In News: Recently, a bench of five judges of the Supreme Court has been constituted so as to determine whether the Constitution 103rd Amendment Act, 2019 violates the “basic structure of the Constitution”.
Doctrine of Basic Structure:
The doctrine states that no amendment to the Constitution is permissible if it alters “the basic structure or framework of the Constitution”.
It was developed by the Supreme Court of India in a series of constitutional law cases in the 1960s and 1970s that culminated in Kesavananda Bharati v. State of Kerala in 1973 where the doctrine was formally adopted.
The doctrine thus forms the basis of the power of the Supreme Court of India to review and strike down constitutional amendments and acts enacted by the Parliament which conflict with or seek to alter this “basic structure” of the Constitution.
The basic structure is a tool or judicial innovation to ensure that the legislature does not abuse the power given to it in Article 368.
Components of the Doctrine:
The doctrine has not been specifically defined but the various court judgements have helped in formulating a scope of the same and it includes the following:
Significance:
It has been applied to discover the intent of the constitution makers in framing the constitutional provisions, as in the case of Indira Gandhi v. Raj Narain.
The basic structure doctrine constitutes a high watermark in the assertion of the Supreme Court’s judicial power in the teeth of a determined majoritarian regime.
It protects the fundamental rights of the citizens against arbitrariness and authoritarianism of the legislature.
It strengthens the cause of democracy and maintains the sanctity of the vision of our founding fathers.
Challenges:
Fundamentally, it is inconsistent with the principle of separation of powers – By propounding the basic structure theory, the guardians of the Constitution had at one bound become guardians over the Constitution. In other words, constitutional adjudicators had assumed the role of constitutional governors.
Vagueness and elusiveness of the basic and essential features of the Constitution – When the highest law of a country is not defined, persons in authority can manufacture definitions that can serve their political ambitions. It is, thus, dangerous to leave the meaning of ‘basic structure’ open-ended.
The doctrine does not provide a technical solution to the amendment of constitutional amendments, which was the reason for its birth.
Way forward
The Constitution of India is an organic or living document and needs to be amended with the changing time and needs of the society. The framers of the Indian Constitution were aware of the fact that no generation has a monopoly of wisdom nor has it the right to place its decisions on future generations to mould the machinery of government according to their requirements. However, such power of amendment must be used judiciously.
Ninth Schedule of the Constitution
In order to free India from the zamindari system, the Constitution went through its First Amendment, in the year 1951 and the Ninth Schedule became part of this document.
It contains a list of central and state laws that are shielded from Judicial review.
The Ninth Schedule is the detailed explanation of Article 31-B of the Indian Constitution.
Initially, it had 13 laws, all of them aimed at land reforms but presently it contains 284 laws covering reservation, trade, industries, mine, etc.
Amendments as per article 368
The framers of the Constitution took a middle path and made our Constitution rigid as well as flexible. Dr. Ambedkar called it a “flexible federation”.
Part XX of the Indian Constitution contains Article 368.
This article gives the Parliament power to amend the Constitution.
It mentions three types of amendment:
By a simple majority of both the houses of the Parliament (the Lok Sabha and the Rajya Sabha)
By a special majority of both the houses of the Parliament
By a special majority of both the houses of the Parliament and ratified by half of the states. Ratified here means introduced as a bill on the floor of the state assembly and passed by a simple majority i.e., more than fifty percent present and voting.
Note: Various doctrines of Supreme Court
Doctrine of Pith and Substance – if the substance of legislation falls within a legislature’s lawful power, the legislation does not become unconstitutional just because it impacts an issue beyond its area of authority.
Doctrine of severability – when some particular provision of a statute offends or is against a constitutional limitation, but that provision is severable from the rest of the statute, only that offending provision will be declared void by the Court and not the entire statute.
Doctrine of Eclipse – any law which is inconsistent with fundamental rights is not invalid. It is not totally dead but overshadowed by the fundamental right. The inconsistency (conflict) can be removed by constitutional amendment.
Doctrine of Laches – emanates from the principle that the Courts will not help people who sleep over their rights and helps only those who are aware and vigilant about their rights. A party is said to be guilty of laches when they come to the Court to assert their rights after a considerable delay in that respect.
Doctrine of territorial nexus- It means that the object shall be located outside the territorial limits of the state and has a territorial connection with the state.
Doctrine of Colourable Legislation – It means when a legislature does not have the power to make laws on a particular subject directly, it cannot make laws on it indirectly.
Doctrine of Harmonious Construction – when two provisions of a legal text seem to conflict, they should be interpreted so that each has a separate effect and neither is redundant or nullified.
The Constitution of India defines its ‘basic structure’ in terms of federalism, secularism, fundamental rights and democracy.
The Constitution of India provides for ‘judicial review’ to safeguard the citizens’ liberties and to preserve the ideals on which the Constitution is based.
Which of the statements given above is/are correct?
