DOCTRINE OF BASIC STRUCTURE

constitution, 4th of july, july 4th

-By Apoorva Lal, BA LLB (H),

Vivekananda School of Law and Legal Studies (VIPS)

INTRODUCTION:

As the need and demand of the people changed, too rigid nor too flexible. The Parliament in exercise of its constituent power under Article 368 of the Indian Constitution can amend any of the provisions of the Constitution and this power empowers the Parliament to amend even Article 368 itself. The Doctrine of Basic Structure is a judge-made doctrine to put a limitation on the amending powers of the Parliament so that the parliament amended the constitution to fulfil the changing demand and for the same purpose the Constitution makers gave the power to amend the Constitution in the hands of the Parliament by making it neither basic structure of the essential law of the land can’t be amended in exercise of its constituent power under the Constitution.

 

DOCTORINE OF BASIC STRUCTURE: THE CONCEPT

The Constitution is organic and is an ever-growing thing and is perpetually continuous as it embodies the spirit of the nation. Part XX of the Constitution under Article 368 deals with the amendment of the Constitution. It provides for three kinds of amendment:

  • amendment by simple majority
  • amendment by special majority
  • amendment by special majority and ratification by the States

Indian Constitution which is a static constitution becomes a big hurdle in the path of the progress of the nation. As the time is not static, it goes on changing in the same way the political, economic and social conditions of the people goes on changing. For this reason, constitution need to be amended at continuous interval of time.

 

THE EVOLUTION:

The origin of doctrine of basic structure are often traced from the case Mitchell v. palmar which is the landmark judgment delivered in the supreme court of United States of America. The genesis also can be traced from the lecture delivered within the law faculty of Banaras Hindu University by a German Professor, Dietrich Conrad. In the supreme court of Pakistan in Fazlul Quader Chowdhry v. Mohd. Abdul Haque, this doctrine has been talked about.

In India, this doctrine comes into existence from the case “Golakhnath v. state of Punjab”. in this case the argument was put abreast of “implied limitation on the amending power by the parliament “by the virtue of article 368 of the Indian constitution. In this case it was held that parliament could not curtail any of the fundamental right of the constitution.

 

In actual, this doctrine of basic structure is evolved in the Keshavananda Bharti case that seeks to resolve a legal conundrum which arises in written Constitutions out of the interplay between those provisions of the Constitution which guarantees the elemental rights and people which enable the Parliament to amend the Constitution.

In the keshavnanda bharti case, ruling is taken under consideration among the foremost consequential decisions by the Supreme Court because it began the “basic structure” of the Constitution that Parliament cannot amend.

What was the case about?

The case was primarily about the extent of Parliament’s power to amend the Constitution. First, the court was reviewing a 1967 decision in Golaknath v State of Punjab which, reversing earlier verdicts, had ruled that Parliament cannot amend fundamental rights.

Second, the court was deciding the constitutional validity of several other amendments. Notably, the proper to property had been removed as a fundamental right, and Parliament had also given itself the facility to amend any a part of the Constitution and passed a law that it can’t be reviewed by the courts.

The executive vs judiciary manoeuvres displayed within the amendments ended with the Kesavananda Bharati case, during which the court had to settle these issues conclusively.

Politically, the case represented the fight for supremacy of Parliament led by then Prime Minister Indira Gandhi.

What did the court decide?

In its majority ruling, the court held that fundamental rights can’t be removed by amending them. While the court said that Parliament had vast powers to amend the Constitution, it drew the road by observing that certain parts are so inherent and intrinsic to the Constitution that even Parliament cannot touch it.

However, despite the ruling that Parliament cannot breach fundamental rights, the court upheld the amendment that removed the elemental right to property. The court ruled that in spirit, the amendment wouldn’t violate the “basic structure” of the Constitution.

Kesavananda Bharati, in fact, lost the case. But as many legal scholars means, the govt didn’t win the case either.

 

HISTORICAL INCIDENT:

The origins of the essential structure doctrine are found within the German Constitution which, after the Nazi regime, was amended to guard some basic laws. The original Weimar Constitution, which gave Parliament to amend the Constitution with a two-thirds majority, was actually employed by Hitler to his advantage to try to made radical changes. Learning from that have, the new German Constitution introduced substantive limits on Parliament’s powers to amend certain parts of the Constitution which it considered ‘basic law’.

 

THE BASIC OF LAWS -THE BASIC STRUCTURE DOCTORINE:

The basic structure doctrine has served as the foundation for judicial review of all legislation enacted by Parliament in India. No statute will have an impact on the basic structure. The underlying structure, on the other hand, has been a source of ongoing debate. While courts recognise parliamentary democracy, fundamental rights, judicial review, and secularism as fundamental structures, the list is not exhaustive.

Conclusion

This doctrine protects our basic rights and every acts of the Parliament is now subject to this doctrine, and puts a full stop on the unconstitutional Constitutional amendments game of the Parliament.

 

Reference

  1. constitution of India by subhash c kashyap
  2. http://www.legalserviceindia.com/legal/article-254-the-doctrine-of-basic-structure-of-the-indian-constitution-a-critique.html
  3. Some writers have called this doctrine as an inventional of the Indian Judiciary rather it is better to call it as a mere announcement and not even evolution of the Indian Judiciary. The genesis of the announcement of this doctrine in India goes to Professor Dietrich Conrad, formerly Head of the Department of Law, South Asia Institute of the University of Heidelberg who delivered his lecture on Implied Limitation of the Amending Power in the Faculty of Law, Banaras Hindu University, Varanasi, Republic of India in February, 1965, where he elucidated that any amending body organized within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure change the fundamental pillars of supporting its Constitutional authority.
  4. introduction to constitution by DD basu

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