#75: Basic Structure Doctrine Debate
All about Basic Structure debate you need to know for UPSC
From Indian VP to Law Minister to CJI, the Executive & Judiciary is regularly in tussle over Basic Structure Doctrine (BSD).
What's BSD? How did it come into being? What all do you need to know for UPSC? All these answers in this post! 👇🏻
Background
- Idea first propounded in Kesvananda Bharati (KB) Case 1973
- Idea: Parliament can't amend 'basic structure of basic law of the land'
- Definition: No such definition, components described in SC cases over years.
What are these components?👇🏻
They keep evolving with SC verdict in different court cases. Some of these are listed in image below:
Evolution of BSD: SC Cases & Amendments
1. Shankari Prasad (SP) Case 1951
- Parliament can amend any part u/A 368 (FRs included)
2. Sajjan Singh Case 1965
- Reiterated SP case verdict
3. Golaknath Case 1967
- Gave 'transcendental position' to FRs making them unamendable; reversed stance
1971: PM Indira returns w/ thumping majority in LS. Initiates several amendments to overturn SC verdict
- 24th Amendment: "CAA can't be held void merely 'cz it infringed FRs"; 368 amended for Parliament to add, vary, repeal any Article!
- 25th Amendment: 31C added giving DPSPs primacy over FRs & Judicial Review
4. KB case 1973
- 'Basic Structure' can't be abrogated even by CAA'
- BS is a living spirit of the constitution, its 'soul'!
- Parliament has power to 'amend' it and not destroy it; it can only amen not rewrite
No retrospective action to be taken, though!
Further cases which strengthened BSD doctrine
- Indira Gandhi v/s Raj Narain 1975
- Minerva Mills 1980
- Waman Rao 1981
- Indra Sawhney 1992 (Rule of Law)
Significance of BSD in strengthening Democracy
- Judicial Independence
- Preserves the virtue of Fundamental Rights
- Prevents the democracy from authoritarian tendencies
So, what's the controversy?
Executive pov
- BSD is unique 'invention' in Indian system
- Law making is largely legislature business
- Judicial 'imagination' to control law making & thus 'will of the people'
- No such discussion in the Constituent Assembly; Judiciary changed constitution
Judiciary pov
- "Change in a thing doesn't involve destruction"
- BSD is soul of the constitution limiting Parliament to be its creature and not becoming master
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