AN ANECDOTE OF BASIC STRUCTURE By Rahul Kumar Kumawat

The story of the “ basic structure theory “ starts from the first constitutional amendment act 1951. In order to implement agrarian reforms, Nehru government inserted the ninth schedule in the constitution by first constitutional amendment act.. By incorporating any enactment under this schedule, the enactment becomes fully protected against any challenge in any court of law. The government placed 13 acts under the ninth schedule mostly related to land reforms, which would be immune from the judicial review. As a result, the first amendment act which inserted schedule nine, was in contravention of the right to property guaranteed under article 19(1)(g) and article 31.

The same question came before the Hon'ble Supreme Court in Shankari Prasad v/s Union of India, 1951 which challenged the first constitutional amendment act as it violates the right [1] to property guaranteed under article 31. In its judgement, the constitutional bench upheld [2] the validity of the first amendment act with a majority. The Hon'ble Supreme Court held that the power of the parliament to amend the constitution is without any restriction. Further, the court held that the word ‘law’ under article 13 doesn't include constitutional amendment. 

Thirteen years after the Shankari Prasad case, the government enacted the seventeenth amendment act,1964. This amendment incorporated 44 new enactments under the ninth schedule. Thus, the seventeenth amendment act restricted the limits of the article 31 that is right to property and expanded the ambit of the ninth schedule.

The same question came before the constitutional bench of the supreme court again in [3] Sajjan Singh v/s state of Rajasthan, 1965 . It was argued before the court that the [4] amendment circumscribed the judicial review power of the court of law. The Hon'ble Supreme Court with majority 3:2 [5]again upheld the validity of the seventeenth amendment. 

But it is interesting to note that two judges who gave the minority judgements didn't share the same view as the majority. The minority consisted of Judge Hidayatullah and Judge Mudholkar. In his judgement Hidayatullah observed that fundamental rights can't be amended while judge Mudholkar held “there are certain fundamental features in the constitution which can't be amended".

But the unlimited amending power of the parliament was again challenged in the famous case of I.C. Golaknath v/s. State of Punjab, 1967 [6]. The same issue was brought before the court by two Henry and William Golaknath, as their 418 acres of land were declared surplus and seized under the Punjab Security of Land Tenures Act, 1953. This act of Punjab Security of Land Tenures Act, 1953 was included in the ninth schedule by the seventeenth amendment act, 1964. Therefore, the same act can't be challenged in court of law for violation of fundamental rights. 

The Supreme Court constituted a bench of eleven judges[7] to consider the constitutional validity of the seventeenth amendment act once again. The Supreme Court overruled its earlier two judgements of 2 Prasad and Sajjan Singh, by majority of 6:5[8] - then chief justice of India Subha Rao on behalf of the majority held that the parliament couldn't amend Part 3 of the constitution that dealt with fundamental rights. While the minority upheld the earlier two judgements. Further, the Supreme Court held that the word “law" under article 13 included constitutional amendment under article 368. The supreme court adopted the “doctrine of prospective overruling” according to this doctrine past judgements wouldn't be affected by this decision. And upheld the first and second amendments.

The judgement of the supreme court was seriously set back for the government as their power to amend the constitution was limited. So, in order to nullify the effect of the Golaknath judgement, the Parliament enacted the 24th Constitutional amendment act, 1971. This amendment changed the two articles that are article 13 and 368. It was clarified by adding clause 4 in the article 13 which clarified that the word “law" doesn't contain constitutional amendment under article 368. While this amendment made change in the marginal note of the article 368 which conferred the parliament to amend any part of the constitution, now this article enables the Parliament to add, vary or repeal any provision of the constitution. Also, the parliament by 29th constitution amendment act, 1972 incorporated the two Kerala land reform acts in the IX schedule to the constitution. Thus, this amendment gave full protection to these acts being scrutinised by any court of law even in case of violation of fundamental rights.

The constitutional validity of both the amendments that is of the 24th Constitutional amendment act, 1971 and 29th constitutional amendment act, 1972 was challenged in the most celebrated case of Indian constitutional history, Kesavananda Bharati v/s. State of Kerala,1973[9] This case was heard by the largest bench of judges in the history of the Supreme Court of India, the bench consisted of thirteen judges[10] , the bench was headed by then chief justice of India, S.M. Skiri and heard for the longest number of days- 68 days. The two main questions before the Hon'ble Supreme Court was raised first, has parliament unlimited power to amend the constitution? and another question was who is supreme parliament or constitution?

The Hon'ble Supreme Court in its landmark judgement with a majority of 7:6 upheld the [11] constitutional validity of both the 24th and 29th amendments. Further, the court held that parliament can amend any provision of the constitution including part III of the constitution which dealt with fundamental rights. But this power of the parliament is neither absolute nor unlimited, and no amendment made by the parliament can amend the fundamental and essential features of the constitution. This was called the “doctrine of basic structure”. The supreme court nowhere in its judgement defined the meaning of basic structure, but with some illustrations of what constitutes the basic structure given by different judges, such as Democratic and republican forms of government; Federal character of the constitution; separation of powers among the three wings of the government that is legislature, executive and judiciary; rule of the; supremacy of constitution.

The thirteen judges bench overruled the Golaknath judgement and clearly made distinction between an ordinary law and a constitutional law, the court held that the expression “law" in article 13 doesn't consist constitutional amendments defined under article 368. Kesvananda judgment gave answer to the second question that in India there is supremacy of the constitution.

The Hon'ble Supreme Court in Kesvananda Bharati case propounded the basic structure theory as a perfect example of judicial activism in India that saved the Indian democracy in the latter years. In 1975, when Allahabad High Court declared the election of then prime minister Indira Gandhi void, parliament then enacted the 39th constitutional amendment act, 1975 to nullify the effect of Allahabad High Court judgement and declare the election to be valid. This amendment changed the method of deciding the election dispute relating to the President, Vice-president, Prime minister and Speaker of Lok Sabha. The election of these four officials can't be challenged in any court of law. Supreme Court in Indira Gandhi v/s. Raj Narain, 1975 [12]- case found the provisions of 39th  amendment act against the spirit of democracy and by using basic structure theory struck down the 39th amendment act. Hence, declared it unconstitutional.

References   

1 . Shankari Prasad v. Union of India, AIR 1951 SC 458: [1952] SCR 89. 

2 . The bench consist of Kania, Hiralal J. (Cj), Sastri, M. Patanjali, Mukherjea, B.K., Das, Sudhi Ranjan, Aiyar, N. Chandrasekhara 

3. The consist of Gajendragadkar, P.B. (Cj), Wanchoo, K.N., Hidayatullah, M., Dayal, Raghubar, Mudholkar, J.R. 

4 .Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845 :[1965] 1 SCR 933 

5 .The majority consisted of Gajendragadkar, P.B. (Cj), Wanchoo and Dayal, Raghubar, and the minority consisting of Hidayatullah, M and Mudholkar, J.R.

6 I. C. Golaknath & Ors vs State Of Punjab & Anrs AIR 1967 SC 1643: 1967 (2) SCR 762. 

7 . The bench consists of Rao, K. Subba Wanchoo, K.N., Hidayatullah, M. & Shah, J.C., Sikri, S.M. & Bachawat, R.S., Ramaswami, V. & Shelat, J.M., Bhargava, Vishishtha & Mitter, G.K. & Vaidyialingam, C.A. 

8 . The majority consisted of Rao, K. Subba , Hidayatullah, M. & Shah, J.C., Sikri, S.M. , Shelat, J.M., Vaidyialingam, C.A. and minority consisting of Wanchoo, K.N, Bhargava, Vishishtha, Mitter, G.K, Bachawat, R.S, Ramaswami, V. 

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

10 The bench consisted of Sikri, S.M. (Cj) Shelat, J.M., Hegde, K.S. & Grover, A.N., Ray, A.N. & Reddy, P.J. & Palekar, D.G., Khanna, Hans Raj Mathew, K.K. & Beg, M.H., Dwivedi, S.N. Mukherjea, B.K. Chandrachud, Y.V. 

11 . The majority consist of Sikri, S.M. (Cj) Shelat, J.M., Hegde, K.S. & Grover, A.N, Mukherjea, B.K., Reddy, P.J, Khanna, Hans Raj and minority consisting of Ray, A.N., Beg, M.H., Dwivedi, S.N., Chandrachud, Y.V., Mathew, K.K., Palekar, D.G. 

12 . Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299 : 1975