The Parliament and the State Legislatures have the power to make laws within their jurisdiction as provided by the Constitution of India. The Bills are introduced in the Parliament to amend the laws or the Constitution. But the power given to the Parliament is not absolute as there is an interference of the Supreme Court.
If the Supreme Court finds that the law is inconsistent with the constitution than it has the power to declare that law invalid. In order to preserve and protect the ideals and philosophy of the original constitution, the Supreme Court has laid down the doctrine of basic structure. According to this doctrine, Parliament cannot destroy or even alter the basic structure of the doctrine. Under Article 368 of the constitution, the Parliament has the power to amend the constitution but there are some restrictions too.
Evolution of basic structure
The concept of ‘Basic Structure’ has been developed by the judiciary with the interference from time to time to protect the basic rights and the ideals of the constitution.
In Shankari Prasad v. Union of India, 1 case the First ConstitutionalAmendment, 1951 was challenged on the grounds that it violates the Part III (Fundamental Rights) of the constitution. The Supreme Court held that the Parliament has the power to amend any part of the Constitution under Article 368. Similar was held in Sajjan Singh v. State of Rajasthan .2In Golaknath v. State of Punjab 3 case, the SC held that the Parliament cannot amend the Part III of the Constitution.
In 1971, 24th Constitutional Amendment was passed, which gave absolute power to the Parliament to amend the constitution including Fundamental Rights. In Kesavananda Bharti v. State of Kerala 4 case the validity of Constitutional 24th, 25th & 29th Amendment Acts were challenged, is popularly known as Fundamental Rights case. The Court by majority overruled the Golakh Nath’s case and held that the 24th Amendment does not enlarge the amending power of the Parliament. It only declares the true legal position and held that under Article 368 Parliament does not have the power to amend the basic structure or framework of the Constitution. It held that the first part of the 25th Amendment is valid but held that the second part is invalid.
The six Judges ( Sikri, CJ, Shelat, Grover, Hegde, Reddy and Mukherjee, JJ.) has held that there are inherent limitations on the amending power of Parliament and Article 368 does not confer power to amend the Constitution so as to destroy the essential elements of the basic features of the Constitution. The essential of the basic structure are as follows:
- Supremacy of the Constitution
- Democratic and Republican form of government
- Separation of Powers between the Legislature, the Judiciary and the Executive.
- Secular and Federal Character of the Constitution.
- Unity and Integrity of the Nation.
In M. Nagraj v. Union of India, 5 The 5 Judges of SC has explained the basic structure theory in detail. Basic structures are systematic principles which are underlying and connecting provisions of the Constitution. These principles are the part of the Constitutional law even if not expressly stated. This doctrine has been developed from the German Constitution and is not based on literal words. The basis of the Theory of basic structure is the concept of Constitutional Identity.
In Indira Nehru Gandhi v. Raj Narain 6 case, the SC has struck down clause 4 of Article 329-A which was inserted by the 39th Amendment, 1975 because it was beyond the amendment power of the Parliament to amend as it destroyed the basic feature of the Constitution. Chandrachud, J., struck down clause 4 and 5 as unconstitutional as they were outright negotiation of the Article 14 of the Constitution. He also held that these provisions were arbitrary and were calculated to destroy the Rule of Law. Thus, the SC has added the following basic features in the previous list:
- Rule of law.
- Judicial Review.
- Democracy which implies free and Fair Election.
It has also been held that Jurisdiction of SC under Article 32 is the basic feature of the Constitution.
In Minerva Mills v. Union of India 7 case the SC by 4:1 majority has struck down Section 55 of the 42nd Amendment Act which has inserted the clause 4 and 5 of Article 368 on the grounds that these clauses were destructive of the basic feature of the Constitution. The Court also held that the doctrine of basic structure is to be applied only in judging the validity of amendments to the Constitution and it does not apply for judging the validity of ordinary laws made by the Legislature.
The SC also held that these are the basic features of the Constitution:
- Limiting the power of the Parliament to amend the Constitution;
- Balance and harmony DPSP and Fundamental Rights;
- Power of Judicial review in certain cases;
- Fundamental rights in certain cases.
The Rule of Law was also added to the basic features. 8 In the very leading case of S.R. Bommai v. Union of India 9 case, the Supreme Court has added the federal structure, unity and integrity of India, secularism, socialism, social justice and judicial review in the basic structure.
In Waman Rao v. Union of India, 10 The SC held that all the amendments which were made before the date of the judgement of Kesavananda Bharti case, including those by which Ninth Schedule of the Constitution was amended from time to time are valid and constitutional and the amendments made after this case were left open to challenge on the grounds because they damaged the basic structure and they are beyond the Constituent power of Parliament.
Judicial review is similar to a court proceeding in which a judge reviews the lawfulness or legality of a decision or an action made by the public body. Judicial review is recognized as a necessary and basic requirement in order to safeguard the liberty and the rights of the individuals. The power of the judicial review is vested upon the High Courts and the Supreme Court under Article 13 and 137 of the Constitution.
The compulsion of judicial review was described in fundamental rights in part III under the Article 13 of the constitution. The judicial review is available when there is no effective means of challenge. As the Judiciary is the guardian of the constitution therefore it is under its purview to check the inconsistency of the actions with the constitution.
The motive behind the judicial review is whether the law has been correctly applied and the right procedures have been followed. The main motive behind the judicial review is to protect the rights of the public and implement the fundamental rights. Judicial review works as a protector when the three organs of the government harms the constitutional values and deny the rights. Due to the democratic form of government, every section of the people is involved in decision making and policymaking process.
In R. Coelho v. State of Tamil Nadu 11 case, This case seemed to be similar as Kesavananda Bharti case, Chandra Kumar v. Union of India & Ors. (1997), Waman Rao & Ors. v. Union of India and Others (1981), Minerva Mills Limited & Ors. v. Union of India (1980), Indira Nehru Gandhi v. Raj Narain (1975), where the judicial review was considered as an essential and integral part of the Constitution of India.
In Mithu v. State of Punjab 12 case, The Supreme Court has struck down Section 303 of the Indian Penal Code, 1860 on the grounds of the violation of Article 21 guaranteed as a Fundamental Right in the Indian Constitution. Section 303 made the death sentence mandatory for every accused person.
The Doctrine of Basic Structure is laid down by the Supreme Court to protect and preserve the ideals of the constitution. Guarantee of the fundamental rights is meaningless unless the Court has the power to protect it from the arbitrariness and its violation. One can approach directly to the High Court and Supreme Court under Article 226 and Article 32 of the Constitution for the redressal. Judiciary plays a vital role in protecting the constitutionality of the laws and the actions made by the government. This protection and checking by the judiciary is termed as ‘judicial review’. There are various cases in which due to the judicial review the violation of fundamental rights have been stopped and the laws are made invalid or unconstitutional e.g. In case of Mithu v. State of Punjab, Section 303 of the Indian Penal Code is held invalid due to the judicial review power in the hands of the judiciary. So, Parliament does not have the absolute power to amend or alter the laws and if the power becomes arbitrary the judiciary plays an important role as ‘Judicial Review’.
“The views of the authors are personal“
- AIR 1951 SC 458
- AIR 1965 SC 845
- AIR 1967 SC 1643
- AIR 1973 SC 1461
- AIR 2007 SC 71
- AIR 1975 SC 2299
- AIR 1980 SC 1789
- Indira Sawhney v. Union of India, AIR 1993 SC 477
- AIR 1994 SC 1918
- AIR 1981 SC 271
- AIR 2007 SC 861
- AIR 1983 SC 473