BASIC STRUCTURE OF THE CONSTITUTION

EMERGENCE OF THE BASIC STRUCTURE :
 Whether Fundamental Rights can be amended by the Parliament under Article 368 came for consideration of the Supreme Court within a year of the Constitution coming into force.
 Shankari Prasad case(1951) -> constitutional validity of the First Amendment Act (1951), which curtailed the right to property, was challenged.
 Supreme Court ruled that the power of Parliament to amend the Constitution under Article 368 also includes 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.

 But in Golak Nath case(1967), Supreme Court reversed its earlier stand.
 Supreme Court ruled that Fundamental Rights are given a ‘transcendental and immutable’ position and hence, the Parliament cannot abridge or take away any of these rights.
 A constitutional amendment act is also a law within the meaning of Article 13 and hence, would be void for violating any of Fundamental Rights.
 Parliament reacted to Supreme Court’s judgement in Golak Nath case (1967) by enacting the 24th Amendment Act (1971).
 This Act amended Articles 13 and 368.
 It declared that the Parliament has the power to abridge or take away any of the Fundamental Rights under Article 368 and such an act will not be a law under the meaning of Article 13.

 Kesavananda Bharati case(1973)-> Supreme Court -> judgement in the Golak Nath case (1967).
 It upheld the validity of the 24th Amendment Act (1971) and stated that Parliament is empowered to abridge or take away any of the Fundamental Rights.
 At the same time, it laid down a new doctrine of the ‘basic structure’ (or ‘basic features’) of the Constitution – Constituent power of Parliament under Article 368 does not enable it to alter the ‘basic structure’ of the Constitution.
 This means that Parliament cannot abridge or take away a Fundamental Right that forms a part of the ‘basic structure’ of the Constitution.
 Parliament reacted to this judicially innovated doctrine of ‘basic structure’ by enacting the 42nd Amendment Act (1976).
 This Act amended Article 368 and declared that there is no limitation on the constituent power of Parliament and no amendment can be questioned in any court on any ground including that of the contravention of any of the Fundamental Rights.

 Supreme Court in the Minerva Mills case(1980) invalidated this provision as it excluded judicial review which is a ‘basic feature’ of the Constitution.
 Applying the doctrine of ‘basic structure’ with respect to Article 368, the court held that: “Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power.
Parliament cannot, under article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic features. The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one”.
 Waman Rao case(1981)- Supreme Court adhered to the doctrine of the ‘basic structure’ and it would apply to constitutional amendments enacted after April 24, 1973 (the date of the judgement in Kesavananda Bharati case).

ELEMENTS OF THE BASIC STRUCTURE

 Parliament under Article 368 can amend any part of Constitution including the Fundamental Rights but without affecting the ‘basic structure’ of Constitution.
 Supreme Court is yet to define or clarify as to what constitutes the ‘basic structure’ of the Constitution.
 From the various judgements, the following have emerged as ‘basic features’ of the Constitution or elements / components / ingredients of the ‘basic structure’ of the constitution:
1. Supremacy of the Constitution
2. Sovereign, democratic and republican nature of the Indian polity
3. Secular character of the Constitution
4. Separation of powers between the legislature, the executive and the judiciary
5. Federal character of the Constitution
6. Unity and integrity of the nation
7. Welfare state (socio-economic justice)
8. Judicial review

9. Freedom and dignity of the individual
10. Parliamentary system
11. Rule of law
12. Harmony and balance between Fundamental Rights and Directive Principles
13. Principle of equality
14. Free and fair elections
15. Independence of Judiciary
16. Limited power of Parliament to amend the Constitution
17. Effective access to justice
18. Principle of reasonableness
19. Powers of the Supreme Court under Articles 32, 136, 141 and 142

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