Document Fragment View

Matching Fragments

22 The basic structure doctrine was evolved by judicial interpretation in Kesavananda to ensure that the fundamentals of constitutional governance are not effaced by the exercise of the constituent power to amend the Constitution. The postulate of the doctrine is that there are values which are so fundamental and intrinsic to the democratic way of life, a republican form of government and to the preservation of basic human freedoms, that these must lie outside the PART C power of legislative majorities to override by the exercise of constituent powers. The doctrine was a warning to “a fledgling democracy of the perils of brute majoritarianism”31. The basic structure doctrine and the power of judicial review have ensured (in the course of the previous thirty four years) the preservation of basic constitutional safeguards and the continuance of constitutional institutions accountable to the sovereignty of the people. The basic structure doctrine imposes a restraint on the exercise of the constituent power. Equally, it is necessary to remember that the exercise of the constituent power may in certain cases be regarded as enhancing the basic structure. The constituent power enhances the basic structure when it recognizes new sets of human freedoms, sets up new structures of representative governance in the constitutional text or imposes restraints on the power of the state to override popularly elected institutions. Secularism, which is inherent in the entire constitutional framework and flows from fundamental rights guaranteed in Part III, is a part of the basic structure of the Constitution.32 Secularism is based on the foundations of constitutional morality and reflects the idea of our democracy. The insertion of the word “Secular” into the Preamble of the Constitution, by the 42nd amendment, did not redefine the Constitution’s identity. The amendment formally recognized the bedrock of the constitutional scheme. The amendment solidified the basic structure of the Constitution. 31Raju Ramchandran, “The Quest and the Questions”, Outlook (25 August, 2014), available at https://www.outlookindia.com/magazine/story/the-quest-and-the-questions/291655 32 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; SR Bommai v. Union of India, (1994) 3 SCC 1 PART C 23 Democracy has been held, by a Constitution Bench of this Court in Kihoto Hollohan v Zachillhu33, to be a part of the basic structure of our Constitution. The insertion of Article 239AA by the exercise of the constituent power is an instance of an amendment elevating a democratic form of governance to a constitutional status for the National Capital Territory. In interpreting such exercises of the constituent power which fortify the basic structure, the meaning of the constitutional text must be guided by the intent underlying such exercises of the constituent power. A nine-judge Bench of this Court in I.R. Coelho v State of Tamil Nadu34 had held thus: