BASIC STRUCTURE DOCTRINE

“Amend as you may even the solemn document which the founding fathers have committed to
your care, for you know best the needs of your generation. But, the Constitution is a precious
heritage; you cannot destroy its identity”

- J. Chandrachud in Minerva Mills vs Union of India

Over the course of Indian Constitutional history, the judiciary has initially upheld the absolute
amend-ability of the Constitution via the constituent power or that power which enables the
parliament to make changes to the constitution under the authority of Article 368 of the
Constitution. In the course of time, the landmark judgment of IC Golaknath vs State of Punjab
sowed the seeds of what is now known as the Basic Structure Doctrine, which has now evolved
as a mechanism to strike down amendments violating the identity of the Constitution itself, in
order to safeguard the basic structure of the Constitution. Most importantly, this jurisprudence
evolved due to the constant provoke by Mrs. Gandhi in her reign as the Prime Minister. Also, it
must be understood that the constitutional basis of such a debate was the relation between
provisions Article 13(2) and Article 368. The former gave the rule that any law after
commencement of the constitution could not abrogate the fundamental rights, whereas the latter
gave the constituent power, the power to make constitutional law as opposed to an ordinary
legislation. The question was whether such constitutional law (primarily amendment) could be
considered as “law” for the purpose of being beneath the fundamental rights as per Article
13(3)(a)?

The first instance of amend-ability was raised in the case of Shankari Prasad v India, wherein the
17th Amendment was challenged, on grounds that it took away an un-amendable fundamental
right to property. The court rejected such stance and said that the constitutional law would not be
considered as “law” for the purposes of Article 13. This formed the basis for future cases of the
literal and strict approach of the judiciary, and so was reiterated in Sajjan Singh vs State of
Rajsathan. The change came in 1967 though IC Golaknath vs State of Punjab, where land reform
legislation was in question, along with the constitutional amendments which protected such
legislation. The SC held that amendments were “law” under article 13(2) and therefore could not
violate the fundamental rights. The petition by MK Nambyar, said by the court to have
“considerable force”, sowed the seeds of the doctrine, which talked about the implied limitations
on amending the constitution sourcing from the constitution itself, and that the permanent
character of the constitution can’t be eroded. However, the court went over and above what is
necessary as it said that the fundamental rights were not open to change at all and were absolute,
which provoked reaction, although it was done to safeguard the constitution from illegitimate
changes. The judgment was subsequently over ruled, and sparked a war between judicial vs
parliamentary supremacy, with the omnipotent Indira Gandhi determined to establish
parliamentary sovereignty. As a reaction, the 24th and 25th amendments were passed which gave
the powers of changing any part of the constitution and consequent land reforms made by the
parliament. These were challenged in the landmark case of Kesavnanda Bharathi vs State of
Kerala, which protected the amendment by overruling Golaknath and establishing that
amendments don’t come under “law” and were therefore immune. However, 7 out of 13 judges
also held that such amendment, although can amend any part, must not violate the core
provisions of the constitution in such a way as to violate the basic structure of the constitution.
The court left it up to future benches to determine what this basic structure would entail, hence
establishing a sort of common law doctrine, evolving on a case by case basis. In 1975, Allahabad
HC had invalidated Gandhi’s election in 1971, and by the time the appeal was heard in the SC,
Gandhi had passed the 38th and 39th Amendment Acts, which provided that the President’s
decision on Emergency are outside judicial review and that removal of judicial review of the
election of certain offices, including that of Gandhi’s, respectively. The subsequent case of Indira
Gandhi vs Raj Narain used this very doctrine in order to strike down the 39 th amendment, as it
was a danger to free and fair elections. However, the war did not end since again in 1976, the
42nd amendment by Gandhi, more importantly the Section 55 declaring that no amendment can
be called in question by court, thereby making the parliament supreme and without a check. This
again however was struck down in Minerva Mills vs Union of India, holding that since such an
amendment virtually removed all limitations on the powers of the parliament, it is against the
“limiting power” imposed by the Constitution itself.

This settled the tug of war between the powers of the Parliament and Judiciary, by way of saying
that although any part can be changed, it must be in consonance with constitutional ethos,
examples of which were free and fair elections, power of judicial review, equality, democratic
form of government etc. The case of SR Bomnai vs Union of India further gave examples of how
secularism and judicial review fall under the basic structure doctrine. Furthermore, it must be
understood that later on, the court used this doctrine in order to protects its own sanctity and turf,
again begging the question of parliamentary supremacy vs judicial reviews, as the present
government has commented that a new method of judicial appointments would be devised,
keeping the government in loop, contrary to what was seen in the 2015 case of Supreme Court
Advocate on Record Association vs Union of India, known as the NJAC judgment, further
showing how an Act of parliament which had provisions for the Minister of Law to influence
appointment of judges was contrary to separation of powers between judiciary and legislature,
and therefore struck down the constitutional amendment on being violative of the basic structure
of the constitution.