Revisiting the Doctrine of Basic structure: Shankari Prasad to Kesavananda Bharati

Abstract

History shows that constitutions have been repealed many a times in order to suit to the different regimes that ruled these countries. Some of these nations were France, Belgium, Mexico, Greece, Italy, Russia and China to name few. The authors of the modern democratic constitutions knew that the Constitution was intended to serve for generations. Hence they included provisions for making amendments in the Constitution. The authority to add, vary or repeal any constitutional provision vested in a superior legislature like Parliament. This superior legislature could amend by simple majority or by special majority consisting of two-third majority. Article 368 of Constitution of India defines the procedure as well as the power to amend. In India, the power to amend has come into conflict with judicial review. Consequently, the basic structure doctrine today is like a touchstone for testing constitutional amendments violating any fundamental rights. This doctrine has been inspired from Germany. Provisions 1 to 19 are the principles for the foundation law for the nation of Germany. Today, not only in India this doctrine also finds appreciation in neighboring Bangladesh and Pakistan but also in faraway Kenya and Uganda.

The purpose of this study is to analyse as how the basic structure doctrine has evolved from Shankari Prasad to Kesavananda Bharati as the country celebrates 50th Anniversary of this landmark judgment. The study also intends to find out the reasons for evolving the basic structure doctrine by judiciary.