The Basic Structure Concept- the Kesavanada milestone

The pre-Kesavanada position

Parliament’s authority to amend the Constitution, particularly the chapter on the fundamental rights of citizens, was challenged as early as in 1951. After independence, several laws were enacted in the states with the aim of reforming land ownership and tenancy structures. This was in keeping with the ruling Congress party’s electoral promise of implementing the socialistic goals of the Constitution[contained in Article 39 (b) and (c) of the Directive Principles of State Policy] that required equitable distribution of resources of production among all citizens and prevention of concentration of wealth in the hands of a few. Property owners — adversely affected by these laws — petitioned the courts. The courts struck down the land reforms laws saying that they transgressed the fundamental right to property guaranteed by the Constitution. Piqued by the unfavourable judgements, Parliament placed these laws in the Ninth Schedule of [2] the Constitution through the First and Fourth amendments (1951 and 1952 respectively), thereby effectively removing them from the scope of judicial review.

[Parliament added the Ninth Schedule to the Constitution through the very first amendment in 1951as a means of immunising certain laws against judicial review. Under the provisions of Article 31,which themselves were amended several times later, laws placed in the Ninth Schedule — pertaining to acquisition of private property and compensation payable for such acquisition — cannot be challenged in a court of law on the ground that they violated the fundamental rights of citizens. This protective umbrella covers more than 250 laws passed by state legislatures with the aim of regulating the size of land holdings and abolishing various tenancy systems. The Ninth Schedule was created with the primary objective of preventing the judiciary – which upheld the citizens’ right to property on several occasions – from derailing the Congress party led government’s agenda for a social revolution.[3] ]

Property owners again challenged the constitutional amendments which placed land reforms laws inthe Ninth Schedule before the Supreme Court, saying that they violated Article 13 (2) of the Constitution.

Article 13 (2) provides for the protection of the fundamental rights of the citizen.[4] Parliament and thestate legislatures are clearly prohibited from making laws that may take away or abridge the fundamental rights guaranteed to the citizen. They argued that any amendment to the Constitution had the status of a law as understood by Article 13 (2). In 1952 (Sankari Prasad Singh Deo v. Unionof India [5]) and 1955 (Sajjan Singh v. Rajasthan[6]), the Supreme Court rejected both arguments and upheld the power of Parliament to amend any part of the Constitution including that which affects the fundamental rights of citizens. Significantly though, two dissenting judges in Sajjan Singh v.Rajasthan case raised doubts whether the fundamental rights of citizens could become a plaything of the majority party in Parliament.


Emergence of the Basic Structure Concept- the Kesavanada milestone

Inevitably, the constitutional validity of these amendments was challenged before a full bench of the Supreme Court (thirteen judges). Their verdict can be found in eleven separate judgements.[13] Nine judges signed a summary statement which records the most important conclusions reached by them in this case. Granville Austin notes that there are several discrepancies between the points contained in the summary signed by the judges and the opinions expressed by them in their separate judgements.[14] Nevertheless, the seminal concept of ‘basic structure’ of the Constitution gained recognition in the majority verdict.

All judges upheld the validity of the Twenty-fourth amendment saying that Parliament had the power to amend any or all provisions of the Constitution. All signatories to the summary held that the Golaknath case had been decided wrongly and that Article 368 contained both the power and the procedure for amending the Constitution.

However they were clear that an amendment to the Constitution was not the same as a law as understood by Article 13 (2).

[It is necessary to point out the subtle difference that exists between two kinds of functions performed by the Indian Parliament:

  1. a) it can make laws for the country by exercising its legislative power[15] and
  2. b) it can amend the Constitution by exercising its constituent power.

Constituent power is superior to ordinary legislative power. Unlike the British Parliament whichis a sovereign body (in the absence of a written constitution), the powers and functions of the IndianParliament and State legislatures are subject to limitations laid down in the Constitution. TheConstitution does not contain all the laws that govern the country. Parliament and the statelegislatures make laws from time to time on various subjects, within their respective jurisdictions. Thegeneral framework for making these laws is provided by the Constitution. Parliament alone is given the power to make changes to this framework under Article 368 [16]. Unlike ordinary laws,amendments to constitutional provisions require a special majority vote in Parliament.

Another illustration is useful to demonstrate the difference between Parliament’s constituent powerand law making powers. According to Article 21 of the Constitution, no person in the country maybe deprived of his life or personal liberty except according to procedure established by law. The Constitution does not lay down the details of the procedure as that responsibility is vested withthe legislatures and the executive. Parliament and the state legislatures make the necessary lawsid entifying offensive activities for which a person may be imprisoned or sentenced to death. The executive lays down the procedure of implementing these laws and the accused person is tried in acourt of law. Changes to these laws may be incorporated by a simple majority vote in the concernedstate legislature. There is no need to amend the Constitution in order to incorporate changes to theselaws. However, if there is a demand to convert Article 21 into the fundamental right to life byabolishing death penalty, the Constitution may have to be suitably amended by Parliament using itsconstituent power.

Most importantly seven of the thirteen judges in the Kesavananda Bharati case, including Chief Justice Sikri who signed the summary statement, declared that Parliament’s constituent powerwas subject to inherent limitations. Parliament could not use its amending powers under Article 368 to ‘damage’, ’emasculate’, ‘destroy’, ‘abrogate’, ‘change’ or ‘alter’ the ‘basic structure’ or framework of the Constitution.


Basic Features of the Constitution according to the Kesavanada verdict

Each judge laid out separately, what he thought were the basic or essential features of the Constitution. There was no unanimity of opinion within the majority view either.

Sikri, C.J. explained that the concept of basic structure included:

  • supremacy of the Constitution
  • republican and democratic form of government
  • secular character of the Constitution
  • separation of powers between the legislature, executive and the judiciary
  • federal character of the Constitution

Shelat, J. and Grover, J. added two more basic features to this list:

  • the mandate to build a welfare state contained in the Directive Principles of State Policy
  • unity and integrity of the nation

Hegde, J. and Mukherjea, J. identified a separate and shorter list of basic features:

  • sovereignty of India
  • democratic character of the polity
  • unity of the country
  • essential features of the individual freedoms secured to the citizens
  • mandate to build a welfare state

Jaganmohan Reddy, J. stated that elements of the basic features were to be found in the Preamble of the Constitution and the provisions into which they translated such as:

  • sovereign democratic republic
  • parliamentary democracy
  • three organs of the State

He said that the Constitution would not be itself without the fundamental freedoms and the directive principles.[17]

Only six judges on the bench (therefore a minority view) agreed that the fundamental rights o fthe citizen belonged to the basic structure and Parliament could not amend it.


The minority view

The minority view delivered by Justice A.N. Ray (whose appointment to the position of Chief Justice over and above the heads of three senior judges, soon after the pronunciation of the Kesavanand averdict, was widely considered to be politically motivated), Justice M.H. BegJustice K.K. Mathew and Justice S.N. Dwivedi also agreed that Golaknath had been decided wrongly. They upheld the validity of all three amendments challenged before the court. Ray, J. held that all parts of the Constitution were essential and no distinction could be made between its essential and non-essential parts. All of them agreed that Parliament could make fundamental changes in the Constitution by exercising its power under Article 368.

In summary the majority verdict in Kesavananda Bharati recognised the power of Parliament to amend any or all provisions of the Constitution provided such an act did not destroy its basic structure. But there was no unanimity of opinion about what appoints to that basic structure. Though the Supreme Court very nearly returned to the position of Sankari Prasad (1952) by restoring the supremacy of Parliament’s amending power, in effect it strengthened the power of judicial review much more.[18]

The Golaknath verdict

In 1967 an eleven-judge bench of the Supreme Court reversed its position. Delivering its 6:5 majority judgement in the Golaknath v. State of Punjab case [7], Chief Justice Subba Rao put forth the curious position that Article 368, that contained provisions related to the amendment of the Constitution,merely laid down the amending procedure. Article 368 did not confer upon Parliament the power to amend the Constitution. The amending power (constituent power) of Parliament arose from other provisions contained in the Constitution (Articles 245, 246, 248) which gave it the power to make laws (plenary legislative power). Thus, the apex court held that the amending power and legislative powers of Parliament were essentially the same. Therefore, any amendment of the Constitution must be deemed law as understood in Article 13 (2).

The majority judgement invoked the concept of implied limitations on Parliament’s power to amend the Constitution. This view held that the Constitution gives a place of permanence to the fundamental freedoms of the citizen. In giving the Constitution to themselves, the people had reserved the fundamental rights for themselves. Article 13, according to the majority view, expressed this limitation on the powers of Parliament. Parliament could not modify, restrict or impair fundamental freedoms due to this very scheme of the Constitution and the nature of the freedoms granted under it. The judges stated that the fundamental rights were so sacrosanct and transcendental in importance that they could not be restricted even if such a move were to receive unanimous approval of both houses of Parliament. They observed that a Constituent Assembly migh tbe summoned by Parliament for the purpose of amending the fundamental rights if necessary.

In other words, the apex court held that some features of the Constitution lay at its core and required much more than the usual procedures to change them.

The phrase ‘basic structure’ was introduced for the first time by M.K. Nambiar and other counsels while arguing for the petitioners in the Golaknath case, but it was only in 1973 that the concept surfaced in the text of the apex court’s verdict.



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