THEORY OF BASIC STRUCTURE Ifa man is blind, he can survive. Even if a man is deaf. he can survive. Dumbness does not make survival impossible. Absence of all five sense organs is not a hindrance for survival. But however. a man cannot survive without his head or heart. Basic structure is the heart of the Indian Constitution. It is the head or rather the brain of the Indian Constitution. Basic structure is also the backbone without which the Constitution cannot stand straight AMENABILITY OF THE BASIC STRUCTURE AND THE LANDMARK CASES Basic structure is often termed as the back bone of a constitution becatise. it ts impossible for the constitution to stand straight without a backbone. Hence. amenability of the basic structure is beyond the stretch of imagination and if tints the Constitution with the paint of rigidity. Constitutional provisions are indeed amenable subject to the condition that the basic structure remains untouched. Any amendment that whittles down the basic structure is void and is liable to be struck down. The sanctity of the basic structure is preserved with utmost passion and respect by the framers of the constitution and the protectors of the law of the land Constitution 24th Amendment Sa eR sehas said about it that “a 'Y Continuous ag it embodies the liched at present by the past influence and it makes the ndment of Constitution Onstitution under Article 368 deals Exploring the contours of the term ‘Basic Structure’ it is evincible that the entire Concept has taken its shape through various decisions of the Indian Supreme Cowt As Fuller rightly pointed out in lus reply to Prof. H.L, A. Hatt (1958) law ean only exclude what it is not and it is more ike building a wall around a Village wherein the goal is to protect the village without knowing what it may invade. As on date, Constitution has undergone one hundred amendments. Every time an been challenged, the Judiciary has unraveled the cha figure out the concept of basic structure, The ba our amendment has lenges by making an attempt to structure doctrine is an Indian judicial Principle, most notably propounded by justice Hans Raj Khanna, that the constitution of India has certain basic features that cannot be al lor destroyed through amendments by the parliament. Key among these "basic features", as expounded by justice Khanna, are the fundamental rights guaranteed to Ss the basis of a power of the al amendments and acts defined by the judiciary, and the claim of any particu be a "basic" feature is determined by the court in each it gives extra power to court to review and strike dow amendments and act enacted by the parliament. h case that comes before it. Thus mM any constitutional AMBLE - THE KEY TO THE FRAMERS’ MIND ae study on the basic structure of the Indian Constitution should commence from the Berubari case. In the aforesaid this case, the Court held that the Preamble is the key to open the mind of the framers of the Constitution. However the Court decli to ae preamble as the basic structure and held that Preamble is not a Constitution. ined part of the v y SUPREMACY N) "RASAD AND PARLIAMENTARY S! E ; Tia Teme to the India Constitution ie The Constitution of India nee Act 1951. was challenged in Sri Sankari Prasad Singh Deo vUnion of India and Another4. Though the Court on account its’ reasoning and justifications upheld the validity of the First Amendment, all through the judgment, the term preamble can be seen nowhere. In a nutshell, the outcome of this case was upholding of parliamentary supremacy. SAJJAN SINGH AND PREAMBLE Shankari Prasad’s case was trailed by Sajjan Singh v. State of Rajastan.5 The decision in this case lies in the same track of its fore runner. This verdict was also on the same line. The Apex Court observed in the case that the preamble plays an equally vital role with regard to our body politic. It was also emphasised in the case that Preamble is the epitome of the basic features of the Constitution. The entire Constitution is the amplification and concretisation of what is there is set out in the preamble. Indirectly the Court ruled that preamble is within the purview of basic structure of the Constitution. M. K. NAMBIAR’S BASIC STRUCTURE ARGUMENT Shankari Prasad’s case and Sajjan Singh’s case were overruled in the succeeding case of I. C. Golak Nath and Others v. State of Punjab and Another. Though the case is known and is popular for prospective overruling and for holding amendment as a law. the interesting aspect and attractive element in this case is that, it was in this ease wherein the phrase ‘basic structure’ was introduced for the first tune. It was in thetanen Shaetn epentece? po ea oe Em OAS penmtoners the term ‘basic structure’ came to the forefront for the very first time. Apart from this, the Golak Nath case also stated that the Preamble of Indian Constitution sets out the main objectives that the legislatars intended. While delivering the Majority Opinion which forms the ‘Judgentent”. Chief Justice K. Subha Rao wrote that anything can be amended and there is no such thing as essential features or non-essential features. Legislature v/s Judiciary > Round 1 Shankari Prasad vs. Union of India (1952) 1SCR 89 Legislative Power and Constituent Power - Different Sajjan Singh vs State of Rajasthan AIR 1965 SC 845 Hidayutallah and Mudholkar — Dissent Seeds of basic structure? >> Struggle for supremacy Round 2 * Golaknath ys State of Punjab AIR 1967 SC 1643 Majority of 6:5 No distinction between Legislative and Constituent power Struggle for supremacy continues Round 3 Parliament hits back * 24th amendment Act, 1971 * Article 13 (4) + Article 368 (2 ) and (3) Evolution of Basic Structure Theory: Parliament's power to amend the fundamental rights was challenged in year 1951.After independence several laws regarding Land Agrarian reforms were passed in several states with the aim of reforming land ownership and tenancy. Land owners which were adversely affected by such laws challenged the same and the courts declared these laws as unconstitutional. Parliament by reacting to the decisions of the courts placed these laws in the ninth schedule of constitution and thus making them immune from judicial review through first and fourth constitutional amendment The question whether fundamental rights can be amended under article 368 came for consideration in the Supreme Court in Sankari Prasad Deo vs. Union of India(1952) S.C.R in this case the validity of the Constitution (first Amendment) Act 1951, which curtailed the right to property guaranteed by Article 31 was challenged The argument against the validity of the First Amendment was that Article 13 prohibits enactment of a law infringing or abrogating the Fundamental Rights, that the word ‘law’ in Article 13 would include any law, ever_a Jaw amending the Constitution and, therefore, the validity of such a law could'be judged and scrutinised with reference to the Fundamental Rights which it could not infvi Adopting the literal interpretation of the Constitution, the Supreme Court upheld the validity of the First Amendment. The Court rejected the contention and limited the scope of article 13 by ruling that the word ‘law in article 13 would not include a constitutional amendment passed under Article 368. The Court observed “we are of the opinion that in the context of article 13 law must be taken to mean rules and regulations made in the exercise of ordinary legislative power and not amendment made in the exercise of constituent power under article 368 of the constitution, Patanjali Shastri J., speaking for the Bench, brought out the distinction between legislative power and constituent power and held that “Jaw” in Article 13 did not include an amendment of the Constitution made in the exercise of constituent power and fundamental rights were not outside the scope of amending power The Court insisted that there is a clear demarcation between ordinary law. which is made in exercise of legislative powers, and constitutional law, which is made in exercise of constituent power. The Court thus held that Parliament could by following the ‘procedure’ laid down in Art.368 amend any provision of constitution including fundamental rights, in absence of any clear and express limitation to the contrary the plenary power of parliament cannot be restricted. Sajjan Singh v. State of Rajasthan AIR 1965 SC 845, wherein the validity of the constitution (Seventeenth Amendment) Act, 1964, was called in question. The impugned amendment again adversely affected the right to property The Supreme Court again rejected the argument by a majority of 3 to 2. The majority ruled that the ‘pith and substance’ of the Amendment was only to amend the Fundamental Right so as to help the State Legislatures in effectuating the policy of the agrarian reform. If it affected Art.226 in an insignificant manner, tat was only incidental; it was an indirect effect of the Seventeenth Amendment The court held that the constituent power conferred by article 368 on the parliament included even the power to take away fundamental rights under part III of the constitution: Summary of the Golaknath Case (1967) Is it possible for the Indian Parliament to limit or amend the Constitution's fundamental rights? Is it possible to consider an amendment to any portion of the Constitution to be a law?(1952) S.C.R in this case the validity of the Constitution (first Amendment) Act 1951, which curtailed the right to property guaranteed by Article 31 was challenged The argument against the validity of the First Amendment was that Article 13 prohibits enactment of a law infringing or abrogating the Fundamental Rights. that the word ‘law’ in Article 13 would inclide any law. even a law amending the Constitution and, therefore, the validity of such a law could be judged and scrutinised with reference to the Fundamental Rights which it could not infringe. Adopting the literal interpretation of the Constitution, the Supreme Cowt upheld the validity of the First Amendment. The Court rejected the contention and limited the scope of article 13 by ruling that the word ‘law in article 13 would not include a constitutional amendment passed under Article 368. The Court observed “we are of the opinion that in the context of article 13 law must be taken to mean rules and regulations made in the exercise of ordinary legislative power and not amendment made in the exercise of constituent power under article 368 of the constitution. Patanjali Shastri J., speaking for the Bench, brought out the distinction between legislative power and constituent power and held that “law” in Article 13 did not include an amendment of the Constitution made in the exercise of constituent power and fundamental rights were not outside the scope of amending power. The Court insisted that there is a clear demarcation between ordinary Jaw. which is made in exercise of legislative powers, and constitutional law. which is made in exercise of constituent power. The Court thus held that Parliament could by following the ‘procedure’ laid down in Art.368 amend any provision of constitution including fundamental rights, in absence of any clear and express limitation to the contrary the plenary power of parliament cannot be restricted. Sajjan Singh y. State of Rajasthan AIR 1965 SC 845, wherein the validity of the constitution (Seventeenth Amendment) Act, 1964, was called in question. The impugned amendment again adversely affected the right to property. The Supreme Court again rejected the argument by a majority of 3 to 2. The majority ruled that the ‘pith and substance’ of the Amendment was only to amend the Fundamental Right so as to help the State Legislatures in effectuating the policy of the agrarian reform. If it affected Art.226 in an insignificant manner, that was only incidental; it was an indirect effect of the Seventeenth Amendment The court held that the constituent power conferred by article 368 on the parliament included even the power to take away fundamental rights under part III of the constitution. Summary of the Golaknath Case (1967) Is it possible for the Indian Parliament to limit or amend the Constitution’s fundamental rights? Is it possible to consider an amendment to any portion of the Constitution to be a law?The Case: Acertain family in Punjab — Henry and William Golaknath owned 500 acres of farmland. However, in 1953, the Punjab government came up with the Punjab Security and Land Tenures Act. As per the Act, a person can own only 30 Standard acres (or 60 ordinary acres) of land. Hence the Golaknath family was ordered to forgo the excess land and was allowed to keep only 30 acres of the said land (a few acres apart from the 30 acres of land would go to the tenants). The Golaknath family went to court, challenging the validity of the 1953 Act. The family’s main argument was- + The 1953 law obstructed their right to own property as enshrined in Article 19(1)(f). + The law further prevented them from going ahead with a profession of their choice. + The law threatened their right to get equal protection, as stated in Article 14 of the Indian Constitution. On top of that, the family also urged the court to declare the 17th Amendment (through which the 1953 law came into being) as unlawful The Judgement: Justice Subba Rao came to the conclusion that the 17th Amendment violated the fundamental rights of acquiring any land and indulging in any lawful profession granted to the Indian citizens by the Constitution. However, since he used the Doctrine of Prospective Overruling, the Supreme Coutt’s ruling did not affect the validity of the 17th Amendment and hence the 1953 law. However, Justice Subba Rao added that from then on, the Parliament would have no power to make any amendment to Part III of the Constitution that deals with the fundamental rights of the citizens. The majority said that the parliament has no right to amend the fundamental rights. These are fundamental rights are kept beyond the reach of parliamentary legislation. Therefore, to save the democracy from the autocratic actions of the parliament the majority held that parliament cannot amend the fundamental rights enshrined under Part III of the Constitution of India The majority said that fundamental rights are the same as natural rights. These rights are important for the growth and development of a human being. The Doctrine of Prospective Overruling Although the Supreme Court declared constitutional amendments that violated the tules laid down by Article 13 as void, in this particular case, the old rule was followed. The Punjab Security and Land Tenures Act remained valid. ‘The doctrine of prospective overruling states that the court is duty-bound to announce a “new and better” rule in place of an old, unscientific or condemned rule. However,the doctrine also states that the new rule would not affect any past court judgments This is exactly the reason why despite the judgment. the 1953 Act remained valid. It is to be noted that the Doctrine of Prospective Ovenuling and the overall judgment were accepted with a thin majority of 6:5. Many dissenting judges were against this doctrine. Keshavananda Bharti Case: Keshvananda Bharati is a landmark case and the decision taken by the Supreme Court outlined the basic structure doctrine of the Constitution. The decision which was given by the bench in Keshavananda Bharati’s case was very unique and thoughtful. The judgment was of 700 pages which included a solution for both Parliament's right to amend laws and citizen’s right to protect their Fundamental Rights. The Bench came up with Doctrine of Basic Structure in order to protect the interests of both citizens of India and the Parliament. The Bench through this solution solved the questions which were left unanswered in Golaknath’s case. This case overruled the decision given in the case of Golaknath v State of Punjab case by putting a restriction on the Parliament’s right to amend the Constitution. The Doctrine of Basic Structure was introduced to ensure that the amendments do not take away the rights of the citizens which were guaranteed to them by the Fundamental Rights. Identification of Parties Petitioner: Kesavananda Bharati & Others Respondent: State of Kerala Bench: S.M. Sikri, K.S. Hegde, A.K. Mukherjea, .M. Shelat, AN. Grover. P. Jaganmohan Reddy, H.R. Khanna, A.N. Ray, K.K, Mathew, M.-H. Beg. S.N. Dwivedi, & Y.V. Chandrachud, Summary of Facts Keshvananda Bharati was the chief of Edneer Mutt which is a religious sect in Kasaragod district of Kerala. Keshvananda Bharti had certain pieces of land in the sect which were owned by him in his name. The state government of Kerala introduced the Land Reforms Amendment Act, 1969. According to the act. the government was entitled to acquire some of the sect’s land of which Keshvananda Bharti was the chief. On 21st March 1970, Keshvananda Bharti moved to Supreme Court under Article 32 of the Indian Constitution for enforcement of his rights which guaranteed underArticle 25 (Right to practice and propagate religion), Article 26 (Right to manage religious affairs), Article 14 (Right to equality), Article 19(1)(P (freedom to acquive property), Article 31 (Compulsory Acquisition of Property). When the petition was still under consideration by the court, the Kerala Government another act ie. Kerala Land Reforms (Amendment) Act, 1971 24th Amendment + In the case of Golaknath, it was laid down in the judgment that every Amendment which is made under Article 368, will be taken as an exception under Article 13. Therefore, in order to neutralize this effect. the Parliament through an Amendment in Article 13 of the Constitution annexed clause 4 so that no Amendment can have an effect under Article 13 The Parliament in order to remove any kind of ambiguity added clause 3 to Article 368 which reads as follows, “Nothing in article 13 shall apply to any amendment made under this article.” In the case of Golaknath, the majority decided that Article 368 earlier contained the provision in which the procedure of Amendment was given and not the Power so, in order to include the word power in the Article, Article 368 was amended and the word power was added in the Marginal Note + The Parliament tried to draw a distinction between the procedure in an amendment and an ordinary law through an amendment in Article 368(2). Earlier the President could exercise his power to refuse or withhold a bill for the amendment. After the 24th Amendment, the President did not have a choice to refuse or withhold a bill. This was done b: vy the Parliament in order to protect the amendment from the exception that is mentioned under Article 13 of the Indian Constitution. 25th Amendment + Through this Amendment, the Parli not bound to adequately compens: taken by the State Government ane lament wanted to make it clear that they are ate the landlords in case th d in order to do so the heir property is any ve, the court was The 29th Amendment was i i Passed in the year 1979, It ins i Reforms Act into the 9th Schedule. It meant th; fee etere and Reforms Act will be outside the sei amendments which were made by the Cent la Land at the matters related to the Kerala Ope of the judiciary to try. All the ral Government in some or other wayprotected the amendments made by State Government from being tried in the court of law. Provisions of the Kerala Land Reforms Act along with 24th 25th and 29th Amendments were challenged in the court of law. Issues before the Court + Whether the 24th Constitutional (Amendment), Act 1971 is Constitutionally valid or not? + Whether the 25th Constitutional (Amendment), Act 1972 is Constitutionally valid or not? + The extent to which the Parliament can exercise its power to amend the Constitution. Kesavananda Bharati: He challenged the Kerala land reforms legislation in 1970, which imposed restrictions on the management of religious property. The case was challenged under Article 26, concerning the right to manage religiously owned property without government interference. A 13-judge Bench was set up by the Supreme Coutt, the biggest so far, to hear the case. Question underlying the case also included: Was the power of Parliament to amend the Constitution unlimited? In other words, could Parliament alter, amend, abrogate any part of the Constitution even to the extent of taking away all fundamental rights? Background: The Supreme Court conceded absolute power to Parliament in amending the Constitution, as was seen in the verdicts in Shankari Prasad case (1951) and Sajjan Singh case (1965). In both the cases the court had ruled that the term “law” in Article 13 must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power under Article 368. This means Parliament had the power to amend any part of the Constitution including Fundamental rights. But Article 13(2) reads - "The State shall not make any law which takes away or abridges the right conferred by this Part (i.e. Part-II) and any law made in contravention of this clause shall, to the extent of contravention, be void."However, in the Golaknath case (1967), the Supreme Cck could not amend Fundamental Rights, and power to amend th only with a Constituent Assembly. eld that Parliament he Constitution would be The Court held that an amendment under Article 368 is "law" Article 13 of the Constitution and therefore, if an amendment abridges" a Fundamental Right conferred by Part IIL it is void within the meaning of "takes away ot To dis-effect the judgments of the Supreme Court in the Golaknath case (1967), RC Cooper case (1970), and Madhavrao Scindia case (1970), the then government enacted major amendments to the Constitution. Most notably 24th Constitutional (Amendment) Act, 1971- Parliament had also given itself the power to amend any part of the Constitution 25th Constitutional (Amendment) Act, 1972- The right to property had been removed as a fundamental right. Verdict in the Kesavananda Bharati Case: The landmark judgement was delivered on 24th April 1973 by a thin majority of 7:6 wherein the majority held that any provision of the Indian Constitution can be amended by the Parliament in order to fulfil its socio-economic obligations that were guaranteed to the citizens as given in the Preamble, provided that such amendment did not change the Constitution’s basic structure. The minority, however, in their dissenting opinion, were wary of giving the Parliament unlimited amending power. The court held that the 24th Constitutional Amendment was entirely valid. But it found the second part of the 25th Constitutional Amendment to be ultra vires. The Supreme Court declared the Article 31C as unconstitutional and invalid on the ground that judicial review is basic structure and hence cannot be taken away Despite the ruling that Parliament cannot breach fundamental rights, 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. Doctrine of the Basic Structure: The origins of the basic structure doctrine are found in the German Constitution which, after the Nazi regime, was amended to protect some basic laws. Learning from that experience, the new German Constitution introduced substantive limits on Parliament’s powers to amend certain parts of the Constitution which it considered ‘basic law’In India, the basic structure doctrine has formed the bedrock #£41dicial 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. Parliamentary democracy, fundamental rights, judicial review. secularism- are all held by courts as basic structure, the list is not exhaustive. It is the Judiciary that is responsible to decide what constitutes the basic structure. Implications of the Judgement: Politically, as a result of the verdict, the judiciary faced its biggest litmus test against the executive. The government ignored the opinion and superseded three judges Within less than two years of the restoration of Parliament's amending powers to near absolute terms, the Forty-second amendment was challenged before the Supreme Court by the owners of Minerva Mills (Bangalore) a sick industrial firm which was nationalised by the government in 1974. Basic structure doctrine was reaffirmed in the Minerva Mills and later in the Waman Rao case, 1981 RATIO DECIDENDI + (The majority view in Kesavananda Bharati Case) Chief Justice SM Sikri and Justice, JM Shelat, Justice KS Hegde, Justice AN Grover, Justice Jaganmohan Reddy, Justice Hans Raj Khanna, Justice BK Mukherjea: The power to amend does not include the power to change the basic structure of the Constitution to the point of altering its identity. This proposition will be used to determine the legitimacy of a constitutional amendment. + (The majority view) Justice YV Chandrachud, Justice AN Ray. Justice DG Palekar, Justice KK Mathew, Justice MH Beg, Justice SN Dwivedi: the powet of amendment under Article 368 is plenary, with no implicit or inherent limits. and includes the ability to introduce, change, or repeal various articles of the Constitution, except those relating to fundamental rights + Although agreeing with this viewpoint, Justice Khanna had noted that the power does not apply to changing the basic structure or framework of the Constitution + Justice Ray and Justice Mathew agreed with the view of plenary rights. but they believe that there cannot be a complete repeal of the Constitution, resulting in a constitutional void. According to them, any reform should leave a government mechanism in place for the development, interpretation, and enforcement of laws. f DECISION @ The thirteen-judge bench of the Supreme Court in Keshwanand Bharti Case 1973 by a majority of 7:6 held that the Parliament has the authority to amend any clause ofie Basic Structure of the the constitution as long as the amendment does not violal= Constitution. 4% Despite writing different opinions, the minority bench did not concede that there are certain provisions that are fundamental. They were also hesitant to grant Parliament complete and unfettered authority to amend the Constitution. The apex court upheld the entire 24th Constitutional Amendment Act 197] but considered the first part of the 25th Constitutional Amendment Act 1972 to be intra vires and the second part to be ultra vires. @ The cout, using social engineering and balancing the interests of both litigants, determined that neither the Parliament nor the Supreme Court has the authority to corrode the Basic Structure of the Constitution, nor can it withdraw the mandate to create a welfare state and a fair society. The Basic Structure Doctrine was thus formulated in the Kesavananda case which implied that. although the Parliament has the authority to amend the entire Constitution, they must do so in a way that does not contradict the features so fundamental to the Constitution that it would be spiritless without them. f CONCLUSION & Esteemed jurist and illustrious advocate Nani Palkhivala and the seven judges on the majority bench in Keshavantha Bharathi Case believed that by issuing this decision, they had protected Indian democracy, for which our revered ancestors had fought so valiantly. The most significant result of the freedom struggle was democracy. which gave ordinary citizens who were most oppressed the power and rights. If the bench had ruled differently, the rights and authority for which our esteemed freedom fighters battled so valiantly would have withered away. Thus, this momentous judgement upheld the constitutional values, strengthened the foundation of the Constitution and restored the confidence of the common people in the judiciary and in a democracy. % The Kesavanand Bharti decision forms the most powerful and binding precedent in the history of the Indian Constitution. The basic structure doctrine is used to determine the constitutional validity of any amendment or act of the Parliament® According to former Chief Justice of India Sarv Mittra Sikri, the following elements constitute the basic structure of the Constitution or fundamental features of the Constitution, or what was laid down as the Basic Structure Doctrine Supremacy of the Constitution Republican and democratic form of government Secular character of the Constitution Separation of powers between the legislature, executive. and judiciary Federal character of the Constitution. SFPONS 4 Insimple words, the Basic Structure Doctrine is a rule that states that certain provisions of the Constitution that are so fundamental to the values, objectives and sole of the Constitution cannot be amended under any circumstances.© Supremacy of the Constitution: o Republican and Democratic forms of Government © Secular character of the Constitution; ° Separation of powers between the Legislature, the executive and the judiciary; \o Federal character of the Constitution. 'o Rule of law © Judicial review o Parliamentary system o Rule of equality ‘o Harmony and balance between the Fundamental Rights and DPSP ° Free and fair elections \o Limited power of the parliament to amend the Constitution jo Power of the Indian Supreme Court under Articles 32, 136, 142 and i 147 ie o Power of the High Court under Articles 226 and 227 + Any law or amendment that violates these principles can be struck down by the SC on the grounds that they distort the basic structure of the Constitution. * Way ahead: Proponents of the basic structure doctrine consider it to be a safety valve against majoritarian authoritarianism. Without it, |___. itis plausible that Indira Gandhi’s 1975 Emergency could have Basic Features of the Constitution according to the Kesavanada verdictEach judge laid out separately, what he thought were the basic or essential features of the Constitution. There was no unanimity of opinion within the majority view either. Sikri, C.J. explained that the concept of basic structure included: * supremacy of the Constitution * republican and democratic form of government + secular character of the Constitution * separation of powers between the legislature, executive and the judiciary + federal character of the Constitution Shelat, J. and Grover, J. added two more basic features to this list: + the mandate to build a welfare state contained in the Directive Principles of State Policy + unity and integrity of the nation Hegde, J. and Mukherjea, J. identified a separate and shorter list of basic features: + sovereignty of India + democratic character of the polity + unity of the country + essential features of the individual freedoms secured to the citizens + mandate to build a welfare state Jaganmohan Reddy, J. stated that elements of the basic features were to be found in the Preamble of the Constitution and the provisions into which they translated such as: + sovereign democratic republic + parliamentary democracy+ three organs of the State He said that the Constitution would not be itself without the fundamental freedoms and the directive principles.[ Only six judges on the bench (therefore a minority view) agreed that the fundamental rights o fthe citizen belonged to the basic structure and Parliament could not amend it. The minority view The minority view delivered by Justice A.N. Ray (whose appointment to the position of Chief Justice over and above the heads of three senior judges, soon after the pronunciation of the Kesavanand verdict, was widely considered to be politically motivated), Justice M.H. Beg, Justice K.K. Mathew and Justice S.N. Dwivedi also agreed that Golaknath had been decided wrongly. They upheld the validity of all three amendments challenged before the court. Ray, J. held that all parts of the Constitution were essential and no distinction could be made between its essential and non-essential parts. All of them agreed that Parliament could make fundamental changes in the Constitution by exercising its power under Article 368. In summary the majority verdict in Kesavananda Bharati recognised the power of Parliament to amend any or all provisions of the Constitution provided such an act did not destroy its basic structure. But there was no unanimity of opinion about what appoints to that basic structure. Though the Supreme Court very nearly returned to the position of Sankari Prasad (1952) by restoring the supremacy of Parliament's amending power, in effect it strengthened the power of judicial review much more.[18] Basic Structure concept reaffirmed- the Indira Gandhi Election case In 1975, The Supreme Court again had the opportunity to pronounce on the basic structure of the Constitution. A challenge to Prime Minister Indira Gandhi's election victory was upheld by the Allahabad High Court on grounds of electoral malpractice in 1975. Pending appeal, the vacation judge- Justice Krishna lyer, granted a stay that allowed Smt. Indira Gandhi to function as Prime Minister on the condition that she should not draw a salary and speak or vote in Parliament until the case was decided. Meanwhile, Parliament passed the Thirty-ninth amendment to the Constitution which removed the authority of the Supreme Court to adjudicate petitions regarding elections ofthe President, Vice President, Prime Minister and Speaker of the Lok Sabha. Instead, a body constituted by Parliament would be vested with the power to resolve such election disputes. Section 4 of the Amendment Bill effectively thwarted any attempt to challenge the election of an incumbent, occupying any of the above offices in a court of law. This was clearly a pre-emptive action designed to benefit Smt. Indira Gandhi whose election was the object of the ongoing dispute. Amendments were also made to the Representation of Peoples Acts of 1951 and 1974 and placed in the Ninth Schedule along with the Election Laws Amendment Act, 1975 in order to save the Prime Minister from embarrassment if the apex court delivered an unfavourable verdict. The mala fide intention of the government was proved by the haste in which the Thirty- ninth amendment was passed. The bill was introduced on August 7, 1975 and passed by the Lok Sabha the same day. The Rajya Sabha (Upper House or House of Elders) passed it the next day and the President gave his assent two days later. The amendment was ratified by the state legislatures in special Saturday sessions. It was gazetted on August 10. When the Supreme Court opened the case for hearing the next day, the Attorney General asked the Court to throw out the case in the light of the new amendment. Counsel for Raj Narain who was the political opponent challenging Mrs. Gandhi's election argued that the amendment was against the basic structure of the Constitution as it affected the conduct of free and fair elections and the power of judicial review. Counsel also argued that Parliament was not competent to use its constituent power for validating an election that was declared void by the High Court. Four out of five judges on the bench upheld the Thirty-ninth amendment, but only after striking down that part which sought to curb the power of the judiciary to adjudicate in the current election dispute.[19] One judge, Beg, J upheld the amendment in its entirety. Mrs. Gandhi's election was declared valid on the basis of the amended election laws. The judges grudgingly accepted Parliament's power to pass laws that have a retrospective effect. Basic Features of the Constitution according to the Election case verdict Again, each judge expressed views about what amounts to the basic structure of the Constitution:According to Justice H.R. Khanna, democracy is a basic feature of the Constitution and includes free and fair elections. Justice K.K. Thomas held that the power of judicial review is an essential feature. Justice Y.V. Chandrachud listed four basic features which he considered unamendable: * sovereign democratic republic status + equality of status and opportunity of an individual * secularism and freedom of conscience and religion + ‘government of laws and not of men'i.e. the rule of law According to Chief Justice A.N. Ray, the constituent power of Parliament was above the Constitution itself and therefore not bound by the principle of separation of powers. Parliament could therefore exclude laws relating election disputes from judicial review. He opined, strangely, that democracy was a basic feature but not free and fair elections. Ray, C.J. held that ordinary legislation was not within the scope of basic features. Justice K.K. Mathew agreed with Ray, C.J. that ordinary laws did not fall within the purview of basic structure. But he held that democracy was an essential feature and that election disputes must be decided on the basis of law and facts by the judiciary. Justice M.H. Beg disagreed with Ray, C.J. on the grounds that it would be unnecessary to have a Constitution if Parliament's constituent power were said to be above it.[20] Judicial powers were vested in the Supreme Court and the High Courts and Parliament could not perform them. He contended that supremacy of the Constitution and separation of powers were basic features as understood by the majority in the Kesavananda Bharati case Beg, J. emphasised that the doctrine of basic structure included within its scope ordinary legislation also. Despite the disagreement between the judges on what constituted the basic structure of the Constitution, the idea that the Constitution had a core content which was sacrosanct was upheld by the majority view.The Kesavananda Review Bench Within three days of the decision on the Election case Ray, C.J. convened a thirteen judge bench to review the Kesavanada verdict on the pretext of hearing a number of petitions relating to land ceiling laws which had been languishing in high courts. The petitions contended that the application of land ceiling laws violated the basic structure of the Constitution. In effect the Review bench was to decide whether or not the basic structure doctrine restricted Parliament's power to amend the Constitution. The decision in the Bank Nationalisation case was also up for review, Meanwhile Prime Minister Indira Gandhi, in a speech in Parliament, refused to accept the dogma of basic structure. [21] It must be remembered that no specific petition seeking a review of the Kesavananda verdict filed before the apex court- a fact noted with much chagrin by several members of the bench. N.N.Palkhivala appearing for on behalf of a coal mining company eloquently argued against the move to- review the Kesavananda decision. Ultimately, Ray, C.J. dissolved the bench after two days of-hearings. Many people have suspected the government's indirect involvement in this episode seeking to undo an unfavourable judicial precedent set by the Kesavananda decision. However no concerted efforts were made to pursue the case. The declaration of a National Emergency in June 1975 and the consequent suspension of fundamental freedoms, including the right to move courts against preventive detention, diverted the attention of the country from this issue. Sardar Swaran Singh Committee and the Forty-second amendment Soon after the declaration of National Emergency, the Congress party constituted a committee under the Chairmanship of Sardar Swaran Singh to study the question of amending the Constitution in the light of past experiences. Based on its recommendations, the government incorporated several changes to the Constitution including the Preamble, through the Forty-second amendment (passed in 1976 and came into effect on January 3, 1977). Among other things the amendment: a) gave the Directive Principles of State Policy precedence over the Fundamental Rights contained in Article 14 (right to equality before the lawand equal protection of the laws), Article 19 (various freedoms like freedom of speech and expression, right to assemble peacefully, right to form associations and unions, right to move about and reside freely in any part of the country and the right to pursue any trade or profession) and Article 21 (right to life and personal liberty). Article 31C was amended to prohibit any challenge to laws made under any of the Directive Principles of State Policy. [22] b) laid down that amendments to the Constitution made in the past or those likely to be made in future could not be questioned in any court on any ground; c) removed all amendments to fundamental rights from the scope of judicial review and d) removed all limits on Parliament's power to amend the Constitution under Article 368. Basic structure doctrine reaffirmed- the Minerva Mills and Waman Rao cases Within less than two years of the restoration of Parliament's amending powers to near absolute terms the Forty-second amendment was challenged before the Supreme Court by the owners of MinervaMills (Bangalore) a sick industrial firm which was nationalised by the government in 1974.[23] Mr. N.A. Palkhivala, renowned constitutional lawyer and counsel for the petitioners, chose not to challenge the government's action merely in terms of an infringement of the fundamental right to properly. Instead, he framed the challenge in terms of Parliament's power to amend the Constitution Mr. Palkhivala argued that Section 55 of the amendment([24] had placed unlimited amending power in the hands of Parliament. The attempt to immunise constitutional amendments against judicial review violated the doctrine of basic structure which had been recognised by the Supreme Court in the Keshavananda Bharati and Indira Gandhi Election Cases. He further contended that the amended Article 31C was constitutionally bad as it violated the Preamble of the Constitution and the fundamental rights of citizens. It also took away the power of judicial review.Chief Justice Y.V. Chandrachud, delivering the majority judgement (4:1), upheld both contentions. The majority view upheld the power of judicial review of constitutional amendments. They maintained that clauses (4) and (5) of Article 368 conferred unlimited power on Parliament to amend the Constitution. They said that this deprived courts of the ability to question the amendment even if it damaged or destroyed the Constitution's basic structure. The judges, who concurred with Chandrachud, C.J. ruled that a limited amending power itself is a basic feature of the Constitution. Bhagwati, J. the dissenting judge also agreed with this view stating that no authority howsoever lofty, could claim to be the sole judge of its power and actions under the Constitution[25]. The majority held the amendment to Article 31C unconstitutional as it destroyed the harmony and balance between fundamental rights and directive principles which is an essential or basic feature of the Constitution [26] The amendment to Article 31C remains a dead letter as it has notbeen repealed or deleted by Parliament. Nevertheless cases under it are decided as it existed prior to the Forty-second amendment. In another case relating to a similar dispute involving agricultural property the apex court, held that all constitutional amendments made after the date of the Kesavananda Bharati judgement were open to judicial review.[27] All laws placed in the Ninth Schedule after the date of the Kesavananda Bharati judgement were also open to review in the courts. They can be challenged on the ground that they are beyond Parliament's constituent power or that they have damaged the basic structure of theConstitution. In essence, the Supreme Court struck a balance between its authority to interpret the Constitution and Parliament's power to amend it. Summary It may be said that the final word on the issue of the basic structure of the Constitution has not been pronounced by the Supreme Court- a scenario that is unlikely to change in the near future. While the idea that there is such a thing as a basic structure to the Constitution is well established its contents cannot be completely determined with any measure of finality until a judgement of the Supreme Court spells it out. Nevertheless the sovereign, democratic and secular character of the polity, rule of law, independence of the judiciary, fundamental rights of citizens etc. are some of the essentialfeatures of the Constitution that have appeared time and again in the apex court's pronouncements. One certainty that emerged out of this tussle between Parliament and the judiciary is that all laws and constitutional amendments are now subject to judicial review and laws that transgress the basic structure are likely to be struck down by the Supreme Court. In essenceParliament’s power to amend the Constitution is not absolute and the Supreme Court is the final arbiter over and interpreter of all constitutional amendments.