DOCTRINE OF BASIC STRUCTURE

DOCTRINE OF BASIC STRUCTURE

Introduction
doctrine of judicial review applied by judiciary to examine the validity of constitutional amendment  bills difference between rewriting the constitution and amending the constitution parliament represents 'political sovereignty', constituent assembly represents 'popular sovereignty/general will' evolved to determine amending power of parliament conflict between DPSP and FR FR are enforceable
Cases
Champaran Dorairajan vs State of Madras 1950	Shankari Prasad vs UoI case 1951
reservation policy challenged by Brahmin women on the basis of right to equality dilemma for judiciary: enforcement of FR is obligation under Art 32 art 13: no law which abridges any FR is to be given validity judiciary went for creative interpretation term 'law' excludes amendment response of govt 1st amendment act clause 4 in art 15- special provision for advancement of any socially or educationally backward classes of citizen or for SC/ST 31A: to protect land acquisition 31B: 9th schedule; any law in 9th schedule can't be under judicial review	challenged amending power of parliament judiciary upheld the validity of 1st amendment
Golaknath case 1967	Keshwananda Bharti 1973
17th amendment challenged 1st case of judicial activism overruled previous cases even by amendment, FR can't be limited constitutional amendment are law under art 13 response of govt: 24th amendment act 1971 13(4)- Nothing in this article shall apply to any amendment of this Constitution made under article 368 368 (3) no judicial review of amendment implication doctrine in Shankari prasad was written in black and white response of govt 25th amendment act, 1971 art 31C harmonious  construction between art 39 (b) and (c) and FR both provisions remain relevant	upheld validity of 25th amendment and 24th subject to limitation of basic structure response of govt 42nd amendment bill amendment of art 31C: no law implementing any DPSP can be called to question even if it takes FR govt destroyed the harmony making FR subordinate to DPSP added art 368(4) and 368(5) to nullify doctrine of basic structure no amendment will call in question on whatsoever ground response of judiciary
Minerva Mills case 1980
368 (4)(5) as void art 31C, restore the provision of 25th amendment act
Analysis of Basic Structure	Relationship between FR and DPSP
Two schools 1st:  judicial over reach, extreme creativity judiciary considering itself as constituent assembly not given complete list of basic structure came into existence by affirmative vote of single judge 2nd doctrine 'acted as blessing in disguise' Zia Modi : judiciary saved india from going onto path of other 3rd world countries uncertain democracy was preferable over certain authoritarianism	FR enforceable (liberalism) DPSP not enforceable (socialism) resulted into conflict between legislature and executive they are complementary hence doctrine  of harmonious construction country lacked resources, hence not given immediate enforceability otherwise constitutional crisis Nehru Report 1928: both were brought as integrated scheme but later on separated criticism of DPSP undermines federalism problem for judiciary since non-enforceable limits choice of future govt with formulation of policies criticism of fundamental duties feature of socialist countries non-enforceable and hence problematic not made any change in the quality of citizen in india vaguely worded not a part of original constitution
Basic Structure
although not explicit but implicitly mentioned in the constitution basic structure limits the power of a majoritarianian govt power and strengthens the democracy Dietrich Conrad -Implied Limitations of Amending Power even if the Parliament is bestowed with the widest of powers to amend the constitution, its authority was always subject to a set of inherent constraints amendment was to bring altered form of existing constitution, not a new constitution in itself Sudhir Krishnaswamy : Democracy and constitutionalism in India the earlier statement represents careful reading of the text of Art 368 it delivers an attractive understanding of the moral principles that anchor the constitution