Need for Review of Basic Structure Doctrine

Why in the News?

Recently, former CJI and present Rajya Sahbha MP Ranjan Gogoi held that the “Basic Structure Doctrine” has “a very debatable jurisprudential basis”, raising a question of its review.

Evolution of Basic Structure doctrine:

1. Shankari Prasad case (1951)
   1. The constitutional validity of the 1^st amendment to the constitution that curtailed the fundamental right (FR) of Right to property was challenged.
   2. Verdict:
      • Parliament can amend the Constitution under Article 368 including power to amend the FRs
      • The term ‘law’ under Article 13 includes only ordinary laws and not constitutional amendment acts (CAA). Hence, the Parliament can take away any of the FRs through a CAA and such a law will not be void under Article 13.
2. Golak Nath case (1967)
   1. The constitutional validity of the 17^th amendment act that inserted certain state acts into the Ninth Schedule was challenged.
   2. Verdict:
      • The Supreme Court reversed its earlier stand stating that FRs are given ‘transcendental and immutable’ position and hence cannot be taken away by the Parliament.
      • Article 13 includes CAA within the meaning of law and hence they can be held void for violation of any of the FRs.
3. Parliament introduced the 24^th CAA:
   1. Parliament has the power to take away or abridge any of the FRs under Article 368.
   2. Such CAA will not be considered to be a law under Article 13.
4. Kesavananda Bharati case (1973):
   1. The SC upheld the 24^th CAA, citing that Parliament has powers to abridge or take away any of the FRs.
   2. Doctrine of Basic structure was laid down:
      • The Constituent power of the Parliament under Art.368 cannot be used to alter the basic structure of the constitution.
5. Reiteration of the Basic Structure doctrine:
   1. Indira Nehru Gandhi case (1975)
      • 39^th CAA was invalidated which kept the election disputes involving the Prime Minister and the Speaker, outside the ambit of all courts.
      • This was beyond the power of the parliament as it affected the Basic structure of the constitution.
   2. Minerva Mills case (1980)
      • A provision of 42^nd CAA that amended Art 368 to give Parliament unlimited constituent powers and stated that no amendment shall be questioned on any grounds including contravention of FRs in any court of law.
      • This was held invalid as Judicial Review forms an integral part of basic Structure of the Constitution.

Significance of Basic Structure doctrine:

1. The judicial innovation has ensured that the power of amendment under Article 368 is not misused by Parliament.
2. Parliament cannot enjoy any right to repeal, abrogate or destroy the basic features of the constitution.
3. The Doctrine also ensures protection of democratic principles by preventing Parliament to acquire unlimited powers which can lead to an autocratic state.
4. Safeguards the identity of the constitution as the basic tenants of the constitution remains unaltered.

Need for a review of the Basic structure doctrine:

1. Areas off-limits to the executive gets longer. 
   • The absence of exclusive and definitive list on what constitutes BSD as the judiciary decides this on a case-by-case basis, it renders the expansion of areas off-limits to the executive.
2. There are sufficient countervailing forces of Indian politics with a watchful judiciary and an empowered legislature to provide control mechanisms:
   • Committee system to review laws
   • Accountability to two different electorates
   • Following different electoral cycles
3. The BSD freezes the capacity of political system to adapt to the Constitution to challenging times that are required to withstand the pressures emanating from the deeper layers of society and history. 
4. It puts a “cancel culture” thereby foreclosing debate which serves neither the cause of justice nor of democratic deepening and consolidation.

MCQ:

Which among the following forms the basic Structure of the Constitution?

1. 1. 1. 1. Independence of the judiciary
         2. Welfare state
         3. Free and fair elections
         4. Secularism
         5. Liberty of citizens

How many are correct?

1. Only 2
2. Only 3
3. Only 4
4. All five

Ans: b)

Secularism and Liberty of citizens have not been declared by the judiciary as basic structure of the constitution. Hence, option b) is correct.

Explanation:

Elements of Basic Structure Doctrine as declared by the judiciary:

1. The supremacy of the Constitution,
2. The rule of law
3. Effective access to Justice
4. Independence of the judiciary
5. Doctrine of separation of powers
6. Limited power of the Parliament to amend the Constitution
7. Sovereign democratic republic
8. The parliamentary system of government
9. The principle of free and fair elections
10. Welfare state
11. Free and fair elections
12. Federal character of the Constitution