What is the Basic Structure Doctrine of the Constitution of India?

What is the Basic Structure Doctrine of the Constitution of India?

The term Basic Structure Doctrine often appears whenever the rule of law, Fundamental Rights or the independence of the judiciary are discussed. The Constitution gives the Legislature two kinds of law-making powers under Article 13(2) -

• ordinary laws of governance by using its legislative powers and

• amendments to the Constitution by using its constituent powers.

  The Parliament’s constituent powers are superior to its legislative powers, evident from the greater procedural burden required to amend the Constitution - quorum, ratification by the States, etc., as compared to making ordinary laws.

  The framers of our Constitution wanted the Constitution to be an adaptable document, changing with the times. They ensured that Separation of Powers, an integral element of the rule of law, was enshrined in the Constitution. The checks and balances between the Legislature, Executive and Judiciary are not unfettered. Article 386 allows the Legislature to amend the Constitution and gives the impression that Parliament has an absolute right to amend any part of it.

  In the historic Kesavananda Bharti case (1973), the Supreme Court put the brakes on the understanding that Article 368 gave the Legislature unlimited power to make laws, including constitutional amendments, by defining the Basic Structure Doctrine, which the Court said is embedded in our Constitution. Before Kesavananda, Parliament used its amendment powers to undo the Supreme Court’s unfavourable judgements, mostly concerning Fundamental Rights, such as the rights to free speech and property. The conflict between the Parliament and the Judiciary finally became one between the government’s right to implement the Directive Principles of State Policy (DPSP) by curtailing Fundamental Rights and the courts’ power to balance the DPSP against the Fundamental Rights.

  Though the term “basic structure” does not appear in the Constitution, in Kesavananda, the Supreme Court held that the Parliament’s constituent power under Article 368 had inherent limitations. The Legislature could not use its powers to damage, destroy, change or alter the “basic structure” or framework of the Constitution by amending any of its provisions. There was no unanimity among the judges on what exactly this “basic structure” or essential framework was. “Basic structure” features continued to be added in Indira Nehru Gandhi v. Raj Narain (1975), and something called the “overarching principles” in M. Nagaraj v. Union of India (2006).

  Various judges viewed these indestructible elements in the Constitution to include -

• Supremacy of the Constitution

• Republican and democratic form of government

• Separation of powers between the Legislature, Executive and the Judiciary

• Federal character of the Constitution

• Mandate to build a welfare state contained in the Directive Principles of State Policy

• Unity and integrity of the nation

• Sovereignty of India

• Democratic character of the polity - free and fair elections

• Essential features of the individual freedoms

• The Rule of Law, not rule of men

• Power of Judicial Review

• Equality of status and opportunity of an individual

• Secularism and freedom of conscience

• Egalitarian equality.

  Crystallising these views, we understand that -

• there exists something called a “basic structure” of the Constitution;

• the Legislature had all the constituent powers to amend the Constitution under Article 368, but the amendments are subject to Judicial Review under the Basic Structure Doctrine;

• the “basic structure” of the Constitution includes the rule of law, the sovereign, democratic and secular character of the nation, separation of powers, independence of the Judiciary, Fundamental Rights of citizens, realisation of the Directive Principles of State Policy, etc.,

• and anything else the Supreme Court may add through its power of judicial review.

  So the final word on the content of the Basic Structure Doctrine is still to come, but what is clear is that the Supreme Court remains the final arbiter over and interpreter of the Constitution and any amendments made to it under Article 368.