The Basic Structure Doctrine: Keeper Or Halter

Prof. Juli Jha, KLE Society's College of Law

ABSTRACT

In Keshavananda Bharati v. State of Kerala, a 13-judge Constitutional Bench declared in 1973 that Article 368 of the Constitution did not provide Parliament the authority to change the fundamental structure of the instrument. In order to ensure that there was some level of rigidity in the Constitution, the Indian Constitution's framers created a written version of it. Additionally, under Article 368, the Parliament was given the authority to change to get around any future issues that might arise with the Constitution's operation. To maintain a constitution’s normative status as a higher law that restricts temporary legislative majorities of the country, the degree of flexibility it embraces must be balanced. Although, the Constitution's Article 368 does not explicitly forbid the parliament from amending the document, the Supreme Court ruled in Keshavananda Bharati v. State of Kerala (1973) that the legislature was not permitted to change the "Basic Structure or Framework" of the Constitution. The idea has been the subject of heated dispute ever since it was introduced, and it has remained a key element of contemporary institutional conflicts over the identity and evolution of the Constitution. The foundation for judicial scrutiny of constitutional changes is the main concept, which has changed over time in numerous ways. As it is not present in the Constitution's text, the legitimacy of the term "basic structure" and the theory that underpins its doctrinal formulation are still viewed as abstract concept even after 50 years of its pronouncement This paper discusses the evolution and use of the notion of basic structure as a constitutional safeguard and also highlights the power tussle around this theory.