DOCTRINE OF BASIC STRUCTURE: JUDICIAL CREATIVITY OR CONSTITUTIONAL NECESSITY?

 

DOCTRINE OF BASIC STRUCTURE: JUDICIAL CREATIVITY OR CONSTITUTIONAL NECESSITY?

Author- Supriya Chandra, B.A.LLB(Hons), S.S. Khanna Girls Degree College, University of Allahabad, Prayagraj

 

ABSTRACT

The doctrine of basic structure stands as one of the most significant judicial contributions to Indian constitutional law. Developed by the Supreme Court of India in the landmark case of Kesavananda Bharati v. State of Kerala (1973), this doctrine acts as a safeguard against arbitrary amendments to the Constitution by Parliament. This article explores whether the doctrine represents a bold instance of judicial creativity or a necessary principle to preserve the sanctity and essence of the Constitution. It discusses the historical context, judicial interpretations, statutory framework, and criticisms of the doctrine, along with a comparative view from other jurisdictions. It concludes by examining the doctrine’s continued relevance in modern constitutional jurisprudence and suggests that while the doctrine may stem from judicial innovation, it has evolved into a constitutional necessity in safeguarding democratic values and constitutional supremacy.

 

KEYWORDS:

Basic Structure Doctrine, Constitutional Amendment, Judicial Review, Kesavananda Bharati Case, Constitutional Supremacy.

 

INTRODUCTION

India’s Constitution is a unique document ,it is the longest written constitution in the world and combines rigid and flexible elements. The Indian Parliament was empowered under Article 368 to amend the Constitution. However, the extent of this power was questioned when constitutional amendments threatened to alter the very character of the Constitution. This led to the development of the "doctrine of basic structure," a judicial innovation meant to protect the Constitution’s core principles.

 

The introduction of the basic structure doctrine in Kesavananda Bharati Case created a historic turning point in constitutional law.While some view it as an overreach of judicial power, others see it as a vital necessity to prevent the authoritarian abuse of parliamentary majority. This article examines the origin, evolution, and implications of this doctrine. It aims to determine whether the doctrine of basic structure is a case of judicial creativity or a constitutional necessity.

 

HISTORICAL BACKGROUND AND CONSTITUTIONAL PROVISIONS

Before delving into the doctrine, it is important to understand Article 368 of the Indian Constitution, which empowers Parliament to amend the Constitution. Initially, the power to amend was thought to be absolute. However, this assumption was challenged in a series of cases that laid the foundation for judicial limitations on parliamentary power.

 

In Shankari Prasad v. Union of India (1951), the Supreme Court held that Parliament could amend any part of the Constitution, including Fundamental Rights. This view was reiterated in Sajjan Singh v. State of Rajasthan (1965), where the Court emphasized the sovereignty of Parliament in constitutional amendments.

 

However, the tide turned in Golak Nath v. State of Punjab (1967). The Court, in a dramatic shift, ruled that Fundamental Rights could not be amended by Parliament.This decision created significant controversy and led to subsequent constitutional amendments intended to restore parliamentary supremacy.

 

The Landmark Case: Kesavananda Bharati v. State of Kerala (1973)

The doctrine of basic structure was crystallized in the landmark judgment of Kesavananda Bharati v. State of Kerala,a 13-judge bench of the Supreme Court delivered a split verdict (7:6), holding that while Parliament has wide powers to amend the Constitution under Article 368, it cannot alter the basic structure or essential features of the Constitution.The majority did not define the term "basic structure" explicitly but provided a framework through judicial reasoning. Key elements identified as forming part of the basic structure included: Supremacy of the Constitution, Rule of law, Separation of powers, Federalism, Secularism, Democracy, Judicial review and Independence of the judiciary

 

Justice H.R. Khanna's opinion stood out for preserving the balance between parliamentary sovereignty and constitutional sanctity. This judgment marked a turning point in constitutional jurisprudence and established the judiciary as the guardian of the Constitution’s core values.

 

Post- Kesavananda Developments

After Kesavananda Bharati, the Supreme Court has consistently applied and expanded the doctrine of basic structure in various constitutional cases.

 

In Indira Nehru Gandhi v. Raj Narain (1975), the Court struck down Clause 4 of Article 329A (inserted by the 39th Amendment), which sought to immunize the Prime Minister’s election from judicial review. The Court held that free and fair elections were part of the basic structure.

 

In Minerva Mills Ltd. v. Union of India (1980),the Court invalidated sections of the 42nd Amendment that gave primacy to Directive Principles over Fundamental Rights. The Court reinforced that a limited amending power under Article 368 itself was a basic feature.

 

In Waman Rao v. Union of India (1981), the Court drew a line of demarcation: laws included in the Ninth Schedule before Kesavananda Bharati were valid, while those added afterward would be subject to judicial review.

 

In I.R. Coelho v. State of Tamil Nadu (2007), the Supreme Court held that any law, even those placed in the Ninth Schedule post-Kesavananda, must comply with the basic structure. If such laws violated the essential features of the Constitution, they would be struck down .

 

STATUTORY AND DOCTRINAL FRAMEWORK

The doctrine of basic structure does not find express mention in the text of the Constitution. However, its basis lies in a purposive interpretation of Article 368, guided by the Preamble and underlying constitutional philosophy.

 

The Preamble serves as an interpretative tool, as held in Kesavananda, helping courts identify essential features. Other implied doctrines such as the separation of powers, the rule of law, and federalism provide further support to the basic structure theory.

 

Doctrinally, the theory of implied limitations reinforces the idea that certain foundational principles of the Constitution cannot be abrogated even through the amendment process. This ensures that constitutional identity is preserved, even as laws evolve.

 

JUDICIAL CREATIVITY OR CONSTITUTIONAL NECESSITY?

Arguments Supporting Judicial Creativity:

Critics of the doctrine argue that it is a judicial invention without any textual foundation. The Constitution does not contain the phrase "basic structure," and hence its judicial articulation is seen as overreach.Theyargue that the Constitution makers, in drafting Article 368, intended to give Parliament comprehensive power to amend the Constitution. By imposing restrictions on this power, the judiciary has encroached upon the legislature's domain.Furthermore, the ambiguity surrounding what constitutes the basic structure opens the door to judicial subjectivity. This lack of clarity could undermine the predictability and stability of constitutional law.

 

Arguments For Constitutional Necessity:

On the other hand, defenders of the doctrine stress that it is essential for protecting the integrity and identity of the Constitution. The doctrine acts as a vital check on majoritarianism and ensures that transient political forces do not alter foundational values.In a diverse and pluralistic society like India, where constitutional values such as secularism, democracy, and federalism are indispensable, the doctrine ensures that these values are not compromised for political gain.Moreover, the doctrine reinforces the supremacy of the Constitution. It is a shield against attempts to dismantle the basic rights of citizens or to alter the structure of governance.

 

COMPARATIVE AND INTERNATIONAL PERSPECTIVE

The idea that constitutional amendments should not violate certain core principles is not unique to India.

 

In Germany, the Basic Law (Grundgesetz) contains an explicit "eternity clause" under Article 79(3), which prevents amendments to fundamental principles such as the democratic order, rule of law, and human dignity.

 

In Bangladesh, the Supreme Court in Anwar Hossain Chowdhury v. Bangladesh (1989) adopted the Indian doctrine of basic structure, asserting that Parliament cannot destroy the Constitution’s essential character.

 

In contrast, the United States does not formally recognize a doctrine akin to basic structure. However, certain entrenched principles, like the Bill of Rights and separation of powers, are considered sacrosanct by judicial tradition and have formed the bedrock of constitutional jurisprudence.

These international practices show that the notion of constitutional limitations on amendment powers is neither unique nor unjustified. It is a recognized principle in various democratic systems to preserve the core philosophy of the constitution.

 

CRITICISMS AND CONTROVERSIES

Despite its noble objectives, the doctrine of basic structure has been criticized for several reasons.Firstly, it lacks a clear definition, which creates uncertainty in its application. Courts have not provided a fixed list of what constitutes the basic structure, leading to possible inconsistencies in judicial decisions.Secondly, it raises concerns about judicial supremacy. Critics argue that unelected judges deciding the limits of constitutional amendments undermines the democratic process.Thirdly, the potential for misuse is significant. Vague criteria could allow the judiciary to strike down amendments or laws based on ideological preferences rather than legal reasoning.

 

NEED FOR REFORMS AND CLARIFICATION

To maintain the legitimacy and effectiveness of the basic structure doctrine, certain reforms may be considered:

1. Judicial Clarification: The Supreme Court could frame definitive guidelines for identifying the elements of the basic structure. This would enhance predictability and reduce arbitrariness.

 

2. Academic and Public Discourse: Enhanced scholarly engagement can refine the doctrine's theoretical foundations. Law schools and institutions can play a pivotal role in shaping a coherent understanding.

 

3. Legislative Dialogue: While a constitutional amendment defining the basic structure might face judicial invalidation, Parliament and the judiciary can work together through institutional dialogue to ensure a common understanding of constitutional boundaries.

 

4.Transparent Jurisprudence: Courts must articulate their reasoning clearly when invoking the doctrine, ensuring that decisions are grounded in principle rather than discretion.

 

CONCLUSION

The doctrine of basic structure has emerged as a central principle of Indian constitutional law, striking a delicate balance between constitutional flexibility and inviolability. It was initially a bold act of judicial creativity, but over the years, it has transformed into a constitutional necessity.

 

It plays a vital role in maintaining the sanctity of the Constitution and ensuring that the foundational ideals like democracy, secularism, the rule of law, and separation of powersremain untouched by political turbulence. While criticisms concerning vagueness and judicial overreach merit attention, these challenges can be addressed through thoughtful reforms.

 

Ultimately, the doctrine ensures that the Constitution is not merely a legal document but a living charter of governance, justice, and liberty. In preserving the Constitution’s core identity, the doctrine of basic structure continues to serve as a bulwark of Indian democracy.

 

REFERENCES

1.      Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461

2.      Indira Nehru Gandhi v. Raj Narain, (1975) Supp SCC 1.

3.        Minerva Mills Ltd v. Union of India,AIR 1980 SC 1789.

4.        Waman Rao v. Union of India, AIR 1981 SC 271.

5.        I.R. Coelho v. State of Tamil Nadu AIR 2007 SCC 1.

6.      https://constitutionnet.org/vl/item/basic-structure-indian-constitution (Last visited on 4 June 2025).

7.      https://unacademy.com/content/upsc/study-material/general-awareness/longest-written-constitution (Last visited on 5 June 2025).

8.      https://pwonlyias.com/pyq/parliaments-power-to-amend-the-constitution-is-limited-power-and-it-cannot-be-enlarged-into-absolute-power-in-light-of-this-statement-explain-whether-parliament-under-article-368-of(Last visited on 4 June 2025).

9.      https://en.wikipedia.org/wiki/Basic_structure_doctrine (last visited on 4 June 2025).

10.  https://www.academia.edu/14758309/Preamble (Last visited on 5 June 2025).

 

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• Indian Constitution Basic Structure
• Kesavananda Bharati case
• Supreme Court of India judgments
• Constitutional amendments judicial review

• Judicial creativity in India
• Constitutional necessity doctrine
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• Landmark cases Indian Constitution
• Judiciary vs Parliament powers

• Is the basic structure doctrine a judicial invention?
• Role of judiciary in protecting the Constitution
• Kesavananda Bharati and constitutional limits
• Analysis of basic structure doctrine in Indian context
• Judicial interpretation vs legislative power in India