- According to the Indian Constitution, the Parliament and the state legislatures have the supreme power to make laws within their respective jurisdictions.

- The Constitution vests the power to adjudicate the constitutional validity of all laws enacted in the judiciary.

- Bills passed to amend the Constitution can only be introduced in the Parliament, but this power is not absolute in nature.

- If the Supreme Court finds that any law passed by the Parliament or the state legislature’s, is inconsistent with the Constitution or violates any provision of the Constitution, the court has the power to hold that law to be invalid, void or ultra vires.

- The founding fathers of the Constitution wanted it to be an adaptable document rather than a rigid and unchangeable framework dedicated to governance.

- Hence, the Parliament was invested with the power to amend the Constitution through Article 368 of the Constitution. It gives the impression that the Parliament's amending powers are absolute in nature.

- But the Supreme Court has acted as a conscious and continuous break to the legislative enthusiasm of the Parliament ever since independence was attained.

- With the intention of preserving the philosophy and the original ideals of the Constitution as envisioned by the constituent assembly, the Apex Court held that Parliament could not distort, damage or alter the basic features under the pretext of amending the 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 phrase basic structure itself is not described anywhere in the Constitution.

- The Supreme Court recognised the concept of the basic structure for the very first time in the landmark judgement of the Kesavananda Bharati case in 1973.

- The concept of the doctrine 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.

- Ever since the Supreme Court has been the interpreter of all amendments made by Parliament to the Constitution

The inception of the Doctrine of Basic structure

• The unspoken tiff between the Judiciary and the Legislature took a different shape after the decision in the IC Golakh Nath case.
• The Constitution (24th Amendment) was passed to nullify the IC Golakh Nath Case.
• 4 clauses were added in the Article to blanket the fact that the Parliament holds an omnibus constituent power.
• The Constitution (25th Amendment) introduced a new provision, Article 31C, in the Constitution under which law giving effect to the Directive Principles of the State Policy enumerated under Part IV of the Constitution were deemed automatically valid despite any inconsistency with the fundamental rights granted under the Constitution.
• Fundamental Rights are more ascertained rights given to all individuals and the Directive Principles are mere measures to be followed by the states. Hence, the Directive Principles cannot be inconsistent or in violation of the basic fundamental rights of an individual.

 

Keshavananda Bharati case

The Keshavananda Bharati case challenged certain amendments of the Constitution. Some of the points put forward were: -

• No distinction between Constituent power and Legislative Power
• IC Golaknath was correctly decided, and wrongly nullified.
• ‘We the people’ have given only limited rights to the Parliament
• Article 368 - not a charter to sign death wish
• Parliament not an official liquidator of the Constitution
• Parliament only a creature of the Constitution not it's master

 

What can be defined as the basic structure?

From time to time the basic structure is enhanced with some new content and clarification, and hence the Supreme Court is yet to define the exact basic structure of the Constitution. It has laid down a vague list of topics through various judgements. Below is a list of some topics that can be covered under the basic structure doctrine, this list is only illustrative and not nearly exhaustive:

• The supremacy of the Indian Constitution
• Democratic View
• The rule of law
• Sovereignty, liberty and republic nature of Indian polity
• Judicial review
• Harmony and Balance between fundamental rights and directive principles
• Separation of power
• Federal character
• Dignity of Individual
• Parliamentary system
• Rule of equality
• Unity and integrity of the nation
• Free and fair elections
• Powers of SC under Article 32,136,142,147
• Power of HC under Article 226 and 227
• Limited power of parliament to amend the Constitution
• Welfare state
• Freedom of an individual
• Free and fair elections