Q.282) Discuss the evolution of Basic structure doctrine. (10mark) (150words)
The phrase ‘basic structure’ itself cannot be found in the Constitution. The Supreme Court recognised this concept for the first time in the historic Kesavananda Bharati case in 1973.
Evolution of Basic structure doctrine
- The First Constitution Amendment Act, 1951 was challenged in the Shankari Prasad vs. Union of India case. The Supreme Court held that the Parliament, under Article 368, has the power to amend any part of the constitution including fundamental rights.
- In the Golaknath case, 1967 Supreme Court ruled that Parliament could not curtail any of the Fundamental Rights in the Constitution.
- The Parliament passed the 24th Constitution Amendment Act in 1971. The act gave the absolute power to the parliament to make any changes in the constitution including the fundamental rights.
- In Kesavananda Bharti case, 1973 the Supreme Court upheld the validity of the 24th Constitution Amendment Act by reviewing its decision in Golaknath case. The Supreme Court held that the Parliament has power to amend any provision of the constitution, but doing so, the basic structure of the constitution is to be maintained. But the Apex Court did not define the the basic structure.
Over the period, Judiciary have added various features under Basic Structure doctrine. The basic features of the Constitution are as follows:
1. Supremacy of the constitution
2. Republican and democratic form of government
3. Secular character of the constitution
4. Federal character of the constitution
5. Separation of power
6. Unity and Sovereignty of India
7. Individual freedom
Q.283) “Indian Constitution is both rigid and flexible.” Examine this statement in light of procedure of amendment. (15mark) (250words)
Flexibility or rigidity of the constitution depends on the Amendment procedure of the constitution. British constitution is flexible while constitution of USA is rigid. However, Indian Constitution is both rigid and flexible.
The indian constitution can be amended by three different ways – by a simple majority in the Parliament , by a special majority in Parliament or by a joint initiative of Parliament and State Legislature.
- A number of provisions in the Constitution can be amended by a simple majority of the two houses of Parliament outside the scope of Article 368. Eg. Formation of new states and alteration of areas, boundaries or names of existing states, Abolition or creation of legislative councils in states.
- The majority of the provisions in the Constitution need to be amended by a special majority of the Parliament. Eg. Fundamental rights and DPSPs.
- Those provisions of the Constitution which are related to the federal structure of the polity can be amended by a special majority of the Parliament and also with the consent of half of the state legislatures by a simple majority. Eg. Any of the lists in the Seventh Schedule, Representation of states in Parliament.
- Also, Basic Structure doctrine and Judicial Review powers have made Amendment procedure rigid.
In this way, Indian Constitution is both rigid and flexible.