We have previously talked about how the constitution serves as a dynamic document designed to address the evolving needs of society and adapt to changing times. However, it is also essential to consider and uphold the foundational values of the constitution that shape its identity. The concept of the basic structure was introduced specifically to safeguard this essential identity of our constitution.

What is the Basic Structure of constitution?

• Origin: The doctrine of basic structure originated in the judgement of the Supreme Court in the famous Kesavananda Bharati case, 1973.
• Explanation: 
  • The Supreme Court has yet to define the doctrine of basic structure in clear terms. 
  • Chief Justice of India D. Y. Chandrachud described it as “The basic structure of our constitution, like the north star, guides and provides direction to those who interpret and implement the Constitution when the path ahead becomes complex.”.
  • The doctrine is nowhere mentioned in the constitution. 
  • It basically connotes that there are certain basic principles or characteristics of the constitution which cannot be altered by the parliament even using its amendment powers under article 368.

Evolution of basic structure doctrine

The doctrine of basic structure emerged through a series of Supreme Court judgments focused on the interpretation of the amendment powers granted to Parliament by the constitution. These Supreme Court rulings are detailed below:

Shankari Prasad case, 1951

• Background: The Constitution (1st Amendment) Act, 1951 added articles 31A and 31B to the constitution. This amendment was contested on the grounds that it infringed on the fundamental rights outlined in part III of the constitution.
• Overview of ruling: The Supreme Court determined that the amendment powers of Parliament encompass the amendment of fundamental rights as well. 
• Implications: This ruling indicated that the definition of law under article 13 pertains only to regular laws and excludes constitutional amendments. It implied that Parliament possesses unrestricted authority to amend the constitution.

Sajjan Singh Case, 1964

• Overview of ruling: 
  • The Supreme Court reaffirmed its position from the Shankari Prasad case. 
  • It held that there is no limitation placed by the constitution upon the amendment powers of the parliament. 
  • The constitutional powers of Parliament differ from its ordinary legislative authority, and constitutional amendment acts are not included in the law definition under article 13 of the constitution.

Golaknath Case, 1967

• Background: The Constitution (17th Amendment) Act, 1964 added certain laws in the ninth schedule of the constitution to protect their constitutional validity. This amendment was disputed on the grounds that it contravened the fundamental rights contained in part III of the constitution.
• Overview of ruling: 
  • The 11-judges bench of the Supreme Court overruled its earlier judgments in the Shankari Prasad case and Sajjan Singh case. 
  • The Supreme Court ruled that the fundamental rights enshrined in the constitution are inherent and unchanging. The constituent powers of the parliament were similar to the ordinary law making powers. That’s why the constitution amendment acts are also a part of the definition of law mentioned in the article 13.
• Implications: This decision significantly limited the amendment powers of Parliament.

Kesavananda Bharati Case, 1973

• Background: The Constitution (24th Amendment) Act, 1971 was passed by the parliament to overcome the supreme court judgement in the Golaknath case. This amendment, along with other matters such as the 25th amendment and restrictions on fundamental rights, was challenged in the supreme court.
• Overview of ruling: 
  • The 13-judges bench of the Supreme Court overruled its judgement in the Golaknath case. 
  • The Supreme Court established that constitutional amendment acts do not constitute part of the law as defined under article 13. 
  • It also confirmed that Parliament can amend any section of the constitution, including fundamental rights, as granted by article 368. However, Parliament is not permitted to alter the ‘basic structure’ of the constitution.
• Implications: The SC created a boundary or limitations on amendment powers of the parliament under article 368. Following this judgment, it became evident that Parliament’s amendment powers are restricted, and the essential characteristics of the constitution, which form its identity, cannot be altered by any state institution.

Provisions of the Basic Structure Doctrine

The supreme court in its judgement in Kesavananda Bharati case listed some provisions that forms part of the basic structure. The SC, in subsequent cases, included various provisions as a part of the basic structure. So, the provisions that form part of basic structure are still evolving and it is up to the wisdom of the Supreme court to interpret a particular provision of the constitution as a part of basic structure.

Listed below are several provisions that are included in the basic structure:

• Supremacy of the Constitution
• Rule of law
• Separation of powers between the legislature, the executive and the judiciary
• Republic and democratic form of government
• Secular character of the constitution
• Federal character of the constitution
• Sovereignty and unity of India
• Freedom and dignity of the individual
• Mandate to build a welfare state
• Parliamentary System
• Independence of judiciary
• Judicial review
• Limited power of Parliament to amend the constitution

The supreme court has reiterated the basic structure doctrine in various cases such as Minerva Mills Case 1980, Waman Rao Case 1981, S. R. Bommai Case 1994, NJAC Case 2015, etc.

Significance of the basic structure doctrine

• Constitutionalism: The basic structure doctrine serves as a safeguard for the principle of constitutionalism, aiming to protect the core essence of the constitution from being undermined by the overwhelming power of the ruling majority.
• Sustaining democracy: The basic structure doctrine saved Indian democracy as it acts as a limitation on the constituent power of the parliament. Unlimited power of parliament might have paved the way for totalitarian and authoritarian regimes.
• Protecting original identity: The basic structure doctrine has helped us to retain the basic tenets and principles of our constitution, framed meticulously by the founding fathers of our Constitution. E.g. democratic and republic nature of our polity.
• Strengthening democracy: It strengthens our democracy by delineating a true separation of power where Judiciary is independent of other two organs. Using the basic structure doctrine, the SC has been effectively performing its role as protector and guarantor of fundamental rights.
• Progressive: Being dynamic in nature, basic structure doctrine is more progressive and open to changes that might happen with changing needs of the society.
• Constitutional morality: The basic structure doctrine protects and perpetuates the principle of constitutional morality as it helps us follow the constitution in its letter and spirit.

Criticism of basic structure doctrine

• Judicial absolutism: The basic structure doctrine gives the Judges the power to decide whether a specific provision is part of the Basic Structure or not. Hence, it accords the judiciary with the power to impose its philosophy over a democratically formed government.
• Vague and ambiguous: The SC has not defined the basic structure.The SC has not provided any list of provisions that constitutes basic structure. It is left to the wisdom of the judiciary to decide on what all is to be included in the basic structure. 
• Tyranny of the unelected: The government of the day reflects the will of the general populace. But the powers of the elected government are limited to a great extent by the doctrine of basic structure invented by the judges who were not elected by the people.
• Different interpretations: There have been instances where judges themselves were not on the same page on whether a particular provision forms a part of the basic structure or not. E.g. In the Indira Gandhi case, the then CJI A. N. Ray did not find it possible to include ‘free and fair elections’ as a part of basic structure. Whereas, his colleague Justice Khanna found this principle to be an element of basic structure.
• Extra-constitutional veto: The basic structure doctrine has given the virtual veto powers to the supreme court in relation to constitutional amendment acts. Such powers have made the Indian judiciary more powerful than other organs of the state and have disturbed the equation of balance of powers between the three organs of the state.

The basic structure doctrine will complete its 50th anniversary this year. Despite the criticism of the doctrine, it has contributed immensely to the philosophy of constitutionalism and constitutional morality. But at the same time, it is also important that the powers of every organ of the state should be balanced. 

In this regard, the Vice-President of India, Jagdeep Dhankar, stated during the 83rd All India Presiding Officers Conference that, “Democracy thrives and flourishes when the legislature, judiciary, and executive collaborate effectively to achieve constitutional objectives and fulfill the aspirations of the populace. The judiciary cannot create laws just as the legislature cannot write judicial judgments.”