Constitutional Amendment in India: An Analytical Reconsideration of the Doctrine of 'Basic Structure'

Abstract

Constitution, said to be the ‘General Will’ of the people, is a fundamental document which defines the position and power of the different organs of the State. It is not only the basic law of the land, but the living organic thing by which the other laws are to be created as per the requirement of the nation. The life of a nation is not static therefore, a constitution drafted in one era and in a particular circumstance may be found not suitable or inadequate in another era in a different context. Thus, it becomes necessary to have devices, machinery or some process by which the constitution may be adopted from time to time as per the contemporary need of the nation. Such changes may be brought by way of Judicial Interpretation through decided cases that come before the court time to time. The framers of the Indian Constitution instead of leaving this important task entirely to the Judiciary inserted Article 368 as a formal method to provide for amendment to the constitution. Detailed analysis of the debate that took place at the constituent assembly on that issue clearly shows the intention of the framers for a flexible amendment procedure though it is contrary to federal principle. Article 368 of the constitution does not prescribe any express limitation upon the parliament’s amending power, however after the expiry of two decades the Supreme Court in Keshavananda Bharati v. State of Kerala, popularly known as the Fundamental Rights case declared that Article 368 did not enable parliament to alter the ‘Basic Structure or Framework’ of the constitution. From then till very recent decision of the Supreme Court in I.R. Koelho v. State of T.N., (AIR 2007 SC 861) this doctrine continues to be the limitation upon the parliament’s power to amend the constitution, in spite of the fact that Article 368 is really silent as to the width of amending power. The object of this paper is to critically reconsider the doctrine of ‘Basic Structure’ and its effect upon the development of Indian Constitutional jurisprudence. An attempt has also been made to make an analysis of the often stated remark that the doctrine of Basic Structure is an embargo upon the parliamentary supremacy.