solely with the judiciary. Moreover, the doctrine is not expressly mentioned in the Constitution, and there is no definitive list of what constitutes the basic structure. The features identified so far are often considered vague and open to multiple interpretations. Despite these criticisms, the Basic Structure Doctrine remains one of the most significant judicial innovations in Indian constitutional law. It successfully resolved the long-standing tussle between the Parliament and the Judiciary, ensuring that the power of amendment is exercised within constitutional limits. While constitutional amendments are essential to meet the changing needs of society, the Basic Structure Doctrine ensures that such changes never compromise the foundational principles on which the Indian Constitution stands.