RESEARCH PROJECT

Semester: I

Batch: 2022-27

Group No. - 18

Project for Constitution History:

BASIC STRUCTURE DOCTRINE OF INDIA

Submitted By: Submitted To:

Abhimanyu [ 22BAL002] Mrs. Dhanya S.

Abhishek Joshi [ 22BWL002] Professor of Constitutional History

Deependra Singh Rawat [ 22BAL024] Gujarat National Law University

Dhanyajeet Singh [22BCL009]

Dharshan Govinth R [22BAL026]

D.B.S. Chaitanya [ 22BAL028]

Harshit Saini [ 22BAL030]

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 Table of Contents

1. ABSTRACT ……………………………………………………………………… 3
2. KEYWORDS ……………………………………………………………………. . 3
3.INTRODUCTION ………………………………………………………………….. 4
4. BACKGROUND ………………………………………………………………….. 5
5. SIGNIFICANCE …………………………………………………………………... 5
6. LITERATURE REVIEW ……………………………………………………….….. 6
7. METHODS & PRACTICES ………………………………………………………... 8
8. EVOLUTION OF BASIC STRUCTURE DOCTRINE ………………………………….. 9
9. NATURE AND CONCEPT OF BASIC STRUCTURE DOCTRINE …………………….. 15
10. CONCLUSION …………………………………………………………………. 20
11. WAY FORWARD ……………………………………………………………….. 22
12. BIBLIOGRAPHY ………………………………………………………………... 23

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 Abstract

In this project, the doctrine of basic structure and its various aspects has been discussed.
Various cases related to basic structure doctrine have also been discussed to give a brief about
the nature and concept of basic structure doctrine and how judicial review has maintained an
important role in preserving the constitution from providing arbitrary powers to parliament to
amend any part of the constitution. The very important case concerning the basic structure
doctrine is the “Keshavananda Bharati case” as it changed the dynamics of the Indian judiciary
and give itself more places to preserve the constitution from the misuse of its power. This
project with the Keshavananda Bharati case also discusses other cases concerning the basic
structure doctrine which have played an important role in evolving basic structure like
“Shankari paraded case”, “Golaknath case”, “A.K. Gopalan case”, “Sajjan Singh case”,
“Minerva mills case”. To explain the importance of having a basic structure doctrine, the
project discusses the “pre- Keshavananda” and “post- Keshavananda” positions to signify
various changes our country’s legal system has witnessed.

Key Words – Basic Structure Doctrine, Constitutional Amendment, Judicial Review and
Fundamental Rights.

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 Introduction

The Constitution is a set of laws and rules which determines and defines the relationship
between different bodies of the government i.e., the executive, the legislature, the judiciary,
and the Centre and state governments. The Constitution of India is a kind of its own
representing the political, social and economic ideas of India. The Constitution of India has
been entrusted with powers of different institutions according to which different bodies in a
nation function and these powers are entrusted and belong to the people of India. This basic
idea has been entrusted in the Preamble of the Constitution and also forms the ‘Basic Structure,
which in turn consists of the fundamental rights which are exercised by the citizenry. India has
usually confronted situations in which its most important democratic institution has closed.
One such clash was the power struggle between the judiciary and the legislature, which
escalated in the mid-1970s. The Kesavananda Bharti vs. State of Kerala judgement was
delivered by the Supreme Court on 24 April 1973 and it became a unique case in the history of
international constitutional law for many reasons which include,

• The Supreme Court pronounced that every provision of the Constitution can be
amended except the ‘Basic Structure of the Constitution, which includes the
fundamental rights.
• The Supreme Court can review the laws formulated which infringe upon the
fundamental rights of the constitution (Basic Structure).

According to the Constitution, parliament and the State legislature have the power to make
and amend laws under Article 368 of the Indian Constitution but at the same time, it is not
absolute. This can be seen in the case of Keshavananda Bharati, where the Supreme Court
declared that it has the power to declare a law ultra vires if it breaches the ‘Basic Structure
doctrine. The Constitution makers provided the power to amend the constitution to the hands
of the Parliament in a way that it is neither too flexible nor too rigid for the main purpose of
coping with the changing needs of the people.

The word ‘Basic Structure’ itself cannot be seen in any parts of the Constitution, as it is a
concept which evolved through various judicial pronouncements by the Supreme Court in the
post-independence period. Different cases led to different and unique addition and enlargement
of the doctrine of ‘Basic Structure’ which includes the Shankari Prasad case (1951) to the K.S
Putuswamy case (2017). These cases and their consequences on the ‘Basic Structure’ has been
clearly mentioned and explained in this research.

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 Background

The concept of Basic Structure came into existence in the landmark judgement in the
Kesavananda Bharti vs State of Kerala case 47 years ago. The basic structure doctrine
developed gradually from case to case. In the case of Shankari Prasad case (1951) and Sajjan
Singh case (1965) the Supreme Court gave the absolute amendment power to the Parliament
but later on in the case of Golaknath this power was reduced a bit as Fundamental Rights came
outside the preview of the amendment powers of the parliament. The then government of Indira
Gandhi tried to get over this judgement and passed the 24th, 25th, 26th and 29th amendment act.
Finally, the Supreme Court in the historic judgement of Kesavananda Bharti gave the
judgement that Parliament has the right to amend the Constitution so long as it does not alter
or amend the basic structure of the Constitution. This ‘Basic Structure’ has been still extended
by various cases after the case of Keshavananda Bharati.

Significance

The evolution of the ‘Basic Structure’ doctrine is clearly without any confusion a cornerstone
in the achievements of the judiciary in India. The Constitution makers intended the amendment
of the provisions of the Constitution to be neither too rigid nor too flexible. This is achieved
by the development of the ‘Basic Structure’ doctrine which protects the fundamental rights of
the citizen. This is done by declaring the laws by the legislature which infringe upon the
fundamental rights to be violative of the fundamental rights and further striking it down by the
judiciary. This research project on the Basic Structure Doctrine of Indian Constitution would
help in a better understanding of the topic, its evolution through the various cases, the
amendment powers of the Parliament and the Judicial Review power of the courts. It would
also be useful to gather systematic data for further research work in this area.

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 Literature Review

1. KUMAR, V. (2007). BASIC STRUCTURE OF THE INDIAN CONSTITUTION: DOCTRINE OF

CONSTITUTIONALLY CONTROLLED GOVERNANCE [FROM KESAVANANDA BHARATI TO I.R.
COELHO]. JOURNAL OF THE INDIAN LAW INSTITUTE, 49(3), 365–398

The work is a wonderful study of the notion of basic structure in India today. The basic
framework of the Indian constitution is initially covered in the article. The title of the article
correctly refers to Kesavananda Bharati and I.R. Coelho, and the author begins by analysing
how the fundamental structure has developed as a result of several instances and rulings.
The author carefully explains how India's basic structure came to be, how it supports the
upholding of our constitutional rights, and how it keeps us a democracy.

2. BESHARA, C. J. (2015). BASIC STRUCTURE DOCTRINES AND THE PROBLEM OF DEMOCRATIC

SUBVERSION: NOTES FROM INDIA. VERFASSUNG UND RECHT IN ÜBERSEE / LAW AND

POLITICS IN AFRICA, ASIA, AND LATIN AMERICA, 48(2), 99–123.

This paper broadly shows us about the Constitutional amendment is one of the main methods
of democratization subversion. As a safeguard against the polity's unsure commitment to the
rule of law, it is not rare for the constitution in transitional democracies to put substantial
restrictions on the amending power. Although there is no such clause in the Indian Constitution,
the Supreme Court has controversially stated that the Constitution's "fundamental structure"
cannot be changed. Amendments to the Constitution that aim to repeal fundamental principles
of constitutional governance are invalid, according to the basic structure concept, as it is
known. The theory is changing in India now from a substantive constraint on the amending
power to a prohibition on antidemocratic behaviour, broadly construed.

3. TITLE: DEMOCRACY AND CONSTITUTIONALISM IN INDIA: A STUDY OF THE BASIC

STRUCTURE DOCTRINE
AUTHOR(S): SUDHIR KRISHNASWAMY

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 PUBLISHER: OXFORD UNIVERSITY PRESS, USA
This book presents the judicial function in Indian constitutional law is presented in a
completely new way. The author offers a totally revised interpretation of the judicial branch's
function in Indian constitutional law. He analyses the importance and current state of the basic
structure doctrine in a clear and critical manner. He talks about whether the basic structure
review is a proper use of judicial authority or an abuse of it. He contends that a large portion
of the criticism of the theory stems from an inadequate mapping of the boundaries of
constitutional judicial review. He evaluates the soundness of the basic structural review in
terms of three different moral, societal, and legal considerations.

4. TITLE: BASIC STRUCTURE OF THE INDIAN CONSTITUTION: AN OVERVIEW

AUTHOR: JUSTICE V. DHANAPALAN
PUBLISHER: C. SITARAMAN & CO.
By putting his intellect to the very foundations of the Constitution and the basic structure
doctrine, Justice V Dhanapalan has made an arduous effort to look into the Constitution
Assembly debates, wisdom of the Constitution's founders, and their legislative objectives. A
special mention should be made of the author's efforts to analyse the presidential and prime
ministerial powers and how they operate in relation to constitutional principles as well as how
those powers are exercised with wisdom, including the analysis of various case laws,
illumination of the basis of our democratic principles, and upholding the constitutional
principles even in the face of constitutional crisis.

This book will help everyone stay informed about the importance of the Indian Constitution in
their daily lives and focus on India as the world's greatest democracy. It will also make every
nation in the world eagerly anticipate our report on how successfully and effectively the
democratic process is operating in our nation.

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 Methods and Practices

The research methodology is doctrinal. The facts and information already available
have been analyzed to make a critical evaluation of the research problem. To fulfil the
above-said objectives, Secondary data have been collected through various books,
journals, blogs and other online sources. Various case laws have also been analyzed to
understand the evolution of the ‘Basic Structure’ Doctrine. The effects of these cases
on the extension of the limit of the ‘Basic Structure Doctrine’ has also been explained
in this project which plays an important role in the contemporary period to understand
the essence of ‘Basic Structure’ of the constitution.

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 1. Evolution of Basic Structure Doctrine

The Indian Constitution is a living document that can be amended to meet the needs of society
as they arise. Article 368 of the Constitution empowers Parliament to amend the Constitution
whenever necessary. The doctrine of basic structure is merely a judicial innovation designed
to prevent Parliament from abusing its power of amendment. The idea is that the fundamental
features of the Indian Constitution should not be changed to the point where the Constitution's
identity is lost. Indian Constitution upholds certain principles which are the governing rules for
the Parliament, any amendment cannot change these principles and this is what the doctrine of
basic structure upholds. Although the doctrine did not always exist as it does today, it has been
advanced and supported by the nation's judges over time which can be analyzed by the
following cases –

I. A.K. Gopalan v. State of Madras [1950]

A.K. Gopalan v. State of Madras was one of the first cases in which the Court was asked
to interpret Part III's fundamental rights. In the case of A.K. Gopalan, an Indian communist
leader was detained. Mr Gopalan was detained 'preventively' in this case under Section 3(1)
of the Preventive Detention Act, 1950. Mr Gopalan sought a writ of habeas corpus under
Article 32(1) of the Indian Constitution and he claimed that the preventive detention
legislation under which he was detained violated Articles 19 (the right to freedom), 21 (the
right to life), and 22. (the protection against arbitrary arrest and detention). He also
challenged the order, claiming that it was issued for mala fide reasons. The Supreme Court
decided that because each of those articles covered entirely different subject matter, they
should be read separately rather than together. He also challenged the order, claiming that
it was issued for mala fide reasons. The decision in A.K.Gopalan v. State of Madras was
given by Hiralal Kania, CJ, who was then India's Chief Justice.
The court with the majority held that “the word “law” used in Article 21 of the Constitution
of India only means the procedural due process and since the preventive detention law
under which Gopalan was detained was a valid law, Gopalan’s detention was lawful even
though the law may violate some of his other Fundamental Rights such has his Right to
Freedom of Movement under Article 19, or, the detention was arbitrary under Article 14.”1

1 A.K. Gopalan v. State of Madras [1950] AIR 1950 SC 27.

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 The majority of the Supreme Court's judges ruled that identical words used in two different
provisions cannot be understood in the same context and that the words must have the same
meaning. Regarding the petitioner's claim that Article 21 of the Constitution's Fundamental
Rights had been violated, "procedure established by law" does not equate to "due process"
according to its definition and usage. The constitution's framers would have been clear if
they had intended for these two words to mean the same thing or to refer to the same
concept. They cannot abridge and violate Article 21 because the word law means lex and
not just.

II. Shankari Prasad vs Union of India [1951]

The Shankari Prasad Case sparked a discussion on the amending authority of the
Parliament and how it conflicts with fundamental rights. The Shankari Prasad case,
which was determined in 1951, was brought on by several land reforms, such as the
State Government’s elimination of the Zamindari system. Even though this decision
was contested in court, the First Amendment Act, which severely curtailed the right to
property, strengthened it. Therefore, the constitutionality of the First Amendment Act
was the main question before the Apex Court. Since it was unclear whether the revisions
adopted by the Parliament qualified as "law" under Article 13 (2) of the Indian
Constitution, that was also called into question

The petitioner's attorney vehemently argued that Article 13 (2) of the Indian
Constitution, which stated that "The State shall not make any law which takes away or
abridges the rights conferred by this Part and any law made in contravention of this
clause shall, to the extent of the contravention, be void," was being violated by the First
Amendment Act. The aforementioned section amply supports this claim. Despite the
petitioner's careful justifications, the court stated, "We find it, nonetheless, difficult, It
is reasonable to assume that they likewise intended to exempt those rights from the
constitutional amendment in the absence of any evidence to the contrary.2

2 Shankari Prasad vs Union of India [1951] AIR 458.

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 "Had it been meant to preserve the fundamental rights from the operation of that
provision, it would have been fairly easy to make that aim explicit by adding a proviso
to that effect," the Supreme Court of India further stated. Furthermore, the Apex Court
stated that rules or regulations made in the course of the usual legislative process are
the only things that qualify as "law" under Article 13(2). Constitutional amendments
could not be understood or included in the concept of law. The constitutionality of the
land reforms was acknowledged, in addition to the Parliament's authority to change the
Constitution, including the Fundamental Law. However, the court's decision in the
Shankari Prasad case was contested and brought up in subsequent instances involving
the Doctrine of Basic Structure.

III. Sajjan Singh vs. State of Rajasthan [1954]

In order to give effect to various policies enacted by the state legislature for agrarian
reform, the parliament brought in the constitution first amendment act 1951 which
added article 31(A) and Article 31(B) to the constitution which lead to the introduction
of the ninth schedule. Further, the constitution 17th amendment act 1964, article 31(A)
was further amended and 44 more such enactments were added to the schedule. The
object of the schedule cannot be challenged on the basis of the fundamental right
violation.3 Aggrieved by the enactment the petitioner (Sajjan Singh) challenged the
validity of the said amendment and all those legislations which added to the schedule
under article 32 of the constitution. The issue which arise from these situations was
whether the term “law” under article 13 includes amendments made to the constitution.
The supreme court held that the amendment brought is only for the fulfilment of socio-
economic policies. Also, the effect of the amendment on article 226 is incidental and
insignificant. The Parliament is not enacting any land legislation but is mainly violating
the already enacted once by the state legislature therefore the parliament reserves the
authority for the same.

3 Sajjan Singh vs. State of Rajasthan [1954] AIR RAJ 301.

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 IV. I. C. Golaknath & Ors vs State of Punjab & Anrs. [1967]

In Punjab, a family named Henry and William Golaknath owned 500 acres of farmland.
The Punjab Security and Land Tenures Act was nevertheless passed by the Punjab
government in 1953. According to the Act, a person may only own 30 Standard acres
(or 60 ordinary acres) of land. The Golaknath family was thus instructed to give up the
extra land and was only allowed to retain 30 acres of it (a few acres apart from the 30
acres of land would go to the tenants). The 1953 Act was challenged in court by the
Golaknath family, who claimed it infringed their Article 19 rights (1) (f). 4

The Supreme Court's previous ruling upholding Parliament's right to change all parts
of the Constitution, including Part III, which addresses fundamental rights, was
reversed by the 11-judge majority. The ruling removed Parliament's ability to impose
restrictions on Fundamental Rights. The Supreme Court decided that a constitutional
amendment passed under Article 368 of the Constitution qualified as "ordinary
legislation" under Article 13(3) of the Constitution by a razor-thin 6:5 vote.5

A constitutional amendment, which is also a regular law under Article 13's definition,
cannot violate the fundamental rights chapter of the Indian Constitution because Article
13(2) forbids the parliament from passing any legislation that restricts the rights
enumerated in Part III. As a result, any current constitutional amendments that violated
or provided an exemption to the Constitution's chapter on fundamental rights were
declared void. However, because the court used the doctrine of prospective overruling,
it was forced to uphold the earlier revised statute, which stated that a person could only
acquire 30 acres of land, in the Golaknath Case.

The 24th Amendment (1971), which expressly declared that Article 368 might be used
to curtail even fundamental rights, was passed by Parliament in response to the case.
Afterward, Article 13 lost its ability to void any provisions of Article 368.

Later, in Kesavananda Bharati v. the State of Kerala, the Supreme Court declared that
Parliament could not alter the fundamental design of the Constitution. most of the time
Limiting citizens' fundamental rights would change the Constitution's essential

4 W. S. Hooker Jr, ‘Prospective Overruling In India: Golaknath and After’, (1967) 9 JILI 596-637.
5 I.C. Golaknath and Ors. vs State of Punjab and Anrs. (1967 AIR 1643, 1967 SCR (2) 762)

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 design.In a roundabout way, this ruling safeguarded the fundamental rights of the
populace.

V. Kesavananda Bharati v. State of Kerala [1973]

The Kesavananda Bharati judgement, also known as Kesavananda Bharati
Sripadagalvaru & Ors. V. State of Kerala (Writ Petition (Civil) 135 of 1970), is a most
important ruling of the Supreme Court of India that articulated the basic structural
theory of the Indian Constitution.
Swami Kesavananda Bharati, senior plaintiff and head of the Hindu monastery Edneer
Matha in Edneer, Kasaragod District, Kerala, contested the Kerala government's
attempts to put limitations on the administration of its property under two land reform
legislation in February 1970. Swami was persuaded to file his appeal under Article 26
on the right to administer religiously owned property without interference from the
government by renowned Indian jurist Nanabhoy Palkhivala. The five-month-long
hearings had a significant impact on India's democratic procedures. The arguments in
this case were heard over the course of 68 days, from October 31, 1972, to March 23,
1973.
The Supreme Court examined the Golaknath v. State of Punjab ruling and debated the
constitutionality of amendments of article 24 to 29 of the indian constitiution. The
largest ever Constitution Bench of 13 Judges heard the case. Eleven separate judgments
were issued by the bench, some of which concurred and some of which did not. n a
verdict divided in margin of 7:6, the Supreme Court ruled on April 24, 1973, that while
Parliament had the authority to amend any provision of the Indian Constitution, it could
not use this authority to change or obliterate the "fundamental structure" of the
constitution.6

VI. Minerva Mills v. Union of India [1980]

Minerva mills ltd is a limited company that deals with textile business in Bangalore.
The central government is in the opinion that there will be a substantial fall in the
volume of production. So, on 20 august 1970, the central government appointed a

6
Aman Ullah, Samee Uzair, ‘Basic Structure Doctrine: The Impact of Keshavananda Bharati on Fundamental
Rights’, (2011) 26 JSAS 299-309.

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 committee under section 15 of the Industries (development regulation) act,1951 to
know the complete affairs of the company. The committee submitted its report in 1971.
So on the basis of the report, the central government ordered the national textile
corporation ltd to take over the management of the company under the sick textile
undertakings (nationalization) act,1974 on the issue that its affairs are managed that are
causing harm to the interests of the public. Thus, the petitioners challenged the validity
of Article 31B of the constitution and the constitutionality of sections 4 and 55 of the
42 constitutional amendment act 1976.7
Section 4 of the 42 Constitutional amendment act says that the courts cannot review the
laws made by the parliament and section 55 of the 42 Constitutional amendment act
says that parliament will have unlimited powers to make laws and from the Article 31C
of the constitution parliament can interfere with the fundamental rights article 14 and
article 19 granted by the Indian Constitution.
This case is mainly about the section 4 and section 55 of the 42 Constitutional
amendment act by saying those are beyond the power of parliament amending power
under article368 and whether Directive Principles Of State Policy has superiority over
the fundamental rights is the main issue here. On 31 July 1980, the decision was given
by 5 judge bench of the supreme court with a majority of 4:1 and declared that sections
4 and 55 of the 42 amendment act,1976 is unconstitutional by saying that there should
be a right balance between the different organs of the democracy and held that there
should be a right balance between the fundamental rights and directive principles of
state policy. And held that parliament has the power to amend the constitution of India
without affecting the basic structure of the Constitution of India.

VII. Justice K.S. Puttuswamy v. Union of India [2017]

On August 24, 2017, a nine bench of the Supreme Court passed a historic judgment affirming
the right to privacy as a constitutional right. This case had the grassroots in the petition filed
by Justice K Puttuswamy, a retired judge of the High Court filed a writ petition in the Supreme
Court in order to challenge the constitutional validity of the Aadhar scheme brought up by the

7
Minerva Mills v. Union of India [1980] SC 1789.

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UPA regime at that time. First, there was a three-judge bench hearing the matter, then it was
transferred to a five-judge bench and further at last to a nine-judge as it involves a vital matter,
whether there is a constitutionally guaranteed fundamental right to privacy8.

In this, the Supreme Court bench held privacy to be an integral part under Part Ⅲ of the
Constitution of India, which lays down other fundamental rights including equality, freedom
of speech, movement, personal liberty, etc. This judgment has overruled other judgments of
the Supreme Court including the case of MP Sharma v. Satish Chandra (1954)- eight judge
bench and Kharak Singh v. State of UP (1962)- six judge bench, which didn’t defend the
constitutional validity of right to privacy. Justice Chandrachud in this case further observed
that ‘privacy’ is based on autonomy and dignity and stated that “Dignity cannot exist without
privacy. Both reside within the inalienable values of life, liberty, and freedom which the
constitution has guaranteed to us”9.

The nine-judge bench unanimously affirmed the constitutional validity of privacy under Article
21 of the Constitution of India, thereby extending the scope of basic structure of the
Constitution of India by including right to privacy under it.

2. Nature and Concept of Basic Structure Doctrine

The power to formulate laws vests in both the Parliament and State Legislature and the
judiciary is imbibed with the scope to keep a check on those laws and declare it ultra vires if it
is violative of the fundamental rights or any other provisions of the Constitution. The
constituent assembly wanted the Constitution of India to be an adaptable framework rather than
a rigid framework. For this agenda, the Parliament is vested with the power to amend provisions
of the Constitution under Article 368 of the Constitution of India, but the scope of this article
is limited as the provisions of the Constitution which constitute the ‘Basic Structure’ is
excluded from it10.

The Basic Structure of the Constitution mainly encompasses the republic, secular, democratic,
and federal nature of the Constitution, the sovereignty of the nation, and also the fundamental

8 Bhandari, V., Kak, A., & Rahman, F, ‘An Analysis of Putuswamy: The Supreme Court’s Privacy Verdict’
(2017) IndraStra Global, 11, 1-5.
9 K.S. Putuswamy & Anr. v. Union of Judges (2017) 10 SCC 1.
10 Bhavya Bhandari, ‘Basic Structure Doctrine in the Constitution of India’, (2018) 2 IJTSRD 899-903.

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rights guaranteed to the citizens under Part Ⅲ of the Constitution11. As has been discussed in
the previous section, ‘Basic Structure Theory’ has been gradually built through various cases
since the independence, in which the Keshavananda Bharati case holds an important place as
it is where the Supreme Court recognized this concept for the first time. So, in order to get a
clear view of the nature of the ‘Basic Structure’ which has been gradually built by various
judgments, the present section has been divided into two sections: pre-Keshavananda Bharati
position and post-Keshavananda Bharati position.

Pre- Keshavananda Bharati Position:

The Parliament’s right to amend the provisions of the Constitution was challenged as early as
1951 (Shankari Prasad v. Union of India) on the ground that it would not extend to the level
of amending the fundamental rights of the citizens that are enshrined in the Constitution. In the
following periods after independence, the Union and various States enacted land reform laws
which they justified by citing the socialist nature of India, and even the owners of the land who
were adversely affected challenged some of those land reforms on the ground of encroaching
on the ‘fundamental right to property, which subsequently led to the striking of those provisions
by the Supreme Court. As a reflex, the legislative body included the land reform laws (Property
rights) under the ninth schedule of the Constitution mainly through the first constitutional
amendment. The Constitution (first amendment) Act of 1951 was passed to bypass the
legalistic interpretation by the judiciary, which was even defended by Jawaharlal Nehru later12.

This first constitutional amendment was challenged in the case of Shankari Prasad Singh Deo
v. Union of India in 1951, where the Apex Court upheld the amending power of the Constitution
including the fundamental rights of the citizen. This was the same stand taken by the Supreme
Court in the case of Sajjan Singh v. State of Rajasthan on the challenge against the
encroachment of fundamental rights.

Successive amendments have enlarged the ninth schedule of the Indian Constitution. In
Golaknath v. the State of Punjab, it was held that amendment of the constitution will be seen
as law but it was subjected to the fundamental rights enshrined the part III of the Indian
constitution, and the then Chief Justice of Supreme court Subbarao overruled the case of
Shankari Prasad and Sajjan Singh and invoked the doctrine of prospective overruling. So by

11
V. Dhanapalan, Basic Structure of the Indian Constitution- An Overview (1st edn, C. Sitaraman & Co. Pvt. Ltd
2015).
12 Id, pp. 51.

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the 24th amendment13, Article 368 was amended to get over the Golaknath case that parliament
will act on the procedure laid down in the article 368. However, by inserting the Article 31-C
held that laws giving effect to directive principles laid down in the Article 39(b) or (c) from
challenge on violation of the Articles 14,19,31 and held that there should not arise any question
in the court for violation and by inserting the 29th amendment in the ninth schedule parliament
made them immune from the violation of the fundamental rights14.

Post-Kesavananda Position:
Following the Kesa-vananda Bharati case, it was determined that the Indian constitution's

fundamental framework could not be changed by the government. Several judgments add to
the fundamental framework after the ruling in this case and by the supreme court through it.
According to CJI S M Sikri's ruling, personal freedom must be protected for all future
generations and cannot be altered out of existence. Part III of the Indian Constitution's
fundamental rights cannot be repealed, although they may be abridged in the public good in a
reasonable manner.

Shelat and J.J. Grover

The word "amendment" in Article 368 must be interpreted in a way that preserves the

Parliament's ability to change the Constitution while preventing damage or destruction to the
Constitution's structure and identity. As a result, the amending power of the Parliament was
impliedly constrained, making it impossible for it to repeal or alter the constitution's Basic
Structure.

Hegde and J.J. Mukherjea

Even in its unaltered form, Article 31C was declared unlawful by the learned judges. They said

that the Parliament lacked the authority to eliminate or weaken such core components.

Every government's ultimate goal is to create a welfare state, but it does not mean that all of a
person's freedoms must be completely destroyed.

JJ, Jaganmohan Reddy

13
24th Constitutional Amendment Act, 1971.
14 supra Note 4, pp. 52.

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According to this interpretation, the word "amendment" refers to allowing a change as opposed

to the destruction that repeal or abrogation causes. The erudite Judge ruled that although the
power of amendment was broad, it did not have the ability to completely abrogate, emasculate,
or harm any basic rights or constitutional provisions.

Khanna, HR JJ:

The Parliament had complete authority to modify the Constitution, but because

it is just a "power to amend," the fundamental framework of the structure ought to be preserved.
Khanna: The Parliament had the right to revise laws in order to address the needs of evolving
circumstances, but it was not allowed to change the institutional structure or the foundation.

Following this, a Supreme Court Constitution Bench used the basic structure argument to
nullify the 39th amendment in the 1980 case of Indira Nehru Gandhi v. Raj Narain. The 39th
Amendment, passed in 1975 during The Emergency, prevents judicial review of the actions of
the President, Vice President, Prime Minister, and Speaker of the Lok Sabha of India. Adopting
this amendment was an attempt to halt Gandhi's trial. 15

Judicial Review:

A Constitution Bench ruled in Indira Nehru Gandhi that judicial review in election disputes
was not mandatory and thus not part of the basic structure of the Constitution. In S.P Sampath
Kumar v. Union of India", PN. Bhagwati, C.j, relying on Minerva Mils Ltd, declared that it
was well-settled that judicial review was a basic and essential feature of the Constitution. If the
power of judicial review were completely removed, the Constitution would no longer exist. In
Sampath Kumar', the Court went on to say that if a law made under Article 323-A (1) were to
exclude the High Court's jurisdiction under Articles 226 and 227 without establishing an
effective alternative institutional mechanism or arrangement for judicial review, it would be a
violation of the basic structure and thus outside Parliament's constituent power. The Court
concluded by holding that the Chairman, Vice Chairman, and Members of the Administrative
Tribunal must have the same independence from executive pressure or influence, or else the

15V. Dhanapalan, Basic Structure of the Indian Constitution- An Overview (1st edn, C. Sitaraman & Co. Pvt.
Ltd 2015), p.55.

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Administrative Tribunal will cease to be an equally effective and efficacious substitute for the
High Court and the provisions of the impugned Act will be rendered invalid. In the case of
Kihoto Hollohan v. Zachillhu, ", another Constitution Bench observed that it was unnecessary
to pronounce on the contention whether judicial review is a basic feature of the Constitution
and para7 of the Tenth Schedule violated such basic feature while examining the validity of
para 7 of the Tenth Schedule to the Constitution, which excluded judicial review of the decision
of the Speaker/ Chairman on the question of disqualification of MLAs and MPs. Following
that, in L. Chandra structure. Kumar v. Union, a larger Bench of seven Indian judges ruled ", a
Judge unequivocally declared: "that the power of judicial review over legislative action vested
in the Supreme Court High Courts under Article 226 and in the is an integral and essential
feature of the Constitution, constituting part of its basic structure under Article 32 of the
Constitution." A perusal of this judgement illustrates how difficult it is to identify the
fundamental characteristics of the Constitution in Kesavananda Bharati's judgements
"onwards. Following its finding that the power of judicial review conferred by Articles 226
and 32 was part of the basic structure, the Court declared that clause (2)(d) of Article 323-A
and clause (3)(d) of Article 323-B were unconstitutional to the extent they excluded the
jurisdiction of the High Courts and the Supreme Court under Articles 226, 227, and 32.

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 Conclusion

In the field of constitutional law, there has been a heated controversy about the origins of the
notion of "basic structure." A belief or theory can only be referred to as constitutional in the
legal sense if its origins are constitutional. But this begs the question of how basic the notion
of basic structure actually is. In his essay "If the Sovereign People Through Their
Representatives Cannot Bring About Their Desired Change, Who Will?16i," Subhash Kashyap
critiques the basic structure theory. What benefit, though, will this desired reform have for "we
the people" at the expense of the Constitution? This anti-majoritarian notion is crucial because
it forbids the Parliament from abusing its majority-ruling authority. As there is a lack of
fundamentals in the basic structure and the Supreme Court has assumed to itself a power of
veto on all Constitutional amendments, it can also be criticised that it has extra Constitutional
origins. However, if such restrictions on the power of the Parliament to amend the Constitution
are not present, then a day may come when criticising the government in power will be made
a crime, and we may not be left with our fundamental inalienable rights, which the Constitution
guarantees to us in Part III. One should not overlook the majoritarian power that the Parliament
possesses when criticising this doctrine with the claim that the constituent power is moved
from the elected representatives of the people to the Supreme Court justices. The judiciary is
also subordinate to the Constitution and serves as its guardian and ultimate interpreter. But it
also seemed, based on a few court decisions, that the Supreme Court had assumed a lot of
authority in the name of the Constitution's fundamental structure, or what might be known as
the power of veto over all constitutional modifications. This theory was designed specifically
to be applied when the fundamental principles of the Constitution were under danger due to
constitutional modifications. This doctrine is arbitrary and nebulous. Since the judiciary has
not established a clear cut list of what defines the "basic structure," it will be decided on a case-
by-case basis. The Judiciary is probably frightened of the Legislature because they believe that
if they provide a concise list of the fundamental components, the Parliament might present
some other possibilities. It is because of Professor Dietrich Conrad that we are aware that the
amending power of the Parliament is subject to some implied inherent limitation, which
Palkhivala successfully argued in the Keshavananda case and which Mr. M. K. Nambyar
attempted in Golakh Nath but which was rejected by the courts a half-decade later due to
judicial hesitation. This doctrine safeguards our fundamental rights, and every act of Parliament
is now bound by it. It also put an end to the Parliament's game of making unconstitutional

16 Kashyap, Subhash C.- Our Constitution, Edition 2011, Reprint 2014, p. 340.

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constitutional amendments in the I. R. Coelho case, where the Ninth Schedule was adopted in
order to carry out laws relating to land reforms. The history makes it crystal evident why the
Schedule was adopted, even though the aim was unsuccessful. Even though many of them had
nothing to do with the agrarian reforms, a number of laws were listed in the Schedule to provide
them a protection and ensure that they would be immune from judicial review. The basic
structural doctrine responds to the questionable actions taken to abuse the ninth schedule, and
the decision as a whole is praiseworthy. The previous president of India, Mr. K. R. Narayanan,
famously said, "We have destroyed the Constitution, but Constitution has not destroyed us."
This statement appears to be accurate because the Parliament has often demonstrated this point
to demonstrate their authority. "Let the Constitution of India be sovereign,"17 Nani A.
Palkhivala said at the end of his statement on the twenty-fourth constitutional amendment. This
doctrine is not the result of an extrajudicial effort; rather, what actually caused it were the
Parliament's repeated attempts to amend the Constitution in the course of exercising its
"constituent power." Only after the judiciary had developed this theory of "implied limitation"
in the form of the basic structure that the Parliament may amend whatever it pleases but cannot
amend the basic structure of the Constitution did it become widely accepted. The text of Article
368 itself, which states that the Constitution "must stand altered" in conformity with the Bill,
explains why it is not possible to change the fundamental structure of the Constitution.
Therefore, Mr. Pandit Kanahiyya Lal Mishra's argument seems quite strong that the
Constitution should be amended in light of the provisions contained in the Constitution but in
such a way that the basic structure of the Constitution should remain the same and the
Constitution shall "stand amended" rather than "sit amended." If the basic structure of the
Constitution is changed, it is obvious that the Constitution will no longer remain "stand
amended" but instead will be the "new" Constitution. However, since the Constitution was
passed in 1949, we have seen how the Parliament has forced our Constitution to "stand altered"
despite efforts to have it sit. As a result, there is a struggle between the Executive and the
Judiciary as well as the Legislature. Similar to how the Parliament must alter whenever there
is a question. After all, a Constitution is a lifeless object, much like a machine. It gains life
thanks to the men who run it, and India now needs nothing more than a group of upright
individuals who will put the needs of the nation first.18 The basic structural idea denotes that

18 Justice J. S. Verma in S. P. Gupta v. Union of India 1993(4) SCC 441

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no one is above the Constitution and that the Constitution is preeminent as a way to give
momentum to the living principles of the "Rule of Law."

Way Forward

This research project talks about the development that has happened in the basic structure
doctrine and it would provide opportunities for further extension of the Basic Structure
Doctrine so as to fill the lacunae present in the current system. This development would prevent
negative use of those lacunae, leading to the protection of the fundamental rights of citizens.

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 Bibliography

Books:

➢ Basic Structure of the Indian Constitution – An Overview by Justice V. Dhanapalan.

➢ Democracy and Constitutionalism in India, A study of the Basic Structure Doctrine by
Sudhir Krishnaswamy.

Journal Article:

➢ Bhandari, V., Kak, A., & Rahman, F, ‘An Analysis of Putuswamy: The Supreme
Court’s Privacy Verdict’ (2017)
➢ Bhavya Bhandari, ‘Basic Structure Doctrine in the Constitution of India’, (2018)
➢ W. S. Hooker Jr, ‘Prospective Overruling In India: Golaknath and After’, (1967)
➢ Kashyap, Subhash C.- Our Constitution, Edition 2011, Reprint 2014
➢ Aman Ullah, Samee Uzair, ‘Basic Structure Doctrine: The Impact of Keshavananda
Bharati on Fundamental Rights’, (2011).

Cases:

➢ A.K. Gopalan v. State of Madras [1950]

➢ Shankari Prasad vs Union of India [1951]
➢ Sajjan Singh vs. State of Rajasthan [1954]
➢ I. C. Golaknath & Ors vs State of Punjab & Anrs. [1967]
➢ Kesavananda Bharati v. State of Kerala [1973]
➢ Minerva Mills v. Union of India [1980]
➢ Justice K.S. Puttuswamy v. Union of India [2017]

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