The Theory of Basic Structure

Tamoghna Mitra

Be it lawyers, or be it politicians have time by time dismorphed the meaning of the Constitution for their own sake. Doing so they have triggered the consequences of altering the sanctity of an institution, the primary task of which was to restore order to chaos. This has led to the mass losing faith in the integrity of the constitution and the ethical value it holds.
The book* explains that the Basic Structure Doctrine is a judicial principle that the Constitution of India has certain fundamental features that cannot be altered or destroyed through amendments by the Parliament. This doctrine ensures that the core values and principles of the Constitution are preserved and protected from any radical changes that could undermine its integrity.

The Basic Structure Doctrine was first conceptualised in the landmark case of Kesavananda Bharati v. State of Kerala in 1973. Prior to this case, the Supreme Court of India had held that Parliament had the power to amend any part of the Constitution, including fundamental rights. This was established in the Shankari Prasad v. Union of India (1951) and Sajjan Singh v. State of Rajasthan (1965) cases. However, the Golaknath v. State of Punjab (1967) case created a significant shift by ruling that Parliament could not amend fundamental rights.

In the Kesavananda Bharati case, the Supreme Court overruled the Golaknath judgment but introduced the Basic Structure Doctrine. The court held that while Parliament could amend any part of the Constitution, it could not alter the basic structure or framework of the Constitution. This doctrine was a middle path, balancing the need for constitutional flexibility with the necessity to protect its core principles.

The Supreme Court has not provided an exhaustive list of what constitutes the basic structure of the Constitution. Here lies the glory of the book through various judgments, the author has identified certain elements as part of it. These include:

   1.  Supremacy of the Constitution: The Constitution is the supreme law of the land, and all laws and amendments must conform to it.
  2.  Rule of Law: The principle that all individuals and institutions are subject to and accountable under the law.
  3.  Judicial Review: The power of the judiciary to review and strike down laws and amendments that violate the Constitution.
  4.  Separation of Powers: The division of government responsibilities into distinct branches to prevent anyone branch from exercising the core functions of another.
  5.  Federalism: The distribution of power between the central government and the states.
  6.  Secularism: The state’s impartiality towards all religions, ensuring equal treatment of all religions.
   7.  Sovereign, Democratic, and Republic nature: The nature of the Indian state as defined by the Preamble.
  8.  Freedom and Dignity of the Individual: Protection of fundamental rights and freedoms of individuals.

The book provides several critical interpretations of the doctrine as seen through the eyes of both Indian and foreign enthusiasts. Since the KesavanandaBharati case, the Supreme Court has reaffirmed and elaborated on the Basic Structure Doctrine in various cases. For instance, in Indira Nehru Gandhi v. Raj Narain (1975), the court invalidated a constitutional amendment that sought to eliminate judicial review of elections for the Prime Minister and Speaker, citing it as a violation of the basic structure.

In Minerva Mills v. Union of India (1980), the Supreme Court struck down parts of the 42nd Amendment, reinforcing that the power of judicial review is a part of the basic structure. Similarly, in S.R. Bommai v. Union of India (1994), the court held that federalism, secularism, and democracy are part of the basic structure.

The book comments, that the Basic Structure Doctrine is significant because it acts as a safeguard against potential abuse of power by the Parliament. It ensures that the fundamental essence of the Constitution remains intact, preserving the vision of its framers. However, it has also faced criticism for giving the judiciary too much power to interpret what constitutes the basic structure, potentially leading to judicial overreach.

The Basic Structure Doctrine of the Indian Constitution is a crucial judicial innovation that protects the core principles and values enshrined in the Constitution. It ensures that while the Constitution can adapt and evolve, its foundational ethos remains inviolable. This doctrine underscores the balance between constitutional flexibility and rigidity, ensuring the stability and continuity of the Indian democratic framework.

However, the book does have one flaw, the literature. A reading for public awareness should be in simple unflattering language which can be understood by the most casual of readers. The book elaborates on a topic that should be of major public interest but for its own complexity is not. Therefore to make it more approachable one has to over-simplify the sketch of it so that the commoner can understand at least half of it. The book very subtly attacks the attack on the Indian constitution by explaining thoroughly what the constitution is.

The book overall is a good read, it enlightens the reader about the perils of delusion and provides a way out from the manipulative insights created by the people who tarnish the constitution for their own benefit.

*The Theory of Basic Structure: Savior of the Constitution and Democracy
by Vijay Kumar, Aakar Books
Price:$ 5.95

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Vol 57, No. 8, Aug 18 - 24, 2024