The Supreme Court gave the historical principle of the Basic Structure of the Constitution in the case of Kesavananda Bharati v. State of Kerala (April 24, 1973) 47 years ago.
The Constitution Bench comprising 13 judges decided by a majority of 7-6 that the ‘infrastructure’ of the Constitution is inviolable and cannot be altered by Parliament.
‘Infrastructure’ has been recognized as a principle in the Indian Constitution since this decision.
Constitution of infrastructure
(Basic Structure of the Constitution):
The basic structure of the constitution refers to those provisions contained in the constitution, which embody the democratic ideals of the Indian Constitution. These provisions cannot also be removed by amending the Constitution.
In fact, these provisions are so important in themselves that negative changes in them will affect the essence of the constitution, which is necessary for the development of the public.
Development of ‘Infrastructure’ theory:
What can be the power of Parliament to amend the Constitution? This has been debated since the adoption of the Indian Constitution.
Full power to Parliament:
In the early years of independence, the Supreme Court granted full power to amend the Constitution, giving decisions in cases such as ‘Shankari Prasad v. Government of India case’ (1951) and ‘Sajjan Singh v. Government of Rajasthan case’ (1965).
The reason for this is believed to be that in the early years after independence, the Supreme Court reposed faith in the then political leadership as the leading freedom fighters were serving as Members of Parliament at that time.
Fundamental Rights not amended:
When the ruling governments sought to amend the constitution for their political interests, the Supreme Court in the Golaknath v. Government of Punjab (1967) case stated that “Parliament does not have the power to abolish or limit fundamental rights under Article 368”. “
Confrontation between Parliament and Judiciary:
In the early 1970s, by the then government, ‘R.C. In the cases of Cooper v. Union of India (1970), Madanrao Scindia v. Union of India (1970) etc., extensive amendments were made in the Constitution (24, 25, 26 and 29) to change the decisions given by the Supreme Court.
The fact to be noted here is that in the ‘RC Cooper’ case, the Supreme Court declared the Indira Gandhi government’s decision to ‘nationalize banks’ invalid. Whereas in the ‘Madhavrao Scindia’ case the amendment to abolish the privy purse given to the former rulers was declared invalid.
Keshavanand Bharti case:
The 24, 25, 26 and 29th constitutional amendments and the Golaknath case decision were challenged in the Kesavananda Bharati case.
Since the Golaknath case was decided by eleven judges, a larger bench was required for hearing in the case and thus constituted a bench of 13 judges in the Kesavanand case, where eminent legalists Nani Palkhiwala, Fali Nariman, Soli Sorabjee Adi presented a case against the government.
The Constitutional Bench of Kesavananda Bharati saw serious ideological differences among the members and the Bench decided 7-6 that Parliament should be prevented from making changes in the ‘infrastructure’ of the Constitution.
The Supreme Court held that Article 368; The basic structure of the constitution cannot be changed under which the Parliament is empowered to amend the constitution.
List of ‘Infrastructure’:
Although the Supreme Court did not define ‘infrastructure’, some of the features of the Constitution have been defined as ‘infrastructure’, such as federalism, secularism, democracy, etc. The court has since expanded this list continuously.
Criticism of infrastructure:
Critics have called this doctrine undemocratic because judges, who are not elected representatives, make judicial infringements by declaring the Constitution Amendment passed by Parliament as invalid. While supporters consider it as a protection against pluralism and totalitarianism.
The Indian Constitution remains a living document even after 70 years of independence. The Indian judiciary and the process of constitutional interpretation are continuously developing. It is necessary that through the Constitution, an effort is made to maintain a balance between transparency and accountability of the Indian judiciary and independence of the judiciary.
This post was published on April 28, 2020 1:43 am
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