The Basic Structure of the Indian Constitution

The debate on the 'basic structure' of the Constitution, lying somnolent in the archives of India's


constitutional history during the last decade of the 20th century, has reappeared in the public realm.

While setting up the National Commission to Review the Working of the Constitution (the

Commission), the National Democratic Alliance government (formed by a coalition of 24 national and

regional level parties) stated that the basic structure of the Constitution would not be tampered with.

Justice M.N. Venkatachalaiah, Chairman of the Commission, has emphasised on several occasions

that an inquiry into the basic structure of the Constitution lay beyond the scope of the Commission's

work.

Several political parties -- notably the Congress (I) and the two Communist parties which are in the

opposition -- have made it clear that the review exercise was the government's ploy to seek legitimacy

for its design to adopt radical constitutional reforms thus destroying the basic structure of the

document.

Much of the public debate has been a victim of partial amnesia as even literate circles of urban India

are unsure of the ramifications of this concept, which was hotly debated during the 1970s and 1980s.

The following discussion is an attempt to chart the waters of that period rendered turbulent by the

power struggle between the legislative and the judicial arms of the State.

According to the Constitution, Parliament and the state legislatures in India have the power to make

laws within their respective jurisdictions. This power is not absolute in nature. The Constitution vests

in the judiciary, the power to adjudicate upon the constitutional validity of all laws. If a law made by

Parliament or the state legislatures violates any provision of the Constitution, the Supreme Court has

the power to declare such a law invalid or ultra vires. This check notwithstanding, the founding

fathers wanted the Constitution to be an adaptable document rather than a rigid framework for

governance. Hence Parliament was invested with the power to amend the Constitution. Article 368

of the Constitution gives the impression that Parliament's amending powers are absolute and

encompass all parts of the document. But the Supreme Court has acted as a brake to the legislative

enthusiasm of Parliament ever since independence. With the intention of preserving the original

ideals envisioned by the constitution-makers, the apex court pronounced that Parliament could not

distort, damage or alter the basic features of the Constitution under the pretext of amending it. The

phrase 'basic structure' itself cannot be found in the Constitution. The Supreme Court recognised this

concept for the first time in the historic Kesavananda Bharati case in 1973.1 Ever since the Supreme

Court has been the interpreter of the Constitution and the arbiter of all amendments made by

Parliament.

The pre-Kesavanada position

Parliament's authority to amend the Constitution, particularly the chapter on the fundamental rights of

citizens, was challenged as early as in 1951. After independence, several laws were enacted in the

states with the aim of reforming land ownership and tenancy structures. This was in keeping with the

ruling Congress party's electoral promise of implementing the socialistic goals of the Constitution

[contained in Article 39 (b) and (c) of the Directive Principles of State Policy] that required

equitable distribution of resources of production among all citizens and prevention of

concentration of wealth in the hands of a few. Property owners -- adversely affected by these

laws -- petitioned the courts. The courts struck down the land reforms laws saying that they

transgressed the fundamental right to property guaranteed by the Constitution. Piqued by the unfavourable judgements, Parliament placed these laws in the Ninth Schedule of2 the Constitution


through the First and Fourth amendments (1951 and 1952 respectively), thereby effectively

removing them from the scope of judicial review.
 
[Parliament added the Ninth Schedule to the Constitution through the very first amendment in 1951


as a means of immunising certain laws against judicial review. Under the provisions of Article 31,

which themselves were amended several times later, laws placed in the Ninth Schedule -- pertaining

to acquisition of private property and compensation payable for such acquisition -- cannot be

challenged in a court of law on the ground that they violated the fundamental rights of citizens. This

protective umbrella covers more than 250 laws passed by state legislatures with the aim of regulating

the size of land holdings and abolishing various tenancy systems. The Ninth Schedule was created

with the primary objective of preventing the judiciary - which upheld the citizens' right to property on

several occasions - from derailing the Congress party led government's agenda for a social

revolution.]
Property owners again challenged the constitutional amendments which placed land reforms laws in


the Ninth Schedule before the Supreme Court, saying that they violated Article 13 (2) of the

Constitution.
 
In 1967 an eleven-judge bench of the Supreme Court reversed its position. Delivering its 6:5 majority


judgement in the Golaknath v. State of Punjab case , Chief Justice Subba Rao put forth the curious


position that Article 368, that contained provisions related to the amendment of the Constitution,

merely laid down the amending procedure. Article 368 did not confer upon Parliament the power to

amend the Constitution. The amending power (constituent power) of Parliament arose from other

provisions contained in the Constitution (Articles 245, 246, 248) which gave it the power to make

laws (plenary legislative power). Thus, the apex court held that the amending power and legislative

powers of Parliament were essentially the same. Therefore, any amendment of the Constitution must

be deemed law as understood in Article 13 (2).
 
The majority judgement invoked the concept of implied limitations on Parliament's power to


amend the Constitution. This view held that the Constitution gives a place of permanence to the

fundamental freedoms of the citizen. In giving the Constitution to themselves, the people had

reserved the fundamental rights for themselves. Article 13, according to the majority view, expressed

this limitation on the powers of Parliament. Parliament could not modify, restrict or impair

fundamental freedoms due to this very scheme of the Constitution and the nature of the freedoms

granted under it. The judges stated that the fundamental rights were so sacrosanct and

transcendental in importance that they could not be restricted even if such a move were to receive

unanimous approval of both houses of Parliament. They observed that a Constituent Assembly might

be summoned by Parliament for the purpose of amending the fundamental rights if necessary.