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Published : September 10, 2010 | Author : suryabhansingh
Category : Constitutional Law | Total Views : 8358 | Rating :

  
suryabhansingh
Surya Bhan Singh Billawria, Advocate (B.S.L.-LL.B.) College Attended: D.E.S. Law College, Pune. University of Pune. Other Articles by same Author: 1. Euthanasia 2. Constitutional Position of Jammu & Kashmir.
 

Basic Structure of Constitution - Myth or Reality

Basic Structure of the Constitution, sometimes also called as “Basic features” of the Constitution, this doctrine was laid down by the Hon’ble Supreme Court in the case of Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461: (1973) 4 SCC 225.

A brief overview of the doctrine of ‘Basic Structure of Constitution’ may show that it is just what the hon'ble Supreme Court has held to be as the Basic Structure of the Constitution in various cases that consists of the Basic Structure of the Constitution. But such a case would give rise to ambiguity, as it implies that there is no definite yard-stick to determine whether a particular provision is part of the Basic Structure or not. Such an ambiguity gives rise to wide discretionary powers of the Judge who is to decide as to a provision being a part of the basic structure or not as it would mean that it is solely dependant upon what the person sitting as Judge, in his personal opinion, thinks as to whether the provision is part of the basic structure or not. Such wide discretionary powers have been provided against by the Constitution by way of Article 14 which guarantees Right to Equality. Hence, such a case would mean that the doctrine is itself contradictory to the provisions of the very Constitution which it seeks to protect from ‘harm’. Hence, the doctrine becomes ultra vires and hence, void. So it would mean that the Doctrine of the Basic Structure is nothing but a myth created by the hon'ble Supreme Court.

But a deeper and closer look at the doctrine and the case laws of the hon'ble Supreme Court clearly shows that there is more to it than just what first meets the eye. When we speak of the Basic Structure, we don’t speak of the Articles of the Constitution or its provisions, but the principles which they enshrine. It may be said that Basic Structure consists of the principles keeping which in mind, the Constitution was framed. As for example, Objectives specified in the Preamble, Right to Equality, Right to Life and Personal Liberty, Right to Freedom of speech and expression, Separation of Powers, etc., may be called as some of such Principles and hence may be said to form the Part of Basic Structure of the Constitution. The provisions which enshrine these principles if changed in such a way that they serve the same purpose in the same way or in a better way, it would not imply changing the Basic Structure of the Constitution. To make my point more clear, I would like to cite the following example: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” These words don’t form part of the Basic Structure but the Principle of Right to Life and Personal Liberty which is guaranteed to every person through these words is what the Basic Structure consists of. So, if they were changed to, say “No person shall be deprived of his life or personal liberty except according to due procedure established by law.”, such a change doesn’t affect the essence of the original Article/Provision and still preserves the Right to Life and Personal Liberty in the way it was intended to be. It only makes the point as to the kind of procedure to be followed, more clear and precise. Hence, though an Article which forms the Basic Structure of the Constitution is changed, it does not imply changing the Basic Structure of the Constitution. But if it were changed to, say “No citizen shall be deprived of his life or personal liberty except according to procedure established by law.” or “No person shall be deprived of his life except according to procedure established by law.”, any such amendment or change would mean changing the Basic Structure of the Constitution because it tries to change the provision and make it in such a way which was not intended by the framers of the Constitution; as in this case, to limit the scope of the provision and hence take away the Right from a particular class of persons (in the former case), or to eliminate the Right to Personal Liberty (in the latter case). And these Principles can be clearly made out by a thorough reading of the provisions of the Constitution.

From the above discussion, it can be concluded that the Basic Structure is, in fact a reality, and there is more to it than just the Supreme Court case laws. Like the Doctrine of ultra vires which seeks to prevent any law/rule that violates the provisions of the Constitution, this Doctrine seeks to negate any attempt to change the Constitution in a ‘negative’ way and hence, preserve the sanctity of the Constitution. In the end, I would like to conclude by saying that the doctrine of Basic Structure of Constitution was framed and has been very rightly implemented by the Hon’ble Supreme Court in the various cases to protect the very Principles this great Nation is built upon.
******************************************
PS: For more detailed information/ understanding on the “Basic structure of Constitution”, please see the following judgements of the hon'ble Supreme Court:
Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461: (1973) 4 SCC 225.
Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299: 1975 Supp SCC 1.
Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789: (1980) 3 SCC 625

Authors contact info - articles The  author can be reached at: suryabhansingh@legalserviceindia.com




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Article Comments

Posted by manish aryan on April 12, 2012
very nicely written i liked the example sited it made things lot easier for me to get a pragmatic view of "basic sturcture"--thanks a lot dude,keep coming up with such innovative articles


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