Criticism of Basic Structure Doctrine

By : Neha Dhyani

Updated : Jun 3, 2022, 8:39

The Supreme Court of India developed the Basic Structure Doctrine during a series of cases between 1960 and 1970. The doctrine was formally introduced in 1973 in the landmark judgment by Justice Hans Raj Khanna.

Some Criticism of Basic Structure Doctrine is discussed in this article.

What is Basic Structure Doctrine?

The Basic Structure Doctrine upholds that the Constitution of a Sovereign State has aspects that should be beyond the amending power of the legislature.

The Supreme Court of India developed it during a series of cases between 1960 and 1970 that ultimately culminated in Kesavananda Bharati v. the State of Kerala. The doctrine was formally introduced in 1973 in the landmark judgment of Justice Hans Raj Khanna.

As per the Basic Structure Doctrine, the features of the Constitution that the legislature cannot alter or destroy pertains to the Supremacy of the Constitution, Republican and Democratic Form of Government, Federal and Secular Character of Constitution and Separation of Power.

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Criticism of Basic Structure Doctrine

  1. The most common Criticism of the basic structure doctrine is that there has been no basis for the doctrine in the language of the Constitution. It has no textual basis. There is an absence of a provision that can stipulate that the Constitution has a basic structure beyond the competence of amending power.
  2. Another crucial Criticism of the Basic Structure Doctrine lies in the thought that the doctrine is unsuitable and even destructive to constitutional legitimacy.
  3. It is inconsistent with the concept of separation of power.
  4. It is a matter of subjectivity. It is seen that the basic structure doctrine gets defined differently by different judges based on their subjective satisfaction. This leaves the decision to decide the validity or invalidity of Constitutional Amendments influenced by the personal preferences of judges who then acquire the power to amend the Constitution.
  5. Another criticism of the basic structure doctrine is that it makes the judiciary the third decisive chamber of the Parliament.
  6. The basic structure doctrine has also been criticised because it accords power to the judiciary that allows it to impose its philosophy on a government that is formed democratically.
  7. There is also a lack of definite explanation as to what constitutes the basic structure, thereby leaving the doctrine ambiguous.
  8. Recently the doctrine has been called upon in cases regarded as incidents of judicial overreach like the NJAC bill was declared null and void by the Supreme Court based on this doctrine.

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In the absence of any clear definition and from its contents as provided by the judicature, the basic structure of doctrine clarifies a scope that defines the frame or structure of the Constitution. Time and again, different enhancements in the structure with some new contents in the doctrine have been the reason why the Supreme Court is yet to define the exact frame of the Constitution.

To conclude, The basic structure doctrine acts as a guard for certain provisions of the Constitution of India from getting amended. It is by invoking the doctrine that certain parts of the Constitution of India are beyond the amending power of the national legislature permanently. But as it is with anything, there is Criticism of the Basic Structure Doctrine, too, as we have seen in the article.

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FAQs on Criticism of Basic Structure Doctrine

Q1. What is the most common Criticism of the Basic Structure Doctrine?

The most common Criticism of Basic Structure Doctrine is that it lacks a textual basis.

Q2. In the context of Criticism of Basic Structure Doctrine, in which countries is the Basic Structure Doctrine recognised?

In the context of Criticism of the basic structure doctrine, the Basic Structure Doctrine is recognised in India, Malaysia, Pakistan, Bangladesh, and Uganda.

Q3. With regard to Criticism of the Basic Structure doctrine, discuss the origin of the Basic Structure Doctrine?

With regard to the Criticism of the Basic Structure Doctrine, the Basic Structure Doctrine has its origin in India. Its basis was formed during the Minerva Mills Ltd versus Union of India AIR 1980 SC 1789. The Supreme Court stated that the Parliament could not amend the Constitution that threatened its basic and essential features.

Q4. With regard to the Criticism of Basic Structure Doctrine, which features of the Constitution are termed as basic?

With regard to the Criticism of Basic Structure Doctrine, the supremacy of the Constitution, a republican and democratic system, secular character of the Constitution, separation of powers, and the federal character of the Constitution, are the basic features.

Q5. In the context of Criticism of Basic Structure Doctrine, why is the doctrine ambiguous?

In the context of Criticism of Basic Structure Doctrine, the doctrine is ambiguous as there is a lack of definite explanation as to what constitutes the basic structure.