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The Doctrine of Basic Structure

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3 views

The Doctrine of Basic Structure

Uploaded by

online.abhyudaya
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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You are on page 1/ 11

THE DOCTRINE OF BASIC STRUCTURE

“A Constitution must of necessity be the vehicle of the life of a nation”


- Justice H.R. Khanna
Introduction

 Fundamental values under the Constitution (Rights,


Duties, etc.)
 Inherent nature of such values for the working of
our Constitution
 ‘basic features’ & ‘basic structure’
 ‘Sui generis’, i.e. ‘on its own’

 ‘Sacrosanct Character’ of the doctrine

 Apprehension of a constitutional collapse


Origin & Basis
 The doctrine originates from the amending power of the
Parliament enshrined under Article 368 of the
Constitution.
 Since 1951, questions have been raised about the scope of
such power (Whether Fundamental Rights can be
abrogated ?)
 Absolute Power vs. Limited Power

“Power corrupts and absolute power corrupts absolutely”


A plethora of cases lay down the story of the
tussle between the Executive and the
Judiciary. It can be narrated in two significant
phases –
 The pre-Kesavananda phase
 The post-Kesavananda phase
The pre-Kesavananda phase

 Shankari Prasad Singh v. Union of India (1951)

 Sajjan Singh v. State of Rajasthan (1965)

 IC Golaknath v. State of Punjab (1967)

 The controversial amendment ! (24th Amendment)


Kesavananda Bharati v. State of Kerela (1973) –CB
 Challenge to 24th amendment
 A 13 judge bench (7:6) was setup to hear the arguments
 After 60 days of deliberation, the court held –
I. A constitutional amendment cannot abrogate basic features of
the constitution
II. What is basic structure shall be determined by the Court from
time to time
Kesavananda’s case illustrates judicial creativity and the policy-
making role of the Supreme Court of a very high order. The basic
philosophy underlying the doctrine was explained in the
judgement as -
“Our Constitution is not a mere political document. It is
essentially a social document. It is based on a social philosophy
and every social philosophy like every religion has two main
features, namely, basic and circumstantial. The former remains
constant but the latter is subject to change. The core of a
religion always remains constant but the practices associated
with it may change. Likewise, a Constitution like ours contains
certain features which are so essential that they cannot be
changed or destroyed.”
What is included in the Basic Structure ?
Some of the features are –

 Supremacy of the Constitution


 Republican and democratic form of government
 Secular character of the Constitution
 Separation of powers between the legislature, executive and the judiciary
 Federal character of the Constitution
 Sovereignty of India
 Unity of the country
 Essential features of the individual freedoms secured to the citizens
 Mandate to build a welfare state
The post- Kesavananda phase
Some important landmark judgements are -

 Indira Nehru Gandhi v. Raj Narain (1975)

 Minerva Mills Ltd. v. Union of India (1980)

 S. R. Bommai v. Union of India (1994)

 Supreme Court Advocates-on-Record -Association v. Union of

India (2015)
Conclusion

The very nature of the ‘Basic Structure’ is subject to debates across


the nation. Whether the principles enshrined under should be
subjected to the circumstantial situations and hence should be
amenable to changes or whether they should be objective in
nature and should stand the test of time regardless the change in
circumstance ?

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