The Standards of Basic Structure Doctrine

Posted By
10Pointer
Categories
Polity & Governance
Published
17th Feb, 2021

Basic Structure doctrine has reappeared in popular debates due to multiple events in recent months.
The death of Kesavananda Bharati in September 2020, whose petition had led to the landmark judgment in 1973, brought back the memories of Basic Structure.

Introduction

Basic Structure doctrine has reappeared in popular debates due to multiple events in recent months.
The death of Kesavananda Bharati in September 2020, whose petition had led to the landmark judgment in 1973, brought back the memories of Basic Structure.
But protests against the Citizenship Amendment Act, 2020, on grounds that secularism is a part of Basic Structure, raised an important question of interpretation of laws by the Supreme Court.
Petitions in Supreme Court against Farm Laws, have alleged them of breaching principles of Federalism, a part of Basic Structure Doctrine.
The petition against the Revocation of Special Status of Jammu and Kashmir, argues that such an act by the Central Government is against principles of federalism.
The Transgender Persons (Protection of Rights) Act, 2020 violates the rights of trans-persons to self-determine one’s gender identity, which is an integral part of one’s right to life, dignity, and autonomy i.e. Article 21, a part of the Doctrine.

The Basic Structure Doctrine

Article 368 of the Constitution gives Parliament the power to amend all parts of the document. The powers of Parliament to amend the constitution under article 368 are virtually limitless.
However, intending to preserve the original ideals envisioned by the constitution-makers, the Supreme Court pronounced that Parliament could not distort, damage, or alter the basic features of the Constitution under the pretext of amending it.
The phrase 'basic structure' itself cannot be found in the Constitution.
The Supreme Court recognized this concept for the first time in the historic Kesavananda Bharati case in 1973
There is no exclusive definition of basic structure given by the judiciary. The judicial approach has been on a case-to-case basis to define what constitutes the doctrine of the basic structure.
In simple terms, it can be stated that:

"Basic Structure" consists of those essential pillars of the constitution which are considered as vital to its very existence, and which Parliament cannot amend or take away even by a constitutional amendment.

Over the years, apart from judging the validity of constitutional amendments, the basic structure doctrine has also been used as an interpretative tool to test the validity of - (i) a law or executive action or (ii) determine the meaning of a constitutional provision.
The basic structure doctrine has proved to be one of the most momentous innovations of the Indian judiciary.
Let us trace the context and evolution of the doctrine to its present-day form.

Evolution of Basic Structure

Pre-Kesavananda Position (i.e before 1973)

Name of the Case (Year)	Judgment by Supreme Court
Shankari Prasad Case (1951)	? In this case, the SC contended that the Parliament’s power of amending the Constitution under Article 368 included the power to amend the Fundamental Rights guaranteed in Part III as well.
Sajjan Singh case (1965)	? In this case, also, the SC held that the Parliament can amend any part of the Constitution including the Fundamental Rights. ? It is noteworthy to point out that two dissenting judges, in this case, remarked whether the fundamental rights of citizens could become a plaything of the majority party in Parliament.
Golaknath case (1967)	? In this case, the court reversed its earlier stance that the Fundamental Rights can be amended. ? It said that Fundamental Rights are not amenable to the Parliamentary restriction as stated in Article 13 and that to amend the Fundamental rights a new Constituent Assembly would be required. ? Also stated that Article 368 gives the procedure to amend the Constitution but does not confer on Parliament the power to amend the Constitution. This case conferred upon Fundamental Rights a ‘transcendental position’. ? The majority judgment called upon the concept of implied limitations on the power of the Parliament to amend the Constitution. As per this view, the Constitution gives a place of permanence to the fundamental freedoms of the citizens. ? In giving to themselves the Constitution, the people had reserved these rights for themselves.

The Kesavananda Bharati Case

This was a landmark case in defining the concept of the basic structure doctrine.
The SC held that although no part of the Constitution, including Fundamental Rights, was beyond the Parliament’s amending power, the “basic structure of the Constitution could not be abrogated even by a constitutional amendment.”
The judgment implied that the parliament can only amend the constitution and not rewrite it. The power to amend is not a power to destroy.
This is the basis in Indian law in which the judiciary can strike down an amendment passed by Parliament that conflicts with the basic structure of the Constitution.

Post - Kesavananda Bharati Case

Name of the Case (Year)	Judgment by Supreme Court
Indira Nehru Gandhi v. Raj Narain case (1975)	The 39th Amendment Act was passed by the Parliament during the Emergency Period. This Act placed the election of the President, the Vice President, the Prime Minister, and the Speaker of the Lok Sabha beyond the scrutiny of the judiciary. The Supreme Court struck down the articles of the amendment on the grounds that it was beyond the Parliament’s amending power as it destroyed the Constitution’s basic features. This was done by the government to suppress Indira Gandhi’s prosecution by the Allahabad High Court for corrupt electoral practices.
Minerva Mills case (1980)	This case again strengthens the Basic Structure doctrine. The judgment struck down two changes made to the Constitution by the 42nd Amendment Act 1976, declaring them to be violative of the basic structure. The judgment makes it clear that the Constitution, and not the Parliament is supreme. In this case, the Court added two features to the list of basic structure features. They were: judicial review and balance between Fundamental Rights and DPSP. The judges ruled that a limited amending power itself is a basic feature of the Constitution.
Waman Rao Case (1981)	The SC again reiterated the Basic Structure doctrine. It also drew a line of demarcation as April 24th, 1973 i.e., the date of the Kesavananda Bharati judgment, and held that it should not be applied retrospectively to reopen the validity of any amendment to the Constitution which took place before that date. In the Kesavananda Bharati case, the petitioner had challenged the Constitution (29th Amendment) Act, 1972, which placed the Kerala Land Reforms Act, 1963 and its amending Act into the 9th Schedule of the Constitution. The Waman Rao case held that amendments made to the 9th Schedule until the Kesavananda judgment are valid, and those passed after that date can be subject to scrutiny.

The Ninth Schedule

The 9th Schedule was added to the Constitution by the First Amendment in 1951 along with Article 31-B to provide a “protective umbrella” to land reforms laws.
This was done to prevent them from being challenged in court.
Article 13(2) says that the state shall not make any law inconsistent with fundamental rights and any law made in contravention of fundamental rights shall be void.
Now, Article 31-B protects laws from the above scrutiny. Laws enacted under it and placed in the 9th Schedule are immune to challenge in a court, even if they go against fundamental rights.

Elements of the Basic Structure Doctrine:
From various judgments of the Supreme Court, the following elements have emerged as the Basic Structure of the Constitution.

Supremacy of Constitution
Sovereign Democratic and Republican Nature of Indian Polity
Secular Character of Constitution
Federal Character of Constitution
Separation of Power between Legislature, Executive, and Judiciary
Unity and Integrity of Nation
Welfare State (Socio-Economic Justice)
Harmony between Fundamental Rights and Directive Principles of State Policy
Parliamentary System
Rule of Law
Judicial Review
Judicial Independence
Power of Supreme Court under Article 32, 136, 141 and 142
Power of High Court under Article 226 and 227
Effective access to Justice
Freedom and Dignity of Individual
Principles of Equality
Principles underlying Fundamental Rights
Free and fair Elections
Limited Power of Parliament to amend the Constitution.

Note that the above-given list is only illustrative and not exhaustive.

Important Articles discussed:

Article 32: Writ Jurisdiction of Supreme Court
Article 136: Special Leave to appeal by Supreme Court
Article 141: Laws declared by Supreme Court are binding to all Courts
Article 142: It allows the Supreme Court to pass any order necessary to do “complete justice” in any case
Article 226: empowers the high courts to issue, to any person or authority, including the government (in appropriate cases), directions, orders, or writs
Article 227: High Court shall have superintendence over all courts and tribunals under its jurisdiction.

Importance of the Doctrine

The basic structure doctrine is a testimony to the theory of Constitutionalism to prevent the damage to the essence of the Constitution of India by a brute majority of the ruling majority.
The basic doctrine saved the Indian democracy as it acts as a limitation to the otherwise unlimited constituent power of parliament which could have left the Constitution meaningless and turned India into a totalitarian state.
It helps us to retain the basic tenets of our constitution so meticulously framed by the founding fathers of our Constitution.
It strengthens our democracy by delineating a true separation of power where the Judiciary is independent of the other two organs. It has also given immense untold unbridled power to the Supreme Court and made it the most powerful court in the world.
By restraining the amending powers of the legislative organ of State, it provided basic Rights to Citizens which no organ of State can overrule.
Being dynamic, it is more progressive and open to changes with time as our democracy and society evolve.

Basic Structure Doctrine Outside India

Aside from India, the basic structure doctrine has been adopted in several jurisdictions and rejected in some others.

Bangladesh: The basic structure doctrine was adopted by the Supreme Court of Bangladesh in 1989, by expressly relying on the reasoning in the Kesavananda case
Malaysia: In Malaysia, the basic features doctrine was initially found to be inapplicable by the Federal Court, as, unlike India, the Constitution of Malaysia was written by an ‘ordinary legislature’ and not a constitutional assembly. However, later the doctrine was cited with approval.
Pakistan: The basic structure doctrine was recognized by the Supreme Court of Pakistan in 2015
Singapore: The High Court of Singapore denied the application of the basic features doctrine. It was held that the doctrine did not apply to the Singapore Constitution, considering the differences in the making of the Indian and Singaporean constitutions.

Criticism of the Basic Structure Doctrine

While the doctrine is universally hailed as having strengthened Indian democracy, it has, paradoxically, also come under attack for being anti-democratic and counter-majoritarian.

The criticism is that unelected judges have assumed vast political power not given to them by the constitution

Vaguely defined concept: The task of identifying the basic features is tough and time-consuming. Neither is the court in a position to identify all the components of the basic framework of the constitution once and for all nor has parliament any clear idea about the scope of its amending power as of now.

As a result of this situation, the judiciary has emerged as the most powerful wing of the ‘State’ in comparison to the legislature and the executive
The doctrine has put the judiciary in the exact position of unlimited power that it sought to prevent Parliament from occupying.

So far, the Supreme Court has not yet invalidated a constitutional amendment on the ground of violation of basic features, other than judicial independence.

This shows that the Supreme Court is inclined to invoke the basic structure doctrine as a last resort only if it finds that its independence from the legislature or the executive is at stake.

Basic Structure Doctrine and Master of Roster (MoR) Conundrum

Introduction:

‘Master of Roster’ refers to the privilege of the Chief Justice to constitute Benches to hear cases. No Judge can take up the matter on this own unless allocated by the Chief Justice of India.
The system of Master of Roster provides essential Judicial discipline, which is important to maintain Independence of Judiciary, a principle part of the Basic Structure Doctrine.
Thus, it has been argued that any issues associated with the allocation of cases by the Master of Roster will eventually affect the Independence of the Judiciary, an important element for any well-functioning Democracy.
The MoR system was turned into a legislative provision by the Supreme Court Rules, 2013, (Order VI). The history of the MoR starts from the Indian High Courts Act, 1861, thus having a colonial legacy.

Need for Master of Roster:

Article 145(2) of the Constitution provides power to the Supreme Court to make rules to decide the number of Judges that will decide any case. Under the provisions of this article, MoR has evolved.
The supporters of the MoR mechanism believe that the MoR system is efficient and helps in creating discipline among judges of the court.

Issues associated with Master of Roster:

However, scholars have often expressed discontent for the MoR mechanism,
The primary disagreement is based on the argument that it excessively empowers an individual (the CJI) at any point to constitute benches and allocate cases.
A collegium system type arrangement has often been recommended.
MoR has largely remained unaccountable to any authority.
It has mainly been questioned due to the observed trends of repetition of benches and lowering of the frequency case allocation to judges with dissenting opinions.

Evaluation of MoR against Standards of Basic Structure

MoR when evaluated against the Standards of Basic Structure, needs to go through two tests - i) ‘no other alternative’ test and (ii) ‘efficiency’ test.
The Collegium System has been suggested as an alternative to MoR, though it was rejected. But it has been argued that an alternative to MoR can bring more accountability.
‘Efficiency’ Test for MoR was rebuked by the press conference by four senior Judges in 2018, criticizing allocation of cases by CJI.
Conclusion:
Lord Hewart laid the dictum that “justice must not only be done but must also be seen to be done”. Thus, the allocation of cases by the Supreme Court should have any discrepancy and there is a need to make it more accountable. A pro-active search for better alternatives is needed to make the Indian Judiciary more robust and independent.

Conclusion

The Constitution of a country is the fundamental law of the land. It is based on this document that all other laws are made and enforced. The Basic Structure Doctrine doctrine creates a fine balance between rigidity and flexibility of the Indian Constitution, which has helped in maintaining the federal character of our polity, ensuring that the Constitution evolves with changing times.

The Doctrine has helped in putting limitations on the legislature, ensuring that the vision of Constitution makers is not tampered with and that the citizens of the country continue to enjoy their rights. The challenge will be to uphold the sanctity of the Doctrine in the changing times, which would be seen through how the Supreme Court will address the pending cases regarding Citizenship Amendment Act, J&K Reorganization Act, Farm Laws etc. Thus, The doctrine has played and will keep on playing a vital role in the strengthening of the system of Polity of our nation.