Analysis on Doctrine of Basic Structure of the Constitution

Abstract

The main purpose to make this research is to have a deep study on the topic study of Basic structure of Constitution because I found this topic quit interesting and it has matched my interests. In this research you will find a very deep and keen study on the Basic Structure of Constitution.The framers of Constitution of India came up with a written Constitution in order to ensure that there was sort of rigidity in the Indian Constitution. Article 13 of Indian Constitution which serves as the protector of the Fundamental Rights. However, the extent of flexibility embraced by Constitution has to be balanced by a necessary to preserve its normative character as a higher law that restrains temporary parliamentary majorities of the Nation.

Keyword:– Amendment, Basic Structure, Constitution, Parliament, Supreme Court.

Introduction

The Constitution of a country represents the Groundwork-the basic norm-comprising of fundamental principles, laying down the foundation of a civil society. The face of it, it appears that the Indian Constitution 1950 is neither too flexible nor too rigid in practice; it has been amended almost 100 times in 62 years. The flexibility of the Indian Constitution has often been criticized as being bane of our Constitutional system. Academic & political commentators often lament the incapacity of the government and the political class govern in accordance with the Indian Constitution as being the primary aim for the frequency of amendment. The attachment to an unchanging Constitution appears to be a romantic, but necessary unfounded, aspiration that no enduring Constitution is likely to satisfied. Moreover, the Indian experience suggestion that political struggles found expression in the formal Constitution amending process more readily than in the informal modes through which a Constitution may be changed. 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. The evolution of the Basic Structure of Doctrine in India responds to this normative concern to preserve the sanctity of the Constitution as a higher law. The SC with aimto save the basic and original ideals of the makers has acted as a check over the legislative enthusiasm of Parliament ever since independence.

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 day to day to save the basic rights of the people and the ideals and the philosophy of the Indian Constitution. The 1st Constitution Amendment Act, 1951 was challenged in the case of Shankari Prasad v Union of India. The amendment was challenged on the ground that it breach of the Part-III of the Constitution and therefore, should be considered invalid. The SC held that the Parliament, under Article 368, has the power to amend any part of the Indian Constitution including Fundamental Rights. The Court gave the same judgement in the case of Sajjan Singh Vs State of Rajasthan in 1965.

The Special Character of Basic Structure Doctrine:-

It does not raise eyebrows anymore when ‘Basic Structure’ of the Indian Constitution is claimed to have been breached for such cries are fairly common in the current political discourse. Such moral ambivalence, with due respect to the motivation behind it, remains deeply regrettable. There are specific reasons why this is so and I discuss them in brief here. First, the ‘Doctrine of Basic Features’ was born out of an apprehension of Constitutional collapse, an anxiety which is exceptional in the life of a Constitution. Even by the most stretched account, it normally does not recur on a monthly basis.142 We can disagree amongst ourselves about the many problems which each one of us have with the regular breed of Indian politics and the threat it poses to the Indian Constitution but if we must be sincere. This doctrine arose out of special circumstances and its evolution since its birth should have been in the spirit of its singular role. The doctrine has been used like any other legal principle unresponsive to any restraint that its special stature demands from itself. The indifference is so palpable that almost every major state effort towards realising the Constitutional directives under Part III and IV and especially those relating to reservation in educational institutions, freedom of religion, special status of minority institutions, introduction of a common civil code etc. have been mired in claims of Structural Breach & the fact that pursuit of constitutional mandate breaches the ‘Basic Structure’ says something about both the pursuit as well as our loose understanding of the Doctrine. As a result of which the aspiration for such breach is higher than ever before. Since claims relating to the breach of ‘basic structure’ have important consequences hanging[1] in the balance of their decision, the doctrine often adopts serious ideological overtones and draws itself to the centre of political debates. Attributable to this wide presence is the possibility of a scheming use I warned of earlier in this part.

Case Laws:-

  • Shankari Prasad v. Union of India–In this case, it was held that the Parliament under Article 368 has the power to amend[2] any part of the Constitution including Part III 0r in other words article 368 can amend the fundamental rights. These are the attacks on right to property. Article 31 A & article 31 B.
  • Golak Nath v. State of Punjab – The Court held that the Parliament does not have power to amend Part III of the Constitution[3]. In Indian Constitution, Article 368 does not allow absolute power of amendment to the Parliament.
  • Kesavananda Bharti v. State of Kerala – The Supreme Court held that the Parliament has the power to amend any provision of the Constitution but the basic structure of the Constitution is to be maintained[4].

The tussle between the Judiciary and the Legislature took totally a different shape after the decision in the Golakh Nath case. The Constitution (Twenty-fourth Amendment) Act was passed to nullify the Golakh Nath decision.52Four clauses were added in the Article to blanket the Parliament with an omnibus constituent power. The Constitution (Twenty-fifth Amendment) introduced a new provision Article 31C53 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 be valid despite any inconsistency with the fundamental rights granted under Articles 1454, 1955 and 3156.In this case, His Holiness Kesavananda Bharati Sripadagalavaru of Kerala filed a petition under Article 32 of the Constitution for the enforcement of his Fundamental Rights under Articles 14, 19(1)(f), 25, 26, 31(1) and 31(2) of the Constitution. The matter was heard by the largest ever constituted Bench consisting of 13 judges57 to review the decision of the Court in the Golakh Nath. Eleven issues were raised in this case before the Honourable Supreme Court.

Conclusion: –

Now we can see that, basic structure as an idea has developed over years from different-different cases. It has been subject to intense debate in the Constitutional field with regard to its genesis. Different judges kept their different views regarding to the concept of basic structure of the constitution. But at a point they all have the same view that is ‘limited amending power of the parliament’. From all those cases which are involved in the origin of “basic structure of the constitution” the conclusion came that constitution is supreme, no one can change its basic structure. This doctrine protects our basic rights and every act of parliament is now subject to this doctrine. All of us must understand and I guess we already do, without being hard-pressed against our different views of the world that democracy is not cooked overnight with a ‘blend to taste’ prescription of ingredients as rule of law, rights, liberties and promises. Neither is it consumed the very next day; it requires culture of liberal constitutionalism to preserve it, and to prevent it from getting spoilt in the sun. The language of rights and the rhetoric of democracy without an idea of why or how such rights connect to our political existence, in what ways they improve. Such uneducated promises augur well for a good political speech but we are likely to confound the mess once the applause dies down. Any sincere effort at preventing such embarrassment needs to make sense of the questions that pose these blanks and involves, amongst other things, a grasp of history and the direction it has set us onto. We must realise that these questions have aged and evolved over time but their fundamental anatomy remains the same. No effort is sincere and no answer sustainable till we begin to understand that there are no push-button solutions to questions of political development. Each answer we find is deeply connected with the other and this treasure-hunt is largely reliant on our ability to recognize and link up the various clues keeping within the limits of political framework.


References

 


[1] This is when I assume that even after counting for all exceptions,

[2] 1951 AIR 458, 1952 SCR 89

[3] 1967 AIR 1643, 1967 SCR (2) 762

[4]KeshavanandaBaharti Case: The Untold Story of Struggle For Supremacy By Supreme Court And Parliament, Edition 2011, P.47.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s