From Indian VP to Law Minister to CJI, the Executive & Judiciary are regularly in a tussle over Basic Structure Doctrine (BSD).
What’s BSD? How did it come into being? What do you need to know for UPSC? All these answers are in this post! 👇🏻
Background
– Idea first propounded in Kesvananda Bharati (KB) Case 1973
– Idea: Parliament can’t amend the ‘basic structure of basic law of the land’
– Definition: No such definition, components described in SC cases over the years.
What are these components?👇🏻
They keep evolving with SC verdicts in different court cases. Some of these are listed in the 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/a a 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 the power to ‘amend’ it and not destroy it; it can only not rewrite
No retrospective action is to be taken, though!
Further cases that strengthened the 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 a unique ‘invention’ in the Indian system
– Lawmaking is largely legislative business
– Judicial ‘imagination’ to control law making & thus ‘will of the people’
– No such discussion in the Constituent Assembly; Judiciary changed the constitution
Judiciary pov
– “Change in a thing doesn’t involve destruction”
– BSD is the soul of the constitution limiting Parliament to be its creature and not becoming master
