An Analysis Of The Birth And Growth Of Basic Structure Doctrine

Akhila Balachandran, LLM, Al Azhar Law College, Thodupuzha, Idukki-Kerala

ABSTRACT

The Indian Constitution is the supreme source of law, and all rights derive from it. Our country's legal, judicial, and political systems are fundamentally governed by our constitution. It is the basic and complete law of our land. The position of constitution is higher than that of legislation because the legality of our legislation based on the constitution. The idea of basic structure preserves the Indian Constitution's tenets, which serve as the norms that direct the parliament to act according to the constitution and prevent unlawful alteration and any modification. The basic structure doctrine is basically a legal innovation designed to prevent parliament from abusing its amendment power. The main concept of this doctrine is that the fundamental elements of the Indian Constitution shouldn't be changed to the point where its distinctiveness is compromised. Even though M. K. Nambyar attempted to get it approved for the first time in 1967 in the Golakh Nath case1 under the justification on the basis of presentation in 1965 in the law faculty of Banaras Hindu University on "Implied limitations on Amending Power" by German professor Conrad his views served as the basis for Nambiar's position in this case. He asked questions like whether the Parliament may alter Article 1 to split the Union of India into Tamil Nadu and Hindustan proper through a legitimate modification under 368 of the Constitution. Could a constitutional amendment repeal article 21, or could a ruling party experiencing a loss of majority alter article 368 to vest complete authority in the President acting on the advice of the Prime Minister? Whether the parliament can alter the Constitution itself and lead to its abolition and the restoration of monarchy? 2Some of these concerns may appear simple to answer now, in light of basic structural doctrine, and even a layman with rudimentary expertise in this field could offer solutions; But unfortunately it took almost half decade for Indian judiciary to get over their resistance and rule in favor of it in the Keshavananda Bharati case3. All these questions were the beginning of birth of a new era in Indian legal system. . The Supreme Court’s initial stance on constitutional amendments was that any part of the Constitution was amendable and that the Parliament might alter any provision of the Constitution, including the Fundamental Rights in compliance with the article 368, by passing a Constitution Amendment Act 1951.