Tracing The Evolution Of The Basic Structure Doctrine Post Kesavananda Bharati Judgment: An Analysis
- IJLLR Journal
- 4 days ago
- 2 min read
R Sushmithaa Roshini, High Court of Karnataka
Nishant Aggarwal, School of Law, Christ University, Bengaluru
ABSTRACT
A country may have a constitution but not essentially constitutionalism. Constitutionalism comes with certain principles so as to provide a better understanding of the Constitutional text. In a broader sense it can be defined as a legal limitation on the government. Our Country India, not only has a constitution but ensures it is bounded by the principles of constitutionalism. Upholding constitutionalism in a country like ours, has come a long way. The parliament in the past has tried to gain the ultimate control of the state, by including certain provisions that could come handy to express their wills rather than the framework within which the Constitution should operate. The concept of Constitutionalism though not new, had to rise up amidst the arbitrary provisions in the constitution which levied excessive powers on the parliament. Initially the Judiciary construed and interpreted the provisions of constitution in a straight way. Later on, it was deduced by the Judiciary that constitutionalism cannot be extracted from the constitution, if this is done then the purpose of constitution would collapse. Such an awakening did not occur naturally, through numerous cases that were filed during those times and through conscious expansion of judicial minds, finally it was affirmed that the power of the parliament was not expansive, it came with certain limitations.
At the first instance in Golaknath case the SC concluded that all fundamental rights were non- amendable by the parliament, thus adopted a very rigid approach, later in Kesavananda case it was decided that only certain elements characterised as basic structure could not be amendable, thus flexibility was induced. At this juncture the SC upheld the ‘basic structure doctrine’ which possessed the elements of constitutionalism. Such foundations of constitutionalism was, what marked to be ‘unamendable’ and not the remaining features. This paper attempts to interpret the effects of post basic structure doctrine. It also analyses certain landmark cases that has helped in strengthening the doctrine. It also throws insights on the amending power of the Constitution, as to how an amendment cannot be permitted to completely renovate the existing constitutional framework through a tag of appropriate adaptations.
