Legitimacy of the basic structure

Legitimacy of the basic structure

News: The article discusses the foundations of basic structure and its legitimacy.

Facts:

• More than 45 years have passed since the Supreme Court ruled in Kesavananda Bharati v. State of Kerala that Parliament’s power to amend the Constitution was not unlimited, that was limited by Constitution’s basic structure.

Criticisms of the basic structure:

• The basic structure doctrine has no basis in the Constitution and finds no mention anywhere in the Constitution.
• The doctrine accords the judiciary a power to impose its philosophy over a democratically formed government, resulting in “tyranny of the unelected”.

Arguments in support of basic structure:

• If a legislature were given the widest of powers to amend the Constitution, its authority was always subject to a set of inherent constitutional constraints. Parliament, therefore, cannot make changes that had the effect of overthrowing or obliterating the Constitution itself.
• How might we react if the legislature were to amend Article 1, for example, by dividing India into two. “Could a constitutional amendment, abolish Article 21,” removing the guarantee of a right to life? 

In Kesavananda Bharti case, Court observed that any amending body organized within the statutory scheme cannot by its very structure change the fundamental pillars supporting its Constitutional authority. An amendment can only alter the form of existing Constitution and not an altogether new and radical Constitution.

Article 368 grants Parliament the power to amend the Constitution, making it clear that on the exercise of that power “the Constitution shall stand amended”. Therefore, after amendment “the Constitution” has to remain, naturally a change made under Article 368 cannot create a new constitution.