The Basic Structure of the Indian Constitution

The debate on the 'basic structure' of the Constitution, lying somnolent in the archives of India's
constitutional history during the last decade of the 20th century, has reappeared in the public realm.
While setting up the National Commission to Review the Working of the Constitution (the
Commission), the National Democratic Alliance government (formed by a coalition of 24 national and
regional level parties) stated that the basic structure of the Constitution would not be tampered with.
Justice M.N. Venkatachalaiah, Chairman of the Commission, has emphasised on several occasions
that an inquiry into the basic structure of the Constitution lay beyond the scope of the Commission's
work.
 
Several political parties -- notably the Congress (I) and the two Communist parties which are in the
opposition -- have made it clear that the review exercise was the government's ploy to seek legitimacy
for its design to adopt radical constitutional reforms thus destroying the basic structure of the
document.
 
Much of the public debate has been a victim of partial amnesia as even literate circles of urban India
are unsure of the ramifications of this concept, which was hotly debated during the 1970s and 1980s.
The following discussion is an attempt to chart the waters of that period rendered turbulent by the
power struggle between the legislative and the judicial arms of the State.
 
According to the Constitution, Parliament and the state legislatures in India have the power to make
laws within their respective jurisdictions. This power is not absolute in nature. The Constitution vests
in the judiciary, the power to adjudicate upon the constitutional validity of all laws. If a law made by
Parliament or the state legislatures violates any provision of the Constitution, the Supreme Court has
the power to declare such a law invalid or ultra vires. This check notwithstanding, the founding
fathers wanted the Constitution to be an adaptable document rather than a rigid framework for
governance. Hence Parliament was invested with the power to amend the Constitution. Article 368
of the Constitution gives the impression that Parliament's amending powers are absolute and
encompass all parts of the document. But the Supreme Court has acted as a brake to the legislative
enthusiasm of Parliament ever since independence. With the intention of preserving the original
ideals envisioned by the constitution-makers, the apex court pronounced that Parliament could not
distort, damage or alter the basic features of the Constitution under the pretext of amending it. 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 1973.1 Ever since the Supreme
Court has been the interpreter of the Constitution and the arbiter of all amendments made by
Parliament.


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