General Studies Paper 2 (Indian Polity): Does the basic structure doctrine undermine parliamentary sovereignty? Critically examine.

parliamentary sovereignty

 

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Syllabus: General Studies Paper 2 (Indian Polity)

 

Does the basic structure doctrine undermine parliamentary sovereignty? Critically examine. ( 10 Marks)

Introduction

The basic structure doctrine is an Indian judicial principle that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the parliament.

Basic structure as a doctrine was devised by Supreme Court in Kesavananda Bharati case on April 24th 1973. This doctrine puts restriction on amending powers of constitution guaranteed under article 368 and made basic structure an important element among the Laws of land.

Body

Basic structure doctrine keeps a check on Parliamentary powers through following means:

  • The doctrine of basic structure puts limitations on the amending power of parliament.
  • Parliament can’t be considered at par with the constituent assembly who reflects the general will, whereas parliament reflects the political sovereignty. Hence even with consensus parliament can’t amend the basic structure.
  • The doctrine of basic structure makes SC not only the guardian of FRs but also the constitution. 
  • Due process of law: Constitution established “procedure established by law” but it was replaced by “due process of law”, which gives power to judiciary to scarp any laws. Even though not arbitrarily, but still it affects law making power of parliament.
  • Dynamic in nature: There is no proper definition or what constitutes basic structure. With the passage of time, the contents of basic structure keep changing in response to the dynamics of Indian polity and society.
  • There are various instances where it can be proved that judiciary has restricted parliamentary powers like in case of NJAC bill ( 99th amendment to constitution), Aadhaar bill ( diluted provisions of bill), Set aside reservations in promotion and above 50% reservation in states granted by certain state governments.

 

Significance of Basic structure doctrine

  • It enhances parliamentary sovereignty rather than undermining it
  • It acts as a limitation upon the constituent power and has helped in arresting the forces which may destabilize the democracy. Parliament does not and should not have an unlimited power to amend the Constitution.
  • It helps to retain the basic ideals of the Constitution which was meticulously constituted by the founding fathers our Constitution
  • Parliament can amend the constitution but it should not destroy the basic structure.
  • Judiciary does not take away amendment powers or power to make laws; it just places certain restrictions in order to enhance democratic principles.
  • Effective and efficient laws: Basic structure helps in increasing culture of debate which helps in bringing effective and efficient laws for welfare of people.
  • Democracy: Basic structure has protected and promoted democracy or else India would have become a dictatorship or taken over by armed rebellions like Pakistan, Afghanistan etc.
  • It places restriction on any institution gaining immense power or power over others. It helps in maintaining supremacy of constitution and its principles.
  • If the Supreme Court had held that Parliament could alter any part of the Constitution, India would most certainly have degenerated into a totalitarian State or had one-party rule. Most importantly, the Constitution would have lost its supremacy. For instance, the amendments that were made during the Emergency would have derailed the democratic set up of our Constitution. If Parliament were indeed supreme, the following amendments would have become
    • The 39th Amendment prohibited any challenge to the election of the President, Vice-President, Speaker and Prime Minister. This was made to nullify the adverse Allahabad High Court ruling against former Prime Minister Indira Gandhi.
    • The 41st Amendment prohibited any case, civil or criminal, being filed against the President, Vice-President, Prime Minister or the Governors, not only during their term of office but forever. Thus, if a person was a governor for just one day, he acquired immunity from any legal proceedings for life.
  • Certain instances where basic structure has enhanced parliamentary sovereignty can be, Ordinance for SC/ST act to nullify SC order, placing Fundamental rights and DPSP on equal footing, Triple talaq ordinance to give effect to SC order on Triple talaq etc.  

 

Conclusion

For almost four decades now, the basic structure doctrine has come to be recognized as the bedrock of Indian Constitutional philosophy. The basic structure doctrine, as future events showed, saved Indian democracy to a greater extent.

For the protection of welfare state, fundamental rights, Unity and integrity of the nation, Sovereign democratic republic and for Liberty of thought, expression, belief, faith and worship, interpretation of judiciary is mandatory. We can say none is above constitution even parliament and judiciary.

 

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