Basic structure doctrine

• In 1973, a 13-judge Constitution Bench ruled in Kesavananda Bharati v. State of Kerala that Article 368 of the Constitution does not enable Parliament to amend the basic framework of the document. 
• The historic ruling came to be known as the “basic structure” doctrine — a judicial principle that the Constitution has certain basic features that cannot be altered or destroyed by amendments by Parliament. 
• Over the years, various facets of the basic structure doctrine have evolved, forming the basis for judicial review of Constitutional amendments.

Evolution

• In I.C. Golak Nath v. State of Punjab (1967), the Supreme Court held that Parliament could not curtail fundamental rights guaranteed under the Constitution.The term ‘basic structure’ was first used in this case, by lawyer M.K Nambyar.
• The then government enacted a series of constitutional amendments following successive rulings against it. 
• The 24th Constitutional (Amendment) Act, 25th Constitutional (Amendment) Act and 29th Constitutional (Amendment) Act gave Parliament uncontrolled power to alter or even abolish any fundamental right.
• In 1970, Kesavananda Bharti, the head of a math in Kerala, challenged the Kerala Land Reforms Act related to restrictions on the management of religious property. The case was heard by the largest-ever Constitution Bench of 13 judges.
• The Supreme Court held that although Parliament has the power to amend any part of the Constitution, it could not use this power to alter or destroy its “basic structure”.
• The verdict also made it clear that judicial review was only part of a “system of checks and balances” to ensure constitutional functionaries do not exceed their limits.

Follow up verdicts

• The “basic structure” theory was applied for the first time after its introduction in the 1975 case Indira Gandhi v. Raj Narain. 
• The Allahabad High Court had ruled against Indira Gandhi and convicted her of electoral malpractices in the Lok Sabha election, after a challenge by rival Raj Narain. 
• Emergency was declared and Parliament passed the 39th Amendment prohibiting any challenge to the election of the President, Vice-President, Speaker and Prime Minister, irrespective of electoral malpractice. 
• The five-judge Bench, categorised the independent conduct of elections as “basic structure” and ruled that Parliament could not amend the Constitution if alterations affected basic issues like fundamental rights.

Minerva Mills case

• The doctrine was back in focus in 1980 in the Minerva Mills case, which pertained to the 42nd Amendment Act introduced by the Indira Gandhi government. 
• In a majority verdict, the top court upheld the power of judicial review of constitutional amendments.
• Judicial review is a vital principle of our Constitution, and it cannot be abrogated without affecting the basic structure of the Constitution. 
• If by a constitutional amendment, the power of judicial review is taken away and it is provided that the validity of any law made by the legislature shall not be liable to be called in question on any ground, even if it is outside the legislative competence of the legislature or is violative of any fundamental rights, it would be nothing short of subversion of the Constitution.
• And it would make a mockery of the distribution of legislative powers between the Union and the States and render the fundamental rights meaningless and futile.

Criticism

• After 50 years it was propounded, the legitimacy of the term “basic structure” and the theory underpinning its doctrinal creation is still seen as an abstract idea in certain quarters, since it is missing from the text of the Constitution.
• Its critics believe that the doctrine gives the judiciary the power to impose itself over a democratically formed government. 
• Arun Jaitley termed it the “tyranny of the unelected” in his criticism of the NJAC judgment in 2015.
• Referring to the 2015 verdict which had invoked the “basic structure” theory, the VP, remarked that the scrapping of the NJAC Act was “a scenario perhaps unparalleled in the democratic history”. 
• Parliamentary sovereignty and autonomy cannot be permitted to be compromised by the executive or judiciary, he said.

In words of VP Jagdeep Dhankar, “Democracy sustains and blossoms when the legislature, the judiciary and the executive act in tandem and togetherness to fructify constitutional goals and realise aspirations of the people. Judiciary cannot legislate in as much legislature cannot script a judicial verdict”.