Abstract: In this article we discuss in short about the making of the Indian constitution, the various cases which are concerned with the fundamental rights and DPSP’s that led to the landmark judgement of Kesavananda Bharati, such as the Shankari Prasad and the Golaknath Case. Thereafter we discuss about the development of the basic structure by highlighting different cases such as the Indira Gandhi case, SR Bommai case and the Minerva Mills case. In the end we have defined and listed the features constituting the basic structure as of today.
Introduction
The well-known case of Kesavananda Bharati v. State of Kerala (Writ Petition (Civil) 135 of 1970) is celebrating its 50th anniversary in 2023.This judgment is considered as one of the most important in Indian legal history. The Supreme Court of India for the first time laid out the basic components of our constitution in this judgement, which changed the discourse of our legislative as well as judicial organs for good. It struck a balance between the use of reasonable and arbitrary power. Thereafter several judgments played their role in its evolution which we will be talking about in the later half of this article. To understand the basic structure and the kesavananda bharati judgement, we should first be aware of the historical background of our constitution and the circumstances which led to the said judgment.
Making of the Indian Constitution
In the year 1946, the constituent assembly was finally formed following the plan of the cabinet mission. It was tasked with drafting a constitution for the whole of India and also had the additional function of working as an interim Parliament till the first Lok Sabha elections in 1951. The body was to be partially nominated by the princely state rulers and partially elected indirectly by the members of the provincial legislature using the single transferable vote method of proportional representation. The original strength of the body was decided as “389” but due to the Mountbatten plan and the resultant partition of the country, the strength was reduced to “299”.On December 13, 1946, Jawaharlal Nehru, the interim government’s prime minister, moved a resolution outlining the goals, called as “the objective’s resolution”, which the constituent assembly unanimously approved.It is the objective’s resolution from where the preamble of our constitution has been inspired and our preamble in turn is the inspiration behind the basic structure. The Government of India Act, 1935 has primarily served as the model for the administrative structure, and numerous ideas have been taken from various foreign constitutions, for example, federalism from Canada, Fundamental rights and the independent judiciary from the USA, the ideas of liberty from France and so on. In fact, one of the criticism of our constitution is that it looks like a borrowed constitution. Although this criticism does not stand since the borrowed provisions have been adapted to Indian conditions and is not a mere copy and paste. The chairman of the drafting committee, Dr. B. R. Ambedkar, was instrumental in the discussions that led to the adoption of the constitution on November 26, 1949, by the Indian people, although the constitution was planned to go into effect on January 26, 1950. There were 395 Articles in the original constitution along with 8 schedules.
Post Commencement Period and the Genesis of the Basic Structure
In 1951, soon after the constitution entered into effect, the Supreme Court of India heard the case of Shankari Prasad v. Union of India (1951). In the aforementioned case, the First Amendment Act of 1951’s constitutionality was contested because the measure severely restricted the freedom of owning property. So the primary concern was whether or not Article 368 of the Constitution permits the Parliament to modify the fundamental rights. As opposed to a regular lawmaking power, Article 368 grants the Parliament the constituent authority to modify the constitution. According to Article 13, laws that conflict with fundamental rights are invalid, therefore the court needed to decide whether the amendment under Article 368 is included under Article 13’s definition of law or not. The court decided that the term law under Article 13 merely recognises ordinary law; it excludes constitutional modifications. Therefore, under Article 368, the Parliament can modify the fundamental rights..
Then the Golak Nath v. State of Punjab case from 1967 arose. This lawsuit was brought against the Seventeenth Amendment Act, which put several state legislature’s land reform-related legislation in to the Ninth Schedule. The contention was to check its constitutionality. Acts were inserted into Ninth Schedule to protect them from Judicial review since most of them curtailed some fundamental rights to fulfil the Directive Principle of State Policy, majorly fair wealth redistribution through land reforms. The court reversed its previous decision of the Shankari Prasad case and said that Parliament cannot curtail the fundamental rights even by an amendment under Article 368. According to the court, the constitutional amendment falls under Article 13’s definition of a law and can therefore be declared invalid for violating fundamental rights. The government led by Indira Gandhi and the judiciary are going to engage in a battle now. The Parliament responded to the judgement by bringing in the 24th Amendment Act,1971. The Act gave Parliament the power to modify any clause in the Constitution using Article 368, including any restrictions on fundamental rights. In the 1973 case of Kesavananda Bharati v. State of Kerala, the 24th amendment’s legality was contested. One of the largest Supreme Court benches in our history, consisting of 13 judges, heard the case. Mr. Kesavananda Bharati, the head of Endear mutt, a Hindu religious organisation in Kerala, filed the lawsuit. He filed a suit under Article 32(called as “the heart and soul of the constitution” by Dr BR Ambedkar) for enforcement of his rights under Article 25, Article 26, Article 14, Article 19, and Article 31 against the land reforms act passed by the Kerala government. Meanwhile, the Golaknath ruling served as a backdrop for the Parliament to pass the 24th, 25th, and 29th Amendment Acts. The 25th Amendment Act modified “compensation” to “amount” in Article 31(2) and gave Articles 39(b) and 39(c) precedence over Articles 14, 19, and 31; in other words, the Parliament gave Part IV, which entails the directive principles of state policy, precedence over Part III, which entails fundamental rights. In a nutshell, the court’s principal concern was determining whether or not the aforementioned amendments are constitutionally valid. The Golaknath verdict was reversed by the Supreme Court of India, which ruled that any article of the constitution may be amended by Parliament to fulfil its obligations under the DPSPs as long as the modifications do not fundamentally alter the basic structure of the constitution. 7:6 votes were cast in favour of making the decision. One vote made the difference and gave birth to the concept of the basic structure in India. One of the criticisms of this judgement is that only a single vote changed the future discourse of India and delivered the most important landmark judgment of Indian legal history. The bench did not define the basic structure and left it for the courts to interpret in the future.
The 39th Constitutional Amendment Act, which stated that the election of the speaker and the prime minister could not be contested in court and could only be investigated by a committee set up by the Parliament, was overturned by the court in Indira Nehru Gandhi v. Raj Narain (1975). The separation of powers, rule of law, and judicial review, which are components of the basic structure were purportedly breached by the aforementioned Amendment Act, therefore the Supreme Court used the doctrine of basic structure for the first time and overturned it. The Parliament responded by passing the 42nd Amendment Act of 1976, which altered Article 368 and stated that the Parliament has unrestricted authority to modify the constitution and that such amendments cannot be contested in court. In the case of Minerva Mills v. Union of India (1980), this provision was ruled to be unconstitutional because it disallowed judicial review, which is a component of the basic structure.
In S.R. Bommai v. Union of India (1994), the question of whether a President’s order under Article 356 is open to judicial scrutiny or not was raised, also what precisely does Article 356(1) mean was questioned. The court decided that the President’s power to impose Article 356 is not unconditional and can only suspend the legislature until both the houses of Parliament ratifies it. It is under the scope of judicial review on the grounds of malafide and arbitrariness. Federalism, the unity and integrity of the country, secularism, democracy, social justice, and judicial review are all part of the basic structure of our constitution, according to the landmark ruling in the S.R. Bommai case. Indra Sawhney II v. Union of India (2000), a well-known case, led to the inclusion of the equality principle in the basic structure. Similar to this, the independent judicial system was acknowledged as one of the features of the basic structure doctrine in All India Judge’s Association v. Union of India (2002). Many cases have since come to light that support the doctrine of basic structure and recognise the following as elements of the basic structure: supreme authority of the constitution, the sovereign, democratic, and republican nature of Indian polity, secularism, the principle of equality, the parliamentary system, efficient access to justice, the rule of law, the tenets underlying fundamental rights, the limited ability of Parliament to amend the constitution, the independence of the judiciary, the separation of powers, federalism, the welfare state, personal dignity and liberty, elections that are impartial and free, a harmonious relationship between fundamental rights and DPSPs, authority of the Supreme Court within Articles 32,136,141,142, and the authority of High Courts within Article 226,227. Like our constitution, the basic structure doctrine is also a living document and thus it keeps on evolving with time and with landmark cases.
Author – Aaryan Kumar
Designation– First year student of LLB (3 year)
Institute– Campus Law Center, Delhi University
