Basic Structure of Constitution

Polity Notes
Basic Structure of the Constitution

Emergence of Basic Structure
 The debate over which among Article 13(2) and Article 368 is superior, started with the
implementation of the Constitution.
Shankari Prasad Case (1951)

 Under Article 368, the power of Parliament to amend the Constitution includes that of
amending Fundamental Rights.
 Article 13(2) is only applicable on ordinary law and not on Article 368.
 This means the Parliament can amend Fundamental Rights.
Sajjan Singh Case (1965)

 Supreme Court reiterated its previous judgement, saying that Fundamental Rights can be
amended through a Constitutional Amendment.
Golaknath Case (1967)

 Article 13(2) is applicable on Article 368 hence Parliament cannot curtail Fundamental Rights.
 The Supreme Court reversed its earlier verdict.
 However, amendments made in Fundamental Rights before this judgement were termed
constitutional by the court.
24th Constitutional Amendment

 Article 13(4) and Article 368(1) were added to the Constitution and made provisions that
 Article 13(2) is not applicable on Article 368 and hence Parliament under Article 368 can
amend Fundamental Rights.
Kesavananda Bharti Case (1973)

 The Supreme Court declared 24th Constitutional Amendment as valid.
 It gave the 'doctrine of basic structure' for the first time.
 It held that Parliament can amend any part of the Constitution including Fundamental Rights
but it cannot distort the basic structure of the Constitution. Which means basic structure
cannot be eliminated or changed.
 According to Supreme Court, basic structure is not a fact but a doctrine, and therefore
according to conditions of the country with time, its definition can change. Therefore, Courts
will keep defining it from time to time.
Indira Nehru Gandhi Case (1975)

 Under this, judiciary again reinforced the doctrine of basic structure.
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Polity Notes
 In this, judiciary termed one provision of 39th Constitutional Amendment, which kept the
disputes relating to the election of Prime Minister and Speaker of Lok Sabha outside the
preview of courts, against the basic structure of the Constitution and invalidated it.
42nd Constitutional Amendment (1976)

 Under this Article 368 was amended to make legislative powers of Parliament unlimited
and any amendment made by the Parliament will not be termed as violation of Constitution
or cannot be challenged in the courts
Minerva Mills Case (1980)

 The court declared the above provisions done through 42nd Constitutional Amendment as
unconstitutional.
 Because they restricted the power of 'judicial review' the judiciary, which is a basic struc-
ture of the Constitution.
Waman Rao Case (1981)

 The court specified that the judgement of Basic Structure will be applicable on judgements
after 24 April 1973 (Kesavananda Bharti Case)
The court through its various judgements define the basic structure of the
Constitution as -
1. Supremacy of the Constitution
2. Sovereign, democratic and republican nature of the Indian polity
3. Secular character of the Constitution
4. Separation of powers between the legislature, the executive and the judiciary
5. Federal character of the Constitution
6. Unity and integrity of the nation
7. Welfare state (socio-economic justice)
8. Judicial review
9. Freedom and dignity of the individual
10. Parliamentary system
11. Rule of law
12. Harmony and balance between Fundamental Rights and Directive Principles
13. Principle of equality
14. Free and fair elections
15. Independence of Judiciary
16. Limited power of Parliament to amend the Constitution
17. Effective access to justice
18. Principles (or essence) underlying fundamental rights
19. Powers of the Supreme Court under Articles 32, 136, 141 and 142
20. Powers of the High Courts under Articles 226 and 227
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Polity Notes
The ADM Jabalpur Case
 On 25 June, 1975 the President of India declared Emergency (Article 352- internal distur-
bance)
 Under Article 359 the President suspended the right of any person to move any Court for
the enforcement of the rights under Articles 14, 21 and 22 for the period of Emergency
(after 44th Constitutional amendment, enforcement of Article 20 and 21 can never be sus-
pended).
 Emergency imposition led detention of politicians and activists which was challenged be-
fore various High Courts. 9 High Courts accepted the right of detainees to file writs under
habeas corpus. (Article 226).
 The Central government appealed in the Supreme Court against these judgements, in the
case of ADM Jabalpur v/s Shivkant Shukla, which was referred to 5-judge Constitution
Bench (Chief Justice A.N. Ray, Justice M. Hameedullah Beg, Justice P.N. Bhagwati ,Justice
Y.V. Chandrachud and Justice H.R.Khanna). The majority of 4 out of 5 judges ruled in the
favour of the government.
 Supreme Court held that no person can file any writ petition under Article 226 to challenge
the order of detention. It upheld Article 359 of Constitution which provided that on proc-
lamation of Emergency, the President may declare that the right to move any court for the
enforcement of fundamental rights remains suspended.
 Supreme Court also held that with the proclamation of emergency, and the subsequent
suspension of enforcement of Article 21, no writ lies in court against detention of a person.
 Any pre-constitution rights which were now included in Article 21, cannot be enforced if
Article 21 is suspended. Article 21 was now the sole repository of rights to life and personal
liberty.
 Justice H.R. Khanna dissented from the majority judgement: He opined that if the right
to life is suspended, then this would be the end of rule of law. The distinction between a
lawless society and one governed by laws would cease to exist.
 Right to life and personal liberty was not the creation of the Constitution. Such rights ex-
isted before the Constitution came into force. And even in the absence of Article 21 the
State has got no power to deprive a person of his life or liberty. Right to life was not only
provided by Article 21 but also by common law and penal laws.
 K.S. Puttaswamy v/s UOI (Right to Privacy Case): Supreme Court overruled the decision
of ADM Jabalpur. It held that no civilized state can contemplate an encroachment upon life
and personal liberty.
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Polity Notes

Basic Structure of the Constitution

Shankari Prasad Case (1951)

Sajjan Singh Case (1965)

Golaknath Case (1967)

24th Constitutional Amendment

Kesavananda Bharti Case (1973)

Indira Nehru Gandhi Case (1975)

Page No. [1]

42nd Constitutional Amendment (1976)

Minerva Mills Case (1980)

Waman Rao Case (1981)

Page No. [2]

Page No. [3]

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