The Doctrine of Basic Structure, established in 1973 through Kesavananda Bharati
vs State of Kerala, has been a crucial part of India's constitutional history.
It safeguards core principles, balances power among branches, and protects
citizens' fundamental rights. Despite facing challenges, the doctrine prevents
Parliament from altering the Constitution's basic features.
While Article 368
seemingly grants absolute amending powers to Parliament, the Supreme Court acts
as a check, ensuring preservation of the Constitution's original ideals. The
court, starting with Kesavananda Bharati in 1973, interprets the Constitution
and oversees all amendments to maintain its integrity. Over five decades, the
doctrine has maintained a balance of power and protected citizens' fundamental
rights, though debates persist on judicial intervention and component
Amending power of the parliament to amend the constitution
In the Indian Constitution, the power to amend the constitution is vested in the
Parliament under Article 368. This article outlines the procedure for amending
various provisions of the Constitution, ensuring a balance between the need for
flexibility and the necessity to protect the basic structure of the
Following are the essential points regarding the amending power of the Parliament under Article 368:
- Exclusive Power: Only Parliament can amend the Constitution; state legislatures cannot.
- Initiation: Amendments start with a bill in either house, introduced by a minister or private member, requiring a special majority for approval.
- Special Majority: It needs a majority of total members and two-thirds majority of members present and voting.
- State Ratification: Certain amendments affecting federalism or states' representation require approval by at least half of the state legislatures.
- Limitation: Parliament cannot change provisions forming the "basic structure" of the Constitution, protecting fundamental principles.
- Judicial Review: The Supreme Court reviews amendments; citizens can challenge if they violate the basic structure.
- Flexibility and Rigidity: Article 368 balances flexibility for adaptation with rigidity to safeguard core constitutional values.
In short, Article 368 of the Indian Constitution grants the Parliament the authority to amend the Constitution, subject to certain procedural requirements and limitations to protect the basic structure. This provision reflects the framers' intent to create a dynamic yet resilient constitutional framework for the governance of India.
What the doctrine of Basic structure is:
According to the doctrine, the Parliament has all the power to change the basic
structure of the constitution but keeping in mind that the basic structure of
the constitution shall not be amended in any case. It further states that, if
the basic structure of the constitution is amended, the true nature and essence
of the constitution will be lost and it will be left spiritless. The term basic
structure was not defined by the bench in this case rather it was left on the
court to do the interpretation.
The Kesavananda Bharati case (1973)
established that while Parliament can amend
any part of the Constitution, it cannot alter the basic structure. This doctrine
acts as a safeguard against majoritarianism and authoritarianism. Critics argue
it's undemocratic, allowing unelected judges to strike down amendments, while
supporters see it as a protection against potential abuses of power.
Elements comprise the Basic Structure of the Constitution
The Basic Structure, recognized by the judiciary, includes key elements like the
supremacy of the Constitution, democratic nature, secular character, and
separation of powers, federalism, and more. It encompasses principles like
judicial review, individual freedoms, parliamentary system, rule of law, and the
balance between Fundamental Rights and Directive Principles. Additionally, it
involves the limited power of Parliament to amend the Constitution and specifies
the principles underlying fundamental rights.
Significance of the Basic Structure Doctrine
The Basic Structure Doctrine is crucial for several reasons:
The Evolution of Doctrine of Basic Structure through Judicial decisions
- Preserves Constitutional Ideals: It safeguards the principles and ideals set by the founders of the Constitution.
- Maintains Constitution Supremacy: Prevents potential damage to the Constitution by ensuring it remains supreme, resisting temporary parliamentary majorities.
- Strengthens Separation of Powers: Enhances democracy by establishing a clear separation of powers, ensuring the judiciary's independence.
- Balances Responsibilities: According to Granville Austin, the doctrine achieves a balance between Parliament and the Supreme Court in protecting the integrity of the Indian Constitution.
- Protects Fundamental Rights: Acts as a shield against legislative arbitrariness, safeguarding the fundamental rights of citizens.
- Dynamic Constitution: Allows for progress and adaptation over time, keeping the Constitution relevant and alive to societal changes.
- Sri Sankari Prasad Singh Deo vs Union of India [Shankari Prasad Case]
Fact of the case:
To eliminate the zamindari system in Bihar, Uttar Pradesh, and Madhya Pradesh,
states passed the Zamindari Abolition Act, aiming to redistribute land.
Zamindars challenged it, citing a violation of their Fundamental Right to
Property. Courts had mixed rulings. To resolve the legal disputes, the Union
Parliament passed the Constitution (First Amendment) Act of 1951, validating the
Zamindari Abolition Laws and limiting the Right to Property. New Articles 31A
and 31B were added. Zamindars challenged this with petitions under Article 32,
asserting the Amendment Act's illegality.
The issues before the Supreme Court in Shankari Prasad vs Union of India were:
- Whether the First Amendment Act passed by Parliament unconstitutional?
- Whether the Parliament have authority to amend Fundamental Rights?
- Whether the word 'law' in Article 13(2) includes the Constituent laws?
Respondents' Arguments in Shankari Prasad Case:
- Only the designated Parliament houses have the authority to amend the constitution.
- The provisional Parliament lacked legal empowerment to exercise this authority.
- Article 368 is a self-contained provision, disallowing amendments to a bill after introduction.
- Acknowledging amendments during passage, the bill wasn't passed following Article 368 procedure.
- Land-related matters, under List 2 of the seventh schedule, are within the State Legislature's purview.
- Parliament lacked jurisdiction to enact laws related to land matters.
Judgment of the case:
- The Constitution allows three categories of amendments with varying majority requirements.
- The first category involving a simple majority grants authority to Parliament, comprising both houses and the President.
- Rejecting the petitioner's argument that Article 368 doesn't apply to the provisional parliament, as it could undermine the purpose of Article 379.
- Disputing the petitioner's claim that Article 368 is not a self-contained provision, emphasizing certain procedural inconsistencies in bill introduction, passage, and presidential assent.
In the Shankari Prasad Case, the court upheld the constitutionality of the
Constitution (First Amendment) Act of 1951, introducing Articles 31A and 31B. It
affirmed that the provisional Parliament had the authority to amend the
Constitution under Article 368, including the power to amend Article 368 itself.
The court clarified that Article 13(2) does not apply to constitutional
amendments made under Article 368. Additionally, Articles 31A and 31B,
pertaining to land matters, were deemed valid as they were constitutional
amendments falling under the authority of Parliament. The court emphasized that
these articles did not limit the jurisdiction of the High Court or the Supreme
Court to protect rights under Part III of the Constitution.
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845
Fact of the case
Sajjan Singh was once the ruler of Ratlam, a princely state in India. In 1949,
he made a deal with the Indian government, giving him special rights and an
annual allowance called a privy purse. However, in 1954, a law called the
Constitution (26th Amendment) Act canceled these privileges for rulers of
princely states. Sajjan Singh didn't like this and took the matter to the
Supreme Court, saying it violated his fundamental rights under the Indian
- Whether a modification to a fundamental right within Article 368
qualify as "law" as per Article 13 (2)?
- Can a fundamental right in part III of the Constitution be amended
by Parliament in any way within Article 368?
- Whether the 26th Amendment Act, which abolished the princely
privileges and privy purses of the rulers of the former princely states,
is constitutional or not?
The Supreme Court held that when amending the Constitution, the main part of
Article 368 and its proviso must be harmonized. The Court clarified that the
Constitution (Seventeenth Amendment) Act, which aimed at amending fundamental
rights, falls under the substantive part of Article 368 and not the proviso.
Court upheld the precedent of not reconsidering the Shankari Prasad case and
emphasized Parliament's authority to validate laws retrospectively. It clarified
that the power of Article 368 includes modifying or changing all provisions of
the Constitution, including fundamental rights. The Court stated that Article
13(2) does not apply to constitutional amendments, and fundamental rights in
Part III are not intended to be eternal.
Additionally, the Court suggested
remedying the anomaly in amending Articles 226 and 32. The Court rejected the
argument that the Seventeenth Amendment Act merely added provisions, emphasizing
that it amended relevant articles. It also clarified that inclusion in the Ninth
Schedule protects existing provisions but allows scrutiny for future amendments.
Golaknath & Ors. Vs. State of Punjab & Anrs
Fact of the case:
The Golak Nath case
involved the Golak Nath family from Punjab, who owned over
500 acres of farmland. In 1953, the Punjab government imposed restrictions,
allowing each brother to keep only thirty acres. The family challenged this
under Article 32, citing violations of constitutional rights related to
property, profession, and equality. The case reached the Supreme Court in 1965,
where the family contested the 1953 Punjab Act and sought to declare the
Seventeenth Amendment, which placed the Act in the Ninth Schedule, as ultra
- Whether Amendment is a "law" under the meaning of Article 13(2)?
- Whether Fundamental Rights can be amended or not?
In a landmark judgment, the Apex court, with its largest-ever bench at the time,
ruled 6:5 in favor of the petitioners. The majority, led by the Chief Justice
and four other justices, expressed concern about Parliament's potential abuse of
power in amending Fundamental Rights (FRs). They feared the dilution and
eventual extinction of FRs through amendments, leading to a shift from democracy
The majority equated FRs with Natural Rights, essential for
human development, and held that Parliament cannot amend them. In contrast, the
minority, following previous rulings, granted complete autonomy to Parliament,
allowing it to amend the entire Constitution, including Fundamental Rights.
Important amendments after Golaknath case
After the Golaknath v. State of Punjab case
, the Parliament made amendments to
overturn the ruling. In 1971, the 24th Amendment was passed, followed by the
25th and 29th Amendments in 1972. The following amendments were made after Golaknath's case which was challenged in Kesavananda Bharati case.
The 24th Amendment to the Indian Constitution clarified that
amendments made under Article 368 were not subject to Article 13 restrictions.
It also distinguished between the procedure for amendment and ordinary law,
limiting the President's power to refuse an amendment bill.
The 25th Amendment replaced the term 'compensation' with
'amount' in Article 31(2), indicating that the state was not obligated to
provide full compensation to landlords for acquired property. It severed the
link between Article 19(1)(f) and Article 31(2) and added Article 31(c) to
exempt laws related to Article 39(b) and 39(c) objectives from Articles 14, 19,
The 29th Amendment, passed in 1972, added the Kerala Land
Reforms Act to the 9th Schedule, protecting it from judicial review. This
safeguarded state amendments from being challenged in court, including those
related to the Kerala Land Reforms Act, along with the 24th and 25th Amendments.
Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr. AIR 1973
Fact of the case:
Kesavananda Bharti, leader of a religious group in Kerala, faced a land dispute
with the state government. The government passed the Land Reforms Amendment Act,
1969, allowing it to take parts of the sect's land. Kesavananda went to the
Supreme Court, citing violations of his fundamental rights. While the case was
ongoing, the Kerala government passed the Kerala Land Reforms (Amendment) Act,
This Act, influenced by the Golaknath case and constitutional amendments,
gave Parliament the power to amend the constitution. It also stated that if the
state took private property, it wasn't obligated to compensate the owner
- Whether the 24th Constitutional Amendment Act 1971 is
- Whether Amendment is a "law" under the meaning of Article 13(2).
- Whether Fundamental Rights can be amended or not.
In the Kesavananda Bharati case
, the Supreme Court decided that while Parliament
can modify the constitution, it cannot alter its basic structure. The basic
structure, representing the core principles of the constitution, is protected
from changes by Parliament under Article 368. The court upheld the 24th
Amendment Act but found two parts of the 25th Amendment both valid and invalid.
The Supreme Court, in its judgment, established the doctrine of basic structure
of the Constitution, which holds that certain fundamental features of the
Constitution, such as the supremacy of the Constitution, the rule of law, and
the independence of the judiciary, cannot be amended or abrogated by the
Parliament through a constitutional amendment. The question before the court was
whether this doctrine was a part of the Constitution and whether the
Parliament's power to amend the Constitution extended to this doctrine.
Impact of the judgment of Kesavananda Bharati case:
The Kesavananda Bharati case marked a significant moment in Indian
constitutional law, affirming the Constitution's supremacy and the judiciary's
independence. The 7-6 Supreme Court majority ruled that the Constitution has an
unalterable basic structure, preventing Parliament from changing fundamental
aspects. This decision established key principles like the rule of law and
separation of powers, shaping constitutional interpretation and limiting
Parliament's amending power under Article 368.
Evolution of Constitutional Fundamentals (Doctrine of Basic Structure)
Following the Keshavananda Bharati Verdict
42nd Amendment Act (1976):
In 1976, the government passed the 42nd Amendment Act, asserting that there were no restrictions on the constitutional authority of Parliament as outlined in Article 368. Often referred to as the "Mini-constitution," this amendment brought about extensive constitutional changes and prohibited the judiciary from challenging such amendments.
Minerva Mills vs. Union of India (1980):
In this legal case, the Supreme Court invalidated certain provisions of the 42nd Amendment Act, emphasizing that Parliament cannot strip away the power of 'judicial review' as it is an integral part of the 'Basic Structure.'
Waman Rao vs. Union of India (1981):
Termed as the 'Doctrine of Prospective Overruling,' the court determined that laws placed under the Ninth Schedule before the Kesavananda judgment are immune to scrutiny for violating Fundamental Rights. However, laws enacted after the judgment can be subject to legal examination. The Basic Structure doctrine was once again emphasized by the Supreme Court in this case.
Indra Sawhney & Others vs. Union of India (1992):
Referred to as the Mandal case, the Supreme Court proclaimed the Rule of Law as an essential component of the constitution's Basic Structure.
Kihoto Hollohan Case (1993):
Commonly known as the Defection case, the Supreme Court expanded the Basic Structure of the Constitution by incorporating Free and Fair Elections, Sovereignty, Democracy, and Republican structure.
S.R. Bommai vs. Union of India (1994):
The Supreme Court affirmed Federalism, Secularism, and Democracy as integral components of the Basic Structure of the Constitution.
The concept of the "basic structure of the Constitution" is vague and lacks
consensus among judges. The judgments in Kesavananda Bharati highlight differing
views on its components. Identifying these features is challenging, and there is
no clear understanding of Parliament's amending power.
This ambiguity has made
the judiciary more powerful than the legislature and executive. While the basic
structure doctrine has been beneficial in preventing reckless amendments, its
validity remains uncertain. In some cases, like Kesavananda Bharati, the
doctrine has led to inconsistencies, impacting the Constitution's intended
checks and balances.
Award Winning Article Is Written By: Ms.Disha Sania
Authentication No: JN400338028239-3-0124