Context: The landmark ruling in which the Supreme Court announced the basic structure doctrine was in the case of Kesavananda Bharati Sripadagalvaru and Ors v State of Kerala.
- Kesavananda Bharati, the man who lent his name to this iconic case as the petitioner, in which he challenged the Kerala land reforms legislation in 1970, died recently.
- The ruling set out the “basic structure” of the Constitution that Parliament cannot amend.
- A 13-judge Bench was set up by the Supreme Court, which was the biggest so far.
- The Bench gave 11 separate judgments that agreed and disagreed on many issues but a majority judgment of seven judges was stitched together by then Chief Justice of India S M Sikri on the eve of his retirement.
- However, the basic structure doctrine, which was evolved in the majority judgment, was found in the conclusions of the opinion written by one judge — Justice H R Khanna.
What was the case about?
- The case was primarily about the extent of Parliament’s power to amend the Constitution.
- First, the court was reviewing a 1967 decision in Golaknath v State of Punjab.
- Second, the court was deciding the constitutional validity of several other amendments.
- Notably, the right to property had been removed as a fundamental right, and Parliament had also given itself the power to amend any part of the Constitution and passed a law that it cannot be reviewed by the courts.
- Kesavananda Bharati, in fact, lost the case. But as many legal scholars point out, the government did not win the case either.
Emergence of the Basic Structure Doctrine
- The question whether FRs can be amended by the Parliament under Article 368 came for consideration of the SC within a year of the Constitution coming into force.
- In the Shankari Prasad case (1951), the Constitutional validity of the First Amendment Act (1951), which curtailed the right to property, was challenged.
- The SC ruled that the power of the Parliament to amend the Constitution under Article 368 also includes the power to amend FRs.
- The word ‘law’ in Article 13 includes only ordinary laws and not the Constitutional amendment acts.
- Therefore, the parliament can abridge or take away any of the FRs by enacting a Constitutional amendment act and such a law will not be void under Article 13.
- But in Golak Nath case (1967), the SC reversed its earlier stand.
- The SC ruled that the Parliament cannot abridge or take away any of these rights.
- A constitutional amendment act is also a law within the meaning of Article 13 and hence, would be void for violating any of the FRs.
- However, in the Kesavananda Bharati case (1973), the SC overruled its judgement in the Golak Nath case (1967).
- The SC ruled that the Parliament can abridge or take away any of the FRs.
- At the same time, it laid down a new doctrine of the ‘basic structure’ of the Constitution.
- It ruled that the constituent power of Parliament under Article 368 does not enable it to alter the ‘basic structure’ of the Constitution.
- This means that the Parliament cannot abridge or take away a FR that forms a part of the ‘basic structure’ of the Constitution.
- The court upheld the amendment that removed the fundamental right to property.
- The court ruled that in spirit, the amendment would not violate the “basic structure” of the Constitution.
- The doctrine of the ‘basic structure’ of the Constitution was reaffirmed by the SC in the Minerva Mills case (1980).
Origin of the basic structure doctrine?
- The origins of the basic structure doctrine are found in the German/Weimar Constitution which, after the Nazi regime, was amended to protect some basic laws.
- In India, the basic structure doctrine has formed the bedrock of judicial review of all laws passed by Parliament. No law can impinge on the basic structure.
- What the basic structure is, however, has been a continuing deliberation.
- While parliamentary democracy, fundamental rights, judicial review, secularism are all held by courts as basic structure, the list is not exhaustive.