THE BASIC STRUCTURE DOCTRINE

I. INTRODUCTION
According to the Indian Constitution, the Parliament and the State Legislatures can
make laws within their jurisdictions. The power to amend the Constitution is only
with the Parliament and not the state legislative assemblies. However, this power of
the Parliament is not absolute. The Supreme Court has the power to declare any law
that it finds unconstitutional void. As per the Basic Structure Doctrine of the Indian
Constitution, any amendment that tries to change the basic structure of the
constitution is invalid.

1.1 MEANING

That the Constitution has "basic features" was first theorised in 1964, by Justice J.R.
Mudholkar in his dissent, in the case of Sajjan Singh v. State of Rajasthan.
He wrote,
“ It is also a matter for consideration whether making a change in a basic feature of
the Constitution can be regarded merely as an amendment or would it be, in effect,
rewriting a part of the Constitution; and if the latter, would it be within the purview of
Article 368 ”

1.2 WHAT IS THE BASIC STRUCTURE DOCTRINE

The doctrine of Basic Structure was propounded by the Indian Judiciary on 24th
April 1973 in the Keshavananda Bharati case to put a limitation on the amending
powers of the Parliament so that the ‘Basic Structure of the Constitution’ cannot be
amended in the exercise of its ‘constituent power’ under Article 368 of the Indian
constitution.
It is a judicial creation whereby certain features of the constitution of India are beyond
the limits of amending powers of parliament of the constitution.
The word "Basic Structure" is not mentioned in the constitution but was recognized
for the first time in the Kesavananda Bharati case of 1973

1.2. WHAT IS THE BASIC STRUCTURE DOCTRINE UNDER THE INDIAN

CONSTITUTION

There is no mention of the term “Basic Structure” anywhere in the Constitution of

India. But the Article 368 of indian constitution provides the power of parliament to
amend the constitution and procedure therefor, The idea that the Parliament cannot
introduce laws that would amend the basic structure of the constitution evolved
gradually over time and many cases. The idea is to preserve the nature of Indian
democracy and protect the rights and liberties of people. This Basic Structure doctrine
of the Indian Constitution helps to protect and preserve the spirit of the constitution
document.

1
II. THE JUDICIAL PROCEEDINGS WITH RESPECT TO THE
EVOLUTION OF DOCTRINE OF BASIC STRUCTURE

The concept of the basic structure of the constitution evolved over time. We shall discuss this
evolution with the help of some landmark judgments related to this doctrine.
The Supreme Court, since independence, has time and again reformed and revised its stance
on parliament's power to amend the constitution.
The evolution of the Basic Structure doctrine can be traced from the issue of the right to
property and the first constitutional amendment act of 1951.

2.1 Sri Sankari Prasad Singh Deo vs Union of India and State of Bihar. 1
The Supreme Court held that the Parliament, under Article 368, has the power to amend any
part of the constitution, including fundamental rights.
In this case, the SC contended that the Parliament’s power of amending the Constitution under
Article 368 included the power to amend the Fundamental Rights guaranteed in Part III as well.

2.2 sajjan Singh vs State Of Rajasthan. 2

The Supreme Court agreed with its judgment in the Shankari Prasad case 1951 and held that
under Article 368, Parliament could amend any part of the constitution.
However, the concurring opinion by Justice Hidyatullah and Justice Mudholkar raised doubts
over the unrestricted power of the Parliament to amend the Constitution and limit the
fundamental rights of citizens.
In this case also, the SC held that the Parliament can amend any part of the Constitution
including the Fundamental Rights.
It is noteworthy to point out that two dissenting judges, in this case, remarked whether the
fundamental rights of citizens could become a plaything of the majority party in Parliament.

2.3 I. C. Golaknath & Ors vs State Of Punjab & Anrs. 3

In the Golaknath case (1967), the Supreme Court overturned Shankari Prasad judgment and
ruled that Article 368 only lays down the procedure to amend the constitution and does not give
absolute powers to the Parliament to amend any part of the constitution.
In this case, the court reversed its earlier stance that the Fundamental Rights can be amended.
It said that Fundamental Rights are not amenable to the Parliamentary restriction as stated in
Article 13 and that to amend the Fundamental rights a new Constituent Assembly would be
required.
Also stated that Article 368 gives the procedure to amend the Constitution but does not confer
on Parliament the power to amend the Constitution. This case conferred upon Fundamental
Rights a ‘transcendental position’.
The majority judgement called upon the concept of implied limitations on the power of the
Parliament to amend the Constitution. As per this view, the Constitution gives a place of
permanence to the fundamental freedoms of the citizens.
In giving to themselves the Constitution, the people had reserved these rights for themselves.

1
1951 AIR 458, 1952 SCR 89
2
1965 AIR 845, 1965 SCR (1) 933
3
1967 AIR 1643
2
2.4 24th Constitution Amendment Act (1971) 4
To surpass the Golaknath judgment constraints, the government enacted the 24th amendment
act, which introduced a provision to Article 368 of the Constitution, which stated that the
Parliament has the power to take away any of the fundamental rights.
It also made it obligatory for the President to give his assent on all the Constitution
Amendment bills sent to him.

2.5 .Kesavananda Bharati vs. State of Kerala (1973) 5

The Supreme Court, in this case, upheld the validity of the 24th Constitution Amendment Act
by reviewing its decision in the Golaknath case.
However, the Supreme Court held that the Parliament has the power to amend any provision of
the constitution, but in doing so, the Basic Structure of the constitution is to be maintained.
The Court propounded what has come to be known as the “Basic Structure of the Constitution”.
Thus, this landmark judgment meant that every provision of the Constitution could be amended,
but these amendments can be subjected to judicial review to ascertain that the Basic Structure of
the Constitution remains intact.
This was a landmark case in defining the concept of the basic structure doctrine.
The SC held that although no part of the Constitution, including Fundamental Rights, was
beyond the Parliament’s amending power, the “basic structure of the Constitution could not be
abrogated even by a constitutional amendment.”
The judgement implied that the parliament can only amend the constitution and not rewrite it.
The power to amend is not a power to destroy.
This is the basis in Indian law in which the judiciary can strike down any amendment passed by
Parliament that is in conflict with the basic structure of the Constitution

2.6. Indira Nehru Gandhi v. Raj Narain case 6

Here, the SC applied the theory of basic structure and struck down Clause(4) of Article 329-A,
which was inserted by the 39th Amendment in 1975 on the grounds that it was beyond the
Parliament’s amending power as it destroyed the Constitution’s basic features.
The 39th Amendment Act was passed by the Parliament during the Emergency Period. This Act
placed the election of the President, the Vice President, the Prime Minister and the Speaker
of the Lok Sabha beyond the scrutiny of the judiciary.
This was done by the government in order to suppress Indira Gandhi’s prosecution by the
Allahabad High Court for corrupt electoral practices.

2.7 42nd Amendment Act (1976)7

The government in 1976 enacted the 42nd Amendment Act that declared no limitation to the
constituent power of Parliament under article 368.
The amendment, also called the "Mini-constitution" for introducing wide-ranging constitutional
changes, barred the courts from questioning constitutional amendments.

2.8. Minerva Mills vs. Union of India (1980)8

In this case, the Supreme Court invalidated provisions of the 42nd CAA and ruled that the
Parliament cannot take away the power of ‘judicial review’ as it is a part of the ‘Basic
Structure’.

4
The Constitution (Twenty-fourth Amendment) Act, 1971
5
AIR 1973 SUPREME COURT 1461,
6
AIR 1975 SUPREME COURT 2299
7
42nd Amendment Act (1976)
8
1980 AIR 1789
3
This case again strengthens the Basic Structure doctrine. The judgement struck down 2 changes
made to the Constitution by the 42nd Amendment Act 1976, declaring them to be violative of
the basic structure.
The judgement makes it clear that the Constitution and not the Parliament is supreme.
In this case, the Court added two features to the list of basic structure features. They were:
judicial review and balance between Fundamental Rights and DPSP
The judges ruled that a limited amending power itself is a basic feature of the Constitution

2.9. Waman Rao vs. Union of India (1981)9

Also known as the ‘Doctrine of Prospective Overruling’, the court decided that all the laws
placed under Ninth Schedule before the Kesavananda judgment cannot be called into question
for violating Fundamental Rights. However, the laws post the judgment can be raised before a
court of law.
The Supreme Court again reiterated the Basic Structure doctrine in this case.
The SC again reiterated the Basic Structure doctrine.
It also drew a line of demarcation as April 24th, 1973 i.e., the date of the Kesavananda Bharati
judgement, and held that it should not be applied retrospectively to reopen the validity of any
amendment to the Constitution which took place prior to that date.
In the Kesavananda Bharati case, the petitioner had challenged the Constitution (29th
Amendment) Act, 1972, which placed the Kerala Land Reforms Act, 1963 and its amending
Act into the 9th Schedule of the Constitution.
The 9th Schedule was added to the Constitution by the First Amendment in 1951 along with
Article 31-B to provide a “protective umbrella” to land reforms laws.
This was done in order to prevent them from being challenged in court.
Article 13(2) says that the state shall not make any law inconsistent with fundamental rights and
any law made in contravention of fundamental rights shall be void.
Now, Article 31-B protects laws from the above scrutiny. Laws enacted under it and placed in
the 9th Schedule are immune to challenge in a court, even if they go against fundamental rights.
The Waman Rao case held that amendments made to the 9th Schedule until the Kesavananda
judgement are valid, and those passed after that date can be subject to scrutiny.10

2.10. Indra Sawhney & Others vs. Union of India(1992)11

Also known as the Mandal case, the Supreme Court declared the Rule of Law as a Basic
Structure of the constitution.
SC examined the scope and extent of Article 16(4), which provides for the reservation of jobs in
favour of backward classes. It upheld the constitutional validity of 27% reservation for the
OBCs with certain conditions (like creamy layer exclusion, no reservation in promotion, total
reserved quota should not exceed 50%, etc.)
Here, ‘Rule of Law’ was added to the list of basic features of the constitution.

2.11. Kihoto Hollohan Case (1993)12

Popularly known as the Defection case, the Supreme Court added Free and fair elections,
Sovereign, Democratic and Republican structure to the Basic Structure of the Constitution.

9
(1981)2SCC362,
10
ibid
11
AIR1993SC477,
12
1992 SCR (1) 686,
4
2.12. S.R. Bommai vs. Union of India (1994)13
The Supreme Court declared Federalism, Secularism, and Democracy as the Basic Structure
of the Constitution.
In this judgement, the SC tried to curb the blatant misuse of Article 356 (regarding the
imposition of President’s Rule on states).
In this case, there was no question of constitutional amendment but even so, the concept of
basic doctrine was applied.
The Supreme Court held that policies of a state government directed against an element of the
basic structure of the Constitution would be a valid ground for the exercise of the central power
under Article 356

13
1994 AIR 1918
5
III. THE BASIC STRUCTURE DOCTRINE, COPONENTS–
SIGNIFICANCE & CRITICISMS

3.1 The components of the Basic Structure provided in the constitution have been recognized by
the judiciary in various cases to date.
Some of these components are
Supremacy of the Constitution
Sovereign, democratic and republican nature of the Indian
Polity
Secular character of the Constitution
Separation of powers between the legislature, the executive, and the judiciary
Federal character of the Constitution
Unity and integrity of the nation
Welfare state (socio-economic justice)
Judicial review
Freedom and dignity of the individual
Parliamentary system
The rule of law
Harmony and balance between Fundamental Rights and Directive Principles
Principle of equality
Free and fair elections
Independence of Judiciary
Limited power of Parliament to amend the Constitution
Principles (or essence) underlying fundamental rights
Powers of the Supreme Court under Articles 32, 136, 141 and 142.
Powers of the High Courts under Articles 226 and 227.

3.2 What is the significance of the Basic Structure Doctrine

Promotes Constitutional Ideals: Basic Structure Seeks to preserve constitutional principles
and Basic ideals envisioned by the founding fathers.
Maintains Supremacy of the Constitution: The doctrine has helped to maintain the
supremacy of the Constitution and has prevented its destruction by a temporary majority in
Parliament.
Separation of powers: Basic Structure strengthens our democracy by delineating a true
separation of power where the Judiciary is independent of the other two organs.
Granville Austin argues that with Basic Structure Doctrine, a balance has been reached
between the responsibilities of Parliament and the Supreme Court for protecting the seamless
web of the Indian Constitution.
Protects Fundamental Rights: Basic Structure protects the fundamental rights of the citizens
against arbitrariness and authoritarianism of the legislature.
Constitution as a living document: Being dynamic in nature, it is more progressive and open
to changes in time, making the constitution a living document

3.3 What are some of the criticisms of the Doctrine of Basic Structure
Some grounds for the criticism of Basic Structure doctrine are
Inconsistent with the principle of separation of powers: A system of checks and balances is
healthy only when the duties of one branch are not usurped by another. A court may have the
power to review but not rewrite a constitutional amendment.
Translates judiciary into the third decisive chamber of parliament: By invoking the Basic
Structure doctrine, the Judiciary acts as the third house and thereby renders the work done by
the Parliament meaningless.
6
IV. Conclusion

The basic structure doctrine is a judicial principle connected to the Indian constitution. It holds
the basic structure of the Indian Constitution and ensures that the parliament cannot amend its
basic features. This doctrine was brought into the limelight after several petitions. One of the
most critical petitions is the Kesavananda Bharati case. The judgement of this case gave the
basic structure doctrine of our constitution, which has evolved with the Supreme Court’s
judgment.Although it is true that the basic structure doctrine provides an overhauling power to
the judiciary, it is pertinent to note that the Indian Constitution has been drafted with a pious
and sacred intent. The makers of the Constitution endowed the responsibility of protecting the
true values of the Constitution upon the judiciary. Thus, the judiciary has to protect and uphold
the true values of the Constitution above everything surrounding it. If these values themselves
are amended by the legislature, it would be detrimental to the spirit of the Constitution. These
values are what form the basic structure of the Constitution.
However, the biggest problem faced while protecting the basic structure is that it has not been
clearly defined. As discussed above, the basic structure is also found in various other
democracies. Since the scope of the basic structure is defined in these countries, the scope of
criticism is limited. Thus, a definite basis of the basic structure is the need of the hour.
The Doctrine of Basic Structure serves as a pillar of the Indian Constitution. It serves as an
important safeguard, upholding the supremacy of the Constitution, protecting fundamental
rights, and maintaining the system of checks and balance among the organs of government.
The doctrine's significance lies in its ability to preserve the core values of the Constitution. The
doctrine adapts to the changing needs of society while ensuring the integrity and stability of the
Constitution. The Doctrine of Basic Structure has reinforced the importance of constitutional
values and ensured the preservation of the constitutional order.

7
V. BIBLIOGRAPY

TEXT BOOKS

1. DR DURGA DAS BASU “CONSTITUTION OF INDIA” EBC PUBLICATION, 8 TH

EDITION ,2008 .

2. P.K.MAJUMDAR AND R.P.KAJARIA “COMMENTARY ON THE CONSTITUTION OF

INDIA” ESTERN PUBLICATION, 10TH EDITION. IN 2ND VOLUME.2018

3. V.N.SHUKLAS “CONSTITUTION OF INDIA” EBC PUBLICATION 3RD EDITION,2008

JOURNAL ARTICLES

1. DR.SANJAY.S.JAIN, “GROUNDING THE BASIC STRCUTURE IN LEGAL

THEORY“W3WPROFESSOR, NATIONAL LAW SCHOOL OF INDIA UNIVERSITY,
BENGALURU.

2. SATYA PRATEEK “TODAYS PROMISE, TOMORROWS CONSTITUTION: “BASIC

STRUCTURE, CONSTITUTIONAL TRANSFORMATIONS AND THE FUTURE OF
POLITICAL PROGRESS IN INDIA” 1 NUJS LAW REVIEW (2008).s

WEBSITE REFERENCES

1. www.nhrc.ac.in (Visited on 10.03.2024)

2. www.articlebase.com (Visited on 18.03.2024)

3. www.indiankanoonkhoj.org (Visited on 29.03.2024)

4. http://www.nhrc.nic.in/Documents/Publications/NHRCindia (Visited on 22.03.2024)

5.www.legal.service.india.com/legal/articals.(Visited on 22.03.2024)

6.www.manupatra.com (Visited on 10.04.2024)

7.www,judis.nic.in (Visited on 01.05.2024)

8.www.indialawinfo.com (Visited on 10.03.2024)

9.www.helplinelaw.com (Visited on 19.04.2024)

10.www.legalserviceindia.com (Visited on 21.02.2024)

11. www.twocircles.net (Visited on 18.03.2024)

12. www.lexisnexisindia.com (Visited on 22.04.2024)

13. www.westlaw.com (Visited on 18.04.2024)