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PCS (J) Notes: Constitution, Basic Structure

 

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BASIC STRUCTURE

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The topic of Basic Structure is one of the most important topics for the academician, practitioner of Law. As in it the sole of constitution was laid down and also it has been regarded as essence of basic structure of law as it plays very crucial role in the smooth functioning of government in state and also in democracy.

There is sequence of cases through which the whole process of Basic Structure got developed these cases are having different aspects regarding Basic Structure within itself and which was overruled by the next judgement to it adding a new aspect of Basic Structure. Therefore through this article I would like to cite all the cases and their concern judgement in a laconic way.

Starting from the very first case Shankari Prasad Vs. State Of Bihar (AIR 1952 SC 458)

In the case it was held that Article 13(2) of Indian Constitution will not come into the way of any amendments done under Constitution through Art 368 of Indian Constitution. Later on the same judgement was again upheld by the Hon’ble Supreme Court In the case of Sajjan Singh vs. State of Rajasthan. Later on in the case of Golaknath vs. State of Punjab (AIR 1967 SC 1643)  by the majority of six is to five the decision of Shankari Prasad and Sajjan Singh case was overruled and it was held that the constitutional amendment is “law” within the meaning of Art.  Of the Constitution and therefore, if it takes away or abridges the rights conferred by Part 3 thereof, it is void. It was declared that the Parliament will have no power from the date of the decision 27th February 1967 to amend any of the provision of Part 3 of the Constitution as to take away or abridges the fundamental rights enshrined therein. This was the first case in which for the first time the concept of Basic Structure was evolved and came into existence.

After the above case the constitution 24th Amendment Act 1971, 25th Amendment Act, 1971, 26th Amendment Act 1971 and the 29th Amendment act came into force out of which the 29th Amendment Act was challenged in the famous Case of Keshavanandan Bharti vs. State of Kerala (AIR 1973 SC 1461) in which the constitutionality of 29th amendment act was challenged which amended 9th schedule inserting two Kerala Amendment act furtherance with the land reforms.

In the case by seven is to six majorities the judgement given in golaknath case was overruled and it was held by the majority opinion that though the power of the parliament extends to all articles, Article 368 did not enable the parliament to alter the Basic Structure or framework of the constitution. There are implied or inherent limitations on the power of amendment under Art 368.

After the case of Keshavanada Bharti in various cases part of basic structure was formed starting with the case of Indira Nehru Gandhi vs. Raj Narain the election U/A 329 was recognised as basic structure of the constitution. In the case of Minerva Mills Vs. Union of India in the case Article 32 was recognised as basic structure of the constitution.

In the case of I.R Cohelo vs. State of Tamil Nadu (AIR 2007 SC 861)  a new aspect of basic structure was formed in which the blanket immunity to legislation under schedule 9 of the constitution was challenged and it was held that:-

  • The laws or legislation which was inserted in the Schedule 9 after the Keshavanada Bharti case will be open to challenge in court on the ground that it violates or infringes fundamental Right.
  • The court held that the constitutional validity of the ninth schedule legislation could be adjudged by applying the direct impact and effect test. In which the role of the court is to determine whether invasion was necessary and if so to what extent.
  • It was held that the right test is done on the touchstone of the basic structure doctrine as reflected in Art 21 read with Art 19 read with Art 14 by application of the Right test and the essence of the right test.

 

 

Manishek Kumar

Legal News Reporter

 

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