BASIC STRUCTURE DOCTRINE : INDIAN CONSTITUTION
Basic structure doctrine it’s a very prominent doctrine in the history of India. We have derived the basic structure doctrine from the landmark judgement of Keshavananda Bharti vs State of Kerala. It was the very prominent judgement in the history of India. The bench of 13 judges was formed for the Keshavananda Bharti case. It was the biggest bench till now.
Some facts about basic structure doctrine:
- The origins of basic structure doctrine were found in the German constitution ,which was amended to protect some basic laws
- In India basic structure doctrine became very prominent no law can impinge basic structure doctrine.
- Basic structure doctrine is like a treasure we have to protect basic structure doctrine it forms the soul of the constitution and heart of all the judgements till now.
NOTE: Still there is a debate and discussion on what forms the basic structure what all rights and duties falls in basic structure doctrine ,what all concepts are there in basic structure. Though there are some significant fundamental rights which form the basic structure of the constitution rights such as right to equality, right to freedom of speech and expression, right against discrimination, some concepts like secularism etc.
- The word ‘Basic structure’ is not mentioned in the constitution of india.The concept developed gradually with the involvement of judiciary from time to time to protect the fundamental rights of people and the ideals and philosophies of the constitution.
Whole basic structure doctrine is the bone of contention between article 13 and 368 of the Indian constitution.
Article 13 falls in part 3 of the constitution which states that “Fundamental rights are on the level of god” whatever might happen no one cannot amend it, abridge and violate it. Fundamental rights are sacrosanct.
ARTICLE 368:It is present in part 20 of the constitution, it gives the parliament to amend any part of constitution.
So we can see the above contrast between these two fundamental rights that is article 13 and article 368 of the Indian constitution. Article 13 states that you can touch the part 3 of the constitution but in contrast article 368 states that you can amend any part of constitution. So the basic structure doctrine is that how we can balance both the articles.
WHOLE STORY OF BASIC STRUCTURE DOCTRINE:
The concept of basic structure doctrine evolved over time .In this part we will discuss the evolution of basic structure doctrine with the help of some case laws :
1. SHANKARI PRASAD VS UNION OF INDIA
The challenge in Shankari Prasad vs union of India case was regarding wording of article 13 of the constitution which bans the state from making any law in violation of fundamental right enumerated in part 3 of the constitution. The argument was unanimously rejected by a constitution bench of the supreme court which held that parliament had the power to amend any provision of the constitution without exception
2. SAJJAN SINGH VS STATE OF RAJASHTAN
The question came up again fourteen years later in Sajjan Singh vs state of Rajasthan before a constitution bench. The constitution has some basic features was first theorized in this case in 1964 by justice J.R. Mudholkar in his dissent in the case of Sajjan Singh vs state of Rajasthan. It is the case where 17th constitutional amendment was challenged .Here again the question was whether the fundamental rights can be amended or not. The ninth schedule consists of certain statutes relating to property and the special case with ninth schedule was that it was not subject to judicial review and because of that right to judicial review was taken away which is one of the basic features of the constitution.
WHAT WAS THE JUDGEMENT OF THE CASE?
The supreme court held that the article 368 empowers the parliament to amend any of the powers of Indian constitution. Once again it was said that the article 13 is just limited to the ordinary laws not with the constitutional amendment. But majorly it was decided that parliament have the powers to amend the fundamental rights.
3. GOLAKNATH VS STATE OF PUNJAB & HARYANA
In this case the 17th constitutional amendment was challenged again. The question was that how much we can amend the constitution are the powers limited or unlimited. In this case the supreme court said that parliament does not have power to amend the fundamental rights .In this ruling the apex court has said that the article 368 only provides the procedure to amend any law and it doesn’t give absolute powers to the parliament to amend any part of the constitution.
NOTE: In 1971 the parliament passed the 24th constitutional amendment act which gave absolute powers to amend any section or part of the constitution including the fundamental rights
Now it comes the turn of most prominent judgement that is Keshavnanda Bharti vs state of Kerala which finally provided us the basic structure doctrine in the constitution of India
KESAVANANDA BHARTI VS STATE OF KERALA:
This judgement was passed in the year 1973,In this judgement the apex court has supported the validity of 24th constitutional amendment act and reviewed the decision of the Golaknath case. In this judgement supreme court said that parliament can amend any part of the constitution but it should amend the basic structure of the constitution. Though what comes under the ambit of basic structure is not clear there are some fundamental and general features that were listed in the basic structure. Some of it is as follows:
- We should maintain the supremacy of the constitution
- We should maintain secular character of the constitution
- Federal structure of the constitution
- Distribution of powers between center, state and local self government
- We should upheld the unity and maintain integrity of our country
- There should be right to freedom to everyone
- There shouldn’t be discrimination on everyone irrespective of caste, creed, gender and religion
So this all largely falls under the basic structure doctrine so we have to follow this doctrine very strictly it forms the soul of our Indian constitution. This was all about the judgement in the case of Kesavananda Bharti vs state of Kerala.
Author: vedant bajaj,
Symbiois law school nagpur,Ballb(hons) 1st yr student