Day 7 – Q 5.The ‘basic structure’ doctrine is a shining example of judicial innovation. Do you agree? Substantiate. In what ways has the basic structure doctrine shaped India’s polity? Examine.

5. The ‘basic structure’ doctrine is a shining example of judicial innovation. Do you agree? Substantiate. In what ways has the basic structure doctrine shaped India’s polity? Examine. 

‘बुनियादी संरचना‘ सिद्धांत न्यायिक नवाचार का एक चमकदार उदाहरण है। क्या आप सहमत हैं? पुष्टी करें। बुनियादी संरचना ने किस प्रकार भारत की राजव्यवस्था को रूप दिया गया है? जांच करें।

Introduction:

The ‘basic structure doctrine’ attempts to identify the philosophy upon which a constitution is based. Basic structure doctrine, evolved by the Indian Supreme Court, through its numerous landmark judgments over the years, brings in that required factor of constitutionalism, which is critical to the upkeep of the spirit of the constitution document, to preserve, protect and maintain the thicker concept3 of rule of law, without which the constitution is but a dead letter law.

Body

‘Basic structure’ doctrine is a shining example of judicial innovation

• Application of the doctrine did not stop with the constitutional amendments but has been applied to different forms of state action in the same way as it applies to Constitutional amendments.  It has become a dependable mechanism to preserve the spirit of democracy, pursuit of social progress and the preservation of integrity of the country.  
• The basic structure doctrine is well-known and it has been judicially determined that the power of Parliament to amend the Constitution does not indeed extend to “damage or destroy” its basic structure. Therefore certain aspects of the Constitution are immutable and so bound up with the fabric of the Constitution itself, that as long as the Constitution exists, they too must necessarily exist. 
• While the Court has not delimited an exhaustive list of unamendable “basic feature”, it has variously held – inter alia – democracy, republicanism, secularism and judicial review to be part of the basic structure.
• The basic structure is not to be found in any one provision, or combination of provisions, but is found in abstract principles that explain and justify the architecture of the Constitution as a whole (for example, a combination of Articles 14, 15, 19, 25, 26, 29 and 30) would, together, constitute the principle of secularism that cannot be reduced to either one or many of them in conjunction.

Basic structure doctrine, evolved by the Indian Supreme Court, through its numerous landmark judgments over the years shaped the Indian Constitution.

• In Indira Nehru Gandhi vs. Raj Narain, Minerva Mills vs. Union of India and Waman Rao vs. Union of India., Constitution Benches of the Supreme Court used the basic structure doctrine to strike down the 39th Amendment and parts of the 42nd Amendment respectively, and paved the way for restoration of Indian democracy.
• Minerva Mills Vs. Union of India, 1980 The concept of basic structure was further developed by adding ‘judicial review’ and the ‘balance between Fundamental Rights and Directive Principles’ to the basic features
• Kihoto hollohan Vs. Zachillhu, 1992 ‘Free and fair elections’ was added to the basic features
• Indira Sawhney Vs. Union of India, 1992 ‘Rule of law, was added to the basic features.
• S.R Bommai vs Union of India, 1994 Federal structure, unity and integrity of India, secularism, socialism, social justice and judicial review were reiterated as basic features. 

However, in Kuldip Nayar v. Union of India, case Supreme Court unanimously held that, the doctrine of ‘Basic Feature’ in the context of our Constitution, thus, does not apply to ordinary legislation. In Madras Bar Association v. Union of India, the constitutional validity of the National Tax Tribunal Act, 2005, Challenged, Same view was expressed by honourable court.

Conclusion

A Constitution is a living system. But just as in a living, organic system, such as the human body, various organs develop and decay, yet the basic structure or pattern remains the same with each of the organs having its proper functions, so also in a constitutional system the basic institutional pattern remains even though the different component parts may undergo significant alternations.