Shri Kesavananda
Bharati (9 December 1940 – 6
September 2020) and Kesavananda Bharati Sripadagalvaru & Ors. v.
State of Kerala & Anr. (Writ Petition (Civil) 135 of 1970). With
this, it's all started and the new era of our modern constitution got its
substructure. We are discussing it as the pioneer of this
augmentation left the world on 6th September at the age of 79.
On 21st March 1970, Shri Kesavananda Bharati appealed in the apex court
where he challenged the takeover of the Kerala Government which was owned by
his mutt mentioning the Land Reform Act of 1969. Later he had gone a step ahead
and filed a case in the Supreme Court of India. That petition was heard by an iconic 13-member bench that is the largest bench in the history of our
respected Supreme Court. From there the concept of Basic Structure
Doctrine came into the landscape. Before understanding the Basic Structure
Doctrine, we need to comprehend: Original Intent and Living Tree Doctrine.
First, we'll embrace the "Original Intent" Approach. We'd The
Constituent Assembly Debates (CADs). There were a number of the stalwart of
discussion. It came up with different deliberations and Articles got inserted
in our constitution. This is what we called the "Original Intent"
Approach. Now we've Living Tree Doctrine. We know for the fact that our
constitution is not dead because it is organic that changes with time. Also, it
is not only Rigid but also Flexible. What might be applicable in 1947 might not
be applicable in 2020. It means what was originally envisaged might not be of
use today. So this means the constitution has been changing now and then so the
legislature would be able to draft the Laws and The Supreme Court might give a
new interpretation and meaning to the original meaning to that particular
article. So the Living Tree Doctrine is more flexible which gives new meaning
and interpretation to the Article and hence to our Constitution. The Original
Intent is rigid in approach which only envisions what was originally intended
by the constitution stalwarts.
Originally there was nothing called basic Structure Doctrine. But this was beautifully recreated in the Supreme Court of India. As we discussed above our constitution is a living document. There is addition or deletion and we call it Constitution Amendment. But there are some epic pillars on which our Constitution Makers had drafted the beauty, it might be on basis of democracy, secularism, etc... These are values that can be changed as it would destroy the framework and foundation of our constitution. So in order to make sure that the very foundation is intact of the constitution, our Supreme Court came up with the "Basic Structure Doctrine". What is the Basic Structure Doctrine? There are certain foundational values with respect to the constitution which are originally envisaged if this is destroyed The idea of the constitution becomes dead. So, the Supreme Court said the constitution cannot be interfered with by the amendment of the parliament in such a case. Before that parliament had certain powers where it could amend the constitution and even snatch the Fundamental Right of the citizen. But now basic structure in the picture this power that was given to parliament is restricted. They can change it but without violating the basic structure as directed by the Supreme Court.
There is another side of the story as well. When we
look at our Preamble which starts with " WE, THE PEOPLE OF INDIA, ".
So by this, we can say it's the people of India who had Sovereign Power and by
basic structure concept, it means it is snatching the Sovereign Power of the
citizen of India. It is because the legislature is selected by the Citizen of
India. They are representative and they are responsible for bringing any change
in the form of amendments in the constitution but due to basic structure will
not let them change the things. Due to this concept, the critic of the Basic
Structure Doctrine says it is undemocratic as unelected judges can strick down
even a constitutional amendment.
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