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DAILY
CLASS NOTES
Indian Polity

Lecture - 10
Basic Structure Doctrine
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Basic Structure Doctrine

1st Amendment Act, 1951:
 To counter the widespread inequality and land concentration in the hands of the few, the Bihar government
passed the Zamindari Abolition Act, 1948 for land distribution among the people. But it was struck down by
the Patna High Court.
 Post formation of the Constitution, the challenge to this arose because the Right to Property was incorporated
into the Constitution under Article 19 (1) (f), which is a Fundamental Right.
 To resolve these inconsistencies, the 1st Constitutional Amendment was brought in 1951 by the Parliament
and made the Right to Property a limited right.
 It further added Article 31A, 31 B, and related Schedule IX in the Constitution.
 Article 31A said that property can be acquired for national importance purposes.
 Article 31B said that the laws in the IX Schedule shall not be challenged in the courts i.e., out of the
judicial review power of the courts.
 Then finally, the issue reached the Supreme Court in the Shankari Prasad Case, and the court held the validity
of the 1st Constitutional Amendment.

Shankari Prasad Case 1951:

 Questions raised in the case were:
1. Can the Parliament amend Fundamental Rights?
2. Whether Directive Principles of State Policy (DPSP) are supreme over Fundamental Rights?
3. Is IX Schedule a valid Amendment?
4. Definition of law under Article 13(2).
 By the 1st Amendment Act, Parliament wanted to implement Article 46 under DPSP , (duty of the State to
provide benefits to socially and educationally backward class of SC/ST).

Explanation of Questions 1 and 2:

 At the time of enforcement of the constitution, in the 1950s, the question in front of the Constituent Assembly
was that there are certain lists of rights and obligations.
 Out of these, few rights can be given immediately as the State doesn't need a lot of resources to implement
them, as well as, they are basic/fundamental in nature. Hence, these obligations were termed Fundamental
Rights.
 Hence, there were certain Rights and Obligations of the State which were classified into two formats:
 Immediate Rights: These are to be given immediately like life, liberty, property, and equality and while giving
such rights, the State is not required to spend much of its resources on its implementation.
 On the other hand, there was the Directive Principle of State Policies.
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 It is a direction to the State that, after 1950, as soon as the situation improves, the rights as directed in the
Constitution under DPSP should be given to the people.
 That's why these rights were kept separate from the Fundamental Rights (FRs), as FRs are enforceable
in nature.
 But there were certain rights that the State wanted to give, but the atmosphere was not conducive so they
could have been implemented immediately.
 Hence, subjects like education, upliftment of SC/STs could wait, whereas the Right to life has to be
immediate in effect.
 By removing fundamental rights such as the Right to Property, the State was trying to ensure equality by
ensuring that the downtrodden class of society can also own property [before that, Property was a feature
of the upper class only].
 Hence, in order to uplift the status of SC/STs, they should also be given land which they can own and use for
agricultural purposes, hence in this way they can uplift their status.
 That's why the State was taking away the property in order to implement Article 46 (The State shall promote
with special care the educational and economic interests of the weaker sections of the people, and, in particular,
of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms
of exploitation).
 This created a notion that the State is trying to implement DPSP over Fundamental Rights, which is
not possible.
Hence, the question was raised in the court: Is it possible that, anytime, DPSP can be put above the Fundamental
Rights, (where FRs are enforceable, while DPSPs are not)?

Judgment of the Supreme Court:

 The Court held that the Parliament has the power to amend Fundamental Rights and such an amendment does
not come under "Law" under Article 13 (3).
 [However, Article 13 (2) says that the Parliament cannot bring any law which may take away
Fundamental Rights].
 Hence, in order to bypass Article 13 (2), Parliament said that every amendment does not fall under the
purview of 'Law'.
 Applying the "Doctrine of Harmonious Construction", the Court replied that:
 Whenever there is a conflict between Fundamental Rights and DPSP, both should be implemented in the
public interest.
 Neither Fundamental Right nor DPSP is supreme. The court should try to implement/ensure harmony
between them.
 Thus, it was concluded that the Parliament has the power to amend Fundamental Rights.
 Post this, the Pandora Box of Amendments took place and across the Nation, more and more amendments
were passed. This whole idea of the amendment was challenged in the Sajjan Singh case.
 As the Parliament can amend the constitution, there is no point in discussing the IX Schedule.
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 Furthermore, the court also said that "In the context of Article 13, "Law" must be taken to mean rules or
regulations made in the exercise of ordinary legislative power and not amendments to the Constitution
made in the exercise of constituent power with the result that Article 13(2) does not affect amendments made
under Article 368.

Questions raised by Shankari Prasad Case Supreme Court Verdict

 Can Parliament amend Fundamental Rights?  Yes, Parliament can amend Fundamental
 Whether Directive Principles are Supreme or Rights.
Fundamental Rights Supreme?  Both are important, Article 46 following the
‘Doctrine of Harmonious Construction’.
 Is IX Schedule a valid Amendment?  It also upheld the IX Schedule Amendment as
valid.
 The definition of law under Article 13(2)?  The court held that Amendment under Article
368 does not constitute the law for the provision
of Article 13(2)

Sajjan Singh Case 1964:

 In Sajjan Singh Case (1965), the Supreme Court upheld the Shankari Prasad Judgment that the Parliament
can amend any part of the Constitution including the Fundamental Rights.
 As the ruling in Sajjan Singh case was the same as Shankari Prasad, no new outcome was traced.
I.C. Golaknath vs State of Punjab Case (1967):
 The State of Punjab passed laws like Land Ceiling Act and Tenancy Act to acquire land and to give effect
to the land reforms.
 Golaknath brothers held around 600-700 acres of land in Punjab.
 Hence, once the Punjab government passed the law, the Golakhnath brothers' property was to be acquired.
Hence this law was challenged in the court of law.
 During that time, in 1968, Indira Gandhi's government was already going through uncertainty due to the
various wrong decisions taken in the past.
 The government already lost many north Indian states in the elections.
 So ideally, at this time, when the cases went to the court, the judiciary was more in favor of the fact that the
Parliament should not amend the constitution.
Questions Raised in I. C. Golaknath Case:
 The question of whether the Parliament has the right to take away Fundamental Rights was again put before
the courts.
 Court held that the Parliament does not have the power to amend the constitution. This power is only available
with the Constituent Assembly.
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 In case the Parliament wants to amend the constitution, it should create a new Constituent Assembly.
 The court also found a technical glitch in the Constitution where Article 368 of our Constitution only provides
the procedure to amend the Constitution. It does not give the power to the Parliament to amend the
constitution. [Before the 24th Amendment Act, in 1967, Article 368 only provided for procedures to amend
the Constitution. Hence the word " power" was missing in this definition of Article 368.]
 The court also said that till now 17 amendments have already been made, hence, this judgment will not apply
retrospectively.
 Thus, the court indicated that the Parliament cannot autocratically amend the Constitution.
Doctrine of Prospectivity:
 It is the applicability of the judgment from the date of the judgment.
 It dictates that a decision made in a particular case would have operation only in the future and will not carry
any retrospective effect on any past decisions.
 This doctrine was first invoked in India in the case of Golak Nath v. the State of Punjab by Chief Justice Kokka
Subba Rao.
Doctrine of Retrospectivity:
 It is the applicability of the judgment from the back date.
 It means giving effect to the amendment in the present law before the date on which the changes were brought
in.
Response of the Indira Gandhi Government to the Court’s Decision:
 In response to I.C. Golaknath judgment, Indira Gandhi brought the 24th Amendment and 25th Amendment.
 24th Amendment: Article 368 was amended and the word "power" was added. It gave power to the
Parliament to amend Fundamental Rights without any restrictions.
 25th Amendment: It gave power to the Parliament to acquire property without any restrictions.
 Art 368 (3): Article 368 was made immune to Article 13. This meant that the Parliament has now got immunity
to amend Fundamental Rights. [Immunity means protection/safety].
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Kesavananda Bharati Case (1973):

 In the Keshavananda Bharati case, relief was sought against the Kerala government that implemented two state
land reform laws, which imposed restrictions on the management of religious property.
 Keshavanand Bharti, along with others, filed a petition in the court that the government is unnecessarily
taking away their land.
 This case was challenged under Article 26.
 As India is a Secular nation, it is a fundamental right to manage religiously owned property without
government interference.
 Hence, the property is not private property but Ashram's property which is used for religious purposes.
 The key question before the Supreme Court was:
 Is the power of the Parliament to amend the constitution unlimited?
 Can Parliament take away fundamental rights by amendment?
 This case turned out to be one of the important cases for which a thirteen judges bench was formed to decide
the case.
 The court had to take the decision out of several choices:
 Should the Parliament be allowed to amend the constitution?
 Should the Parliament be denied the process of amendment totally?
 Further, if the amendment is allowed, it should be done with due diligence. There should be some limit
fixed to how much degree the amendment should be allowed.
 Hence, the judges referred to the German Constitution of 1941, which was also amended after the decline of
Hitler's era.
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 Keeping in mind Hitler's era, Germany added the "Doctrine of Implied Limitation", which means that
the Parliament can amend the constitution, but the amendment power should not be absolute. There should
be certain restrictions over the amendment power of the Parliament, i.e. implied limitation.
 The Parliament should be limited in the usage of the power of the amendment.
 The Court in a 7 : 6 verdict (7 in favor, 6 in against) held that the Parliament can amend the fundamental
rights provided it adheres to the Basic Structure of the Constitution.
 However, the court did not explain what amounts to 'Basic Structure'.
 Thus, the Kesavananda Bharati Case gave power to the Parliament to amend the constitution. But also
took away the absolute power to do so.

Note: Basic Structure Doctrine is taken from the German principle of Doctrine of Implied Limitation.

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