Fali S Nariman writes: Why we need Basic Structure

Source: The post is based on the article “Fali S Nariman writes: Why we need Basic Structure” published in “The Indian express” on 30th August 2023.

Syllabus: GS2- Indian Constitution (Basic Structure)

News: This article discusses India’s “basic structure” doctrine of the Constitution. In 1973, a Supreme Court decision introduced this principle, which limits Parliament’s power to amend the Constitution’s fundamental nature. There were attempts to challenge and overturn this doctrine, but it was repeatedly upheld by the Court.

What is the “Basic Structure” Doctrine?

Origin: The doctrine emerged in India from the landmark Supreme Court decision in the Kesavananda Bharati case in 1973. In this case, by a slim 7:6 majority, the Court held that Parliament cannot alter the fundamental nature of the Constitution, even with its amendment powers.

Definition: It restricts Parliament from changing the Constitution’s core principles.

Inspiration: Influenced by German expert Dietrich Conrad’s 1965 speech, emphasizing that a constitution’s foundational pillars shouldn’t be modified by the governing entity.

How has the “Basic Structure” Doctrine been upheld over time?

Upholding the “Basic Structure” Doctrine Over Time:

1975 Challenge: The doctrine was tested in 1973 and faced a challenge in 1975. Chief Justice A N Ray formed a 13-judge bench to reconsider it, but the bench disbanded without changing the doctrine.

Indira Gandhi’s Election: In 1975, a crucial case involved PM Indira Gandhi’s election. An amendment, Article 329A (4), aimed to support her election despite court rulings. However, the Court found this amendment unconstitutional, violating the basic structure doctrine. This ruling reinforced the doctrine’s significance.

Minerva Mills Case (1980): The doctrine’s strength was highlighted when the Supreme Court upheld it, invalidating parts of the 42nd Constitutional Amendment and stressing Parliament’s limited amending power.

IR Coelho Case (2007): A vital judgment by a nine-judge bench solidified the doctrine’s importance. The Court ruled that any law added to the Ninth Schedule (which avoids judicial review) after 1973 would undergo the basic structure test.

Parliamentary Acknowledgment: The Constitution 44th Amendment Act 1978 accepted the doctrine, affirming that specific constitutional rights couldn’t be suspended, even during emergencies. This act showcased Parliament’s recognition of the doctrine’s supremacy.