Joginder Singh Toor

THE theory of basic structure is based on the principle, that a change in a thing does not evolve its destruction and destruction of a thing is a matter of substance and not of form. Said the Supreme Court of India in M.Nagraj Vs Union of India, “Once it is held that fundamental rights could be abridged but not destroyed, and once it is further held that several features of the Constitution cannot be destroyed, the concept of express limitation on the amending power loses its force for a precise formulation of the basic features of the Constitution.”

The concept of  basic structure of the Constitution is not the express part of the Constitution; neither is it there in the text and nor in the Preamble nor in any Article or the Schedules. it has emerged  under certain testing circumstances like the Emergency when fundamental rights of the people were under threat and at the verge of abrogation.

In Minerva Mills case (AIR 1980 SC 1989) the majority view of the Constitution Bench of the Supreme Court was that Article 14 (equality before law) and 19 (protection of certain rights like freedom of speech to assemble, to form associations, to move freely etc.) do not confer any fanciful rights. They confer rights which are elementary for the proper and fair functioning of the democracy. They are universally regarded by Universal Declaration of Human Rights,1948…….. They are common to all polities, democratic or authoritarian….. without these freedoms, democracy is impossible. …. If Article 14 is withdrawn, the political pressure exercised by numerically larger groups can tear the country apart by leading it to the legislation, to pick and choose favoured areas and favourite classes for preferential treatment.
How were the fundamental rights under threat and what led to the evolution of doctorine of basic features or basic structure of the Constitution is to be seen.

The Constitution of India grants certain fundamental rights to its citizens which are sought to be protected and enforced by a mechanism provided in Article 13(2) that laws inconsistent with or in derogation of fundamental rights, shall to the extent of contravention, be void. The citizens can approach the Supreme Court under Article 32 for the enforcement of fundamental rights.

The difficulty arose when the Supreme Court itself in Sankri Parsad case (1951 SC 458) held that there is a difference between the law made by the legislature including the Parliament in its ordinary exercise of legislative power and the law made so as to amend the Constitution itself which was termed as a constitutional measure and not law as conceived in Article 13(2).

The view taken in Sankri Parsad case was up held in Sajjan Singh Vs State of Rajasthan (1965 SC 845). This view was over ruled in Golak Nath’s case (AIR 1967 SC 1643). It was held that Article 13(2) covers both; legislative measure as well as constitutional measure and even if the Parliament takes away fundamental rights by a constitutional amendment the same would be hit by Article 13(2). The amendment would be considered void to the extent of contravention of fundamental rights. Further  Article 368 (Power to amend the Constitution) related only to procedure for amending the Constitution but did not confer on the Parliament any power to do so.

The Parliament amended the Constitution by 24th amendment  to empower itself to amend any provisions of the Constitution including those relating to fundamental rights. It   made Article 13 of the Constitution inapplicable to an amendment of the Constitution.
The dilemma that arose, the horrible consequences which emerged and the apprehensions that  convulsed the minds were that the 24th amendment would always stand in the way of the people to seek declaration that legislation is void that fundamental rights have virtually been taken away.The Parliament/the State has assumed powers to take away fundamental rights.
Golak Nath’s case had given rise to this situation and so far as its stands unchallenged and undisturbed the doors shall remain closed.

His Holiness Kesavananda Bharati head of an endowment had challenged the Kerala Land Reforms Act. Incidentally Golak Nath’s case also arose out of the provisions of the Punjab Land Reforms Act and Golak Nath also was head of a religious endowment at Jalandhar (Punjab). During the pendency of the  petition of Kesavananda, Kerala Land Reforms (Amendment) Act,1971 was passed and received ascent of the President and was placed in the 9th Schedule by virtue of provisions of 29th Amendment Act,1972. In  additional  24th , 25th and 29th amendment were also challenged  and the court permitted the plea. It included challenge to the Golak Nath’s case also. A larger Bench of 13 Judges of the Supreme Court was constituted. After detailed and prolonged hearing 11 judgments were pronounced and the summary of those judgments was signed by 9 Judges. The Supreme Court by majority view also held that Article 368 does not enable Parliament to alter basic structure or frame work of the Constitution. The Supreme Court, however, held that some part of 24th amendment was valid and that the Parliament has the power to amend any part of the Constitution even Article 368 (power to amend) and Article 13 protection of fundamental rights  abridge the fundamental rights short of taking them away, but cannot change its basic frame.

Amongst the authors of various judgments, all well reasoned, the significant ones being mentioned here are those of S.M.Sikri, CJ who held “It seems also to have been a common understanding that the fundamental features of the Constitution, namely, secularism, democracy and the freedom of the individual would always subsist in the welfare State. In view of the above reasons, a necessary implication arises that there are implied limitations on the power of Parliament and that the expression “amendment of this Constitution” has consequently a limited meaning in our Constitution. The expression “amendment of this Constitution” in Article 368 means any addition or change in any of the provisions of the Constitution within the broad contours of the Preamble and the Constitution to carry out the objectives in the Preamble and the Directive Principles, Applied to fundamental rights, it would mean that while fundamental rights cannot be abrogated, reasonable abridgments of fundamental rights can be effected in the public interest. This meaning would enable Parliament to adjust fundamental rights in order to secure what the Directive Principles direct to be accomplished, while maintaining the freedom and dignity of every citizen. The true position is 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 basic structure may be said to consist of the following features:
(1) Supremacy of the Constitution;
(2) Republican and Democratic form of Government;
(3) Secular character of the Constitution;
(4) Separation of powers between the legislature, the executive and the judiciary;
(5) Federal character of the Constitution.

Justice H.R.Khanna did  not concede in his judgments to the attempts of the Government to abridge or abrogate fundamental rights, and who later on had to suffer superceding when his elevation as Chief Justice of India was due. He held that “Amendment of the Constitution necessarily contemplates that the Constitution has not to be abrogated but only changes have to be made in it. 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 alterations. As a result of the amendment, the old constitution cannot be destroyed and done away with; it is retained though in the amended form. 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 frame-work of the Constitution. It would not be competent under the garb of amendment, for instance to change the democratic government into dictatorship or hereditary monarchy nor would it be permissible to abolish the Lok Sabha and the Rajya Sabha…..”.

After the Kesavananda’s case the doctrine of Basic Structure has been described in various ways. one that has saved the people, the democracy and the Indian polity. In M.Nagraj (ibid) the Supreme Court has said “one has to apply the test of over arching principle to be gathered from the scheme and the placement and the structure of an Article in the Constitution. For example placement of Article 14 (equality before law) in the equality code, the placement of Article 19 (protection of certain rights regarding freedom of speech etc.) in the freedom code; placement of Article 32 (Right to approach the Supreme Court for enforcement of Fundamental rights) in the code giving access to the Supreme Court. Therefore, the theory of Basic Structure is the only theory by which the amendment to the Constitution is to be judged.

In I.R.Coelho Vs State of Tamil Nadu AIR 2007-SC-861 the Supreme Court has ellaborated the concept “fundamental rights are those rights of citizens or those negative obligation of the State which do not permit encroachment of individual liberties.

If the doctrine of basic structure provides a touch stone to test the amending power or its exercise, there can be no doubt and it has to be accepted that Part III of the Constitution (Fundamental Rights) has a key role to play in the application of the said doctrine.

The framers of the Constitution have build a wall around certain parts of fundamental rights which has to remain for ever, limiting  the ability of majority to intrude upon . That wall is the basic structure.”

The doctorine was challenged in the Supreme Court as vague. The petition was entertained. A still larger Bench of 15 Judges of the Supreme Court was constituted which was dissolved in between hearings. The question could not be decided. The doctrine holds good and holds the reigns of power.

[Joginder Singh Tooris a practicing advocate at the Punjab and Haryana High Court, jogindersingh_toor@yahoo.com  91-98151-33530]

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