LANDMARK CASES RELATING TO THE BASIC STRUCTURE OF THE CONSTITUION

1. Shankari Prasad case v. Union of India, 1951 2. Sajjan Singh v. State of Rajasthan, 1965 3. Golak Nath vs. The State of Punjab, 1967 4. Kesavananda Bharati v. The State of Kerala, 1973 5. Indira Gandhi v. Raj Narain, 1975 6. Minerva Mills Ltd. v. Union of India, 1980 7. Chandra Kumar v. Union of India, 1997 A brief on the above cases has been laid down below.

1. Shankari Prasad Case V. Union of India, 1951 Shankari Prasad Vrs. Union of India is a landmark case in the basic structure of our constitution. In the cases, the power to amend the rights had been upheld on the basis of Article 368. Chief Justice Subba Rao writing for the majority six judges in special bench of eleven, overruled the previous decisions.

2. Sajjan Singh v. State of Rajasthan, 1965 The validity of the Seventeenth Amendment was challenged in this case. The main contention before the five-judge bench of the Supreme Court was that the Seventeenth Amendment limited the jurisdiction of the High Courts and, therefore, required ratification by one-half of the States under the provisions of article 368. The court unanimously disposed of this contention, but members of the court chose to deal with a second submission, that the decision in the Shankari Prasad case should be reconsidered. The Chief Justice (Gajendragadkar C.J.) in delivering the view of the majority (Gajendragadkar C.J., Wanchoo and Raghubar Dayal JJ.) expressed their full concurrence with the decision in the earlier case. The words “amendment of this constitution” in article 368 plainly and unambiguously meant amendment of all the provisions of the Constitution; it would, therefore, be unreasonable to hold that the word “law” in Article 13(2) took in Constitution Amendment Acts passed under article 368. They went on to point out that, even if the powers to amend the fundamental rights were not included in article 368, Parliament could by a suitable amendment assume those powers. The Chief Justice also dealt in his judgment with the wording of article 3lB. That article, he considered, left it open to the Legislatures concerned to repeal or amend Acts that had been included in the Ninth Schedule. But the inevitable consequence would be that an amended provision would not receive the protection of article 31B and that its validity could be examined on its merits. Hidayatullah and Mudholkar JJ., in separate judgments, gave notice that they would have difficulty in accepting the reasoning in Shankari Prasad’s case in regard to the relationship of articles 13 (2) and 368. Hidayatullah J. said that he would require stronger reasons than those given in that case to make him accept the view that the fundamental rights were not really fundamental, but were intended to be within the power of amendment in common with other parts of the Constitution. The Constitution gives so many assurances in Part III that it would be difficult to think that they were the play things of a special majority.” Mudholkar J. took the view that the word “law” in article 13 (2) included an amendment to the Constitution under article 368.Article 368 does not say that when Parliament makes an amendment to the Constitution it assumes a different capacity, that of a constituent body. The learned Judge recalled that India had a written constitution, which created various organs at the Union and State levels and recognized certain rights as fundamental.

3. Golak Nath vs. the State of Punjab (1967) In 1967, in Golak Nath vs. The State of Punjab, a bench of eleven judges (such a large bench constituted for the first time) of the Supreme Court deliberated as to whether any part of the Fundamental Rights provisions of the constitution could be revoked or limited by amendment of the constitution. Secondly, the Supreme Court of India gave a momentous judgement on the 28th February ,1967 in the famous case of Golak Nath & others Vrs. State of Punjab by declaring that the Fundamental Rights were transcendental and inviolable and the Parliament of India had no power to take away or abridge any of the Fundamental Rights guaranteed by the Constitution by way of the Constitutional amendments. Their lordship felt that the liberty of the Individual in the Indian Constitution is subject to various “ reasonable restrictions” which are expressly mentioned in the Constitution and that no further limitations should be imposed on it at any time.

4. The Kesavananda case (1973) The decision of the Supreme Court in the Golak Nath Case has created a constitutional deadlock. The deadlock was over in the famous case of Keshavananda Bharati and Others vrs.State of Kerala in 1973. The Supreme Court recognized basic structure concept for the first time in the historic Kesavananda Bharati case in 1973. Ever since the Supreme Court has been the interpreter of the Constitution and the arbiter of all amendments made by parliament. The court by majority overruled the Golak Nath case which denied parliament the power to amend fundamental rights of the citizens. In this case the petitioners challenged the validity of the 24th, 25th, 26th and 29th constitutional amendments. This decision is not just a landmark in the evolution of constitutional law, but a turning point in constitutional history. It is a landmark of the Supreme Court of India, and is the basis in Indian law for the exercise by the Indian judiciary of the power to judicially review, and strike down, amendments to the Constitution of India passed by the Indian Parliament which conflict with or seek to alter the Constitution’s basic structure.

5. Indira Gandhi v. Raj Narain, (1975) Basic Structure concept reaffirmed in this case. The Supreme Court applied the theory of basic structure and struck down Cl(4) of article 329-A,which was inserted by the 39th Amendment in 1975 on the ground that it was beyond the amending power of the parliament as it destroyed the basic feature of the constitution. Four basic features Justice Y.V. Chandrachud listed four basic features which he considered unamendable: • Sovereign democratic republic status. • Equality of status and opportunity of an individual. • Secularism and freedom of conscience and religion. • ‘Government of laws and not of men’ i.e. the rule of law. 42nd Amendment After the decision of the Supreme Court in Keshvanand Bharti and Indira Nehru Gandhi case the constitution (42nd Amendment) Act, 1976 was passed which added two new clauses, namely, clause (4) and (5) to Art.368 of the Constitution. It declared that there shall be no limitation whatever on the constituent power of parliament to amend by way of addition, variation or repeal of the provisions of the Constitution under this Article. This Amendment would put an end to any controversy as to which is supreme, Parliament or the Supreme Court. Clause (4) asserted the supremacy of the parliament. It was urged that Parliament represents the will of the people and if people desire to amend the Constitution through Parliament there can be no limitation whatever on the exercise of this power. This amendment removed the limitation imposed on the amending power of the Parliament by the ruling of the Supreme Court in Keshvanand Bharti’s case. It was said that the theory of ‘basic structure’ as invented by the Supreme Court is vague and will create difficulties. The amendment was intended to rectify this situation.

6. Minerva Mill v. Union of India (1980) In this case of Minerva Mill v.Union of India, the validity of 42nd amendment Act was challenged on the ground that they are destructive of the ‘basic structure’ of the Constitution. The Supreme Court by majority by 4 to 1 majority struck down clauses (4) and (5) of the article 368 inserted by 42nd Amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the constitution. It was ruled by court that a limited amending power itself is a basic feature of the Constitution. The historical Judgment laid down that: The amendment made to Art.31C by the 42nd Amendment is invalid because it damaged the essential features of the Constitution. Clauses (4) and (5) are invalid on the ground that they violate two basic features of the Constitution viz. limited nature of the power to amend and judicial review. The courts cannot be deprived of their power of judicial review. The procedure prescribed by Cl. (2) is mandatory. If the amendment is passed without complying with the procedure it would be invalid. The Judgment of the Supreme Court thus makes it clear that the Constitution is Supreme not the Parliament. Parliament cannot have unlimited amending power so as to damage or destroy the Constitution to which it owes its existence and also derives its power. The Fundamental Rights and the Directive Principles are required to be viewed as the two sides of the same coin. Both should be complementary to each other and there should be no confrontation between them. Undoubtedly, Part IV (containing the Directive Principles) is a part of the Constitution. Even though the Directives are not enforceable in the Courts of law, Article 37 clearly says that “it shall be the duty of the State to apply these principles ill making laws. An undue importance on civil liberties and rights in total disregard of the need to bring about social and economic justice, may lead to a mass upheaval. Any importance on the Directive Principles alone, in total disregard of the rights and liberties, may lead to totalitarianism. Hence a harmonious balance should be maintained between Part III and Part IV of the Constitution and real synthesis should come out only from harmonising the spirit of political democracy with the spirit of economic democracy.

7. Chandra Kumar v. Union of India (1997) Article 323-A and 323-B, both dealing with tribunals, were inserted by the 42nd Amendment. Clause 2(d) of Art.323-A and Clause 3(d) of 323-B provided for exclusion of the jurisdiction of the High Court under Art.226 and 227 and the Supreme Court under Art.32. Majority Judgment: The judgment of CJ Sikri held that fundamental rights conferred by Part III of the Constitution cannot be abrogated, though a reasonable abridgement of those rights could be effected in public interest. There is a limitation on the power of amendment by necessary implication which was apparent from a reading of the preamble Every provision of the Constitution was open to amendment provided the basic foundation or structure of the Constitution was not damaged or destroyed.

Verdict of the Judgment Parts III and IV of the Constitution which respectively embody the fundamental rights and the directive principles have to be balanced and harmonized. • This balance and harmony between two integral parts of the Constitution forms a basic element of the Constitution which cannot be altered. • The word ‘amendment’ occurring in Article 368 must therefore be construed in such a manner as to preserve the power of the Parliament to amend the Constitution, but not so as to result in damaging or destroying the structure and identity of the Constitution. There was thus an implied limitation on the amending power which precluded Parliament from abrogating or changing the identity of the Constitution or any of its basic features. Chief Justice Sikri listed Basic Structure features • The supremacy of the constitution. • A republican and democratic form of government. • The secular character of the Constitution. • Maintenance of the separation of powers. • The federal character of the Constitution. Justices Shelat and Grover listed Basic Structure features • Maintenance of the unity and integrity of India • The sovereignty of the country • The sovereignty of India • The democratic character of the polity • The unity of the country • Essential features of individual freedoms • The mandate to build a welfare state

Important Supreme Court Judgments

Case	Important Supreme Court judgments
Golaknath and State of Punjab 1967	Supreme Court ruled that Parliament could not restrict any of the Fundamental Rights of individuals enshrined in the Constitution.
Keshavananda Bharti and State of Kerala 1973	Golaknath case was overruled and parliament recaptured the power of amending and by virtue of the amending power cannot change the basic structure of the constitution.
Minerva Mills and Union of India 1980	Fortified the idea of the basic structure which was put forward earlier in the Keshavananda Bharti Case.
Waman Rao and Union of India 1981	This case has facilitated in determining a satisfactory way of addressing grievances pertaining to the violation of fundamental rights.
Mohd Ahmed Khan and Shah Bano Begum 1985	This case challenged the Muslim petition law.
MC Mehta and Union Of India 1986	Enlarged the scope and sphere of Article 32 and Article 21 to incorporate the right to healthy and pollution-free environment.
Indra Sawhney and Union of India 1992	It defined the “creamy layer” criteria and uphold the execution of the recommendations made by the Mandal Commission
First Judges Case or S.P. Gupta case 1981	The ruling gave the Executive dominance over the Judiciary in judicial appointments for the next 12 years
Second Judges Case or Supreme Court Advocates on Record Association versus Union of India  1993	The majority verdict gave back Chief Justice of India’s power over judicial appointments and transfers.
Three judges case or Special Reference case of 1998	Chief Justice of India must check with a plurality of four senior-most Supreme Court judges to shape his opinion on judicial appointments and transfers.
SR Bommai and Union of India 1994	This has created major repercussion on Center-State relations
Vishaka and State of Rajasthan 1997	Introduction of Vishaka Guidelines and provided basic definitions of sexual harassment at the workplace
Samatha and State of Andhra Pradesh 1997	SC declared that the forest land, tribal land, and government land, in scheduled areas could not be leased to private companies or non-tribal for industrial operations. Such activity is only permissible to a government undertaking and tribal people.
I.R Coelho and State of Tamil Nadu 2007	If a law is included in the 9th schedule of the Indian constitution, it can still be examined and confronted in court.
Section 377 case 2009	The Section 377 of the Indian Penal Code, 1860 declared as unconstitutional. The same was reversed by the Supreme Court in 2013.
Pedophilia case 2011	SC declared that the Children are the endowment to humanity. The sexual abuse of children is one of the most monstrous transgressions.
NOTA- None-Of-The-Above Judgment 2013	An option of not voting for any candidate was given if they don’t find any of the apt candidates.
Lily Thomas and Union Of India 2013	SC ruled that any Member of the legislative assembly, Member of a legislative council or Member of Parliament who was found guilty of a crime and given a minimum of two-year imprisonment, would lose membership of the House with an immediate effect.
Nirbhaya case March 2014	Introduction of the Criminal Law (Amendment) Act, 2013 and definition of rape under the Protection of Children from Sexual Offences Act, 2012, the Indian Evidence Act, 1872, Indian Penal Code, 1860 and Code of Criminal Procedures, 1973.
National Legal Services Authority and Union of India April 2014	This case resulted in the recognition of transgender persons as a third gender. SC also instructed the government to treat them as minorities and expand the reservations in education, jobs, education etc
Shreya Singhal and Union of India 2015	The controversial section 66A of the Information Technology Act which permitted arrests for unpleasant content posted on the internet was struck down as unconstitutional.
Aruna Shanbaug Case	Along with guideline supreme court allowed passive euthanasia in the country.