Indian Kanoon - Search engine for Indian Law

21. Basic Structure doctrine, laid down by Constitutional Bench of Honble Supreme Court in KesavanandaBharati v. State of Kerala 1973(4) SCC 225 provides that power of amendment cannot be exercised so as to damage or destroy essential elements or basic structure of the Constitution, whatever these expressions may comprehend. The theory of basic structure is woven out of conspectus of Constitution and amending power is subjected to it, because changing Basic Structure is a constituent power available to Constituent Assembly and not constituent or legislative power available to Legislature. The principle was reiterated or discussed in Indira Nehru Gandhi vs. Raj Narain (AIR 1975 SC 2299); Minreva Mills Limited vs. Union of India (AIR 1980 SC 1798); Bhim Singhjivs. Union of India (AIR 1981 SC

22. Basic structure doctrine would be applicable wherever spread and sweep of amending power conferred under Constitution on legislature to amend it, is under discussion. Both the Constitution of India and Constitution of Jammu and Kashmir have come into being through same process and have same origin. In both cases a duly elected Constituent Assembly was convened or convoked with the specific task of framing Constitution for the country and for the State respectively. What is true about Constitution of India as regards, Basic Framework of the Constitution is true about Constitution of Jammu and Kashmir.

24. Constitutional autonomy guaranteed to the State is Basic Structure of State Constitution and beyond amending power available to the State Legislature under Section 147 of the Constitution. One of important facets of autonomy enjoyed by the State and therefore Basic Structure of the State Constitution as recommended by Basic principles committee, was elected Head of State. Section 26 of Constitution provided that Head of the State (SadriRiyasat) shall be elected in the manner, provided under Section 27. The Head of the State as provided under Section 27, of the Constitution, was to be elected by people of the State through their representatives in State Legislatures. The Constitution of Jammu & Kashmir (Sixth Amendment) Act 1965 amended the State Constitution and replaced Sadri Reyasat by Governor. In terms of aforestated amendment Governor is appointed by the President and is to be Head of the State. The office of Head of the State in wake of amendment ceases to be elective. The sixth amendment therefore did not merely change the nomenclature but the eligibility, mode and method of appointment of Head of the State. The elective status of Head of the State was an important attribute of Constitutional autonomy enjoyed by the State, a part of Basic Framework of the State Constitution and therefore not within the amending power of the State legislature. It is questionable whether Constitution of Jammu & Kashmir (sixth Amendment) Act, 1965, to the extent it amended Section 26 and 27 of Constitution of Jammu and Kashmir and all connected provisions of the Constitution, satisfies the Basic Structure doctrine and falls within the ambit of power under section 147 of the State Constitution. In absence of challenge to Jammu & Kashmir Constitution (sixth Amendment) Act 1965, it would be appropriate to leave it to State Legislature to consider the matter and take measures as required to uphold the Constitution. The Legislature is equally under a constitutional obligation to uphold the Constitution and rectify an error, wherever necessary. A Jurist has said that to perpetuate an error is no heroism and to rectify it is compulsion of conscience. Be that as it may Constitutional autonomy of the State provided under Constitution of Jammu & Kashmir, is Basic Structure of the Constitution and beyond amending power of State Legislature under section 147, Constitution of Jammu & Kashmir.