Salient features of Indian Constitution

Judicial review and basic structure

The constitution of India makes explicit provisions for judicial review. Art 13, 32, 226, 131
(Original jurisdiction of SC), 136 (Special leave petition) give scope for judicial review. In any
polity driven by a constitution, the judiciary can interpret the laws and the constitutional
provisions.
While interpreting the constitution, the judiciary can resort to literal interpretation or liberal
interpretation. Literal interpretation means that the judiciary will take the traditional approach
and will limit itself to the text of the constitution. On the other hand liberal interpretation
involves purposive interpretation. It takes into account factors which are political and social
in nature. When the judiciary interprets the constitution it does not determine policy matters.
Judiciary refers to the text of the constitution to reduce the ambiguity. It can also refer to the
non enforceable part of the constitution like DPSPs. The SC can also resort to the preamble.
In many cases the interpretation has been possible only after revisiting the constituent
assembly debates. Finally the SC can also refer to international judgements.

Q- Does parliament have unlimited power to amend the

constitution?
Ans- Ever since the constitution was first amended in 1951, the true extent of parliament’s
power to amend the constitution has been questioned. A/c to Dietrich Conrad Parliament is a
creature of the constitution; it cannot make changes that have the effect of overthrowing the
constitution. A/c to Nani Palkiwala the parliament cannot cease to be the creature of the
constitution and become its master.

Doctrine of Basic Structure

The basic structure of the constitution is considered as the living spirit of the constitution. It
was explicitly recognised in Kesavananda Bharati case 1973. In Kesvananda Bharati case
the SC observed that “a constitution is a living system as the human body. Various organs
develop and decay yet the basic structure i.e. the soul, remains intact. Similarly parliament
can amend the constitution but it cannot alter the basic structure. If the basic structure is
changed, the whole constitutional setup will demolish. However the constituent of basic
structure was not fixed by judiciary. It remains an open ended list to be modified by judiciary
on case by case basis.

Evolution of the doctrine of basic structure

1. Shankri Prasad vs Union of India, 1951

This was the first case questioning the amending power of the parliament. The Right
to Property guaranteed by Art 31 was at the centre of the issue.
 Approach of the SC- The SC ruled that the amending power of
parliament under ARt 368 also includes power to amend FRs. The
word law in Art 13 includes only the ordinary laws and not the
constitutional amendments. Therefore the parliament can take
away any FR through a constitutional amendment.

2. Sajjan Singh vs State of Rajasthan, 1965

This case was regarding the 7th constitutional amendment which further diluted Right
to Property with the help of 9th Schedule.

Approach of the SC- The SC maintained the position of Shankri

Prasad case by differentiating between ordinary law and the
constitutional law.

3. Golaknath vs State of Punjab, 1967

The 17th Amendment was challenged in this case. The SC ruled that parliament has
no power to take away the FRs even through a constitutional amendment. The term
Basic Structure was first used in this case by NK Nambyear. There was change in
the approach of the SC

Approach of the SC

The judgement overruled its own decision in Shankari Prasad and

Sajjan Singh case. The SC held that the term law includes
constitutional amendment as well. Art 368 does not give
substantive power to amend the constitution. It only contains the
procedure for amendment. Which will be subjected to judicial
scrutiny under Art 13.

Response of the govt

A. 24th Amendment- It made changes in Art 13 and Art 368. A/c to 24th Amendment clause
4 was inserted in Art 13, a/c to which Art 13 will not apply for any changes made through Art
368. Parallely Art 368 was also amended explicitly saying that 368 talks about the power of
parliament to amend the constitution.
B. 25th Amendment, 1971- It introduced Art 31c to implement the Directive Principles given
in 39B and C. 39B and C talks about Uniform distribution of wealth.
In Kesavananda Bharati case of 1973, the validity of 24th and 25th amendments was called
into question. It also involved the 29th Amendment, which talked about placement of 2 land
reform acts in Kerala in the 9th Schedule. The SC ruled that there’s a difference in ordinary
law and constitutional law. While parliament can amend any ordinary law, the amendment of
constitutional provision is subject to the doctrine of basic structure. This doctrine gives huge
power to the judiciary and therefore scope for judicial activism.

Analysis of the Basic Structure doctrine

Almost 50 years after the judgement, the idea of basic structure still remains an abstract
idea. It was nowhere mentioned in the Indian constitution and is a result of judicial
imagination. Such expansion of the role of judiciary has been criticised for overlooking the
letters of constitution and going for a metaphysical approach rather than a legal approach.
This doctrine has no basis in the constitution therefore former law minister Arun Jaitly termed
this as “tyranny of the unelected” in his criticism of the NJAC judgement of 2015.
Recently the Vice President Jagdeep Dhankar criticised the basic structure doctrine at 83rd
All Indian Presiding Officers Conference. A/c to him the 13 judge bench judgement in
Kesavananda Bharati case diluted parliamentary sovereignty. The doctrine was established
through a thin majority. This undermines the will of the people. In a democratic society, a/c to
VC Dhankar, the basic of any basic structure has to be the supremacy of the mandate of
people. Judiciary cannot legislate in as much legislature cannot script a judicial verdict. A/c
to him democracy sustains when legislature, executive and judiciary act in tandem towards
constitutional objectives.
The doctrine of basic structure is also criticised because judiciary remains the least
representative, most elitist and least accountable body. And therefore it is not suggested for
the judiciary to act as a super legislature.
The doctrine of basic structure does not give the list of the components of basic structure
which still remains open ended. It creates uncertainty and gives vast discretion to judiciary
for constitutional interpretation. Therefore while the parliament was criticised for destroying
the constitution, the judiciary has gone to the extent of creating the constitution.
A/c to former Attorney General Solly Sorabji, constitutional amendments should not be
nullified by the court because they reflect the will of the people.
A/c to justice O C Reddy, in his book, “The court and the constitution of India” he said that
“Since there are no signposts signalling basic features of the constitution, every attempt to
discover a basic feature becomes a voyage of discovery”.
However the doctrine is considered as a safety valve to protect Indian democracy. It makes
the Indian SC the guardian of the constitution.
Suhrith Parthasarthy argues that the SC’s interpretation of basic structure is occasionally
criticised but to reject the doctrine altogether is not recommended. It is like throwing the baby
out with the bathwater.
As per Nani Palkhiwala, doctrine of basic structure should not be criticised just because it
has judicial origin. A/c to him people are not associated with the amending process. In the
context of the Indian political system, the Indian parliament cannot be equated with the will of
Indian people.

Conclusion
A/c to Granville Austin in his book “Indian Constitution: Cornerstone of a Nation” argues that
any democracy is based on the balance between legislature, executive and judiciary.
The Doctrine of Basic structure has proved to be a blessing in disguise as it has checked
authoritarianism of the government. It has stopped India from going on the path of other 3rd
world countries. Therefore it is recommended that the doctrine should be retained as a
safety valve.
The CJI DY Chandrachud recently compared the doctrine of basic structure to the north star.
It has helped the Indian judiciary in relevant interpretation of the constitution.
Zia Modi in her book “Ten judgements that changed India” adopts a non conventional
approach towards doctrine of basic structure. A/c to her it prevented executive dictatorship,
strengthened constitutionalism and established the supreme court as the true guardian of
the constitution. The decision of Kesavananda Bharati case has helped India to choose
uncertain democracy over certain tyranny. Therefore Doctrine of basic structure should be
an integral part of Indian judiciary.