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Day 12

Ques polity

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17 views

Day 12

Ques polity

Uploaded by

Aakriti Bansal
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Q.1) Parliament could not use its amending power to destroy, change or alter the constitution. In this context discuss
the evolution of doctrine of basic structure and give its significance and consequences for Indian democracy. (15
Marks, 250 words)
INTRODUCTION-
Meaning of basic structure and how it has been conceived

BODY-
Detail about basic structure, arguments, significance and consequences

CONCLUSION-
conclude on a positive note

It is a limitation on amending the power of parliament. Parliament can amend the constitution but amendment should
not destroy the basic structure.Basic structure may be academically wrong but it was the need of the hour in case of
India. This theory was given by the Supreme Court in the Kesavanand Bharati case.

Evolution of the Basic Structure Concept


The concept of the basic structure of the constitution evolved over time. .
• Shankari Prasad Case (1951): In this case, the SC held that the Parliament can amend any part of the
Constitution including the fundamental rights.
• Golaknath case (1967): In this case, the court reversed its earlier stance that the Fundamental Rights can be
amended.
o It said that Fundamental Rights are not amenable to the Parliamentary restriction as stated in Article
13 and that to amend the Fundamental rights a new Constituent Assembly would be required.
o As per this view, the Constitution gives a place of permanence to the fundamental freedoms of the
citizens.
• Kesavananda Bharati case (1973): This was a landmark case in defining the concept of the basic structure
doctrine.
o The judgment implied that the parliament can only amend the constitution and not rewrite it. The
power to amend is not a power to destroy.
o 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.

• Indira Nehru Gandhi v. Raj Narain case (1975): Here, the SC applied the theory of basic structure and struck
down Clause(4) of Article 329-A, which was inserted by the 39th Amendment in 1975 on the grounds that it
was beyond the Parliament’s amending power as it destroyed the Constitution’s basic features.
• Minerva Mills case (1980): This case again strengthens the Basic Structure doctrine. The judgment struck
down 2 changes made to the Constitution by the 42nd Amendment Act 1976, declaring them to be violative
of the basic structure.
o The judgment makes it clear that the Constitution, and not the Parliament is supreme.
o In this case, the Court added two features to the list of basic structure features. They were: judicial
review and balance between Fundamental Rights and DPSP.
• Waman Rao Case (1981): The SC again reiterated the Basic Structure doctrine.
o It also drew a line of demarcation as April 24th, 1973 i.e., the date of the Kesavananda Bharati
judgment, and held that it should not be applied retrospectively to reopen the validity of any
amendment to the Constitution which took place prior to that date.

DMP 2023_DAY 12 1
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• Indra Sawhney and Union of India (1992): SC examined the scope and extent of Article 16(4), which provides
for the reservation of jobs in favour of backward classes.
o It upheld the constitutional validity of 27% reservation for the OBCs with certain conditions (like
creamy layer exclusion, no reservation in promotion, total reserved quota should not exceed 50%,
etc.)
o Here, ‘Rule of Law’ was added to the list of basic features of the constitution.
• S.R. Bommai case (1994): In this judgment, the SC tried to curb the blatant misuse of Article 356 (regarding
the imposition of President’s Rule on states).
o 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.

Arguments for basic structure are-

1. There is a difference between amending the constitution and rewriting. It should not happen that after
amendment, we do not get the original constitution.
2. Parliament can not be equated with constitutional amendment because
• A constitutional amendment represents popular sovereignty or general will whereas Parliament
represents political majority.
• Necessary to protect the dignity of the constitution.
• Judiciary asserted the rule of guardians of the constitution by doctrine of basic structure.
• Judiciary is the protector of the rule of law.

Arguments against doctrine of Basic structure are;-


• It is extra constitutional.
• The Constitution nowhere limits Parliament with respect to amending Power .
• The Judiciary never gave a complete list.
• Instead of giving primacy to the written part of the constitution, It has given primacy to the unwritten part.
• Judiciary assumes the task of super legislature.
• It creates uncertainty (law may get nulled).
• Judiciary is the least representative and least accountable of all branches of Government.

Consequences for Indian democracy are


• Objections are theoretical or academic whereas benefits have been practical.
• It proved a blessing in disguise.
• Protected the sanctity of the constitution.
• Checked the rise of authoritarianism.

Conclusion
Since the advent of Basic structure, judiciary has played a highly proactive role in ensuring that India develops into a
thriving democracy.

DMP 2023_DAY 12 2

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