• THE SOCIETY FOR CONSTITUTIONAL LAW DISCUSSION

Critical Analysis of the Basic Structure Doctrine of The Indian Constitution


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AUTHOR: AMRUTHA BAWGI, 2ND YEAR STUDENT, PRESIDENCY UNIVERSITY, BANGLORE

A Constitution is a living constitution, which means it has to adapt to the requirements of the rapidly changing legal system. At the same time, there are certain basic frameworks on which the whole content of the constitution rests. Basic structure doctrine was evolved by the Supreme Court through its landmark judgments over the years, to uphold the spirit of the constitution to preserve and protect the rule of law and basic structures. This theory singlehandedly attempts to empower the judiciary to keep a check on the legislature in restraining it from misusing article 368 of the Indian constitution[1]

The word "Basic Structure" is not mentioned in the constitution of India. The concept 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 with the help of various cases.


In Kesavananda Bharati v. State of Kerala[2], features like Supremacy of the Constitution, Republican and Democratic form of governance, separation of powers, secular and sovereign character were found to be part of the basic structure. In the cases of Indira Gandhi v. Rajnarian[3]] and Kihoto Hollohan v. Zachillhu and ors[4]., Rule of Law was considered to be a part of the basic structure. In the S.R. Bommai v. U.O. I[5], Federalism was held to be an essential feature of the Constitution and hence part of the basic structure. The Minerva Mills v. U.O. I[6] case recognized judicial review as a part of the basic structure of the Constitution. In Re: The Berubari Union case[7], the court found the preamble to not be a part of the Constitution, which was overruled in the Kesavananda Bharati v. State of Kerala and the preamble could only be amended in terms of the basic structure doctrine. All the above elements are the basic features which can also be called the fundamental idea of the framers which holds the constitution and its spirit together.


I strongly support the basic structure doctrine because it helps to limit the power of the parliament in altering or amending the basic structure of the constitution. The basic structure limitation comes as a realization that it is the only way to safeguard the constitution from destruction and defilement of the political majorities in the parliament. If the parliament is given full power to amend the constitution just because of the temporary majorities then it will lead to misuse of their power and does not give justice to people. Keeping in mind that parliament is the representative of the people and was formed for the people providing injustice is against the democracy of the people. People can question the sovereignty that is vested in India to change whatever part they want but the court has said that the sovereignty is only political and not legal and hence declared that no one is above the constitution. In my opinion, the supremacy is given to the constitution and not to parliament or judiciary. No one is above the constitution, not even the constitutional framers, once the constitution is accepted by the people no one is above the constitution and cannot alter the essence and soul of the constitution. For example, if suppose the parliament amends to restrict the fundamental right[ article-32] temporarily just because the cases are piled up already in the supreme court then it is totally against equality of people. This is a complete misuse of power on the part of parliament.


Hence I conclude that parliament can amend any part of the constitution including fundamental rights without affecting the basic structure of the Indian constitution.

The constitution is supreme and parliament amending powers are absolute.[8]

[1] https://www.jagranjosh.com/general-knowledge/basic-structure-doctrine-of-the-constitution-1437127016-1 [2]4 SCC 225; AIR 1973 SC 1461 [3] 1975 AIR 865,1975 SCR (3) 333 [4] 1992 SCR (1) 686,1992 SCC SUPL.(2)651 [5] 1994 AIR 1918,1994 SCC (3) 1 [6] 1980 AIR 1789,1981 SCR (1) 206 [7] AIR 1960 SC 845,1960 3 SCR 250 [8] https://lexresearchhub.com/basic-structure-of-indian-constitution/

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