Basic Structure Doctrine

GS Papers 2

Syllabus: Indian Judiciary

Source: Indian Express, Indian Express

Context: Vice President Jagdeep Dhankar criticised the Supreme Court for using the Basic Structure Doctrine to strike down constitutional amendments by Parliament, such as the NJAC Act.

• Previously, the VP had called the striking down of the NJAC Act a “severe compromise” of parliamentary sovereignty and disregard of the “mandate of the people”

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. In a 7-6 verdict, a 13-judge Constitution Bench ruled that the ‘basic structure’ of the Constitution is inviolable, and could not be amended by Parliament.

Basic Structure Doctrine (BSD) test:

• 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.
• The test is widely regarded as a check on majoritarian impulses of the Parliament since it places substantive limits on the power to amend the Constitution.

Origin:

The origins of the basic structure doctrine are found in the post-war German Constitution law which, after the Nazi regime, was amended to protect some basic laws.

Background:

After a reversal of key legislation including land reforms; nationalization of banks; abolition of the privy purse- the Parliament brought in a constitutional amendment to give itself the power to amend any part of the Constitution and passed a law that it cannot be reviewed by the courts.

• The Court had to then examine the scope of the Parliament’s power to amend the Constitution and the legality of the land reforms.

What are the basic features of the Indian Constitution?

The content of the doctrine is derived from the several judgements of the court e.g. judicial review, rule of law, federalism, and democratic republic structure are identified as basic features.

Significance of Basic Structure:

• It is a testimony to the theory of Constitutionalismto prevent the damage to the essence of COI by the brute majority of the ruling majority.
• It saved the Indian democracy as it acts as a limitation of constituent power or else unlimited power of parliament might have turned India into a totalitarian regime.
• It helps us to retain the basic tenets of our constitutionso meticulously framed by the founding fathers of our Constitution.
• It strengthens our democracy by delineating a true separation of powerwhere the Judiciary is independent of the other two organs.
• Being dynamic in nature, it is more progressive and open to changes in time, unlike the rigid nature of earlier judgements.

Why is the doctrine criticised?

• It is not found in the text of the original Constitution itself and therefore by inventing this test the judiciary is encroaching on the Parliament’s powers.
• Senior advocate Raju Ramachandran: The power of “unelected judges” to strike down amendments to the Constitution on the basis of this doctrine is “anti-democratic and counter-majoritarian.”

Conclusion:

However, the doctrine rests on a sound structural interpretation of the Constitution. Many of the critics of the basic structure such as Justice YV Chandrachud, former Chief Justice of India found himself in the minority in the Kesavananda Bharati ruling. However, in subsequent rulings where the Court applied the test, Justice Chandrachud applied the doctrine to limit Parliament’s powers.

Insta Links

Basic Structure Doctrine

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Q. The basic structure doctrine prevents the abuse of power by the executive and legislature, preventing it from becoming a majoritarian regime. Examine. (15M)

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