Introduction
Basic structure doctrine is a judicial principle which says that the basic features of the Constitution cannot be altered by amendments under Article368. These include rule of law, independent Judiciary, federal polity, secularism etc.
Evolution
| Cases | Explanation |
|---|---|
| Shankari Prasad case (1951) | Supreme Court held that Parliament's power to amend the Constitution under Article 368 includes the power to amend fundamental rights. |
| Sajjan Singh case (1965) | SC reaffirmed the ruling in Shankari Prasad case. |
| Golak Nath Case (1967) | SC overruled the Shankari Prasad judgement giving FRs the transcendental position. The court stated that the Parliament does not have absolute amending power. |
| Kesavananda Bharti Case (1973) | SC upheld the validity of 24th Amendment Act. It held that Parliament has the power to amend any part of the Constitution provided that the basic structure of the Constitution is maintained. |
| Minerva Mills Case (1980) | SC invalidated the provisions of 42nd Amendment and stated that the power of judicial review cannot be taken away as it forms a part of ‘basic structure’ of the Constitution. |
Basic Structure Doctrine and Article 368
-
- Can Parliament amend Article 368 and give itself absolute powers?
- No, parliament cannot do so as framers of the Constitution gave limited sovereignty to Parliament.
- 42nd Amendment added Article 368(5) to give absolute powers to Parliament. This was struck down by Minerva Mills Case.
- For example-NJAC (99th Amendment Act) declared unconstitutional by Supreme Court based on this doctrine.
- Thus, limiting amending power is a part of basic structure of the Constitution.
- Can Judiciary overrule the basic structure doctrine?
- Yes, it can be done by a 15 Judge bench.
- Can Parliament amend Article 368 and give itself absolute powers?
Criticism:
-
- It is an extraconstitutional development based on judicial innovations.
- It is not well defined.
- It shifts power from legislature to Judiciary, making judiciary more powerful.
- For example- NJAC declared unconstitutional by Supreme Court based on this doctrine.
- It expands the scope for judicial review, providing space for judicial overreach.
Should India codify BSD?
-
- Recent context- reversal ofright to abortion as constitutional right(Roe v. Wade, 1973) in Dobbs v. Jackson Women’s Health Organization (2022).
- Vice president Jagdeep Dhankhar has criticized the basic structure doctrine as it has usurped parliamentary sovereignty and goes against the democratic imperative that the elected legislature should reign supreme.
- Worldwide, countries are moving towards immuning their Constitutions as 27% of the Constitutions today are immune, compared to 17% before 1945.
- Bangladesh in 2017, codified the basic structure.
- The doctrine should be given constitutional recognition, preventing it from being tampered.
Granville Austin argues that the Basic Structure Doctrine has resulted in a balance reached between the responsibilities of Parliament and the Supreme Court for protecting the Constitution of India.
Significance
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- Promoting constitutionalism and constitutional democracy.
- R. Bommai case– federalism, secularism, democracy as Basic structure.
- Maintaining constitutional supremacy.
- In KihotoHollohan case, SC declared rule of law as a basic structure of the Constitution.
- It protects the fundamental rights
- Strengthening public trust in the Constitution.
- It has also been adopted by other countries as well like Bangladesh, Pakistan etc.
- It has promoted socio-economic transformation.
- It strengthens constitutional morality.
- Promoting constitutionalism and constitutional democracy.
