Basic Structure Doctrine

The genesis of the ‘Basic structure’ doctrine lies in the conflict

between Fundamental Rights (FR) and Directive Principles of
State Policy (DPSP) that arose after the independence over the
issue of implementing land reforms
The following four cases are important to understand the
genesis of ‘Basic structure’ doctrine- Shankari Prasad (1951),
Golak Nath (1967), Keshavananda Bharati (1973) and
Minerva mills (1980)
Shankari Prasad case
SC opined that the power of the parliament to amend the
constitution under Article 368 also includes the power to
amend Fundamental Rights
It based its judgment on the logic that the word ‘law’
mentioned in Article 13 includes only ordinary laws and not
constitutional amendment acts
Golaknath case
SC overruled its judgment
It ruled in this that- Fundamental Rights are given a
transcendental and immutable position and hence the
Parliament cannot abridge or take away any of these rights
It opined the constitutional amendment act is also a law
under Art 13
Parliament reacted to this judgment by enacting 24th
amendment act which included a provision in Art 368
which declared that Parliament has power to take away any
of the fundamental rights
Keshavananda Bharati case
SC overruled its judgment in the Golaknath case
It upheld the validity of the 24th amendment act and opined
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 that parliament is empowered to take away or abridge any
of the FRs. However, such changes should not alter the
‘basic structure’ of the constitution
Minerva mills case
Parliament reacted to the above case by enacting 42nd
amendment act which declared under article 368 that
there is no limitation on the constituent power of Parliament
and it barred the courts from questioning such
amendments
This provision was invalidated by the SC stating that
Parliament cannot take away the ‘judicial review’ power of
the constitution since it is part of the ‘basic structure of the
doctrine’

Basic structure doctrine

The doctrine of basic structure though is not exactly defined but

through its contents which have been provided by the judicature
clarifies a scope defining the frame or the structure of the
constitution. From time to time basic structure is enhanced with
some new contents and hence the Supreme Court is yet to
define the exact basic structure of the constitution
Supremacy of the constitution
Rule of law
Sovereignty, liberty and republic nature of Indian polity.
Judicial review o Harmony and Balance between fundamental
rights and directive principles.
Separation of power.
Federal character.
Parliamentary system.
Rule of equality.
Unity and integrity of the nation.
Free and fair elections. o Powers of SC under Article
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 32,136,142,147
Power of HC under Article 226 and 227.
Limited power of parliament to amend the constitution. o
Welfare state. o Freedom and dignity of an individual.
The Basic Structure concept got highlighted in various
judgments of Supreme Court such as Indira Nehru Gandhi,
Minerva Mills, Waman Rao and I.R.Coelho etc.

Basic structure doctrine: its main criticisms

The common criticism is that the doctrine has no basis in the

Constitution’s language. The doctrine does not have a textual
basis. There is no provision stipulating that this Constitution has
a basic structure and that this structure is beyond the
competence of amending power
Its detractors also believe the doctrine accords the judiciary a
power to impose its philosophy over a democratically formed
government
There is no definite elucidation on what exactly constitutes
basic structure, thereby, making the doctrine ambiguous
In recent times, the doctrine has been invoked in cases that has
been regarded as examples of judicial overreach. Ex: NJAC bill
was declared null and void by the SC by relying on this doctrine
Arguments for existence of Basic structure
Article 13 (2) provides for the protection of the fundamental
rights of the citizen. Parliament and the state legislatures are
clearly prohibited from making laws that may take away or
abridge the fundamental rights guaranteed to the citizen.
The constitution has explicitly mentioned that SC is the
guarantor and defender of the constitution.
Absence of this doctrine would have enabled an authoritative
government to dilute the provisions of the constitution.
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 Note: Some important terminologies

1. Judicial activism

Judicial activism is a judicial philosophy holding that the courts

can and should go beyond the applicable law to consider
broader societal implications of its decisions.
Examples: Keshavananda Bharati case, Maneka Gandhi case
PIL has become the major tool for giving effect to judicial
activism in recent times

2. Judicial overreach

Using judicial powers to interfere with the proper functioning of

executive and legislature.
Examples: Banning firecracker, regulations related to allowing
bars near highways

3. Judicial review

Judicial review is the power of courts to decide the validity of

acts of the legislative and executive branches of government.
Courts derive powers for their judicial review under Art 13(2), Art
32 and Art 142. Example: Scrapping section 66A of the IT act

Practice questions

1. It may well be the case that the basic structure doctrine is

derived from the abstract. But that scarcely means it doesn’t
exist within the Constitution. Comment.(250 words) (Insights
secure)
2. Examine the limitations in amending any part of the Indian
constitution. (250 words) (Insights secure)
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