From UPSC perspective, the following things are important :
Prelims level : Features of Basic structure doctrine
Mains level : Basic structure doctrine
Exactly 47 years ago, the Supreme Court passed its landmark judgment in Kesavananda Bharati vs State of Kerala, considered among the most significant constitutional cases in India’s judicial history.
Major judgments of the Supreme Court are mentioned in the newscard. Aspirants are advised to memorize them all with thier key features. UPSC may ask a prelim question mentioning all these judgements and asking which of them are related/not related to the Amendments in the Constitution. Right from the Shankari Prasad Judgment (1951) to the Ayodhya Judgement (2019), note down all important judgements.
Amending the Constitution
- The Constitution of a country is the fundamental law of the land. It is based on this document that all other laws are made and enforced.
- Under some Constitutions, certain parts are immune from amendments and are given a special status compared to other provisions.
- Since the Indian Constitution was first adopted, debates have raged as to the extent of power that Parliament should have to amend key provisions.
Early years of Absolute Power
- In the early years of Independence, the Supreme Court conceded absolute power to Parliament in amending the Constitution, as was seen in the verdicts in Shankari Prasad (1951) and Sajjan Singh (1965).
- The reason for this is believed to be that in those initial years, the apex court had reposed faith in the wisdom of the then political leadership when leading freedom fighters were serving as Parliamentarians.
- In subsequent years, as the Constitution kept being amended at will to suit the interests of the ruling dispensation, the Supreme Court in Golaknath (1967) held that Parliament’s amending power could not touch Fundamental Rights, and this power would be only with a Constituent Assembly.
Parliament could make any amendment
- Article 13(2) reads, “The State shall not make any law which takes away or abridges the right conferred by this Part (Part-III) and any law made in contravention of this clause shall, to the extent of the contravention, be void.”
- In both the cases, the court had ruled that the term “law” in Article 13 must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power under Article 368.
- This means Parliament had the power to amend any part of the constitution including Fundamental rights.
The tussle between Parliament and the judiciary
- In the early 1970s, the government of then PM Indira Gandhi had enacted major amendments to the Constitution (the 24th, 25th, 26th and 29th) to get over the judgments of the Supreme Court in RC Cooper (1970), Madhavrao Scindia (1970) and the earlier mentioned Golaknath.
- In RC Cooper, the court had struck down Indira Gandhi’s bank nationalization policy, and in Madhavrao Scindia it had annulled the abolition of privy purses of former rulers.
Background for the Kesavananda Bharati Case
- All the four amendments, as well as the Golaknath judgment, came under challenge in the Kesavananda Bharati case.
- Here, relief was sought by the religious figure Swami Kesavananda Bharati against the Kerala government vis-à-vis two state land reform laws.
- Since Golaknath was decided by eleven judges, a larger bench was required to test its correctness, and thus 13 judges formed the Kesavananda bench.
- Critics of the doctrine have called it undemocratic since unelected judges can strike down a constitutional amendment. At the same time, its proponents have hailed the concept as a safety valve against majoritarianism and authoritarianism.
- Noted legal luminaries Nani Palkhivala, Fali Nariman, and Soli Sorabjee presented the case against the government.
- The majority opinion was delivered by CJI S M Sikri, and Justices K S Hegde, A K Mukherjea, J M Shelat, A N Grover, P Jaganmohan Reddy, and H R Khanna. Justices A N Ray, D G Palekar, K K Mathew, M H Beg, S N Dwivedi, and Y V Chandrachud dissented.
A closer win
- By a 7-6 verdict, a 13-judge Constitution Bench ruled that the ‘basic structure’ of the Constitution is inviolable, and could not be amended by Parliament.
- The basic structure doctrine has since been regarded as a tenet of Indian constitutional law.
The judgment in Kesavananda Bharati
- The Constitutional Bench, whose members shared serious ideological differences, ruled by a 7-6 verdict that Parliament should be restrained from altering the ‘basic structure’ of the Constitution.
- The court held that under Article 368, which provides Parliament amending powers, something must remain of the original Constitution that the new amendment would change.
- The court did not define the ‘basic structure’, and only listed a few principles — federalism, secularism, democracy — as being its part.
- Since then, the court has been adding new features to this concept.
‘Basic structure’ since Kesavananda
- The basic structure doctrine was first introduced by Justice Mudholkar in the Sajjan Singh case (1965).
- Major features were notably propounded by Justice Hans Raj Khanna in 1973.
- The ‘basic structure’ doctrine has since been interpreted to include the supremacy of the Constitution, the rule of law, Independence of the judiciary, doctrine of separation of powers, federalism, secularism, sovereign democratic republic, the parliamentary system of government, the principle of free and fair elections, welfare state, etc.
- An example of its application is SR Bommai (1994), when the Supreme Court upheld the dismissal of the governments by the President following the demolition of the Babri Masjid, invoking a threat to secularism by these governments.