In this article, we will discuss the basic structure of the Constitution and Kesavananda Bharati Vs. Government of Kerala Case 1973 in a simple and easy way and try to understand its various important aspects,
So to understand well, definitely read the article till the end and also read other articles related to it. Find More Related Articles – Fundamental Rights
| Basic Structure of the Constitution
In order to understand the basic structure of the constitution well, it may be necessary to understand the following topics –
1. Fundamental Rights
2. Procedure Established by Law and Due Process of Law
3. Directive Principles of State Policy
4. Procedure for Amendment of Constitution i.e. Article 368
5. Conflict between Fundamental Rights and Directive Principles
| Background of Basic Structure of the Constitution
The term ‘ Basic Structure of the Constitution ‘ is not used anywhere in the Constitution, yet it became very important after the Supreme Court’s decision in the Kesavananda Bharati case. How did this happen? Why did the things which are not even written in the constitution become so important today?
| It all started because of some contradiction between the Fundamental Rights and the Directive Principles of State Policy which became visible soon after the Constitution came into force.
It was not a petty contradiction that would have been overlooked. In fact after independence we started walking on socialism based economy. According to the situation at that time, this system perhaps suits the country because there was no scope to do much personally at that time. In such a situation, a lot rested on the government.
Many provisions based on socialism were part of the Directive Principles of Policy. When attempts were made to implement it, some constitutional contradictions began to emerge. What was this, let us understand it with an example –
Article 19(1)(f) and Article 31 of the Fundamental Rights provided for the right to property, while Article 39 of the DPSP (particularly its clauses b and c) emphasized the equitable distribution of assets and resources and the de-concentration of wealth. In a way, it talked about ending social based inequalities and bringing everyone on an equal footing.
At that time it was the period of Zamindari system, each of the zamindars used to have hundreds of thousands of bighas of land. To end inequality, it was necessary that the Zamindari system should be abolished and some of their lands should be given to the common man. Or else such factories, industries, etc. should be set up on that land so that the people of the lower strata of the society can be brought up.
According to Article 39 of the Directive Principle of State Policy, it was absolutely right to do so, because it only talks about eliminating inequality, but Article 19 and Article 31, which gives the right to property, according to this, property was a fundamental right. And it could not be taken away. why that?
Because according to Article 13 it cannot be done. This article prevents the abolition of Fundamental Rights.
Whereas on the other hand Article 368 also gives the right to amend the Constitution. That is, the constitution could be amended anywhere as required, so that the right provisions for public welfare could be inserted in the constitution.
Now think for yourself that, while a law allows to do the same thing, on the other hand a law also prohibits doing the same thing. So there is such a big contradiction.
Similarly there is another issue of Article 14, Article 15 and Article 16 which talks of equality.
At the same time, Article 46 of the Directive Principles of State Policy talks about promoting economic and educational interests of people belonging to Scheduled Castes, Scheduled Tribes and weaker sections to bring them into the main stream of the society.
Here again there is a contradiction – on the one hand Article 14, Article 15 and Article 16 talks about equality and on the other hand Article 46 talks about special facilities or reservations in the interest of certain classes .
Again here also a problem comes, if we protect equality then the people of the lower strata will never be able to come in the main stream and if they give reservation then there will be no equality.
An important case related to this is the case of Champakam Dorairajan vs Government of Madras, under which it was established by the Supreme Court for the first time that Fundamental Rights would win in the race of Fundamental Rights and DPSP.
| Champakam Dorairajan vs Government of Madras, 1951
In fact, the Madras Government felt that unless reservation would be given to certain sections of the society, they would not be able to join the mainstream of the society, so the Madras Government made arrangements for reservation in medical college seats for those sections .
Champakam Dorairajan was a Brahmin girl and due to less seats for her, she could not get admission. So he filed a petition in the Madras High Court regarding the violation of his fundamental rights.
Champakam Dorairajan’s Arguments
She said that this cannot be done under Articles 15, 16 and 29 (2). Article 29(2) clearly states that no citizen shall be discriminated on the basis of religion, caste, race, sex and place of birth in any institution aided by the State Fund.
On the basis of this argument, it can be absolutely true that the reservation of seats was wrong. But then the argument was also given by the government.
The government cited Article 46 of the DPSP to say that since seats can be reserved on its basis, So it was done. And Article 37 also says here that it will be the duty of the state to implement it.
When this matter went to the Supreme Court, the question before the Supreme Court was whether the violation of Fundamental Rights can be justified on the basis of DPSP?
Supreme Court’s decision
The Supreme Court said that the reservation given on the basis of community violates the fundamental rights, therefore the state cannot make a system of reservation on the basis of caste or religion in the matter of admission, because it violates Article 16(2) and Article 29(2).
Along with this, the Supreme Court said another big thing that whenever there is a conflict between the Fundamental Rights and the Directive Principles of Policy, then in that case only the Fundamental Right will be considered effective and not the DPSP.
Because if the Directive Principle of State Policy is not implemented, it is fine, it is not mandatory to implement it anyway. But protecting the fundamental right is an urgent duty of the Supreme Court.
Along with this, the Supreme Court also made it clear that the Fundamental Rights can be amended by the Parliament through the constitutional amendment process.
| Obviously the Directive Principle of State Policy is not binding, but the Fundamental Right is there and the Supreme Court gave priority to the Fundamental Right. But when everything is a Fundamental Right, then what is the need of the Directive Principle of State Policy?
The Prime Minister of that time, Jawaharlal Nehru, who was a socialist leader, understood that if the deprived section of the society is to be brought into the main stream, then some of its provisions have to be removed by amending the constitution.
Because if this is not done, then the Supreme Court will hang its leg every time and the deprived of the society will always remain deprived. Thus in 1951, Pandit Nehru made the first amendment of the constitution.
First Amendment to the Constitution
Pandit Nehru got the first amendment done in the constitution in 1951 itself which was as follows –
A new clause 4 was added in Article 15, in which it was written that no matter what is written in Article 29(2), if the state wants, then for the upliftment of the socially and educationally backward citizens or SC and ST class. may make any special provision.
The second amendment was made to Article 31. In this a new clause Article 31A was added, through which it was made easy to acquire land from Zamindars and others in public interest.
Apart from this, Article 31B was also added, under which the Ninth Schedule was made and it was written that even if any provision inserted in the Ninth Schedule violates the Fundamental Rights, then it cannot be challenged in the court.
That is why the first constitutional amendment of 1951 became so important because it paved the way for the abolition of zamindari system i.e. land reforms.
Note – Abolition of zamindari system, land acquisition etc. are covered under the Land Reform Act.
After making so many amendments, it happened now that the zamindari of the zamindars was lost, a lot of their land was acquired by the government. And those people could not even go to court because in the first constitutional amendment it has been clearly written that it cannot be challenged.
The case of Shankari Prasad Vs Union of India 1951
Because Article 13 clearly states that any law abridges the Fundamental Rights shall be struck down to the extent that it violates the Fundamental Rights. That is why the amendment made on the basis of Article 368 should be treated as unconstitutional.
When the lands of many landlords were being acquired by the government through this first constitutional amendment, Shankari Prasad, a zamindar from Bihar, challenged this first constitutional amendment on the ground that it violates the fundamental rights and the first constitutional amendment itself. is wrong.
Because the government has amended the Fundamental Rights by using Article 368 and reduced the Fundamental Rights, whereas according to Article 13 this cannot be done because Article 13 clearly states that in any case the Fundamental Rights cannot be reduced or eliminated.
But the Supreme Court, in its decision, rejected the argument of Shankari Prasad and said that both Article 13 and Article 368 are different things and it is not right to relate both with each other.
The Supreme Court said that under Article 368, Parliament has the power to amend any part of the Constitution, including Fundamental Rights, because Article 13 refers to the word law and not to the word constitutional amendment.
The decision went in favor of the Government of India. In this way a way was opened for the abolition of zamindari by the first constitutional amendment. Gradually, all the states made their own land reform laws in their respective states and continued this process.
Sajjan Singh Vs Rajasthan Government Case 1965
When land reforms were implemented in Rajasthan through the 17th Constitutional Amendment 1964, Sajjan Singh also raised the same issue that Shankari Prasad had raised i.e. on the basis of Article 13, no one can take away our fundamental rights from us.
( Remember one thing here that the right to property was still a part of the Fundamental Rights, just its powers were curtailed. In 1978, Morarji Desai’s government removed it from the Fundamental Right and made it a common law.)
In the case of Sajjan Singh, the Supreme Court gave the same verdict as in the case of Shankari Prasad, that is, Article 13 has nothing to do with Article 368.
Exactly 2 years after this, things completely changed. And what happened made matters a little worse.
Golaknath Vs. Government of Punjab Case 1967
In 1967, a twist came in this whole process in the Golaknath case. Golaknath also raised the same issue which Shankari Prasad and Sajjan Singh were raising till now, but at the same time he also held the 17th Constitutional amendment, wrong.
This time the decision of the Supreme Court was shocking. The 11-judge Bench delivered the verdict by a majority of 6:5 and overturned all the earlier decisions.
| The Supreme Court held that Article 13 is not exempt from Article 368 and Parliament cannot curtail Fundamental Rights by using Article 368.
The Supreme Court further said that whatever laws have been made so far in this regard, anyone whose land has been snatched can not be returned, but from now these laws are illegal and it cannot be used anymore.
Progress on the basic structure of the Indira Gandhi government and constitution
After the death of Lal Bahadur Shastri on 11 January 1966, Indira Gandhi became the Prime Minister on 24 January 1966. This means that when Golaknath’s decision came, then Indira Gandhi’s government was there. Although she was in a very weak position.
In the 1971 elections, when Indira Gandhi came to the government with an absolute majority, she first dealt with it. How?
Overturning the Golaknath Judgment
Indira Gandhi overturned the Golaknath case by making the 24th Constitutional Amendment to the Constitution.
The government, through the 24th Constitutional Amendment, amended Article 13 and added Clause 4 and made it written that – Nothing in this article shall apply to any amendment of this Constitution made under Article 368.
Similarly, in Article 368 , it was written that – Notwithstanding anything in the Constitution, Parliament can amend any part of the Constitution.
In this way the Golaknath case was nullified and again the same situation prevailed as the Golaknath case was before 1967.
Kesavananda Bharati Vs. Government of Kerala Case 1973
This issue is also related to land acquisition. The land of Kesavananda Bharathi, the director of a Math in Kerala, was acquired under the Kerala Land Reforms (Amendment) Act 1969 and this law was put in the 9th Schedule by the 29th Constitutional Amendment 1972.
Kesavanand Bharati filed a petition in the Supreme Court under Article 32 and demanded protection of fundamental rights under Article 25, 26, 14, 19(1)(f) and Article 31.
Along with this, he also included the 24th Constitutional Amendment and the 25th Constitutional Amendment in this matter and said that through this amendment our fundamental rights have been violated, especially the property under Article 19(1)(f). Right.
Note – The 24th amendment was to reverse the decision of Golaknath. The 25th Constitutional Amendment is related to bank nationalization, you can click on the given link to understand it.
Question before Supreme Court
1. Is the power of the Parliament to amend the Constitution unlimited under Article 368? In other words, can the Parliament amend any part of the constitution even to the extent of taking away all the fundamental rights?
2. Are the 24th and 25th Constitutional Amendments valid?
Supreme Court’s decision
The 13-judge Bench of the Supreme Court (which is the largest ever Bench) on 24 April 1973, by a majority of 7:6, gave a landmark judgment that –
1. The 24th and 25th Constitutional Amendments are completely correct.
However, the second part of Article 31C which was amended through the 25th Constitutional Amendment (which provided that the policy made under it could not be challenged in court) was declared unconstitutional by the Supreme Court. Under this, the court said that – Judicial review is a basic feature of the Constitution and that is why it cannot be taken away.
2. Parliament can amend any part of the constitution even if it is a fundamental right. But Parliament must always remember that the power to amend the constitution is not the power to rewrite the constitution.
Then the Supreme Court put the ‘Basic Structure of the Constitution‘ system in front of everyone.
In this case, the Supreme Court clearly said that with the help of Article 368, Parliament can make any kind of amendment in the Constitution, but Parliament cannot make any change in the basic structure of the Constitution.
What will be the basic structure and what will not, the Supreme Court will keep telling it from time to time.
This is how the basic structure of the Constitution came into existence. It gave immense powers to the Supreme Court. Now before making every law, Parliament has to think once whether the basic structure of the Constitution has been hurt.
If you have understood the procedure established by law and due process of law, then you must be understanding that, the powers that the Supreme Court would have got under due process of law, the same powers (or even more powers in some cases) has been acquired by the supreme court Under the basic structure doctrine.
The benefit to the public is that this power of the Supreme Court will never allow the government to become a dictator, as a result democracy and public interest will always be protected.
Elements of the basic structure of the constitution
Since 1973 till now, the Supreme Court has put forward several basic framework elements. such as –
– supremacy of the constitution.
– The sovereign, democratic and republican nature of Indian politics,
– Rule of law,
– Right to judicial review of Supreme Court
– Federal form of the constitution
– Principle of equality,
, – Free and fair elections
– independence of the judiciary
– personal dignity and freedom,
– The powers vested in the Supreme Court under Articles 32, 136, 141 and 142,
and Powers vested in the High Court under Articles 226 and 227.
basic structure list of constitution
With the help of the chart below, one can see how and under which cases the Supreme Court has established the basic structures.
|Kesavananda Bharati case 1973|
|1. Supremacy of the Constitution |
2. Division of powers between the legislature, executive and judiciary
3. Democratic and republican form of government
4. Federal and parliamentary character of the constitution
5. Sovereignty and unity of India
6. Freedom and dignity of the individual
|Indira Gandhi Vs Rajnarayan Case 1975|
|1. Free and fair elections |
2. Equality of status and opportunity of the individual
3. Judicial review
|Minerva Mills case 1980|
|1. Limited power of Parliament to amend the Constitution |
2. Harmony and balance between Fundamental Rights and Directive Principles of Policy
3. Judicial Review (also stated here)
|Central Coalfield Limited Case 1980|
|1. Effective Access to Justice|
|Bhim Singh ji case 1981|
|1. Welfare State (Socio-Economic Justice)|
|S. P. Sampath Kumar Case 1987|
|1. Rule of Law|
|Delhi Judicial Service Association case 1991|
|Power of Supreme Court under Article 32, 136, 141 and 142|
|Indra Sawhney case 1992|
|1. Rule of Law|
|Kumar Padma Prasad case 1992|
|1. Independence of the Judiciary|
|Raghunath Rao Case 1993|
|1. Unity and Integrity of India |
2. Principle of Equality
|S. R. Bommai case 1994|
|1. Federalism |
4. Social Justice
5. Unity and Integrity of the Nation
|Chandrakumar case 1997|
|1. Powers of High Courts under Articles 226 and 227|
|Indra Sawhney 2 Case 2000|
|1. Principle of Equality|
|All India Judges Association case 2002|
|1. Independent Judicial System|
|Ram Jethmalani Case 2011|
|Powers of Supreme Court under Article 32|
Hope you have understood the article ‘Basic Structure of the Constitution’. Must read Conflict between Fundamental Rights and Directive Principles to understand all the events in detail, covering from Champakam Dorairajan case to Minerva Mills case.