Doctrine of Basic Structure - Emergency Provisions

Theory of Basic Structure of the Constitution – A limitation on amending power:

The Judges have enumerated certain essentials of the basic structure of the Constitution, but they have also made it clear that they were only illustrative and not exhaustive. They will be determined on the basis of the facts in each case.

The validity of the Constitution (24th Amendment) Act, 1971, was challenged in Keshvananda Bharati Vs State of Kerala, popularly known as the Fundamental Right’s case the petitioners had challenged the validity of the Kerala Land Reforms Act 1963. But during the pendency of the petition the Kerala Act was amended in 1971 and was placed in the Ninth Scheduled by the 29th Amendment Act. The petitioners were permitted to challenge the validity of Twenty Fourth, Twenty Fifth and Twenty Ninth Amendment to the Constitution also.

The question involved was as to what was the extent of the amending power conferred by Article 368 of the Constitution? On behalf of the Union of India it was claimed that amending power was unlimited and short of repeal of the Constitution any change could be effected. On the other hand, the petitioner contended that the amending power was wide but not unlimited. Under Article 368 Parliament cannot destroy the “basic feature” of the Constitution. A Special Bench of 13 Judges was constituted to hear the case.

The Court by majority overruled the Golak Nath’s case which denied Parliament the power to amend fundamental rights of citizens. The majority held that Article 368 even before the 24th Amendment contained the power as well as the procedure of amendment.

The Court held that underArt.368 Parliament is not empowered to amend the basic structure or framework of the Constitution.

Doctrine of Basic Structure

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By Hassham

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