[On the 26th day of November, called the ‘Constitution Day’ in India, this special post is dedicated to the most unique principle/doctrine that governs Constitutional Law in India]
Often in newspapers and on television we hear demands from fringe groups calling for India to be declared as a Hindu rashtra (nation), switching to a dictatorial regime from a parliamentary democracy, restricting a community from voting etc. The knight in shining armor that saves India from these absurd demands is the ‘Basic Structure Doctrine’. I shall be discussing the origins of the doctrine; it’s evolution in India and its repercussions.
Before a discussion on the doctrine is undertaken, explaining the structure of modern democracies is necessary. Democracies in the world are usually governed by a Constitution, which is their supreme law. The Constitution lays down inter alia the principles and procedures of law making, governance and rights of the people etc. It also creates the pillars of governance i.e. Executive, Legislature and the Judiciary. The legislature makes the law, the executive implements the law and the judiciary adjudicates disputes arising out of that law. Legislature, commonly referred to as the Parliament is relevant for our discussion.
1. Parliament’s power to amend- Constituted v. Constituent:-
Parliament is the body entrusted with the task of making laws, which invariably includes the power to modify or repeal that law. However, often it is asked whether this power to modify/repeal the law includes the Constitution as well, which created the Parliament. The common answer is in the affirmative and the process is called an amendment, wherein a change by addition, deletion or correction is made in the Constitution (Black’s Law Dictionary at ¶ 94). However, the scope i.e. which parts of the Constitution can be amended witnesses’ divergence of opinions.
There are two legal terms that are often used while debating this question i.e. constituted power and constituent power. A ‘constituted’ power means the ability to do something with limits whereas a constituent power means the ability without limits. Accordingly, when applied to amendments, a constituent power would be the power to amend the Constitution without any limits whatsoever, whereas a constituted power would be a power with limits as prescribed in the Constitution (either expressly or impliedly). These limits can be of two types — procedural or substantive. Procedural limits would lay down guidelines (in the form of a procedure) to be followed while introducing and passing an amendment, whereas substantive limits would include certain areas which cannot be altered by the Parliament.
In cases where the amending power is constituent, a complete overhaul of the Constitution is permissible (for eg., a switch from democracy to dictatorship) whereas it is not so in cases of constituted power.
2. Lessons from Germany: Origins of the Doctrine*
The experience of Germany played a significant role for other countries in the area of amendments. It was Germany from where our Courts borrowed the doctrine. The country’s original Constitution titled the ‘Weimar Constitution’ vested the legislature with the power to amend with the procedural restraint of requiring 2/3 votes of the members of its Parliament. By easily complying with this procedure, Hitler overhauled the entire Weimar Constitution and took away rights of the people.
This experience taught the Germans, two lessons. First, mere procedural limits were not sufficient safeguards against anti-constitutional forces as evil could be imposed by following the procedure. Second, even the said rules of procedure could be changed by such regimes. These lessons were incorporated in their new Constitution.
The new Constitution called the ‘Basic Law’ introduced substantive limits to the amending power by expressly designating certain parts that cannot be modified by the Parliament. This clause was called the ‘eternity clause’ and included the principles of federalism, democracy, rule of law, separation of powers, basic rights of people etc.
3. Indian Experience:
After discussing the nature of amending power in Germany, two observations can be drawn. First, in the country a substantive restraint on the amending power was provided in the Constitution itself. Second, the grounds of restriction were limited and expressly stated. None of it is true for the Constitution of India.
The Constitution under Article 368 vests in the Parliament the powers of addition, variation and repealing any provision of the Constitution. However, this power has to be exercised by following a said procedure (provided in table below).
Therefore, it is clear that the Constitution placed procedural and not substantive restriction on the amending power. Therefore, theoretically the Parliament was empowered to completely overhaul the Constitution if it abided by the said procedure. Baby steps to this effect were taken and accepted in earlier cases like Shankari Prasad v. Union of India and Sajjan Singh v. State of Rajasthan, wherein the Parliament restricted the guaranteed fundamental right to property of its citizens. The Supreme Court upholding the amendments seconded the proposition that Parliament’s power is ‘constituent’ and unlimited.
The danger in this absolute proposition was highlighted by Justice Hidayatullah and Mudholkar separately (in their dissenting opinion in Sajjan Singh) wherein they argued that every Constitution has certain fundamental features that are beyond the reach of the Parliament and cannot be changed. The dissents became the majority in the latter case of I.C. Golaknath v. State of Punjab, which overruled all the previous decisions.
The Court through itself added a substantive restraint on the amending power, by providing immunity to Part III of the Constitution i.e. fundamental rights, which it believed were so transcendental that no authority could take them away.
The government however did not budge and the final chapter on this issue was set to be decided in the landmark case of Kesavananda Bharti v. State of Kerala. The case is unique for several reasons namely, it is the longest reported judgment in the Indian Supreme Court’s history, was heard by the largest bench ever constituted i.e. 13 judges with 11 opinions and had the longest hearing ever.
The Court here modified its earlier ruling but stuck to the substantive restrictions imposed. It held that although the Parliament has the power to amend the Constitution, this power cannot destroy the basic or fundamental feature of the Constitution (this came to be called ‘the basic structure’ doctrine. Interestingly, what is fundamental was left to the Courts to decide as and when the issue arose.
The grounds which could be garnered from the several opinions and subsequent judgments include:
- Articles 32 and 226 i.e. Right to approach Courts
- Federalism Secularism
- Free and Fair Elections
- Judicial Review
- Rule of law
- Separation of Powers
- Supremacy of the Constitution
Therefore, if an amendment curtails/modifies any of the above listed principles, the amendment could be struck down for violating the basic structure doctrine.
Relying on the said judgment, further attempts by the Government to immune the election of the Prime Minister from any challenge (Indira Gandhi v. Raj Narain), curtail revelation of criminal antecedents of parliamentarians etc (PUCL v. UOI). have all been thwarted by the Courts.
A little known fact about the judgment is that the Court’s approach seemed to heavily rely on the work of Prof. Conrad who was a renowned constitutional law Professor in Germany. Scholars like Prof. I.P. Massey argue that the Court’s language echoed the words of Prof. Conrad from a lecture he delivered in Banaras Hindu University in India. Sadly however, only Justice Khanna acknowledged the contribution in his opinion.
If one compares Germany’s eternity clause and India’s basic structure doctrine, there are three crucial differences. First, the restriction on the amending power in Germany is constitutional (i.e. provided in the Constitution) whereas in India it is extra-constitutional (i.e. not expressly provided but judicially developed). Second, the substantive restriction is exhaustive in Germany (i.e. the unamendable features are limited) whereas in India, the grounds are indicative and the Courts have time and again imposed more restrictions. Third, in Germany the power to change the unamendable parts of the Constitution is vested in the people i.e. a Constituent Assembly whereas in India, it rests with the Supreme Court.
The doctrine therefore adds extra-constitutional substantive restrictions to the already existing procedural restrictions. Practically, no government can thwart the parliamentary democracy in India, stifle the minorities, make India a Hindu rashtra or impose other such evils due to the doctrine (as democracy and secularism are considered basic features of our Constitution).
This judicial doctrine has been criticized by scholars as a case of legislative powers being subsumed by the judiciary. In other words, an allegation of unelected judges assuming the role of elected representatives has been levied. However, in the author’s opinion the doctrine is much needed in India, wherein the governments have shown a tendency to meddle with the minorities.
In the world’s largest democracy, with conflicting interests emerging constantly, our Constitution deserves to be lauded for its ability to withstand such challenges and protect the country.
[The opinions expressed in the article are solely of the author.]
 Interestingly, United Kingdom till date does not have an official Constitution and is governed by statutes. These statutes derive their validity from the presumption of the parliament being sovereign and representative of the people.
* For this part, I have relied on the works of Prof. Ulrich K. Preuss who is a Professor Emeritus of Law and Politics at the University of Berlin. His article titled ‘The Implications of Eternity Clauses: The German Experience’ is extremely intriguing and informative.
It is available here.
 Article 79(3) reads:
Amendments to this Basic Law affecting the division of the Federation into Länder, their participation in principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.
The principles inter alia include, Human Dignity, Personal Freedoms, Equality before Law, Freedom of Faith and Conscience, Freedom of Expression, Arts and Sciences etc.
 Interestingly, after the verdict, the new Chief Justice A.N. Ray (who superseded Justice Hegde) constituted a new bench of 13 judges to review the Kesavananda Bharti case. This was seen by all as a political move to serve Mrs. Indira Gandhi, who had appointed him Luckily, due to the efforts of the bar, the bench was dissolved soon and the decision has continued to be the law since then.