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basic structure theory, Thesis of Law

it will give the idea of basic structure theory

Typology: Thesis

2018/2019

Uploaded on 09/12/2019

gitanjali1990
gitanjali1990 🇮🇳

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Basic structure (doctrine) of the Constitution
The constitution empowers the Parliament and the State Legislatures to make laws within their respective
jurisdiction. Bills to amend the constitution can only be introduced in the Parliament, but this power is not
absolute. If the Supreme Court finds any law made by the Parliament inconsistent with the constitution, it
has the power to declare that law to be invalid. Thus, to preserve the ideals and philosophy of the original
constitution, the Supreme Court has laid down the basic structure doctrine. According to the doctrine, the
Parliament cannot destroy or alter the basic structure of the doctrine.
The basic structure doctrine is an Indian judicial principle that the Constitution of India has certain basic
features that cannot be altered or destroyed through amendments by the parliament. Key among these
"basic features", as expounded by its most prominent proponent Justice Hans Raj Khanna, are the
fundamental rights granted to individuals by the constitution. The doctrine thus forms the basis of a limited
power of the Supreme Court to review and strike down constitutional amendments enacted by the
Parliament which conflict with or seek to alter this "basic structure" of the Constitution. The basic structure
doctrine applies only to constitutional amendments. The basic features of the Constitution have not been
explicitly defined by the Judiciary, and the claim of any particular feature of the Constitution to be a
"basic" feature is determined by the Court in each case that comes before it. The basic structure doctrine
does not apply to ordinary Acts of Parliament, which must itself be in conformity with the Constitution.
Evolution of the Basic Structure
The word "Basic Structure" is not mentioned in the constitution of India. The concept developed gradually
with the interference of the judiciary from time to time to protect the basic rights of the people and the
ideals and the philosophy of the constitution.
• The First Constitution Amendment Act, 1951 was challenged in the Shankari Prasad vs. Union of India
case. The amendment was challenged on the ground that it violates the Part-III of the constitution and
therefore, should be considered invalid. The Supreme Court held that the Parliament, under Article 368,
has the power to amend any part of the constitution including fundamental rights. The Court gave the same
ruling in Sajjan Singh Vs State of Rajasthan case in 1965.
The "basic features" principle was first expounded in 1964, by Justice J.R. Mudholkar in his dissent, in the
case of Sajjan Singh v. State of Rajasthan. He wrote,
It is also a matter for consideration whether making a change in a basic feature of the Constitution can be
regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the
latter, would it be within the purview of Article 368 ?"[6]
Supreme Court declared that the basic structure/features of the constitution is resting on the basic
foundation of the constitution. The basic foundation of the constitution is the dignity and the freedom of its
citizens which is of supreme importance and can not be destroyed by any legislation of the parliament.[7]
The basic features of the Constitution have not been explicitly defined by the Judiciary. At least, 20
features have been described as "basic" or "essential" by the Courts in numerous cases, and have been
incorporated in the basic structure. In Indira Nehru Gandhi v. Raj Naraian and also in the Minerva
Mills case, it was observed that the claim of any particular feature of the Constitution to be a "basic"
feature would be determined by the Court in each case that comes before it.
In Golak Nath vs State of Punjab case in 1967, the Supreme Court overruled its earlier decision. The
Supreme Court held that the Parliament has no power to amend Part III of the constitution as the
fundamental rights are transcendental and immutable. According to the Supreme Court ruling, Article 368
only lays down the procedure to amend the constitution and does not give absolute powers to the
parliament to amend any part of the constitution.
• The Parliament, in 1971, passed the 24th Constitution Amendment Act. The act gave the absolute power
to the parliament to make any changes in the constitution including the fundamental rights. It also made it
obligatory for the President to give his assent on all the Constitution Amendment bills sent to him.
In 1973, in Kesavananda Bharti vs. State of Kerala case, the Supreme Court upheld the validity of the 24th
Constitution Amendment Act by reviewing its decision in Golaknath case. The Supreme Court held that the
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Basic structure (doctrine) of the Constitution

The constitution empowers the Parliament and the State Legislatures to make laws within their respective jurisdiction. Bills to amend the constitution can only be introduced in the Parliament, but this power is not absolute. If the Supreme Court finds any law made by the Parliament inconsistent with the constitution, it has the power to declare that law to be invalid. Thus, to preserve the ideals and philosophy of the original constitution, the Supreme Court has laid down the basic structure doctrine. According to the doctrine, the Parliament cannot destroy or alter the basic structure of the doctrine.

The basic structure doctrine is an Indian judicial principle that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the parliament. Key among these "basic features", as expounded by its most prominent proponent Justice Hans Raj Khanna, are the fundamental rights granted to individuals by the constitution. The doctrine thus forms the basis of a limited power of the Supreme Court to review and strike down constitutional amendments enacted by the Parliament which conflict with or seek to alter this "basic structure" of the Constitution. The basic structure doctrine applies only to constitutional amendments. The basic features of the Constitution have not been explicitly defined by the Judiciary, and the claim of any particular feature of the Constitution to be a "basic" feature is determined by the Court in each case that comes before it. The basic structure doctrine does not apply to ordinary Acts of Parliament, which must itself be in conformity with the Constitution.

Evolution of the Basic Structure

The word "Basic Structure" is not mentioned in the constitution of India. The concept developed gradually

with the interference of the judiciary from time to time to protect the basic rights of the people and the ideals and the philosophy of the constitution.

  • The First Constitution Amendment Act, 1951 was challenged in the Shankari Prasad vs. Union of India

case. The amendment was challenged on the ground that it violates the Part-III of the constitution and therefore, should be considered invalid. The Supreme Court held that the Parliament, under Article 368,

has the power to amend any part of the constitution including fundamental rights. The Court gave the same ruling in Sajjan Singh Vs State of Rajasthan case in 1965.

The "basic features" principle was first expounded in 1964, by Justice J.R. Mudholkar in his dissent, in the case of Sajjan Singh v. State of Rajasthan. He wrote,

It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Article 368 ?" [6]

Supreme Court declared that the basic structure/features of the constitution is resting on the basic foundation of the constitution. The basic foundation of the constitution is the dignity and the freedom of its citizens which is of supreme importance and can not be destroyed by any legislation of the parliament. [7] The basic features of the Constitution have not been explicitly defined by the Judiciary. At least, 20 features have been described as "basic" or "essential" by the Courts in numerous cases, and have been incorporated in the basic structure. In Indira Nehru Gandhi v. Raj Naraian and also in the Minerva Mills case, it was observed that the claim of any particular feature of the Constitution to be a "basic" feature would be determined by the Court in each case that comes before it.

  • In Golak Nath vs State of Punjab case in 1967, the Supreme Court overruled its earlier decision. The Supreme Court held that the Parliament has no power to amend Part III of the constitution as the

fundamental rights are transcendental and immutable. According to the Supreme Court ruling, Article 368 only lays down the procedure to amend the constitution and does not give absolute powers to the parliament to amend any part of the constitution.

  • The Parliament, in 1971, passed the 24th Constitution Amendment Act. The act gave the absolute power

to the parliament to make any changes in the constitution including the fundamental rights. It also made it obligatory for the President to give his assent on all the Constitution Amendment bills sent to him.

In 1973, in Kesavananda Bharti vs. State of Kerala case, the Supreme Court upheld the validity of the 24th

Constitution Amendment Act by reviewing its decision in Golaknath case. The Supreme Court held that the

Parliament has power to amend any provision of the constitution, but doing so, the basic structure of the constitution is to be maintained. But the Apex Court did not any clear definition of the basic structure. It

held that the "basic structure of the Constitution could not be abrogated even by a constitutional amendment". In the judgement, some of the basic features of the Constitution, which were listed by the

judges.

The basic features of the Constitution are as follows:

  1. Supremacy of the constitution
  2. Republican and democratic form of government
  3. Secular character of the constitution
  4. Federal character of the constitution
  5. Separation of power
  6. Unity and Sovereignty of India
  7. Individual freedom

Important Supreme Court Decisions

Case Decision by the Supreme Court Shankari Prasad Vs. Union of India, 1951

The Parliament, under Article 368, has power to amend any part of the constitution Sajjan Singh Vs. State of Rajasthan, 1965

The Parliament, under Article 368, has power to amend any part of the constitution Golak Nath Vs. State of Punjab, 1967 The Parliament is not powered to amend the Part III (Fundamental Rights) of the constitution Kesavananda Bharti Vs. State of Kerala, 1971

The Parliament can amend any provision, but can't dilute the basic structure Indira Gandhi Vs. Raj Narain, 1975 The Supreme Court reaffirmed its concept of basic structure Minerva Mills Vs. Union of India, 1980 The concept of basic structure was further developed by adding 'judicial review' and the 'balance between Fundamental Rights and Directive Principles' to the basic features Kihoto hollohan Vs. Zachillhu, 1992 'Free and fair elections' was added to the basic features Indira Sawhney Vs. Union of India, 1992

'Rule of law, was added to the basic features S.R Bommai vs Union of India, 1994 Federal structure, unity and integrity of India, secularism, socialism, social justice and judicial review were reiterated as basic features