Answer Synopsis 19/11/2020

Question : Basic structure doctrine is a novel feature of Indian constitution. Discuss the events that led to its gradual evolution?

Structure of the answer

  • Firstly give a brief description of what is basic structure doctrine.
  • Then delineate the various events and cases that led to this landmark judgement.

Synopsis
The doctrine of the ‘basic structure’ (or ‘basic features’) of the Constitution rules that the constituent power of Parliament under Article 368 does not enable it to alter the ‘basic structure’ of the Constitution.

  • This means that the Parliament cannot abridge or take away the elements that form a part of the ‘basic structure’ of the Constitution.
  • The basic structure doctrine is an Indian judicial principle, most notably propounded by Justice Hans Raj Khanna, that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the Parliament of India.

Evolution of Basic structure doctrine

  • Power of the Parliament to amend key provisions of the Constitution was called to question immediately after the adoption of Indian Constitution.
  • In Shankari Prasad case (1951) and Sajjan Singh case (1965)Supreme Court conceded absolute power to Parliament in amending the Constitution, as was seen in the verdicts
    • The term “law” in Article 13 was defined to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power under Article 368.
    • This confirmed that the Parliament had the power to amend any part of the constitution including Fundamental rights.
    • Article 13(2) reads, “The State shall not make any law which takes away or abridges the right conferred by this Part (Part-III) and any law made in contravention of this clause shall, to the extent of contravention, be void.”
  • In Golaknath case (1967), the Supreme Court had a change of stance, held that Parliament could not amend Fundamental Rights, and this power would be only with a Constituent Assembly.
    • The Court held 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.
  • To get over the judgments of the Supreme Court in the Golaknath case (1967), RC Cooper case (1970), and Madhavrao Scindia case (1970), the then government headed by Prime Minister Indira Gandhi had enacted major amendments to the Constitution (the 24th, 25th, 26th and 29th).
  • All the four amendments brought by the government were challenged in the Kesavananda Bharati case.

Kesavananda Bharati case (1973)

  • This was a landmark case in defining the concept of the basic structure doctrine.
    • Question underlying the case: Was the power of Parliament to amend the Constitution unlimited? In other words, could Parliament alter, amend, abrogate any part of the Constitution even to the extent of taking away all fundamental rights?
    • The case was challenged under Article 26, concerning the right to manage religiously owned property without government interference.
  • The SC held that although no part of the Constitution, including Fundamental Rights, was beyond the Parliament’s amending power, the “basic structure of the Constitution could not be abrogated even by a constitutional amendment.” 
  • The judgement implied that the parliament can only amend the constitution and not rewrite it. The power to amend is not a power to destroy.
  • This is the basis in Indian law in which the judiciary can strike down any amendment passed by Parliament that is in conflict with the basic structure of the Constitution.
  • The Constitutional Bench in Kesavananda Bharati case ruled by a 7-6 verdict that Parliament could amend any part of the Constitution so long as it did not alter or amend the basic structure or essential features of the Constitution.

However, the court did not define the term ‘basic structure’, and only listed a few principles — federalism, secularism, democracy — as being its part.

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