HPAS 2020 GS2 Question 16

HPAS 2020 Mains GS-2 Question 16

Critically examine the basic structure theory of the Indian Constitution.

Solution:

The Basic Structure Doctrine, propounded in the Kesavananda Bharati case (1973), is a unique judicial innovation that limits the amending power of the Parliament under Article 368. While it has acted as a shield for democracy, it has also sparked debates regarding the separation of powers.

[Image of the components of basic structure doctrine indian constitution diagram]

1. Arguments in Favour (The Protective Shield)

• Check on Majoritarianism: It prevents a temporary majority in Parliament from rewriting the Constitution to suit its political agenda or establishing an authoritarian regime.
• Preservation of Identity: It ensures that the core pillars of the Indian State—Secularism, Federalism, Democracy, and Judicial Review—remain intact even if the text of the Constitution is evolved.
• Constitutional Supremacy: It upholds the principle that the Constitution is the ultimate source of power, and even the Parliament’s constituent power is subject to its foundational logic.

2. Points of Criticism (Judicial Overreach)

• Lack of Textual Basis: Critics, including prominent jurists, argue that the doctrine has no basis in the written text of the Constitution. Article 368 does not explicitly mention any “un-amendable” parts.
• Democratic Deficit: It grants the Judiciary—an un-elected body—the power to veto the collective will of the people expressed through their elected representatives.
• Vagueness: Since the Supreme Court has not provided an exhaustive list of what constitutes “basic structure,” it remains an evolving and subjective concept, leading to legal uncertainty.

[Image of the landmark cases in the evolution of basic structure doctrine flowchart]

3. Critical Analysis: The Balance of Power

The doctrine has evolved through various judgments like Indira Gandhi v. Raj Narain (1975) and Minerva Mills (1980). While it appears to clash with Parliamentary Sovereignty, it is essentially a safeguard for Constitutional Sovereignty. It ensures that the “power to amend” is not mistaken for the “power to destroy.”

“The doctrine has been a silent savior of Indian democracy, ensuring that the ‘soul’ of the Constitution is not bartered for political expediency.”

Concise Model Answer (150-Word Limit)

The Basic Structure Theory (1973) is a judicial check on Parliament’s constituent power, asserting that certain foundational features cannot be abrogated. A critical examination reveals a dual impact:

Merits: It acts as a bulwark against executive tyranny, preserving the democratic and secular fabric of the nation. It ensures that the Constitution remains a living document without losing its original identity.

Demerits: It is often viewed as “judicial overreach” because it is extra-constitutional (not mentioned in the text). It creates a “sovereignty of judges,” where subjective interpretations can stall legislative reforms aimed at social change (e.g., challenges to NJAC).

In conclusion, while the doctrine lacks textual sanction, its application has historically balanced the tension between Parliamentary supremacy and individual rights. It remains the ultimate safeguard for Constitutionalism in India, provided the Judiciary exercises it with self-restraint.