Basic structure doctrine put forward 50 years ago remains effective check on politically motivated amendments
Posted Date – Tue, 4/25/23 at 12:15pm
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Any law should be dynamic because it must change according to changing times and social needs. The Constitution, which is the supreme law of any country, is no exception, although there may be certain basic characteristics or characteristics similar to human DNA, which cannot be changed under any circumstances.
When we look back at the constitution of India, we find that until almost 17 years after its entry into force, the politicians of the time believed that it was the prerogative of parliament and that parliament as well as state legislatures had the primary power to amend the constitution and this view in specific cases It was also backed up by a Supreme Court decision that passed its test of the former 16 amendments.
forward veto
However, in IC Golaknath v. State of Punjab (1967), the Supreme Court first warned against the so-called constitutional power of Parliament, holding that fundamental rights were beyond the scope of amendments. Hence the forward veto doctrine. Unable to digest this limitation, the Coalition Government at the time enacted the 24th Amendment to the Constitution, specifically amending Article 13, which defines the law for fundamental rights, and Article 368, which deals with amending constitutional powers and procedures.
The end result is that Parliament can now amend any part of the Constitution while exercising its unlimited powers, and constitutional amendments are not considered law under Article 13. The amendment itself was challenged in the landmark case of Kesavanada Bharati v Kerala (1973), in which 7 out of 13 judges advanced the fundamental structure theory, declaring that as long as the fundamental foundations and structure of the Constitution remain intact Every article of the Constitution can be amended. The majority held that while Parliament has unlimited power to amend any part of the constitution, it cannot alter its basic structure.
Basic Features
They identified, by simultaneous but separate judgments, eleven features as essential features of the Constitution, beyond the powers of Parliament to amend them, including the supremacy of the Constitution, republican and democratic forms of government, the secular character of the Constitution, powers between the legislatures Separation, executive and judiciary, democracy, rule of law, free and fair elections, and the federal character of the Constitution.
The powers are decidedly not broad enough to be abolished altogether or to such an extent that abrogation, castration, or destruction amounts to the abolition of any fundamental right or other fundamental element of the fundamental structure. Constitution and undermine its identity. Within these limits, Parliament can amend each Article. The verdict was delivered on April 24, 1973, the same day in 2023 will be the golden jubilee of historical judgments.
As of April 24, 2023, the Indian Constitution has undergone a total of 105 amendments, and the basic structure theory has been amended as many as 75 times since it was proposed 50 years ago.
Amendment challenged
Many post-Kesavanada amendments have been challenged on the grounds that they violate the fundamental structure of the Constitution. They include:
• The 39th Amendment limits judicial review of the Prime Minister’s office
• The 42nd Amendment seeks to change the equation between judicially enforceable fundamental rights and guiding principles of state policy that are not justiciable by courts, among other fundamental changes
• The 44th Amendment undoes many of the effects of the 42nd Amendment
• Introduced the 52nd Amendment to the Anti-Defection Act
• Amendment 72 establishes Panchyati Raj as the third level of administration in the village
• The 74th Amendment legalized local administration as a third level of administration in urban areas
• The 76th Amendment allowed the continuation of the 69%
• The 77th Amendment and related 81st, 82nd and 85th Amendments providing promotion retention for SC and ST employees
• The 86th Amendment provides free and compulsory education for children ages 6 to 14
• The 91st Amendment limits the size of federal and state councils of ministers
• The 99th Amendment proposes replacing the collegial system with the National Judicial Appointments Commission (NJAC) for appointments to the Supreme and High Courts
• The 101st Amendment introducing the GST regime
• The 103rd Amendment introduces an Economically Weakened Area (EWS) Reserve
The Supreme Court invoked the fundamental structure, sometimes called the fundamental character or the fundamental character doctrine, to invalidate the 39th Amendment, which the 42nd Amendment protects, on the grounds that judicial review is a fundamental character and cannot be taken away The principle of balancing rights and directives, the 99th Amendment, and the consequent NJAC on the grounds that it would affect another fundamental feature found in the other amendments, “judicial independence.”
no toys
The Supreme Court of India is probably the only court in the world that has institutionalized the principle of fundamental character, effectively but informally making important amendments through judicial interpretations, thereby limiting the amending power of Parliament. In the process, the Supreme Court demonstrated unprecedented judicial dynamism and successfully slowed down the power of the country’s political organs to amend at will.
It has now become quite common to test the validity of even ordinary laws on the touchstones of fundamental structural theory. In formulating this theory, Supreme Court justices referred to the intent of the framers of the Constitution and the goals of the Constitution reflected in the Preamble. The majority identified 11 features as essential features of the Constitution. In a few cases, the Supreme Court has also attracted criticism for omissions of basic structures through judicial interpretations. For example, while the right to judicial review was recognized on the one hand as a fundamental feature in the 1970s, it was not invoked for laws in Schedule 9 to exclude them from judicial review until 2007, i.e. 34 years after the implementation of the Basic Law structure The birth of the doctrine.
Also citing “judicial independence” as a fundamental feature, and extending to their own cause, to appoint top judiciary judges to overturn the 99th Amendment and the NJAC. Leaving aside these few controversies, it can be said that the basic structure doctrine has served its purpose well over the past 50 years. One can now reasonably hope that the doctrine will continue to be effective in deterring future politically motivated amendments that may arise from undue demands by a majority of the population of the world’s most populous country. As fundamental rights cannot be the plaything of the majority, neither can the sacred document known as the Constitution.
