THE JOURNEY OF GOLDEN JUBILEE OF DOCTRINE OF BASIC STRUCTURE; AND ITS IMPORTANT ROLES IN THE PROTECTION OF THE CONSTITUTION OF INDIA

 

AUTHORED BY: MD KAIF

University/ Institution: Indian Institute of Legal Studies Course: BA. LLB (HONS)

YEAR: 2nd YEAR

Email address: m.kkhalipur@gmail.com Mobile Number: 9749578307

 

 

ABSTRACT:

India is the largest democratic country in the world. India has the world’s largest written constitution. It is a very essential element to have a free and robust judiciary system in a democratic country. India is the home of multi-diverse people, people have different cast, races, religions, cultures, financial backgrounds, and followers of different political ideologies. Each and everyone is bound by the constitution of India. Their rights have been protected by the constitution of India. No law can not make contrary to the fundamental rights of the constitution of India. To protect constitutional validity or to protect fundamental rights judiciary plays a very significant role. At a time there was a tug of war between the two most important bodies of the government, the Judiciary and the parliament of the land. The Constitution of India provides power to the parliament to make any law under Article 368 also Article 13 retains the power of the parliament to make any such law which can violate the fundamental right. The Parliament of India had the power to make or change any law of the land and as a result, there was a number of misuse of the power given by Article 368 of the constitution of India. It has found many laws were contrary to fundamental rights and the whole system of making and implementing law was very autocratic. The highest court of the land or the supreme court of India became the protector of the citizen's rights and also the constitution of India. The concept of basic structure has not come overnight; there were a series of cases on the basic structure. In the case of Kesavananda Bharati's first time ‘The Doctrine of Basic Structure’ was introduced.  The landmark judgment upheld the power of the Supreme Court to judicially review the laws of Parliament. The doctrine of basic structure is based on natural law justice jurisprudence. This paper tends to focus on how the supreme court of India protects the constitution of India and how the Parliament’s power has been given certain boundaries by different landmark judgments.

INTRODUCTION:

Article 368 of the constitution of India gives power to the parliament of India to make, change or amend any law of the land. The biggest question is whether the parliament has the power to change or amend any fundamental rights given by the constitution of India. Is there any role of the Supreme Court or the High Court to check on laws made by the parliament of India? There was a power clash between the two most important parts of the government. There is a high chance of the misuse of the power of the Parliament. There is The biggest question how far the parliament can change the fundamental laws of the land. If there is no authority to check the laws, there will be a high chance of misusing the power. In a democratic country, there should be the supremacy of the supreme court and other judicial organs of that particular land. The Judicial organ should be independent and free from all kinds of force. To protect the fundamental laws of the land there is the need for the doctrine of ‘basic structure’. This doctrine has not come into existence overnight; after a series of cases and through a long judicial process, this doctrine came into existence. Most significantly the supreme court of India played the most vital role to present this doctrine.

 

WHAT IS THE DOCTRINE OF BASIC STRUCTURE:

There is no clear definition of the ‘Doctrine of basic structure’. The Parliament, as well as the judiciary, has not provided a specific or exclusive definition of the ‘Basic Structure’. The ‘Doctrine of Basic Structure’ has been defined or presented in different landmark judgments. In the case of Kesavananda Bharati Vs the State of Kerala and Another[1] first time the supreme court of India implied the concept of the ‘Doctrine of Basic Structure’. The Parliament of India cannot introduce any such law that would violate the basic structure of the Constitution of India that came into existence through different landmark judgments. The concept of basic structure is to preserve and protect the nature of Indian democracy and protect the basic rights and liberties of the common citizens. In simple language, parliament can not make any such laws that can violate the fundamental laws of the constitution of India. This rule applied to protect the common citizen's fundamental rights. In the case of Minerva Mills Vs Union of India[2], the judiciary had very loosely defined the basic framework by stating that Parliament has the power to amend the Constitution of India.

FEATURES OF DOCTRINE OF BASIC STRUCTURE:

Over the years different features have been included with the doctrine of basic structure. These features have made very clear the importance of the basic structure of the Constitution. Some of the very essential features are

 

1. IMPORTANCE OF NATURAL LAW SCHOOL AS A SOURCE OF BASIC STRUCTURE:

Basis structure doctrine is mainly focused on fundamental rights and these fundamental rights come from the natural law school of jurisprudence. Fundamental rights are accessible from the time of birth, in some cases in start from the child is in the mother’s womb. Any kind of sovereign power does not give fundamental rights. It came naturally and have fundamental in nature.

 

1. SUPREMACY OF THE CONSTITUTION:

India is the world’s largest democratic country with the largest population. It is very much essential to have a strong constitution. India has the world's longest written constitution.   The Constitution of India consists of 145000 words. The United States of America is the founder of the written Constitution. Indian Constitution is also a well-written detail Constitution. Indian constitution has fundamental rights also constitutional rights, another administrative law, and fundamental duties which makes the constitution special and very unique from other constitutions.

 

The constitution also possesses the unitary features single constitution, integrated judiciary, a strong central government, a subordinated state governments with a unique combination of a quasi-federal system. The constitution of India has Federalism characteristics but is unitary in spirit and has features of a federation, with a three-tier government structure as central, state, and local, with the bicameralism legislature and Judiciary as the Independent organ. The Constitution of India protects justice, equality, and good conscience.

 

1. INDEPENDENCE OF JUDICIARY:

The independence of the judiciary is ensured by the basic structure doctrine. Independence of the judiciary signifies a country's fair and unbiased judicial system, which makes its own decisions without any kind of force or interference from the legislative and executive branches of government. To protect individual rights independent judiciary is very important. Judicial independence is very important for a democratic country because it is the judiciary that safeguards the implementation of the Rule of Law and human rights. However, the concept of independence is broad and encompasses concepts such as impartiality, accountability, efficiency, and respect for other government institutions.[3]

 

1. FEDERAL CHARACTERS OF THE CONSTITUTION:

India is a union of states, though it is not like the United States of America. The Constitution has federal features, which makes it more beautiful. The constitution of India focuses on the need of the entire nation and also it protects the need of the individual state. In very subtly India is not a complete unitary state or not a federal state. India has the features of a Quasi-federal state. The Center and the States are cooperating and coordinating organizations with their own independence, and they should each execute their own authority with respect, understanding, and mutual adjustment.

 

1. EXISTENCE OF EQUALITY BEFORE THE LAW AND EQUAL PROTECTION OF THE LAW:

Article 14 of the Constitution of India gives these both ideas the term ‘Equality Before the Law’ means that no man is above the law and every person. The term ‘Equal Protection of the Law’ means equal law should be applied to all the same situations, and there should be no discrimination between one person and another. The rule in common language is that like should be treated alike and not that unlike should be treated alike[4].

 

1. GOOD GOVERNANCE OR WELFARE STATE:

A state which has a primary object to do good for its citizen. To make transparency and accountability of the government. The primary object of the state will be to do good for the people. Good governance has eight features, which are transparency, consensus-oriented, accountability, participation, responsive, effective and efficiency, inclusive and equitable, and follows the natural rule of law. To prevent corruption and to empower the common citizens' power good governance is a very important tool of the government.

 

1. JUDICIAL REVIEW:

This is the most important power of the court, in this process court can make a balance between the judiciary, Legislative and executive parts of the government. The court can check the or can review by a glass of justice equality and good conscience. Judicial reviews may impose constitutional amendments, legislative acts, and laws made by the legislature and enforced by the executive branch of the government. Since the judiciary functions independently of the other two institutions of the government, it ensures that the laws made and enforced by these institutions do not infringe any of the provisions of the Indian Constitution. Judicial review is the court's authority to examine the constitutionality of the actions and methods of government agencies and departments and declare them unconstitutional or void if they violate or contradict the basic principles of the Constitution[5] of India. Judicial review is important to maintain and protect the superiority of the Constitution of the land, which gives surety to the prevention of abusive of power by the government and its departments. The judicial review laws also protect the fundamental rights of the common citizens.

 

IMPORTANCE OF THE CONCEPT ‘BASIC STRUCTURE’:

Basic Structure doctrine has a significant role in a democratic country. This doctrine helps to make a balance between equality and inequality. This doctrine helps to build a welfare society and enhance the power of the Constitution. The doctrine of basic structure saves Democracy, as it restricts the limitless power of the parliament. The doctrine of basic structure protects the parliament from miss using its power, otherwise, there is a high chance of being autocratic. It empowers our democracy by describing the true separation of power where the Judiciary is independent of the other two powerful organs of the government. The Doctrine of Basic Structure has also given exclusive and unbridled power to the Supreme Court of India. This power made it one of the most powerful courts in the world. This doctrine also protects the fundamental rights of the land. The doctrine of basic structure also prevents the disparity between the power holder and less powerful people. The doctrine of  basic structure enlighten the dynamic nature of the constitution and gave a new horizon of democracy.

 

 

EVALUATION OF ‘DOCTRINE OF BASIC STRUCTURE:

The doctrine of basic structure has not evolved in a single day. It has taken a long period and a long judicial process. At the time there is no such rules to follow the fundamental rights while making new laws. The journey of the doctrine of basic structure starts from the case of Sankari Prasad and it gets an important legal recognition in the case of Keshavnanda Varati. The most important Cases in the evaluation of the ‘Doctrine of Basic Structure’ are the following:

 

1. SANKARI PRASAD Vs. UNION OF INDIA ( AIR 1951 SC 458 ):

This case leads to the first constitutional amendment. In this case, the validity of the first constitution amendment had challenged on the ground that with the insertion of Article 31 (A) and Article 31 (B) of the constitution of India. These two articles limited the scope of the right to property as a fundamental right. It was contended that the first amendment also violated Article 13(2), which is deemed as a protector of fundamental rights. It raised issues such as whether the parliament of India can amend or bring change to the constitution. Can the fundamental rights be amended?

 

The Supreme Court of India has held that it was very clear that there existed a power clash between Article 13 and Article 368 of the Constitution of India. On one hand, Article 368 of the Constitution of India provides the legislature the power to amend or bring change to the constitution at the same time Article 13 (2) of the Constitution restricted the same. In this case, the Supreme Court of India used the doctrine of ‘Harmonious construction’ to deal with the conflicting provisions. It was held that the word 'law' in Article 13 (2) is for the ordinary law and not constitutional law. This judgment draws a limited extent of the term 'law' under Article 13 (2) of the Constitution of India. In this judgment, the parliament got the exclusive power under Article 368 of the Constitution of India to amend the constitution and it also comprehends the Fundamental Rights under part III of the Constitution of India. The Supreme Court of India validated Article 31 (A) and Article 31 (B) of the Constitution of India and also upheld the legality of the Agricultural Land reforms[6].

 

 

1. GOLAKNATH CASE ( AIR 1967 SC ):

This case is one of the most Landmark Cases in Constitution Law after Sajjan Singh vs the State of Rajasthan and Shankari Prasad Singh Deo vs the Union of India And the State. This landmark case brought a new idea and new thinking to the concept of Fundamental Rights. The judgment of this case overruled the judgment of Sajjan Singh and Shankari Prasad cases. This case leads to Article 13 and Article 368 of the Constitution of India. There is a dispute regarding Article 13 and Article 368 of the Constitution of India. Article 13 of the Constitution of India states that a law that takes away or abridges a Fundamental Right is declared unconstitutional or contrary to rules, and in Article 368, we have a specific procedure to amend the Constitution7[7]of India.

 

In the case of Golaknath the Supreme Court of India observed an amendment to the Constitution was applicable to ‘ordinary laws’ and not to the constituent laws. Hence amendment of ordinary needs to pass the test given in Article 13 of the Constitution. The Supreme Court of India stated that any amendment that violated the provisions of Article 13 of the constitution of India would be void.

 

1. KESHAVNANDA VARATI Vs. STATE OF KERALA (AIR 1973 SC 1461):

This is the leading case of the basic structure doctrine. In this landmark judgment Supreme Court of India first, clearly mention the doctrine of basic structure. The Keshavnanda Varati case (1973), decided by the largest-ever bench of 13 judges of the Supreme Court after 66 days of the hearing, is unarguably the greatest case in independent India’s constitutional and legal history. In this case, the biggest issue is that does the legislative body has the power to amend all laws of the constitution of India. Through a judicial innovation that has come to be known as the ‘basic structure doctrine', the Supreme Court concluded that the legislative power of the Parliament does not extend to rescripting the ‘basic structure’ of the Constitution. This doctrine, an outcome of the unique contribution of this case, has become the mainstay of India’s constitutional jurisprudence ever since. The Supreme Court of India declared Article 31 ( C ) of the Constitution of India, unconstitutional on the ground that judicial review is the basic structure of the Constitution and so it cannot be possibly taken away from the judiciary. Despite the judgment that Parliament cannot infringe on fundamental rights. The court held that in the judgment, the amendment of the constitution would not violate the ‘basic structure’.

 

42ND AMENDMENT:

After the case of Keshavananda Varati 42nd Amendment took place. Many new things have been introduced by this amendment. This amendment is also called as mini-Constitution. This 42nd Amendment also tries to alter the basic structure doctrine. This amendment also tries to curtail the Judicial Review power. Parliament got the power to change the fundamental laws of the land. This Amendment also brought different clauses to the Constitution which allowed for the override or suspension of fundamental rights in times of necessity for example, in cases of emergency in the country. This amendment is envisaged the most argumentative amendment in the hole history of the Indian Constitution. This 42nd Amendment had not a positive image due to its huge bad impact on democracy.

 

MINERVA MILLS LTD. AND ORS. Vs. UNION OF INDIA ( AIR 1980 SC 1789):

The Judgement of this case revives the judgment of the Keshavnanda Case. Again the Supreme Court of India uses the doctrine of Basic Structure. The Supreme Court of India held that the Constitution of India is founded on the solid foundation of the balance between Directive Principles and Fundamental Rights. No law can make by the legislature which is arbitrary in nature and violates fundamental rights. The Supreme Court held that the Parliament can amend or can bring chance the fundamental rights for the implementation of the directive principle so long as the amendment does violate the basic structure of the Constitution.

 

WAMANROU CASE ( AIR 1981 SC, 271):

The judgment of this case is very landmark for constitutional jurisprudence. This case referred to previous judgments of Sankarprasad, Sajjansing, Golaknath, and Kesahavanada. This case has helped determine a satisfactory method of preserving the settled position and addressing grievances pertaining to the violation of fundamental rights. The judgment of this case is mainly based on the case of Keshavananda Varati. At this time it's very easy to identify which law is constitutional and which is unconstitutional. But the judgment left certain areas while dealing with Article 31 ( C ) of the Constitution of India and the doctrine of stare decisis and judgment is very sound and effective[8].

 

IMPORTANCE OF THE JUDICIARY AS GUARDIAN OF THE CONSTITUTION:

In the history of the Constitution, many political power, as well as the legislature, try to overpower themself. The legislative body tries to wrongly use its power of majority. The Supreme Court of India as a protector of the Constitution plays a very important role. The Supreme Court of India like a protective guardian protects the constitution from the wrong company. The doctrine of Basic Structure is the tool that protects the fundamental laws and rights of the land. There was a long power clash between the legislative and judiciary power. In the end, the Supreme Court of India protects the democracy, justice, and fundamental rights of the country.

 

IMPORTANCE USE OF DOCTRINE OF BASIC STRUCTURE IN RECENT CASES:

The Doctrine of basic Structure is a very important use of present cases. There are many landmark judgments that have been given based on this doctrine. This doctrine has given a special power to the supreme court of India and overall the judiciary system from the arbitrariness of legislative authorities.

 

NATIONAL LEGAL SERVICE AUTHORITY Vs. UNION OF INDIA[9]:

In this important case a section of gender minority people got their legal rights. The transgender or the third gender got legal recognition. The Supreme Court of India interpreted the definition of ‘Person’ under Article 14 of the Constitution of India. In the definition of person transgender person also included. The court held before there was no reasonable classification. Supreme Court ensured different kinds of social, political, economical rights of transgender or third gender persons.

 

NAVTEJ SINGH JOHAR Vs. UNION OF INDIA[10]:

In this historical judgement the Supreme Court of India struck down 158 years old arbitrary law on homosexual people. Before this case from a long period of time there was a demand for decriminalising homosexuality from section 377 of Indian Penal Code. Before this Judgement ‘Homosexuality’ was considered an unnatural offence and punishable offence. The Supreme Court of India pointed out that homosexuality is not unnatural act when that is in between two consenting adults. The Supreme Court interpreted the there is no reasonable ground of discrimination of homosexual people. They have equal rights to live their life with dignity and equality.

 

CONCLUSION:

It is true that there is no definition of the ‘Doctrine of Basic Structure’ but the main objective of the court is to protect the constitution. Different judges have their own opinions regarding this doctrine but the basic motive is to secure fundamental rights and prevent the legislative body from gaining power. The long judicial process shows how the Indian justice system is looking forward to a better future. The Supreme Court is trying to hold judicial independence. There are many times when allegations are made how the legislative and executive body is trying to interfere in the Judiciary. There are many judges of Honourable Supreme Court admitted there are pressure from executive and legislative body upon fair and equal trial. Though ‘Doctrine of Basic Structure’ is not a codified law but it many way protect the Constitution of India and the Powers of Supreme Court.

 

---

[1] ( 1973 ) 4 SCC 225; AIR 1973 SC 1461

[2] AIR 1980 SC 1739

[3] Nasrafatma, Independent Judicary: An Essential Feature of a Thriving Democracy, LEGAL SERVICE INDIA, ( Apr. 21, 2023, 11:33 AM),

https://legalserviceindia.com/legal/article-8305-independent-judiciary-an-essential-feature-of-a-thriving-democr acy.html

[4] Dr. J. N. Pandey, Constitutional Law of India, (59th edition, Central Law Agency 2022)

[5] Manav Puri, Judicial Review and Indian Constitution, LEGAL SERVICE INDIA, ( Apr. 22, 2023, 12:25 AM), https://legalserviceindia.com/legal/article-9158-judicial-review-in-india.html

[6] Sohal Khera, An Analysis- Sankari Prasad Vs Union of India, Supreme Court, MANUPATRA, ( Apr. 23, 2023, 2: 23 PM ),

https://articles.manupatra.com/article-details/A-Case-Analysis-Shankari-Prasad-v-Union-of-India-Supreme-Cou rt

[7] Niranjan Rai, Case Analysis On I.C. Golaknath Vs. State Of Punjab AIR 1967 SC 1643, Case That Changed Paradigm Of Fundamental Rights In India, INDIAN JOURNAL OF LAW AND LEGAL RESEARCH, ( Apr. 23, 2023, 2: 51 PM),

https://www.ijllr.com/post/case-analysis-on-i-c-golaknath-vs-state-of-punjab-air-1967-sc-1643

[8] Abhirup Gosh, Wamanrrou Vs. Union of India-Cartining the Uncertainty, LEGAL SERVICE INDIA, ( Apr. 23 2023, 11:34 PM), https://www.legalserviceindia.com/article/l36-Waman-Rao-Vs-Union-of-India.html

[9] (2014) 5 SCC 438

[10] AIR 2018 SC 432