BASIC STRUCTURE OF CONSTITUTION: MYTH OR REALITY

Abstract

The doctrine of the basic structure puts a limitation on the amending powers of the Parliament to guarantee that the significant character of the Constitution, which is given by the founding fathers of the Constitution never blurs away. This doctrine puts a brake on the unconstitutional Constitutional amendments game of the Parliament.  It preserves the sanctity and utility of the constitution. This article presents a bird’s eye view, whether the basic structure of the constitution was a myth or reality because every judge has a separate notion about the basic structure of the constitution and gives the impression of uncertainty. This doctrine has anti- majoritarian flavour as it prohibits Parliament from using its majoritarian power.

Introduction

Basic structure of the constitution means structural pillars on which the Constitution of India rests and if these structural pillars are demolished the entire constitutional framework will crumble. Constitution is like a machine if there is no limit to the Parliament’s amending power, it is just like when the parliament has no option they will amend the constitution. Judiciary put forward the concept of “implied limitations” in the form of basic structure. There is no legitimate definition for the term “basic structure.”The concept of basic structure was first propounded in Sajjan Singh Case[1] by Justice Mudholkar in reference to the decision given by Supreme Court of Pakistan in 1963[2] and it was held that the President of Pakistan did not have power to alter the ‘basic or fundamental features of the constitution’.

Perspective Under Indian Law and International Law

The doctrine of the basic structure is the systematic rules, principles underlying and connecting provisions of the constitution. It provides durability and coherence to the Constitution. The basic structure of the Constitution is an indefinite and elastic concept.

The Constitution entrusts the power to the judiciary to adjudicate upon the constitutional validity of all laws made by the Parliament or State Legislature.  If a law made by Parliament or the state legislatures violates any feature of the Constitution, the Supreme Court has the power to declare such a law invalid or ultra vires. Parliament was bestowed with the power to amend the Constitution under Article 368 of the Constitution which gives the impression that Parliament’s amending powers are absolute[3] and encompass all parts of the Constitution. But the Supreme Court has acted as a halt to the legislative enthusiasm of Parliament ever since independence. The apex court has put a break on the amending powers of the Parliament. With the intention of protecting or safeguard the original ideals enshrined by the constitution-makers, the Supreme Court  proclaimed that Parliament could not distort, change, damage or alter the basic features of the Constitution under the plea of amending it[4].

Under international law, basic structure theory is considered as inviolable core of the constitution. Countries don’t have specific list of what constitutes the basic structure. Whether or not a provision is part of the basic structure varies from country to country, depending on each country’s peculiar circumstances, including its history, preamble of the constitution, Directive principles of State policy etc. For example:  In the South African case of Executive Council of Western Cape Legislature v. The President of the Republic of South Africa & others, it was held that there are certain basic features of parliamentary democracy which are not stated in the Constitution but which are inherent in its nature, design and purpose and even if parliament followed the necessary amendment procedures it could not alter them. Thus, under International law, the position of basic structure doctrine is somewhat similar to India.

In a laymen’s point of view,  Basic structure of constitution give rise to uncertainty, as it implies that there is no definite yard-stick to decide whether a specific provision is part of the Basic Structure or not. Such an uncertainty leads to wide discretionary powers of the Judge who is to decide regarding whether the provision being a part of the basic structure or not[5]. Consequently, the principle becomes ultra vires and subsequently, void and uncertain. So it would infer that the Doctrine of the Basic Structure is a myth created by the Supreme Court.

But when we closely observe the doctrine and the case laws decided by the Supreme Court it shows that there is more to it than just what first meets the eye. When we look at the Basic Structure of the constitution, we don’t speak of the Articles of the Constitution or its provisions, but the principles which they enshrine. The basic structure was not expressly stated despite being the significant principle of constitutional law and that made the doctrine myth. If the particular concept of law was not rigidly defined, it does not cease to be a concept of law. Principles of natural justice are also not expressly defined in the constitution still they are essential concept of law.

 The doctrine is a reality because “If the historical background, the preamble, the entire scheme of the constitution and the relevant provisions thereof including Article 368 are kept in mind then there can be no difficulty in deciding the elements of the basic structure of the constitution[6]. The ultimate purpose of the Constitution is conservation of utility, sanctity, dignity of the individual and integrity of the nation[7] and if any principle violates the purpose of constitution, ultimately it goes against the basic structure doctrine.

Summary of Leading Cases

Shankari Prasad Case[8] (1951 : In this case, the SC argued that the Parliament’s power of amending the Constitution under Article 368 included the power to amend the Fundamental Rights guaranteed under Part III.

Golaknath case[9] (1967): In this case, the court reversed its order and held that the Parliament cannot amend Fundamental rights because of restriction imposed under Article 13. It is also stated that Article 368 gives the procedure to amend the Constitution but does not confer on Parliament the power to amend the Constitution.

Keshavananda Bharati case[10] (1973)

  • This case gives certain parameters to decide what consists of the basic structure of the constitution like supremacy of law, secularism, sovereignty, democratic, republic, Article 32 and 226 etc.
  •  The SC held that although no part of the Constitution, was beyond the Parliament’s amending power, the “basic structure of the Constitution could not be override even by a constitutional amendment.” and judiciary has power to struck down the amendment if it goes against the basic features of the constitution.
  • The judgement implied that the parliament can only amend the constitution and not modify it. The power to amend is not a power to destroy.

.

Conclusion

 It can be concluded that the basic structure is not a myth but a reality. Different judges have different notion regarding to theory of basis structure but they have similar view that parliament has no power to destroy, alter, or emasculate the ‘basic structure’ or framework of the constitution. There is no clear cut list of basic features, the reason may be that judiciary is afraid of legislature, that if they provide a list then the Legislature may find other way to amend the constitution[11] The doctrine of basic structure seeks to invalidate any attempt to change the Constitution in a ‘negative’ way and hence, preserve the sanctity of the Constitution. This doctrine highlights that Parliament is not an official liquidator of the Constitution and keeps the Parliament from the abuse of Article 368. The basic structure doctrine gives momentum to the living principles of the constitution and connotes that none is above the constitution and constitution is supreme.

References


[1] Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.

[2] https://lawcutor.com/2020/10/22/analysis-of-doctrine-of-basic-structure/.

[3] India Constitution. Article. 368, cl. 2.

[4]constitutionnet.org/vl/item/basic-structure-indian-constitution.

[5] http://www.legalservicesindia.com/article/309/Basic-Structure-of-Constitution—Myth-or-Reality.

[6] http://www.legalserviceindia.com/articles/thyg.htm.

[7] http://www.legalserviceindia.com/legal/article-254-the-doctrine-of-basic-structure-of-the-indian-constitution-a-critique.

[8] Sankari Prasad Singh v. Union of India, AIR 1951SC 458.

[9] Golak Nath v State of Punjab, (1967) 2 SCR 762: AIR 1967.

[10] Kesavananda Bharati v. State of Kerala, AIR 1973SC 1461.

[11]http://www.researchgate.net/publication/320930718_The_Doctrine_of_’Basic_Structure’_of_the_Indian_Constitution_A_Critique

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