The Basic structure doctrine is a common law legal doctrine that means the constitution of a sovereign country has certain characteristics that cannot be removed through its legislature. The doctrine is recognized in India, Bangladesh, Malaysia, Pakistan, and Uganda and is developed by the Supreme Court of India in a sequence of constitutional law in the 1960s and 1970s that culminated in Kesavananda Bharati v. the State of Kerala, where the doctrine of basic structure formally adopted.
In this case of Kesavananda Bharati, Hon’ble Justice Hans Raj Khanna propounded that the Constitution of India has a certain basic structure that can’t be altered or removed through amendments by the Parliament of India. The basic structure as expounded by Justice Khanna, are the fundamental rights assured to people by using the constitution. The doctrine as a result of the bureaucracy the basis of the Supreme Court of India to do the judicial review and strike down constitutional amendments and acts enacted by Parliament which struggle with or are looking for to adjust this “simple shape” of the Constitution. The basic structure of the Constitution has not been explicitly defined by using the Judiciary, the basic structure is a particular feature that is determined using the Court in each case that comes before it.
The Supreme Court’s position at the beginning on the constitutional amendments was that was part or provision of the constitution was unamenable. But with time, the parliament passed a constitutional amendment act, with the compliance of article 368, which amend the powers of the constitution.
Sources of Amending Powers
Here, the court unanimously held that the source of amending power after the 42nd amendment and even after the 42nd amendment lies under article 368 itself. For the power to amend is not required to look into any specific article of the constitution rather the power lies in article 368.
It can be also said that the amendment of the constitution is done directly by the people of India and the people being the sovereign can amend any and every provision of the constitution. Here, the word used parliament means, who represent the people of India, an elective body and the sovereign is the people.
People of India do not amend the constitution rather it is directly as they are not the sovereign or the legally sovereign because that, lies in the constitution of India and the political sovereign lies with the people of India.
Moreover, it is a parliament that amends and not the people of India directly as there is no referendum held, that rather the parliament as the representative body makes the amendment.
Powers of Constituent Assembly in Making Amending
The constituent powers of the parliament to amend the constitution is a “derivative power” and it is derived from the constitution itself.
On the other hand, the constituent assembly was an original power and was not, derived from any constitution. The power of the constituent assembly was a superior constituent power whereas, that of the parliament is comparatively, an inferior power.
Kesavananda Bharati created a check on Parliament’s tries to put off judicial review and searching for absolute strength to amend the Constitution. But it also conceded to Parliament the widest range to institute socio-financial guidelines. It refused to recognize the right to assets as a basic feature of the Constitution, overruling Golak Nath and paving the manner for land reforms.
It established the Supreme Court’s right of assessment and, therefore, installed its supremacy on constitutional matters. This choice can be stated to have played a major function in maintaining India’s parliamentary democracy. However, as a number of the implications of this situation are even now turning into that its complexity and absence of clarity on certain vital questions left much to be determined through posterity.
Before Kesavananda Bharati, nearly 30 Constitutional amendments had already been passed since the Constitution came into effect in 1950, and there have been nearly 70 amendments since Kesavananda Bharai. However, notwithstanding the larger number of amendments made to the Indian Constitution, the hopes and thoughts of its framers stay intact and identifiable as the Constitution adopted by the Constituent Assembly in 1949. We owe this principle to the Supreme Court’s judgment in Kesavananda Bharati.