Basic Structure of the Indian Constitution

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The Constitution of India was adopted on 26 January 1950. The Constituent Assembly took almost 3 years to prepare the Indian Constitution. However, since its coming into force, the Constitution has undergone 106 amendments.

When the Constitution was adopted, the social, economic, and political needs of the nation were different. Over time, societal needs have changed. And accordingly, the Indian Constitution evolved.

Article 13 vs Article 368

Article 13 states that, “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”.

In simple language, it means that the State (read Parliament for ease of understanding) cannot make any law that violates or reduces the Fundamental Rights provided in the Constitution.

Article 368 states that, “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.”

In simple language, it means that the Parliament has the power to change any provision of the Constitution. 

The debate of Article 13 vs Article 368 gained momentum whenever there were important amendments to the Constitution.

Basic Structure Doctrine Cases

1) Shankari Prasad Singh Deo v. Union of India (1951): 

• The First Amendment inserted Article 31A and Article 31B. These Articles were inserted to implement land reforms smoothly.
• Article 31A was meant to save laws (from being challenged under Articles 14, 19, and 31) related to the acquisition of estates, etc., by the State.
• Article 31B added the Ninth Schedule. Acts and regulations placed within the Ninth Schedule were protected from judicial review.
• The petitioners challenged the constitutional validity of the First Amendment Act, arguing that it violated the Fundamental Rights (Article 31 - Right to Property) under Part III of the Constitution.
• The Supreme Court ruled that the Constitution (First Amendment) Act, 1951, is not ultra vires and unconstitutional. It upheld the First Amendment. Hence, it was held that Parliament can amend the Fundamental Rights and that Article 13 applies to Ordinary Laws, not to Constitutional Amendment Acts.

2) Sajjan Singh v. State of Rajasthan (1964):

• The Parliament passed the Constitution (Seventeenth Amendment) Act 1964. Article 31A was amended, and 44 Acts were added to the Ninth Schedule of the Constitution.
• Writ Petitions were filed before the Supreme Court.
• The Petitioners challenged the constitutionality of the impugned act, contending that Article 368 cannot be used to take away fundamental rights and that, as land is a State subject, the impugned act overrode the proviso requiring ratification by at least half the States.
• The Supreme Court upheld the Constitution (Seventeenth Amendment) Act, holding, by a majority, that Article 368 empowered Parliament to amend any article of the Constitution.

3) I.C. Golaknath and Ors. v. State of Punjab and Ors. (1967):

• The inclusion of the Punjab Security of Land Tenures Act, 1953, and the Mysore Land Reforms Act, 1962, in the Ninth Schedule, and the vires of the Constitution (Seventeenth Amendment) Act, 1964, were challenged by a writ petition under Article 32.
• The Petitioners stated that the Basic Structure of the Constitution is permanent and no amendment should harm, impair, or eliminate it. Since the Fundamental Rights form an integral part of the Basic Structure, the Amendment of Part III is outside the scope of the Constitution.
• The Supreme Court ruled that the power to amend the Constitution is derived from Articles 245, 246, and 248. Article 368 only deals with the procedure of the Amendment. However, keeping in mind ‘prospective over-ruling’ (overturns previous legal precedents, but the new rule applies only to future cases), the Constitution (Seventeenth Amendment) Act, 1964, will still be valid. The Parliament cannot amend any provisions of Part III of the Indian Constitution as the Fundamental Rights are sacrosanct.

4) 24th Constitutional Amendment Act (1971):

• After the Golaknath Judgement, the Parliament introduced the 24th Constitutional Amendment Act. This Amendment gave the Parliament absolute powers to amend the Constitution.
• The Parliament was given the authority to amend any provision of the Constitution.
• The heading of Article 386 was changed from ‘Procedure for Amendment of the Constitution’ to ‘Power of the Parliament to Amend the Constitution and Procedure Therefor’.
• It required the President to give assent to a Constitutional Amendment Bill once it had been passed by both Houses of Parliament.

5) Kesavananda Bharati v. State of Kerala (1973):

• The Parliament introduced the 24th Amendment in 1971, the 25th Amendment in 1972, and the 29th Amendment in 1972. These amendments gave Parliament unlimited power to alter or abolish any fundamental right.
• Kesavananda Bharti approached the Supreme Court under Section 32 of the Indian Constitution to enforce his rights via a writ petition, asserting Articles 25, 26, 14, 31, and 19(1)(f).
• The Supreme Court, in a 703-page judgment, stated that the Parliament can amend any part of the Constitution so long as its basic structure remains intact. Furthermore, the Honourable Court stated that the Preamble is an integral part of the Constitution and is amendable, but it is not justifiable in the administration of justice.

6) Indira Nehru Gandhi v. Shri Raj Narain & Anr (1975):

• In 1971, India held its 5th Lok Sabha General Elections, during which former Prime Minister Smt. Indira Gandhi secured 352 out of 518 seats, bringing victory for her and her Party.
• Shri Raj Narain stood against Indira Gandhi in the Rae Bareilly elections in Uttar Pradesh. He was extremely confident of his victory in the elections.
• However, after the election results, he refused to accept defeat and decided to appeal for the nullification of the results.
• On 24th April 1971, he filed a petition in the Allahabad High Court challenging the Prime Minister's election and accusing Mrs Indira Gandhi of violating the election code enshrined in the Representation of the People Act of 1951.
• The Allahabad High Court, after hearing both sides, decided to declare PM Indira Gandhi’s election invalid. The Court found Indira Gandhi guilty under Section 123(7) of the Representation of the People’s Act, 1971 and ruled that she could not hold the position of Prime Minister and was disqualified from contesting elections for six years.
• Mrs Indira Gandhi approached the Supreme Court of India to challenge its decision. During that time, the Supreme Court was in recess, so the court issued an injunction temporarily staying the High Court's order until further proceedings. This order allowed Mrs Gandhi to attend parliamentary sessions but barred her from participating in debates and voting in the Lok Sabha.
• During this time, a National Emergency was declared, and the 39th Constitutional Amendment was enacted, introducing Article 329A into the Constitution.  This Article stated that the election of the Prime Minister and Speaker could not be legally challenged in any Indian court.
• On 7th November 1975, the Supreme Court of India invalidated clause (4) of Article 329A, as it violated the basic structure of the Constitution. But the constitutionality of the Representation of the People (Amendment) Act, 1974, and the Election Laws (Amendment) Act, 1975, was upheld by the Court. Also, the court affirmed the validity of Indira Gandhi’s election. This Supreme Court decision reinforced the importance of the basic structure doctrine.

7) 42nd Constitutional Amendment Act (1976):

• The 42nd Constitutional Amendment Act was the most controversial amendment. It was called the “Mini Constitution” because it brought sweeping changes to the Constitution and attempted to change its structure.
• The 42nd Constitutional Amendment Act (1976) significantly strengthened the Centre and Parliament. It made the President bound by Cabinet advice, extended the tenure of the Lok Sabha and the State Assemblies to 6 years (later reversed by the 44th Amendment), and enabled the deployment of central forces in states.
• It restricted judicial review and the High Courts' writ jurisdiction, expanded Article 31C to protect all Directive Principles of State Policy (DPSPs) over Fundamental Rights (later limited by the Minerva Mills case), and barred courts from questioning constitutional amendments (parts of which were struck down).
• It added ‘Socialist’, ‘Secular’, and ‘Integrity’ to the Preamble; shifted five subjects (education, forests, wildlife protection, weights and measures, administration of justice) from State to Concurrent List; and inserted Part XIV-A for tribunals (Articles 323A-323B).
• It introduced 10 Fundamental Duties under Article 51A (later expanded to 11) and new DPSPs, including Article 39A (equal justice & free legal aid), Article 43A (workers’ participation in management), Article 48A (environmental protection), and Article 45 (child development).

8) Minerva Mills v. Union of India (1980):

• The Central Government issued an order allowing the National Textile Corporation Limited to take over the management of Minerva Mills Ltd. under the provisions of the Sick Textile Undertakings (Nationalisation) Act, 1974 (SICA).
• The Petitioner (Minerva Mills Ltd.) had challenged the contention that Section 4 of the Constitution (42nd Amendment) Act, 1976, makes the Directive Principles of State Policy superior to the Fundamental Rights.
• Constitutionality of Section 55 of the Constitution (42nd Amendment) Act, 1976, was also challenged.
• Article 31C, which ensured the implementation of DPSPs, was also questioned.
• The Honourable Supreme Court struck down Section 4 and Section 55 of the Constitution (42nd Amendment) Act, 1976. The Court upheld Article 31C as originally enacted but struck down the changes introduced by the Constitution (42nd Amendment) Act, 1976. Judicial Review was stated as an integral part of the Basic Structure of the Constitution.

9) Waman Rao and Ors. v. Union of India (1981):

• The Petitioners challenged the constitutional validity of certain land reform laws placed under the Ninth Schedule of the Constitution.
• According to the Petitioners, these laws violated their fundamental rights under Articles 14, 19, and 31 of the Indian Constitution. 
• Furthermore, they contended that the placement of these laws under the Ninth Schedule should not render them immune to Judicial Review.
• The Supreme Court established 24 April 1973 as the cut-off date. Laws added to the Ninth Schedule before this cut-off date were held valid. While laws added to the Ninth Schedule after this cut-off date were open to Judicial Review.
• The Supreme Court, in a majority judgment, upheld the validity of the amendments adding laws to the Ninth Schedule up to April 24, 1973, the date of the Kesavananda Bharati judgment.

10) S.R. Bommai v. Union of India (1994):

• S.R. Bommai was the Chief Minister of Karnataka from 1988 to 1989. His government was dismissed in April 1989 under Article 356 (President’s Rule), after the Governor claimed he had lost majority due to defections. 
• Bommai was not allowed to prove his majority in the Assembly. After the High Court rejected his plea, he approached the Supreme Court.
• In 1994, a nine-judge bench gave a landmark judgment. The Court ruled that Article 356 cannot be misused to arbitrarily dismiss state governments. It said that such proclamations are subject to judicial review and that Parliament must approve them within two months; otherwise, they lapse.

11) IR Coelho v. State of Tamil Nadu (2007):

• The main question in IR Coelho v. State of Tamil Nadu was whether laws added to the Ninth Schedule after April 24, 1973 (the date of the Kesavananda Bharati judgment) could still be reviewed by courts. The issue was whether such laws could be checked against the basic structure of the Constitution.
• The Supreme Court unanimously held that any law placed in the Ninth Schedule after April 24, 1973, is subject to judicial review. These laws do not get automatic protection. If they violate fundamental rights or damage the basic structure of the Constitution, they can be struck down.
• The Court made it clear that the Ninth Schedule cannot be used to protect unconstitutional laws. Parliament cannot avoid judicial review simply by putting a law into the Ninth Schedule.

From the early amendments of the 1950s to the landmark Kesavananda Bharati judgment and beyond, the Supreme Court has consistently ensured that no authority can fundamentally alter the soul of the Indian Constitution. The Basic Structure Doctrine stands as the ultimate guardian of democracy, fundamental rights, and the rule of law in India.

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