Basic Structure Doctrine

Basic structure Doctrine

Developed by the Supreme Court of India the Basic Structure Doctrine is a common law legal doctrine that the constitution of a sovereign state has certain characteristics that cannot be erased by its legislature. The doctrine is recognised in India, Bangladesh, Malaysia, Pakistan and Uganda. It was in a series of constitutional law cases in the 1960s and 1970s that culminated in Kesavananda Bharati v. State of Kerala, where the doctrine was formally adopted.

The word “Basic Structure” is not mentioned in the Constitution of India. The concept developed gradually with the tussle between the Parliamentary power to amend the constitution and judiciary’s power to review such amendments. The concept was recognised for the first time in the Kesavananda Bharati case in 1973. The judgement listed some basic structures of the constitution as

1. Supremacy of the Constitution
2. Unity and sovereignty of India
3. Democratic and republican form of government
4. Federal character of the Constitution
5. Secular character of the Constitution
6. Separation of power
7. Individual freedom

Over time, many other features have also been added to this list of basic structural features. Some of them are:

• Rule of law
• Judicial review
• Parliamentary system
• Rule of equality
• Harmony and balance between the Fundamental Rights and DPSP
• Free and fair elections
• Limited power of the parliament to amend the Constitution
• Power of the Supreme Court under Articles 32, 136, 142 and 147
• Power of the High Court under Articles 226 and 227

Evolution of the Basic Structure Doctrine

• The First Constitution Amendment Act, 1951: It was challenged in the Shankari Prasad vs. Union of India case. The Supreme Court held that the Parliament, under Article 368, has the power to amend any part of the constitution including fundamental rights.
•  Sajjan Singh v. State of Rajasthan 1964: The Constitution has “basic features” was first theorized in 1964, by Justice J.R. Mudholkar in the case of Sajjan Singh v. State of Rajasthan. He questioned whether the ambit of Article 368 included the power to alter a basic feature or rewrite a part of the Constitution.
• Golak Nath vs State of Punjab case 1967: The Supreme Court overruled its earlier decision. The Supreme Court held that the Parliament has no power to amend Part III of the constitution as the fundamental rights are transcendental and immutable.
• The Parliament passed the 24th Constitution Amendment Act 1971. The act gave the absolute power to the parliament to make any changes in the constitution including the fundamental rights.
• The 25th Amendment to the Indian Constitution 1971 curtailed the right to property, and permitted the acquisition of private property by the government for public use, on the payment of compensation which would be determined by the Parliament and not the courts
• In Kesavananda Bharti vs. State of Kerala case 1973, the Supreme Court upheld the validity of the 24th Constitution Amendment Act by reviewing its decision in Golaknath case. The Supreme Court held that the Parliament has power to amend any provision of the constitution, but doing so, the basic structure of the constitution is to be maintained.
• Waaman Rao case 1981: The SC adhered to the doctrine and clarified that the doctrine would apply to constitutional amendments after April 24^th.

Important Supreme Court Judgements and List of Basic Structure Elements: