DOCTRINE OF BASIC STRUCTURE:ESSENTIALLY

AND EFFECTIVENESS

NAME: T. Charu Mathi

COURSE: B.B.A L.L.B (HONS)

YEAR: 3" Year - 5" semester

NAME OF THE INSTITUTION: The Tamilnadu Dr.

Ambedkar Law University, School of Excellence in Law, Chennai - 600 113

EMAIL ID: Charumathii2003@gmail.com

DOCTRINE OF BASIC STRUCTURE:ESSENTIALITY AND EFFECTIVENESS

ABSTRACT:

There has long been disagreement on the extent and qualifications of legislative authority to
modify the Constitution. The Constitution's framers made great efforts to provide the people with
the most equitable document imaginable. They did not, however, specifically insert a phrase in
Article 368 that would have restricted the Parliament's authority to amend the Constitution. Thus,
to enable agrarian changes by obstructing judicial review, Parliament utilized its constituent
power to enact the contentious Ninth Schedule to the Constitution. A restricted Constitution
progressively became unconstrained with the implementation of the Ninth Schedule The notion
of Basic Structure was created in the Keshavananda Bharati case 1following numerous challenges
against similar revisions that the parliament had made in various situations. Because the judiciary
can develop or adopt a theory to uphold constitutional supremacy where there is a gap in the
legislation established by the Constitution to restrain the government's unlawful actions.

Furthermore, no reliable source exists that provides a suitable explanation of this Doctrine of
Basic Structure.This heightens the controversy surrounding the concept and the instances
pertaining to it.This essay makes an effort to go over the factors that led to the doctrine's
development. The history and genesis of the doctrine are also covered, along with how crucial it
is to preserve a delicate equilibrium between the flexibility and rigidity of the Parliament's
amending powers.

INTRODUCTION:

There is no reference to "BASIC STRUCTURE" in the Indian Constitution or any other law.This
is a notion that has developed throughout time as our system of parliament and constitution have
grown, as well as through many court rulings and cases that have changed the way that the
parliament can amend laws and exercise its legislative authority.

We declare that India is an SOVEREIGN SOCIALIST SECULAR DEMOCRATIC

REPUBLIC in our preamble. These are concepts that are embedded in our constitution; they are
1
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461.2
not just words. It would be a betrayal of our founding ideals to change such concepts or pass
laws that subvert such ideas, which would negate the entire reason our legislators established the
legislation in the first place.The basic structure doctrine becomes crucial at this point. It
guarantees people's rights and liberties while upholding the essence of Indian democracy and
contributes to the defense and preservation of the very essence and spirit of the Indian
Constitution.

ORIGIN OF BASIC STRUCTURE DOCTRINE:

The Basic Structure Doctrine has a long history; it began in 1950–1951, when India gained its
independence from British colonial rule. As part of agricultural land reforms, the GOl passed the
Zamindari Abolition Act, depriving the then-zamindars of their respective landholdings. The
zamindars, who were offended, filed a lawsuit in court claiming that their basic right to property,
or Article 313 (which is no longer a fundamental right), had been violated. The Union
Government enacted the Constitution (First Amendment) Act, 1951 to address the problem.
Articles 31(A) and 31(B) were included by the amendment to fully justify the constitutionality of
zamindari abolition laws.

The government was granted broad authority under Article 31(A)* to acquire land and manage
any property that served the public interest. Art. 31(B) added Schedule IX, which provided an
exemption from judicial review for any legislation passed by the legislature. Article 13(2) of the
Constitution, which stipulates that any law passed by the government that violates a person's
fundamental rights will be deemed unconstitutional to the extent of the breach, was flagrantly
violated by the provision.

The zamindars filed a writ suit under Article 32 to challenge the modification, arguing that
Articles 31A and 31B violate and abridge the Fundamental Rights protected by Part III of the
Constitution in addition to the limitations imposed by article 13(2) Given the aforementioned
facts, the Shankari Prasad case (1951) marked the first time that the hotly debated topic of
Parliament's power to modify the Constitution was heard.?

EVOLUTION OF BASIC STRUCTURE DOCTRINE:

Following independence, there was a fierce dispute between the judiciary and Parliament, which
led to the development of the Doctrine of Basic Structure in the Indian Constitution. To achieve
socialism, the government was passing a number of legislation pertaining to land reformation. In
contrast, the judiciary overturned these statutes because they were unconstitutional. The
government responded by passing the First and Fourth Amendments and adding Schedule 9 to
the Constitution, which excluded these legislation from judicial review. Therefore, the primary
issue before the courts was whether or not Article 368 of the constitution gives the parliament
unrestricted authority to change the document.

The Supreme Court ruled in Shankari Prasad Deo v. Union of India (1952) 2that the parliament
might change any provision of the constitution without any restrictions, setting off a sequence of
rulings. The court decided that the limitations outlined in Article 13(2) would not apply to the
constitutional amendments made under Article 368. The Supreme Court affirmed in Sajjan Singh
v. State of Punjab3 that the Parliament possesses unrestricted authority to modify the
Constitution, including the ability to revoke basic rights.

In contrast to the previous rulings, the 11-judge Supreme Court bench adopted a completely
different position in the Golak Nath case. 4A 6:5 majority of the bench declared that the
parliament's ability to modify the constitution is subject to certain implied restrictions. It was
declared that Article 368 does not provide any authority on the parliament to change away a
basic right; rather, it just discusses the procedure. The Golak Nath ruling dealt a serious blow to
the Indira Gandhi administration, which is why the 24th Amendment was passed to overturn the
ruling.This amendment adds a new clause to Article 13, granting the Parliament unrestricted
authority to change the constitution.

In the 1973 case of Kesavananda Bharati v. State of Kerala 5, a 13-judge court considered the
constitutionality of the 24th Amendment, ultimately resolving the matter. By a vote of 7:6, the
bench overturned the Golaknath ruling and upheld the validity of the 24th Amendment.

The Bench ruled that while the Parliament might change any provision of the Constitution, it
could not alter the fundamental framework of the document. It is crucial to remember that the
2
Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 455
3
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845
4
Golak Nath v. State of Punjab, AIR 1967 SC 1643
5
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461.
court did not specify what basic structure is, nor did it offer a way to recognize it. It was decided
to leave the "basic structure doctrine" up for interpretation in other circumstances.

SCOPE AND EXTENT OF BASIC STRUCTURE

Minerva Mills Ltd. v. Union of 6India examined the doctrine of basic structure once more, this
time focusing on its scope and extent of applicability. The petitioners in this case contested the
constitutionality of Sections 4 and 55 (the Forty-second Amendment Act, 1976) on the grounds
that they violated the fundamental principles of the document, as established in Kesavananda
Bharati. Articles 31-c and 368 were changed, respectively, by these provisions. Laws embodying
any Directive Principle were protected against challenge under Article 31-C from the grounds of
violating Articles 14, 19, and 31, and from the validity of all invalidated and existing
amendments, as well as from limitations on future amendments, by Article 368 paragraphs (4)
and (5). Even though the court rejected the Article 368 modification unanimously, It rendered the
4:1 modification to Article 31-C invalid.

It was decided, using the basic structure concept in relation to Article 368, that the Parliament
could not expand its limited amending power into an absolute one while doing so because the
Constitution had granted it to the Parliament. Indeed, one of the fundamental elements of our
Constitution is a restricted amending authority; for this reason, restrictions on that power cannot
be eliminated."

With regard to Article 31-C the Court ruled that "harmony and balance between fundamental
rights and directive principles is an essential feature of the basic structure of the Constitution...
Anything that destroys the balance between the two parts will ipso facto destroy an essential
element of the basic structure of our Constitution" The fundamental framework of the
Constitution was destroyed as a result of the revised Article 31-C, which granted precedence to
all Directive Principles above the fundamental rights.

JUDICIAL REVIEW AS A PART OF BASIC STRUCTURE

The jurisdiction of judges to review parliamentary amendments for legitimacy has been limited
by the 42nd Amendment of 1976. In Minerva Mills v. Union of India, the Supreme Court

6
Minerva Mills Ltd. V. Union of India, AIR 1980 SC 178
considered whether judicial review authority may be eliminated by a constitutional change. The
court made it clear that judicial review is a component of the constitution's fundamental
framework. It was said that the lack of judicial review would mean the end of democracy and the
rule of law since it is crucial to preserving the balance of power among the several branches of
the constitution. As a result, the court eliminated the 42nd Amendment clause. Furthermore, it
was decided in L. Chandra Kumar v. Union of India7 that the basic framework encompasses the
power to petition the Supreme Court under Article 32 and the High Court under Article 226.

INDEPENDENCE OF JUDICIARY AS A PART OF BASIC STRUCTURE DOCTRINE

Our historical experience makes it clear that the government and legislature constantly attempt to
sway how the courts operate. The matter at hand in Shri Kumar Padma Prasad v. Union of India
8
concerned the nomination of a High court judge. In this instance, the Supreme Court
unequivocally declared that one of the fundamental tenets of our democracy is the independence
of the judiciary. In addition, the Supreme Court reaffirmed this point in Advocates-on-Record v.
Union of India, 9holding that maintaining the independence of the judiciary is crucial to
maintaining the delicate balance between the several branches of a democratic society. The
"National Judicial Appointment Commission" was recently ruled illegal by the Supreme Court
because it is against the independence of judiciary

TEST TO CHECK WHETHER IT IS A BASIC STRUCTURE

The protection of both individual dignity and the nation's integrity and usefulness is the ultimate
aim of the Constitution. To guarantee this, fraternity encouragement is necessary. Any legal
precept that would undermine both individual dignity and the nation's fraternity, unity, and
integrity if it were removed from the Constitution would be considered a fundamental
component of the Basic Structure. The determining test is fact-based and not all-encompassing.
That would rely on the specific case's facts. Any modification to a specific article or law is
acceptable since it is necessary for the nation to exist in this changing environment. However,
any modification to the law's concept or provision would undermine the fundamental intent
behind its drafting, making it illegal. To verify this, it's critical to ascertain the effects of these

7
L. Chandrakumar v. Union of India [AIR 1997 SC 1125]
8
.Shri Kumar Padma Prasad v. Union of India, (AIR 1992 SC 1213)
9
Supreme Court Advocates-on-Record Advocates Association Vs.Union of India (2016) 5 SCC 1.
laws.Note that the test used to make this determination is fact-based and non-universal. It would
be assessed based on the specific case's facts

CONCLUSION

After a protracted period of dispute between the judiciary and parliament, the Indian
Constitution's doctrine of basic structure emerged in the Kesavananda Bharati case. Judges differ
in their perspectives regarding this phrase, which lacks a clear meaning. Nonetheless, a widely
held belief is that the parliament lacks the authority to nullify the fundamental provisions of the
constitution. This notion excludes fundamental constitutional principles and ideals from the
parliament's authority to modify the constitution. Lastly, it is critical to remember that the
judiciary hasn't closed the "basic structure" box and that new components can be introduced in
response to what our forward-thinking society demands.