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Updated: Mar 14, 2021

Doctrine of Basic structure -

‘Our Constitution is organic, ever-growing, perpetually continuous as it embodies the spirit of the nation. ‘Part XX’ of the Constitution under ‘Article 368’ provides for amendment of the Constitution, provides for amendment of the Constitution, it is of ‘3 types’, - i.e., Amendment by simple majority, Amendment by special majority, Amendment by special majority and ratification by the states.

Judicial approach regarding what is included in the basic structure has been changing on a case to case basis as there is no exclusive (or) exhaustive definition of basic structure given by the Judiciary.

The Parliament under ‘Article 368’, can amend any of the provisions of the Indian Constitution, even ‘Article 368’, itself. To put a limitation on this power, so the Basic structure / Basic law of the land should not be changed the ‘Doctrine of basic structure’, judge made doctrine came into existence.

Does all our Constitution amendments don’t contradict the basic foundation and structure of the Constitution ?

Evolution of the Doctrine of basic structure -

It can be divided under ‘4 stages’,

1st stage - Shankari Prasad judgement, ending with I.C. Golak Nath judgement.

2nd stage - Post Golak Nath scenario, ending with Kesavananda Bharati judgement.

3rd stage - Post Kesavananda Bharati judgement, ending with Indira Gandhi case.

4th stage - From judgements like Minerva Mills case.

The Judicial Journey of Basic structure -

Case law : Sri Sankari Prasad Singh v. Union of India

In this case, the ‘First constitutional amendment’, was challenged before the Supreme Court. The issue here was;

‘Whether the Constitution (First Amendment) Act, 1951 passed by the provisional Parliament is valid ?’

The amendment was challenged on the ground that the word ‘law’ under ‘Article 13(2)’ also includes the ‘law of the amendment of the Constitution’ and so ‘Articles 31-A & 31-B’ are invalid as they abridge the Fundamental rights. It was held that though amendment is superior to an ordinary legislation, so it will not be hit by ‘Article 13(2)’.

The court in this case, resolved the conflict by using literal interpretation and upheld the validity of the ‘1st Amendment’. It was held that ‘Article 368’, empowers Parliament to amend the Constitution without any exception that Fundamental Rights cannot be amended. There was a disagreement with a view that the Fundamental Rights are inviolable. Thus, here the Supreme Court kept the ‘law of amendment’ beyond the scope of ‘Article 13(2)’.[1]

Case law : Sajjan Singh v. State of Rajasthan

The Constitution (Fourth Amendment) Act, 1955, was passed amending some articles in ‘Part III’ of the Fundamental Rights, after the Shankari Prasad case. But the validity of this act was never challenged.

But in 1964, the Constitution (Seventeenth Amendment) Act, was challenged before the court as it brought an important change in the ‘Ninth schedule’ by putting a number of laws and keeping them away from judicial review. This act was challenged before the court.

The majority of the judges in this case applied the same logic as in the ‘Shankari Prasad Case’ that the law of amendment is superior law and is not subject to ‘Article 13(2)’. In this case, it was also held that the Shankari Prasad case was rightly decided & affirmed that under ‘Article 368’, the Parliament can amend any of the provisions of the Constitution including the Fundamental Rights. A suggestion was made in this case to the Parliament that Fundamental rights should be included in the proviso of ‘Article 368’.

‘Justice Mudholkar’, dissented that - ‘Constitutional amendment be excluded from the definition of “law” under ‘Article 13’, and also argued that every Constitution has certain basic principles that cannot be changed’ [2].

Case law : I.C. Golak Nath & Ors v. State of Punjab

The strong reservations of the minority view in the ‘Sajjan Singh case’, prompted Chief Justice ‘Subba Rao’, to constitute a larger bench of ‘11 Judges’, to reconsider the validity of the ‘1st, 4th, 11th Constitutional amendments’, in view of the doubts expressed by both Justice Hidayatullah and Mudholkar.

In this case, the ‘17th Constitutional Amendment’was challenged. Through a majority view of ‘6:5’, it was held that the ‘Parliament had no power to amend the Fundamental rights’. ‘Justice Subbarao’, held that, ‘Article 368’contained only procedure for amendment, the power to amend being located in the residuary power of legislation. As legislative power was subject to the provisions of the Constitution, ‘Article 13(2)’, constituted a bar to an amendment abridging (or) taking away fundamental rights. The majority judgement overruled ‘Shankari Prasad case’ and held that there was no distinction between legislative & constituent power.

Case law : Kesavananda Bharati Sripadagalvaru v. State of Kerala

After the decision given in ‘Golak Nath’s case’, the tussle between judiciary & legislature totally took a different view. The ‘Twenty-fourth Constitution Amendment Act’, was passed to nullify the decision of ‘Golak Nath case’. ‘Four clauses’ were added to the article to blanket the Parliament with an omnibus constituent power.

Through the ‘Twenty-fifth Constitutional Amendment’, new provision ‘Article 31C’, was introduced where the Directive Principles of State Policy enumerated under ‘Part IV’, of the Constitution were deemed automatically to be valid despite inconsistency with that of Fundamental rights granted under ‘Article 14, 19, 31’, of the Constitution.

In this case, the petition was filed under ‘Article 32’, of the Constitution for the enforcement of fundamental rights under ‘Article 14, 19(1)(f), 25, 26, 31(1) & 31(2)’. He prayed that the provisions of the ‘Kerala Land Reforms Act, 1963’, as amended in ‘1969 & 1971’, to be declared ultra-vires to the Constitution. It was heard by the largest ever Constitution bench of ‘13 judges’, to review the decision of Golak Nath case.

Rules given by the Supreme Court -

a) If there is any ambiguity regarding the rule of interpretation, then the ‘Hyden’s Rule’, has to be followed.

b) Any amendment to the Constitution has to be within the limits of the essence of the Constitution. The Constitution has its own identity that relates to the essential principles on which the Constitution is based and cannot be taken away by any process of amendment.

c) ‘Article 368’, is the only source of amending power.

d) India though, a representative democracy, but there is no system of referendum in India, i.e., the people cannot directly amend the Constitution (or) make any law.

e) The Parliament has only the derivative power, i.e., in it’s constituent power, it has to act with in the limits of the Constitution.

f) ‘Article 13(2)’, refers to the ordinary legislative power of the Parliament and the State legislature whereas, ‘Article 368’, refers to the constituent power of the Parliament to amend the Constitution and is above the limitation of ‘Article 13(2)’, though it is subject to the ‘Doctrine of Basic structure’.

g) Fundamental rights are amendable but not the basic structure. Articles are the elements of the basic structure. Amendment of the word used in the Articles on fundamental rights is permissible only to the extent that the basic structure of the Constitution does not get adversely affected.

h) The Doctrine of Basic structure cannot be said to be vague merely because it cannot be rigidly defined (or) all the elements of basic structure have not been enumerated.

i) A distinction was drawn between the terms ‘law & constitutional law’, used under ‘Article 13’, of the Constitution. Constitutional law does fall with in the purview of law used in ‘Article 13’.

Thus, there is no certainty (or) unanimity about what constitutes the essential (or) basic features of the Constitution.[3]

Case law : Indira Gandhi v. Raj Narain (Election case)

The validity of the ‘39th Constitutional Amendment’, enacted in 1975, was challenged in this case which sought to place the election of the President, Vice President, Prime Minister, Speaker of the Lok Sabha beyond the scrutiny of the constitutional courts.

The Supreme Court resorting to the theory of basic structure of the Constitution struck down this on the ground that it was beyond the amending power of the Parliament and destroyed the basic structure of the Constitution.[4]

Case law : Minerva Mills v. Union of India

The validity of the ‘42nd Constitutional Amendment Act, 1976’, was challenged in this case that it violates the basic structure of the Constitution as it inter alia provided for exclusion of judicial review of the constitutional amendments that expressly conferred unlimited amendment power to the Parliament. It was ruled that the power of Parliament is limited to make the amendments and is itself a basic feature of the Constitution. The Constitution is supreme but not the Parliament.

It was held by a majority of ‘4:1’, and struck down ‘Clauses (4) & (5)’, holding that they violate the basic structure.[5]

In a nutshell -

Over the years the Supreme court has been applying the doctrine of basic structure to invalidate ordinary legislations, sometimes directly, at other times tangentially.

Case law: S.R. Bommai v. Union of India

The concept of basic structure was resorted to although no question of constitutional amendment was involved in this case. The Supreme Court held that the 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’, i.e., imposition of the President’s rule[6].

Case law : Supreme Court Advocates on Record v. Union of India

The ‘99th Constitutional Amendment’, was challenged in this case. The issue here was,

‘Whether this amendment is void as it alters (or) damages the basic structure’.

The contention was that the primacy of judiciary in appointment of judges & absence of interference by the executive therein is by itself a part of the basic structure of the Constitution.

These contentions were rejected and by a majority of ‘4:1’, it was held that the NJAC damages the basic structure of the Constitution where the primacy in appointment of judges has to be with the judiciary[7].

Thus subsequently, we find that the idea of basic structure as an idea has developed over years since its origin in the 1970’s. We have seen that the judiciary never gave a solid test to discover what is the basic structure. Thus, the ‘Basic structure doctrine’ is a mean to give momentum to the living principles of the ‘Rule of Law’ & connotes that ‘None is above the Constitution and the Constitution is the supreme’.


References [1] 1951 AIR 458. [2] 1965 SCR (1) 933. [3] (1973) 4 SCC 225. [4] Appeal (Civil) 887 of 1975. [5] AIR 1980 SC 1789. [6] (1994) 3 SCC 1. [7] Writ Petition (Civil) No. 13 of 2015.


Author -Sivapuram VL Thejaswini

Student at Alliance University, Bangalore.

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