Doctrine of Basic Structure

¨Doctrine of Basic Structure

According to the Indian Constitution, the Parliament and the State Legislatures can make laws within their jurisdictions. The power to amend the Constitution is only with the Parliament and not the state legislative assemblies. However, this power of the Parliament is not absolute. The Supreme Court has the power to declare any law that it finds unconstitutional void. As per the Basic Structure Doctrine, any amendment that tries to change the basic structure of the constitution is invalid.

¨Doctrine of Basic Structure

There is no mention of the term “Basic Structure” anywhere in the Indian Constitution. The idea that the Parliament cannot introduce laws that would amend the basic structure of the constitution evolved gradually over time and many cases. The idea is to preserve the nature of Indian democracy and protect the rights and liberties of people. This doctrine helps to protect and preserve the spirit of the constitution document.

It was the Kesavananda Bharati case that brought this doctrine into the limelight. It held that the “basic structure of the Constitution could not be abrogated even by a constitutional amendment”. The judgement listed some basic structures of the constitution as:

1.Supremacy of the Constitution

2.Unity and sovereignty of India

3.Democratic and republican form of government

4.Federal character of the Constitution

5.Secular character of the Constitution

6.Separation of power

7.Individual freedom

¨Doctrine of Basic Structure

Over time, many other features have also been added to this list of basic structural features. Some of them are:

ØRule of law

ØJudicial review

ØParliamentary system

ØRule of equality

ØHarmony and balance between the Fundamental Rights and DPSP

ØFree and fair elections

ØLimited power of the parliament to amend the Constitution

ØPower of the Supreme Court under Articles 32, 136, 142 and 147

ØPower of the High Court under Articles 226 and 227

Any law or amendment that violates these principles can be struck down by the SC on the grounds that they distort the basic structure of the Constitution.

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¨Doctrine of Judicial Review

Judicial Review refers to supervising the exercise of power by the judiciary of other government coordinating bodies with a view to ensuring that they remain within the limits set by the Constitution on their powers.

It is the court’s right to review legislative and executive decisions, and even review judicial acts. It is the power to scrutinize the validity of legislation, or any practice, whether or not it is legitimate.

Judicial review doctrine is based on the principle of rule of law and separation of powers. Judicial review is the process for testing and balancing the separation of powers.

The Theory of Judicial Review’s key purposes are as follows;

Øto determine the unconstitutionality of Legislative Acts

Øto maintain supremacy of the Constitutional Law

Øto protect the Fundamental Rights

Øto maintain federal equilibrium between Centre and the States

Øto check arbitrariness, unjust harassing and unconstitutional laws

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