The Basic Structure Doctrine

Held. The Twenty-fourth Amendment was valid, so Parliament may amend any part of the Constitution including Part III, and Golak Nath was overruled to that extent; but that the amending power under article 368 does not extend to altering the basic structure or framework of the Constitution. The Twenty-ninth Amendment was upheld, article 31B being a constitutional device to place specified statutes beyond attack on the ground of inconsistency with Part III. On article 31C, the first part was upheld and the second part, which barred any court from inquiring whether a law in fact gave effect to the policy in article 39(b) or (c), was struck down, because a conclusive legislative declaration would have removed judicial review.

The margin and the mechanics are worth knowing. Thirteen judges heard the case over sixty-eight days; eleven separate opinions were delivered; the majority on the basic structure was seven to six; and the operative conclusions were recorded in a signed statement to which nine judges subscribed.

Why it matters is that it is the single most consequential decision in Indian constitutional law. It preserved the amending power that Golak Nath had denied, and it supplied a limit that Sankari Prasad and Sajjan Singh had not.

What is in the basic structure

There is no exhaustive list, deliberately. Sikri C.J. and other judges gave illustrative enumerations and the Court has added to them since. What follows is what the judgments and later cases have actually held.

From Kesavananda itself: the supremacy of the Constitution; the republican and democratic form of government; the secular character of the Constitution; the separation of powers between the legislature, the executive and the judiciary; the federal character of the Constitution; the sovereignty and territorial integrity of India; the dignity of the individual secured by the fundamental rights; the mandate to build a welfare State contained in the Directive Principles; the unity and integrity of the nation; and the parliamentary system of government.

Added by later decisions, each of which is worked in [Basic Structure After Kesavananda]: the rule of law and free and fair elections (Indira Nehru Gandhi); the limited nature of the amending power itself and the harmony between Parts III and IV (Minerva Mills); judicial review by the High Courts under article 226 and the Supreme Court under article 32 (L. Chandra Kumar); the power of judicial review over Ninth Schedule laws by the rights test (I.R. Coelho); and secularism as an operative standard (S.R. Bommai).

What is NOT basic is equally examinable. A particular article is not basic merely because it is important. The Court has repeatedly said the test is whether the identity of the Constitution is altered, not whether a valued provision is changed.

A worked example

Parliament passes an amendment providing that the President shall hold office for life, that no election shall be held for the office, and that the amendment shall not be called in question in any court. It is passed by the special majority and ratified by twenty States. Analyse it.

The procedure is faultless, and the answer must start by conceding that. Article 54 and article 55 are in the proviso to article 368(2), and ratification by more than half the States has been obtained. A candidate who answers "it was not properly passed" has misread the question.

The first feature damaged is the republican form of government. A head of State holding office for life without election is not the republic the Preamble names and Kesavananda identified as basic.

The second is free and fair elections, which Indira Nehru Gandhi added to the list.

The third is judicial review, because the ouster clause removes the courts, and L. Chandra Kumar holds review under articles 32 and 226 to be basic.

And the fourth is the limited nature of the amending power itself, because an amendment that cannot be examined has converted a limited power into an unlimited one, which Minerva Mills forbids.

Note the structure of the answer. Concede the procedure, identify the features one by one, name the case for each, and conclude. That is the shape MU's 2016 stem is asking for.

The correction MU's stem needs

The doctrine was made for amendments, and that is where it has full force. An amendment damaging a basic feature is void however correctly it was passed.

For ordinary legislation the position is different and narrower. An ordinary statute is already subject to the whole Constitution: it must be within the legislature's competence and must not contravene Part III or any other provision. The Supreme Court has said that an ordinary law cannot be struck down merely for offending the basic structure in the abstract, because the basic structure doctrine is a limit on constituent power, and the challenge to an ordinary law must be located in a specific provision.

There is one important qualification, which is what makes the stem defensible. Where a basic feature is also embodied in a specific article, a statute violating that article is void, and the fact that the feature is basic strengthens the reading of the article. I.R. Coelho takes this further for Ninth Schedule laws: their validity is tested by the rights test, that is, by their actual effect on Part III rights.

For executive action the doctrine operates through article 14. An executive act contrary to the rule of law or to secularism is struck down as arbitrary or as unconstitutional under the relevant article, and S.R. Bommai shows a Proclamation being reviewed on the secularism ground.

Distinctions

What it does NOT mean

It does not mean Part III cannot be amended. Kesavananda expressly overruled Golak Nath on that point. Part III may be amended; what may not be done is to destroy a basic feature by doing so.

It does not mean every important provision is basic. The test is whether the identity of the Constitution is altered.

It does not mean the doctrine has no critics. The standard objections are that the Constitution nowhere authorises it, that "basic structure" has no fixed content, and that it transfers to unelected judges the final say over constitutional change. An answer that states these objections and then explains why the Court thought the alternative worse is a better answer than one that does not.

And it does not mean the doctrine is a general licence. It has been invoked far more often than it has succeeded, and the Court has upheld the great majority of the amendments challenged before it.

Quick revision

Kesavananda Bharati, 24 April 1973, thirteen judges, seven to six: Parliament may amend any part of the Constitution including Part III, overruling Golak Nath, but the amending power under article 368 does not extend to altering the basic structure or framework. Reasoning: article 368 is a conferred power; a power to amend is not a power to abrogate; the Constitution has a structure; an amendment damaging it is not an exercise of the power. The Twenty-ninth Amendment was upheld; the second part of article 31C, barring inquiry into whether a law gave effect to article 39(b) or (c), was struck down. Features named as basic include supremacy of the Constitution, republican and democratic government, secularism, separation of powers, federalism, sovereignty and territorial integrity, the dignity of the individual, the welfare-State mandate of Part IV, and the parliamentary system. There is no closed list. For ordinary legislation the doctrine is not a free-standing ground; the challenge must be located in a provision, though I.R. Coelho applies the rights test to Ninth Schedule laws. For executive action it operates through article 14 and the relevant article, as in S.R. Bommai.

Test yourself

1. State the holding of Kesavananda Bharati in one sentence. That Parliament may amend any provision of the Constitution including Part III, but the amending power under article 368 does not extend to altering the basic structure or framework of the Constitution.

2. Set out the four steps of the reasoning. Article 368 is a conferred power; a power to amend is not a power to abrogate; the Constitution has a basic structure that gives it its identity; and an amendment damaging that structure is therefore outside the power altogether.

3. Why could the Twenty-fourth Amendment not defeat the doctrine? Because the doctrine does not depend on article 13. Parliament removed the textual argument that an amendment is "law", and the Court reasoned instead from the nature of a conferred power, which cannot be enlarged by exercising it.

4. Name six features held to be basic and a case for two of them. Supremacy of the Constitution, republican and democratic government, secularism, separation of powers, federalism and judicial review. Secularism as an operative standard: S.R. Bommai. Judicial review under articles 32 and 226: L. Chandra Kumar.

5. Is an ordinary statute void merely because it offends the basic structure? Not by itself. An ordinary law is already subject to competence and to every provision of the Constitution, so the challenge must be located in a specific provision; the basic structure doctrine is a limit on constituent power. I.R. Coelho qualifies this for Ninth Schedule laws by applying the rights test.

6. State two criticisms of the doctrine and the answer to them. That it has no textual basis and that "basic structure" has no fixed content, so it transfers final authority to unelected judges. The answer is that the alternative, an unlimited amending power, would allow a temporary two-thirds majority to replace the Constitution altogether, and that the Court has in practice upheld most amendments challenged before it.