• Legal Armor

Doctrine Of Basic Structure

Introduction


The doctrine of basic structure is an Indian judicial concept established by the judges through the various case studies. There are some fundamental characteristics of the Indian constitution that cannot be amended as they form a crucial part of the constitution. Justice Khanna has clarified fundamental rights as the essential features that are given to all Indian citizens. Any part of the Constitution, including the fundamental rights, can be amended by the Parliament through Article 368 before the Basic structure was proposed. Article 31-B and 9th Schedule introduced by First Constitutional Amendment Act, 1951 are the key root cause of the judiciary’s adoption of this doctrine in so many cases, as the amendment violated the right to property which was the people’s fundamental right.



The constitution empowers the Parliament legislatures and the state to make laws within their respective jurisdiction. Proposals to amend the constitution can only be put in Parliament, but that power is not absolute. When the Supreme Court deems any Parliament made legislation as inconsistent with the constitution, it would have the right to declare such law unconstitutional. Thus, the Supreme Court has laid down the basic doctrine of the structure to preserve the ideals and philosophy of the original Constitution. The Parliament, according to the doctrine, cannot destroy or alter the doctrine’s basic structure. The “basic features” of the Constitution were first theorized in 1964, in the case of Sajjan Singh v. Rajasthan, by Hon’ble Justice R. Mudholkar in his dissent. It is also a matter for consideration whether making a change to a fundamental feature of the Constitution can be regarded merely as an amendment, or would it be rewriting a portion of the Constitution, and whether the latter were to fall under the purview of Article 368.


Evolution Of The Basic Structure

The Indian constitution does not define the term “simple structure”. The definition evolved slowly with judicial intervention from time to time to protect people’s basic rights, constitutional principles, and ideology.

  • In the case of Shankari Prasad vs. Union of India, the First Constitution Amendment Act, 1951 was challenged; The amendment was questioned because it violates the constitution's Part-III and would therefore be deemed unconstitutional. The Supreme Court held that the Parliament has the power, according to Article 368, to amend every part of the Constitution including the fundamental rights. In the case of Sajjan Singh Vs State of Rajasthan, the Court reiterated the former decision.

  • In 1967, the Supreme Court overruled its earlier decision in the Golak Nath vs. State of Punjab case. The Supreme Court held that the Parliament had no power to amend Part III of the Constitution because the basic rights were transcendental and unchangeable. According to the Supreme Court ruling, Article 368 mainly sets out the process for amending the constitution and gives the parliament no absolute power to amend any section of the constitution.

  • In 1971, Parliament passed the 24th Constitution Amendment Act. The Act granted the parliament full power to make any constitutional amendments to the fundamental rights. This also made it mandatory for the President to give his assent to all the bills for the alteration of the Constitution that were sent to him.

  • In 1973, the Supreme Court upheld the validity of the 24th Constitution Amendment Act in the Kesavananda Bharti vs. Kerala State case, by reviewing its decision in the Golaknath case. The Supreme Court held that Parliament has the power to amend every provision of the Constitution. However, in doing so, the constitution's basic structure must be preserved. But there was no specific description of the basic framework by the Apex Court. It held that even a constitutional amendment could not abrogate the “basic framework of the Constitution.”

Basic Features Of The Constitution

Basic features of the Indian constitution are listed below:

  • The supremacy of the constitution

  • Rule of law

  • Freedom, liberty, and republic nature of Indian political entities.

  • Judicial review

  • Fundamental rights and directive principles with Harmony and Balance.

  • Separation of power.

  • Federal character.

  • Parliamentary system.

  • Rule of equality.

  • Unity and integrity of the nation.

  • Free and fair elections.

  • Powers of SC under Article 32,136,142,147

  • Article 226 and 227 describing the Power of HC.

  • Restricted power of parliament to revise the constitution.

  • Welfare state.

  • Freedom and dignity of an individual.

TEST OF BASIC STRUCTURE

The Basic Structure Doctrine is ambiguous as there is no clear-cut list, provided it is judicial that certain provisions of the Constitution form the fundamental framework rather than having been left open to the court for a case-by-case decision on the same. In M. Nagraj v. Union of India, The Court has sought to devise a general check to determine whether an amendment would be contrary to the fundamental structure of the Constitution. In the matter of applying the basic structure theory, the Court held that twin tests had to be met, namely the “width test” and the “identity test.”

In I. R. Coelho’s case, there was no change in the fundamental rights amendments. The Court held that the triangle of Article 21, read following Articles 14 and 19, attempted not only to delete the ‘essence of the right test’ but also to apply the right test. The Court has noted that both the right test and its essence are the part of the basic structure doctrine implementation.

Finally, the “impact test” could be used to assess whether the basic framework is damaged by any legislation. If the effect of such a law affects some of the rights granted under Part III of the Constitution, then the result must be affirmative that such legislation violates the basic framework by applying this test.

Conclusion


In India, we have proper checks and balances structure. Checks and balances function in such a way that no state organ is too strong. When interpreting India’s Constitution, the judiciary has played a significant role. India’s parliament has made many changes to India’s constitution, several of which breached the structure’s fundamentals. It is the judiciary that has done its best to safeguard the fundamental framework of the Indian Constitution such that no constitutional entity obtains an unrestricted power. In different situations, we have seen how an arbitrary power can undermine democracy, and dividing power in a democracy is preventing misuse of power and safeguarding the rights of all. Courts can strike down the unconstitutional amendments made by the legislature, and we have also seen legislatures resisting judicial decisions in different cases. Each State pillar needs to develop a healthy pattern that respects the powers and responsibilities of other government bodies.

ABOUT THE AUTHOR

Akshita Kesharwani is currently pursuing BA.LLB from Alliance University.

They can be contacted at akshitakesharwani06@gmail.com or https://www.linkedin.com/in/akshita-kesharwani-07aa511a4

Edited By: Swathi. Ashok. Nair.

DISCLAIMER BY LEGAL ARMOR

We at Legal Armor do not endorse the Authors' views and are in no way responsible for the said views. We are just publishing the Write-ups as blogs with just light editing, and are in no way responsible for any legal claims. Legal Armor shall not be liable for any plagiarized content.

©2020 by Legal Armor. Proudly created with Wix.com