The Doctrine Of Basic Structure

Submitted By: Riya Gupta

“A Constitution is an ever growing thing and is perpetually continuous as it embodies the spirit of the nation. It is enriched at present by the past influence and it makes the future richer than the present.”

– Edmund Burke

The Constitution of India is the living constitution which needs amendments from time to time in accordance with the societal changes or for the demands of ‘we the people.’ Article 368 of the Indian constitution provides such power of making amendments. According to this article the parliament has the power to make amendments to the constitution which is not subject to any limitations or exceptions even Article 368 itself .So, as we know in the constitution of India, Part XX under Article 368 provides for three kinds of amendment. As the time goes on changing in the same way the political, economic and social conditions of the people also goes on changing .So ,with a view to overcome the  difficulties  of  the people  the provision of amendment of the Constitution is made. But, the doctrine of basic structure put’s limitations to the power given to parliament under Article 368 i.e. – the basic structure of the basic law of the land cannot be amended under the Constitution. The doctrine of basic structure of Indian constitution has always been a controversial one, since it puts a limitation on the amending powers of the Parliament under article 368. Before highlighting the controversial part at first we must look into, the concept of the doctrine.

 

The Doctrine of basic structure is a judicial principle[1] i.e. judge-made doctrine and some have called this doctrine as “an invention of the Indian Judiciary” even. It is essential to make out the basic features of the Constitution which are non-amendable under Art 368. Rather calling it anything else better to say it as an evolution of the Indian Judiciary which was developed by the Supreme Court of India in the Kesavananda Bharati[2] judgment in 1973. It was due to this case where, the judges held by a majority that the parliament cannot pass or make any law or any amendment that would violate the ‘basic structure’ of the constitution. History of this doctrine is such, the question arose whether Fundamental rights can be amended under article 368?  In Shankari Prasad case[3], the right to property was challenged where SC ruled that the power of amendments also includes Fundamental Rights which totally changed the term ‘law’ under Article 13. Then later in Golakh Nath case [4], SC totally reversed its decision, where Ninth schedule was challenged and said Parliament cannot take away the fundamental rights, after which parliament reacted by enacting 24th Amendment act(1971) and the answer to it was very evidently given in the case Kesavananda Bharati in 1973.later in , in the case of Indira Nehru Gandhi[5] , the constitution was reaffirmed and SC invalidated the provision held that the amending powers are affecting the basic structure in 1975. The parliament cannot use its amendments powers under article 368 to damage, emasculate, destroy, abrogate, change or alter the basic structure or framework of the Constitution. As the  doctrine, is vague in nature i.e. it is not a is no clear cut list given by the Judiciary that such provisions of the Constitution forms the basic structure (since it’s an unwritten law ) so its left open before the judiciary to decide the same on the case to case basis.

 

This doctrine has always been a controversial and debatable topic as it applies anti-majoritarian flavour and is of prime importance as it prevents the Parliament from abusing its majoritarian power. To think practically, I totally support this doctrine the reason is  if such limitations is not given while  making amendments then don’t , a day may come, when it will be made a criminal offence to criticize the government in power and we may not be left with our basic absolute rights what the Constitution guarantees to us in Part III. We know that this doctrine is a subjective and a vague i.e. nothing but an unwritten law so it does not give clear cut list for actually basic features includes the basic structure rather it is left to be decided by the judge to decide it from case to case basis , probably, the reason may be, the Judiciary is afraid of the Legislature i.e. the law making body  that if they will give a clear cut list of basic structure, then the Parliament may come forward with some other alternatives which is very much possible thing to happen.it was only because of Professor Dietrich Conrad who make us aware about that there remains an implied limitations which was profoundly proved by Palkhivala successfully in the Keshavananda case what Mr. M. K. Nambyar  in Golakh Nath case tried but only because  of  judicial hesitation it took about half a decade time after Golakh Nath case to be approved .This doctrine puts a full stop to the unconstitutional Constitutional amendments of the Parliament in I. R. Coelho case [6]where with the purpose to give effect to laws relating to land reforms,the Ninth Schedule was enacted . History, clearly shows the failure of the purpose and shows the reality for what purpose, the Schedule was used actually. Basic structure doctrine is the reply to the doubting steps adopted to misuse the Ninth Schedule .Still the question remains –

 

Why The Parliament Cannot Amend The Basic Structure Of The Constitution?

 

The answer to this directly owes from the language of Article 368 itself that ―”…..the Constitution „shall stand amended‟ in accordance with the Bill[7]”. Ultimately the doctrine of basic structure give a moment to the living principles i.e. to the RULE OF LAW, and again proves that no one is above the constitution. Hence, it connotes that Constitution is Supreme.

 

[1]  Dewangi Sharma, ‘ Doctrine of Basic Structure’ (lawcorner, 28 October  2019) <https://lawcorner.in/doctrine-of-basic-structure/>accessed 15 July 2020
[2] (1973) 4 SCC 225)
[3] AIR 1951 SC 455
[4] 1967 AIR 1643, 1967 SCR (2) 762
[5] 1975 AIR 1590, 1975 SCC (2) 159
[6] 2007 SC 861
[7] Hemant , ‘Amendment of Constitution (Article 368)’ (The Fact Factor , 20 April 2019)<https://thefactfactor.com/facts/law/constitutional_law/amendment-of-constitution/1028/> accessed 12 July 2020

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