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What is the Basic Structure of the Constitution

What is the Basic Structure of the Constitution
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The word ‘Basic Structure‘ itself cannot be determined within the Constitution. The Supreme Court recognized this concept for the first time in the case of Kesavananda Bharti v. Union of India (1973). The notion that the Parliament can’t introduce laws that could amend the basic structure of the constitution developed step by step through the years and many instances. The concept is to keep the nature of Indian democracy and protect the rights and liberties of people. This doctrine allows us to protect and hold the spirit of the constitution document.

The Kesavananda Bharati case delivered this doctrine i.e., the basic structure into the limelight. It held that the “basic structure of the Constitution couldn’t be annulled even through a constitutional change”. The judgment listed some basic structure of the constitution as:

  1. Supremacy of the Constitution: It is made under its authority, which constitutes the “supreme Law of the Land”.
  2. Unity and sovereignty of India: Article 51A(c) of the Constitution of India says that it shall be the duty of every citizen of India to uphold and protect the sovereignty, unity, and integrity of India.
  3. Democratic and republican form of government: The word “republic” is that a republic is a form of government whereas the word “democracy” is an ideology that helps shape how a government is run.
  4. Federal character of the Constitution: the Constitution is the supreme (or the highest) law of the land.
  5. Secular character of the Constitution: With the 42nd Amendment of the Constitution of India enacted in 1976, the Preamble to the Constitution asserted that India is a secular nation.
  6. Separation of power: a doctrine of constitutional law under which the three branches of government (executive, legislative, and judicial) are kept separate.
  7. Individual freedom: This is the idea that freedom is attained through the comprehension by individual reason

And with the period, many different functions have additionally been added to this list of basic structures such as:

  • Rule of law– Rule of lawis a principle under which all persons, institutions, and entities are accountable to
  • Judicial review– The power of courts to decide the validity of acts of the legislative and executive branches of government. If the courts decide that a legislative act is unconstitutional, it is nullified.
  • Parliamentary system– The executive branch of government has the direct or indirect support of the parliament. This support is usually shown by a vote of confidence
  • Rule of equality– Article 14of the Constitution of India reads as under: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
  • Harmony and balance between the Fundamental Rights and DPSP– It can be concluded by saying that the basic feature of the constitution is to maintain harmony between fundamental rights and DPSP (Directive Principle of State Policy). They are complementary and supplementary to each other. The theme of fundamental rightsmust be made in light of DPSP
  • Free and fair elections– Free and fair elections play a critical role in political transitions by advancing democratization and encouraging political liberalization – helping to promote peaceful, democratic political transformation that leads to increased stability.
  • Limited power of the parliament to amend the Constitution– The parliamentcannot damage the basic structure of the Constitution. Article 368 does not provide the power to the parliament regarding the Amendment in Part III of the Constitution. The Parliament by amending Article 368 cannot increase its Amendment powers.

The Test of Basic Structure of the Constitution

The Doctrine of Basic Structure is vague in the sense that there may be no reduce listing given by the Judiciary, that such provisions of the Constitution are in the basic structure instead it’s been left open before the judiciary to decide the same on the case to case foundation.

In the case of I. R. Coelho (dead) by Lrs v. state of Tamil Nadu & Ors., it was held that in respect of the amendments of the fundamental rights, not a change in the particular article but the change in the essence of the right must be the test for the change in the identity. It was further held by the Supreme Court that if the triangle of Article 21 read with Article 14 and Article 19 is sought to be eliminated not only the “essence of right test” but also the ‘right test’ has to apply. The Supreme Court observed that the ‘right test’ and the ‘essence of the right test’ are both parts of the doctrine of the basic structure.

How Basic Structure Was Evolved?

The concept of basic structure was developed with time but, certain landmark judgments laid the foundation of the basic structure. Such as,

Sri Sankari Prasad Case Deo v. Union of India (1951) 

The SC contended that the Parliament’s power of amending the Constitution under Article 368 included the power to amend the Fundamental Rights guaranteed in Part III, as well.

I.C Golaknath and Ors. Vs. State of Punjab and Anr.  (1967)

In this case, the 77th and the 85th amendment were in issue.

The key points:

  1. The amending power of the parliament is subject to both procedural and substantive limitations.
  2. The doctrine of basic structure related to constitutional identity & also continuous of the constitution identity & its supremacy.
  3. The concept of basic structure is about the concept of ‘overarching principals’. They are certain systematic principles that cut across the entire constitution and provide coherence to the constitution.

Hence, the organic character of the constitution is its vitality, value, and utility.

The court held that the 1st and 17th Amendments to be unconstitutional and it overruled the Sankari Prasad and Sajjan Singh judgments.

Kesavananda Bharati vs. State of Kerala (1973)

This was a landmark case in defining the concept of the basic structure doctrine. 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”. The judgment implied that the parliament can only amend the constitution and not rewrite it. The power to amend is not a power to destroy.

Hence, this is the basis in Indian law in which the judiciary can strike down an amendment passed by Parliament that conflicts with the basic structure of the Constitution.

Minerva Mills Ltd. & Ors vs. Union of India & Ors (1980)

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.

In this case, the Court added two features to the list of basic structural features. They were: judicial review and balance between Fundamental Rights and DPSP. The judges ruled that a limited amending power itself is a basic feature of the Constitution.

Conclusion

The doctrine of the basic structure has been the subject matter to intense debates in the field of the constitution concerning its genesis. This doctrine was meant for special use in times when Constitutional amendments threatened the basic framework of the Constitution. This doctrine is subjective and vague.

But it also appeared from the few judicial pronouncements that the Supreme Court has assumed much power in the name of basic structure what may be termed as a power of veto to every Constitutional amendment.

The doctrine of the basic structure enables to prevent legislative excesses, as turned into glaring within the Emergence Era. This is required as a protection in opposition to an all-effective parliament that could resort to overuse of Article 368.

What do you think?

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Written by Simran Gill

Simran Gill is a final year law student from G.G.S.I.P.U, New Delhi. She is very enthusiastic about research work and writing articles and blogs on topics related to the law field. As it has developed her communication skills and other skills too, that would help her to reach the desired role in persuading her dreams. She has volunteered at NGO, legal research center, and has a keen interest in the field of criminal law, international law. 

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