Interpretation and Application of the Basic Structure Doctrine

Authors

DOI:

https://doi.org/10.53724/lrd/v6n3.11

Keywords:

The Basic Structure Doctrine,

Sacred documents of a country,

The Constitution of India,

Interpretation of Statutes,

Amendment Process of the constitution,

Constitutionality of Law

Abstract

It is universally known by sociologists that the formation and existence of a civilization is dependent on the adherence to a set of established and accepted norms and guidelines which guide not only human conduct but also human interaction. With the evolution of time a written constitution became necessary with all the laws around which the state is to be guided around penned down in a definite manner by the constituent assembly years back. But with the evolution of time the constitution also needs to be changed according to the new aspiration and goals of the society. Therefore, the power to amend the Constitution of India is vested in Parliament to amend, alter, add or change any part of the Constitution to help it keep pace with the pace of a changing society. Though this power of amending the Constitution is entrusted with the Parliament which consists of the representatives of the people it transgresses it power and alters parts of the constitution which would deface the true identity of the Constitution. In order to prevent this misuse of power the Judiciary is entrusted with the power of Judicial Review whereby it has the power to adjudicate upon the constitutional validity of all laws which are to be enforced on the Union. If in any case the Parliament violates any provision of the Constitution, it can be deemed to be ultra vires and therefore invalid. Though this power was being misused by the Parliament in a great deal in later part of the 20th century, which the Supreme Court tried to put a brake on this legislative and executive overreach by evolving the Basic Structure Doctrine in the case of Keshavananda Bharti in 1973. Which empowered to the Parliament to amend any part of the Constitution under article 368, except those features which form a part of this doctrine. This paper seeks to delve deeper into this silent Doctrine and how it was formed by the judiciary by way of its judicial journey to its formation, followed by what it is and what constitutes as a part of this doctrine from interpretating various case laws as there is no exhaustive list codifying the essential features of this Doctrine. Further defining the test which would help in defining the principles of this Doctrine followed by its application in the various cases post its evolution. Lastly analysing how this doctrine is to be interpreted

Metrics

Metrics Loading ...

References

Interpretation of Statutes by Vepa P. Sarathi, 5th Edition (2020) EBC, pg-446-447.

Synthetics and Chemicals Ltd v. State of UP, AIR 1969 SC 634.

The Doctrine of “Basic Structure” in the Indian Constitution: A Critique by Aqa Raza.

The Problem with India’s Living Constitution: https://nlsir.com/the-problem-with-indias-living-constitution/ (last visited on 3rd April, 2022).

Writ Petition (civil) 488 of 2002.

Kapila Hingorani vs. State of Bihar, Writ Petition (civil) 488 of 2002.

AIR 1973 SC 1461.

1951 AIR 458.

Article 13(2), Constitution of India, 1950.

Shankari Prasad v. Union of India AIR 1951 SC 2193.

[1965] 1 SCR 933.

[1967] 2 SCR 762.

[1965] 1 SCR 933.

AIR 1951 SC 2193.

Sparsh Upadhyay, Constitutional Amendment And Fundamental Rights [Explainer], Live Law, (16th February, 2020) https://livelaw.in/know-the-law/constitutional-amendment-and-fundamental-rights-explainer-152785?from-login=901008 (last visited on 3rd April,2022).

AIR 1973 SC 1461.

Aqa Raza: The Doctrine of “Basic Structure” in the Indian Constitution: A Critique.

MP Jain: Indian Constitutional Law, 7rd Edition, 2018, Amend ability of the Indian Constitution, 1678.

Haseeb Ahsan Javed: Basic Structure & The 21st Constitutional Amendment September 2015.

Today's Promise, Tomorrow's Constitution: ‘basic Structure’, Constitutional Transformations and the Future, (2008) 1 NUJS L Rev 417.

AIR 1973 SC 1461.

Samanta, Navajyoti; Basu, Sumitava: "Test of Basic Structure: An Analysis", [2008] NUJS Law Rw 29; (2008) 1(3) NUJS Law Review 499.

Minerva Mills v. Union of India, AIR 1980 SC 1789.

Sparsh Upadhyay, Constitutional Amendment And Fundamental Rights [Explainer], Live Law, (16th February, 2020) https://livelaw.in/know-the-law/constitutional-amendment-and-fundamental-rights-explainer-152785?from-login=901008 (last visited on 3rd April,2022).

Ibid.

AIR 1973 SC 1461.

(1973) 4 SCC 225, 346-349.

(1973) 4 SCC 225, 462, Para 608.

Aqa Raza: The Doctrine of “Basic Structure” in the Indian Constitution: A Critique.

(1973) 4 SCC 225, 512, Para 744(3).

Keshavanda Bharti v. State of Kerala, AIR 1973 SC 1461.

(1973) 4 SCC 225, 346-349.

1973 (4) SCC pp. 637-38.

AIR 1975 SC 2299.

Indira Nehru Gandhi vs. Shri Raj Narain, 1975 AIR 1590; See, Ibid at 16.

(1980) 3 SCC 625.

Sparsh Upadhyay, Constitutional Amendment And Fundamental Rights [Explainer], Live Law, (16th February, 2020) https://livelaw.in/know-the-law/constitutional-amendment-and-fundamental-rights-explainer-152785?from-login=901008 (last visited on 3rd April, 2022).

HM SEERVAI, CONSTITUTIONAL LAW OF INDIA, 3161-3162 (2001).

Minerva Mills and Ors v. Union of India and Ors, AIR 1980 SC 1789.

Ibid.

Ibid.

Constitution of India, 1950, Part IV, Directive Principles of State Policy.

Ibid.

Ibid.

Ibid.

Keshavanda Bharti v. State of Kerala, AIR 1973 SC 1461.

The Basic Structure of the Indian Constitution Compiled by Venkatesh Nayak, https://constitutionnet.org/vl/item/basic-structure-indian-constitution (last visited on 3rd May, 2022)

ci

Published

30-03-2022

Dimensions

How to Cite

Adrija Ghose. (2022). Interpretation and Application of the Basic Structure Doctrine. Legal Research Development: An International Refereed E-Journal ISSN: 2456-3870, 6(III), 29–33. https://doi.org/10.53724/lrd/v6n3.11