Basic Structure Doctrine: A Brief Analysis

This article has been written by Chirag Jindal. Chirag is currently a first-year student at The National University of Advanced Legal Studies, Kochi.

 

 

Kesavananda Bharti v. State of Kerala, one of the most famous cases in the history of Indian Judiciary, lays down the very foundations of one of the most important doctrines, the Doctrine of Basic Structure of the Constitution. According to this doctrine, the power of Parliament under Article 368 to amend the Constitution is not absolute rather it is limited. Article 368 of Indian Constitution speaks about the “Power of Parliament to amend the Constitution and Procedure there for.” Basic Structure Doctrine limits this power by stating that most fundamental parts of our Constitution cannot be amended i.e. Parliament cannot amend the Basic Structure of our Constitution.

Although the Basic Structure Doctrine was established in Kesavananda Bharti’s Case, yet what all things are parts of Basic Structure was not provided by the Supreme Court in the case itself. Various judges have given differing definitions of the basic structure. But the key phrases were supremacy of the Constitution; republican and democratic government; federal and secular character of the Constitution; maintenance of separation of powers; mandate to build a welfare state under the directive principles of state policy; maintaining unity and integrity of India; sovereignty of the country; essential features of individual freedoms; provision of socio-economic justice; liberty of thought, belief, expression, faith and worship; equality of status and opportunity. And still the doctrine is in its evolving phase. It is left up to the discretion of Court whether a particular part or article of the constitution is a part of Basic Structure of the Constitution. The new parts can be added to or deleted from the Basic Structure depending upon a case and the discretion of judges therein.

Thus, the Doctrine is one of the most important weapons of Supreme Court to review and strike down the Constitutional amendments enacted by the Indian Parliament which conflict with or seek to alter the Basic Structure of Indian Constitution.

A question which arises next is whether the Supreme Court has absolute discretionary power to declare a part of Constitution as its Basic Structure? The Supreme has used its power of judicial review to strike down certain provisions of 39th and 42nd Constitutional Amendments which tried to amend the Basic Structure of the Constitution. The Basic Structure Doctrine was reaffirmed in Minerva Mills Case. A principle was established by the a five judge bench including Chief Justice Y.V. Chandrachud which states, “A limited amending power is itself a Basic Structure of the Constitution.” By establishing this principle, the Supreme Court now has absolute discretionary power whether to declare a Constitutional Amendment valid or void.

A valid example can be 42nd and 44th Constitutional Amendment Acts. In 42nd Constitutional Amendment Act, 1976, the word ‘Socialist’ and ‘Secular’ were added in the Preamble even though the Preamble is the Basic Structure of Indian Constitution. The Supreme Court as well as the 44th Amendment Act, 1978, strikes down all the provisions which amended the Basic Structure in 42nd Amendment but preserved the words ‘Socialist’ and ‘Secular’ even though they are invalid as per Basic Structure Doctrine. The reasoning provided by the Supreme Court was that the words in the Preamble upheld the spirit of Indian Constitution and so the 42nd Amendment is valid with respect to this part. It can be clearly seen from the example that Supreme Court has absolute discretionary power.

Conclusively, it can be said that the nature of Basic Structure Doctrine is not fixed yet either by Supreme Court or by the Parliament. It is still an ever evolving doctrine and it depends only on the discretion of Supreme Court how to use the power of this doctrine. Until now, Supreme Court has used it for the welfare of the public and to uphold the spirit of the Constitution. Yet, nobody can say what will happen in the future. Nevertheless, the country which is one of the largest democracies in the world and which has a powerful Supreme Court can never drift away easily from the spirit of Constitution.

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