Doctrine of Basic Structure: The reason thereof1

INTRODUCTION:

After 2 years 11 months and 18 days of assiduous deliberation and incessant debate, the
framers of our Constitution created the sacrosanct Constitution of India. With an
impermeable and perpetual desire to serve the Nation and cater to the cause of welfare of the
people of the country, the framers of the constitution had left no stone unturned in order to
deliver a perfect and precise Constitution. They had ensured that there were no ambiguities
and all aspects were covered in the Constitution. In order to retain the values of our country
as well as ascertain development of human personality, certain provisions of the constitution
are kept on a high pedestal. These provisions, rights vested in the people, values, ideas, etc.
constitute the Basic Structure of the Constitution. According to one school of thoughts, to
abrogate the Basic Structure is unthinkable. It is the entire basis of the Constitution and even
the slightest change in the structure would defeat the very purpose of the Constitution.

On the other hand, as A R Antulay said ‘The Constitution has to be changed at every interval
of time. Nobody can say that this is the finality. A constitution which is static is a constitution
which ultimately becomes a big hurdle in the path of the progress of the nation.’

While infallibility is no attribute of a Constitution, is fundamental character and basic

structure cannot be overlooked. Otherwise the power to amend may include the power to
repeal. This is reductio ad absurdem.2

Thus the debate which started in the 20th century still continues. There is a constant tussle
between the power of the parliament to amend and the resistance of the judiciary, protecting
the basic structure from amending. If a law made by Parliament or the state legislatures
violates any provision of the Constitution, the Supreme Court has the power to declare such a
law invalid or ultra vires. This check notwithstanding, the founding fathers wanted the
Constitution to be an adaptable document rather than a rigid framework for governance.
Hence Parliament was invested with the power, under the Article 368, to amend the

1
Ashlesha Galgale, Student, V Semester, Institute of Law, Nirma University

2 Iyer, Krishna, V.R., A Constitutional Miscellany, 2nd Edn., Eastern Book Company, Lucknow, 2003
Constitution. Now with the seemingly absolute powers of amendment with the parliament
and with the intention of preserving the original ideals envisioned by the constitution-makers,
the apex court pronounced that Parliament could not distort, damage or alter the basic
features of the Constitution under the pretext of amending it.
Thus it is a choice between the constitution being too rigid and static due to lack of
indispensable change on one hand and the risk of the Constitution being putty in the hands of
the Parliament on the other hand.

The core question is that can the Basic Structure of the Constitution (as defined in various
cases) be amended? The present article strives to find out reasons and justifications for the
said question through various caselaws.

DOCTRINE OF BASIC STRUCTURE AND THE BASIC FEATURES:

Neither the Doctrine of Basic Structure nor the basic features of the Constitution have been
explicitly mentioned in the constitution of India.
The phrase 'basic structure' was introduced for the first time by M.K. Nambiar and other
counsels while arguing for the petitioners in the Golaknath case3, but it was only in 1973 that
the concept surfaced in the text of the apex court's verdict.4
The doctrine of basic structure of the Constitution owes its evolution in the ratio of the
majority judgment of the Supreme Court in Keshvanand Bharti v. State of Kerala5 which has
been acclaimed an “epoch-making decision”6 the majority of 7 Judges out of 13, it is said,
“struck a bridle path by holding that in the exercise of the power conferred by Art. 368, the
parliament cannot amend the Constitution so as to damage or destroy the basic structure of
the Constitution.” 7
The theory of basic structure has a background rooted in the right to property. The
constitution-makers in their enthusiasm to guarantee fundamental rights to the people

3
Golak Nath v.State of Punjab, (1967) 2 SCR 762: AIR 1967 SC
4
Nayak, Venkatesh, The Basic Structure of the Indian Constitution.
5
Kesavananda Bharati v. State of Kerala, AIR 1973SC 1461
6
Waman Rao v Union of India 1981 2 SCC 362
7
Supra note 5
incorporated provisions similar to Section 299 of the Government of India Act, 1935, in
Article 31 conferring the right to property in a n un qualified manner.8
The question whether fundamental rights can be amended under article 368 came for
consideration in the Supreme Court in Shankari Prasad case.9 in this case validity of
Constitution (1st amendment) Act, 1951 which inserted inter alia , articles 31-A and 31-B of
the constitution was challenged. The amendment was challenged on the ground that it
abridges the rights conferred by part III and hence was void. The Supreme Court however
rejected the above argument and held that power to amend including the fundamental rights is
contained in Article 368and the same view was taken by court in Sajjan Singh case.10
In Golak Nath case11, the validity of 17th Amendment which inserted certain acts in Ninth
Schedule was again challenged. The Supreme Court ruled the parliament had no power to
amend Part III of the constitution and overruled its earlier decision in Shankari Prasad and
Sajjan Singh case. In order to remove difficulties created by the decision of SC in Golak Nath
case parliament enacted the 24th Amendment act. The Supreme Court recognized BASIC
STRUCTURE concept for the first time in the historic Kesavananda Bharati case12 in 1973.
Ever since the Supreme Court has been the interpreter of the Constitution and the arbiter of
all amendments made by parliament. In this case validity of the 25th Amendment act was
challenged along with the Twenty-fourth and Twenty-ninth Amendments. The court by
majority overruled the Golak Nath case which denied parliament the power to amend
fundamental rights of the citizens. The majority held that article 368 even before the
24th Amendment contained the power as well as the procedure of amendment. The Supreme
Court declared that Article 368 did not enable Parliament to alter the basic structure or
framework of the Constitution and parliament could not use its amending powers under
Article368 to 'damage', 'emasculate ', 'destroy', 'abrogate', 'change' or 'alter' the 'basic
structure ' or framework of the constitution. This decision is not just a landmark in the
evolution of constitutional law, but a turning point in constitutional history.13

8
Pathania, Shivani, Theory of Basic Structure. The author is a lecturer in K.C.L Institute of Laws for Women
Jalandhar.
9
Sankari Prasad Singh v. Union of India, AIR 1951SC 458
10
Sajjan Singh v. State of Rajasthan, (1965) 1 SCR 933: AIR 1965 SC 845
11
Supra Note 2
12
Supra Note 4
13
Tyagi, Himanshu, Doctrine Of Basic Structure (Constitutional Law).
It seems that idea of the doctrine is borrowed from the observation of Supreme Court of U. S.
A. made as early as in the year 1919 in State of Rhode Island Vs. A. Mitchel Palmer which
runs as follows “the decision of the Congress on this question as to whether a particular
amendment should be ratified by the State Legislatures or by the State Conventions is final.
The constitution makers must have proceeded on the basis that the Congress is likely to
require the amendment of basic elements or Fundamental features of the Constitution to
be ratified by State conventions”.
In this observation the terms "basic elements or fundamental features" purport to have been
used to connote the set of provisions, which may require ratification by states.14

The Doctrine of Basic Structure however does not suggest any mechanism for construing the
basic structure. The question that what actually are the basic features of the constitution that
cannot be amended has been left to the discretion of the judges. It is the interpretative genius
of the judges which would give rise to the elements that would constitute the basic structure
of the Constitution.

In the seminal Kesavanand case15Sikri, CJ., mentioned the following as the “basic foundation
and structure” of the Constitution:
1. Supremacy of the Constitution
2. Separation of Powers between the legislature, the executive and the judiciary
3. Republican and the democratic form of Government;
4. Secular character of the Constitution
5. Federal character of the constitution
The other Judges mentioned in addition to this 3 more basic features:
6. The dignity of the individual secured by the various Fundamental Rights and the
mandate to build a welfare state contained in the directive principles
7. The unity and integrity of the nation
8. Parliamentary system

14
Ali, Mohd., DOCTRINE OF BASIC STRUCTURE : PSYCHO- LEGAL ANALYSIS
15
Supra Note 4
The above mentioned features are in no way exhaustive. Whether a feature is “basic” or not is
to be determined from time to time by the court as and when the question arises.16

In Indira Gandhi v. Rajnarain17, the SC has unequivocally ruled that the Preamble to the
Indian Constitution guarantees equality of status and of opportunity and that the Rule of Law
is the basic structure of the Constitution.18

Chandrachud, CJ., in Minerva Mills case19observed thus, “ The Indian Constitution is

founded on the bedrock of the balance between Parts III and IV. To give absolute primacy to
one to one over the other is to disturb the harmony of the constitution. This harmony and
balance between fundamental rights and directive principles is an essential feature of the
basic structure of the Constitution.”
There was further affirmation of the Basic Structure doctrine in Waman Rao v. Union of
India20. In Samapath Kumar case21and Sambamurthy22 the judges laid down that the rule of
law and judicial review were integral to the Basic Structure.
Effective access to Justice is part of the basic Strucure, according to the ruling in Central
Coal Fields case23.24
In Kihoto Hollohon25, the Supreme Court has declared, “Democracy is a basic feature of the
Constitution and election conducted at regular prescribed intervals is essential to the
democratic system envisaged in the constitution. So is the need o protect and sustain the
purity of the electoral process that may take within it the quality, efficiency and adequacy of
the machinery for resolution of electoral disputes.”

16
Jain, M.P., Constitutional Law of India, Wadhwa Publication pg. 1645
17
Indira Nehru Gandhi v. Raj Narain, AIR 1975 SCC 2299
18
Supra Note 15
19
Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625
20
(1981)2 SCC 362
21
S.P. Sampath Kumar v. Union of India (1987) 1 SCC 124
22
P. Sambamurthy v. State of Andhra Pradesh (1987) SCC 362
23
Central Coal Fields Ltd. V. Jaiswal Coal co. 1980 Supp SCC 471
24
Supra Note 1
25
AIR 1993 SC 412
In Bommai26Sawant and Kuldip Singh, JJ., have observed: “Democracy and Federalism are
essential features of our constitution and are part of its basic structure.” In the same case, the
Supreme Court has ruled that secularism is a basic or an essential feature of the Constitution.
In State of Bihar v. Bal Mukund Sah and Ors.27, the Supreme Court observed that the
concepts of “Separation of Powers between the legislature, executive and Judiciary” as well
as “the fundamental concept of independent judiciary have been now elevated to the level of
basic structure of the constitution and are the very heart of the constitution scheme.”

Hence it is apparent that the Doctrine is a subjective one and largely relies upon the values of
the judges, who influenced by inherited instincts, traditional beliefs, acquired convictions,
and conceptions of social need formulate, their own peculiar yardsticks and values and the
same vary from person to person and time to time.28 The biggest shortcoming in the Basic
Structure theory is the ambiguity about what is basic and what is not.

There is an absence of a definite test to conclude whether a constitutional right or a part

thereof forms a part of the basic structure. In other words, there was no hypothesis against
which the theory could be tested. The result was that instead of the Constitution drawing
authority from within itself, it became dependent upon judicial interpretation i.e. the Judge
made the Law.29 Thus the Judiciary which was a creation of the Constitution became more
powerful than its creator.

Moving further, now we will analyse the reasons and justifications given in various cases for
whether the basic structure can be amended or not.

The Beginning:

26
S.R. Bommai v. Union of India AIR 1994 SC 1918 at 1976
27
AIR 2000 SC 1296
28
Supra Note 13
29
Gulati, Ajay, Theory of Basic Structure- Reality or Illusion. The author is Asst. Advocate general, Haryana,
Masters M Law from University of Warwick, U.K.
The question of amendability of the Constitution arose for the first time in Shankari Prasad
Singh v. Union of India30. In this case there was a conflict between Article 13 and 368.

The argument against the validity of the First Amendment was that the Article 13 prohibits
enactment of a law infringing or abrogating the Fundamental Rights, that the word “law” in
Article 13 would include any law, even a law amending the Constitution and therefore, the
validity of such a law could be judged and scrutinised with reference to the Fundamental
Rights which it could not infringe.31
The Court held that the term “law” in the Article 13 refers to ‘legislative’ law and did not
encompass constitutional amendments in it. The Fundamental Rights are not excluded from
amendment under Article 368. The rights cannot be encroached upon by legislative organs by
means of rules and laws but they can be curtailed, abridged and even abrogated by changes
made in the constitution itself.
Hence it was held that the Fundamental Rights are not immune from constitutional
amendment under the Article 368 of the Constitution.

The same view was held by the Court in Sajjan Singh v. Rajasthan32 where the validity of the
Constitution (Seventeenth Amendment) Act, 1954 was questioned as it affected the right to
property. By this amendment a number of statues affecting property rights were placed in the
Ninth Schedule and were immunizes from court review.
[Parliament added the Ninth Schedule to the Constitution through the very first amendment
in 1951 as a means of immunising certain laws against judicial review. Under the provisions
of Article 31, which themselves were amended several times later, laws placed in the Ninth
Schedule – pertaining to acquisition of private property and compensation payable for such
acquisition -- cannot be challenged in a court of law on the ground that they violated the
fundamental rights of citizens. This protective umbrella covers more than 250 laws passed by
state legislatures with the aim of regulating the size of land holdings and abolishing various
tenancy systems. The Ninth Schedule was created with the primary objective of preventing

30
Sankari Prasad Singh v. Union of India, AIR 1951SC 458
31
Supra Note 15
32
Sajjan Singh v. Rajasthan AIR 1965 SC 845
the judiciary - which upheld the citizens' right to property on several occasions - from
derailing the Congress party led government's agenda for a social revolution.]33
However in this case 2 dissenting Judges raised their doubts on whether the rights of people
should become a plaything in the hands of the majority.
Hidayatullah, J., observed, “the constitution gives so many assurances in Part III that it would
be difficult to think that they were play-things of a special majority”
Mudholkar, J.’s argument was set in a broader frame and according to him, every constitution
has certain fundamental features which could not be changed.

As we proceed further, in Golaknath case34, Justice Subba Rao put forth a new interpretation
of the Article 368 and said that it merely laid down the amending procedure.
The amending power (constituent power) of Parliament arose from other provisions
contained in the Constitution (Articles 245, 246, 248) which gave it the power to make laws
(plenary legislative power). Thus, the apex court held that the amending power and
legislative powers of Parliament were essentially the same. Therefore, any amendment of the
Constitution must be deemed law as understood in Article 13 (2).

The judges stated that the fundamental rights were so sacrosanct and transcendental in
importance that they could not be restricted even if such a move were to receive unanimous
approval of both houses of Parliament. They observed that a Constituent Assembly might be
summoned by Parliament for the purpose of amending the fundamental rights if necessary.
In other words, the apex court held that some features of the Constitution lay at its core
and required much more than the usual procedures to change them.35

The majority decision (6:5) was that the parliament had no power to amend Part III of the
Constitution and the Supreme Court overruled its earlier decision in Shankari Prasad and
Sajjan Singh case. The decision evolved from the fact that Fundamental rights are
fundamental and thus they need to be protected against any alterations.

33
Supra Note 3
34
Golak Nath v.State of Punjab, (1967) 2 SCR 762: AIR 1967 SC
35
Supra Note 3
However the 5 minority judges upheld the power of parliament to amend Fundamental
Rights. They reasoned that the Constitution would become disabled and static if no such
powers were conceded to the Parliament.
They said that the power of amendment is not subject to any restrictions. According to them,
if the Framers of our Constitution wanted the Fundamental Rights to be unamendable, they
could have made a specific provision for that in the constitution itself.

The far reaching consequences of the Golaknath case lead to the 24th and the 25th Amendment
of the constitution. The 24th Amendment put a (d) clause in Article 368 so as to make it clear
that any constitutional provision could be amended by following the “procedure” contained in
Article 368.
The effect of the 25th amendment was quite huge. Hitherto, Directive principles had been
treated as subservient to Fundamental Rights. Now this relationship was sought to be
reversed; Directive Principles contained in Articles 39(b) and (c) were now sought to be
given precedence over fundamental rights contained in Articles 14, 19, 31. The 25th
amendment thus further diluted the right to property.36

The Kesavananda Verdict:

The Supreme Court declared in Kesavananda Bharati v. State of Kerala37 that Article 368 did
not enable the Parliament to alter the basic structure of framework of the constitution. The
judgment was ground shattering. It was a revolutionary step in the history of Constitutional
Law.
Subsequently, the Supreme Court of Bangladesh adopted the doctrine of basic structure
relying on Kesavanada Bharati case. In Pakistan the Lahore High Court and the Baluchistan
High Court took the same view but not the Supreme Court. The judgment also had an effect
on the Nepal Constitution.38
For the first time, the Doctrine of Basic Structure was specifically mentioned in this case.
The validity of the 24th and the 25th amendment was challenged in this case and the matter
was heard by a bench of 13 judges.

36
Supra Note 15
37
Kesavananda Bharati v. State of Kerala, AIR 1973SC 1461
38
Supra Note 7
The Court held that the power to amend the constitution was under the ambit of Article 368
and thus overruled the judgment in Golaknath case.
Although the parliament had the amending power, it was not absolute and was subject to the
condition that the amending power could not be exercised so as to harm or destroy or
abrogate the basic features of the Constitution. A constitutional amendment transgressing the
basic structure would be held unconstitutional. This decision of the bench was almost similar
to the decision in Golaknath case, but it differed in a major point. Golaknath had made all
fundamental rights as non amendable. However in Kesavananda this rigidity was made a bit
more flexible by making only the fundamental rights enshrined under the basic structure to be
non amendable. The reason for this was that making all rights non amendable would make
the constitution static and hamper the progress of the country. Thus only the fundamental
rights that were a part of the basic structure were immune from amendment. It was left for the
courts to decide which right was considered as a part of the basic feature.
The minority view delivered by Justice A.N. Ray, Justice M.H. Beg, Justice K.K. Mathew
and Justice S.N. Dwivedi also agreed that Golaknath had been decided wrongly. They upheld
the validity of all three amendments challenged before the court. Ray, J. held that all parts of
the Constitution were essential and no distinction could be made between its essential and
non-essential parts. All of them agreed that Parliament could make fundamental changes in
the Constitution by exercising its power under Article 368.

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 philospphy 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.”39

Therefore the Doctrine of Basic Structure was well established after this case.

39
Supra Note 15
Post Kesavananda verdict:
The matter of the Doctrine of basic Structure again came up in the Supreme Court in Indira
Nehru Gandhi v. Raj Narain40.
In this case for the 1st time a constitutional amendment was challenged not in respect of rights
of property or social welfare but with reference to an electoral law designed to ensure free
and fair elections which lie at the basis of a democratic parliamentary form of government.41
Here the 39th Constitutional Amendment was challenged.
Counsel for Raj Narain, the political opponent challenging Mrs. Gandhi's election, argued
that the amendment was against the basic structure of the Constitution as it affected the
conduct of free and fair elections and the power of judicial review. Counsel also argued that
Parliament was not competent to use its constituent power for validating an election that was
declared void by the High Court.
Four out of five judges on the bench upheld the Thirty-ninth amendment, but only after
striking down that part which sought to curb the power of the judiciary to adjudicate in the
current election dispute. One judge, Beg, J. upheld the amendment in its entirety. Mrs.
Gandhi's election was declared valid on the basis of the amended election laws. The judges
grudgingly accepted Parliament's power to pass laws that have a retrospective effect.42

Basic structure doctrine reaffirmed- the Minerva Mills

In Minerva Mills case43 the Supreme Court by majority by 4 to 1 majority struck down
clauses(4) and (5) of the article 368 inserted by 42nd Amendment, on the ground that these
clauses destroyed the essential feature of the basic structure of the constitution. It was ruled
by court that a limited amending power itself is a basic feature of the Constitution.

In L. Chandra Kumar case44 a larger Bench of seven Judges unequivocally declared "That the
power of judicial review over legislative action vested in the High Courts under Article226
and in the Supreme Court under Article 32 of the Constitution is an integral and essential

40
Indira Nehru Gandhi v. Raj Narain, AIR 1975 SCC 2299
41
Bhatia, K. Sukhcharan, Jurisprudence of Amending Process under Indian Constitution, Deep & Deep
publications, Delhi, 1989 pg 208
42
Supra Note 3
43
Minerva Mills Ltd. v. Union of India (1980) 3 SCC
44
L. Chandra Kumar v. Union of India (1997) 3 SCC 261(at SCC p. 301, para 78)
feature of the Constitution, constituting part of its basic structure".

It was held in M.Nagraj and others v. Union of India45 that “the law has to change. It requires
amendments to the constitution according to the needs of time and needs of society. It is an
ongoing process of judicial and constituent powers, both contributing to change of law with
the final say in the judiciary to pronounce on the validity of such change of law effected by
the constituent power by examining whether such amendments violate the basic structure of
the constitution. on every occasion when a constitutional matter comes before the court, the
meaning of the provisions of the constitution will call for interpretation, but every
interpretation of the article does not become a basic feature of the constitution. That, there are
no implied limitations on the power of the parliament under article 368 when it seeks to
amend the constitution. However, an amendment will be invalid, if it interferes with or
undermines the basic structure. The validity of the amendment is not to be decided on the
touchstone of article 13 but only on the basis of violation of the basic features of the
constitution.”
Hence once again it was held that the elements of the Basic Structure cannot be amended.

45
(2006) 8 SCC 212
CONCLUSION:

Taking into consideration the above given case analysis and the reasons and justifications
given for various decisions, it can be concluded that the amendment cannot have the impact
of destroying or abrogating the basic structure or the framework of the constitution.
The framers of our constitution came up with a written constitution in order to ensure that
there was some sort of rigidity in the Constitution. Also the power to amend was given in
order to ascertain that the Constitution does not become repugnant in the course of changing
times.
The decision given in Kesavananda case was well formulated and it maintained a balance
between the rigidity and the flexibility of the Constitution.
The Doctrine of Basic Structure is of prime importance as it prevents the parliament from
having unconditional power and becoming the master of Law itself. It also makes sure that
the primordial rights necessary for the development of human personality are not
compromised with.
But the doctrine needs some kind of rebuilding. Its ambiguities have to be removed. Also the
basic features of the Constitution need to be well defined rather than leaving them at the
discretion of the judiciary. It may be said that the final word on the issue of the basic
structure of the Constitution has not been pronounced by the Supreme Court- a scenario that
is unlikely to change in the near future. While the idea that there is such a thing as a basic
structure to the Constitution is well established its contents cannot be completely determined
with any measure of finality until a judgement of the Supreme Court spells it out.

Finally the Doctrine of Basic Structure reiterates a well settled notion that none is above the
Constitution, neither the parliament nor the judiciary.