BASIC STRUCTURE DOCTRINE - POLITY
News: Express
Explained - With Due Respect
What's in the news?
● "We
cannot have an ostrich-like stance" said Vice President Jagdeep Dhankhar,
by way of preface to a rash of comments on the relationship between parliament
and judiciary and the basic structure doctrine.
Key takeaways:
● The
basic structure doctrine was laid down by the Supreme Court in the Kesavananda
Bharati judgement in the turbulent 1970s following serial attrition between the
Indira Gandhi-led executive and the court.
● The court ruled that
while Parliament has vast powers to change the Constitution, it cannot touch
certain "basic features" or foundational principles that give the
Constitution its coherence or identity, make it what it is. That is, Parliament
can amend, not destroy.
● Ever
since, the doctrine has held firm and stood the test of time because the court
has kept the formulation of "basic features" wide and abstract.
Basic Structure Doctrine:
● The
Kesavananda Bharati judgment introduced the Basic Structure doctrine which
limited Parliament’s power to make drastic amendments that may affect the core values enshrined in the Constitution
like secularism and federalism.
● The
verdict upheld the power of the Supreme
Court to judicially review laws of Parliament.
● It
evolved the concept of separation of
powers among the three branches of governance - legislative, executive and
the judiciary.
Doctrine of Basic Structure says that
Evolution of Basic Structure and Important Judgements:
1. Shankari Prasad case:
● SC
opined that the power of the parliament to amend the constitution under Article
368 also includes the power to amend
Fundamental Rights.
● It
based its judgment on the logic that the word ‘law’ mentioned in Article 13
includes only ordinary laws and not constitutional amendment acts.
2. Golaknath case:
● SC
overruled its previous judgment.
● It
ruled in this that - Fundamental Rights
are given a transcendental and immutable position and hence the Parliament
cannot abridge or take away any of these rights.
● It
opined the constitutional amendment act is also a law under Article 13.
● Parliament
reacted to this judgment by enacting the 24th amendment act which included a
provision in Article 368 which declared that Parliament has power to take away
any of the fundamental rights.
3. Keshavananda Bharati case:
● SC
overruled its judgment in the Golaknath case.
● It
upheld the validity of the 24th Amendment Act and opined that parliament is empowered to take away or
abridge any of the Fundamental Rights.
● However,
such changes should not alter the ‘basic structure’ of the constitution.
4. Minerva mills case:
● Parliament
reacted to the above case by enacting 42nd Amendment Act which declared under
Article 368 that there is no limitation on the constituent power of Parliament
and it barred the courts from questioning such amendments.
● This
provision was invalidated by the SC stating that Parliament cannot take away
the ‘judicial review’ power of the
constitution since it is part of the ‘Basic Structure Doctrine’.
Significance of Basic Structure:
1. Testimony to Constitutionalism - The
basic structure doctrine is a testimony to the theory of Constitutionalism to
prevent the damage to the essence of the
Constitution of India by brute majority of the ruling majority.
2. Limit Parliamentary Sovereignty
- The basic doctrine saved Indian democracy as it acts as a limitation of
constituent power or else unlimited power of parliament might have turned India
into a totalitarian.
3. Protector of foundational values of the
Constitution without those values would be
meaningless. It helps us to retain the basic tenets of our constitution so
meticulously framed by the founding fathers of our Constitution.
4. Strengthen the Doctrine of Separation of Power
- It strengthens our democracy by delineating a true separation of power where
judiciary is independent of other two organs. It has also given immense untold
unbridled power to the Supreme Court and made it the most powerful court in the
world.
5. Protect the rights of the Citizens
- By restraining the amending powers of the legislative organ of State, it
provided basic rights to citizens which no organ of state can overrule.
6. Helps Constitution to be a living document
- Being dynamic in nature, it is more progressive and open to changes in time
unlike the rigid nature of earlier judgements.
Main Criticisms of Basic Structure:
1. No constitutional back-up:
● The
common criticism is that the doctrine has no basis in the Constitution’s
language.
● The doctrine does not
have a textual basis.
● There
is no provision stipulating that this Constitution has a basic structure and
that this structure is beyond the competence of amending power.
2. Power imbalance between Judiciary and Parliament:
● Its
detractors also believe the doctrine accords the judiciary a power to impose
its philosophy over a democratically formed government.
3. No clear definition:
● There
is no definite elucidation on what exactly constitutes basic structure,
thereby, making the doctrine ambiguous. The Basic Structure theory is a “vague and undefined concept”.
4. Tool for Judicial Overreach:
● In
recent times, the doctrine has been invoked in cases that have been regarded as
examples of judicial overreach. Ex: NJAC bill was declared null and void by the
SC by relying on this doctrine
5. Judiciary as Super legislature:
● Judicial
review is fundamental to rule of law. However, while reviewing the
constitutionality of the law, the court should not consider itself as a “super
legislature” and sit in judgement on the wisdom of the policies adopted by the
legislature.
WAY FORWARD:
● With
the changing requirements of the populace, the constitution also requires
amendments to accommodate and manage the
strain between the political system and constitutional ideals.
● Although
there is need to respect the judiciary, the vagueness around basic structure
needs a revisit considering that parliamentary sovereignty and autonomy cannot
be permitted to be qualified or compromised as it is quintessential to survival
of democracy.