- I R Coelho v. State of Tamil Nadu (2007): popularly known as the Ninth Schedule case
- Supreme Court held that ninth schedule items are not immune to judicial review
- Furthermore, no item in the ninth schedule can abrogate fundamental rights as they form basic features of the constitution
- Article 31B shields laws in the Ninth Schedule from challenge based on violating fundamental rights but the judgment in this case, restored the balance between the three organs, and hence, judicial review forms a key feature of the basic structure of the constitution.
- Since April 24, 1973, any constitutional amendment must pass a test ensuring its compatibility with the fundamental principles enshrined in Articles 21, 14, and 19.
(9th Schedule which was introduced by the 1st amendment to protect certain acts in violation of Article 14, 19 and 21 is not immune from judicial review.)
The Minerva Mills v. Union of India (1980) judgment reinforced the Basic Structure Doctrine, asserting limits on Parliament’s power to amend the Constitution and upholding the harmony between Fundamental Rights and Directive Principles.
- Background- The case challenged parts of the 42nd Constitutional Amendment (1976), particularly Sections 4 & 55, which gave primacy to Directive Principles (Part IV) over Fundamental Rights (Part III) and curtailed judicial review.
Key Significance:
- Reinforced Basic Structure Doctrine-
- Reaffirmed that Parliament’s amending power under Article 368 is not unlimited.
- Fundamental Rights form an essential part of the basic structure.
- Limited Parliament’s Amending Power:
- Declared Sections 4 and 55 of the 42nd Amendment (which gave primacy to Directive Principles over Fundamental Rights and barred judicial review) as unconstitutional, thus limiting Parliament’s power to amend the Constitution.
- Maintained Balance between Fundamental Rights and Directive Principles:
- The Court held that harmony and balance between Fundamental Rights and Directive Principles of State Policy is essential, and one cannot override the other completely.
- Judicial Review Upheld-
- Section 55, which barred court review of constitutional amendments, was struck down.
- Judicial review is declared as inviolable to constitutionalism.
- Democracy and Rule of Law Protected-
- Prevented concentration of power in one organ of the State.
- Upheld the idea of limited government under the Constitution.
- Legacy of Constitutional Morality-
- Rejected the supremacy of any one constitutional part.
- Promoted coherence, balance, and mutual respect between Parts III and IV.
- Limits on Authoritarian Amendments-
- Aimed to roll back excessive centralization and abuse of power during the Emergency era.
- Re-established civil liberties and constitutional checks.
- Strengthened Independence of Judiciary-
- Validated the judiciary’s role as guardian of the Constitution.
- Ensured courts can strike down unconstitutional amendments by Parliament.
The Doctrine of Basic Structure was put forward by the Supreme Court in the Kesavananda Bharati Judgment (1973). It recognises the most fundamental features of the Constitution and protects those features from any form of amendments or legislative interventions.
- It Includes sovereignty (Kesavananda Bharati case), Secularism, democracy (S.R. Bommai case), rule of law (Maneka Gandhi case), Separation of powers, federalism, judicial review (Kesavananda Bharati case) as Basic structures.
Guiding Principle: Basic Structure Doctrine as a North Star
- Limiting Parliamentary Power: Balances parliamentary sovereignty (art 368 ) and judicial sovereignty by restricting parliamentary amending power.
- Ensuring Constitutionality : Upholds constitutional supremacy and prevents potential damage by any organ of government.
- Safeguarding Democracy: Acts as a safeguard against the risk of a totalitarian regime and preserves the principles established by the Constitution’s framers.
- Prevented 42nd amendment abrogating judicial review and federation during Emergency.
- Maintains public confidence established in Article 21, 19 due to checks on state excess.
- Bedrock of judicial review: Ensures a true separation of power and maintains the independence of the judiciary.
- The 99th CAA 2015, dealing with the NJAC, was rejected for letting the government interfere with the judicial Independence, which goes against the separation of powers
- Adaptability and Progressiveness: Exhibits a dynamic and progressive nature, allowing for adaptation to changing times.
- Global Influence : The Basic Structure doctrine migrated to neighboring countries like Nepal, Bangladesh, and Pakistan, then spread to South Korea, Japan, Latin America, and Africa, becoming a rare success story of legal ideas diffusing across continents in constitutional democracies.
Criticism regarding its legitimacy:
- Not in Original Constitution :Critics argue that by evolving a non-textual test, the judiciary may be encroaching on Parliament’s powers.
- Anti-Democratic and Counter-Majoritarian: giving “unelected judges” the power to strike down constitutional amendments.
- Judicial Arbitrariness: Since it is not clearly defined, there is scope for subjectivity in its application.
- Supreme Control to Judiciary: Translates judiciary into third decisive chamber of parliament.
Post Kesavananda Bharati, only six out of around 76 constitutional amendments in 50 years have been struck down, primarily to protect core constitutional features and judicial independence. Thus, while the Basic Structure doctrine remains essential for safeguarding constitutional principles, addressing judicial arbitrariness is crucial for its continued relevance.
(Chief Justice of India Dr. DY Chandrachud regards the ‘basic structure doctrine’ as the North Star guiding the interpretation and implementation of the Constitution in convoluted paths.)
The Basic Structure Doctrine, established in Kesavananda Bharati (1973), empowers the judiciary to invalidate constitutional amendments that violate the Constitution’s core principles.
Strengths: Bulwark of Constitutionalism:
- Protects Democratic Foundations-
- Prevents Authoritarianism: Blocks amendments that undermine democracy, secularism, or federalism (e.g., 39th Constitutional Amendment Act, struck down in Indira Nehru Gandhi v. Raj Narain, 1975).
- Preserves Judicial Review: Ensures judiciary remains a check on Parliament (e.g., NJAC struck down in 2015).
- Ensures Continuity of Core Values-
- Fundamental Rights Protection: Prevents dilution of rights (e.g., Minerva Mills, 1980: Balance between FRs and DPSPs is part of basic structure).
- Federalism & Separation of Powers: Upheld in S.R. Bommai (1994) and Kihoto Hollohan (1992).
- Prevents Arbitrary Amendments: Example—L. Chandra Kumar (1997): Judicial independence is the basic structure.
Criticisms: Lack of Clarity & Judicial Overreach:
- Ambiguity in Definition-
- No Exhaustive List: Courts define basic structure case-by-case, leading to unpredictability (e.g., Is right to privacy the basic structure? Puttaswamy, 2017 said yes).
- Contradictions: Federalism was called basic in S.R. Bommai, but the GST Council’s centralizing role remains unchallenged.
- Judicial Supremacy vs. Parliamentary Sovereignty-
- Undemocratic : Unelected judges overruling elected representatives (e.g., NJAC verdict).
- Politicization of the judiciary: Critics argue that doctrine gives courts quasi-legislative power.
- Delayed Governance→ Policy Paralysis: Fear of judicial invalidation slows reforms (e.g., Land Acquisition Act amendments stalled).
- Inconsistent Application→ Selective Enforcement: Article 370 abrogation (2020) upheld despite federalism concerns, while NJAC was struck down.
Impact on Indian Polity:
Positive Influence-
- Prevents Constitutional Erosion: Ensures long-term stability by blocking arbitrary amendments (e.g., prevented Indira Gandhi’s super-Parliament plan).
- Strengthens Rights Culture: Expanded fundamental rights (e.g., right to privacy in Puttaswamy).
- Promotes Federal Balance: Protects state autonomy (e.g., struck down NJAC to preserve state role in judicial appointments).
- Encourages Deliberative Democracy: Forces Parliament to justify amendments rigorously (e.g., 99th Amendment for NJAC lacked consensus).
Challenges-
- Judicial Overreach: Risks undermining legislative mandate (e.g., striking down NJAC despite parliamentary approval).
- Uncertainty for Legislators: No clear guidelines on what constitutes basic structure (e.g., confusion over economic policies like land reforms).
- Delays Progressive Reforms: Fear of judicial invalidation deters bold legislation (e.g., hesitation in labor code reforms).
- Selective Enforcement: Inconsistent application (e.g., upheld Article 370 abrogation despite federalism concerns).
Conclusion:
As Upendra Baxi notes, the doctrine is a “creative judicial innovation” to protect constitutionalism in times of crisis. M.P. Singh emphasizes that the vagueness is deliberate, allowing flexibility in protecting evolving democratic values. Thus, Despite lack of precision, it remains an indispensable shield against constitutional subversion.
Note: →
VP Jagdeep Dhankhar recently questioned judicial supremacy, warning that “Parliamentary sovereignty cannot be undone by unelected bodies”, reflecting concern over BSD’s expansive use. In contrast, Ex. CJI D.Y. Chandrachud upheld BSD as the “North Star of Indian constitutionalism,” asserting it’s essential to check excesses and preserve democratic values.
The Indian polity maintains the separation of powers through checks and balances among the Legislature, Executive, and Judiciary, ensuring no single branch becomes too powerful and each operates within constitutional limits.
- Legislature Control:
- On Judiciary: Judges Removal → President can remove higher judiciary judges after Parliament’s address (Art. 124) ; Supreme Court Strength → Parliament sets Supreme Court’s total judges (Art. 124); Amending Laws: Legislature can amend laws declared ultra vires by the Court.
- On Executive: Impeachment of President (Article 61); Collective Responsibility of Ministers: (Article 75); Legislative Devices: Question Hour, No-confidence Motion, Vote of Thanks on President’s Address, Budget Approval ; Parliamentary Committees.
- Executive Control:
- On Judiciary: President appoints all judges of the higher judiciary (Art. 124, Art. 217); Procedure Regulation → Supreme Court makes rules with President’s approval (Art. 145); Clemency Powers →President has clemency powers to pardon or commute sentences (Art. 72).
- On Legislature: Summoning, Proroguing, and Dissolving Parliament (Article 85); Sending Messages to Parliament (Article 86); Deciding on MPs’ Disqualification (Article 103); Summoning Joint Sittings of Parliament (Article 108); Veto Power (Article 111); Promulgating Ordinances (Article 123); Delegated Legislation → Executive makes rules and orders to implement laws.
- Judicial Control On Executive and Legislature:
- Judicial Review (Art. 13); Doctrine of Basic Structure →Limits Parliament’s power to amend Constitution (Kesavananda Bharati, 1973); Supreme Court can pass decrees for complete justice (Art. 142); Higher judiciary can issue writs under Article 32 (Supreme Court) and Article 226 (High Courts).
Extra
Limitations of Checks and Balances
- Unclear Demarcation of Powers : Overlaps and conflicts arise due to vague separation between branches.
- Executive Power Concentration : (Prime Minister’s Office) Leads to reduced accountability.
- Judicial Overreach : Judiciary sometimes excessively interferes with legislative and executive domains.
- Legislative Oversight Erosion : (One-party dominance, bypassing committees) Weakens checks on Executive actions.
