WHAT IS DOCTRINE OF BASIC STRUCTURE OF THE CONSTITUTION?
Recently, Vice President Jagdeep Dhankhar sparked a debate on the separation of powers between the executive and the judiciary. He criticized the Supreme Court for using the doctrine of basic structure to strike down the constitutional amendment that introduced the National Judicial Appointments Commission Act. In his maiden speech in the Rajya Sabha, Dhankhar had referred to the striking down of the NJAC Act as a “severe compromise” of parliamentary sovereignty and disregard of the “mandate of the people”. This article will examine the basic structure doctrine and its impact on the powers of the legislature.
Contents
• What is the Basic Structure Doctrine?
• Origins of the Basic Structure Doctrine
• What are the Basic Features of the Indian Constitution?
What is the Basic Structure Doctrine?
The Doctrine of Basic Structure is a form of judicial review that is used to test the legality of any legislation by the courts. It was evolved by the Supreme Court in the 1973 landmark ruling in Kesavananda Bharati v State of Kerala. In a 7-6 verdict, a 13-judge Constitution Bench ruled that the ‘basic structure’ of the Constitution is inviolable and cannot be amended by Parliament. If a law is found to “damage or destroy” the “basic features of the Constitution”, the Court declares it unconstitutional. The test is applied to constitutional amendments to ensure that the amendment does not dilute the fundamentals of the Constitution itself.
The test is widely regarded as a check on majoritarian impulses of the Parliament since it places substantive limits on the power to amend the Constitution. The Court had to examine the scope of the Parliament’s power to amend the Constitution and the legality of land reforms. The 13-judge bench gave 11 separate judgments and the doctrine was culled out as the majority opinion in the case. The Court ruled that while Parliament has vast powers to amend the Constitution, it cannot amend certain “basic features”. On land reforms, the Court upheld the amendment that removed the fundamental right to property and ruled that in spirit, the amendment would not violate the “basic structure” of the Constitution.
Origins of the Basic Structure Doctrine
The origins of the basic structure doctrine are found in the post-war German Constitution law which, after the Nazi regime, was amended to protect some basic laws. Jurist Nanbhoy Palkhivala who appeared against the government relied on the writings of Professor Dietrich Conrad in support of the basic structure doctrine.
What are the Basic Features of the Indian Constitution?
In the Kesavananda ruling, the Supreme Court cited several aspects of the Constitution that could be identified as “basic features” of the document but added that it was not an exhaustive list. For example, judicial review, rule of law, federalism, and democratic republic structure are identified as basic features. In the 2015 ruling where the Supreme Court struck down the National Judicial Appointments Commission Act and the related Constitutional Amendment, “judicial independence” was identified as a basic feature of the Constitution.
TRIVIA:
The VICE PRESIDENT OF INDIA is the deputy to the head of state of the Republic of India, i.e. the president of India. The office of vice president is the second-highest constitutional office after the president and ranks second in the order of precedence and first in the line of succession to the presidency. The vice president is also the ex officio chairman of the Rajya Sabha.
Article 66 of the Constitution of India states the manner of election of the vice president. The vice president is elected indirectly by members of an electoral college consisting of the members of both Houses of Parliament and not the members of state legislative assembly by the system of proportional representation using single transferable votes and the voting is conducted by Election Commission of India via secret ballot. The vice president also acts as the chancellor of the Panjab University and Delhi University.
Jagdeep Dhankhar of the Bharatiya Janata Party is the current vice president. He became vice president after defeating Indian National Congress candidate Margaret Alva in the 2022 Indian vice presidential election.