SCOPE OF AMENDABILITY: BASIC FEATURES

Over the years, there has been some confusion over this issue. Until the Golak Nath case, the Supreme Court had been holding the view that no part of the Constitution is unamendable. In the Golak Nath case, it was held that the Fundamental Rights cannot be amended. The decision was overturned in the Keshavananda Bharti case. However, it was also held by the Supreme Court that there are certain basic features of the Constitution that cannot be altered in the course of Parliament exercising its amending power under Article 368. As to what these basic features are, there seems to be no unanimous opinion.

BASIC STRUCTURE

The basic structure doctrine is an Indian judicial principle. The Constitution of India has certain basic structure that cannot be altered or destroyed through amendments by the parliament. Key among these “basic features”, is the fundamental rights granted to individuals by the constitution. The doctrine thus forms the basis of a limited power of the Indian Supreme Court to review and strike down constitutional amendments enacted by the parliament which conflict with or seek to alter this “basic structure” of the constitution.

The present position is that the Parliament under Article 368 can amend any part of the Constitution including the Fundamental Rights but without affecting the ‘basic structure’ of the Constitution. However, the Supreme Court is yet to define or clarify as to what constitutes the ‘basic structure’ of the Constitution.

From the various judgements, the following have emerged as ‘basic features’ of the Constitution:

  1. Supremacy of the Constitution
  2. Welfare state (socio-economic justice).
  3. Principle of equality
  4. Sovereign, democratic and republican nature of the Indian polity.
  5. Judicial review
  6. Free and fair elections
  7. The secular character of the Constitution.
  8. Freedom and dignity of the individual
  9. Independence of Judiciary
  10. Separation of powers between the legislature, the executive and the judiciary.
  11. Parliamentary system
  12. Limited power of Parliament to amend the Constitution
  13. Federal character of the Constitution
  14. Rule of law
  15. Effective access to justice
  16. Unity and integrity of the nation
  17. Harmony and balance between Fundamental Rights and Directive Principles
  18. Reasonableness

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