Basic Structure and its Politico-Legal Transformation in India: Introspecting Purpose and Volatility

Updated: May 26



Abhivardhan

President,

Global Law Assembly


Vaibhav Dwivedi

Chief Executive Officer,

Global Law Assembly


The Basic Structure Doctrine is an interesting and transformative connotation in the history of Indian Constitutional Law. There is no doubt that since 1973, this politico-legal doctrine has reflected the vision to preserve and emphasize on the integrity-centric behaviour of Constitutional Law espoused on the basis of the premise that the polity guaranteed and reckoned by the Indian Constitution has to be protected. Now, the Basic Structure is utilized as a juridical doctrine, which is often sought as a firewall between Arts. 13 and 368, with its own exceptions and relationships. On the other hand, if we assume that the Basic Structure Doctrine is not political, would also be fallacious – because as stated above, the conception – which was based on preserving the operative essentials of the Indian Constitution, which are substantially respected by the Supreme Court of India in the Keshavananda Bharti case under the politico-legal guise of civic nationalism, in opposition to the Congress Party’s amendments to the Constitution at that time – has sought transformation and some relevant backlash in the 21st Century. The article therefore covers an analysis of the legal and political policies revolving around the Basic Structure Doctrine in a nutshell. The authors intend to provide suggestions and criticisms to the impact of the Basic Structure Doctrine in 3 important frontiers – Legal and Doctrinal Evaluation, Foreign Relations and Sovereignty and Indian Nationalism.


The Basic Structure in the Indian Constitution: A Legal cum Doctrinal Evolution


While discussing the basic structure doctrine, the very first case that comes to mind is the Shankari Prasad’s case of 1951. The validity of the first constitution amendment act was into question on the ground of breach of fundamental rights under part III of the Constitution. The apex court held that power to amend the constitution including the fundamental rights were contained in A. 368 of the Constitution and an ‘amendment’ was not a ‘law’ within the meaning of A. 13(2). Later came Sajjan Singh’s case of 1965 where the validity of the 17th constitution amendment was into question. The court said that an ‘amendment’ included ‘amendment’ to all the provisions of the Constitution. In 1968 came the Golaknath’s case where the apex court prospectively overruled the decision in Shankari Prasad and Sajjan Singh. It held that an amendment was a law under A. 13(2) and if it violates any fundamental right, it may be declared void.


In 1971, the government came up with the 24th Constitutional Amendment and followed the Kesavananda verdict of 1973 which laid down the ‘Basic Structure Doctrine’. The verdict spoke about the limitations on the amending power of parliament under A. 368 and gave the concept of a Basic Structure in the constitution which cannot be amended. The 42nd Constitution Amendment came in the year 1976 in which clauses (4) and (5) were added to A. 368. These were stuck down in a subsequent case of Minerva Mills (1980). SP Sampath Kumar and L Chandra Kumar are two other important cases ruled by the Supreme Court which discuss the ‘basic structure’ at length.


How the Legal Face of the Basic Structure Stands Today?