International Journal of Research and Review Vol.7; Issue: 3; March 2020 Website: www.ijrrjournal.com Review Article E-ISSN: 2349-9788; P-ISSN: 2454-2237 Comprehending and Inquisitioning the ‘Doctrine of Basic Structure’ in India: Urgency to Define the Doctrine Satarupa Datta 5th Year Student, B.A.LL.B (Hons.), Law College Dehradun, Uttaranchal University. ABSTRACT Constitution itself. Further, distinction in the form of three separate branches of the The doctrine of ‘basic structure’ has often Government i.e. Legislature, Executive and been labelled as a form of judicial Judiciary exist. In fact, powers and overreach or judicial activism. In fact, the functions have also been defined, yet the task of law-making which belongs to the present times have seen the urgency of the legislature has been overtaken by the Judiciary to intervene, as the Guardian of judiciary, in the way of a duty imposed Fundamental Rights to such an extent that it upon itself as both the interpreter as well as has stepped into the task of the law-making. the Guardian of the fundamental rights. One such example is that of the ‘Doctrine of Therefore, vesting upon itself the power to Basic Structure’. define the ‘basic features’ of the Initially, it was introduced to protect Constitution i.e. the work of lawmaking. the interest of the Constitution itself, the This article will argue why the task of Judiciary acted on the power conferred on it defining the ‘basic features’ of the by the same. The doctrine came into light Constitution should not be left open to the when distinguished German jurist, Professor Apex Court. Additionally the Dietrich Conrad while delivering a lecture implementation of this doctrine after the on ‘Implied Limitations of the Amending case of Keshvananda, [1] in matters of Power’ [3] posed the question: constitutional amendments. The article will Could a constitutional amendment begin with a brief introduction of the abolish Article 21, to the effect that doctrine. Part II will discuss judicial forthwith a person could be deprived of his overreach with reference to the doctrine's life or personal liberty without authorization application. While part III of the article will by law? Could the ruling party, if it sees its conclude with some observations and a majority shrinking, amend Article 368 to the conclusion. effect that the amending power rests with the President acting on the advice of the Key words: doctrine of ‘basic structure’, Prime Minister? Could the amending power judicial overreach, judicial activism be used to abolish the Constitution? His thought was inspired by the I- INTRODUCTION Weimar Constitution’s, Eternity Clause [4] The Constitution of India is the which was incorporated in the Basic Law of grundnorm, [2] which lays down provisions the Federal Republic of Germany [5] to necessary for the functioning of the State establish that certain fundamental principles (India). Where to facilitate proper of Germany’s democracy can never be functioning, concepts like Separation of removed, not even by Parliament. [6] Unlike Power etc. have a special place in the Germany, the Doctrine has not yet been International Journal of Research and Review (ijrrjournal.com) 80 Vol.7; Issue: 3; March 2020 Satarupa Datta. Comprehending and inquisitioning the ‘doctrine of basic structure’ in India: urgency to define the doctrine enshrined inside the text of the Constitution balance won’t simply be enough for the of India. [7] Even though the doctrine is purpose. Though established, the Basic highly regarded around the world to be the features still need protection and therefore contribution of the Indian Supreme Court require to be kept away separately without but in reality, it is its application to the the intervention of any. famous Kesavananda Bharati case [8] which has earned it the title of judge-made law. II THE TUSSLE: LEGISLATURE OR Hence, from Golaknath [9] to NJAC case [10] JUDICIAL ACTIVISM the Indian Chapter of the ‘basic structure (Judicial activism with reference to the doctrine’ has added to its basic features, application of the doctrine) concepts like Judicial Review, [11] balance Judicial Review for the very first between Fundamental Rights [12] and time was introduced by the US Supreme Directive Principles, [13] Free and fair Court in the case of Marbury v. Madison. elections, [14] Rule of Law, [15] Federal [24] And from there the concept got structure, unity and integrity of India, popularity, leading to more and more Secularism, Socialism, Social justice, [16] countries adopting it into their system. Independence of Judiciary, [17] etc. There is per se no problem with the concept Finally, in the recent chain of events, of ‘Judicial Activism’ or ‘Judicial the doctrine evolved further and continued Legislation’, as article 367 of the its journey in the form of two landmark Constitution itself provides power to the judgments i.e. ‘right to privacy’ [18] and the Judiciary to interpret the constitution as a Constitutional validity of Part XIV of the legal instrument [25] declare the same and Finance Act, 2017 [19] make it binding upon all authorities in India. Now focusing back on the title of the But the same has to be done in consonance lecture [20] a very important concept had and conformity with the constitutional been propounded ‘Implied Limitation’. Its dictates and confined to the extent permitted relation with that of the Basic Structure which distinguishes it from ‘Judicial Doctrine is what establishes the argument in overreach’. [26] favor of giving express place to the basic In India, the concept of ‘Judicial features inside the text of the Constitution. Review’ has been classified into three Implied limitation was discussed by aspects: (1) judicial review of legislative the Supreme Court in the case of Shankari action, (2) judicial review of judicial Prasad v. Union of India. [21] Though at that decisions and (3) judicial review of time the Hon’ble Court denied any administrative action. [27] Where article 245 limitation subject to article 368 on the of the Constitution empowers the power of Parliament but in the case of Parliament to make laws subject to certain Golaknath [22] a different stand was taken restrictions and thus the power to ‘Judicial and the 24th Constitutional amendment Act Review’ can be exercised under article 32 & [23] was passed by the Parliament. Thus article 226 of the Constitution. In other giving rise to the continued struggle of words, the power to review any legislative defining the ‘basic feature’. Additionally, action including constitutional amendments the core concept of article 368 & 13 of the by the Supreme Court has to be done by Constitution can be narrowed down to way of interpretation. [28] Thus, the labeling amendments into constitutional and Constitutional Courts though conferred with unconstitutional, it becomes even more the power to deal with extraordinary important to identify the act done, whether situations for the larger interest of justice amounts to ‘ordinary legislation’ or and prevention of injustice must use it ‘Constitutional amendment’. The challenges sparingly. [29] thus posed in front of the parliament are in a In the words of Justice J S Verma (former way manifold. But the concept of check and Chief Justice of India): International Journal of Research and Review (ijrrjournal.com) 81 Vol.7; Issue: 3; March 2020 Satarupa Datta. Comprehending and inquisitioning the ‘doctrine of basic structure’ in India: urgency to define the doctrine …the judiciary should only compel guarantee against sexual harassment and performance of duty by the designated abuse, more particularly against sexual authority in case of its inaction or failure, harassment at work places, we lay down the while a takeover by the judiciary of the guidelines and norms specified hereinafter function allocated to another branch is for due observance at all workplaces or inappropriate. Judicial activism is other institutions, until a legislation is appropriate when it is in the domain of enacted for the purpose. This is done in legitimate judicial review. It should neither exercise of the power available under be judicial ‘adhocism’ nor judicial tyranny. Article 32 of the Constitution for The acknowledgment of this enforcement of the fundamental rights and it difference between “judicial activism” and is further emphasized that this would be “judicial overreach” is vital for the smooth treated as the law declared by this Court functioning of a constitutional democracy under Article 141 of the Constitution. with the separation of powers as its central This is clear from the quoted characteristic and supremacy of the judgment that the Hon’ble Court constitution as the foundation of its edifice. acknowledges the fact that the primary task [30] of lawmaking belongs to the legislature. But Therefore the intention is clear, constructing guidelines to be implemented balance is required, and the answer to instead of directing the appropriate authority ‘Judicial overreach’ has to be judicial to do so falls under ‘Judicial Legislation’. restraint. Although the act of judicial In the matter of Kasturilal v. State of activism is not bad in itself but the Uttar Pradesh, [34] Chief Justice overreach or overstepping and placing Gajendragadkar found the law relating to oneself into the sphere of other, that too government liability ‘not very satisfactory’, without being the proper authority does call but did not make the change by judicial for a review of action on part of the construction instead he suggested legislative Judiciary. Being the Guardian of the intervention to rectify the position of law. Constitution, the expectation remains at Thereby, acknowledging the competence of large as no other organ of the State but the the legislature. Thus, Judges, for instance, Hon’ble court has to put the necessary do use the tool of interpretation and along restriction or restraint upon itself. with this their personal thought process, Interpreter or Lawmaker ideas, experiences, etc.