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Basic Structure of Constitution of India a comment

Amendments in constitution at time become necessary to adapt to the changing needs of national development and strength, to overcome the difficulties which may encounter  in future in working of the constitution and to realize any popular demand for changing the political system e.g State reorganization, provisions of ST SCs, lowering of age for voting etc.

However the amendment of constitution often been used to achieve political purposes or to override judicial verdicts.

For providing the compatibility of Constitution with the changing society needs , constitution maker provide the  Art 368- Power of Parliament to amend the Constitution and procedure therefor

for the purpose of amendment the provisions of constitution fall under 3 categories.

(a)  Amendment by Simple Majority.

(b)  Amendment by special Majority.

(c)   Amendment by special majority and rectification by states.

Sankari parsad V/s Union of India AIR 1951 SC 455

This is the case which in route the theory of Basic Structure, in this case SC held that

  • The power to amend the Constitution including the fundamental rights is contained in the Art 368,
  • And that the world Law in Art 13 includes only an ordinary law and does not include constitutional amendment which is made in exercise of constituent power.

In Sajjan Singh v/s State of Punjab, SC held that the world amendment of constitution means amendment of all the provisions of constitution.

Golak Nath V/s State of Punjab AIR 1971 SC 1643

  • SC held that Parliament cannot amend the FR,
  • Rejection of argument- Amendment of Constitution was a Sovereign Power and that did not permit any implied limitation.

Keshavanand Bharti’s V/s State of kerela AIR 1973  SC 1461

This is the case which emerge the theory of Basic Structure first time.

  • The Golak Nath Case  was overruled in this case, and SC held that Art 368 ever before 24th Amendment contained the power as well as procedure of amendment.
  • The Parliament has a wide powers of amending the constitution but these powers has not the unlimited nature, and does not include the power to destroy or abrogate the “Basic feature of constitution under article 368.

Basic Structure Theory-

Ac to Sikri , CJ, the basic structure was build on the basic foundation i.e. the freedom and dignity of the individual, the feature of BS T are:

  1. a. Supremacy of Constitution.
  2. b. Republican and Democratic form of Government and sovereign of the country.
  3. c. Secular and federal character of Constitution and
  4. d. Separation of power between Legislature, executive and Judiciary.

Ac to Shelat and Grover, J.J also included :

  1. a. Fundamental Right
  2. b. Directive Principle.

Indira Gandhi V/s Raj Narain AIR 1975 SC 2299

In this case 39th Amendment 1975 was passed by parliament for validating with retrospective effect the election of PM Indira Gandhi which was declared invalid by Allahabad High Court on the ground of having committed corrupt practice. Anew article 329 A has been added  that provided that the election of a person who hold the office of PM can be challenged only before such a body or forum as may be established by Parliament by law and not in court.

The SC in this case enhance the list of Basic Structure which was emergence in Keshavanand Bharti’s Case :

  1. a. Sovereign democratic republic status
  2. b. Equality of status and opportunity of an individual
  3. c. Secularism and freedom of conscience and religion
  4. d. ‘government of laws and not of men’ i.e. the rule of law

Minerva Mills V/s  Union of India AIR 1980 SC  1789

Struck down clauses (4) and (5) of the article 368 inserted by 42nd Amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the constitution. It was ruled by court that a limited amending power itself is a basic feature of the Constitution

L. Chandra Kumar case

“That the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure“.

Conclusion
Now we can say, there is no hard and fast rule for basic feature of the Constitution. Different judge keep different views regarding to theory of basis structure. No law can be enacted or amended in a manner that violates the spirit of the preamble.



Source by Naveen Kumar Shelar

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