LBR Law College: Law College in Varanasi

Doctrine of Basic Structure Sem I Unit iv

The Supreme Court recognized the basic structure concept for the first time in the historic Kesavanand Bharati case of 1973. Ever since the evolution of constitution, the SC has become the interpreter of constitution and the arbiter of all amendments made by parliament. In this case, the validity of 25th amendment was challenged along with 24th & 29th Amendments. The majority decision overruled the Golaknath case of 1967 which held that parliament could not amend the fundamental rights of the citizens. The 13 bench majority in Kesavanand Bharati case held that Article 368, even before the 24th amendment, contained the power as well as procedure of amendment. The SC declared that art 368 did not enable the parliament to alter basic structure of the constitution and parliament could not use its amending power under article 368 to damage, emasculate, destroy, abrogate, change or alter the basic structure of the constitution. This decision went on to become the landmark decision in the evolution of constitutional law and turning point of constitutional history. Between February 1967 and April 1973, the government made a concerted bid to ensure the parliament had uncontrolled powers to amend or abridge any part of the constitution, including the fundamental rights. The Golaknath case stemmed from the family of Golaknaths challenging acquisition of their farmlands in Punjab under land ceiling laws. The Golaknaths contended that attachment of lands denied them equality and equal protection as constitutionally guaranteed. It violated their fundamental right to hold and acquire the property and practice any profession. The apex court reversed its previous verdict of 5 judge bench of Shankari Prasad case of 1951 and now declared that parliament did not have the right to amend fundamental rights, in part or in whole. The court also ruled that despite it being the parliament’s duty to enforce the directive principles of state policy, this could not be done by altering fundamental rights. In Kesavananda Bharati vs State of Kerala, as the case is called in the chronicles of Indian judicial history, the apex court pronounced its judgement. The 13 judge bench was split vertically with seven judges in majority and six against it. The Kesavananda Bharati judgement overruled the Golaknath verdict and gave back to the parliament the right to amend the constitution provided its “basic structure” was not altered. It was sweet loss to the government as it won the basic case but did not get the unrestrained powers to amend the constitution.

5 Responses

  1. The legislature has the power to Amendment to Indian constitution, According to Article 31-B. The first amendment in the year 1951, the 9th schedule, become a part of this document and was shielded from Judiciary review. The basic structure of the constitution laid down in the Kesavananda Bharti case, the court also declared that the laws inserted in the Ninth Schedule are not free from Judicial Review. Our Indian constitution law is Flexible Federation according to Dr. Ambedkar. 9th schedule can be challenged by the judiciary after the IR Coelho v. State of Tamil Nadu (2007) case.
    Does the 9th schedule be defined by any case judgment or legislature? Basic structures yet not clear regarding its doctrine and legislature Amend?

    1. First of all I am glad to know that you followed the college blog!

      The Ninth Schedule of the Constitution includes a list of Central and State laws that cannot be challenged in courts. Including the two amendment Bills in the Ninth Schedule would make them immune to legal challenges.
      It is true that The Basic Structure of constitution has yet not been defined but SC has always been vigilant in restricting powers of the legislature

    1. First of all I am glad to know that you followed the college blog!

      Just for your literary insight , SC is the interpreter of law. It has the power to struck down any law which are violative of constitutional provisions. It is legislature can make or amend laws.

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