ARTICLE

.docx
School
Calicut University Study Centre in Ras Al Khaimah **We aren't endorsed by this school
Course
CIS 11
Subject
Political Science
Date
Nov 5, 2023
Pages
2
Uploaded by ChancellorZebra65 on coursehero.com
DOCTRINE OF BASIC STRUCTURE AS A SAFE GUARD OF CONSTITUTION OF INDIA Yes, the basic structure doctrine is an written doctrine which has a expansive control over written constitution. The framers of Indian Constitution came up with a written Constitution in order to ensure that there was some sort of rigidity in the Constitution. Also the power to amend was given to the Parliament under Article 368 in order to overcome the difficulties which may encounter in future in the working of the Constitution. However, the extent of flexibility embraced by a Constitution has to be balanced by a need to preserve its normative character as a higher law that restrains temporary parliamentary majorities of the nation. Article 368 of the Indian Constitution does not prescribe any express limitation upon the parliament's amending power. Supreme Court in declared that Article 368 did not enable parliament to alter the 'Basic Structure or Framework' of the Constitution through the landmark judgment of Keshavananda Bharati v. State of Kerala (1973). It held that the "basic structure of the Constitution could not be abrogated even by a constitutional amendment". Kesavananda Bharati v. State of Kerala Decided in 1973 by an unprecedented thirteen justices, it is widely considered one of the most important Indian Constitutional law cases. It gave birth to the landmark judgment which pronounced that the parliaments can't alter or disturb the basic structure of the constitution. it was held that however, the parliament has unfettered power to amend the constitution but it can't disturb or emasculate the basic structure or fundamental features of the constitution as it has only the power of amendment and not of re-writing constitution." Since Election Case the Supreme Court has decided several cases involving the basic structure doctrine. In Minerva Mills Ltd. v. Union of India, the validity of 42nd Constitutional amendment was challenged. The Supreme Court by majority by 4 to 1 majority struck down clauses (4) and (5) of the Article 368 inserted by 42nd Amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the Constitution. It was ruled by court that a limited amending power itself is a basic feature of the Constitution. In Waman Rao v. Union of India the Supreme Court upheld Minerva mill's judgment that amendments to Article 368 introducing Clauses 4 and 5 are void. It was further held in this case that all laws placed in 9th Schedule after Keshavanand Bharti judgment are also available for judicial review. In S. P. Sampath Kumar v. Union of India and P. Sambamurthy v. State of A.P. the judges laid down that the rule of law and judicial review were integral part to the Constitution and therefore constitute the Basic Structure. Effective access to justice is part of the 'Basic Structure' according to the decision in Central Coal Fields Ltd. v. Jaiswal Coal Co. In Bhim Singi v.Union of India, Krishna Iyer and Sen, JJ., asserted that the concept of social and economic justice - to build a welfare state forms a part of the of Basic Structure. Article 32, 136, 141 and 142 of the Constitution conferring power on the Supreme Court were held as a Basic Structure in Delhi Judicial Service Assn. State of Gujarat. The independence of judiciary within the limits of the Constitution, judicial review under Article 32, 226 and 227 of the Constitution, Preamble, Independence of Judiciary ,Secularism, federalism, Separation of powers, free, fair and periodic election are all declared to be the Basic Structure of the Constitution. The power of the High Court to exercised Judicial Superintendence over the decision of al courts within their respective jurisdiction is also part of Basic Structure. In the Mandal case it was held that the failure to exclude the creamy layer or the inclusion of forward castes in the list of backward class would violate the provisions of Article 14 and 16 which form the Basic Structure of the Constitution.
The fact that the judiciary has a say in the matter of amendment of the Constitution is the most notable aspect of the doctrine of Basic Structure.li In M. Nagraj v. Union of India the court observed that the amendment should not destroy Constitutional identity and it is the theory of Basic Structure only to judge the validity of Constitutional amendment. Doctrine of equality is the essence of democracy accordingly it was held as a Basic Structure of the Constitution. In I.R. Coelho v. State of Tamil Nadu further developed its interpretation of article 31B, which created the Ninth Schedule to protect particular laws from fundamental rights review. Although originally only thirteen land reform laws were placed in the Ninth Schedule, more than 280 laws have now been added to it through Constitutional amendment.lv Most of these laws concern land reform, but many do not, including some laws that relate to caste-based reservations and security laws from Indira Gandhi's era. In a unanimous decision (a signal of the current health of the basic structure doctrine) the Court reasserted in Coelho that many, if not all, of the current fundamental rights were part of the basic structure of the Constitution, and that the laws in the Ninth Schedule would have to be tested by them. The above pronouncements of the Indian judiciary have given a firm establishment to the doctrine of Basic Structure in our Constitutional law. The doctrine of basic structure of the Constitution is a great Constitutional concept that has been formally engrafted upon the Constitution by the judiciary s through the interpretative processes. The doctrine is well formulated and it has maintained a balance between the rigidity and the flexibility of the Constitution. The basic structure doctrine is the single most important factor that has made the survival of our Constitution possible in its pristine form. It has served us well by effectively foreclosing the possibilities of uncalled for tampering of the Constitution, abrogation of the primordial rights necessary for the development of human personality, weakening the hold of Rule of Law and maintaining balance between different organs of the State. It prevents the parliament from having unconditional power and becoming the master of law itself. It has till date proved to be a very effective tool in deciding the validity of the Constitutional amendments. But whether this doctrine is sufficient to accommodate the change that may be required in future needs to be further debated. Nevertheless, there is no scope in denying the fact that this doctrine has served the country very well during turbulent times when parliament was in a mood to resort to Article 368 recklessly. The Supreme Court has done a great service to the nation by declaring that there are certain basic features of the Constitution which cannot be amended. It has necessarily pointed out to the parliament that Constitution is not any party's manifesto which can be changed at their own will but is a national heritage which can be amended only when a national consensus demands for it. Thus, the doctrine of basic structure may be allowed to operate as the very watchdog of Constitutional governance. There can still be debates about what constitutes basic structure. There is nothing wrong in such debates. We must remember that politics in a democracy is necessarily full of debates and differences. That is a sign of diversity, liveliness and openness.
Page1of 2
Uploaded by ChancellorZebra65 on coursehero.com