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General Studies 2 >> Polity

BASIC STRUCTURE OF CONSTITUTION 

BASIC STRUCTURE OF CONSTITUTION 

Source: The Indian Express
 
 

Key points

  • The landmark ruling in which the Supreme Court announced the basic structure doctrine was in the case of his Holiness Kesavananda Bharati Sripadagalvaru and the Others V state of Kerala.
  • The ruling is considered among the most consequential decisions by the Supreme Court as it set out the " basic structure" of the Constitution that Parliament cannot amend.

Kesavananda Bharati

  • Kesavananda Bharati was the head seer of the Edneer Mutt in the Kasaragod district of Kerala Since 1961.
  • He left his signature on one of the significant rulings of the Supreme Court when he challenged the Kerala land reforms legislation in 1970.

Kesavananda Bharati case 

  • A 13-judge Bench was set up by the Supreme Court, the biggest so far and the case was heard over 68 working days spread over six months.
  • The Bench gave 11 separate judgments that agreed and disagreed on many issues but a majority judgement of seven judges were stitched together by then chief justice of India S M Sikri on the eve of his retirement.
  • The basic structure of doctrine evolved in the majority judgment was found in the conclusions.
The case was primarily about the extent of Parliament's power to amend the Constitution.
  1. The court was reviewing a 1967 decision in Golaknath v State of Punjab which reversing earlier verdicts had ruled that Parliament cannot amend fundamental rights.
  2. The court was deciding the constitutional validity of several other amendments. Notably, the right to property had been removed as a fundamental right and Parliament had also given itself the power to amend any part of the Constitution and passed a law that cannot be reviewed by the courts.

Executive vs Judiciary 

  • The executive vs Judiciary manoeuvres displayed in the amendments ended with the Kesavananda Bharati case, in which the court had to settle these issues conclusively.
  • Politically, the case represented the fight for supremacy of Parliament led by then Prime Minister Indira Gandhi.

Court decision 

  • In its majority ruling, the court held that fundamental rights cannot be taken away by amending them.
  • The court said that Parliament had vast powers to amend the Constitution, it drew the line by observing that certain parts are so inherent and intrinsic to the Constitution that even Parliament cannot touch it.
  • Despite the ruling Parliament cannot breach fundamental rights, the court upheld the amendment that removed the fundamental right to property.
  • The court ruled that in spirit, the amendment would not violate the "basic structure" of the constitution.
  • Kesavananda Bharati lost the case. But as many legal scholars point out, the government did not win the case either.

Origins of Basic structure doctrine

  • The origins of the basic structure doctrine are found in the German Constitution which, after the Nazi regime was amended to protect some basic laws.
  • The original Weimar Constitution gave Parliament to amend the Constitution with a two-thirds majority was used by Hitler to his advantage to make radical changes.
  • Learning from that experience, the new German Constitution introduced substantive limits on Parliament's powers to amend certain parts of the Constitution which it considered "basic law".

Basic structure doctrine in India

  • In India, the basic structure doctrine has formed the bedrock of judicial review of all laws passed by Parliament.
  • No law can impinge on the basic structure.
  • What the basic structure is, however, has been a continuing deliberation. While parliamentary democracy, fundamental rights, judicial review and secularism are all held by courts as the basic structure, the list is not exhaustive.

The fallout of the verdict

  • Politically, as a result of the verdict, the judiciary faced its biggest litmus test against the executive.
  • The Indira Gandhi-led government did not take kindly to the majority opinion and superseded three judges J M Shelat, A N Grover and K S Hegde were in line to be appointed CJI after Justice Sikri.
  • Justice A N Ray, who had dissented against the majority verdict was instead appointed CJI.
  • The supersession resulted in a decades-long continuing battle on the independence of the Judiciary and the extent of Parliament's power to appoint judges.
  • But the ruling has cemented the rejection of majoritarian impulses to make sweeping changes or even replace the Constitution and undermine the foundations of a modern democracy laid down by the makers of the Constitution.

For Prelims & Mains

For Prelims: Basic structure of Doctrine, Kesavananda Bharati, Fundamental Rights, Right to Property, 
For Mains: What is Kesavanda Bharati case and discuss its impacts on the Basic structure of Doctrine (250 words)
 

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