Doctrine Of Basic Structure: A Critical Analysis With Special Reference To Meta-Constitution

Doctrine Of Basic Structure: A Critical Analysis With Special Reference To Meta- Constitution In India

Nawajish Alam, Assistant Professor (Law), Binoda Law College, Durgapur, West Bengal

“In this free trade of Constitutional ideas the Indian Supreme Court has come to play the role of an exporter. This holds true with respect to at least two major innovations introduced by the court; namely, Public Interest Litigation and the Basic Structure Doctrine.” -Dietrich Conrad

ABSTRACT

It is almost fifty years in 2023 in Indian legal history for the remarkable judgment of Kesavananda Bharti case where the Apex Court innovated the doctrine of ‘basic structure’. Unfortunately, in India, little acknowledgement of that debt we owe to the distinguished German scholar Professor Dietrich Conrad- real architect behind the basic structure doctrine. The Constitution of India is a dynamic governing-document which also required to be changed to meet up the changing needs of the society. Further, article 368 not only provides the procedure to amend the Constitution but also entrusted the constituent power to amend ‘any provision’ of the Constitution in the hands of Parliament. On the other hand, the doctrine of basic structure is purely a judicial innovation propounded by the Apex Court in Kesavananda Bharti case which has no textual basis in the Constitution itself. The notion of Meta- Constitution is materialized from judicial interpretations of the supreme law of the land where the words are silent. In other words, Meta -Constitution represents those set of rules or principles evolved through judicial interpretations which also have no textual basis like basic structure doctrine. In this paper, the researcher has adopted the doctrinal method for collecting information of data through secondary sources like books, websites, articles, journals, judgments and internet sources. This paper attempts to make a critical analysis of the doctrine of basic structure and also considers the recognition of basic structure doctrine as Meta-Constitution in India.

Keywords: Constitution, Meta-Constitution, Basic Structure, Amendment, Constituent power Rule of Law, Parliament, Implied limitation.