eh OE Sam The Guaniian of the Soul Decoding the Basic Structure Doctrine Adefinitive history of the constitutional tug-of-war between Parliamentary Sovereignty and Judicial Supremacy. India's democracy rests on aunique legal invention the principle thatthe Constitution has ("ving sprit” that cannot be destroyed, not even by a unanimous Parliament."The Debate is Not Hi It is Happening No Kk: Vice-President Jagd @ to the idea that #y do not subscribe % p) THE CORE QUESTION: Article 368: Power of Parliament to amend the Constitution. Does the Parliament, representing the will of the people, have the power to amend any part of the Constitution? Or are there ‘untouchable’ lines? ar agit vo. Pasian a een | (ee (SSGlobal Context: Where Does Sovereignty Lie? United Kingdom USA India Parliamentary Sovereignty No written constitution. Parliament has the right to ‘make or unmake any law whatever’ No court can override legislation. foe Judicial Supremacy The Constitution is supreme. The Judiciary has the power to interpret it and strike down laws that contravene it (Marbury v. Madison). AE ‘The Synthesis (A Middle Path) Parliament has amending powers (Article 368), BUT the Judiciary acts as the guardian, ensuring amendments do not violate the Constitution's ‘sour’,r es eodnil ta Total Parliamentary Dominance ncic 1965) Power JUDICIARY PARLIAMENT Meter 0% 100% 1951 x& & 1965 Oe ee Shankari Prasad Case Sajjan Singh Case The Issue: First Amendment (Land Reforms). The Ruling: Reiterated the previous view. ‘The Ruling: The SC upheld Parliament's power to amend Parliament has the power to amend any the Constitution, including Fundamental Rights. part of the Constitution. Logic: An ‘amendment’ is not the same as ‘law’ under Article 13(2). The Implication: At this stage, Fundamental Ri they could be altered by the elected m: if OMRound 2: The Judiciary Strikes Back LC. Golaknath v. State of Punjab (1967) JUDICIARY noel \ PARLIAMENT DK 10-20% An 11-judge bench, led byCJ Subba} 1. Fundamental Rights are ‘transcendental and immutable’ Rao, overruled previous judgments 2. Parliament CANNOT abridge or take away Fundamental Rights. (Shankari Prasad & Sajjan Singh). 3. Article 368 defines the procedure for amendment, not the power. (A wo Cont Pope Oem Te den open nde wechseln == OIThe Crisis: Parliament Retaliates (1971) ) To overturn the Golaknath verdict and restore supremacy, the Government enacted a series of amendments. 24th Amendment : Fe ee 25th Amendment: ® Explicitly stated | Golaknath Verd, © Curtailed the Right that Parllament aS THE nm cay to Property. power to amend any Coruna provision, including Fundamental Rights. Added that Article 13 * Gave Directive Principles precedence over an, ae Fundamental Rights (Judicial Review) q Pc aie) st (Equality and does not apply to 1. To gorem ofthe governance tac golakanth Freedom). amendments. ‘esd, Ronmatine Gave sive Pees precece with theese iano he making the Constitution a tool of the legislature rather than a check upon it. The Goal: To make Parliament the sole arbiter of the Constitution, effectively j if ~ aeThe Historic Showdown: Kesavananda Bharati (1973) THE CHALLENGER THE DEFENDER The Stake: Can Parliament rewrite the entire Constitution? The Bench: ve 13 Judges (Largest in History) 7 ff N.A. Palkhivala See HM. Seervai Advocate for ‘The Judgment: Advocate for Implied Limitations 703 Pages Parliamentary . Supremacy THE CORE CONFLICT: Palkhivala argued for “Implied Seervai argued for unlimited b Limitations” on amending power. “Parliamentary Supremacy”. i eed le. The Middle Path: 1. Overruled Golaknath: The Court upheld the 24th Amendment. Yes, Parliament can amend Fundamental Rights. 2. The Caveat: The power to “amend” is not the power to “destroy.” Parliament cannot alter the Basic Structure of the Cor itution. The Verdict: Birth of the Doctrine x April 24, 1973 | A Razor-Thin 7:6 Majority 66 ‘The Constitution has a “living spirit” holding up the body of the text. You may renovate the walls, but you cannot destroy the foundation.What Constitutes the ‘Basic Structure’? The Court refused to give an exhaustive list, allowing the concept to evolve case-by-case. It is the ‘Soul of the Constitution’. dtAct IV: The Doctrine in Action Trial by Fire: Indira Gandhi v. Raj Narain (1975) The Context: The Ruling: During the Emergency, Struck Down! Parliament passed the 39th The Supreme Amendment. Court applied the Basic Itadded Article 329A, stating Structure Doctrine for the that the election of the first time to invalidate a Prime Minister and constitutional amendment. Speaker could not be questioned in any court of law. Reasoning: ‘Free and Fair Elections’ and the ‘Rule of Law’ are basic features. Placing the PM above the law violates the principle of equality (Article 14).@ Cementing the Shield: Minerva Mills (1980) i Parliament tried one last time to claim total | supremacy via the 42nd Amendment, adding clauses that there is ‘no limitation whatever’ on amending power and barring judicial review. The Supreme Court struck it down. : ‘Alimited amending power is itself abasic use its limited power to grant itself unlimited power. Significance: ‘Judicial Review’ was firmly established as part of the Basic Structure.© protecting the States: $.R. Bommai v. Union of India (900) The Issue: The Verdict: | Arbitrary dismissal of The Supreme Court state governments placed strict by the Centre using restrictions on Article 356 Article 356. (President's Rule). Federalism is a Basic Feature. States are not satellites of the Centre. Secularism is a Basic Feature (Upheld dismissal of governments after Ayodhya demolition). § © President’s Rule is subject to Judici: .. * E Review.xe The Modern Conflict: NAC & The Collegium % The tug-of-war continues over who appoints judges. | 2014: The 99th Amendment created the National Judicial Appointments Commission (NJAC), giving the Executive, | asay in appointments. JUDICIAL (INDEPENDENCE: 2015: The Supreme SS ‘ ; f fe Executive cannot interfere in | Court struck it down the appointment of judges. as unconstitutional. = Sie Status: The Collegium system remains, but tensions persist (re: VP Dhankhar’s comments). F Judicial Independence is part of the Basic Structure. The2, The Defense Checks & Balances: Prevents majoritarian rule from becoming. authoritarian. ¢ Protection of Minorities: Safeguards rights that should not be subject to vote. iii The Critique Cues © Tyranny of the Unelected: Unelected judges overriding a unanimously elected Parliament. © Vagueness: No definite, closed list of what constitutes ‘Basic Structure. It is decided case-by-case. © Judicial Overreach: The Judiciary entering the legislative domain. © Quote: “Is the doctrine of basic @ structure really basic? Or a judicial invention?”The Bedrock of Democracy From Shankari Prasad to Kesavananda Bharati, the journey has been about r defining the identity of the nation. The Basic Structure Doctrine serves as the ultimate safety valve against authoritarianism. It ensures that while the Constitution can evolve with the times, it cannot lose its identity.