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BASIC STRUCTURE DOCTRINE: Evolution of Basic Structure Theory


There is no specific mention of the term “basic structure” in the constitution, the idea that Parliament cannot amend the fundamentals rights or the basic structures evolved through time following a line of cases.


A.K. Gopalan Case (1950) (Interpreted key fundamental Rights including article 19 & 21)

The Supreme court contended that there was no violation of Fundamental Rights enshrined in Articles 13, 19, 21, and 22 under the provisions of the Preventive Detention Act if the detention was as per the procedure established by law. Here, the SC took a narrow view of Article 21.


Shankari Prasad Case (1951)

This case dealt with the possibility of amendment of Fundamental Rights (the First Amendment’s validity was challenged). The SC contended that the Parliament’s power to amend under Article 368 also includes the power to amend the Fundamental Rights guaranteed in Part III of the Constitution.


Berubari Union case (1960) (Power of Parliament to amend Article 3 and Article 368)

This case was regarding the Parliament’s power to transfer the territory of Berubai to Pakistan. The Supreme Court examined Article 3 in detail and held that the Parliament cannot make laws under this article in order to execute the Nehru-Noon agreement. Hence, the 9th Amendment Act was passed to enforce the agreement.


Golaknath case (1967) (Validity of the First and Seventeenth Amendments and described the scope of Article 13)

The questions, in this case, were whether an amendment is a law; and whether Fundamental Rights can be amended or not. SC contented 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. Also stated that Article 368 gives the procedure to amend the Constitution but does not confer on Parliament the power to amend the Constitution.


Kesavananda Bharati case (1973) (Defined Basic Structure of Constitution)

This judgment defined the basic structure of the Constitution. The SC held that although no part of the Constitution, including Fundamental Rights, was beyond the Parliament’s amending power, the “basic structure of the Constitution could not be abrogated even by a constitutional amendment.” This is the basis in Indian law in which the judiciary can strike down an amendment passed by Parliament that is in conflict with the basic structure of the Constitution.


Indira Nehru Gandhi v. Raj Narain case (1975) (Disputes relating to elections involving the Prime Minister of India)

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.


Menaka Gandhi case (1978) (Significant towards the transformation of the judicial review on Article 21)

The main issue, in this case, was whether the right to go abroad is a part of the Right to Personal Liberty under Article 21. The SC held that it is included in the Right to Personal Liberty. The SC also ruled that the mere existence of an enabling law was not enough to restrain personal liberty. Such a law must also be “just, fair and reasonable.”


Minerva Mills case (1980) (Basic Structure which includes Parliament's power to amend and the power of Judicial Review)

This case again strengthens the Basic Structure doctrine. The judge struck down two changes made to the Constitution by the 42nd Amendment Act 1976, declaring them to be violative of the basic structure. The judgment makes it clear that the Constitution, and not the Parliament is supreme.


Shah Bano Begum case (1985) (Criminal Procedure Code is secular and thus applicable to also respective of their religion)

Milestone case for Muslim women’s fight for rights. The SC upheld the right to alimony for a Muslim woman and said that the Code of Criminal Procedure, 1973 is applicable to all citizens irrespective of their religion. This set off a political controversy and the government of the day overturned this judgment bypassing the Muslim Women (Protection on Divorce Act), 1986, according to which alimony need be given only during the iddat period (in tune with the Muslim personal law).


It is emphatically the province and duty of the Judicial Department to say what the law is.” - Marbury

Judicial review is needed to uphold the principle of the supremacy of the Constitution, to maintain federal equilibrium, and to protect the fundamental rights of the citizens. India is a synthesis of both, that is, the American principle of judicial supremacy and the British principle of parliamentary supremacy.



REFERENCES:

  1. Jyoti Sharma, Major Landmark Judgments in India, JAGRAN JOSH, https://www.jagranjosh.com/articles/landmark-judgements-in-india-for-upsc-preparation-1485248924-1

ABOUT THE AUTHOR:

Shubham Kumar is currently studying law from GGS College, Indraprastha University, Delhi.

you can contact them:

https://www.linkedin.com/in/thisis-kumar-shubham-2229491aa

Edited By: Swati Tolambia



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