The Great Constitutional Debate
The scope of Parliament's power to amend the Constitution, particularly concerning Fundamental Rights (FRs), has been a central theme of constitutional jurisprudence and political debate in India. This led to a prolonged and dynamic interaction between the Parliament and the Supreme Court.
Initially, the judiciary upheld Parliament's sweeping power to amend any part of the Constitution. However, the Golak Nath case marked a significant shift, asserting the immutability of FRs. Parliament responded by reasserting its amending supremacy through the 24th Amendment.
The Culmination
This constitutional tug-of-war culminated in the landmark Kesavananda Bharati case, where the Supreme Court, while affirming Parliament's power to amend any part of the Constitution including FRs, introduced the revolutionary Doctrine of Basic Structure. This doctrine posits that Parliament's amending power is not absolute and cannot be used to alter or destroy the fundamental features or the basic framework of the Constitution.
Subsequent attempts by Parliament to nullify this doctrine were struck down by the judiciary, which has consistently reaffirmed and applied the Basic Structure doctrine, making it a cornerstone of Indian constitutionalism.
Evolution of Amending Power: A Timeline
Shankari Prasad vs. Union of India
Context: Challenge to the First Amendment (curtailed Right to Property, added Ninth Schedule).
SC Ruling: Upheld 1st Amendment. Parliament CAN amend FRs. 'Law' in Art 13(2) refers only to ordinary laws, not Constitutional Amendment Acts. Parliament's amending power (Art 368) is constituent power.
Sajjan Singh vs. State of Rajasthan
Context: Challenge to the 17th Amendment (further additions to Ninth Schedule).
SC Ruling: Reiterate Shankari Prasad. Parliament's amending power under Art 368 wide enough to include FRs. Dissenting judges sowed seeds of doubt regarding FRs' unamendability.
Golak Nath vs. State of Punjab
Context: Challenge to land reform laws and 17th Amendment.
SC Ruling (6:5): Overruled Shankari Prasad & Sajjan Singh. FRs are 'transcendental and immutable'. Parliament has NO power to abridge/take away any FR. Constitutional Amendment Act is 'law' under Art 13(2). Applied Prospective Overruling.
Impact: Created major constitutional crisis, making FRs virtually unamendable and hindering socio-economic reforms.
24th Constitutional Amendment Act
Purpose: To nullify Golak Nath and reassert Parliament's amending power.
- Amended Art 13: Added Cl. (4) - "Nothing in this article shall apply to any amendment of this Constitution made under article 368."
- Amended Art 368: Changed heading to "Power of Parliament to amend the Constitution and procedure therefor." Added Cl. (1) for constituent power, made Prez assent obligatory, added Cl. (3) - "Nothing in article 13 shall apply..."
Kesavananda Bharati vs. State of Kerala
Context: Challenge to 24th, 25th, and 29th Amendments. Heard by largest 13-judge bench.
SC Ruling (7:6): Overruled Golak Nath. Upheld 24th Am. (Parliament can amend FRs). Introduced Doctrine of Basic Structure: Parliament's amending power is NOT unlimited; cannot alter/destroy basic structure/features. No exhaustive list provided; to be determined case-by-case.
Impact: Landmark judgment. Established crucial limitation on Parliament's power, preserving Constitution's essence while allowing adaptation.
The Basic Structure Filter
Indira Nehru Gandhi vs. Raj Narain (Election Case)
Context: Challenge to 39th Amendment Act, 1975 (Art 329-A(4) to validate PM's election and oust judicial review).
SC Ruling: Applied Basic Structure Doctrine and struck down Art 329-A(4).
Significance: First practical application of Basic Structure to invalidate a constitutional amendment. Violated free & fair elections, rule of law, separation of powers.
42nd Constitutional Amendment Act ("Mini Constitution")
Context: Enacted during Emergency. Sweeping changes.
Key Changes to Art 368: Added Clauses (4) & (5) to declare Parliament's amending power absolute ("no limitation whatever") and beyond judicial review ("shall be called in question in any court"). Aimed to nullify Basic Structure Doctrine.
Minerva Mills vs. Union of India
Context: Challenge to clauses (4) and (5) of Art 368 added by 42nd Amendment.
SC Ruling: Invalidated Art 368(4)&(5). Reaffirmed that limited amending power of Parliament IS a basic feature. Parliament cannot enlarge its own limited power into an absolute one. Judicial review and harmony between FRs & DPSPs also basic features.
Significance: Firmly re-established supremacy of Basic Structure Doctrine and judicial review.
Waman Rao vs. Union of India
Context: Clarification on Basic Structure doctrine application.
SC Clarification: Basic Structure Doctrine applies to constitutional amendments enacted on or after April 24, 1973 (date of Kesavananda Bharati judgment). Earlier amendments not subject to this test.
I.R. Coelho vs. State of Tamil Nadu (Ninth Schedule Case)
Context: Scope of judicial review of laws placed in the Ninth Schedule.
SC Ruling: Reaffirmed Basic Structure Doctrine. Laws placed in Ninth Schedule on or after April 24, 1973, are open to challenge if they violate FRs that form part of the Basic Structure. Ninth Schedule cannot be a "constitutional black hole."
Prelims-Ready Notes
- Shankari Prasad (1951) & Sajjan Singh (1965): Parliament can amend FRs. 'Law' in Art 13(2) ≠ Const. Amendment.
- Golak Nath (1967): FRs 'transcendental'. Parliament cannot amend FRs. Const. Am. is 'law' under Art 13(2). Prospective overruling.
- 24th Am. (1971): Amended Art 13 & 368. Parliament can amend FRs; such Am. not 'law' under Art 13. Prez assent obligatory.
- Kesavananda Bharati (1973): Overruled Golak Nath. Upheld 24th Am. (Parl. can amend FRs). BUT, Parliament cannot alter "Basic Structure" or fundamental features of Constitution. No exhaustive list. Examples: Supremacy of Const, Democracy, Secularism, Federalism, Judicial Review, FR-DPSP balance.
- Indira Gandhi Case (1975): SC applied Basic Structure to strike down Art 329-A(4) (39th Am.) (violated free/fair elections).
- 42nd Am. (1976): Amended Art 368 (added Cl. 4 & 5) to declare no limit on Parl. amending power & no judicial review of amendments.
- Minerva Mills (1980): SC invalidated Art 368(4)&(5). Held limited amending power & judicial review are basic features. Harmony between FRs & DPSPs also basic feature.
- Waman Rao (1981): Basic Structure doctrine applies to amendments made on or after April 24, 1973 (Kesavananda date).
- I.R. Coelho (2007): Laws in 9th Schedule (post-April 24, 1973) open to challenge if they violate FRs forming part of Basic Structure.
Mains-Ready Analytical Notes
The Basic Structure Doctrine – A Judicial Innovation
- Purely judicial innovation, not explicit in Constitution.
- Response to perceived threats from unlimited parliamentary power.
- Powerful assertion of judicial review, safeguarding core values.
- Instrumental in protecting democracy, secularism, federalism, judicial independence.
Significance of Kesavananda Bharati
- One of the most important judgments in Indian (and global) constitutional history.
- Resolved conflict between parliamentary sovereignty and judicial supremacy.
- Gave Constitution inner resilience: amend but not destroy.
"Limited Amending Power" & "Judicial Review" as Basic Features
- Minerva Mills: Parliament cannot use limited power to make itself omnipotent. Crucial check against authoritarian tendencies.
- Judicial review ensures judiciary remains ultimate interpreter and guardian.
Ongoing Debate & Criticisms
- Criticisms: Lack of precise definition, undemocratic (unelected judges over elected reps), potential for judicial overreach.
- Defence: Necessary check against majority tyranny, preserves framers' fundamental values, provides stability, list evolves via case law.
Recent Debates & Affirmations
Vice President's Remarks (Early 2023)
The then Vice President, Jagdeep Dhankhar, questioned the Basic Structure doctrine, especially regarding the SC striking down the NJAC Act (99th Amendment) for affecting judicial independence.
Link to Content: This reignited the debate on parliamentary power vs. judicial review, highlighting ongoing tension.
Supreme Court's Affirmation
In response to such debates, the Chief Justice of India and other legal luminaries consistently reaffirm the Basic Structure doctrine as a non-negotiable part of Indian constitutionalism, essential for preserving its identity.
Note: Basic Structure is a settled principle, but its application and philosophical debate continue.
UPSC Previous Year Questions
Prelims MCQs
| Q.No. | Question | Options | Answer |
|---|---|---|---|
| 1 | The "Basic Structure Doctrine" of the Constitution of India was propounded by the Supreme Court in which of the following cases? | (a) Golak Nath vs. State of Punjab (b) Kesavananda Bharati vs. State of Kerala (c) Minerva Mills vs. Union of India (d) Shankari Prasad vs. Union of India |
(b) |
| 2 | Consider the following statements: (UPSC CSE 2020, adapted) 1. The Constitution of India classifies its amendment procedure as rigid, flexible and semi-rigid. 2. A constitutional amendment bill can be initiated only in the Lok Sabha. 3. The Supreme Court of India can strike down a constitutional amendment if it violates the basic structure of the Constitution. Which of the statements given above is/are correct? |
(a) 1 and 2 only (b) 3 only (c) 2 and 3 only (d) 1 and 3 only |
(b) |
| 3 | The 24th Constitutional Amendment Act, 1971, primarily aimed to: | (a) Introduce the Ninth Schedule to protect land reform laws. (b) Nullify the Supreme Court's judgment in the Golak Nath case and affirm Parliament's power to amend Fundamental Rights. (c) Expand the scope of Article 31C to cover all Directive Principles. (d) Make the President's assent to ordinary bills obligatory. |
(b) |
Mains Questions
1. "The 'basic structure' doctrine is a contested terrain between parliamentary sovereignty and judicial supremacy." Critically analyze this statement in the context of the evolution of Parliament's power to amend the Constitution of India.
- Introduction: Tension between Parliament's amending power and Judiciary's review.
- Evolution of the Contest: Shankari Prasad/Sajjan Singh (parliamentary upheld) → Golak Nath (judicial assertion) → 24th Amendment (parliamentary reassertion) → Kesavananda Bharati (judicial innovation, balance) → 42nd Am. (parliamentary attempt to nullify) → Minerva Mills (judicial striking down).
- Critique & Defence: Lack of definition, 'undemocratic' vs. check against tyranny, stability.
- Conclusion: Crucial judicial mechanism balancing power and preserving constitutionalism.
2. Trace the evolution of the Supreme Court's position on the amendability of Fundamental Rights, culminating in the 'Basic Structure' doctrine. What are the implications of this doctrine for constitutional governance in India?
- Introduction: FRs as core rights, question of their amendability.
- Evolution: Phase 1 (Amendable: Shankari Prasad, Sajjan Singh) → Phase 2 (Unamendable: Golak Nath) → Phase 3 (Amendable but with Limits: Kesavananda Bharati).
- Implications: Limited Amending Power, Supremacy of Constitution, Enhanced Judicial Role, Protection of Democratic Values, Stability with Adaptability.
- Conclusion: Mature jurisprudence where SC protects fundamental identity.
3. What do you understand by the ‘Doctrine of Basic Structure’? Discuss its significance with reference to landmark Supreme Court judgments after the Kesavananda Bharati case.
- Introduction: Define Basic Structure (Parliament cannot amend fundamental features).
- Significance: Preserves constitutional identity, limits arbitrary changes, upholds supremacy, strengthens judicial review.
- Application in Post-Kesavananda Judgments: Indira Gandhi vs. Raj Narain (first application), Minerva Mills (limited amending power, judicial review), Waman Rao (prospective application), I.R. Coelho (Ninth Schedule review).
- Elements: List illustrative features.
- Conclusion: Unshakeable pillar of Indian constitutionalism.
Trend Analysis (Past 10 Years)
Prelims Trends
- High focus on landmark cases (Shankari Prasad, Golak Nath, Kesavananda Bharati, Minerva Mills, I.R. Coelho).
- Understanding core ruling of each case (FR amendability, Art 368 scope).
- Basic Structure doctrine: origin, meaning, key implications.
- Knowledge of key amendments (24th, 42nd) and their purpose.
- Date of prospective application (Waman Rao).
Mains Trends
- Evolution of parliamentary amending power & judicial review is crucial.
- Critical analysis of Basic Structure doctrine (significance, criticisms, impact).
- Relationship between Art 13 and Art 368.
- Questions often require tracing chronological development.
- Analyzing balance between parliamentary sovereignty and judicial supremacy.
Practice Questions (Original MCQs)
| Q.No. | Question | Options | Answer | Explanation |
|---|---|---|---|---|
| 1 | Which of the following statements correctly reflects the Supreme Court's ruling in the Golak Nath vs. State of Punjab (1967) case regarding Parliament's power to amend Fundamental Rights? | (a) Parliament can amend Fundamental Rights without any limitations. (b) Fundamental Rights are part of the Basic Structure and hence cannot be amended. (c) Parliament has no power to abridge or take away Fundamental Rights as a constitutional amendment is 'law' under Article 13(2). (d) Parliament can amend Fundamental Rights only with ratification by a majority of the states. |
(c) | The Golak Nath case held that FRs are transcendental and Parliament has no power to abridge them, as a constitutional amendment is 'law' under Article 13(2). The Basic Structure doctrine (b) came later in Kesavananda Bharati. |
| 2 | The 42nd Constitutional Amendment Act, 1976, attempted to assert unlimited amending power for Parliament by adding clauses (4) and (5) to Article 368. These clauses were subsequently invalidated by the Supreme Court in which case? | (a) Kesavananda Bharati vs. State of Kerala (b) Indira Nehru Gandhi vs. Raj Narain (c) Minerva Mills vs. Union of India (d) Waman Rao vs. Union of India |
(c) | The Minerva Mills case (1980) struck down clauses (4) and (5) of Article 368 (added by 42nd Amendment) holding that limited amending power and judicial review are basic features. |
| 3 | The prospective application of the Basic Structure doctrine, meaning it would apply to constitutional amendments enacted on or after April 24, 1973, was clarified by the Supreme Court in: | (a) Shankari Prasad vs. Union of India (b) Sajjan Singh vs. State of Rajasthan (c) Golak Nath vs. State of Punjab (d) Waman Rao vs. Union of India |
(d) | The Waman Rao case (1981) clarified that the Basic Structure doctrine, laid down in Kesavananda Bharati (judgment date April 24, 1973), would apply prospectively from that date. |
Practice Questions (Original Mains)
1. "The Doctrine of Basic Structure is a judicial bulwark against the potential excesses of majoritarianism in amending the Constitution." Critically evaluate this statement, discussing the doctrine's evolution, its components, and its impact on the balance of power between Parliament and the Judiciary in India.
- Introduction: Define Basic Structure, state its role as a check.
- Evolution: Briefly trace from Golak Nath context to Kesavananda Bharati's definitive pronouncement.
- Bulwark Against Majoritarian Excesses: How it prevents altering fundamental identity, protects against authoritarianism, ensures continuity.
- Components (Illustrative): Supremacy of Constitution, rule of law, judicial review, etc.
- Impact on Balance of Power: Strengthened Judiciary, Limited Parliament, Debate (judicial supremacy vs. necessary check).
- Critical Evaluation: Positives (preserved democracy, stability) vs. Negatives (vagueness, subjectivity, undemocratic).
- Conclusion: Vital safeguard for constitutionalism and democratic values.
2. Analyze the constitutional journey from Shankari Prasad to I.R. Coelho, focusing on the Supreme Court's evolving interpretation of Parliament's power to amend Fundamental Rights and its culmination in the inviolability of the 'Basic Structure' even concerning laws in the Ninth Schedule.
- Introduction: Dynamic interplay between Parliament and Judiciary.
- Phase 1: Unfettered Power (Shankari Prasad, Sajjan Singh).
- Phase 2: FRs Sacrosanct (Golak Nath).
- Phase 3: Parliamentary Reassertion (24th Amendment).
- Phase 4: Kesavananda Breakthrough (Basic Structure).
- Phase 5: Shielding Laws (Ninth Schedule - Art 31B).
- Phase 6: Basic Structure Extends to Ninth Schedule (I.R. Coelho) - "Twin test", no "constitutional black hole".
- Inviolability of Basic Structure: Ultimate check on Parliament's amending and immunizing power.
- Conclusion: SC's progressive assertion as guardian of Constitution's fundamental identity.