Parliament cannot seize to be a creature of the Constitution and become its master
In 2017 there was a referendum in Turkey to amend the constitution from a parliamentary form of government to a presidential form. This referendum to amend the constitution of Turkey was approved by the Turkish parliament and it came into effect in 2018. In the same way, India too has a parliamentary form of government. Does parliament have the power to amend the Indian Constitution from a parliamentary system to a Presidential form, or change the basic character of the state from a secular to a theocratic system through its amending power under Article- 368? The answer, for now, is “NO”, because India’s top court has ruled that along with many other key principles, the parliamentary form and secular character of the Indian state are part of the basic structure of the Indian constitution.
What is this basic structure and what restrictions does this doctrine have put on the parliament’s amending power? To answer all these questions we need to go back to the history of the Indian Constitution.
Since the adoption of the Indian Constitution debates have been started regarding the powers of the Indian parliament to amend the key provisions of the constitution. In the early years, India’s highest court conceded absolute powers to parliament in amending the constitution (Shankari Prasad case of 1951). However, in the Golaknath case, the Supreme Court took a U-turn and ruled that parliament cannot amend the fundamental rights and this power would be only with the constituent assembly. The framers of the Indian Constitution were anxious to have a document that could grow with a growing nation and adapt itself to the changing circumstances of a growing people. The constituent assembly has given such powers for amending the Constitution with regard to the need of the time to parliament under Article 368, and at the same time, powers have been conferred to the courts as well to nullify any law, rule, regulation that is in contravention with the fundamental rights under Article 13(2). The Supreme Court has used these powers to nullify many laws and constitutional amendments. The basic structure is nowhere mentioned in the Indian Constitution, neither mentioned in any statute or law nor properly defined by the Supreme Court. The idea that the parliament’s amending power is limited evolved gradually over time and in many cases. However, from time to time basic structure has been enhanced with some new principles and the supreme court has yet to define the exact basic structure of the Indian Constitution.
The basic structure doctrine in India has its genesis in the landmark judgment of the supreme court in the Keshvandanda Bharati vs the state of Kerala case in 1973. In 1970, Kesavananda Bharati challenged Kerala land reform legislation that imposed restrictions on the management of the religious property. The case was brought under Article 26 of the Indian Constitution, which deals with the right to manage religiously owned property without interference from the government. The Supreme Court convened the largest-ever bench of 13 judges to hear the case. The case also included the following questions: Was parliament’s power to amend the Constitution limitless? In other words, could parliament change, amend, or repeal any part of the Constitution, even if it meant removing all fundamental rights? In this judgment, the Supreme Court in its thin majority judgment (7:6) ruled that under article 368, the parliament is entitled to amend any provision and part of the Indian Constitution but held that it cannot alter the very basic feature of the Indian Constitution. Thus the Supreme Court put some kind of restrictions on the constituent powers of the Indian parliament. It also held that the Constitution is supreme and parliament derives its power from it. The parliament cannot seize to be a creature of the Constitution and become its master.
Since its inception in 1973, the doctrine of basic structure has been invoked several times by the Supreme Court of India. The first such instance was the Indira Nehru Gandhi vs Raj Narain case (1975). In this case, the Supreme Court struck down clause 4 of the 39th constitutional amendment, which kept the disputes related to the election of four high constitutional functionaries (President, Vice President, Prime Minister and the Speaker of Lok Sabha) outside the jurisdiction of the all the courts in the country. Similarly, in Minerva Mills vs the Union of India, the Supreme Court ruled that limited amending power of parliament is itself part of the basic structure. In L Chandra Kumar case, a bench of seven judges unequivocally declared that “the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution”.
The basic structure doctrine has been hailed as a brake against hasty and unreasonable legislative and executive actions. The Vice President of India and the law minister recently made statements that the selection procedure for Supreme Court judges needs to be reviewed. In 2014, the National Judicial Appointments Commission (NJAC) Act was approved overwhelmingly by parliament. In 2015, the Supreme Court struck down the NJAC Act as it was deemed to have violated the independence of the judiciary which is part of the basic structure of the Constitution.
In the constitutional bench of the Keshvandanda Bharti case, most often called the fundamental rights case, various judges gave different examples of what constitutes the basic structure of the Indian Constitution, including the supremacy of the Constitution, federal scheme, secular character, separation of powers, democratic nature, rule of law, liberty of expression and belief. But at one point they have a similar view that parliament has no power to destroy, alter, or emasculate the ‘basic framework’ of the Constitution.
Critics of this basic structure doctrine have called it undemocratic even recently the Vice President has criticised the basic structure idea since unelected judges can strike down any legislation, rule or amendment act by the elected representatives. However, its proponents have called this concept the safety valve against majoritarianism and authoritarianism. The basic structure doctrine is a testimony to the theory of constitutionalism. It has saved Indian democracy by putting a limitation on the constituent power of parliament. It helps to retain the basic tenants of the Constitution.
Author is a civil services aspirant