To what extent, the doctrine of basic structure has established the Judicial Supremacy in the area of "amendment of the Constitution"? Explain.
Published: July 31, 2017
The Constitution makers had given the power to amend the Constitution in the hands of the Parliament by making it neither too rigid nor too flexible with a purpose that the Parliament will amend it as to cope up with the changing needs and demands of “we the people”. The Parliament in exercise of its constituent power under Article 368 of the Indian Constitution can amend any of the provisions of the Constitution and this power empowers the Parliament to amend even Article 368 itself.
However, The Doctrine of Basic Structure, which is a judge made doctrine was formulated in order to put a limitation on the amending powers of the Parliament so that the basic structure of the basic law of the land cannot be amended in exercise of its constituent power under the Constitution.
In Minerva Mills case, it was observed that, the Indian Constitution is founded on the bedrock of the balance between Parts III and IV.To give absolute primacy to one to one over the other is to disturb the harmony of the Constitution. This harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution.
The rule of law and judicial review was held as basic structure in Waman Rao, Sampath Kumar and Sambamurthy cases. Effective access to Justice is part of the basic Structure, according to the ruling in Central Coal Fields case.
Further, in Kihoto Hollohon, the Supreme Court has declared, “Democracy is a basic feature of the Constitution and election conducted at regular prescribed intervals is essential to the democratic system envisaged in the Constitution. So is the need of protect and sustain the purity of the electoral process that may take within it the quality, efficiency and adequacy of the machinery for resolution of electoral disputes.”
In Bommai case, it was observed that “Democracy and Federalism are essential features of our Constitution and are part of its basic structure.” In the same case, the Supreme Court has ruled that secularism is a basic or an essential feature of the Constitution.
Lastly, Kesavananda Bharati was a mile stone in the constitutional history of India after GolakNath. In GolakNath, the Indian parliament was incapacitated to amend any fundamental right, guaranteed in the Constitution, while in Kesavananda case, the amendment power of Parliament was recognized, but was limited to the extent that it would not take away the basic structure of the Constitution.
Therefore, through all the landmark cases, Judiciary has tied the hands of the parliament with respect to amending powers of the parliament in the name of ‘Basic Structure Doctrine’.
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