THE CONSTITUTION AS THE BASIC

LAW
Where do we begin?

The Constitution is the Supreme Document of India. (Why not Parliament?)

It seeks to create a legal autochthony by severing all administrative ties with the
col

onial government.

Promotes values that are the building blocks of the republic.

Where is it written?

Articles 13(1) and (2): No laws in contravention of Part III.

This means that any law violating the Constitution (part III at least) is liable to be
struck down as unconstitutional. However, amendments to the Constitution are
not law, as per Article 13(4).

This provision itself was inserted vide Amendment in 1971. Guess under whom?
Why were amendments allowed to evade scrutiny?
Any law that is contrary to any provision is deemed to be ultra vires and liable to be
struck down.
The Constitution is seen as the manifestation of the will of the people. This is why
its will reigns supreme.
Food for thought: Only a quarter of the Indian public were able to vote in the
elections that later led to the creation of the Constituent Assembly.
Kesavananda Bharati v. State of Kerala:
Parliament cannot not distort, damage or alter the basic features of the
Constitution under the pretext of amending it.
Why were amendments allowed to evade scrutiny?

The power of legislation and the power of amendment are two different powers. If
they were the same, then every amendment would be just another law passed by
Parliament and would be subject to judicial review.

Prior to KSB, the Supreme Court had struck down several populist welfare policies
as being violative of the Constitution, claiming that Fundamental Rights were
enshrined beyond Parliamentary power by the people, and that no Parliament had
the power to amend them.

To prove them wrong, Indira Gandhi called a snap poll and contested elections on
the ground of Constitutional Amendments for welfare purposes.
The people spoke unanimously…
Why were amendments allowed to evade scrutiny?

She then amended the Amending provision of the Constitution itself (Art. 368) to
give her government the power to amend the Constitution.

All of this led to Kesavananda Bharati, wherein in the question was: Does
Parliament have the absolute power to amend the Constitution?

SC: All unanimously held that Parliament had the power to uphold any or all parts
of the Constitution, including Part III.

However, an amendment is not the same as any other law discussed under Art.
13.
Why were amendments allowed to evade scrutiny?

Unlike the British, the Parliament is not sovereign, and its limits are set by the
Constitution.

However, since the Constitution cannot govern every facet of life in the Republic,
the Parliament is empowered to make laws. This includes the power to amend the
Constitution when need be.

Parliament could not use its amending powers under Article 368 to 'damage',
'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or
framework of the Constitution.
Basic Structure Doctrine
Every judge writing the KSB verdict had a different view on what fell within the
basic structure.
E.g.- Sikri, C . J had these in his basic structure:
• supremacy of the Constitution
• republican and democratic form of government
• secular character of the Constitution
• separation of powers between the legislature, executive and the judiciary
• federal character of the Constitution
Basic Structure Doctrine

Hegde and Mukerjea, J :

• sovereignty of India

• democratic character of the polity

• unity of the country

• essential features of the individual freedoms secured to the citizens

• mandate to build a welfare state

Only 6 judges (a minority) placed fundamental rights as a whole in basic structure.