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General Studies: POLITY, , BASIC STRUCTURE OF THE INDIAN CONSTITUTION, What is the Basic Structure Doctrine of Indian Constitution?,  There is no mention of the term “Basic Structure” anywhere in, the Constitution of India.,  The idea that the Parliament cannot introduce laws that would, amend the basic structure of the constitution evolved gradually, over time and many cases.,  The idea is to preserve the nature of Indian democracy and, protect the rights and liberties of people.,  This Basic Structure doctrine of the Indian Constitution helps, to protect and preserve the spirit of the constitution document., Evolution of the “Basic Structure” of the constitution, 1. Shankari Prasand Vs Union of India case:,  Challenged the 1st constitutional amendment act – widely, known for the abolition of zamindari system in India.,  According to the 1st CAA, certain laws were brought about, which curtailed the “Right to property”,  And to protect those right article 31A and 31B were inserted in, the constitution,  So, people think article 31A and 31B as an attack to their right, to property with is a fundamental right back then.,  Thus the question arose whether the fundamental right can be, amended by the Parliament.,  Judgement : according to article 13(2)(protector of FR), the, word law in it only means law in ordinary sense, i.e. which is, make exercising the legislative power and not constituent, EMA ICE, , Page 1

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General Studies: POLITY, , authority ,therefore article 368 includes the power to amend, the fundamental Right, , 2. Sajjan Singh Vs state of Rajasthan:,  17th CAA was challenged – because it was restricting the, power of the high court.,  Took a view of the earlier case i.e. Shankari Prasand case and, state that amendment of the constitution means amendment of, any part of the constitution including the fundamental right.,  Fundamental Right are nothing fundamental in nature to the, constitution even they can be amended like any other part of, the constitution.,  Even if article 368 does not give the power to amend the FR,, the legislature can do a suitable amendment and include the, power to amend FR.,  Thus the whole of the constitution can be amended including, the FR., , 3. Golakh Nath Vs state of Punjab,  17th constitutional amendment act was challenged – whether, the power to amend the FR is limited or unlimited,  Supreme Court held that the power to amend the constitution, including the FR is not unlimited power, it is subjected to, judicial review (368<13),  Supreme Court went ahead and said parliament does not have, any power to amend or abridge the FR., , EMA ICE, , Page 2

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General Studies: POLITY, ,  Further the ambit of article 13(2) was discussed and they said, the “law” used in article 13(2) includes amendment and any, amendment which violates FR is void., Parliament could not digest what had happen in the Golakhnath, case and passed the 24th CAA act., 24th CAA brought changes in both article 13 and article 386., 1. 13(4) – nothing in article 13 will applied to article 368 i.e., anything can be done under article 368 and it will not attract, judicial review under article 13., 2. 368- Previously article 368 only includes the procedure of, amending the constitution. Now, it is changed to “the power of, the parliament to amend the constitution and the procedure, thereof., Clause (3) is added to article 368 which state that nothing of, article 13 will applied to article 368.,  The crux of the 24th CAA was to exclude the applicability of, article 13 on article 368(everything in the Golakhnath case, holds no value after the 24th CAA),  Parliament can dilute the constitution including FR, , 4. Kesavananda Bharti case Vs the State of Kerala,  24th CAA was challenged.,  Scope of amendment that the parliament reserved is discussed.,  Supreme Court gave a very balance judgement., EMA ICE, , Page 3

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General Studies: POLITY, ,  SC said power to amend was already “implicit” and the 24 th, CAA merely made it “explicit”.,  However the “BASIC STRUCTURE” of the constitution, cannot be amended., -It means that the parliament can amend the entire old, constitution to form a totally new one; however it should, survived through its basic structure., Scope of the amendment: SC said it is not the intention of the, constitutional maker to use the word amendment in its widest sense;, it was their strong believed that the FR and the fundamental, structure will always survive in a welfare state., 5. Indira Gandhi Vs Raj Narain case:,  Qualify certain things a basic structure,  Inserted clause (4) and (5)of article 368, which state that even, if Part III of the constitution was amended it cannot be question, in any court.,  It clearly state that there is no limitation on the power of the, parliament to amend the constitution.,  Put an end to the controversy which among the judiciary or the, Parliament is supreme., -Parliament represents the will of the people and if the people, want to amend the constitution it can do so through the, parliament and there should not be any limitation.,  SC also state that the theory of basic structure is also very, ambiguous and vague and addition of clause (4) and (5), rectified the situation., , EMA ICE, , Page 4

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General Studies: POLITY, , 6. Minerva Mills Vs Union of India,  42nd CAA was challenged – i.e. clause (4)(5) of article 368,  SC said the two articles were attacking the basic feature of the, constitution and therefore they are declared unconstitutional., After all this cases it was declared that neither the judiciary nor the, parliament is supreme, supremacy lies with the constitution and the, parliament cannot destroy its identity., Elements of The Basic Structure:,  The present position is that the parliament under article 368 can, amend any part of the constitution including the FR but without, affection the “basic structure” of the constitution.,  However the SC is yet to define or clarify as to what constitute, the basic structure of the constitution.,  From the various judgement the following has emerge as basic, structure of the constitution or the, element/component/ingredient of the basic structure of the, constitution, 1., 2., 3., 4., 5., 6., 7., 8., , Supremacy of the Constitution, Unity and sovereignty of India, Democratic and republican form of government, Federal character of the Constitution, Secular character of the Constitution, Separation of power, Individual freedom, Rule of law, , EMA ICE, , Page 5

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General Studies: POLITY, 9. Judicial review, 10. Parliamentary System, 11. Rule of equality, 12. Harmony and balance between the Fundamental Rights and DPSP, 13. Free and fair elections, 14. Limited power of the parliament to amend the Constitution, 15. Power of the Supreme Court of India under Articles 32, 136, 142 and 147, 16. Power of the High Court under Articles 226 and 227, , EMA ICE, , Page 6