The Doctrine of Basic Features

The Supreme Court held in the case of Keshavanada Bharati that there are certain basic features of the Constitution of India, which cannot be altered by an amendment under Art. 368. 

Article 31C, introduced by 25^th Amendment Act provided that if any law seeks to implement the directive principles contained in Art. 39(b) (c) i.e. regarding socialistic control and distribution of the material resources of the country, such law shall not be void on the ground of contravention of Art. 14 or 19. The Supreme Court later held that Art. 368 did not empower the parliament to take away judicial review in the name of ‘amending ‘the constitution.

The 42^nd Amendment 1976 inserted two clauses in Art. 368 to h effect that Constitution Amendment Act ‘shall called in Question in any court in the Minerva Mills case.

There are three implications of the decision in Keshavananda Bharati’s case.

·         Any part of the Constitution may be amended as per the procedure laid down in Art 368.

·         No referendum or  reference to constituent Assembly is required to amend any provision of the Constitution

·         Basic features of the Constitution cannot be amended.

There is no limited list of basic feature. In so many decisions the Supreme Court has declared differed things a basic feature. Prominent among them are the following:

·         Supremacy of the Constitution

·         Rule of law.

·         The principle of separation of powers.

·         The objectives specified in the preamble to the Constitution.

Judicial review; Art. 32

Federalism.

·         Secularism

·         The Sovereign, Democratic, Republican structure.

Freedom and dignity of the individual

Unity and integrity of the Nation.

The principle of equality, not every feature of equality, but the quintessence of equal justice.

The ‘essence’ of fundamental rights in Part III.

The concept of social and economic justice to build a Welfare State.

The balance between fundamental rights and directive principles.

The parliamentary system of Government.

The principle of free and fair elections.

Limitations upon the amending power conferred by Art. 368

Independence of the Judiciary.

Effective access to justice.

Powers of the Supreme Court under Arts.32, 136, 141, 142.