Justice Robert H. Jackson of the U.S. Supreme Court once said that the role of the court as the final interpreter of the constitution is to translate abstract principles into “concrete constitutional commands”. The Supreme Court of India did just that in the landmark Kesavananda Bharati case, where it propounded the principle of “Basic Structure” of the constitution. According to the SC, it consists of the central ideals or core of the Constitution around which the whole edifice of our fundamental legal document is built.
The phrase “basic structure” has become deeply entrenched in the understanding and interpretation of our constitution. It refers to certain basic or essential principles or elements of the constitution which give it its peculiar form. The basic structure forms the soul of the constitution. Some of the basic features of the constitution are supremacy of the Constitution, republican and democratic form of government, secular character of the Constitution, separation of powers between the legislature, executive and the judiciary, federal character of the Constitution, rule of law and judicial review etc.
The tussle between Parliament and Judiciary on the interpretation of constitution started with the first amendment. For the purpose of bringing directive principles into practice by doing agrarian reforms, the Union government had introduced the ninth schedule and article 31A and 31B through first amendment to the constitution. The laws placed under ninth schedule were immune from judicial review. It was challenged in Shankari Prasad v Union of India AIR 1951 SC 455 on the ground that it took away the fundamental right to property. The court held that fundamental rights were not immune from the amendment powers of the parliament and first amendment was held to be valid. The same position was reiterated in Sajjan Singh v State of Rajasthan AIR 1965 SC 845 and the Parliament’s power to amend fundamental right was again held to be valid.
A new perspective was followed in Golak Nath v State of Punjab AIR 1971 SC 1643, the court overruled the earlier two judgements and held that the Parliament had no power to amend fundamental rights which are sacrosanct and inviolable. Article 13(2) of the constitution states that ‘The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void’. A constitutional amendment was held to be a law under section 13 (2).
In Kesavananda bharati V State of Kerala (1973) 4 SCC 225 where 24th, 25th, 29th amendment to the Constitution and the Kerala Land Reforms Act placed in ninth schedule were challenged as unconstitutional, the 13 judge bench overruled Golaknath verdict and held that a constitutional amendment cannot be equated to the term law in article 13(2). So Parliament can alter fundamental rights but Article 368 did not give Parliament the right to damage, emasculate, destroy, abrogate, change or alter the basic structure of the Constitution, which means that the basic structure is not amendable. Hence a significant restraint was put on Parliament’s power to amend the constitution.
Sikri, C.J. explained that the concept of basic structure included:
Shelat, J. and Grover, J. added two more basic features to this list:
Hegde, J. and Mukherjea, J. identified a separate and shorter list of basic features:
Only six judges on the bench (therefore a minority view) agreed that the fundamental rights of the citizen belonged to the basic structure and Parliament could not amend it.
Later, in Indira Gandhi v Raj Narain AIR 1975 SCC 2299, Rule of Law, Judicial Review and Democracy (with free and fair elections) were added to the list of essentials of basic structure. The concept was further upheld in Minerva Mills v Union of India 1980 SC 1789 where the limited amending power of the Parliament as well as harmony between fundamental rights and directive principles were enlisted as basic structure.
An Invention made by the Judiciary?
The Kesavananda Bharati case was a turning point in our constitutional history. Though the doctrine was welcomed by jurists and society alike for giving a new strength to the constitution and became a part of legal parlance, there were many detractors.
The doctrine was objected to on the ground that it was the invention of an overactive judiciary trying to impose its own philosophy on democratically elected governments. It was alleged that the term is nowhere found in the Constitution and that the founders had no intention to introduce such a concept.
The answer to this criticism can be found in the proposition of German Professor Dietrich Conrad who says that a legislature bestowed with seemingly unlimited power of amending the constitution, is still subject to some inherent limitations. Legislature is a creation of the constitution and cannot have the power to remove the very source of its existence and authority.
His view is substantiated by a comprehensive reading and interpretation of the Article 368 which lays the powers of the Parliament to amend the constitution as well as the procedure for such amendment. This article states that on the exercise of the power of amendment by the parliament granted under this article, the “Constitution shall stand amended”. The language makes it clear that the power is only to amend the constitution resulting in its altered form and not the creation of a new constitution. This view is also supported by the literal construction of the word amendment which stands for “a minor change or addition designed to improve a text”.
The concept has been repeatedly and continuously challenged on the ground of being vague and abstract. It is alleged that nobody can draw up a complete list of all the features while lists drawn by different people will probably have different elements included in them. Despite the differences in opinion of judges about what constitutes basic structure, the concept has been widely used in deciding cases and now defines the solid parameters of the Constitution. The central ideas of the Constitution have attained a higher level of constitutional and legal sanctity by being placed in a special category which is protected from amendment. It cannot be denied that despite all the shortcomings, the doctrine has served as a shield in protecting our democracy from being destroyed by the whims and fancies of majoritarian government and the everyday changing social and political currents.