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THE INDIAN DOCTRINE OF THE BASIC STRUCTURE OF THE CONSTITUTION: AN ESSENTIAL AND FLEXIBLE BASE?

By Prabhat Kumar

The foundations of the Indian Constitution were designed to ensure that the document has a sort of rigidity. The Parliament was therefore granted the right to modify in compliance with Article 368 to resolve the problems in the workings of the constitution in future. The scope of versatile constitutional provisions, though, must be balanced by the obligation to maintain their normative existence as a higher law that restricts transient parliamentary majorities in the country. Nevertheless, the Supreme Court in Kesavananda Bharati v. State of Kerala (1973) held that Article 368 did not authorize the parliament to alter the ‘essential structure or system’ of the Constitution, although it did not include any sort of specific restriction to the amending power of the parliament. The theory is also a central element of recent structural controversies surrounding constitutional recognition and reform and has been intensely discussed since it was introduced. This paper looks at the nature and application of the basic framework concept as a procedural defence and addresses the theory of the basic framework and its effect on the development of constitutional jurisprudence which is the result of history and the reflection of the concepts that serve as the basis for Indian democracy.

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