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In ''Kesavananda'', Justice [[Hans Raj Khanna]] propounded that the [[Constitution of India]] has certain ''basic features'' that cannot be altered or destroyed through [[amendments to the Constitution of India|amendments]] by the [[Parliament of India]].<ref name=hindu-basic-features>{{cite news|url=http://hindu.com/2004/09/26/stories/2004092600491600.htm|title=The basic features|date=2004-09-26|access-date=2012-07-09|archive-url=https://web.archive.org/web/20120725005100/http://hindu.com/2004/09/26/stories/2004092600491600.htm|archive-date=2012-07-25|newspaper=[[The Hindu]]|url-status=dead}}</ref> Key among these "basic features", as expounded by Justice Khanna, are the [[Fundamental rights in India|fundamental rights]] guaranteed to individuals by the constitution.<ref name=hindu-basic-features/><ref name=ik-257876>{{cite web|url=http://www.indiankanoon.org/doc/257876/|title=Kesavananda Bharati .... vs State Of Kerala And Anr on 24 April, 1973|publisher=Indian Kanoon|access-date=2012-07-09|archive-url=https://web.archive.org/web/20141214053355/http://indiankanoon.org/doc/257876/|archive-date=2014-12-14|url-status=live}}</ref><ref name=frontline-revisiting>{{cite news|url=http://www.hindu.com/fline/fl2901/stories/20120127290107100.htm|title=Revisiting a verdict|publisher=Frontline|date=Jan 14–27, 2012|volume=29|issue=1|access-date=2012-07-09|url-status=dead|archive-url=https://web.archive.org/web/20131203063934/http://www.hindu.com/fline/fl2901/stories/20120127290107100.htm|archive-date=2013-12-03}}</ref> The doctrine thus forms the basis of the power of the Supreme Court of India to review and strike down constitutional amendments and acts enacted by the Parliament which conflict with or seek to alter this "basic structure" of the Constitution. The basic features of the Constitution have not been explicitly defined by the Judiciary, and the claim of any particular feature of the Constitution to be a "basic" feature is determined by the Court in each case that comes before it.
The Supreme Court's initial position on constitutional amendments had been that any part of the Constitution was amendable and that the Parliament might, by passing a Constitution Amendment Act in compliance with the requirements of article 368, amend any provision of the Constitution, including the Fundamental Rights and article 368.
In 1967, the Supreme Court reversed its earlier decisions in ''[[I.C. Golak Nath and Ors. vs. State of Punjab and Anr.|Golaknath v. State of Punjab]]''. It held that Fundamental Rights included in Part III of the Constitution are given a "transcendental position" and are beyond the reach of Parliament. It also declared any amendment that "takes away or abridges" a Fundamental Right conferred by Part III as unconstitutional. In 1973, the basic structure doctrine was formally introduced with rigorous legal reasoning in Justice [[Hans Raj Khanna]]'s decisive judgment in the [[landmark decision]] of ''[[Kesavananda Bharati v. State of Kerala]]''.<ref name=ik-257876-316>{{cite web|url=http://www.indiankanoon.org/doc/257876/|title=Kesavananda Bharati ... vs State Of Kerala And Anr on 24 April, 1973|at=Para. 316|publisher=Indian Kanoon|access-date=2012-06-24|archive-url=https://web.archive.org/web/20141214053355/http://indiankanoon.org/doc/257876/|archive-date=2014-12-14|url-status=live}}</ref> Previously, the Supreme Court had held that the power of Parliament to amend the Constitution was unfettered.<ref name=hindu-basic-features/> However, in this landmark ruling, the Court adjudicated that while Parliament has "wide" powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution.<ref name=ik-257876-787>{{cite web|url=http://www.indiankanoon.org/doc/257876/|title=Kesavananda Bharati ... vs State Of Kerala And Anr on 24 April, 1973|at=Para. 787|publisher=Indian Kanoon|access-date=2012-07-09|archive-url=https://web.archive.org/web/20141214053355/http://indiankanoon.org/doc/257876/|archive-date=2014-12-14|url-status=live}}</ref>
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Supreme Court, through the decisive judgement of Justice H. R. Khanna in Keshavananda Bharti v. State of Kerala (1973) case, declared that the basic structure/features of the constitution is resting on the basic foundation of the constitution. The basic foundation of the constitution is the dignity and the freedom of its citizens which is of supreme importance and can not be destroyed by any legislation of the parliament.<ref>{{cite web|title=13 member constitutional bench verdict (refer paras 316 and 317) in Kesavananda Bharati ... vs State Of Kerala And Anr on 24 April,1973|url=https://indiankanoon.org/doc/257876/|access-date=5 December 2014|archive-url=https://web.archive.org/web/20141214053355/http://indiankanoon.org/doc/257876/|archive-date=14 December 2014|url-status=live}}</ref> The basic features of the Constitution have not been explicitly defined by the Judiciary. At least, 20 features have been described as "basic" or "essential" by the Courts in numerous cases, and have been incorporated in the basic structure. Only Judiciary decides the basic features of the Constitution. In ''Indira Nehru Gandhi v. Raj Naraian'' and also in the ''Minerva Mills'' case, it was observed that the claim of any particular feature of the Constitution to be a "basic" feature would be determined by the Court in each case that comes before it. Some of the features of the Constitution termed as "basic" are listed below:
# Supremacy of the Constitution
# [[Rule of law]]
# The principle of [[
# The objectives specified in the [[Preamble to the Constitution of India|preamble]] to the [[Constitution of India]]
# [[Judicial review]]
# Articles 32 and 226
# [[Federalism]] (including financial liberty of states under [[s:Constitution of India/Part XII|Articles 282 and 293]])
# [[Secularism]]
# The [[Sovereignty|sovereign]], [[Democracy|democratic]], [[
# [[Freedom]] and [[
# Unity and integrity of the nation
# The principle of equality, not every feature of equality, but the quintessence of [[Equal justice under law|equal justice]];
# The "essence" of other fundamental rights in [[Fundamental rights in India|Part III]]
# The concept of [[social justice|social]] and [[
# The balance between [[Fundamental Rights, Directive Principles and Fundamental Duties of India|fundamental rights and directive principles]]
# The [[
# The principle of [[
# Limitations upon the amending power conferred by Article 368
# [[Judicial independence|Independence of the judiciary]]
# Effective [[
# Powers of the [[Supreme Court of India]] under Articles 32, 136, 141, 142
# Legislation seeking to nullify the awards made in exercise of the judicial power of the state by arbitration tribunals constituted under an act<ref name = "Lok Sabha Secretariat"/>
==Background==
The Supreme Court's initial position on constitutional amendments was that no part of the Constitution was unamendable and that the Parliament might, by passing a Constitution Amendment Act in compliance with the requirements of article 368, amend any provision of the Constitution, including the Fundamental Rights and article 368. In ''Shankari Prasad Singh Deo v. Union of India'' (AIR. 1951 SC 458), the Supreme Court unanimously held, "The terms of article 368 are perfectly general and empower Parliament to amend the Constitution without any exception whatever. In the context of article 13, "law" must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power, with the result that article 13 (2) does not affect amendments made under article 368. In ''Sajjan Singh v. State of Rajasthan'' ([[case citation]]: 1965 AIR 845, 1965 SCR (1) 933), by a majority of 3–2, the Supreme Court held, "When article 368 confers on Parliament the right to amend the Constitution, the power in question can be exercised over all the provisions of the Constitution. It would be unreasonable to hold that the word "Law" in article 13 (2) takes in Constitution Amendment Acts passed under article 368."<ref name="Lok Sabha Secretariat">{{cite web|title=Constitution Amendment: Nature and Scope of the Amending Process|url=http://164.100.47.134/intranet/CAI/1.pdf|work=Lok Sabha Secretariat|access-date=1 December 2013|pages=14–20|url-status=dead|archive-url=https://web.archive.org/web/20131203013055/http://164.100.47.134/intranet/CAI/1.pdf|archive-date=3 December 2013}} {{PD-notice}}</ref> In both cases, the power to amend the rights had been upheld on the basis of Article 368.
===''Golaknath'' case===
{{Main|I.C. Golak Nath and Ors. vs. State of Punjab and Anr.}}
In 1967, the Supreme Court reversed its earlier decisions in [[I.C. Golak Nath and Ors. vs. State of Punjab and Anr.|''Golaknath v. State of Punjab'']].<ref name = "Lok Sabha Secretariat"/> A bench of eleven judges (the largest ever at the time) of the Supreme Court deliberated as to whether any part of the [[Fundamental Rights in India|Fundamental Rights]] provisions of the constitution could be revoked or limited by amendment of the constitution. The Supreme Court delivered its ruling, by a majority of 6-5 on 27 February 1967. The Court held that an amendment of the Constitution is a legislative process, and that an amendment under article 368 is "law" within the meaning of article 13 of the Constitution and therefore, if an amendment "takes away or abridges" a Fundamental Right conferred by Part III, it is void. Article 13(2) reads, "The State shall not make any law which takes away or abridges the right conferred by this Part and any law made in contravention of this clause shall, to the extent of contravention, be void." The Court also ruled that Fundamental Rights included in Part III of the Constitution are given a "transcendental position" under the Constitution and are kept beyond the reach of Parliament. The Court also held that the scheme of the Constitution and the nature of the freedoms it granted incapacitated Parliament from modifying, restricting or impairing Fundamental Freedoms in Part III. Parliament passed the 24th Amendment in 1971 to abrogate the Supreme Court ruling in the Golaknath case. It amended the Constitution to provide expressly that Parliament has the power to amend any part of the Constitution including the provisions relating to Fundamental Rights. This was done by amending articles 13 and 368 to exclude amendments made under article 368, from article 13's prohibition of any law abridging or taking away any of the Fundamental Rights.<ref name = "Lok Sabha Secretariat"/> Chief Justice [[Koka Subba Rao]] writing for the majority held that:
* A law to amend the constitution is a law for the purposes of Article 13.▼
* Article 13 prevents the passing of laws which "take away or abridge" the Fundamental Rights provisions.▼
▲*A law to amend the constitution is a law for the purposes of Article 13.
* Article 368 does not contain a power to amend the constitution but only a procedure.
▲*Article 13 prevents the passing of laws which "take away or abridge" the Fundamental Rights provisions.
*
* Therefore, amendments which "take away or abridge" the Fundamental Rights provisions cannot be passed.▼
▲*Therefore, amendments which "take away or abridge" the Fundamental Rights provisions cannot be passed.
==''Kesavananda Bharati'' case (1973)==
{{Main|Kesavananda Bharati v. State of Kerala}}
Six years later in 1973, the largest ever Constitution Bench of 13 Judges, heard arguments in ''Kesavananda Bharati v. State of Kerala'' ([[case citation]]: AIR 1973 SC 1461). The Supreme Court reviewed the decision in [[I.C. Golak Nath and Ors. vs. State of Punjab and Anr.|Golaknath v. State of Punjab]], and considered the validity of the 24th, 25th, 26th and 29th Amendments. The Court held, by a margin of 7–6, that although no part of the constitution, including fundamental rights, was beyond the amending power of Parliament (thus overruling the 1967 case), the "basic structure of the Constitution could not be abrogated even by a constitutional amendment".<ref name=autogenerated1>{{Cite book | last = Austin | first = Granville | title = Working a Democratic Constitution - A History of the Indian Experience | publisher = Oxford University Press | year = 1999 | ___location = New Delhi | pages = 258–277 | isbn = 978-019565610-7 }}</ref> The decision of the Judges is complex, consisting of multiple opinions taking up one complete volume in the law reporter "Supreme Court Cases". The findings included the following:
* All of the Judges held that the 24th, 25th and 29th Amendments Acts are valid.▼
* Ten judges held that ''Golak Nath'''s case was wrongly decided and that an amendment to the Constitution was not a "law" for the purposes of Article 13.
▲*All of the Judges held that the 24th, 25th and 29th Amendments Acts are valid.
*
* Seven judges held (six judges dissenting on this point) that "the power
* Seven judges held (
Nine judges (including two dissenters) signed a statement of summary for the judgment that reads:
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Chief Justice [[Sarv Mittra Sikri]], writing for the majority, indicated that the basic structure consists of the following:
* The supremacy of the constitution.
* A [[republic]]an and [[democracy|democratic]] system.
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Justices Shelat and Grover in their opinion added three features to the Chief Justice's list:
* The mandate to build a [[welfare state]] contained in the [[Directive Principles of State Policy]].
* Maintenance of the unity and integrity of India.
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Justice Jaganmohan Reddy preferred to look at the preamble, stating that the basic features of the constitution were laid out by that part of the document, and thus could be represented by:
* A sovereign democratic republic.
* The provision of social, economic and political justice.
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The note is that in ''Kesavananda Bharati'' the dissenting judge, Justice Khanna, approved as "substantially correct" the following observations by Prof. Conrad:
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|quote = Any amending body organised within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its constitutional authority.
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===Bangladesh===
The basic structure doctrine was adopted by the [[Supreme Court of Bangladesh]] in 1989, by expressly relying on the reasoning in the Kesavananda case, in its ruling on ''Anwar Hossain Chowdhary v. Bangladesh'' (41 DLR 1989 App. Div. 165, 1989 BLD (Spl.) 1).<ref>{{cite web |url=http://www.hinduonnet.com/fline/fl1809/18090950.htm |title=Behind the 'basic structure' doctrine |access-date=2013-12-02 |url-status=usurped |archive-url=https://web.archive.org/web/20101220120644/http://www.hinduonnet.com/fline/fl1809/18090950.htm |archive-date=2010-12-20 }}</ref> However, Bangladesh is the only legal system to introduce this concept through constitutional provisions. Article 7B of the Constitution of Bangladesh Introduced some parts of it as basic provisions of the constitution and referred to some others (which are not properly defined) as basic structure of the constitution and declares all of these as not amendable.
===Belize===
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==See also==
* [[Judicial activism in India]]
* [[Liberal democratic basic order]]
* [[Entrenched clause]]
==References==
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== Bibliography ==
* [https://www.humanrightsinitiative.org/publications/const/the_basic_structure_of_the_indian_constitution.pdf The Basic Structure of the Indian Constitution]. Human Rights Initiative.
* H M Seervai, 'Constitutional Law of India'
* V.N. Shukla 'Constitution of India' 10th edition
* [https://www.thehindu.com/opinion/lead/legitimacy-of-the-basic-structure/article26168775.ece Legitimacy of the basic structure]. ''The Hindu.''
* Anuranjan Sethi (October 25, 2005), 'Basic Structure Doctrine: Some Reflections". {{SSRN|835165}}
* Conrad, Dietrich, Law and Justice, United Lawyers Association, New Delhi (Vol. 3, Nos. 1–4; pages 99–114)
* Conrad, Dietrich, Limitation of Amendment Procedures and the Constituent Power; Indian Year Book of International Affairs, 1966–1967, Madras, pp. 375–430
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