Basic Structure Doctrine Explained on its Fiftieth Anniversary

Imagine a ship, a giant one. Let us name that ship Indian Constitution. Say, this ship was built using wooden planks. The planks were imported from numerous countries, and some were tweaked to suit local needs. Parliament was the captain of this ship. After a few years, some of these planks started decaying—or at least that was Parliament’s outlook. So, Parliament replaced those decayed planks with modern ones.

With time, piece by piece, all the old and original planks that made up the Indian Constitution were replaced by newer ones. Though decayed in Parliament’s opinion, others still thought those old planks were valuable. These other people came together to make a ship from the old planks and chose People as its Captain. This juxtaposition of ships stirred up a contentious debate. It was claimed that the People’s ship with old planks is the actual Indian Constitution, and Parliament’s ship, which presently comprises modern planks, no longer deserves the title Indian Constitution.

This description of an imaginary conflict—inspired by the Ship of Theseus paradox—is fundamental in understanding the most significant constitutional crisis that India has seen to date. The conflict is of identity. Switching the discourse from the hypothetical to the real world—the Constitution of India, too, has its unique identity. An identity that could be pictured by looking at its Preamble and over 450 Articles. These articles are the metaphoric wooden planks.

Article 368 of the Constitution deals with amendments to the Constitution. The amendment means to bring a change, so a Constitution made in 1950 would not become anachronistic. A state without the means of change is without the means of its conservation, said Edmund Burke, one of the most famous conservative thinkers of all time. The Indian Constitution is the longest written, yet it is silent on many aspects. A certain silence in Article 368 gave room to the basic structure doctrine.

The original and unamended Article 368 was silent regarding the extent or width of the power to amend the Constitution. The government claimed unlimited power, as the Constitution had no explicit limitation. In 1967, in the Golaknath case, the Supreme Court held that Parliament could not abridge fundamental rights via a constitutional amendment. In 1973, in the Kesavananda Bharati case, the Supreme Court overruled Golaknath and restored Parliament’s power to amend any part of the Constitution—including Fundamental Rights. It held that no Part, no Article is immune from amendment.

Nevertheless, the Supreme Court declared that there are still certain implied limitations to the amending power of the State. It held that Parliament cannot alter the basic structure or framework of the Constitution. All the majority judges provided their list of basic features. There was no unanimity on what constitutes the basic structure. Even today, there is no exhaustive list of basic features; and ideally, as explained later, there should never be one.

What, then, is the Basic Structure Doctrine? First, we must differentiate between the phrases which are often mistakenly interchanged, Basic Structure and Basic Features. Basic features are principles, like the supremacy of the Constitution, republican and democratic form of government, secular character of the Constitution, etc. Severally, they are called basic features, join them all, and we get the basic structure. In other words, the basic structure is a sum of all basic features.

What comprised the basic structure of the Constitution was left open, allowing judges to develop the concept incrementally. Although some scholars have criticised this lack of precision as it, in effect, makes the Supreme Court the official arbiter. Yet, the court’s role as adjudicator demands that it shall not declare any comprehensive list of basic features. As an adjudicator, the court should decide on a need basis whether a particular feature of the Constitution is fundamental. The process is simple—when Parliament amends the Constitution it can be challenged in court for violating the basic structure. The Supreme Court (or high courts) would then determine whether it does so.

The Supreme Court, while propounding the basic structure theory, relied upon the doctrine of Constitutional identity. To destroy its identity is to abrogate the basic structure of the Constitution. So long the identity of the Constitution remains intact, Parliament may make any amendments to it. Only when this identity is destroyed will the court intervene and prevent Parliament from doing so.

Tracking down the identity of a constitution is not a straightforward task. As David M Beatty, a Canadian expert on constitutions put it, “Constitutions are where each community’s great political compromises are made so that the intention that animates them is invariably multiple, often conflicting, and always complex.” To determine the validity of an amendment, the court will examine whether it is in reference to any of the basic features. The Supreme Court has observed in the Indira Nehru Gandhi vs Raj Narain case that the claim of any particular feature of the Constitution as “basic” would be determined by each case that come before it. It is a tragicomedy that Parliament might never guess what surprises lies in store for them before the Supreme Court. This situation is a perfect example of tragicomedy. It is comical because even after fifty years of this doctrine, Parliament still second-guesses the extent of their constitutional amending powers. And tragic because Parliament would never know what surprises the Supreme Court has in store for them.

The author is a PhD scholar in constitutional law at the Central University of Punjab. The views are personal.