BASIC STRUCTURE OF THE INDIAN CONSTITUTION

Things To Be Covered Up

• What is the Basic Structure Doctrine?

• Evolution of Basic Structure Doctrine

• Similar types of Doctrines in other countries

UPSC RELEVANCE: INDIAN CONSTITUTION, GS2

   What is the Basic Structure Doctrine?

• The Doctrine of Basic Structure is a form of judicial review that is used to test the legality of any legislation by the courts.
• The doctrine was evolved by the Supreme Court in the 1973 landmark ruling in Kesavananda Bharati v State of Kerala.
• A 13-judge Constitution Bench ruled that the ‘basic structure’ of the Constitution is inviolable, and could not be amended by Parliament.
• If a law is found to damage or destroy the basic features of the Constitution, the Court declares it unconstitutional.
• The test is applied to constitutional amendments to ensure the amendment does not dilute the fundamentals of the Constitutional itself.

Basic structure type doctrine found in other nations’ constitution

Just like ‘Basic structure doctrine’ of India, which places the limitation on parliament’s amendment power, there are several examples in world with similar type of doctrines/judgements. Some of them are-

• Constitutions of Greece and Portugal have provided a long and fairly exhaustive list of all unamendable provisions.
• Constitutions of France and Italy attempt to safeguard only one or two core principles.
• In Iran, the unamendable provisions include those related to the Islamic and democratic character and objectives of the republic such as social and economic goals.
• In Pakistan, in a court case, majority of judges held that there were implied limitations on the amending powers of the Parliament.
• In Thailand, the 2007 Constitution prohibits amendments that change the democratic regime of the Government.
• This kind of basic structure doctrine has also been invoked in certain cases in Belize (a Caribbean and Central American country) to strike down amendments to the Constitution.
• In Australia, the High Court has held that the law-making powers of the Parliament are subject to limitations that can be inferred in and from the Constitution of Australia itself.
• In Britain, in certain cases, it was held that, “In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the House of Lords may have to consider whether this is a constitutional fundamental which even a sovereign Parliament cannot abolish.”
• In South Africa, a debate has been started regarding the applicability of the basic structure doctrine.

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  Q: “Parliament’s power to amend the constitution is limited power and it cannot be enlarged into absolute power”. In light of this statement explain whether parliament under article 368 of the constitution can destroy the Basic Structure of the Constitution by expanding its amending power? (15 mark) [UPSC CSE 2019]