The doctrine of Basic Structure includes general features of the broad democracy, supremacy of the Constitution, rule of law, separation of powers, judicial review, freedom and dignity of the individual, unity and integrity of the nation, free and fair education, federalism and secularism. The Basic Structure Doctrine admits to identify a philosophy upon which a Constitution is based.
One of the initial references to doctrine of basic features and its permanency was in Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845, observed, that the Constitution “formulated a solemn and dignified preamble which appears to be an epitome of the basic features of the Constitution. Can it not be said that these are indicia of the intention of the Constituent Assembly to give a permanency to the basic features of the Constitution?”
The doctrine actually came to be in the seminal case of Kesavananda Bharati v. Union of India (1973) where the Supreme Court emphasising on the essence of the basic structure held that “every provision of the Constitution can be amended provided in the result the basic foundation and structure of the Constitution remains the same.” The concept of basic structure, as such gives coherence and durability to a Constitution, for it has a certain intrinsic force in it.
Inspired by the doctrine of Basic Structure enshrined in Articles 1 to 19 of the German Constitution, 1949 (“The Basic Law for the Federal Republic of Germany’), where these principles are based on the premise that democracy is not only a parliamentary form of government but also is philosophy of life based on the appreciation of the dignity, the value and the inalienable rights of each individual human being; such as that of right to life and physical integrity; equality before law; rights to personal honour and privacy; occupational freedom; inviolability of the home; right to property and inheritance. The essence of basic rights could, under no circumstance, be affected.
In India, the doctrine of Basic Structure is a judicial innovation, and it continues to evolve via judicial pronouncements of this Court. The contours of the expression have been looked into by the Court from time to time, and several constitutional features have been identified as the basic structure of the Constitution; but there is not an exhaustive definition or list of what constitutes the ‘basic structure’ of the Constitution – the Court decides from case to case if a constitutional feature can be regarded as basic or not.
Kesavananda Bharti Case
Kesavananda Bharati (supra) was heard by a Full Bench of Supreme Court consisting of 13 Judges. A majority of Judges held that the view taken in C. Golak Nath and Others v. State of Punjab and Another, 1967 AIR 1643, that the word “law” in Article 13 included a constitutional amendment, could not be upheld. The said decision was, therefore, overruled.
But the Court was sharply split on the question whether the word “amendment” in Article 368 as it stood before its amendment by the 24th Amendment included the power to alter the basic feature or to repeal the Constitution itself.
Six Judges led by Sikri CJ were of the view that the Constitution could not be amended so as to abrogate or emasculate the basic features of the Constitution some of which were characterized by Sikri, CJ as under: –
“(1) Supremacy of the Constitution;
(2) Republican and Democratic forms of Government;
(3) Secular character of the Constitution;
(4) Separation of powers between the legislature, the executive and the judiciary;
(5) The Federal character of the Constitution.”
It was further held that fundamental rights could not be abrogated though reasonable abridgment of fundamental rights could be affected in public interest. According to this view, Parliament would be able to adjust fundamental rights in order to secure what the Directive Principles directed to be accomplished while maintaining the freedom and dignity of the citizens.
Khanna, J. took a more liberal view in regard to the power of amendment of the Parliament. He agreed with the above-mentioned six Judges that the power of amendment is not unlimited and made the following pertinent observations in Paragraph 1437:
“1437. ….The word “amendment” postulates that the old Constitution survives without loss of its identity despite the change and continues even though it has been subjected to alternations. ………………. The words “amendment of the constitution” with all their wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure or framework of the constitution….”
He was, however, of the view that subject to the retention of the basic structure or framework of the Constitution, the power of amendment is plenary and includes within itself the power to amend the various articles of the Constitution, including those relating to fundamental rights as well as those which may be said to relate to essential features. He was also of the view that the right to property does not pertain to basic structure or framework of the Constitution (vide Paragraph 1550).
In short, the decision of the majority may be stated as under : –
(1) Golak Nath case [AIR 1967 SC 1643] is overruled;
(2) Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution;
(3) The Constitution (Twenty-fourth Amendment) Act, 1971, is valid;
(4) Section 2(a) and 2(b) of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid;
(5) The first part of Section 3 of the Constitution (Twenty-fifth Amendment) Act, 1971, is valid.
The second part, namely, “and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy” is invalid;
(6) The Constitution (Twenty-ninth Amendment) Act, 1971 is valid.
Other six Judges led by Ray J. (as he then was) held that the power to amend was wide and unlimited and included the power to add, alter or repeal any provision of the Constitution. They, therefore, upheld all the Constitutional amendments.
Seven judges against six thought that the basic structure of the Constitution cannot be altered under the amending power although there was no agreement among themselves about the meaning and content of the so-called basic structure.
Sikri, CJ, observed: “The expression “amendment of this Constitution” does not enable Parliament to abrogate or take away fundamental rights or to completely change the fundamental features of the Constitution so as to destroy its identity. Within these limits Parliament can amend every article.” [Kesavananda Bharati, at p. 1565.]
Shelat and Grover, JJ., said on the scope of amending power under Article 368 as follows: “Though the power to amend cannot be narrowly construed and extends to all the articles it is not unlimited so as to include the power to abrogate or change the identity of the Constitution or its basic features;” [Kesavananda Bharati, at p. 1609-10.]
Hegde and Mukherjea, JJ., expressed the same opinion. They said:
“Though the power to amend the Constitution under Article 368 is a very wide power, it does not yet include the power to destroy or emasculate the basic elements or the fundamental features of the Constitution.” [Kesavananda Bharati, at p. 1648.]
Reddy, J. was of the same opinion. Khanna, J. held that the amending power of Parliament is very wide under Article 368, but he also imposed certain limitations on the amending power in the name of basic structure of the Constitution. He said:
“….it is permissible under the power of amendment to effect changes, howsoever important, and to adapt the system to the requirements of changing conditions, it is not permissible to touch the foundation or to alter the basic institutional pattern. The words “amendment of the constitution” with all their wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure or framework of the constitution…..” [Kesavananda Bharati, at p. 1860.]
He further said that: “…..Subject to the retention of the basic structure or framework of the Constitution, the power of amendment is plenary and would include within itself the power to amend the various articles of the Constitution. … The power of amendment would also include within itself the power to add, alter or repeal the various articles.” [Kesavananda Bharati, at p. 1903-04.]
Thus, it is very clear that the sense in which Khanna, J., uses the expression ‘basic structure or framework of the Constitution’ is very different from the sense in which six judges led by Sikri, CJ., use the expression ‘essential features or basic features’ of the Constitution.
Fundamental rights can be abrogated by the use of the amending power according to Khanna, J., but not so according to six judges led by Sikri, C.J.
Ray, J. rejected the idea of any implied limitations on the amending power and thought that the power to amend is wide and unlimited. He said that:
“….There can be or is no distinction between essential and inessential features of the Constitution to raise any impediment to amendment of alleged essential features….” [Kesavananda Bharati at p. 1718]
The aforesaid opinion was also shared by Palekar, Mathew, Beg, Dwivedi and Chandrachud, JJ.
Judgment of Justice J.B. Pardiwala in Janhit Abhiyan v. Union of India (2023)