Background of the Basic Structure Doctrine

Even though India gained independence in 1947, there seems to be an enduring hangover of colonial thinking. This is evident in the heavy reliance on foreign judgements. The perception exists that judgements delivered abroad, especially in Western countries, are superior to those delivered in India.

Learn more about the Basic Structure Doctrine and related cases, in the linked article.

The Basic Structure Doctrine has been shaping the constitutional narrative in India since April 24, 1973. However, the concept was relatively unknown in India before this date. Interestingly, the doctrine was already in practice in Germany, and the principles were adapted and introduced into Indian constitutional law.

The Supreme Court of India has invoked this principle in numerous cases, but has often grappled with defining the true scope and extent of this principle. The origins and resources of the basic structure remain unclear, and the interpretation of it varies.

As Justice Mathew noted in the case of Indira Nehru Gandhi V Raj Narain, the basic structure concept is vague and indefinite, making it difficult to determine the validity of an ordinary law based on this concept.

Despite being introduced in 1973, there is still confusion about what exactly constitutes the basic structure. In the case of I.R. Coelho V State of Tamil Nadu , the Constitutional Bench attempted to lay down concrete criteria for the application of the basic structure principle, but doubts still persist.

The judgement delivered by Justice Sikri in Kesavananda Bharti’s case is a notable example of the presence of the basic structure concept.

In this case, Justice Ray observed that all provisions of the Constitution are essential and no distinction can be made between essential and non-essential features from the point of view of amendment unless explicitly stated in the Constitution.

The Doctrine of Implied Limitations

The concept of implied limitation on the power of amendment of the Constitution is somewhat nebulous. This concept has introduced elements of uncertainty and vagueness when it comes to amending the Constitution. The framers of the Constitution intended to use express words and in the absence of any words that may explicitly or by necessary implication point to the existence of limitations on the power of amendment, it is not possible to read such limitations.

The Basic Structure theory is often criticised as a “vague and undefined concept”. This theory has shifted the balance of power decisively in favour of the judiciary at the expense of the Parliament. Noted jurist Fali S. Nariman agrees with the criticism that, having propounded the basic structure theory, the guardians of the Constitution have become guardians over the Constitution.

While judicial review is fundamental to the rule of law, the court should not consider itself as a “super legislature” and sit in judgment on the policies adopted by the legislature.

Laws are not static; they evolve with time and circumstances. They undergo changes and take different forms. This process of evolution is co-terminus with human society. The creation of concepts like the basic structure can create apprehensions and doubts. It is the collective responsibility of the nation to uphold laws and conduct themselves as a law-abiding nation.