PSIR QUESTION.. 20. Explain the evolution of doctrine of basic structure and what are the criticisms levelled against the doctrine of basic structure?

Today's question.. Explain the evolution of doctrine of basic structure and what are the criticisms levelled against the doctrine of basic structure?

Points -

1. Define the doctrine of basic structure
2. Discuss the evolution of this doctrine
3. Criticism against such doctrine
4. Conclusion 

Answer -

●Define the doctrine of basic structure The basic structure doctrine is an Indian judicial principle that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the parliament. The basic features of the Constitution have not been explicitly defined

by the Judiciary, and the claim of any particular feature of the Constitution to be a "basic" feature is determined by the Court in each case that comes before it.

●Discuss the evolution of this doctrine The evolution of Basic Structure was a long drawn study when in Champakam Dorairajan case (1951) Supreme Court said that "law" word used in 13(2) implies only to ordinary law & not amendment. This restricted scope of Judiciary to review Constitutional Amendment Acts through Article 368. Thereby, Government of India brought 1st Constitutional Amendment Act for Article 15(4). In subsequent case, Shankari Prasad (1951), Supreme Court upheld validity of 1st Constitutional Amendment Act, and said that word "law" doesn’t include 1st Constitutional Amendment Act, and hence no judicial scrutiny of them. Similar interpretation was given in cases till Sajjan Singh case (1965). In Golaknath case (1967) Supreme Court said that Article 368 doesn’t confer power to Parliament to amend Constitution, hence Parliament can't amend Fundamental Rights. In response, Government of India brought 24th Constitutional Amendment Act where 13(4), and 368(3) were amended and it changed title of Article 368 as "Power of amendment" instead of "Procedure of Amendment" which nullified the Golaknath verdict. Eventually, it was in Keshwanand Bharti case (1973) which upheld 24th Constitutional Amendment Act, but established the doctrine of basic structure and said that further Constitutional Amendments may amend anything in Constitution apart from overriding doctrine of basic structure. The Government responded by passing 42nd Constitutional Amendment Act where 368(4), 368(5) were amended to establish that Constitutional Amendment Acts can't be challenged in court of law. Finally in 1980, in Minerwa Mills case, the matter was pushed to rest as it made 368(4), 368(5) null & void. Thus, finally establishing the supremacy of Doctrine of Basic Structure above any subsequent Constitutional Amendments.

●Criticism against such doctrine Doctrine of basic structure has been at the centre-stage of criticism since inception, there was no unanimity in the bench that gave this doctrine. It survived by singleaffirmative vote when in a 13 member bench, 6 members voted against it. Following the criticism, it is said that Judiciary is overlooking the letters of Constitution, and inventing its soul. Thus, going for metaphysical approach Basic structure disturbs the separation of power and establishes judicial sovereignty in place of Constitutional sovereignty. Judiciary is the least representative, most elitist and least accountable body, hence assuming the role of super legislature is unsuitable for democracy which is rule by people. Since the entire spectrum of Basic structure is undefined, it creates uncertainty and discretion which affects working of Executive.

●Conclude on following lines However, Zia Mody has given better understanding of the issue when she accepts that Judiciary was wrong from academic point of view, but the creation of such doctrine was need of the hour as it proved blessing in disguise. This step elevated uncertainty over tyranny and prevented India’s future to go along the authoritarian line as in other 3rd world countries.

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