About the Author:
Anjali Gurunath Naik is a Member of the LJRF and MSF National Constitutional Literacy Mission – Kerala Chapter.
Introduction:
The Constitution is the supreme law of the land and the Constitutional authorities must act in accordance with the provisions enshrined in our Constitution. It governs on the principle of rule of law. The judiciary in India, is separate, independent and impartial i.e. entirely separate from the legislature and Executive. The judiciary performs the role of an adjudicating authority delivering justice to society. In addition, it prevents the administrative abuse of power by both Legislative and Executive bodies.
Concept of Basic Structure Doctrine:
The Constitution under Article 368 confers powers to the Parliament to amend the Constitution. The concept of the basic structure doctrine stipulates that the amendment made by the parliament must not affect or destroy the basic structure of our Constitution. It suggests that the parliament or the state legislatures must not amend laws that are inconsistent with the fundamental rights enshrined under part III of the Constitution of India. The Supreme Court and High Courts have the power of Judicial Review under Article 32 and Article 226 of the Constitution of India. The power of judicial review enable courts to declare laws to be unconstitutional and invalid if it is against the Fundamental rights.
The Judiciary stands as a pillar to protect the Constitutional values and ethics that may be in jeopardy. It is a machinery to prevent laws that are derogatory and or violative of Fundamental Rights under Part III of the Constitution. The amending power of the Constitution is extra-constitutional in India i.e. it developed gradually through judicial decisions.
The Origin of Basic Structure Doctrine:
Article 368 of the Constitution empowers the parliament to amend the Constitution. In the initial stages, the power to amend the constitution was a constituent power that meant the parliament had unlimited power to amend the constitution as well as our Fundamental rights. In Sankari Prasad v. Union of India and Sajjan Singh v. State of Rajasthan. The Supreme Court held that the Parliament exercised constituent powers and could amend the constitution and our fundamental rights. However, Justice Hidayathulla and Justice Madholkar had given a dissenting judgement in the latter case claiming that the Fundamental Rights play an integral part in the Constitution and the parliament amending them would be beyond their powers.
The dissenting opinion had a majority approval in I.C. Golaknath v. State of Punjab that overruled the previous judgements. The Parliament’s powers to amend were imposed with a substantive restraint that allowed only limited power and no authority had the power to amend the fundamental rights that are considered to be inseparable and essential to an individual.
In Kesavananda Bharati v. State of Kerala , the final settlement in the matters of Article 368 of the Constitution was made. The Supreme Court, consisting of a 13 judge bench modified the earlier judgement and declared that the fundamental rights are an integral part of the Constitution and therefore, immunity to Part III of the Constitution was given. Although the Parliament has the power to amend the Constitution, the basic structure of the constitution must not be changed or altered. The Court further stated that the Preamble is a part of the Constitution. Thus, in this case, the doctrine of basic structure was developed and established.
The doctrine of basic structure was applied in Indira Nehru Gandhi v. Raj Narain where an appeal was filed by the Prime Minister for seeking the right to take part in elections which were partially suspended for alleged electoral malpractice by the court. The Appeal was filed for a complete stay of suspension. The Court applied the basic structure doctrine citing Kesavananda Bharati v. State of Kerala, stating that democracy is a basic structure of the constitution and no person how mighty he/she may be, cannot go against the principle of rule of law.
In Minerva Mills v. Union of India, the Supreme Court through the doctrine of basic structure held that the Parliament has certain limited power when exercising article 368 and must ensure that it does not affect the basic features and fundamental rights. In addition, there must be a balance between the fundamental rights and Directive Principles of State Policies (DPSP) to keep amendment from judicial scrutiny.
Conclusion:
In conclusion, the Rule of Law suggests that no person or individual is above the law, our Constitution imparts this principle in itself being the supreme law of the land. The judicial machinery plays an important role for securing and protecting the basic constitutional values and preserving the intention of the Constitutional makers. The Supreme Court of India, an independent and impartial Institution established the basic structure doctrine with a view to limit the Parliament’s amending power from exercising beyond its means and necessity. The extra-constitutional aspect of this doctrine evolved over time and the judiciary was successful in sustaining the values of democracy and rule of law.
List of cases of Supreme Court on Basic Structure Doctrine:
- Kesavananda Bharthi v. State of Kerala, A.I.R 1973 S.C 1461.
- Indira Gandhi v. Raj Narain,1975 A.I.R 2299.
- Minerva Mills Ltd. v Union of India (1980) 3 SCC 625.
- Waman Rao & Ors. v. Union of India & Ors (1981) 2 SCC 362.
- Indra Sawhney Etc. Etc vs Union Of India And Others, Etc. … on 16 November, 1992
- S. R. Bommai v. Union of India,1994 A.I.R 1918.
- M. Nagaraj v. Union of India (2006),
- I.R.Coelho (Dead) By Lrs vs State Of Tamil Nadu & Ors on 11 January, 2007.
- Supreme Court Advocates-on-Record Assn. v. Union of India, A.I.R 2015 S.C 5457.
- Janhit Abhiyan vs Union Of India on 7 November, 2022.
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