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Genesis and Evolution of Basic Structure Doctrine of Indian Constitution

The Doctrine of 'Basic Structure' is considered the most potent tool in the hands of the Indian judiciary to maintain the balance of power, the checks and balances that are required for a smooth functioning of a democracy. This doctrine has altered the course of Indian Constitutional law jurisprudence. The article will pay tribute to its origins and efforts to protect and preserve it through the course of history.

Additionally, it is believed that the doctrine of basic structure is applicable to constitutional amendments exclusively, however, various judges of the Supreme Court have viewed this aspect differently and there have been contrasting opinions on this subject.

Since this does not appear to be a straightforward concept anymore with the doctrine's applicability in dispute, this article will attempt to trace how this concept have had its origin, how it has evolved and at what place the doctrine[1] stands now as far as Indian Constitutional jurisprudence is concerned.

Nature of Indian Constitution

The Constitution of India is a living and organic document, which changes with the time and judiciary is playing a very significant role in its pragmatic interpretation and accommodating all changing social norms.[2]The father of our Constitution, BR Ambedkar has rightly opined that "Constitution is not a mere lawyers document, it is a vehicle of Life and it's spirit is always the spirit of age."

The Indian Constitution is more than just a legal instrument, it is the Magna Carta for the country's socioeconomic change. It embodies the ambitions and dreams of India's billion-plus people.[3] However, at the same time, there are some intrinsic values, a basic framework on which the whole content of the constitution rests. This framework originalism is the very essence of the legal system which the constitution as a document embodies and which the courts try to protect through their various doctrines and pronouncements.[4]

Basic structure doctrine, evolved by the Indian Supreme Court, through its numerous landmark judgments over the years, brings in that required factor of constitutionalism, which is critical to the upkeep of the spirit of the constitution document, to preserve, protect and maintain the thicker concept3 of rule of law, without which the constitution is but a dead letter law.[5]

Pre Keshavananda Bharati Position

Article 368 of the Constitution gives the impression that Parliament's amending powers are absolute and encompass all parts of the document. But the Supreme Court has acted as a brake to the legislative enthusiasm of Parliament ever since independence. Parliament's authority to amend the Constitution, particularly the chapter on the fundamental rights of citizens, was challenged as early as in 1951. After independence, several laws were enacted in the states with the aim of reforming land ownership and tenancy structures.

This was in keeping with the ruling Congress party's electoral promise of implementing the socialistic goals of the Constitution contained in Article 39 (b) and (c) of the Directive Principles of State Policy that required equitable distribution of resources of production among all citizens and prevention of concentration of wealth in the hands of a few. Property owners -- adversely affected by these laws petitioned the courts.[6] The courts struck down the land reforms laws saying that they transgressed the fundamental right to property guaranteed by the Constitution.

Piqued by the unfavourable judgements, The Constitution of India was amended as early as 1951, which introduced the much-debated Article(s) 31A and 31B to it. Article 31B created the 9th Schedule which stated that any law provided under it could not be challenged for the violation of Fundamental Rights as per Article 13(2) of the Constitution.[7]

Shankari Prasad Singh Deo v. Union of India[8]
A petition was filed in the Supreme Court of India challenging Article(s) 31A and 31B on the ground that they abridge or take away rights guaranteed under Part III of the Constitution which is against the spirit of Article 13(2) and hence should be declared void. The Hon'ble Supreme Court held that the power to amend the Constitution including the Fundamental Rights is conferred under Article 368, and the word 'Law' as mentioned under Article 13(2) does not include an amendment of the Constitution.

Sajjan Singh v. State of Rajasthan[9]

The five-judge bench in Sajjan Singh dealt with the validity of the 17th Constitutional Amendment which had added around 44 statutes to the 9th Schedule.[10] The Supreme Court upholding the validity of the 17th Amendment held that the Parliament has the authority to amend any part of the Constitution including any Fundamental Rights. The Supreme Court in the Judgement even stated that if the Constitution makers intended to exclude the fundamental Right from the scope of amending power they would have made a clear provision in that behalf.[11]

Golak Nath v. the State of Punjab[12]

In this case, three writ petitions were clubbed together. The first one was by children of Golak Nath, against the inclusion of the Punjab Security of Land Tenures Act, 1953 in the Ninth Schedule. The other two petitions had challenged the inclusion of the Mysore Land Reforms Act in the Ninth Schedule. The term 'basic structure' was first used in this case, by lawyer M.K Nambyar.

Basing his arguments off a principle expounded by German thinker Dieter Conrad, Mr. Nambyar contended that Parliament had no power to amend the fundamental rights under Part III of the Constitution.[13] It was an 11 judge bench decision, wherein the Hon'ble Supreme Court by a majority of 6:5 held that the fundamental rights were outside the purview of the amendment of the Constitution, based on the following reasoning:

The power of Parliament to amend the Constitution does not subside in Article 368 but it is derived from Article 245, read with Entry 97 of List I of the Constitution. It was very clearly stated that Article 368 only provided for the Procedure of Amendment and nothing more.

The Court also clarified that the word 'law' under Article 13(2) includes within its meaning an amendment to the Constitution. Therefore any amendment against the Fundamental Rights was void.[14]

A few years after the I.C Golaknath case, when Indira Gandhi again assumed office, she had 2 flagship policies, which included:
  1. Derecognising erstwhile princes in a bid to take away their Privy purses, which were promised in perpetuity as a concession to accede to the Union at the time of India's independence.
  2. Nationalization of banks.
But her attempts to carry out these measures were struck down by the Courts. By now, it was clear that the Supreme Court and Parliament were at loggerheads over the relative position of fundamental rights vis-à-vis the DPSP. The battle was also about the supremacy of Parliament vis-à-vis the power of the courts to interpret and uphold the Constitution.

Indira Gandhi, the then Prime Minister, responded by preponing the elections in 1971 and in the election manifesto, the Congress Party promised that impediments placed by the judiciary in the way of socio-economic reforms would be removed by her. After coming to power, the government passed the 24th Amendment with the purpose to overrule I.C. Golaknath ruling.

This Amendment made changes in Article 13 and Article 368 and authorised Parliament to freely amend Fundamental Rights and bring them within the amending power of the Constitution. 24th amendment inserted clause (4) to Article 13 which stated that Article 13 would not apply to constitutional amendments.

Under the original Constitution any amendment would come into force if it is passed by two third members and if it receives assent of President who can withhold assent. But 24th amendment held that President was bound to give assent to the Bill and did not effectively have any choice.[15]

The 25th Amendment passed during the same time introduced Article 31 (C) which gave primacy to the DPSP in Article 39 (b) and (c) over the Fundamental Rights contained in Article 14, 19, and 31. It provided that any law made to give effect to Directive Principles contained in Article 39 (b) and (c) cannot be challenged in the court on the grounds that it did not give effect to such principles.

Keshavananda Bharati Verdict

Inevitably, the constitutional validity of these amendments was challenged before a full bench of the Supreme Court (thirteen judges).[16] This case was initially filed by Keshavananda Bharati,the head of a math in Kerala to challenge the validity of the Kerala Land Reforms Act of 1963. But the 29th Amendment of the Constitution placed it under the Ninth Schedule. The petitioner was permitted to not only challenge the 29th Amendment but also the validity of the 24th and 25th Amendments.

The historic judgment[17] was delivered by a 13-judge bench and with a majority of 7:6; they overruled the Golak Nath case. It was held that the power of Parliament to amend the Constitution is far and wide and extends to all the Articles but it is not unlimited to an extent that it destroys certain basic features or framework of the Constitution.[18]

It was held by the bench that Parliament's constituent power was subject to inherent limitations. Parliament could not use its amending powers under Article 368 to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or framework of the Constitution.[19]

The judges did not provide what constitutes the basic structure but provided an illustrative list of what may constitute the basic structure.

As per Sikri, C.J., the basic structure constitutes the following elements:
  • The supremacy of the Constitution
  • Republican and Democratic forms of Government
  • Secular character of the Constitution
  • Separation of Powers between the legislature, the Executive, and the Judiciary
  • Federal character of Indian Polity

Shelat, J. and Grover, J. added two more basic features to this list:
  • The mandate to build a welfare state contained in the Directive Principles of State Policy
  • Unity and integrity of the nation
Aftermath of Keshavananda Bharati

Indira Nehru Gandhi v. Raj Narain[20]

In 1975, The Supreme Court again had the opportunity to pronounce on the basic structure of the Constitution. A challenge to Prime Minister Indira Gandhi's election victory was upheld by the Allahabad High Court on grounds of electoral malpractice in 1975. Pending appeal, the vacation judge- Justice Krishna Iyer, granted a stay that allowed Smt.Indira Gandhi to function as Prime Minister on the condition that she should not draw a salary and speak or vote in Parliament until the case was decided.

Meanwhile, Parliament passed the Thirty-ninth amendment to the Constitution which removed the authority of the Supreme Court to adjudicate petitions regarding elections of the President, Vice President, Prime Minister and Speaker of the Lok Sabha.

It stated that no court has jurisdiction over the election disputes of the Prime Minister. Four out of five Judges upheld the validity of 42nd amendment act but struck down the provision which barred Judicial review with regard to election disputes. The bench added certain other features to the list of the basic structure, which were; Rule of Law and the power of Judicial review.

Minerva Mills Ltd. v. Union of India[21]

Soon after the declaration of National Emergency in 1975, the Congress party constituted a committee under the Chairmanship of Sardar Swaran Singh to study the question of amending the Constitution in the light of past experiences. Based on its recommendations, the government incorporated several changes to the Constitution including the Preamble, through the Forty-second amendment. Among other things, the amendment removed
  1. all fundamental rights from the scope of judicial review and
  2. removed all limits on Parliament's power to amend the Constitution under Article 368
The same was challenged in the court by Mr. N.A. Palkhivala in the apex court and the Hon'ble court opined that "Judicial review is a vital principle of our Constitution, and it cannot be abrogated without affecting the basic structure of the Constitution. If by a constitutional amendment, the power of judicial review is taken away and it is provided that the validity of any law made by the legislature shall not be liable to be called in question on any ground, even if it is outside the legislative competence of the legislature or is violative of any fundamental rights, it would be nothing short of subversion of the Constitution, for it would make a mockery of the distribution of legislative powers between the Union and the States and render the fundamental rights meaningless and futile".

L. Chandra Kumar v. Union of India[22]

Many writ petitions, special leave petitions, and civil appeals, the separate decisions by the high court and several provision in different acts and legislations all pertaining to the constitutional validity of Article 323-A(2)(d), Article 323-B(3)(d), the Administrative Tribunal Act, 1985, and the Tribunals constituted under Part XIV-A of the Indian Constitution can be effective and efficient substituted for the courts in discharging the power of judicial review were grouped together in this case.[23]

The Hon'ble apex court again reiterated that the power of judicial review under Article 32 of the Supreme Court and Article 226 of the High Court is part of the basic structure doctrine and these powers cannot be diluted by transferring them to administrative tribunals.

One certainty that emerged out of this tussle between Parliament and the Judiciary is that all laws and constitutional amendments are now subject to judicial review and laws that transgress the basic structure are likely to be struck down by the Supreme Court. In essence Parliament's power to amend the Constitution is not absolute and the Supreme Court is the final arbiter over and interpreter of all constitutional amendments. Thus the doctrine acts as a protector of the basic constitutional values and as a shield against misguided and imprudent legislative tyranny.

  1. Setu Gupta, Vicissitudes and Limitations of the Doctrine of Basic Structure, 6, ILI Law Review. 110, 110-111 (2016).
  2. Kulwinder Singh Gill & Ramandeep Singh Sidhu, The Living Constitution Theory and Inherent Rights: an Indian Perspective, SOCIAL SCIENCE RESEARCH NETWORK (Dec. 23, 2023, 10:30 PM),
  3. ASTHA EDGE, (last visited Dec. 23, 2023).
  4. Jack M. Balkin, Framework Originalism and the Living Constitution, 103, Northwstn. Univ. Law Rev. 550 (2009).
  5. Brian Z. Tamanaha, On the Rule of Law, History, Politics, Theory, 32, Journal of Law and Society. 657 (2005).
  6. CONSTITUTIONNET, (last visited Dec. 23, 2023).
  7. Kirtika Goyal, Basic Structure Doctrine, CLEARIAS (Mar. 9, 2023, 10:00 AM),
  8. Shankari Prasad Singh Deo v. Union of India, 1951 AIR 458 (India).
  9. Sajjan Singh v. State of Rajasthan, 1965 AIR 845 (India).
  10. Supra note 7, at 2.
  11. ECOURTS, (last visited Dec. 23, 2023).
  12. I.C Golaknath v. State of Punjab, 1967 AIR 1643 (India).
  13. Sumeda, Explained | Understanding the 'basic structure' of the Constitution and Jagdeep Dhankar's criticism of it, THEHINDU (Jan. 25, 2023, 11:05 PM),
  14. Supra note 7, at 2.
  15. Ishita Chandra, Evolution of Basic Structure doctrine in India, THETIMESOFINDIA (Nov. 18, 2022, 22:26 PM),
  16. CONSTITUTIONNET, (last visited Dec. 23, 2023).
  17. Keshavananda Bharati v. State of Kerala, (1973) 4 SCC 225 (India).
  18. Supra note 7, at 2.
  19. Supra note 13, at 3.
  20. Indira Nehru Gandhi v. Raj Narain, 1975 AIR 865 (India).
  21. Minerva Mills v. Union of India, 1980 AIR 1789 (India).
  22. L. Chandra Kumar vs Union Of India, (1997) 3 SCC 261 (India).
  23. IPLEADERS, (last visited Dec. 23, 2023).

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