In the crowded hours of our daily lives we unfortunately tend to forget the deeds of great individuals who have left their indelible footprints on the sands of time. Justice H.R. Khanna is one such individual. In the course of his distinguished judicial career Justice Khanna delivered several important judgments. His sterling contribution to our constitutional jurisprudence was his enunciation of the unique doctrine of the basic structure of the Constitution. This doctrine has had an immense impact on the development of our Constitution and the expansion of judicial review to pronounce upon the constitutionality of not merely ordinary legislation but also of a constitutional amendment.

The rationale of the basic structure doctrine is that however wide the power of amendment under Article 368 of our Constitution, the essential features of the Constitution cannot be done away with under the guise of amendment. For example the Constitution cannot be amended so as to convert India into a theocratic state. Again the amending power cannot be exercised to delete federalism from the Constitution, nor can a constitutional amendment provide that the legality of executive action and validity of legislation will be determined by the executive and parliament and not by courts exercising the power of judicial review. Such amendments by abrogating these essential features of the Constitution would damage its basic structure and are liable to be struck down as unconstitutional.

Initially the basic structure doctrine encountered severe criticism and even ridicule. It is now firmly entrenched in our jurisprudence. It has proved an invaluable bulwark against Parliament’s voracious appetite to abrogate the fundamental rights of citizens. As a matter of interest, the Bangladesh Supreme Court has endorsed it and struck down a constitutional amendment.

... contd.