DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

CONSTITUTIONAL LAW- I

ANALYSIS OF JUSTICE SIKRI JUDGEMENT WITH SPECIAL REFERENCE TO

BASIC STRUCTURE

Submitted To Submitted By

Dr. Atul Kumar Tiwari Aniket Sachan

Associate Professor, Law B.A. LLB(HONS)
Dr. Ram Manohar Lohiya IIIrd semester
National Law University SECTION-“A”

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 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Dr. Atul Kumar Tiwari

who gave me the golden opportunity to do this wonderful project of Constitutional Law-I on

topic “ANALYSIS OF JUSTICE SIKRI JUDGEMENT WITH SPECIAL REFERENCE TO

BASIC STRUCTURE”, Who also helped me in completing my project and has rendered endless
support, kind and understanding spirit during my project completion. I came to know about so
many new things I am really thankful to him. The completion of this project could not have been
possible without the participation and assistance of various people thus, I would also like to thank
my parents and friends who helped me a lot in finalizing this project within the limited time frame.

I would also like to thank the Great Almighty, source of supreme knowledge for countless love
rendered on me.

ANIKET SACHAN

ROLLNO-28

BA LLB(HONS), IIIrd semester.

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  Contents

Contents ...........................................................................................................3
INTRODUCTION ...........................................................................................4
BASIC STRUCTURE DOCTRINE EVOLUTION........................................5
JUSTICE SIKRI VIEWPOINT ON BASIC STRUCTURE ...........................6
SUPREMACY OF CONSTITUTION AS BASIC FEATURE ......................7
REPUBLICAN AND DEMOCRATIC FORM OF GOVERNMENT: A
BASIC FEATURE .....................................................................................................8
SECULAR CHARACTER OF THE CONSTITUTION ................................9
SEPARATION OF POWERS .......................................................................10
FEDERAL CHARACTER OF THE CONSTITUTION...............................11
CONCLUSION..............................................................................................13
BIBLIOGRAPHY..........................................................................................15

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  INTRODUCTION

The following projects throws light on justice Sikri’s judgement regarding Basic structure
Doctirne, which is indeed a remarkable evolution in the Indian constitution which emerged from
the judgement of largest bench case of India and one of the landmark cases of India i.e.
Kesavananda Bharati vs State of Kerala1 .

The above mentioned doctrine is set of systematic rules, underlying principles and connecting
provisions of the Constitution which give coherence, stability and durability to Constitution. The
principles which came up from this doctrine are in clear sense part of constitutional law even
though not expressly stated. The "Basic Structure" doctrine is the judge-made doctrine whereby
certain features of the Constitution of India are beyond the limit of the powers of amendment of
the Parliament of India. These certain “basic features” are immune from the power of Amendment
as ensured in Article 368 of Indian Constitution, which according to Supreme Court was subject
to “Implied limitations”.

In the following years of it development there have been process and attempts to thwart this
doctrine by bringing out successive amendments (24th amendment, 1971 and 42nd amendment,
1976) to abrogate these features. But the court has adhered to it view of notwithstanding any of
these amendments.

1
Kesavananda Bharati v State of Kerala (1973) 4 SCC 225.

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  BASIC STRUCTURE DOCTRINE EVOLUTION

The "Basic Structure" doctrine is the judge-made doctrine whereby certain features of the
Constitution of India are beyond the limit of the powers of amendment of the Parliament of India.
If we look into proper definition, then we cannot find a particularly precise one.

The doctrine of Basic Structure helped in maintaining the supremacy of the Constitution and to
prevent its destruction by a temporary majority in Parliament. It acts as a limitation upon the
constituent power and has helped in arresting the forces which may destabilize the democracy.
Parliament does not and should not have an unlimited power to amend the Constitution. This basic
structure doctrine, as future events showed, saved Indian democracy. It helps to retain the basic
ideals of the Constitution which was meticulously constituted by the founding fathers our
Constitution

The following word basic structure is not expressly mentioned in any provision of constitution of
India. It has gradually developed with involvement of Judiciary from time to time. The First
Amendment Act, 1951 was challenged in Shankari Prasad v. Union of India case. It was
challenged on ground that the particular amendment violated the Part III of Constitution and should
be held unconstitutional. But the court held that Parliament under Article 368 has power to amend
any provision of Indian constitution. The following ruling was also observed in Sajjan Singh v.
State of Rajasthan.

But later in Golaknath v. State of Punjab2 case, the Supreme Court overruled its previous decision.
It held that parliament has no power to amend Part III of constitution as Fundamental Rights are
transcendental and immutable3. Art 368 only gives procedure to amend not absolute power to
amend the constitution.

The parliament to overcome this ruling passed 24th constitutional amendment in 971 which gave
parliament absolute power to make any changes in the constitution including part III and it even
made president bound to sign on the bills seeking for the same.

2
Golaknath v State of Punjab 1967 AIR 1643.
3
Josh J, 'Basic Structure (Doctrine) Of The Constitution' (Jagranjosh.com, 2017)
<http://www.jagranjosh.com/general-knowledge/basic-structure-doctrine-of-the-constitution-1437127016-1 >

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Then in 1973 in Kesavnanda Bharti vs State of Kerala4 the Supreme Court upheld the
constitutionality of following amendment by reviewing its decision in Golaknath Case. It said
Parliament has power to amend any part of constitution, but in doing that the Basic Structure
should be maintained. There was no proper definition provided by Supreme Court but with later
development following features discuss ahead were discussed by judges as basic Feature which
can never be annulled or abrogated.

 JUSTICE SIKRI VIEWPOINT ON BASIC STRUCTURE

In Keshavanandha Bharathi Case5 an attempt was made to question the plenary power of the
Parliament to abridge or take away the Fundamental Rights, if it was necessary by the way of
amendment under Art.368 of the Constitution. Seven out of the thirteen judges Bench held that the
Parliament’s constituent power under Art.368 was constrained by the inviolability of the Basic
Structure of the Constitution, which was one of the Basic features of the Constitution. The Basic
Structure of the Constitution could not be destroyed or altered beyond recognition by a
constitutional amendment.6
Each judge laid out separately what he thought was basic or essential feature of Indian constitution.
According to Justice S.M. Sikri, there are some basic features of the Indian Constitution that cannot
be touched while exercising article 368 by the Parliament. This was for the first time in the
constitutional history of India where attempt was made by Justice Sikri to decide the basic features
or basic structure of the Constitution of India.
According to him, the basic features of the Constitution of India includes the following-
(i) Supremacy of the Constitution

(ii) Republican and democratic form of the government

(iii) Secular character of the Constitution

4
Keshavanand Bharti v State of Kerala AIR 1973 SC 1461.
5
Keshavanand Bharti v State of Kerala AIR 1973 SC 1461.
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six of the seven majority judges held that there were implied and inherent limitations on the amending power of the
Parliament, which precluded Parliament from amending the Basic Structure of the Constitution. All Seven judges gave
illustrations of what they considered Basic Structure comprised of.

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(iv) Separation of powers between the legislature, the executive and the judiciary

(v) Federal character of the Constitution

According to Justice Sikri, the Parliament can amend any article of the Constitution except the
basic structure of the Constitution. According to him, the basic structure is built on the basic
foundation i.e. the dignity and the freedom of the individual. He considered these aspects of
supreme importance. He wanted that these aspects cannot be destroyed in any form.

 SUPREMACY OF CONSTITUTION AS BASIC FEATURE

Supremacy of the Constitution is a doctrine where by the Constitution is the supreme law of the
land and all the State organs including Parliament and State Legislatures are bound by it. They
must act in the limits laid down in the constitution. They owe their existence and power to the
constitution.

In Kesavanonda Bharati's case a Bench of 13 Judges, the largest Bench constituted since the
inception of the Constitution to hear a case, declared that the supremacy of the Constitution was
one of its cardinal features, or, a part of "the basic structure of the Constitution."
Neither of the three constitutionaly separate organs of State [i.e. The Executive, the Legislature,
and the Judiciary] can, according to the basic scheme of our Constitution today, leap outside the
boundaries of its own constitutionally assigned sphere into that of the other. This means that the
legality of any action of each organ or authority in the State must be capable of being tested in a
Court with reference to the Constitution.

In K.T Plantation (P) Ltd v. State of Karnataka7, it has been held that statutes are many which
though deprive a person of his property, have the protection of Article 30(1-A), Articles 31-A, 31-
B, 31-C and hence are immune from challenge under Article 19 or Article 14. On deletion of
Article 19(1)(f) the available grounds of challenge are Article 14, the basic structure and the rule
of law, apart from the ground of legislative competence. For statutes protected by Articles 31-A,
31-B and 31-C, a challenge under Article 14 would be maintainable only when taken as a part of
the basic structure of the Constitution.

7
K.T Plantation (P) Ltd v State of Karnataka (2011) 9 SCC 1.

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In I.R Coelho v. State of T.N8, the basic structure was defined in terms of fundamental rights as
reflected under Articles 14, 15, 19, 20, 21 and 32. Here, the Supreme Court held that statutes
mentioned in Schedule IX are immune from challenge on the ground of violation of fundamental
rights, but, if such laws violate the basic structure, they no longer enjoy the immunity offered by
Schedule IX.

The Constitution operates as a fundamental law. The governmental organs owe their origin to the
Constitution and derive their authority from, and discharge their responsibilities within the
framework of the Constitution. The Union Parliament and the State Legislature are not sovereign.
The validity of a law, whether Union or State, is judged with reference to their respective
jurisdictions as defined in the Constitution. The judiciary has power to declare a law
unconstitutional, if the law is found to have contravened any provision of the Constitution.

 REPUBLICAN AND DEMOCRATIC FORM OF GOVERNMENT: A

BASIC FEATURE

A democracy cannot survive for long unless it, both as a noun and as a qualitative adjective, is
assigned sovereignty. Thus, sovereignty is not only the quality of democracy but also the source
of democracy. Then, “republic” had to be qualified as democratic and therefore “democratic”
should just precede “republic”. That is why the words were placed in that order i.e. “sovereign
democratic republic”.9

Maintenance of “rule of law” is a sine qua non under our constitutional scheme and, in fact,
is essential to sustain any democracy. We must consider ourselves to be fortunate enough that
notwithstanding the vastness and size of our population, on account of diverse philosophy,
democracy has taken deep roots in this country and democratic institutions have flourished. It is
the sacred duty of the judiciary to see that the “rule of law” is maintained and it shall be construed
as a constitutional obligation for the judiciary to do all that is possible in maintaining the “rule of
law” not merely in interpreting the provisions of law but also in issuing directions and orders to
the authorities concerned for maintenance of the “rule of law”.

8
I.R Coelho v State of T.N (2007) 2 SCC 1
9
Justice V. Dhanapalan, ‘The Basic Structure of Indian constitution’ (2014) 8 SCC J-1
< https://www.scconline.com/Members/SearchResult2014.aspx#FN0003 > accessed 02 October 2018.

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Recognizing the need, Supreme Court in Union of India v. Association for Democratic
Reforms,10 held that in a democratic form of Government, which is part of the basic structure of
the Constitution, voters are of utmost importance. For maintaining purity of elections, vibrant and
healthy democracy, voters have the right to know relevant antecedents of the candidates contesting
the elections.

The establishment of a republican and democratic form of Government is one of the basic features
of our Constitution. The preamble of the Constitution is by itself elucidative, for it is stated therein
that. “We The People of India, having solemnly resolved to constitute India into a Sovereign
Socialist Secular Democratic Republic…… and in Kesavananda case Supreme Court held that the
sovereign democratic and republican structure of India is one of the basic features of our
Constitution.

 SECULAR CHARACTER OF THE CONSTITUTION

Secularism is the basic feature of the Constitution as a guiding principle of State policy and action.
Secularism in the positive sense is the cornerstone of an egalitarian and forward-looking society
which our Constitution endeavours to establish. It is the only possible basis of a uniform and
durable national identity in a multi-religious and socially disintegrated society. It is a fruitful means
for conflict-resolution and harmonious and peaceful living.11

By the Constitution (Forty-second Amendment) Act, secularism and socialism were brought in the
Preamble of the Constitution to realise that in a democracy unless all sections of the society are
provided facilities and opportunities to participate in political democracy irrespective of caste,
religion and sex, political democracy would not last long.12

The State has no official religion. Secularism pervades its provisions which give full opportunity
to all persons to profess, practise and propagate the religion of their choice. The Supreme Court
reiterated that secularism is a part of the basic structure of the Constitution, which cannot be

10
Union of India v Association for Democratic Reforms (2002) 5 SCC 294.
11
Justice V. Dhanapalan, ‘The Basic Structure of Indian constitution’ (2014) 8 SCC J-1
< https://www.scconline.com/Members/SearchResult2014.aspx#FN0003 > accessed 02 October 2018.
12
S.R. Bhansali, Textbook On Constitution of India (1st edn, Universal Law Companuy) 809.

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disturbed. The concept of secularism that it is one facet of the right to equality, has given a new
thrust and a new dimension to secularism in India.

Seven out of the nine Judges in Bommai13 case constituting the Bench reiterated the view that
secularism was the basic feature of the Constitution and in case a State Government acted contrary
to the constitutional mandate of secularism or, worse still, directly or indirectly, subverted the
secular principles, that would tantamount to failure of the constitutional machinery.14

 SEPARATION OF POWERS

The principle “separation of powers” deals with the mutual relations among the said three organs
of the Government. The doctrine of separation of powers has no place in strict sense in the Indian
Constitution, but the functions of different organs of the Government have been sufficiently
differentiated, so that one organ of the Government could not usurp the functions of another.

In Indian Constitution, there is express provision that “executive power of the Union shall be
vested in the President and the executive power of the State shall be vested in the Governor….”
[Article 154(1) of the Indian Constitution].

The President, being the executive head, is also empowered to exercise legislative powers. He may
promulgate ordinances in order to meet the situation, as Article 123(1). When proclamation of
emergency has been declared, the President has been given legislative power under Article 357 of
our Constitution.15

The President of India also exercises judicial function, as Article 103 of the Constitution empowers
the President to decide cases of disqualification of membership of the Houses of Parliament.
Judiciary also exercises legislative power. The High Court and the Supreme Court are empowered
to make certain rules, legislative in character. Whenever the High Court or the Supreme Court
finds a certain provision of law against the Constitution or public policy, it declares the same null
and void. The High Courts, in certain spheres, perform functions which are administrative rather
than judicial. Their power of supervision over subordinate courts is more of administrative nature.

13
S R Bommai v Union of India AIR 1994 SC 1918.
14
Justice Aftab Alam, ‘The Idea of Secularism and Supreme Court of India’ (2009) 10 SCC J-60
< https://www.scconline.com/Members/SearchResult2014.aspx > accessed 02 October 2018.
15
MP Jain, Indian Constitutional Law (7th edn, Lexis Nexis) 1693.

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The value of the principle “separation of powers” lies in the fact that it seeks to avoid the
concentration of powers in one person or body of persons. The different organs of the Government
for the sake of liberty should be prevented from encroaching on another province. Virtually,
absolute separation of powers is not possible in any form of Government. Therefore, legislature is
empowered to delegate some of its functions to executive. But, one thing is notable that legislature
cannot delegate its essential legislative power.16

 FEDERAL CHARACTER OF THE CONSTITUTION

Federalism is a basic feature of the Constitution of India in which the Union of India is permanent
and indestructible. Federalism seeks to draw a balance between the forces working in favour of
concentration of power in the Centre and those urging a dispersal of it in a number of units.17

The Indian Constitution is not regarded as federal or unitary in the strict sense of the terms. It is
often defined to be quasi-federal in nature. India is described as a Union of States and is constituted
into a sovereign, socialist, secular and democratic republic. It has been argued that the Indian
Constitution does not satisfy certain essential tests of federalism, namely, the right of the units to
make their own Constitution and provision of double citizenship. Further, in the threefold
distribution of powers, the most important subjects have been included in the Union List, which is
the longest of the three Lists containing 97 items. Even regarding the Concurrent List, Parliament
enjoys an overriding authority over the State Legislatures.

The father of the Indian Constitution Dr B.R Ambedkar has said that the Indian Constitution would
be both unitary as well as federal according to the requirements of time and circumstance. The
Constitution makes a distribution of powers between the Union and the States, the jurisdiction of
each being demarcated by the Union, State and Concurrent Lists. The supremacy of the
Constitution—the hallmark of a federation—is an important feature of the Indian polity. Neither
the Central Government nor the State Governments can override or contravene the provisions of

16
T.R. Andhyarujina ‘Basic Structure of Constitution Revisited’ < https://www.thehindu.com/todays-paper/tp-
opinion/Basic-structure-of-the-Constitution-revisited/article14766279.ece> accessed 02 October 2018.
17
MP Jain, Indian Constitutional Law (7th edn, Lexis Nexis) 1693.

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the Constitution. Another prerequisite of a federation, namely, an independent judiciary—an
interpreter and guardian of the Constitution—is also present in the Indian federation.

The basic structure doctrine or the doctrine of basic structure of the Constitution as evolved by the
Supreme Court of India is unique in constitutional jurisprudence. The seeds of the theory are to be
found in the Preamble to the Constitution. Landmark pronouncements of the Supreme Court
in Kesavananda Bharati, Indira Nehru Gandh v. Raj Narain and Minerva Mills bear testimony to
this truism. Any amendment of the Constitution is open to judicial review and liable to be
interfered with by the Court on the ground that it affects one or the other of the basic features of
the Constitution.18

18
Justice V. Dhanapalan, ‘The Basic Structure of Indian constitution’ (2014) 8 SCC J-1
< https://www.scconline.com/Members/SearchResult2014.aspx#FN0003 > accessed 02 October 2018.

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  CONCLUSION

The basic structure limitation comes out of the realization that the only way to safeguard the
Constitution from damage by temporary majorities in Parliament is to reject those amendments
which go to destroy its identity. What is basic structure will depend upon what is vital to Indian
democracy and that cannot be determined except with reference to history, politics, economy and
social milieu in which the Constitution functions. The Court cannot impose on society anything it
considers to be basic. What the judges consider to be basic structure must meet the requirement of
national consciousness about the basic structure. Whatever may be the merits or demerits of
judicial review, to an extent, the basic structure limitation upon the constituent power has helped
arrest such forces to some extent and to stabilize the democracy.

The power of amendment under Art. 368 is a derivative power and not unlimited. Though
amendments can affect ordinary principles of equality, the basic structure of Constitution cannot
be amended.19
According to Justice Sikri, the Parliament can amend any article of the Constitution except the basic
structure of the Constitution. According to him, the basic structure is built on the basic foundation i.e.
the dignity and the freedom of the individual. He considered these aspects of supreme importance. He
wanted that these aspects cannot be destroyed in any form.

In the Raghunathrao Ganpatrao v Union of India20, the court held that the basic features or basic
structure of the Indian Constitution cannot be amended as per article 368. It further held that the
maintenance of the basic structure or basic features of the Constitution is the constitutional
responsibility. It held that the basic structure of the Indian Constitution is the basic or original
identity of the Constitution. It cannot be abrogated or destructed under the name of amendment. If
original identity of the Constitution is lost, the Constitution becomes unworkable or non-function
able.
The Parliament of India has tried to destroy the basic features or basic structure of the Constitution
of India many times through various unconstitutional amendments. The Parliament tried to
establish the Parliamentary sovereignty in India. On the other hand, the Supreme Court did many

19
S.R. Bhansali, Textbook On Constitution of India (1st edn, Universal Law Companuy) 809.
20
Raghunathrao Ganpatrao v Union of India AIR 1993 SC 1267.

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efforts to maintain basic structure of the Indian Constitution. It tried to decide the basic structure
of the Indian Constitution. But except some basic features, the basic features of the Indian
Constitution differ from judges to judges. It means, there is absence of specific basic structure. Till
date, the Supreme Court has never ordered the Parliament to decide the specific basic structure of
the Indian Constitution. The fact is that the original Constitution of India neither promotes
Parliamentary Sovereignty nor Judicial Sovereignty. It promotes for the supremacy of the
Constitution i.e. Constitutional Sovereignty. The role of the Parliament is negative in maintenance
of the basic structure while the role of the Supreme Court is positive regarding maintenance of the
basic structure.
The features mentioned by various judges are only illustrative and the list is not by any means
exhaustive. Whether a feature is basic or not is to be determined from time to time by the court as
and when the question comes. Since Kesavananda case, the matter has been considered by the
Supreme Court in several cases and court has to declare several features of the constitution as
fundamental features of basic structure of Indian constitution.21

21
MP Jain, Indian Constitutional Law (7th edn, Lexis Nexis) 1693.

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  BIBLIOGRAPHY

BOOKS

 S.R. Bhansali, Textbook On Constitution of India (1st edn, Universal Law Companuy) 809.
 MP Jain, Indian Constitutional Law (7th edn, Lexis Nexis) 1693.

CASES

 Golaknath v State of Punjab 1967 AIR 1643

 I.R Coelho v State of T.N (2007) 2 SCC 1
 K.T Plantation (P) Ltd v State of Karnataka (2011) 9 SCC 1
 Kesavananda Bharati v State of Kerala (1973) 4 SCC 225
 Keshavanand Bharti v State of Kerala AIR 1973 SC 1461
 Union of India v Association for Democratic Reforms (2002) 5 SCC 294

ARTICLES

 Justice Aftab Alam, ‘The Idea of Secularism and Supreme Court of India’ (2009) 10 SCC
J-60
 Justice V. Dhanapalan, ‘The Basic Structure of Indian constitution’ (2014) 8 SCC J-1
 T.R. Andhyarujina ‘Basic Structure of Constitution Revisited’

WEBSITES

 Eastern Book Company - Practical Lawyer' (Ebc-india.com, 2017)

 Josh J, 'Basic Structure (Doctrine) Of The Constitution' (Jagranjosh.com, 2017)
<http://www.jagranjosh.com/general-knowledge/basic-structure-doctrine-of-the-
constitution-1437127016-1 >
 'THE CONSTITUTION (AMENDMENT)' (Indiacode.nic.in, 2017)
http://indiacode.nic.in/coiweb/amend/amend24.htm accessed 14 October 2017

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