Fundamental Rights and the Basic Structure Doctrine.

The Magna Carta is popularly known to be the ‘big-bang’ of the legal world. The Magna Carta Libertatum agreed to by King John, in June 1215 secured the principle of Lexrex: Law is the king of kings. With the progress of mankind, globalization, progress of society and increased interaction and conflicts in the same, a long path has been traced from 1215 to the 21st century. The ideas of state, liberty, freedom, democracy, secularism are protected and contested for, against the state and private interests. These are some elements constituting the basic political rights of citizens. Similarly, there are social and. Economic rights conferred upon citizens, but fundamental rights are sine qua non to a person’s dignity and right to life. They are rights that are bestowed upon an individual by virtue of birth and subject to the territory they reside.
In order to safeguard these rights, a constitution was introduced, which is a living entity of all the laws of the land. The idea of the Constitution was borrowed from the United States. It is the primary source of the law of the land, the source to turn towards to in ambiguity, proof, reference, or a source. All the Laws of the land are derived from that one source.
The Chairman of the Drafting Committee of the Constitution, of the world’s largest Democracy, India, was headed by Bhimrao Ramji Ambedkar (B.R.Ambedkar). The first Constituent Assembly (1) was held on 9th December, 1946 and a cumulative period of two years, eleven months and three days of drafting the Constitution. It was primary reflection of autochthony of Independent India. Besieged under the colonial rule, the Indian Constitution persisted to be the largest written Constitution in the world, presently at 395 articles, 22 parts and 8 schedules (2). It consisted of the most progressive guidelines at the time on independence itself, such as, the universal adult franchise or the women’s right to vote. The Introduction of universal adult franchise by the Constitution makers was a bold experiment and highly remarkable in view of the vast size of the country, its huge population, high poverty, social inequality and overwhelming illiteracy. Fundamental Rights, The Magna Carta of India are enshrined in Part 3 of the Constitution, from Articles 12-35 (3). The Fundamental Rights are guaranteed by the Constitution to all persons without any discrimination. They Uphold the equality of all individuals, the dignity of the individual, the larger public interest and unity of the nation. However, they are not absolute in nature. Every right has reasonable restrictions, and the reasonability of the restrictions must be decided by the courts. They are enforceable in nature, and an individual under writ petitions (Article 32 and Article 226), can move the Supreme Court of High Court, in case of violation of a fundamental right. Therefore, fundamental rights are not sacrosanct and are amendable. They are guaranteed by the fundamental law of the land and to all persons without any discrimination. However, there are certain rights available only to the citizens and not to aliens.

There are 6 Fundamental Rights enshrined in the Constitution:
1.Right to equality: Article 14-Article 18
2.Right to freedom: Article19-Article 22
3.Right against exploitation: Article 23 and Article 24
4.Right to freedom of religion: Article 25-Article 28
5.Cultural and educational rights: Article 29 and Article 30
6.Right to constitutional remedies: Article 32
The amendablity of the fundamental rights requires a constitutional amendment and is permitted only on the condition that it does not alter the basic structure of the constitution.

-ensure human dignity
-enforceable against the state on violation
-safeguard the liberties of the citizens
-prevent autocratic action of the government
-derived by the fundamental law of the land
-essential in establishing equality
-essential in establishment of reservation and positive discrimination
-protects an individual’s right to a dignified life
-protects against exploitation and forced labour
-essential to secure religious rights and conscience
-essential to secure freedom of namely speech, expression, assembly, association, movement, residence, profession

The basic structure of the constitution can be understood as certain features or principles of the constitution that cannot be altered or destroyed by amendments of the Parliament. The concept of basic structure is nowhere mentioned in the constitution. It can be understood as a judicial prerogative that can exercised to safeguard the skeletal framework the constitution. The origin of the basic structure doctrine can be traced to the Kesavananda Bharti v/s Union of India (1973) (4), the case also popularly known to keep intact the democratic character of the state.
Basic structure is also essential in order to restrict legislative and executive overreach. It curbs the arbitrary actions of the executive and the law-making powers of the legislature. Under Article 368, The Parliament can amend any part of the document. However, the non-defined basic structure restricts this power of the parliament and makes room for judicial interpretation of the potential amendments. This provides an efficient mechanism of separation of powers as well, with a robust judiciary stepping in to safeguard the essence of the constitution.

-Shankari Prasad v/s Union of India (1951 AIR 458, 1952 SCR 89) (5)
During the 1950s, there were 7 fundamental rights in India. The right to property was a fundamental right under article 19(f). It was repealed by the 44th Constitutional Amendment Act of 1978.
Under this case, the first constitutional amendment act of 1951 was challenged. In the 1950’s, in an attempt to promote socio-economic development, the government brought in many agrarian land reforms and reservations. The focus of these reforms were primarily based on land redistribution schemes across different categories of landlords. The zamindari system was rampant across the country and the state governments were unsuccessful in eliminating it. These reforms were challenged across the High Courts as article 19(f) was then a fundamental right to property. The courts upheld the government’s right to bring in amendments by stating that article 19(f) was not absolute. By articles 31-A and 31-B were upheld as restrictions of 19(f). The Supreme Court held that under article 31-A and 31-B that the government can acquire any property for the purpose of socio-economic development. Article 31A broadly meant that for the purpose of the state development no laws would be unconstitutional, while with the insertion of Article 31B meant laws introduced under the ninth schedule of the constitution as legally immune from challenges in any court. These two provisions consequently, limited the extent of property as a fundamental right under Article 31 of the constitution. The Court held that the Parliament, under Article 368 has the power to amend the fundamental rights. Through the 17th Amendment Act of 1964, 44 more acts were included in the 9th Schedule.

-I.C.Golaknath v/s State of Punjab (1967 AIR 1643, 1967, SCR (2) 762) (6)
Under the above reforms being undertaken by the government, the Punjab Government passed the Punjab Security and Land Tenures act, 1962. The government held that the surplus land of the zamindars will be hired by the government. The 500 acres of land of the Golaknath family was planned to be disbursed as 30 acres to be retained with the family and the rest 470 acres to be distributed among the tenants and for socio-economic development.
The Golaknath family filed a petition in court against the decision. The learned counsel for the petitioner contended that the constituent assembly had drafted the constitution of India, which is of a permanent nature. Therefore, any changes to be brough in the basic structure constitution cannot be done by the Parliament. The learned counsel upheld the Doctrine of implied limitation (borrowed from the Weimer Constitution). Implied Limitation upholds that the Parliament can amend anything but cannot alter the basic structure of the constitution.
Further, it was contended that article 19(f) was a fundamental right of the constitution and fundamental rights are the soul of the constitution. The fundamental rights cannot be taken away by the Parliament. The petitioner also argued that Article 368 consists of the procedure to amend the constitution. Nowhere is the right of the Parliament to amend the constitution has been mentioned. The question that arose was whether the Parliament has the absolute power and the power to amend the fundamental rights under the constitution or not?
The eleven-judge bench of the Supreme Court held that the Parliament could not amend any fundamental rights and this power would only be with a Constituent Assembly. An amendment under Article 386 is law within the meaning of Article 13 and therefore, if an amendment is in contravention of anything in Article 13, it is void. The majority held that the Parliament cannot amend the fundamental rights under Part 3 of the Constitution. The fundamental rights were held as natural rights essential for the growth development of a human being. The judgement thus struck a balance between Article 368 and Article 13 (2). In response, the Parliament passed the 24th Amendment Act, 1971 to amend articles 13 and 368 and nullify the Golaknath judgement.

-Kesavananda Bharti v/s Union of India 1973 (7)
The Kerala Government passed the Kerala Land Reforms Act, 1963. Kesavananda Bharti was the head seer of the Edneer Mutt in Kasaragod district of Kerala in 1961. The land was acquired by the government and Kesavananda Bharti filed a writ under Articles 32, 25, 26, 19(f), 31.
The learned counsel for the petitioner contended that 24th and 25th Constitutional Amendments violated the fundamental rights under article 19(f). The respondent argued that the supremacy of the Parliament gives it the right to amend the Constitution unlimitedly. The State must fulfill its socio-economic obligations and hence such amendments by state are necessary to meet the constitutional objectives.
A 13-judge bench was constituted to hear the case. The basic structure was evolved and found in the dissenting judgement written by Justice H R Khanna. It was also held that Court can review the 9th schedule if it violates the fundamental rights.
The Golaknath judgment overruled and by a 7:6 majority, the court held that the Parliament could amend any part of the constitution but it should not be violative of the basic structure or the essential features of the constitution. Kesavananda Bharti had, in fact, lost the case., but a new discourse had been evolved. The Parliament drew an inherent, intrinsic line that could not be crossed under the garb of an amendment. Therefore, Kesavanada Bharti is also popularly known as the case that saved democracy. The legislative powers of the Parliament were restricted by the judiciary and the citizens were guaranteed their fundamental rights. The parliament established that any amendment cannot contravene the basic features of the constitution, thereby opening the doors of the judiciary to interpret the said basic structure and safeguard the basic element of the constitution.

This article aims to comprehensively shed light on the fundamental rights and the evolution of the basic structure doctrine of the constitution. The importance of conserving the rights of the citizens against the arbitrary actions of the state is covered above. Similarly, the importance of judicial intervention can be understood in the judicial interpretation of the basic structure doctrine which has preserved the soul of the Constitution.



(3). https://www.mea.gov.in/Images/pdf1/Part3.pdf

(5) https://indiankanoon.org/doc/1706770/

(6) https://indiankanoon.org/doc/120358/

(7) https://indiankanoon.org/doc/257876/

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