Introduction
Recently Chief Justice of India Justice Chandrachud has made a statement regarding the basic structure of the Constitution of India that it is like a North Pole Star which acts as an unfailing guide to the whole system of governance. This is in regards to the recent criticism of basic structure by the Vice President of India. It ceases the unlimited power of the parliament to amend the Constitution. It along with the constituent assembly debate gives direction to judges for further interpretation and implementation of the Constitution.
In order to establish a standard understanding of what and why basic structure it can be exemplified, assume that you have a bunch of art paper and scissors and with the help of that you can make any paper cutting art but there is a chance that combination of paper and scissor can be misused in order to cut that paper in small bits in any haphazard manner and that can waste that paper similarly for minute let's assume that art paper is our Constitution and the scissor is the power of parliament under article 368 and that too can be misused, the government can amend the constitution up to whatever extent they want to, which can even restrict our fundamental rights and many such provisions, coming of such constitution in the effect will certainly destroy the basic soul of the Constitution so in order to protect any such thing further, that's why it came into force.
Background and timeline in development of this doctrine:
After the adaptation of the Constitution of India parliament has introduced the 1st Constitutional Amendment Act 1951 which introduced
a) acquisition of land by the government in order to remove inequality in the land holding along with the ceiling limit of land.[article31(A), 31(B)]
b) Restriction on article 19 with introduction of article 19(1)(g) which empowers the government to acquire any business, partially or fully.
This was challenged in Shankari Prasad V. Union of India 1951
Questioning this amendment unconstitutional under article 13 which says that no law can breach someone's fundamental right but judgement in this case put Constitutional Amendment out of the purview of article 13 and says that it only applies on ordinary laws.
Now, 17th Constitutional Amendment Act 1964,
a) Introduction of 9th schedule, laws in that cannot be judicially reviewed.
b) No case challenging different Land Reform Acts.
This was challenged in Sajjan Singh V. State of Rajasthan1964 stayed with the views of Shankari Prasad case and referred it to a higher bench.
Golaknath V. State of Punjab 1967 in which the court stated that Constitutional Amendments are not out of the purview of article 13, so it applies to Constitutional Amendment Acts.
Constitutional Amendment Acts are subject to limitation of judicial reviews.
To reverse the judgement, parliament introduced 24th Constitutional Amendment Act 1971
a. Introduced article 13(4) which says that nothing in this article will be applicable to amendments made under article 368 of COI.
b. Introduced article 368(3) says that no amendment made under this article will be covered under article 13 of COI.
This gives Parliament the ultimate power to amend the Constitution.
Other Articles by Sidharth Shankar
Challenging Constitutional Amendment Acts (24th, 25th, 26th, 29th) and judgement of Golaknath V. State of Punjab 1967 in case of Kesavananda Bharti V. State of Kerala 1973 which explicitly mentioned that 24th CAA is constitutional and fundamental rights can be amended.
But the “Basic Structure” cannot be altered, and the list of basic structures isn't exhaustive; it will be enlisted further by court referring to the constituent assembly debate and the sole intention of the members there. Further in various case laws the court has mentioned various basic structures of our constitution.
List of case laws and basic structure mentioned by court
1. Justice Sikri in Kesavananda verdict –
a. Supremacy of Constitution
b. Republican and Democratic form of Government
c. Separation of power among organs of State
d. Federal character of the Constitution
e. Secular character of the Constitution
2. Justice Shelat and Justice Grover in Kesavananda verdict –
a. The mandate to build a welfare state contained in the Directive Principles of State Policy
b. Unity and integrity of the nation
c. Sovereignty of the country.
3. Justice Hegde and Justice Mukherjea in Kesavananda verdict –
a. Sovereignty of India
b. Democratic character of the polity
c. Unity of the country
d. Essential features of the individual freedoms secured to the citizens
e. Mandate to build a welfare state
4. Justice Jaganmohan Reddy in Kesavananda verdict –
a. Sovereign democratic republic
b. Justice - social, economic and political
c. Liberty of thought, expression, belief, faith and worship
d. Equality of status and opportunity.
5. Justice Y.V. Chandrachud in election verdict of Indira Gandhi outlined four fundamental characteristics that he believed could not be altered–
a. Sovereign democratic republic status
b. Equality of status and opportunity of an individual
c. Secularism and freedom of conscience and religion
d. Government of laws and not of men' i.e. the rule of law
6. Justice H.R. Khanna in Minerva Mills case –
a. Free and fair election
b. Harmony between Part III and IV of Constitution of India
c. Limited amending power of parliament
7.In L. Chandra Kumar case –
a. The power of judicial review over legislative action vested under article 32 and 226 of the Constitution is an integral and essential part of our Constitution.
So basically to save the art paper from the misuse of the scissor the Supreme court of India has given this doctrine, even after the judgement various cases were filed challenging various constitutional provisions so in Waman Rao V. Union of India court has restricted the retrospective use of the judgement, putting in better words that any act of parliament before 24th April 1973 cannot be challenged under this. This will save the soul of our constitution from any unwanted exercise of power.
