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Understanding The Doctrine Of Basic Structure In Law

The constitution of any country is the supreme law of the land and before the constitution everyone in the state is equal. The Indian constitution which came into force in 1950 is supreme and a legal document which enumerates the rights and duties of citizens, function and powers of the government.

Indian government divides the function amongst the centre and state. There are three organs which fall into the functioning of the state- legislature, executive and judiciary. In order to maintain a check on the actions of these organs there needs to be an express provision in place. In cases where such a provision is not present, the court intervenes and evolves certain doctrines or principles to uphold the supreme law.

The constitution enumerates the fundamental principles which form the foundation for a civil society. On the face of it, it may seem like the Indian constitution is neither too flexible nor too rigid. This inference is formed often times from the fact that it has been amended almost 104 times in the last 70 years.

It is significant to understand that when the constitution is flexible, it calls for a balance between its flexibility and the need to secure and preserve its feature of supreme law which consequently restricts the temporary parliamentary majorities. This need to strike a balance is where the doctrine of basic structure found its basis.

The need for the doctrine in India arose when there was an absence in limitation under article 368 of the constitution. Article 368 of the Indian constitution which provides for the power to the parliament to amend the constitution by way of addition, variation or repeal did not place any restriction as to what could be or what could not be amended.

As a result of which the ninth schedule[1] was added to the constitution by the parliament. This was when it was realized that the Indian constitution lack control over the amending procedure of itself. The doctrine was first recognized in the case of Kesavananda Bharati v. State of Kerala in the year 1973.[2]

The doctrine has no legal provision backing it, rather only the precedents laid down by the Supreme Court. Thus, leading to the ambiguity and controversy with respect to what is the basic structure of the constitution. The doctrine also faces a hurdle on separation of powers since, power to make an implied judgment lies with an individual judge.


The foundation for the doctrine of basic structure is believed to have risen from the conflict of whether the right to property is a fundamental or constitutional right rather than the Kesavananda Bharati case where the doctrine was laid down by the Supreme Court.

While Nehru believed that there would be no compensation for the property seized by the government, Patel demanded complete compensation. The right to property was a result of compromise they made. When Patel passed away in the 1950, Nehru had a clear path in order to fulfill his vision on right o property. That is when the first amendment was made where right to property became a constitutional right under article 31A and 31B, repealing it as a fundamental right.

As per article 31A any property seized or acquired by the government, cannot be questioned based on right to property, equality, freedom of speech or practice one's profession. And under article 31B the ninth schedule was added which consisted of list of laws which cannot be found void or invalid by the judiciary.

This particular amendment lead to a showdown between the parliament and judiciary, since article 31B and ninth schedules violated the judicial review power of the judiciary wherein they weren't bestowed with the power to review the laws and amendments made by the parliament. This not only restricted their powers but also restricted rights given to the people under article 13 of the Indian constitution.

Although there were petitions filed by the citizens against the amendment[3], stating such amendments violated article 13 (2) which provides for protection of fundamental rights by stating laws which violate rights under part III of the constitution will be held void. However, under both Sankari Prasad Singh Deo v. Union of India[4] and Sajjan Singh v. State of Rajasthan[5] the Supreme Court upheld the amendments stating the parliament has powers to amend any part of the constitution. At the same it is also pertinent to note that, there were two judges in the Sajjan Singh v. State of Rajasthan who dissent the judgment and asked a very crucial question- "whether the fundamental rights of the citizen are to be perceived as a plaything at the hands of the majority party in the parliament?"

It was in the Golk Nath v. State of Punjab that the Supreme Court chose to make an attempt in protecting its power of judicial review. The new articles 31A and 31B was yet again challenged. In a 6:5 majority, the SC held that article 368 of the constitution only enumerated the amending procedure to be followed by the parliament and not the power to amend the constitution. The power of the parliament to amend the constitution was based on their legislative power under article 245, 246 and 248. Thus, the Supreme Court made a crucial observation that the power to make laws and power to amend the constitution was same, making every amendment a law under article 13 of the constitution.

The court also held that there are restrictions on the parliament which are not explicit with respect to amendment of the constitution. One such restriction is the fact that fundamental rights are reserved to the people and they are permanent in the constitution. By way of article 13 the parliament cannot modify, restrict or impair the fundamental rights due to the scheme and structure of the constitution.

They went on to hold that even if there is a majority of both housed of parliament the fundamental rights cannot be restricted. To be precise, the court held that certain features of the constitution like that of the fundamental rights form its foundation and core, thus certainly cannot be amended easily and requires much more than a simple procedure to amend it.

This judgment rather than safeguarding the power of the judiciary and resolving the conflict between the parliament and judiciary, resulted in the opposite. The parliament was looking for any such opportunity to establish its supremacy. They brought in two new laws on the premise of equal distribution of wealth and resources.

The judgment in the Bank Nationalization case[6] made the 4th amendment to the constitution which was seeking to amend article 31, 31A and 305 as void and in the case of Madhav Rao Scindia v. Union of India[7] the apex court held that right to property to the rulers was given by the constitution under article 291 and that cannot be abridged by the parliament through an amendment. The 24th amendment made the Golak Nath case's judgment ineffective.

The 25th amendment vested supremacy on the directive principles rather than the fundamental rights and 26th amendment rendered the Madhav Rao Scindia case's judgment ineffective. By and large the supremacy competition lead to making the constitutional amendments became a huge part of the mandate of the political parties in the elections. These amendments were debated in the Kesavananda Bharati case.

Emergence Of The Doctrine

In the case of Kesavananda Bharati v. State of Kerala the concept of basic structure was defined. The court also held that the power given to the parliament to amend the constitution is limited and must be done in a structured manner. It is pertinent to note that out of a 13 judge bench only 7 judges of the majority decision, were on the opinion that fundamental rights is the basic structure of the constitution and cannot be amended by the parliament.

Although the judgment held that the parliament does not have absolute power to amend the constitution and that it can be amended to the extent of not affecting the basic structure of the constitution, it does not define what constitutes and falls under the basic structure of the constitution.

Certain features are held by the chief justices as the basic structure of the constitution. Some of which are[8]:
  • Supremacy of the constitution
  • Republican and democratic form of government
  • Secular character of the constitution
  • Separation of powers between the legislature, executive, and judiciary
  • Federal character of the constitution
  • The mandate to build a welfare state contained in the directive principle of state policy
  • Unity and integrity of the nation

Judges Hegde and Mukherjea stated a separate list of what constitutes as basic structure of the constitution:
  • Sovereignty of India
  • Democratic character of the polity
  • Essential features of the individual freedoms secured to the citizens
  • Unity of the country
  • Mandate to build a welfare state

Judge Jaganmohan Reddy was of the opinion that the basic structure of the constitution is what is enumerated in the preamble of the constitution which can be precisely put as:
  • Sovereignty, democracy and republic nature
  • Parliamentary democracy.
  • Three organs of the state.

In further cases also the Supreme Court went on to define the basic structure of the constitution and the elements that form part of the theory. The Supreme Court has held that democracy enshrined in the preamble guarantees equal status and opportunity, thus making rule of law the basic structure of the constitution[9].

It also held that article 14 which provides for equal status before the law and equal opportunity is the basic structure of the constitution[10]. Secularism, federalism[11], independence of judiciary[12] and judicial review[13] form the basic structure of the Indian constitution.

Amending Power Of Parliament

After the verdict under Kesavananda Baharati case, the parliament went ahead and introduced two new clauses under article 368. These two clauses went ahead to impose the restriction that no constitutional amendment can be questioned in the court[14] and gave powers to the legislature by enumerating that no restriction can be upheld on their powers[15].

Furthermore in the year 1978, they removed article 31 from part III of the constitution and made it a constitutional right under article 300-A of the Indian constitution. [16] In the case of Minerva mills ltd. v. union of India[17], clause (4) and clause (5) of article 368 was challenged.

The court struck down both the clauses which were added to article 368. The court also held that a basic limitation on amending power of the legislature is part of the basic structure of the constitution. Consequently, the doctrine was reaffirmed in various other cases. Not only was the judgment under the Minerva mills case was upheld, the supreme court went on to hold that the laws enumerated under 9th schedule of the constitution falls within the scope of judicial review.[18]

The court has also upheld the judicial review and rule of law as the basic structure of the constitution since they form an integral part of functioning of the government. Judicial review is very significant to the functioning of any state, since the judiciary is bestowed with the power to oversee the functions and laws made by the legislature. The doctrine of basic structure only aims at reviewing the constitutional validity of laws made by the legislature and it is the essence of every democracy to ensure that amendments do not destroy the constitution's identity.[19]

Since the institution of the ninth schedule under article 31B of the constitution, there have been numerous laws which have been added to it. It was mainly land reform act initially but other laws with respect to reservations have also been added. In the I. R. Coelho v. State of Tamil Nadu[20], the court held primarily the fundamental rights form part of the basic structure of the constitution and every law under the ninth schedule must be tested by them.

It has been believed that the Doctrine of basic structure was first propounded by the Supreme Court. It is significant to understand that the judiciary was only a medium to enumerate the core features of the constitution in order to maintain its status as the supreme law and to preserve its sanctity. The doctrine gained its importance only because there was a need to settle a conflict of supremacy between the legislature and the judiciary.

The doctrine was enumerated to protect the principle of separation of powers and maintain checks and balances on the functions and powers of organs of the government. The true nature of the doctrine is to ensure that the parliament does not possess absolute powers to amend the constitution and any such amendment when it abridges the rights reserved to the people is struck down. It is merely but a device to give life to the living principles of "rule of law" and connotes that none is above the constitution and constitution is supreme.[21]

  1. 1st amendment of the Indian Constitution, 1950
  2. AIR 1973 SC 1461
  3. Institution of article 31A , 31B and ninth schedule in the Indian constitution, 1950.
  4. 1951 AIR 458, 1952 SCR 89
  5. 1965 AIR 845
  6. R. C. Cooper v. Union of India, 1970 AIR 564, 1970 SCR (3) 530
  7. AIR 1971 SC 530
  8. C.J Sikri, Shelat J. and Grover J. in the Kesavananda Bharati v. State of Kerala
  9. Indira Gandhi v. Rajnarain, AIR 1975 SC, 2299 (1975) 3 SCC 34
  10. Radhunath Rao v. Union of India, AIR 1993 SC 1267
  11. S.R. Bommai v. Union of India, AIR 1994 SC 1918
  12. Kumar Padma Prasad v. Union of India, AIR 1992 SC 1213
  13. L Chandrakumar v. Union of India, AIR 1997 SC 1125
  14. Article 368(4), the Indian Constitution, 1950
  15. Article 368 (5), the Indian Constitution, 1950
  16. Forty-fourth Amendment Act, 1978
  17. 1980 AIR 1789, 1981 SCR (1) 206
  18. AIR 1981 SC 271
  19. M. Nagraj v. Union of India, 2006 8 SCC 212
  20. AIR 2007 SC 861
  21. Aqa Raza, The Doctrine of "Basic Structure" in the Indian Constitution: A Critique

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