Parliament’s power:The idea behind ‘Constitution as a living document’ highlights the necessity of making amendments in the constitution to make it more adaptive with time and to ensure that it doesn’t lose it relevance as the social, economic and political conditions of the people keeps on changing. Whereas on the other side, too many changes in the constitution would lead to the loss of it’s essence. So, the pioneers of our constitution made sure to maintain the balance between a rigid and a flexible amendment process to the constitution
The basic structure doctrine is an Indian judicial principle that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the parliament. It was given by Supreme court in the landmark Keshavananda Bharathi 1973 case.
Parliament’s power & Article 368 and Doctrine of Basic structure:
• Article 368 of the constitution deals with the powers of parliament to amend the constitution and its procedure. It states that the Parliament may, in exercise of its constituent power, amend by way of addition, variation or repeal any provision of the constitution in accordance with the procedure laid down for the purpose.
• However the parliament cannot amend those provisions which form the “basic structure” of the constitution. This was ruled by the Supreme Court in the KesavanandaBharti case 1973. If the Judiciary feels to review the any amendment made by the parliament, it has the power to do so and if the Judiciary thinks that the amendment is unlawful or against any provision or against public morality, it has the power to make that amendment null and void.
• In the Shankari Prasad case 1951, the Supreme Court ruled that the power of Parliament to amend the constitution under article 368 also includes the power to amend the fundamental rights. In Golaknath case 1967, the Supreme Court reversed its earlier stand and ruled that Fundamental rights are given a transcendental and immutable position and hence Parliament cannot abridge or take away any of these rights. The Parliament reacted to SC’s judgment by enacting 24th amendment act 1971 and stated the Parliament has the power to abridge any of the fundamental rights under article 368.
Parliament’s power & Limitations on Parliament to amend the constitution:
• However in KesavanandaBharti case 1973, the Supreme courtoverruled its judgment in GolakNath case. It upheld the validity in of 24th Amendment act and stated that the parliament is empowered to abridge any of the fundamental rights. At the same time, it laid down a new doctrine of the ‘basic structure ‘of the constitution. It ruled that constituent power of the parliament under article 368 doesn’t enable it to alter the basic structure of the constitution.
• Parliament reacted to it by enacting 42nd amendment where it declared that there’s no limitation on the constituent power of Parliament and no amendment can be questioned in any court of law. However, the Supreme Courtin Minerva Mills case 1980 invalidated this provision as it excluded judicial review which is a basic feature of the question.
Basic structure exists within the constitution:
● It is deeply rooted in the Constitution’s text and history, but it also possesses substantial moral value, in that it strengthens democracy by limiting the power of a majoritarian government to undermine the Constitution’s central ideals.
● Constitution authorizes court to quash orders as well as legislations which violate fundamental rights of people except in case where the state is backed by law. (Judicial review u/a 13 and 226)
● Fundamental Rights are the main source of basic structure of constitution. There are fundamental rights to ensure freedom of speech and expression, to maintain a secular state and protect citizens from arbitrary action of state.
● Preamble specifically marks the thoughts of makers of constitution and the aspirations of people and defines the boundary upto which state can go. It tells that republic of India is constituted into a democratic, socialist, secular state.
● Basic structure has implicit acceptance in constitutional debates where some values like democracy, secularism, federalism were discussed vigorously and thus attracted more importance.
Parliament’s power & Importance of Basic structure:
• It puts limitation on the power of Parliament to amend constitution.
• It is a reflection of balance between rigidity and flexibility. There is huge flexibility for legislature to amend constitution, however there exists some parts which can never be altered or diluted.
• It protects the interests of minorities and backward classes which can be under threat in case of majoritarian governments.
• It prevents concentration of powers in the hands of governments like it happened in case of Indira Gandhi during times of emergency which led to attempts to alter significant parts of constitution through 38th,39th and 42nd amendments.
This doctrine has evolved gradually over a period of time by Supreme court.
Major components of Basic structure:
1.Supremacy of constitution
2.Unity and integrity of India
3.Balance between fundamental rights and DPSP
8.Free and fair elections
9.Independence of judiciary
U/A 368 Parliament is empowered to use its constituent power to amend by way of addition,or repeal any part of the constitution according to the procedure provided in this article.
However, it is not absolute power of the Parliament.
● Basic structure doctrine gives extra power to court to review and strike down any constitutional amendments and act enacted by the Parliament.
● Parliament has limited powers to amend the constitution.
● Parliament cannot damage or destroy the basic features of the Constitution.
● The Procedure prescribed for the amendment is mandatory. Noncompliance with it will result in invalidity of the amendment.
● Clauses (4) and (5) inserted in Art. 368 by the 42nd Amendment Act are invalid because they take away the right of judicial review.
● Parliament cannot increase its amending power by amending Art. 368.
Basic structure doctrine is manifestation of doctrine of living tree and ability of judiciary to fulfill its role as guarantor of fundamental rights and defender of Constitution. It is regarded as the judicial innovation which protected Indian constitution at a crucial juncture and contributed to saving of Indian democracy.
From various judgments, Unity and Integrity of the nation, judicial review, parliamentary system, free and fair elections, independence of judiciary etc have emerged as the elements or ingredients of the basic structure. These cannot be amended by using the constituent amending power of the constitution under the article 368, thus limiting Parliament’s power to amend the constitution.
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