Doctrine of Basic Structure: A Panacea of All Constitutional Ambiguities Jeshika Bhuyan Constitutional Law Sat, Oct 21, 2023, at ,01:41 PM ~ JESHIKA BHUYAN The peculiarity of Indian Constitution is in its diversity yet being the most organized document that is used as the grundnorm. What is even more peculiar is that the Doctrine of Basic Structure is considered as the backbone of the Indian Constitution without which it would become spineless and yet has no mention in the Indian Constitution itself. Many critics have considered this as a limitation or drawback because Basic Structure Doctrine has a prime importance for the Indian Constitution as it lays down the fundamental foundation. Before going into the details of Advantages, Disadvantages of this doctrine, we should first have a comprehensive and basic idea as to the inception of this Doctrine of Basic Structure. Parliament at the Union and the respective State Legislatures in the states have the power to enact or amend laws and even declare them to be redundant. They (the Parliament and the State Legislatures) have their respective subjects mentioned in the Seventh Schedule of the Indian Constitution where they can enact laws. However, the power to amend or change the provisions of the Indian Constitution is only vested with the Parliament under Article 368 of the Constitution of India and that too with certain limitations. Hence, it wouldn't be wrong to place that Parliament's amending power is not absolute but is subject to certain limitations and restrictions. The Apex Court of the country has the judicial power to strike down any law that is inconsistent with Part III of the Indian Constitution. The Doctrine of Basic Structure lays down the principle that "any law or amendment that tries to alter or change the fundamental or basic principles of the Indian Constitution will be considered invalid and null and void." The idea behind this principle is to safeguard the rights and liberties of the people and to protect and preserve the original nature of Indian Democracy, and above all the spirit of this Constitution as a document of prime importance. The evolution of the idea that Parliament cannot enact any law to amend or alter the basic structure of the Constitution can be traced back to the Zamindari System that was prevalent during the British Rule. There is a famous quote by Pandit Jawaharlal Nehru which says "Socialism is….not only the way of life but a certain scientific approach to social and economic problems." The emergence of the Zamindari System was through the Permanent Settlement Act which was introduced by Sir Cornwalis in 1793. This system was predominantly practiced in the provinces of Bengal, Odisha (then Orissa), Varanasi and Bihar. This Zamindari system was considered to be feudalistic where peasants/farmers who for their security and getting a loan amount mortgaged their lands to the Zamindars and Zamindars in return collected taxes and land revenues from the farmers even after poor yield. When the farmers weren't able to give the taxes and revenues their lands were permanently taken over by the Zamindars. In this process the actual owners of the land (farmers/ peasants) became the tenants and the Zamindars became the land owners. The tax which was collected was divided into 11 Parts out of which 10 parts were given to the East India Company and the rest one part went to the Zamindars. For getting rid of this Zamindari system, Pandit Jawaharlal Nehru established and adopted the concept of "Eminent Domain" where the Sovereign entity (The State) would have a de-facto control over the immovable property such as lands, natural resources, reservoirs, etc within the territorial jurisdiction of the country. The main purpose of adopting this concept was to vest the State with the right over all the assets which it can use for public and private development. The power of the State extends to capturing private entities' lands for public purposes for socio-economic development. TIMELINE (JUDICIAL PRONOUNCEMENTS) Article 31 under Part III of the Indian Constitution vested the fundamental Right to Property until 1978 when it was changed from a fundamental right to a constitutional right under Article 300A. Agrarian Land Reforms Acts were enacted soon after the Indian Constitution came into force. Land Reforms Act like Bihar Land Reforms Act, Madhya Pradesh Land Reforms Act, etc because of which Zamindars were deprived of a major portion of the lands. As back then it was considered infringement of Right to Property under Article 31 of the Indian Constitution, a lot of writ petitions were filed by the Zamindars in various High Courts. Patna High Court while adjudicating the validity of Bihar Land Reforms Act, declared the agrarian land Reforms Act of Bihar inconsistent with the Part III of the Indian Constitution and hence invalid. Parliament availing it's amending power vested under Article 368 of the Indian Constitution made 1st (Amendment) Act, 1951. First Amendment Act, 1951The very first amendment in the Indian Constitution was based on two points:- One, Parliament inserted Articles 31A and 31B in the Part III of the Indian Constitution which was insulated from judicial scrutiny. These articles laid down the provisions that the sovereign or government will have a discretionary power to take away the land holdings for public and private purposes and in return would give reasonable compensation to the owners of the land. Article 31B created a Ninth Schedule in the Indian Constitution and the subjects which were inserted in this schedule cannot be reviewed by the Judiciary even after it is inconsistent with the Fundamental Rights. Shankari Prasad vs Union of India (AIR 1952) The Zamindars, unhappy with the introduction of the First Amendment Act, 1951, challenged the said Amendment as it abridged their Right to Property which was back then a Fundamental Right under Article 31 of the Indian Constitution. The grounds of the challenge were based on the law laid down under Article 13(2) of the Indian Constitution and the definition of law based on Article 13(3)(a). The Zamindars contended that the expression law not only includes ordinary laws but also amendments and is not only limited to the ordinary laws as mentioned under the Article 13(3)(a). The Apex Court rejected the plea of the Zamindars and passed the judgement connoting that Parliament has power to amend any part of the Constitution and amendments do not fall under the definition of Law under Articles 13(2) and 13(3)(a) and hence cannot be judicially reviewed by the Indian Courts. Sajjan Singh vs State of Rajasthan (AIR 1965)This judgment holds a lot of importance as the Seed of Basic Structure was sown in this particular judgment. In this case the Seventeenth Amendment Act, 1964 was put to question where 44 Agrarian Land Reforms statutes were inserted in the Ninth Schedule keeping it insulated from Judicial scrutiny. The Apex Court in the ratio of 3:5 upheld the judgment laid down in Shankari Prasad Case, and held that Amendments do not fall within the purview of the definition of Law, hence cannot be judicially reviewed and Parliament has absolute rights in amending the Constitution. However two judges i.e. Justice Hidayatullah and Justice Mudholkar sown the seeds of Basic Structure by opining that whether changing the basic features of the Constitution will only be termed as a mere Amendment or it is just like rewriting the whole new part of the Constitution and whether fundamental rights of the people is a trivial part for the sovereign. The two judges also gave a hint to reassert whether amendments can be excluded from the definition of law. I.C Golak Nath vs State of Punjab (AIR 1967) In this case various Amendment Acts were challenged which included the 1st Amendment Act, 4th Amendment Act, and 17th Amendment Act. In this case the Supreme Court overruled its own decisions and held that Amendments are included in the definition of law and fundamental rights are given a immutable and transcendental position in the Constitution which cannot be amended by the Parliament as it forms the fundamental features without which the the spirit of the Constitution as a document would not be maintained. Hence, Amendments are inclusive in the definition of Law under Article 13(3)(a) and judiciary can review amendments. Parliamentary SupremacyParliament after the ruling of I.C Golak Nath case, enacted the 24th Amendment Act, 1971 and inserted Article 13(4) which expressly precluded Amendments from the definition of law under Articles 13(2) and 13(3)(a). Parliament through this amendment re-established the fact that Parliament can amend any part of the constitution including the fundamental rights and that amendment cannot be reviewed by the judiciary even if it's violative of Part III of the Indian Constitution. Kesavananda Bharati vs State of Kerala (AIR 1973) The leading landmark case of Constitutional History which adopted the principle of Doctrine of Basic Structure. In this case a limitation was put on the Parliament's absolute power of amending constitution under Article 368 so as to preserve the core values of the Constitution of India. The Supreme Court did not invalidate the 24th Amendment Act 1971 but passed that Parliament can amend any part of the Constitution including the Part III of the Indian Constitution but such amendments should not change or alter the basic fundamental principles of the Indian Constitution such as Secularism, Democratic Governance, Federalism, Equality, Rule of Law, etc. The judgement also gave the Judiciary the power to review the amendments made by the parliament however the concept of "Separation of Powers" must be kept in mind. Minerva Mills vs Union of India (AIR 1980) Post Kesavananda Bharati's case Parliament enacted the 42nd Amendment Act, 1976 which declared that Parliament has absolute unlimited power to amend the Constitution under Article 368 and no entity can question the constituent power of the Parliament and such power and amendments cannot be reviewed by the Courts. However, Supreme Court invalidated this amendment stating that the power of "Judicial Review" is an intrinsic and fundamental part of the Indian Constitution and hence is also a part of the Basic Structure because of which Parliament cannot make laws to alter, amend or change the basic structure upholding the Kesavananda Bharati's Case. ELEMENTS OF BASIC STRUCTUREDoctrine of Basic Structure is an inclusive doctrine and with time and evolution new contents are added into the scope of Basic Structure by the Judiciary which also means the Supreme Court of India is yet to define an exhaustive definition of Basic Structure and till then it is considered inexhaustible and subject to addition. The Contents of the Basic Structure (till date) are:- Rule of Law Separation of Power Judicial Review Supremacy of Indian Constitution Federal Character Unity and Integrity of the Nation Sovereignty, Liberty, Republic Nature of Indian Polity Freedom and Dignity of Individual Free and Fair Elections Power of Supreme Court under Articles 32, 136, 142, 147 Power of High Courts under Articles 226 and 227 Harmonious Balance between Fundamental Rights and Directive Principles of State Policy Rule of Equality Welfare State Limited Power of the Parliament to amend the Constitution ADVANTAGES OF THE DOCTRINE OF BASIC STRUCTURE It preserves the spirit of the Constitution as a document and safeguard the rights and liberties of the people. It acts as a testimony to the theory of Transformative Constitutionalism and protects the essence of the Constitution of India. The limitation put on the Parliament's Constituent Power to alter, amend the Constitution protects India from being a totalitarian. The fundamental convictions or principles of our founding fathers of the Constitution have been retained in this Constitution through this Basic Structure Doctrine. As Separation of Powers is the fundamental element of the Doctrine of Basic Structure, it ensures that each organ (Legislative, Executive and Judiciary) should perform their duties and functions and exercise their powers independently without any intrusion from the other. However a routine check and balance is maintained for smooth Governance. Due to this the Supreme Court of India is considered the most powerful Court in the entire world. It makes our Constitution a dynamic one which has an unique feature of rigidity and flexibility in one sense. Basic Rights of people are protected from Parliament's arbitrariness. The power of Parliament is limited and it cannot alter the basic structure and hence the rights of the people are protected. DISADVANTAGES Basic Structure Doctrine is not codified as it has no mention in the Constitution itself and can be judicially interpreted. As it does not have a textual basis even after being a Doctrine of prime importance for the foundation of the Constitution of India, it becomes a major criticism. The Apex Court can judicially review any amendments made by the Parliament (Rajya Sabha or Lok Sabha) and this has given an impression of Judicial Overreach where Judiciary can dump its own philosophies on Parliament. JUDICIARY'S VIEW ON DOCTRINE OF BASIC STRUCTURE Supreme Court judge Justice B.V NAGARATHNA the Indian Constitution is supreme in its nature because of the powerful and impactful judgment passed in Kesavananda Bharati's case which laid and adopted the Doctrine of Basic Structure. She also added that this Doctrine of Basic Structure is a perfect example of a transformative Constitutionalism. Chief Justice of India Justice D.Y CHANDRACHUD while addressing at the Nani A Palkhivala Memorial lecture at Mumbai stated that The Doctrine of Basic Structure is like a "North Pole Star" as it forms a guiding principle and gives direction to the interpretation of the Constitution when the interpretation is subject to ambiguities and convolution. ConclusionDoctrine of Basic Structure lays down the fundamental essential ingredients without which the Constitution of India as a document would lose its sanctity and spirit. The idea behind this principle is to safeguard the rights and liberties of the people and to protect and preserve the original nature of Indian Democracy. With years long battle and several Judicial pronouncements, the Basic Structure Doctrine was established and adopted which prevented India as a nation from being a totalitarian and has successfully retained the basic tenets presented by the Founding Fathers of the Indian Constitution. References:- Live Law Constitution Of India Bare Act Constitution of India textbook by J.N Pandey Constitution of India textbook by M.P Jain