Wednesday, 26 January 2022

Basic Structure Doctrine

 Basic Structure of the constitution

By Shreya Verma

Basic Structure of anything is its core around which that whole thing has been structured. With respect to the constitution of India, the concept evolved in 1970’s and 80’s and has not been fully evolved yet. The concept of basic structure has not been defined anywhere in the constitution. It was first noted by the hon’ble Supreme court in the landmark judgement-H.H. Keshavananda Bharti Sripad Galvaru vs. State of Kerala (1973) SC. That whole of the Constitution can be amended except for its basic structure. The court also noted in the said case that it is impossible to define as to what all can be said to be the basic structure and it is to be decided by the court as and when a case is brought before it. However, it laid down some of the key features of the constitution which can be termed to be its basic structure like

 ->the unity and sovereignty of India

 ->democratic and Republic form of government 

->federal character of the Constitution 

->Supremacy of the Constitution 

->secular character of the Constitution 

->separation of power 

->individual freedom 

->fundamental right to life and personal liberty 

The doctrine of basic structure forms the substantive restrictions upon the parliament's power to amend. Indian Constitution being a flexible one, allows amendments and since its formation, it has been amended over a hundred times in a period of seven decades.

Also, in M. Nagaraj vs. Union of India (2006) SC the Hon’ble Supreme Court held that the concept of basic structure is about the theory of overarching principles, which are, certain systematic principles that cut across the entire constitution and which provide coherence to the constitution. The court also gave the 'essence of right test' that deals with finding out the essence behind the formation of an act or rule for example essence of having the fundamental right of equality in constitution is ‘socialism’, which is one of the basic structures or core principles of the constitution .

After Kesavananda Bharti Judgment, the scope of basic structure was extensive expanded in the cases like in Indira Nehru Gandhi v. Raj Narain case (1975), Minerva Mills v. Union of India (1980), S.R. Bommai v Union of India (1994) I.R. Coelho vs. State of Tamil Nadu (2007). Recently, the principle was invoked when in 2015 when the National Judicial Appointments Commission (NJAC) was declared to be null and void as against the basic principle of judicial overreach. Also, the protests against CAA as against right to equality, Right to equality and liberty based verdicts like Sabrimala case, or Navtej Singh Johar case all are examples as to how basic structure doctrine has helped in protecting the constitution from losing its essence.

Some of the other principles which can be considered to be the basic structure are- Rule of law Supremacy of the constitution, separation of power, free and fair elections, powers of high court under article 226 and 227, limited power of Parliament to amend the constitution the trinity of liberty, equality and fraternity, socialism, secularism and so on. The list is not exhaustive as has been noted by the apex court. The reason behind the principle being to protect the sanctity of the constitution. This guard of basic structure as laid down by the judiciary has helped to protect the essence of the constitution from the hands of the legislature. 



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