Thread by @TheNavroopSingh

#BasicStructureDoctrine

During the Nehru Government in 1951, the first Amendment was passed by the Parliament. This Amendment transformed Article 31(A) - the Right to Property, from a fundamental right to a legal provision. In addition, Article 15(4) was introduced to provide… twitter.com/i/web/status/1…

These amendments were challenged of abolition of Rt to Property as Fundamental Rights was challenged in SC.

In the early years of Independence, the Supreme Court conceded absolute power to Parliament in amending the Constitution, as was seen in the verdicts in Shankari Prasad… twitter.com/i/web/status/1…

However, in the Golaknath case (1967), the Supreme Court held that Parliament could not amend Fundamental Rights, and this power would be only with a Constituent Assembly.

•In this case, the court reversed its earlier stance that the Fundamental Rights can be amended. 

•It… twitter.com/i/web/status/1…

▪To get over the judgments of the Supreme Court in the Golaknath case (1967), RC Cooper case (1970), and Madhavrao Scindia case (1970), the then government headed by Prime Minister Indira Gandhi had enacted major amendments to the Constitution (the 24th, 25th, 26th and 29th).… twitter.com/i/web/status/1…

In Kesavananda Bharati case, a relief was sought against the Kerala government vis-à-vis two state land reform laws, which imposed restrictions on the management of religious property.

◦The case was challenged under Article 26, concerning the right to manage religiously owned… twitter.com/i/web/status/1…

As per Sikri, C.J., the basic structure constitutes the following elements:

•The supremacy of the Constitution
•Republican and Democratic forms of Government
•Secular character of the Constitution
•Separation of Powers between the legislature, the Executive, and the… twitter.com/i/web/status/1…

In Keshvanand Bharti's case which was 13 Judge Const bench while laying down that Basic Structure of Constitution cant be altered held,

"We are unable to agree with the contention that in order to build a welfare State, it is necessary to destroy some of the human freedoms.… twitter.com/i/web/status/1…

Indira Nehru Gandhi v. Raj Narain case (1975)
•Here, the SC applied the theory of basic structure and struck down Clause(4) of Article 329-A, which was inserted by the 39th Amendment in 1975 on the grounds that it was beyond the Parliament’s amending power as it destroyed the… twitter.com/i/web/status/1…

Minerva Mills case (1980)

•This case again strengthens the Basic Structure doctrine. The judgement struck down 2 changes made to the Constitution by the 42nd Amendment Act 1976, declaring them to be violative of the basic structure. 

•The judgement makes it clear that the… twitter.com/i/web/status/1…

Indra Sawhney and Union of India (1992)
•SC examined the scope and extent of Article 16(4), which provides for the reservation of jobs in favour of backward classes. It upheld the constitutional validity of 27% reservation for the OBCs with certain conditions (like creamy layer… twitter.com/i/web/status/1…

In SR Bommai case (1994).

◦In this case the Supreme Court upheld the dismissal of BJP governments by the President following the demolition of the Babri Masjid, invoking a threat to secularism by these governments.

Arguments related to Basic structure:

◦Critics of the… twitter.com/i/web/status/1…

The L. Chandra Kumar Case (1997):

The Supreme Court of India's landmark judgement in the L. Chandra Kumar case of 1997 dealt with the constitutionality of the 42nd amendment of the Indian Constitution, which created administrative tribunals for the resolution of disputes… twitter.com/i/web/status/1…

The 9th Schedule Case:

The 2007 I.R. Coelho v. State of Tamil Nadu case is a landmark judgement in Indian constitutional law that reinforced and confirmed the fundamental structure doctrine of the Indian Constitution.

The Supreme Court, by a vote of 7-2, upheld the validity of… twitter.com/i/web/status/1…

Justice K. S. Puttaswamy (Retd.) & Anr. vs Union Of India & Ors. (2017): Rt to Privacy Case

The 2017 case of Justice K.S. Puttaswamy v. Union of India is a pivotal ruling in Indian constitutional law that challenged the validity of the Aadhaar Act, a biometric identification… twitter.com/i/web/status/1…

The doctrine of the basic structure helps to prevent legislative excesses, as was evident in the Emergency Era. This is required as a shield against an all-powerful parliament, which can resort to overuse of Article 368. There is another school of thought, however, that says that… twitter.com/i/web/status/1…

However as it stands Basic Structure doctrine which was first crystallised today 50 years ago by SC as shield to protect fundamental rights of the Citizens. The parliament does not absolute power to amend fundamental rights & any thing that touches basic structure would be struck… twitter.com/i/web/status/1…

Further Article 145(3) of the Constitution of India unlike other SC’s in the world our Supreme Court has the exclusive power to constitute 5 judge bench to adjudicate a matter which involves a substantial question of law as to the interpretation of this Constitution or a statute.

The story of the Basic Structure would not be complete without without mentioning of the German Jurist Prof. Dietrich Conrad, whose theory of implied limitation was incorporated in India as the Basic Structure Doctrine.

Conrad was a Professor at the South Asia Institute of the… twitter.com/i/web/status/1…

Within a month of his appointment, Hitler declared an emergency and suspended the constitutional protections on civil rights i.e. the Right to Freedom of Speech and Expression, Association, Residence and Habeas Corpus. Thereafter, the legislature passed the Enabling Act which… twitter.com/i/web/status/1…

Federal Republic of Germany was drafting its new Constitution called the Basic Law, it introduced substantive limits to the amending power by expressly designating certain parts that cannot be modified by the Parliament. Article 79(3) of the Basic Law explicitly barred any… twitter.com/i/web/status/1…

In February 1965, Prof. Conrad was invited to deliver a lecture at the Banaras Hindu University in India, wherein he spoke on the topic of ‘Implied Limitation of the Amending Power’. He cited the Nazi regime and how it defaced the Weimar Constitution in its quest for power, to… twitter.com/i/web/status/1…

Thereafter, Conrad discussed Article 368 of the Constitution of India, according to which the Parliament may amend the Constitution so long as the Amendment Bill is passed in each House by a majority of the total membership of that House present and voting. He put forth… twitter.com/i/web/status/1…

MK Nambiar was impressed with doctrine emancipated by Prof Conrad. That he used his thesis before the SC in the Golak Nath Case (1968). The majority on that that judgement did not rely on this doctrine but believe there was substantial force in argument and SC may revisit in… twitter.com/i/web/status/1…

Such a situation ultimately did arise in Keshvanand Bharti case where through 24th Constitutional Amendment Act the Parliament was given power to amend, repeal or modify any part of the constitution as long as if passed requisite majority.

Shri Nani Palikwala argued before the… twitter.com/i/web/status/1…

This is theory of Basic Structure has evolved over last 70 years since 1950 & how it was adopted by Constitution Bench of 13 judges of SC today 50 years back.

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