DOCTRINE OF BASIC STRUCTURE : WHETHER PROGRESSIVE PRINCIPLE OR DILUTION OF FUNDAMENTAL RIGHTS ?
Doctrine of Basic Structure is a celebrated doctrine under Indian Jurisprudence and it is hailed as savior of Constitution. But a deeper analysis shows that the edifice of basic structure doctrine is standing on the grave of Fundamental Rights.
How Doctrine of Basic Structure evolved ?
The Basic structure doctrine was an outcome of various litigations before the Supreme Court against agrarian reform measures initiated by Union and State Governments after independence. Various states had passed Zamindari Abolition Acts. These Acts were in conflict with Fundamental Rights particularly Article 31 which granted right to property to citizen. Article 13 provided that any laws inconsistent with Fundamental Rights will be void.
Zamindari Abolition Act was challenged before High Courts in Bihar, Madhya Pradesh and Uttar Pradesh. In Bihar Zamindari Abolition Act was held unconstitutional by Patna High Court.
Parliament vide 1st Amendment introduced Article 31A, 31B and Ninth Schedule. Article 31 A provided that any land acquisition laws will not be deemed to be held inconsistent with Fundamental Rights. Article 31B provided that any laws included in the Ninth Schedule will be immune to any judicial review. This Amendment was challenged before the Supreme Court in Sankari Prasad Singh Deo Vs Union of India (1951 AIR458) wherein this amendment was held valid. The Supreme Court held that Parliament has two types of powers i.e. Constituent Power and Legislative Power. Laws passed by Parliament under its legislative powers are subject to Article 13 but Amendment Laws passed under its “constituent power” are not subject to Article 13. It is pertinent to mention in the Constitution there was no such differentiation. It was a judicial interpretation.
By 17th Amendment some more laws were included in 9th Schedule, which was challenged before the Supreme Court in Sajjan Singh Vs. State of Rajasthan (1965 AIR 845 ). The Supreme Court followed Sankari Prasad Case and upheld the amendment.
In I. C. Golaknath Vs. State of Punjab (1967 AIR 1643 ) the Supreme Court overruled earlier judgments and passed a great judgment wherein it was held that Fundamental Rights are primordial rights cannot be amended by Parliament.
Government headed by Smt. Indira Gandhi passed many amendments which had bearing on Fundamental Rights.
24th Amendment was passed to nullify Golaknath Judgment. This amendment amended both Article 13 and Article 368. It provided that any Fundamental Rights can be amended under Article 368.
The Union Government has taken steps for nationalization of banks, which was challenged before the Supreme Court in R. C. Cooper Vs. Union of India (1970AIR564 ). The Supreme Court set aside the Nationalisation of Banks. Parliament passed 25th Amendment to nullify this judgment. 25th Amendment Act provided that any Court cannot review any acquisition of property on the ground of adequacy of compensation. It also provided that if any measures had been taken to give effect to Article 39 (b) and (c) of Directive Principles of State Policy the same can not be questioned on the ground that it violates article 14, 19 and 31.
The Union Government has abolished privy purses. This was challenged in Maharajadhiraj Madhav Rao Jiwaji Sindcia Vs. Union Of India (1971 AIR 530 ) which set aside abolition of privy purses. 26th Amendment was passed to nullify this judgment of the Supreme Court.
Kesavanand Bharati Case
24th , 25th and 26th Amendment was challenged in Kesavanand Bharati Vs.State of Kerala (AIR1973SC1461) . Golaknath Judgment was overruled in this case and the Supreme Court propounded “basic structure” principle. The Supreme held that basic structure of the Constitution cannot be amended. Basic Structure of the Constitution has not been defined. It depends on the case to case basis. After Kesavanand Bharati judgment, Fundamental Rights can be amended but such Fundamental Rights cannot be amended which form basic structure of the Constitution. Most surprisingly for amendment of Fundamental Rights even ratification of majority of State Legislature is not required as is the case with many provisions of the Constitution.
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.