BASIC STRURCTURE OF THE CONSTITUTION | UPSC EXAM

INTRODUCTION

The basic structure doctrine is an essential invention by Supreme Court under Article 368. It restricts the Parliament to exercise its amending powers in certain matters. The Supreme Court, under Kesavananda Bharti Case (1973), defined the concept of basic structure as the ideal and philosophical values of the constitution. It serves as the foundation of the Constitution without which it will become meaningless.

EMERGENCE OF BASIC STRUCTURE

The ‘basic structure’ doctrine emerged basically because of two prominent factors:

1. When the Parliament began amending the constitution too often.
2. When the Supreme Court began demonstrating shifting stances with regard to Parliament’s power of amending the Constitution.

Both the factors, indeed, were the cause and effect of each other.  

BACKGROUND

• In Shankari Prasad Case (1951) (to check constitutional validity of 1^st Amendment Act related to curtailment of right to property), the Supreme court opined that the Parliament’s amending power under Article 368 also includes the power to amend the Fundamental Rights and the definition of ‘law’ as mentioned in Article 13 only refers to ordinary laws and not to constitutional amendment laws/acts. Hence, the Parliament can take away any fundamental right via constitutional amendment and that will not be in violation of Article 13.

 

• In Golaknath case (1957) (to check the constitutional validity of the Seventeenth Amendment Act (1964), which inserted certain state acts in the Ninth Schedule), however, the SC overruled its previous judgement and declared that fundamental rights in the Constitution are given ‘transcendental and immutable’ position and thus cannot be amended by Parliament under Article 368.

 

• The Kesavananda Bharati case (1973), which was examining the constitutional validity of 24th CA Act 1971 – this amendment was brought as a reaction to Golaknath case judgement under which Article 13 and Article 368 were amended and it was declared that the Parliament can abridge or take away any fundamental rights under Article 368 and that amendment will be not considered as a law under Article 13. It was while examining the constitutional validity of above amendment, the SC:

1. Upheld the validity of the amendment thereby giving powers to Parliament to amend, abridge or take away any fundamental rights under Article 368.

2. However, it restricted the amending power of the legislature by introducing the concept of basic structure – stating that the Parliament under its constituent power can amend any part of the constitution but it should not be in violation of basic structure.

 

• In Minerva Mills case (1980), the SC reiterated its position stating that the provision of unlimited amending powers to the Parliament with no scope of judicial scrutiny as brought forward by 42nd Constitutional Amendment Act (1976) is invalid as judicial review is part of the basic structure doctrine of the Constitution.

COMPONENTS OF BASIC STRUCTURE (as declared by SC under various judgements):

1. Supremacy of the Constitution
2. Sovereign, democratic and republican nature of the Indian polity
3. Secular character of the Constitution
4. Separation of powers between the legislature, the executive and the judiciary
5. Federal character of the Constitution
6. Unity and integrity of the nation
7. Welfare state (socio-economic justice)
8. Judicial review
9. Freedom and dignity of the individual
10. Parliamentary system
11. Rule of law
12. Harmony and balance between Fundamental Rights and Directive Principles
13. Principle of equality
14. Free and fair elections
15. Independence of Judiciary
16. Limited power of Parliament to amend the Constitution
17. Effective access to justice
18. Principles (or essence) underlying fundamental rights.
19. Powers of the Supreme Court under Articles 32, 136, 141 and 142
20. Powers of the High Courts under Articles 226 and 227