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Doctrine of Basic Structure

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Amartya Prakash
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Doctrine of Basic Structure

Uploaded by

Amartya Prakash
Copyright
© © All Rights Reserved
Available Formats
Download as PPTX, PDF, TXT or read online on Scribd
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DOCTRINE OF BASIC

STRUCTURE OF THE
INDIAN CONSTITUTION

Amartya Prakash
INTRODUCTION

• A judge made doctrine where the certain features of the Indian Constitution are beyond the limit
of amending powers of the legislature.
• Art 13 of the Indian Constitution - Laws inconsistent with or in derogation of the fundamental
rights
• Art 368 of the Indian Constitution - Power of Parliament to amend the Constitution and
procedure therefor.
• Protects the ethos of the Indian Constitution
TIMELINE

• Constitution’s 1st Amendment Act – Introduction of 9th schedule (Article 31B)


• Shankari Prasad Singh Deo v. Union of India (1951)
In this case, the SC contended that the Parliament’s power of amending the Constitution under
Article 368 included the power to amend the Fundamental Rights guaranteed in Part III as well.
• Sajjan Singh v. State of Rajasthan (1965)
- 17th Constitutional Amendment - challenged
- In this case also, the SC held that the Parliament can amend any part of the Constitution including
the Fundamental Rights.
-Hidayatullah J. and Mudolkar J. - Dissent
• Golak Nath v. the State of Punjab (1967)
- Three writ petitions were clubbed together.
- The first one was by children of Golak Nath, against the inclusion of the Punjab Security of Land
Tenures Act, 1953 in the Ninth Schedule. The other two petitions had challenged the inclusion of
the Mysore Land Reforms Act in the Ninth Schedule.
- 11 judge bench decision, wherein the Hon’ble Supreme Court by a majority of 6:5 held that the
fundamental rights were outside the purview of the amendment of the Constitution
- This case conferred upon Fundamental Rights a ‘transcendental position’
- The majority judgement called upon the concept of implied limitations on the power of the
Parliament to amend the Constitution.
• Constitution 24th Amendment
- A new clause (4) was added to Article 13
- The marginal heading of Article 368 was changed to ‘Power of Parliament to amend the
Constitution and Procedure, therefore’
- Article 368 was provided with a new sub-clause (1)
- President was put under an obligation to give assent to any Bill amending the Constitution
- A reassuring clause (3) was also added to Article 368, which again clarified that ‘nothing in
Article 13 shall apply to any amendment made under this Article.
• Kesvananda Bharati v. the State of Kerala (1973)
• filed to challenge the validity of the Kerala Land Reforms Act, 1963 placed under the 9 th
schedule through 29th amendment of the Constitution.
• The petitioner was permitted to not only challenge the 29th Amendment but also the validity of
the 24th and 25th Amendments.
• 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.
• The judges did not provide what constitutes the basic structure but provided an illustrative list of
what may constitute the basic structure.
• 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.
EVOLUTION OF THE BASIC STRUCTURE
DOCTRINE
• Indira Nehru Gandhi v. Raj Narain (1975)
- appellant had filed an appeal against the decision of Allahabad High Court invalidating her
election as the Prime Minister.
- 39th Amendment was enacted and enforced which stated that no court has jurisdiction over the
election disputes of the Prime Minister
- The Hon’ble Supreme Court relying on the decision of Kesavananda Bharati stated that
democracy was an essential feature of the Constitution and forms part of the basic structure.
• Minerva Mills Ltd. v. Union of India (1980)
- The judgement struck down 2 changes made to the Constitution by the 42nd Amendment Act
1976
- A limited amending power was very well part of the basic structure doctrine of the Constitution.
- The judgement makes it clear that the Constitution, and not the Parliament is supreme.
• Waman Rao Case (1981)
- The SC again reiterated the Basic Structure doctrine.
- The Waman Rao case held that amendments made to the 9th Schedule until the Kesavananda
judgement are valid, and those passed after that date can be subject to scrutiny.
• S.R. Bommai case (1994)
• In this judgement, the SC tried to curb the blatant misuse of Article 356 (regarding the
imposition of President’s Rule on states).
• In this case, there was no question of constitutional amendment but even so, the concept of basic
doctrine was applied.
• The Supreme Court held that policies of a state government directed against an element of the
basic structure of the Constitution would be a valid ground for the exercise of the central power
under Article 356.
CONCLUSION

• Today there is no dispute regarding the existence of the doctrine, the only problem that arises
time and again is the contents of the same.
• Certain contents have been reaffirmed again and again by the Courts whereas some of them are
still in the process of deliberations.
• The basic structure doctrine grants the fine balance between flexibility and rigidity that should be
present in the amending powers of any Constitution.
• All laws and constitutional amendments are now subject to judicial review and laws that
transgress the basic structure are to be struck down.

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