Parliament and the state legislatures, according to the Constitution of India have the power to make laws within their respective jurisdictions. This power thus granted however, is not absolute in nature. The Constitution confers in the judiciary, the power to decide on the constitutional validity of all laws. If there is any violation of the provisions of the constitution because of laws made by Parliament or the state legislatures, the Supreme Court has the power to declare such a law invalid . Nonetheless. In spite of this check, the founding fathers wanted the Constitution to be an adaptable document rather than a rigid framework for governance. Therefore, the Parliament was invested with the power to amend the Constitution.
Although it may seem like Article 368 of the Constitution makes the Parliament’s amending powers absolute and encompass all parts of the document, butut the Supreme Court has acted as a brake to the legislative zeal of Parliament ever since independence. With the intention of preserving the original ideals imagined by the constitution-makers, the Supreme court made it clear that the Parliament could not distort, damage or alter the basic features of the Constitution under the ploy of amending it. The phrase ‘basic structure’ itself cannot be found in the Constitution.
This concept was recognised by the Supreme Court for the first time in the historic Kesavananda Bharati case in 1973. Since then the Supreme Court has been the paraphraser of the Constitution and the arbiter of all amendments made by the Parliament.
Basic structure theory of the constitution
The Constitution, Parliament, and State Legislatures give the right to make laws within their respective jurisdictions. Bill can be introduced only in the Parliament to amend the Constitution, but this power is not complete. If the Supreme Court feels that the law made by Parliament is not justified with the Constitution, then it has the power to declare it (Supreme Court) as invalid. Thus, in order to protect the ideals and philosophies of the original constitution, the Supreme Court has set up the basic structure theory. According to the principle, Parliament cannot change or destroy the constitution of the constitution.
The basic features of the Constitution are as follows:
• Supremacy of the constitution
• Republican and Democratic form of government
• Secular character of the constitution
• Federal character of the constitution
• Division of powers
• Unity and sovereignty of India
• personal freedom
• Important decisions of the Supreme Court
Development of infrastructure
The term “basic structure” has not been mentioned in the Constitution of India. This concept gradually developed with the involvement of the judiciary to protect the basic rights of the people and the ideals and philosophy of the Constitution from time to time.
In the case of Keshavandhav Bharti v. State of Kerala in 1973, a bench of 13 judges of the Supreme Court, amending its constitutional stand, said that the only restriction on the right to amend the Constitution is that through this, the basic structure of the Constitution should not be harmed. In spite of all its contradictions, this principle still persists and is acting as a curb in the hasty modifications. In the case of Keshavanand Bharti v. State of Kerala, there was a hearing for 68 days, the arguments arose on October 31 Starting on 1972 and ending on 23 March 1973.
All efforts were only for the answer to this one main question whether the power of Parliament was to make unlimited amendments to the Constitution? In other words, can Parliament cancel, modify and change any part of the Constitution, even if it is to take away all the fundamental rights? In paragraph 368, there was no limit to the power of Parliament for modification of any part of the Constitution.
Before Kesavanada Stage
Postindependence many laws came into action in the state and their aim was of reforming existing land ownership and tenancy structures.