The Doctrine of 'Basic Structure' of the Indian Constitution: A Critique

Abstract

The ‘Doctrine of Basic Structure’ is a judge-made doctrine which was propounded by the Indian Judiciary on 24th April 1973 in Keshavananda Bharati Sripadagalvaru case to put a limitation on the amending powers of the Parliament so that the ‘basic structure of the basic law of the land’ cannot be amended in exercise of its ‘constituent power’ under the Constitution. Though attempt was first made in the year 1967 in Golakh Nath case by M. K. Nambyar to get it approved in the name of ‘necessary implied restraint on the amending power of the Parliament’ but it took almost half decade for the Indian judiciary to overcome its hesitancy and pronounce it in Keshavananda case the same thing what German Professor Dietrich Conrad already said in his lecture that he delivered in India in 1965. The Constitution-makers gave the power to amend the Constitution of India in the hands of the Parliament so as to cope up with the changing needs and demands of ‘we the people’ under Article 368 and to make the Constitution 'stand amended' but the Parliament in exercise of its constituent power under Article 368 of the Indian Constitution can amend any of the provisions of the Constitution and this power empowers the Parliament to amend even Article 368 itself which might led the Constitution of India opposite of 'stand amended' i.e., 'sit amended'. Such unlimited power of amendment in the hand of Parliament without defined limit raises number of questions like, is not there any limitation on the amending powers of the Parliament? If the answer of this question is not in affirmative with a reason that the Constitution makers did not intended for such limitation otherwise they would have provided for such limitations in the Constitution, then another question arises to what extent can the Parliament amend the basic law of the land? And if there will be no limitation on the amending power of the Parliament, are there not chances that this power of amendment in the name of ‘constituent power’ can be abused? Such raised propositions in this paper are covered and discussed under various Parts. Part II covers the constitutional concept of the ‘Basic Structure’ doctrine. The judicial journey and development of the ‘Basic Structure’ doctrine has been covered from Shankari Prasad v. Union of India (1951) in Part III, Sajjan Singh v. State of Rajasthan(1965) in Part IV, I. C. Golakhnath v. State of Punjab (1967) in Part V and finally the Keshavananda Bharati v. State of Kerala (1973) in Part VI. The constitutional-unconstitutional game that Parliament played in the name of Ninth Schedule of the Constitution has been covered in Part VII where the Hon’ble Supreme Court applied the doctrine of 24th April 1973 in the I. R. Coelho case (2007). Part VIII deals with the Pramati Educational and Cultural Trust case (2014) where the Supreme Court applied the Basic Structure doctrine and declared that Articles 15(5) and 21-A of the Indian Constitution are in consonance with the spirit of the doctrine and are not violative of the Basic Structure doctrine. Part IX covers the test of Basic Structure doctrine with the recapitulating words in Part X.

Indeed, there is a Presumption of Constitutionality when the questions arises as to the validity or the constitutionality of any particular provision or provisions of the Constitution which has to be proved beyond all reasonable doubt by the person challenging the said provision or the constitutional notion. In this regard, another question on the same footing of John Rawl’s theory of basic structure of the society arises here that this paper seeks to answer through judicial pronouncements, is the basic structure basic?

Keywords: Basic Structure, Basic Law, Amendment, Ninth Schedule, Fundamental Rights, sit amended, Keshavananda Bharati, Indian Judiciary, Amending Power, Test, anti-majoritarian

JEL Classification: K, K00