Basic Structure Doctrine Flashcards
NEWS
Recently, Vice-President of India has rekindled the debate over the doctrine of separation of powers by citing the Supreme Court’s landmark 1973 Kesavananda Bharati case, which ruled that Parliament has the authority to amend the Constitution but not its basic structure.
What is the Doctrine of Separation of Powers?
Separation of powers is the division of the legislative, executive, and judicial functions of government.
Article 50 says that states shall take steps to separate the Judiciary from the Executive.
The constitutional demarcation precludes the concentration of excessive power by any branch of the government.
The Indian Constitution lays down the structure and defines and determines the role and functions of every organ of the State and establishes norms for their inter-relationships and checks and balances.
What are the Instruments of Checks & Balances?
Legislature Control:
On Judiciary: Impeachment and the removal of the judges. Power to amend laws declared ultra vires by the Court and revalidating it.
On Executive: Through a no-confidence vote it can dissolve the Government. Power to assess works of the executive through the question hour and zero hour.
Executive Control:
On Judiciary: Making appointments to the office of Chief Justice and other judges.
On Legislature: Powers under delegated legislation. Authority to make rules for regulating their respective procedure and conduct of business subject to the provisions of this Constitution.
Judicial Control:
On Executive: Judicial review i.e., the power to review executive action to determine if it violates the Constitution.
On Legislature: Unamendability of the constitution under the basic structure doctrine pronounced by the Supreme Court in Kesavananda Bharati Case 1973.
What are the Issues with the Separation of Powers?
Weakened Opposition in India: Democracy works on the principle of checks and balances. It is these checks and balances that prevent democracy from turning into majoritarianism.
In a Parliamentary system, these checks and balances are provided by the opposition party.
However, the majority of a single party in the Lok Sabha has diminished the role of an effective opposition in the Parliament.
Judiciary Being Averse to Checks & Balances: The Supreme Court has held the 99th constitutional amendment, which provided for the establishment of the National Judicial Appointments Commission as ultra-vires.
The NJAC could guarantee the independence of the system from inappropriate politicization, strengthen the quality of appointments, enhance the fairness of the selection process, promote diversity in the composition of the judiciary, and rebuild public confidence in the system.
Judicial Activism: In many recent judgments, the SC has become hyper-activist in making judgements that are deemed as laws and rules. This transgresses the domain of legislature and executive.
Executive Excesses: Executive in India is alleged of over-centralisation of power, weakening of public institutions and passing laws to strengthen law, order & security of the state but curbs freedom of expression as well.
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Since the adoption of Indian Constitution, debates have started regarding the power
of the Parliament to amend key provisions of the Constitution.
In the early years of Independence, the Supreme Court conceded absolute
power to Parliament in amending the Constitution, as was seen in the
verdicts in Shankari Prasad case (1951) and Sajjan Singh case (1965).
In both the cases the court had ruled that the term “law” in Article 13 must
be taken to mean rules or regulations made in exercise of ordinary
legislative power and not amendments to the Constitution made in
exercise of constituent power under Article 368.
This means Parliament had the power to amend any part of the constitution
including Fundamental rights.
Article 13(2) reads, “The State shall not make any law which takes away or
abridges the right conferred by this Part (Part-III) and any law made in
contravention of this clause shall, to the extent of contravention, be void.”
However, in the Golaknath case (1967), the Supreme Court held that Parliament
could not amend Fundamental Rights, and this power would be only with a
Constituent Assembly.
The Court held that an amendment under Article 368 is “law” within
the meaning of Article 13 of the Constitution and therefore, if an
amendment “takes away or abridges” a Fundamental Right conferred by Part
III, it is void.
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To get over the judgments of the Supreme Court in the Golaknath case (1967),
RC Cooper case (1970), and Madhavrao Scindia case (1970), the then
government headed by Prime Minister Indira Gandhi had enacted major
amendments to the Constitution (the 24 , 25 , 26 and 29 ).
All the four amendments brought by the government were challenged in the
Kesavananda Bharati case.
Kesavananda Bharati case
In Kesavananda Bharati case, a relief was sought against the Kerala government visà-vis two state land reform laws, which imposed restrictions on the management
of religious property.
The case was challenged under Article 26, concerning the right to manage
religiously owned property without government interference.
Question underlying the case: Was the power of Parliament to amend the
Constitution unlimited? In other words, could Parliament alter, amend,
abrogate any part of the Constitution even to the extent of taking away all
fundamental rights?
The Constitutional Bench in Kesavananda Bharati case ruled by a 7-6 verdict that
Parliament could amend any part of the Constitution so long as it did not
alter or amend the basic structure or essential features of the
Constitution.
However, the court did not define the term ‘basic structure’, and only listed a
few principles — federalism, secularism, democracy — as being its part.
The ‘basic structure’ doctrine has since been interpreted to include
the supremacy of the Constitution,
the rule of law,
Independence of the judiciary,
doctrine of separation of powers,
sovereign democratic republic,
the parliamentary system of government,
the principle of free and fair elections,
welfare state, etc.
An example of application of basic structure is the SR Bommai case (1994).
In this case the Supreme Court upheld the dismissal of BJP governments by the
President following the demolition of the Babri Masjid, invoking a threat to
secularism by these governments.
Arguments related to Basic structure
Critics of the doctrine have called it undemocratic, since unelected judges can
strike down a constitutional amendment. At the same time, its proponents have
hailed the concept as a safety valve against majoritarianism and
authoritarianism.
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Origin: The basic structure theory was first introduced by Justice Mudholkar
in the Sajjan Singh case (1965) by referring to a 1963 decision of the Supreme Court
of Pakistan.
Chief Justice Cornelius of Pakistan had held that the President of Pakistan
could not alter the “fundamental features” of their Constitution.
