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Basic Structure of the Constitution by ATRISHEKHAR - Coggle Diagram
Basic Structure of the Constitution
by ATRISHEKHAR
EMERGENCE OF THE BASIC STRUCTURE
Shankari Prasad case 1951
Golak Nath case 1967
the constitutional validity of
the Seventeenth Amendment Act (1964), which inserted certain
state acts in the Ninth Schedule, was challenged
Court ruled that the Fundamental Rights are given a
‘transcendental and immutable’ position
Parliament cannot abridge or take away any of these rights
constitutional amendment act is also a law within the meaning of
Article 13 and hence, would be void for violating any of the FR
To get over the judgments of the Supreme Court in the Golaknath case (1967), RC Cooper case (1970), and Madhavrao Scindia case (1970), the then government headed by Prime Minister Indira Gandhi had enacted major amendments to the Constitution (the 24th, 25th, 26th and 29th).
The Parliament reacted to the Supreme Court’s judgement in
the Golak Nath case (1967) by enacting the 24th Amendment Act (1971)
This Act amended Articles 13 and 368
such an act will not be a law under the meaning of Article 13
Parliament has the power to abridge or take away any of the Fundamental Rights under Article 368
All the four amendments brought by the government were challenged in the Kesavananda Bharati case.
Kesavananda Bharati case 1973
It upheld the validity of the 24th Amendment Act (1971)
and stated that Parliament is empowered to abridge or take away any FR
At the same time, it laid down a
new doctrine of the ‘basic structure’ (or ‘basic features’) of the Constitiution
It ruled that the constituent power of Parliament
under Article 368 does not enable it to alter the ‘basic structure’
Parliament cannot abridge
or take away a Fundamental Right that forms a part of the ‘basic structure'
reaffirmed
Indira Nehru
Gandhi case (1975)
this provision was beyond the amending power of Parliament as it
affected the basic structure of the constitution
Parliament reacted to this judicially innovated
doctrine of ‘basic structure’ by enacting the 42nd Amendment Act 1976
3 more items...
popularly known as the Election Case
invalidated
a provision of the 39th Amendment Act (1975) which kept the election disputes involving the Prime Minister and the Speaker of
Lok Sabha outside the jurisdiction of all courts
Supreme Court overruled its judgement in the Golak Nath case
(1967)
Subsequent Debates and Decisions
In 1975, a bench of 13 judges was constituted by CJI A N Ray to debate the theory of basic structure and framework as propounded in the Kesavananda Bharati case.
However, the bench was dissolved without a decision.
the constitutional validity of
the First Amendment Act (1951), which curtailed the right to property, was challenged
The Supreme Court ruled that the
power of the Parliament to amend the Constitution under Article 368 also includes the power to amend Fundamental Rights
The
word ‘law’ in Article 13 includes only ordinary laws and not the constitutional amendment acts (constituent laws)
Parliament can abridge or take away any of the Fundamental
Rights by enacting a constitutional amendment act and such a law will not be void under Article 13
The question whether Fundamental Rights can be amended by
the Parliament under Article 368 came for consideration
Elements of the
‘basic structure’ of the constitution
Supremacy of the Constitution
Sovereign, democratic and republican nature of the Indian polity
Secular character of the Constitution
Separation of powers between the legislature, the executive and the judiciary
Federal character of the Constitution
Unity and integrity of the nation
Welfare state (socio-economic justice)
Judicial review
Freedom and dignity of the individual
Parliamentary system
Rule of law
Harmony and balance between Fundamental Rights and Directive Principles
Principle of equality
Free and fair elections
Independence of Judiciary
Limited power of Parliament to amend the Constitution
Effective access to justice
Principles (or essence) underlying fundamental rights
Powers of the Supreme Court under Articles 32, 136, 141 and 146
Powers of the High Courts under Articles 226 and 227
Significance of Basic Structure:
The basic structure doctrine is a
testimony to the theory of Constitutionalism
to prevent the damage to essence of COI by brute majority of the ruling majority.
The basic doctrine
saved the Indian democracy
as it acts as a limitation of constituent power or else unlimited power of parliament might have turned India into a
totalitarian
It helps us to
retain the basic tenets of our constitution
so meticulously framed by the founding fathers of our Constitution.
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 Supreme Court and made it the
most powerful court in the world
By restraining the amending powers of legislative organ of State, it
provided basic Rights to Citizens which no organ of State can overrule.
Being
dynamic in nature,
it is more progressive and open to changes in time unlike the rigid nature of earlier judgements.
Criticisms of Basic Structure
The common criticism is that the
doctrine has no basis in the Constitution’s language
. The doctrine does not have a textual basis.
Its detractors also believe the
doctrine accords the judiciary a power to impose its philosophy
over a democratically formed government
Allows Judicial supremacy
There is
no definite elucidation
on what exactly constitutes basic structure, thereby, making the doctrine ambiguous
In recent times, the doctrine has been invoked in cases that has been regarded as examples of
judicial overreach
. Ex: NJAC bill was declared null and void by the SC by relying on this doctrine
Against the principle of majority:
Decision by narrow margin:
-This 13 judge bench had a very narrow majority of 7-6
Some Related Doctrines:
Judicial activism
Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions.
PIL has become the major tool for giving effect to judicial activism in recent times
Examples: Keshavananda Bharati case, Maneka Gandhi case
Judicial overreach
Using judicial powers to interfere with the proper functioning of executive and legislature.
Examples: Banning firecracker, regulations related to allowing bars near highways
Judicial review
Judicial review is the power of courts to decide the validity of acts of the legislative and executive branches of government.
Courts derive powers for their judicial review under Art 13(2), Art 32 and Art 142. Example: Scrapping section 66A of the IT act
The case of L. Chandra Kumar v. Union of India again stated that the power of judicial review under Article 32 of the Supreme Court and Article 226 of the High Court is part of the basic structure doctrine and these powers cannot be diluted by transferring them to administrative tribunals
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.
QUESTIONSfor PRACTICE
Examine the limitations in amending any part of the Indian constitution. (250 words)
It may well be the case that the basic structure doctrine is derived from the abstract. But that scarcely means it doesn’t exist within the Constitution. Comment
ORIGIN
The basic structure theory was first introduced by Justice Mudholkar in the Sajjan Singh case (1965) by referring to a 1963 decision of the Supreme Court of Pakistan
Chief Justice Cornelius of Pakistan had held that the President of Pakistan could not alter the “fundamental features” of their Constitution.
This has led to basic structure doctrine being adopted in international jurisprudence, an example being Bangladesh Supreme Court in 1989 quoting Keshavananda Bharati judgement, applied the basicstructure doctrine to Bangladesh constitution as well
Uganda too referred the Keshavananda Bharati Judgement in 2019 to adjudicate the amendments made in the constitution.
• Apart from this, in the Basic Law of Germany under Article 79 talking about the amendment procedure, has a provision saying that there are certain provisions in the constitution that are no amendable, thus codifying a basic structure in the constitution itself and not through the courts.