By Shivi Khare
Article 368 of the constitution of India talks about the power of the parliament to amend any provisions of the constitution, this power to amend includes the amendment in article 368 also. But there is a limitation or a restriction that is put upon the amending powers of the parliament through a doctrine called the BASIC STRUCTURE DOCTRINE.
Basic structure doctrine states that there are certain basic features of the constitution that cannot be altered or amended by the parliament to reduce its scope of it. Basic features include the fundamental rights but the complete list of these basic features is not explicitly defined. This doctrine is a judicial principle (unwritten) that was introduced to us in the landmark decision of Kesavananda Bharati v. State of Kerala by justice Hans raj Khanna. The understanding and the applicability of the basic structure doctrine can be ambiguous in nature. Various jurists have given different definitions for the basic structure.
In the Minerva Mills case, justice Chandrachud observed that the “Indian constitution is founded on the bedrock of the balance parts III AND IV. To give absolute primacy to one to one over the other is to disturb the harmony of the constitution. This harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the constitution.”
The rule of law and judicial review was held as a basic structure in cases like S.P. Sampath Kumar v. Union of India and P. Sambamurthy and others v. state of Andhra Pradesh.
The unity and integrity of the nation and parliamentary system were held as the basic structure in the case of Raghunath Rao v. Union of India.
The cases R. Bommai v. Union of India and Poudyal v. Union of India held that Secularism Democracy and Federalism are essential features of our Constitution and are a part of the basic structure.
In the case Kihoto hollohan v. Zachillhu it was held that Democracy is a part of the basic structure of our Constitution, and rule of law; and free and fair elections are basic features of democracy.
I completely support this doctrine and agree with it because its properties enable us to preserve what is there (as in the rights of the people) and also help us to form new provisions which will help us provide better facilities and proper justice to the people. If we follow this doctrine there is a complete guarantee that all amendments that will be happening in the future will be providing the utmost maximum rights to the people who deserve it and need it.
But this doctrine of basic structure has always been subjected to intense debates in the constitutional field with regards to its origin and credibility. It can be criticized as there is a lack of basic in the basic structure doctrine which implies that the supreme court will have power against the amendments that will be made to the constitution by parliament. This power of the supreme court is like a veto power wherein without the supreme courts’ approval the amendment cannot be passed. It depends only on the discretion of the Supreme Court how to use the power of this doctrine. Until now, Supreme Court has used it for the welfare of the public and to uphold the spirit of the Constitution.