Scribd
Upload
6 views

Polity and Constitution _ Lecture 02

Uploaded by

nitya
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
6 views

Polity and Constitution _ Lecture 02

Uploaded by

nitya
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
You are on page 1/ 20

GS Paper II

Indian Polity and Constitution

Lecture 2

Neelam Bhatia
Article 368 and Basic Structure Doctrine
• Confers constituent power to the Parliament
• Constituent power refers to the power to amend the Constitution
• Constitutional Amendments under Art. 368
• Can only be introduced in Central Legislatures (A unitary form of Federalism)
• The majority of the total (irrespective of the vacancies/absentees) membership
of each house (more than 50%) and the majority of two-thirds of the members
of each house present and voting
• Must be passed by more than half of State Legislatures (including UTs with
Legislatures) via a simple majority (In case of impacting the federal structure)
• Cannot be returned or rejected by the President
Meaning of the Doctrine of Basic Structure

The Doctrine of the Basic Structure of the Constitution refers


to the principle established by the Indian Judiciary that
certain core principles and features of the Constitution
are inviolable and cannot be amended or altered by the
Parliament.

As per this doctrine, any amendment that seeks to alter or


abolish these basic features is deemed unconstitutional and
void.

Thus, this doctrine acts as a safeguard against arbitrary or


radical changes to the Constitution, ensuring its stability,
continuity, and adherence to core constitutional values.
Evolution of the Doctrine of Basic Structure

•The Doctrine of Basic Structure of the Constitution is not


expressly provided for in the Constitution.

•It is a judicial doctrine, which has evolved through a series of


judgments of the Supreme Court on cases related to the amending
power of the Parliament.

•The debate regarding the scope of the power of the Parliament to


amend the Constitution under Article 368 started way back in
1951.

•This issue initiated a tussle between the Legislature and the


Judiciary, which ultimately culminated in the evolution of the
doctrine of the Basic Structure of the Constitution.
Shankari Prasad Case, 1951
In this case, the Supreme Court ruled that the
term ‘law’ in Article 13 includes only ordinary
laws and not Constitutional Amendment Acts.
Thus, Parliament can take away or abridge any
of the Fundamental Rights by enacting a
Constitutional Amendment Act.

Golak Nath Case, 1967


In this case, the Supreme Court reversed its
earlier stand and held that the term ‘law’ in
Article 13 also includes Constitutional
Amendment Acts. Hence, the Parliament cannot
take away or abridge a Fundamental Right
through a Constitutional Amendment Act.
24th Constitutional Amendment Act, 1971

•To counter the Supreme Court verdict in the Golak Nath Case, the
Parliament passed the 24th Constitutional Amendment Act, 1971,
which amended Article 13 and Article 368.

•It declared that the Parliament can take away or abridge any of the
Fundamental Rights through a Constitutional Amendment Act
under Article 368 and such an act will not be considered a law
under the meaning of Article 13.
Kesavananda Bharati Case, 1973

•In this case, the Supreme Court upheld the validity of the 24th
Constitutional Amendment Act and stated that the Parliament can
take away or abridge any of the Fundamental Rights.

•However, it laid down a new Doctrine of the Basic Structure of


the Constitution, according to which, the constituent power of
Parliament under Article 368 does not enable it to alter the ‘basic
structure’ of the Constitution.

•Thus, the overall position after the pronouncement of this


judgment is that the Parliament cannot take away or abridge a
Fundamental Right that forms a part of the ‘basic structure’
of the Constitution.
42nd Constitutional Amendment Act, 1976
• As a reaction to the new Doctrine of Basic Structure, the
Parliament enacted the 42nd Constitutional Amendment Act, of
1976.
• It amended Article 368 to declare that there is no limitation on
the constituent power of Parliament. Accordingly, no
amendment can be questioned in the court of law on any ground,
including that of the contravention of the Fundamental Rights.

Minerva Mills Case, 1980


• In this case, the Supreme Court invalidated the above
provision of the 42nd Constitutional Amendment Act of 1976 on
the ground that it excluded Judicial Review which is a ‘basic
feature’ of the Constitution.
Waman Rao Case, 1981
•In this case, the Supreme Court adhered to the Doctrine of Basic
Structure and clarified that it would apply to all the Constitutional
Amendment Acts enacted after the date of the Kesavananda Bharati Case
Judgment i.e., April 24, 1973.

Present Position
Thus, the present position is that the Parliament under Article 368 can
amend any part of the Constitution, including Fundamental Rights, but
without affecting the Basic Structure of the Constitution.

(Homework Time)
Elements of the Basic Structure of the Indian Constitution

The Supreme Court has not yet defined what constitutes the ‘basic
structure’ of the Constitution. It has kept evolving the elements of
basic structure through various judgments.
– Sovereign, Democratic, and Republican nature of the Indian Polity
– Secular Character of the Constitution
– Separation of powers between the legislature, the executive and the judiciary
– Federal character of the Constitution
– Unity and integrity of the nation
– Welfare State (socio-economic justice)
– Judicial Review
– Freedom and dignity of the individual
– Parliamentary system
– Rule of law
– Harmony and balance between Fundamental Rights and Directive Principles
– Principle of Equality
– Free and fair elections
– Independence of Judiciary
– Limited Power of Parliament to amend the Constitution
– Effective access to justice
– Principles (or essence) underlying fundamental rights
– Powers of the Supreme Court under Articles 32, 136, 141 and 142
– Powers of the High Courts under Articles 226 and 227
_Supremacy of the Constitution
Significance of the Basic Structure Doctrine

• Preserves Constitutional Integrity


• Maintains Supremacy of the Constitution
• Upholds Constitutional Morality
• Prevents Authoritarianism
• Ensures Stability and Consistency
• Protects Democracy
• Protects Fundamental Rights
• Promotes Judicial Review
Criticism of the Basic Structure Doctrine
While the Doctrine of Basic Structure of the Constitution has been
instrumental in safeguarding constitutional integrity and protecting fundamental
principles, it has also faced criticism from various quarters on the following
grounds:
•Lack of Constitutional Basis – One common criticism is that the doctrine is not
supported by any explicit provision in the Constitution.
•Lack of Clarity – This doctrine lacks precise definition and clarity regarding its
elements. This ambiguity opens the door to judicial discretion and interpretation,
leading to uncertainty and inconsistency in its application.
•Inherent Subjectivity – The determination of what constitutes the Basic
Structure is inherently subjective and varies based on individual judges’
interpretations which can lead to conflicting decisions by different benches of the
judiciary.
•Judicial Activism – Critics argue that the Basic Structure doctrine vests
excessive power in the judiciary, enabling judges to engage in judicial
•Violation of Separation of Powers – By allowing the judiciary
to intervene in the legislative and constituent power of the
Parliament, it leads to a violation of the principle of the
separation of powers.
•Undemocratic Nature – At times, it leads to undemocratic
practices as it allows unelected judges to override decisions
made by democratically elected representatives.
•Stifling Constitutional Evolution – By imposing rigid
constraints on the amending power of the legislature, the
doctrine may impede the evolution of the Constitution in
response to new challenges and circumstances in response to
changing societal needs.
Analysis and Future of Basic Structure Doctrine:

•Judiciary as the Primary Custodian: The Judiciary is likely the more appropriate
guardian of the Constitution compared to the Legislature.

•Challenges Traditional Judicial Review: The doctrine challenges conventional


views on the scope of Judicial Review.
•It redefines the boundaries of what judicial review can entail.

•Judiciary's Role in Protecting Democracy: The doctrine represents the


Judiciary's intervention to safeguard Indian democracy.
•The doctrine was a crucial step by the Judiciary to defend democratic values.

•Reconsideration Requires 13 Judges: Revisiting the Kesavananda Bharti case


would need a minimum of 13 judges.
•Revising the doctrine involves a significant judicial process.

•Immunity from Overruling: The doctrine cannot be overturned through


legitimate authority; only extra-constitutional means could attempt this, which
are unlikely. The doctrine is protected from being invalidated by conventional
legal methods.
Conclusion

Unlimited Amendment Powers Undermine Constitution: Granting


Parliament unlimited authority to amend the Constitution would undermine
its fundamental purpose.

Questionable Amendments for Ulterior Motives: Governments have


sometimes made controversial constitutional amendments to serve their own
interests, particularly during the Emergency Era (42nd Amendment,
1976).Absolute

Power Corrupts: Holding unchecked power can lead to corruption.

Respect for Democratic Mandate: The Supreme Court must balance respect
for the democratic mandate of the Government with upholding collective
morality for the benefit of the people.
Let’s Practice Answer Writing
Question. The ‘basic structure’ doctrine has gone a long
way in ensuring that the State doesn’t circumvent the
implicit foundational principles enshrined in the
constitution.
Critically Comment
Preamble
We, THE PEOPLE OF INDIA, having solemnly
resolved to constitute India into a SOVEREIGN
SOCIALIST SECULAR DEMOCRATIC REPUBLIC
and to secure to all its citizens:
JUSTICE, Social, Economic and Political;
LIBERTY of thought, expression, belief, faith and
worship;
EQUALITY of status and of opportunity and to
promote among them all;
FRATERNITY assuring the dignity of the individual
and the unity and integrity of the Nation;
In Our Constituent Assembly, this 26th day of
November 1949, do HEREBY ADOPT, ENACT, and
GIVE TO OURSELVES THIS CONSTITUTION
Significance of Preamble of Indian Constitution
•The Preamble of the Indian Constitution embodies
the basic philosophy and fundamental values on which
the Constitution is based. Thus, it provides a glimpse of
the Constitution of India.
•As the soul and key to the Constitution, it provides a
guiding framework for the interpretation and
implementation of the various provisions of the
Constitution.
•It serves as the guiding light for governance, providing
a moral compass for policymakers and lawmakers. It
reminds them of the overarching goals of justice,
equality, liberty, and fraternity that they must strive to
achieve in their decision-making processes.
•It symbolizes the unity and diversity of India by
acknowledging the plurality of its citizens and their diverse
backgrounds, languages, cultures, and religions.
•It serves as an inspiration for citizens, reminding them of
their rights, duties, and responsibilities towards the nation.
It instills a sense of patriotism, civic duty, and
commitment to the ideals of justice, equality, and
fraternity among the populace.
PYQ
• What is the significance of a preamble to a constitution? Bring out the
philosophy of the Indian polity as enshrined in the Preamble of the
Indian Constitution. (250 words) (2004, 30 Marks)

You might also like