Basic features of the Constitution

Doctrine of Basic Structure

The Doctrine of Basic Structure or Basic features of the Constitution was propounded by the Supreme Court while delivering Judgment on Kesavananda Bharati vs State of Kerala case in 1973 . Originally the Case was filed by Kesavananda Bharati in 1970 questioning the Validity of Land Reforms Act or 1963 of State of Kerala. In fact Kerala Govt wanted to acquire the Lands to the extent of 500 Acres in possession of the Matt for which Kesavananda Bharati was the Pontiff.

In its judgment Supreme court envisaged that Preamble and Fundamental rights of the Constitution constitute basic structure of the Constitution. And Parliament cannot destroy the Basic structure of the Constitution by way of Amendment. Supreme Court held that the word ‘amendment’ in Article 368 does not mean that it gave the Parliament absolute right to abrogate or destroy the pivotal features of the Constitution. This Decision was taken by a Bench of 13 Judges. Thus, by defining the Basic Structure of the Constitution, the Decision of the Supreme court became a landmark judgment in the history of Indian constitution and of the Supreme court of India as well.

This Judgment is a landmark judgment in the history of Indian Republic because it made it clear that the Governments whatever may be their majority in the Parliament have no power to abrogate basic features of the Constitution.

However, it is perplexing to see that even though the Supreme court declared that Fundamental rights cannot be amended or abridged or destroyed by the Parliament in 1973, the Janata Government amended the Fundamental rights section of the Constitution by removing Article 19(1)(f) pertaining to Right to Property in 1978. (However, Article 300A was inserted in the Constitution and made Property rights as Constitutional rights. So now the Property rights are not Fundamental rights but a Constitutional right only.)

H.S. Chauhan And Ors. vs LIC 1982

In this case Justice Tulzapurkar, found that the concept of the right of the property has been given at prime place nowhere in the Constitution . And the Court held that the right to property as contained in Article 31, fundamental right before 44th Amendment was never an essential, basic feature of the basic structure of the Constitution and therefore the parliament was within its competence under Article 368 to delete it by 44th Amendment.

Before this judgment also the Supreme court held that Right to Property was not a Fundamental right in the Constitution.

Vithalrao Udhaorao Uttarwar And … vs The State Of Maharashtra 1976

The Supreme Court held that the right to property is declared as not found to be the basic structure either in the BASIC STRUCTURE CASE or in the ELECTION CASE.

In order to understand the importance of the Judgment of Supreme court on Kesavanand Bharati case we have to get some knowledge of the issue of abolition of Zamindaris in 1951 and the First Amendment to the Constitution and. Indian government under Jawaharlal Nehru, immediately after adopting the Constitution, enacted first Amendment to the Constitution through which Zamindari system was abolished as part of Land reforms exercise. (It must be noted that Sheik Abdulla of Kashmir brought Land Reforms in Kashmir before India did it. And Pakistan has not abolished Zamindari system and Feudal system continues to prevail there even today .)

Judicial Review, Chandra Kumar 1997

BY the way let us know that all this kind of discussions are occurring among us because of the vehement application of the Principle of Judicial Review by the Supreme Court and High Courts at various stages. Judicial Review envisages that the Judiciary has the power to review the Laws brought in/enacted by the Legislatures, either Parliament of the Union or State Assemblies. In L. Chandra Kumar 1997 case a larger Bench of seven Judges of the Supreme Court unequivocally declared, “That the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure”. This judgment gone a step forward and declared that Power of Judiciary to review Legislative actions is one of the Basic features of the Constitution.

And in fact, Keshavananda Bharati lost his case against the State of Kerala. And the Govt took away his Matt’s 500 acres of land. But his case made history because the Supreme court dwelt into the issue of Amending powers of the Parliament with respect to basic features of the Constitution. Originally Kesavanda Bharati contested the Constitutional validity of land reforms act of 1963 of Kerala Government. However, during the course of the arguments of the case he contended the Constitutional validity of the 24th, 25th and 26th Amendments brought in by the then Indira Government in 1971. This discussion lead to the dwelling of Supreme court into larger canvass of the Basic features of the Constitution.

And before going into the Basic features aspects observed by the Supreme court in the case of Kesavananda Bharati it is relevant for us to go through three Supreme Court cases viz., 1. Shankari Prasad case, 2. Sajjana Singh case and 3. Golakhnath case in order to understand the legal position of the SC observations in Kesavananda Bharati case.

Shankari Prasad vs Union of India, 1951

In this case the petitioner Shankari Prasad challenged the Amendment No.1, arguing that it violated the fundamental right to property under Article 19(1)(f) of the Constitution. Supreme Court of India upheld the validity of the First Constitutional Amendment Act, 1951 stating that the amending power of the Parliament was very broad and could be used to alter any part of the Constitution, including fundamental rights.

Sajjan Singh vs State of Rajasthan, 1965

The Supreme Court in this case also held that the Constitution (Seventeenth Amendment) Act, 1964, which amended Articles 31A and 31B and added Acts to the Ninth Schedule, was constitutionally valid. The Court ruled that the power conferred by Article 368 includes the authority to modify or amend the provisions of the Constitution, including the fundamental rights guaranteed by Part III. The Court also dismissed the plea to reconsider the Shankari Prasad case, emphasizing that previous decisions should not be lightly reviewed or departed from without compelling reasons. It was affirmed by the Supreme court that the fundamental rights in Part III were not intended to be immutable and beyond the reach of any future amendment.

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But in the Case of Golakhnath Vs State of Punjab the Supreme court reversed its earlier decisions on Sajjan Singh and Shankar Prasad and set a new trend with respect to powers of the Parliament to amend the constitution. In order to understand the Case of Golakhnath let us read Article 13 and Article 368 of the Constitution first.

Article 368(1)

Article 368(1) of the Indian Constitution says, “Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.”

Article 13 

(Part III of the Constitution contains Articles 12 to 35.)

(1)  All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.

(3) In this article, unless the context otherwise requires,

(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;

(b) “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.

(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.

(Article 13(4) was included through 24th Amendment to the Constitution by Indira Government in 1971. But this Article 13(4) was not struck down by the Supreme court through the Judgment of Kesavananda Bharati case but fettered the Parliament by bringing in Basic features doctrine and excluded Preamble, Fundamental rights, federal structure, democratic form of Government etc., from the Amending powers of the Parliament.)

I.C. Golaknath vs State of Punjab 1967

The judgement reversed Supreme Court’s earlier decisions on Sajjan Singh and Sankari Prasad in which cases the Supreme court upheld Parliament’s power to amend all parts of the Constitution.

And the Supreme Court in this case of Golakhnath, by thin majority of 6:5, held that a constitutional amendment under Article 368 of the Constitution was an ordinary ‘law’ within the meaning of Article 13(3) of the Constitution. The majority believed there was no difference between ordinary legislative power of the parliament and the inherent constituent power of parliament to amend the Constitution. Majority Judges held that Article 368 does not empower the Parliament to Amend all the Constitutional provisions but only gave details of the procedure to Amend. Accordingly, the Article 368 does not give absolute Amending power to the Parliament. And said that the Parliament derives its power to Amend the Constitution from entry 97 of the List I of the VII Schedule to the Constitution.

And the Decision relies its argument from Article 13(2) which states that the parliament could not make any law that abridges the Fundamental Rights contained in Part III of the Constitution. And a constitutional amendment, also being an ordinary law within the meaning of Article 13, could not be in violation of the fundamental rights chapter contained in the Constitution of India. Therefore, all constitutional amendments thus far which were in contravention or which had made an exception to fundamental rights chapter of the Constitution were said to be void.

Supreme Court further held that the extent of land ownership and practice of a profession, in this case, were considered fundamental rights. This Golakhnath decision came in 1965. Accordingly the Supreme court upheld the right to Property as Fundamental right and it cannot be amended or abridged by the Parliament.

(Right to Property was one of the Fundamental Rights of Indian Citizens under Article 19(1)(f) at that time. However, this Article 19(1)(f) was removed through an Amendment to the Constitution by Janata Government in 1978. By the way, Property rights are ensured as Constitutional right by inducting Article 300A in the Constitution not as a Fundamental right.)

Kesavananda Bharati vs State of Kerala 1973

Sri Kesavananda Bharati, pontiff of the Edneer Mutt, challenged Constitutional validity of the Land Reforms Act of Kerala State of 1963 in 1970. The Land Reforms Act placed a limit on the extent of land that a person could hold. And the Act provided for the acquisition of excess land from landowners and thence its distribution to the landless and the poor. Acquisition of Matt’s Lands to the extent of 500 acres by the Government of Kerala through this Act was challenged by Kesavananda Bharati in the Kerala High Court. The case eventually reached the Supreme Court. Kesavananda Bharati argued, along with his lawyer Nani Palkhivala, that this action of State of Kerala violated his fundamental rights, particularly his fundamental right to religion (Article 25), freedom of religious denomination (Article 26), and right to property (Article 31).

It is interesting to note that Sri Kesavananda Bharati lost his case and the lands were taken away by the State of Kerala. But the judgment led the Supreme court to decide about the power of Amendability of Fundamental rights by the Parliament. By the way Supreme Court dwelt into the Basic features of the Constitution and devised the Doctrine of Basic Structure of the Indian Constitution.

Thus, the Kesavananda Bharati case has been hailed as a landmark Judgment in the history of Indian constitutional law as it affirmed the supremacy of the Constitution and the independence of the judiciary and its role in protecting the Constitution.

While the Kesavananda Bharati case was in the process of hearing in Supreme Court the Central Government under Indira Gandhi enacted 24th Amendment to the Constitution in 1971 by inserting Clause 4 in the Article 13 of the Constitution in order to over-ride the Golakhnath decision. In addition, Amendment No. 25 was enacted in 1972 to subvert the Judgment of RC cooper vs Union of India. Through this Right to Property was removed from the list of Fundamental rights. And also, through Amendment No. 26 Privy purses to the erstwhile Rajahs and Nawabs were abolished. All these Laws were enacted in 1971.

The Kesavananda Bharati case was heard by a bench of 13 judges of the Supreme Court of India, making it one of the largest benches in Indian legal history. The bench comprised of Chief Justice S. M. Sikri, Justice J.M.Shelat, Justice K.S. Hegde, Justice A.N.Grover, Justices A.N. Ray, Justice P. Jaganmohan Reddy, Justice D.G. Palekar, Justice H.R. Khanna, Justice K.K. Mathew, Justice M.H. Beg, Justice S.N. Dwivedi, Justice A.K. Mukherjee and Justice Y.V. Chandrachud.

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The bench was set up to hear the case as it involved important constitutional questions regarding the powers of the Parliament to amend the Constitution. The bench took six months to hear the arguments and deliver the final judgment.

The Supreme Court, in a historic 7:6 majority decision, propounded the basic structure doctrine of the Constitution, which holds that certain fundamental features of the Constitution, such as democracy, secularism, federalism, and the rule of law, fundamental rights, preamble cannot be amended by parliament. The court also held that the power of judicial review is an integral part of the basic structure of the Constitution, and cannot be taken away by Parliament through constitutional amendments. Each Judge gave his own interpretation of the Basic structure of the Constitution. And hence it is left to the future individual cases to decide which aspect is actually basic structure of the Constitution.

S.M. Sikri, Chief Justice

CJI S M Sikri held that the fundamental importance of the freedom of the individual has to be preserved for all times to come and that it could not be amended out of existence. According to the Chief Justice, and 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, made in order to carry out the basic objectives of the Constitution. Accordingly, every provision of the Constitution was open to amendment provided the basic foundation or structure of the Constitution was not damaged or destroyed. He suggested the following aspects as basic structure of the Constitution.

  1. Republican and democratic form of government
  2. Secular character of the Constitution
  3. Separation of powers between the legislature, executive and the judiciary
  4. Federal character of the Constitution

Shelat and Grover, JJ

Held that the preamble to the Constitution contains the clue to the fundamentals of the Constitution. According to the learned Judge, Parts III and IV of the Constitution which respectively embody the fundamental rights and the directive principles have to be balanced and harmonised. The word ‘amendment’ occurring in Article 368 must therefore be construed in such a manner as to preserve the power of the Parliament to amend the Constitution, but not so as to result in damaging or destroying the structure and identity of the Constitution. He suggested the following aspects as basic structure of the Constitution.

  1. Unity and integrity of the nation
  2. Sovereignty of the country.
  3. The mandate to build a welfare state contained in the Directive Principles of State Policy

Hegde and Mukherjea, JJ

Held that the Constitution of India which is essentially a social rather than a political document, is founded on a social philosophy and as such has two main features basic and circumstantial. The basic constituent remained constant, the circumstantial was subject to change. According to the learned Judges, the broad contours of the basic elements and the fundamental features of the Constitution are delineated in the preamble and the Parliament has no power to abolish or emasculate those basic elements of fundamental features. He suggested the following aspects as basic structure of the Constitution.

  1. Democratic character of the polity
  2. Unity of the country
  3. Essential features of the individual freedoms secured to the citizens
  4. Mandate to build a welfare State

Jaganmohan Reddy, J

Held that the word ‘amendment’ was used in the sense of permitting a change, in contradistinction to destruction, which the repeal or abrogation brings about. Therefore, the width of the power of amendment could not be enlarged by amending the amending power itself. The learned Judge held that the essential elements of the basic structure of the Constitution are reflected in its preamble and that some of the important features of the Constitution are justice, freedom of expression and equality of status and opportunity. The word ‘amendment’ could not possibly embrace the right to abrogate the pivotal features and the fundamental freedoms and therefore, that part of the basic structure could not be damaged or destroyed. He suggested the following aspects as basic structure of the Constitution.

  1. Sovereign democratic republic
  2. Justice – social, economic and political
  3. Liberty of thought, expression, belief, faith and worship
  4. Equality of status and the opportunity.

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H R Khanna J.

H R Khanna has given in his judgment that the Parliament had full power to amend the Constitution, however, since it is only a ‘power to amend,’ the basic structure or framework of the structure should remain intact. According to the Judge, although it was permissible for the Parliament to effect changes in the exercise of its amending power so as to meet the requirements of changing conditions, it was not permissible to touch the foundation or to alter the basic institutional pattern. Therefore, the words ‘amendment of the Constitution’ in spite of the width of their sweep and in spite of their amplitude, could not have the effect of empowering the Parliament to destroy or abrogate the basic structure or framework of the Constitution.

The Basic Structure concept echoed in the later day decision of the Courts. In the case of Indira Gandhi v. Raj Narayan the Supreme Court applied the theory of basic structure and struck down cl. (4) of article 329-A, which was inserted by the 39th Amendment in 1975 on the ground that it was beyond the amending power of the parliament as it destroyed the ” basic feature” of the constitution.

In Minerva Mills 1980 case the Supreme Court by majority by 4 to 1 majority struck down clauses (4) and (5) of the article 368 inserted by 42nd Amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the constitution. It was ruled by court that a limited amending power itself is a basic feature of the Constitution.

In L. Chandra Kumar 1997 case a larger Bench of seven Judges unequivocally declared “That the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure”.