The constitutional fabric is knit naturally with authority and constraint. A country's constitution embodies the Grundnorm - setting the groundwork for civic society. Constitution is regarded as a repository of the people's General Will, it is appropriately regarded as not only the fundamental law of the land but also as a 'living organic thing' and a source of all legitimacy through which all subsequent laws are to be created and tested in the national interest.
Thus, constitutions' distribution of powers, their exercise by their holders, and who has the ability to check their validity usually include some degree of doctrinal agreement. Thus, constitutions can be appropriately characterised as statements of values that serve as the most universal and sacred storehouse of societies' hopes and aspirations. These ideals, which reflect the desires of a continuing majority, one may say, should be kept, protected, and nurtured from generation to generation, rather than abrogated.
On the other hand, because a nation's life is dynamic, alive, and organic, and its political, social, and economic circumstances are always changing, it is now well established that no constitution on Earth is ever final. Herein lie the imperatives for amending a constitution as time and circumstance dictate.
In India, the Supreme Court established the Basic Structure Doctrine in 1973. However, in 1967, a dispute arose in the GolakNath case before the Supreme Court of India as to whether any aspect of the Constitution's fundamental rights provisions may be reduced, taken away, or curtailed by constitutional amendment.
The Golak Nath court implicitly applied the theory, concluding that the Parliament lacked the capacity to change fundamental rights in such a way that any of them would be taken away or abridged, and that they were thus kept out of Parliament's grasp, as Subba Rao pointed out. The court ruled that modifications that remove or limit fundamental rights protections are unconstitutional. The majority judgment's main point was that it used "the concept of implied constraints" to limit Parliament's ability to change the constitution. The justices stated that fundamental rights were so sacrosanct and fundamental in value that they could not be curtailed even if both houses of Parliament unanimously approved such a move. However, the court's decision sparked a "frenzied forensic and political controversy" among the time's participants.
Following that, in the Kesavananda case in 1973, fundamental rights were raised again, and the court overturned the Golak Nath ruling. By a 7:6 vote, the court decided that while no component of the constitution, including fundamental rights, was beyond Parliament's amending power, this power did not extend to provisions affecting the 'core structure of the Constitution,' which could not be changed even by a constitutional amendment. The court emphasised that, while Parliament has "vast" powers, it does not have the authority to destroy or emasculate the constitution's fundamental parts or features. The core features refer to the basic structure of the constitution that embodies its essence and spirit of it.
The basic philosophy underlying the doctrine of non-amendability of the basic features of the Constitution, evolved by the majority in Kesavananda has been beautifully explained by Hedge and Mukherjee, JJ., as follows:
Our Constitution is not a mere political document. It is essentially a social document. It is based on a social philosophy and every social philosophy like every religion has two main features, namely, basic and circumstantial. The former remains constant but the latter is subject to change. The core of a religion always remains constant but the practices associated with it may change. Likewise, a Constitution like ours contains certain features which are so essential that they cannot be changed or destroyed.
Both proponents and detractors have weighed in on the debate over the basic structure theory.
Accountability and capability are two of the most common objections of the philosophy. It's been argued that the Supreme Court (an unelected institution) is blocking amendments that a majority of the people's representatives approve, hence the theory is fundamentally undemocratic. Several critics claim that the basic structure notion weakens the Constitution itself by undermining Parliament's authority. It is more likely that someone else will do the same if power is taken away from the people. According to Durga Das Basu, who challenges the idea, there is no legal basis for presuming that certain elements of the Constitution or the heart of it or its structure are excluded from the amending power due to an inherent constraint.
Proponents say that the basic structural theory is important in order to maintain democratic norms. People who are worried about Parliament's potential for abuse can find comfort in this doctrine. As a result, it may help avoid the establishment of a non-democratic regime and ensure stability and the protection of some basic rights. The most remarkable feature of the doctrine of basic structure, according to V. N. Shukla, is the judiciary's ability to weigh in on constitutional amendments.
Parliaments are not omnipotent in all circumstances, and courts are not a panacea. As a side note, neither a judicial hands-off attitude nor the uncritical embrace of 'political question doctrine is a reasonable approach to take. To a similar extent, courts that wield unchecked judicial authority undercut democratic democracy, putting representational and majoritarian institutions like parliaments on the defensive. Parliaments with "knot-free" legislative authority, on the other hand, may pervert or disfigure the so-called "Grundnorms" and the very "spirit" of a Constitution in order to achieve parochial a-political ends. Because of the basic structure doctrine, there is a pressing need for symbiotic checks and balances between the legislative competence of parliaments and the adventurism of the courts.
Therefore, in pursuit of consolidating constitutionalism, a viable imperative might be the cultivation of ‘balanced judicial activism’ that lies between the spectrums – judicial extremism and judicial abdication.