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A Critical Analysis Of The Doctrine Of Basic Structure

INTRODUCTION

The Indian Constitution is considered as one of the largest Constitutions in the world. It is neither rigid nor too flexible, and thus it is often criticized for that reason. Our Constitution has a preamble and 470 articles in total. These Articles contain Fundamental Rights, Directive Principles of State Policy, citizenship, etc. these Articles can be amended according to the needs and demands of the people. Parliament has the power to amend our Constitution. According to Article 368[1], Parliament can add, vary, or repeal any provisions. But we cannot allow the flexible character to take away the essence of the Constitution.

There is a base for everything which would regulate them. The Constitution has the “Doctrine of basic structure” embedded in itself. This structure is also called the “Judge-made doctrine”. This Doctrine puts a restriction on the amending powers of the Parliament to ensure that the natural character of the Constitution which is given by the constitutional-makers never fades away. The Doctrine of basic structure can be neither altered nor destroyed by our Parliament. Though it preserves the nature of our Constitution on a larger scale, the nature of the doctrine has its own criticisms. This article analyses the constitution from a viewpoint of the critic.

EMERGENCE OF THE BASIC STRUCTURE

“Basic features” were first theorized in 1964 in the case of Sajjan Singh v. State of Rajasthan[2] by J.R. Mudholkar in his protest. He wondered whether the meaning of Article 368 contained the right to change a constitutional function or amend a portion of the Constitution. The majority held that Article 368 has its scope to amend any Article of the Constitution, but J.R. Mudholkar’s question was unanswered. The same ruling was given in the case of Shankari Prasad V. Union of India[3]. In the case of Golaknath V. State of Punjab[4], the majority ruled that Article 368 only contains the procedure to amend and did not grant any special power to the Parliament. And so, the fundamental rights cannot be amended by the Parliament. The court also held that there are few basic features which play a pivotal role in our Constitution and need special procedures to amend them.

THE MILESTONE

Kesavananda Bharati case[5] was the milestone of this Doctrine. This case overruled the Golaknath case. The majority held that the twenty-fourth amendment was valid and the Parliament has the power to amend any provisions of the Constitution according to Article 368. The court held that the Parliament has the power to amend the Fundamental Rights but has no right to vary or destroy the basic structure of the Constitution. With the majority of 6:7, the Supreme Court held that the Fundamental rights are amendable but the basic structure is not. Justice hedge and Mukherjee., JJ., held that our Constitution is not a political but a social document. It has two main features namely, basic and circumstantial. The latter may change accordingly but the former would not change. Thus, the basic feature can neither be changed nor be destroyed.

There was no unanimous opinion on the concept of the basic structure. Sikri, CJ, explained the concept as,

  1. Supremacy of the Constitution

  2. Separation of powers between the Legislature, Executive and the Judiciary

  3. Federal character of the Constitution

  4. Republican and democratic form of government and

  5. Secular character of the Constitution

Hedge, J. and Mukherjee, J. lists as,

  1. Sovereignty of India

  2. The democratic character of the polity

  3. Unity of the country

  4. Essential features of the individual freedoms secured to the citizens

  5. The mandate to build a welfare state

Jaganmogan Reddy, J. said that the basic features that are found in the Preamble are,

  1. Sovereign Democratic Republic

  2. Parliamentary Democracy

  3. Three organs of the State

Kesavananda Bharati’s case demonstrates that our Constitution is not merely materialistic but directed properly and has control by virtue of the basic structure.

The judgment made in Kesavananda Bharati was confirmed in many other cases. In the case of Minerva Mills Ltd. V Union of India[6], the court struck down the clause (3) and (4) of Article 368 which was included through the 42nd Amendment of the Constitution because they opined that it destroys the basic structure of the Constitution. They also held that one of the essentials of basic structure is limited amending power.

Waman Rao V Union of India[7] confirmed the Minerva Mills case and held that laws inserted in the 9th Schedule were available for judicial review. There are many other pronouncements by our Judiciary that confirmed Kesavananda Bharati case to uphold that the basic structure cannot be destroyed.

CRITICAL ANALYSIS

  1. Supreme Court is an unelected institution whereas Parliament is an elected institution. A person is elected in the Parliament to serve the people according to the needs of the society.

Some negotiate that Supreme Court invoking those amendments made by the people’s representative is per se undemocratic.

  1. It also derived from the few legal pronouncements issued by the Supreme Court that it has exercised a great deal of control in the name of the basic structure, which may be considered the veto control in every change to the Constitution.

  2. Subhash Kashyap asks, “if the sovereign people through their representatives cannot bring about their desired change, who will?”.[8]

  3. People also say that, as the Constituent power has been transferred from the elected representatives to the Supreme court judge, the fact that the majoritarian power remains with the Parliament has been ignored.

  4. Few opine that the judiciary is undermining the Constitution by weakening the power of Parliament.

  5. There also comes a question in our mind that has there been any Constitutional framework that restricts the amending power through an innate restraint.

  6. There is no base for the basic structure.

  7. There should not be any distinction between the essential and non-essential parts of the Constitution. Every Article should be essential and the power of the Parliament over amending should also be constant.

  8. Something is said to be a notion or a doctrine in our Constitution only if it has any Constitutional genesis.

  9. But the word “basic structure” has been nowhere mentioned in one of the world’s largest Constitutions.

  10. Some leaders argue that the Fundamental Rights should not be protected by basic rights. If we give such protection to the Fundamental Rights which has not been mentioned by the Constitutional-makers then it would be an insult to them.

  11. Even now there is no perfect definition for the term “basic structure”.

  12. The case in which the concept of “basic structure” was brought defines the term differently from the consecutive cases.

  13. Now comes a question that, if the basic structure is considered as an essential element in our Constitution, why does it not have any proper definition till date?

  14. Varying definitions of basic structure from case to case not only brings confusion to the people and Parliament but also creates an ambiguity. Should an ambiguous term become the base of our Constitution?

All these statements revolve around three important problems. One is that the doctrine does not have any genesis. Secondly, this doctrine impairs the power of Parliament. Thirdly, there is no proper definition for the term “basic structure” which makes it vague. These three are the main problems which we cannot ignore.

Why is the Basic Structure essential for our Constitution beyond its criticism?

The basic feature protects the supremacy of the Constitution, Unity, Sovereignty, Democratic form of government, federal character, secularism, freedom, separation of powers, rule of law, judicial review, rule of equality, harmony, and balance between DPSP and Fundamental rights, fair elections, etc. These are some of the important principles needed for good governance. Thus, a limitation on the amending power of the Parliament is imperative. Without this doctrine, the court might have undergone serious deterioration in the system of judicial review. While considering the impact of the absence of the basic structure, the ambiguity, parliamentary power, and the problem of genesis is of no significance.

CONCLUSION

The doctrine of basic structure is a central statutory principle specifically enshrined in the Constitution by the courts through their interpretations. Besides all those criticisms, the doctrine of basic structure gives confidence in the democratic process to a citizen that there would be no room for abuse of power by the Parliament. This doctrine has a check on the democratic order and also protects the rights and liberties of the people. It promises stability and security of certain basic rights. The basic structure promotes the unity and integrity of every Article of the Constitution. A doctrine supporting the whole Constitution is appreciable. It also prevents the Parliament from the misuse of Article 368. It also saved our country from slipping into an authoritarian government. The balance between rigidity and flexibility of the Constitution is well-managed by the basic structure. Thus, the doctrine of basic is also called as the “watchdog of the Constitutional governance”.

[1] Article 368 of the Indian Constitution, 1949

[2] Sajjan Singh vs State of Rajasthan, 1965 AIR 845, 1965 SCR (1) 933

[3] Shankari Prasad V. Union of India case, AIR 1951 SC 455

[4] Golaknath v. State of Punjab, 1967 AIR 1643, 1967 SCR (2) 762

[5] Kesavananda Bharati V State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461.

[6] Minerva Mills Ltd. V Union of India, AIR 1980 SC 1789

[7] Waman Rao And Ors vs Union Of India and Ors, (1981) 2 SCC 362, 1981 2 SCR 1.

[8] Kashyap, Subhash C.- Our Constitution, Edition 2011, Reprint 2014, p. 340.

C.AMIRDHAVARSHINI III-year, B.Com., L.L.B., (Hons.) SASTRA DEEMED TO BE UNIVERSITY

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