Basic structure doctrine: Difference between revisions

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In ''Kesavananda'', Justice [[Hans Raj Khanna]] propounded that the [[Constitution of India]] has certain ''basic features'' that cannot be altered or destroyed through [[amendments to the Constitution of India|amendments]] by the [[Parliament of India]].<ref name=hindu-basic-features>{{cite news|url=http://hindu.com/2004/09/26/stories/2004092600491600.htm|title=The basic features|date=2004-09-26|access-date=2012-07-09|archive-url=https://web.archive.org/web/20120725005100/http://hindu.com/2004/09/26/stories/2004092600491600.htm|archive-date=2012-07-25|newspaper=[[The Hindu]]|url-status=dead}}</ref> Key among these "basic features", as expounded by Justice Khanna, are the [[Fundamental rights in India|fundamental rights]] guaranteed to individuals by the constitution.<ref name=hindu-basic-features/><ref name=ik-257876>{{cite web|url=http://www.indiankanoon.org/doc/257876/|title=Kesavananda Bharati .... vs State Of Kerala And Anr on 24 April, 1973|publisher=Indian Kanoon|access-date=2012-07-09|archive-url=https://web.archive.org/web/20141214053355/http://indiankanoon.org/doc/257876/|archive-date=2014-12-14|url-status=live}}</ref><ref name=frontline-revisiting>{{cite news|url=http://www.hindu.com/fline/fl2901/stories/20120127290107100.htm|title=Revisiting a verdict|publisher=Frontline|date=Jan 14–27, 2012|volume=29|issue=1|access-date=2012-07-09|url-status=dead|archive-url=https://web.archive.org/web/20131203063934/http://www.hindu.com/fline/fl2901/stories/20120127290107100.htm|archive-date=2013-12-03}}</ref> The doctrine thus forms the basis of the power of the Supreme Court of India to review and strike down constitutional amendments and acts enacted by the Parliament which conflict with or seek to alter this "basic structure" of the Constitution. The basic features of the Constitution have not been explicitly defined by the Judiciary, and the claim of any particular feature of the Constitution to be a "basic" feature is determined by the Court in each case that comes before it.

The Supreme Court's initial position on constitutional amendments had been that any part of the Constitution was amendable and that the Parliament might, by passing a Constitution Amendment Act in compliance with the requirements of article 368, amend any provision of the Constitution, including the Fundamental Rights and article 368. That the Constitution has "basic features" was first theorised in 1964, by Justice [[Janardan Raghunath Mudholkar|J. R. Mudholkar]] in his dissent, in the case of ''Sajjan Singh v. State of Rajasthan''. He wondered whether the ambit of Article 368 included the power to alter a basic feature or rewrite a part of the Constitution. He wrote, {{quotation|It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Article 368?|author=|title=|source=}}

In 1967, the Supreme Court reversed its earlier decisions in ''[[I.C. Golak Nath and Ors. vs. State of Punjab and Anr.|Golaknath v. State of Punjab]]''. It held that Fundamental Rights included in Part III of the Constitution are given a "transcendental position" and are beyond the reach of Parliament. It also declared any amendment that "takes away or abridges" a Fundamental Right conferred by Part III as unconstitutional. In 1973, the basic structure doctrine was formally introduced with rigorous legal reasoning in Justice [[Hans Raj Khanna]]'s decisive judgment in the [[landmark decision]] of ''[[Kesavananda Bharati v. State of Kerala]]''.<ref name=ik-257876-316>{{cite web|url=http://www.indiankanoon.org/doc/257876/|title=Kesavananda Bharati ... vs State Of Kerala And Anr on 24 April, 1973|at=Para. 316|publisher=Indian Kanoon|access-date=2012-06-24|archive-url=https://web.archive.org/web/20141214053355/http://indiankanoon.org/doc/257876/|archive-date=2014-12-14|url-status=live}}</ref> Previously, the Supreme Court had held that the power of Parliament to amend the Constitution was unfettered.<ref name=hindu-basic-features/> However, in this landmark ruling, the Court adjudicated that while Parliament has "wide" powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution.<ref name=ik-257876-787>{{cite web|url=http://www.indiankanoon.org/doc/257876/|title=Kesavananda Bharati ... vs State Of Kerala And Anr on 24 April, 1973|at=Para. 787|publisher=Indian Kanoon|access-date=2012-07-09|archive-url=https://web.archive.org/web/20141214053355/http://indiankanoon.org/doc/257876/|archive-date=2014-12-14|url-status=live}}</ref>