Basic Structure Doctrine – Origin and Reasons

 Vishnupriya Dadhich
(Assistant Professor)
B. N. University, Udaipur
adv.vishnupriya@gmail.com

Ph. no. – 9462641665

Abstract- Indian Constitution is a dynamic document that can be amended

according to the needs of society whenever required. Constitution under Article
368 grants power to the Parliament to amend whenever there is a necessity. The
Article also lays down the procedure for amendment in detail. The doctrine of
basic structure is nothing but a judicial innovation to ensure that the power of
amendment is not misused by Parliament. The idea is that the basic features of
the Constitution of India should not be altered to an extent that the identity of
the Constitution is lost in the process. 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. The doctrine as we have today was not present always but over the
years it has been propounded and upheld by the judicial officers of this country.

Key words- Constitution, Document, Parliament, Amendment, Procedure, Article,

Basic structure, Judicial innovation.

Introduction- The Kesavananda Bharati judgment introduced the Basic Structure

doctrine which limited Parliament’s power to make drastic amendments that may
affect the core values enshrined in the Constitution like secularism and
federalism. The verdict upheld the power of the Supreme Court to judicially
review laws of Parliament. It evolved the concept of separation of powers among
the three branches of governance — legislative, executive and the judiciary.

Doctrine of Basic Structure says that- The parliament’s unlimited power to

amend the constitution is subject to only one restriction ie it should not
dilute or violate the basic structure of the constitution. Or the effects of the
amendment should not be abrogating or disturbing in nature towards the
basic structure. The following four cases are important to understand the
genesis of ‘Basic structure’ doctrine-
Evolution of doctrine of basic structure-
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 24 th 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 that parliament is
empowered to take away or abridge any of the Fundamental Rights. However,
such changes should not alter the ‘basic structure’ of the constitution.

42nd CAA 1976- Amended Art. 368 – No limitation on the constituent power of
Parliament. Any amendment cannot be questioned in any court on any ground.

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’.

Waman Rao case 1981- SC clarified that doctrine would be apply to constitutional
amendments enacted after April 24, 1973 (Kesavananda Bharati case) (Including
9th schedule).
Elements Of Basic structure- 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
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.
Powers of SC under Article 32,136,142,147
Power of HC under Article 226 and 227.
Limited power of parliament to amend the constitution.
Welfare state.
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.
Significance of Basic Structure-
1. The basic structure doctrine is a testimony to the theory of
Constitutionalism to prevent the damage to essence of COI by brute
majority of the ruling majority.
 2. The basic doctrine saved the Indian democracy as it acts as a
limitation of constituent power or else unlimited power of parliament
might have turned India into a totalitarian
3. It helps us to retain the basic tenets of our constitution so
meticulously framed by the founding fathers of our Constitution.
4. It strengthens our democracy by delineating a true separation of
power where Judiciary is independent of other two organs. It has also
given immense untold unbridled power to Supreme Court and made it
the most powerful court in the world
5. By restraining the amending powers of legislative organ of State, it
provided basic Rights to Citizens which no organ of State can overrule.
6. Being dynamic in nature, it is more progressive and open to changes
in time unlike the rigid nature of earlier judgements.

Main criticisms of Basic Structure-

1. 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.
2. Its detractors also believe the doctrine accords the judiciary a power
to impose its philosophy over a democratically formed government.
3. There is no definite elucidation on what exactly constitutes basic
structure, thereby, making the doctrine ambiguous.
4. In recent times, the doctrine has been invoked in case 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.

Reference- https://www.google.com/search?q=article+
+on+Basic+Structure+Doctrine+%E2%80%93+Origin+and+Reasons&client=avast

https://en.wikipedia.org/wiki/Basic_structure_doctrine

https://www.tandfonline.com/doi/full/10.1080/24730580.2020.1866882