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BASIC STRUCTURE OF CONSTITUTION

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BASIC STRUCTURE OF CONSTITUTION

CONTEXT:

Recently Basic structure doctrine completed its 50 years. Supreme Court in its landmark Kesavananda Bharti Judgment came up with this doctrine in 1973. Supreme Court though it’s various judgements thereafter has highlighted features of basic structure.

WHAT IS BASIC STRUCTURE OF CONSTITUTION?

ORIGIN-

  • The origins of the basic structure doctrine are found in the post-war German Constitution law which, after the Nazi regime, was amended to protect some basic laws.
  • In case of INDIA, the doctrine of Basic Structure was evolved by the Supreme Court in the 1973 landmark ruling in Kesavananda Bharati v State of Kerala.
  • In a 7-6 verdict, a 13-judge Constitution Bench ruled that the ‘basic structure’ of the Constitution is inviolable, and could not be amended by Parliament.
  • It is a form of judicial review that is used to test the legality of any legislation by the courts.
  • This doctrine is applied to constitutional amendments to ensure that the amendment does not dilute the fundamentals of the Constitutional itself.
  • It is regarded as a check on majoritarian impulses of the Parliament and checks its substantive limits on the power to amend the Constitution.

EVOLUTION-

The ever-evolving doctrine of Basic Structure got its shape after a result of endless tussles between the judiciary and the executive led by then Prime Minister Indira Gandhi.

The chronology of events is as follows-

  • After a reversal of key legislation by the judiciary including land reforms, nationalization of banks, abolition of privy purse etc.
  • The Parliament by enacting the 24th Amendment Act (1971) brought in a constitutional amendment to give itself the power to amend any part of the Constitution and passed a law to make the legislations free from judicial scrutiny.
  • Then the judiciary responded in landmark Kesavananda Bharati Case(1973) that the constituent power of Parliament under Article 368 does not enable it to alter the ‘basic structure’ of the Constitution.
  • The doctrine of basic structure of the constitution was reaffirmed and applied by the Supreme Court in the Indira Nehru Gandhi case (1975) too.
  • Again, Parliament reacted by enacting 42nd Constitutional Amendment Act.
  • This Act amended Article 368 and declared that there is no limitation on the constituent power of Parliament and no amendment can be questioned in any court on any ground including that of the contravention of any of the Fundamental Rights.
  • The Supreme Court in the Minerva Mills case(1980) invalidated this provision as it excluded judicial review which is a ‘basic feature’ of the Constitution.
  • Again in the Waman Rao case(1981), the Supreme Court adhered to the doctrine of the ‘basic structure’ and further clarified that it would apply to constitutional amendments enacted after April 24, 1973.

FEATURES OF BASIC STRUCTURE OF CONSTITUTION:

  • The Basic Structure cannot be found in any particular Article of the Constitution and goes beyond the written word of the constitutional text.
  • In the Kesavananda ruling, the Supreme Court cited several aspects of the Constitution that could be identified as “basic features” of the document but added that it was not an exhaustive list.
  • From the various judgements, the following have emerged as ‘basic features’ of the Constitution or elements of the ‘basic structure’ of the constitution:
  1. Supremacy of the Constitution.
  2. Sovereign, democratic and republican nature of the Indian polity.
  3. Secular character of the Constitution.
  4. Separation of powers between the legislature, the executive and the judiciary.
  5. Federal character of the Constitution.
  6. Unity and integrity of the nation.
  7. Welfare state (socio-economic justice).
  8. Judicial review.
  9. Freedom and dignity of the individual.
  10. Parliamentary system.
  11. Rule of law.
  12. Harmony and balance between Fundamental Rights and Directive Principles.
  13. Principle of equality.
  14. Free and fair elections.
  15. Independence of Judiciary.
  16. Limited power of Parliament to amend the Constitution.
  17. Effective access to justice.
  18. Principles (or essence) underlying fundamental rights.
  19. Powers of the Supreme Court under Articles 32, 136, 141 and 142.
  20. Powers of the High Courts under Articles 226 and 227.

CRITICISM OF DOCTRINE OF BASIC STRUCTURE OF CONSTITUTION:

Despite considered an innovative and novel method to uphold the basic tenets of constitution, it is often criticised due to following reasons:

  • It is not found in the text of the Constitution itself.
  • Judiciary by the virtue of this doctrine is encroaching upon the Parliament’s power of legislation.
  • Senior advocate Raju Ramachandran have argued that the power of “unelected judges” to strike down amendments to the Constitution on the basis of this doctrine is “anti-democratic and counter-majoritarian.”

CHECKS AND BALANCES:

Kesavananda Bharati verdict had made it clear that judicial review is not a means to usurp parliamentary sovereignty but only part of a “system of checks and balances” to ensure constitutional functionaries do not exceed their limits.

Chief Justice Patanjali Shas tri way back in 1952 in State of Madras versus V.G. Row case said that judicial review was undertaken by the courts “not out of any desire to tilt at legislative authority in a crusader’s spirit, but in discharge of a duty plainly laid down upon them by the Constitution”.

Syllabus: MAINS, GS 2 INDIAN POLITY

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