Basic Structure of the Constitution

Table of Contents
1. Basic Structure Doctrine
2. What Is Meant By Basic Structure?
3. Judgement: Some Basic Structures Identified
4. Basic Structure Doctrine - Elements
5. Evolution Of The Doctrine: Landmark Cases
6. Later Developments And Important Doctrinal Points
7. Key Takeaways
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Basic Structure Doctrine

The Basic Structure Doctrine was propounded by Justice H.R. Khanna in the Kesavananda Bharati judgement of 1973. The doctrine holds that the Constitution contains certain essential features which cannot be abrogated or destroyed even by a constitutional amendment passed by Parliament.

The doctrine applies specifically to constitutional amendments and not to ordinary legislation; if an amendment violates the Constitution's core framework, the Supreme Court may declare it void.

What Is Meant By Basic Structure?

There is no exhaustive or statutory definition of the basic structure in the Constitution; the concept has developed through judicial interpretation and is determined case by case.

The essential idea is that Parliament's power to amend the Constitution under Article 368 is not unlimited; it cannot be used to destroy the Constitution's fundamental framework or core principles.

Judgement: Some Basic Structures Identified

The Kesavananda Bharati judgment listed several features that formed part of the basic structure; over time the Supreme Court has added or clarified other features through subsequent rulings.

• Supremacy of the Constitution
• Unity and integrity of the nation
• Democratic and republican form of government
• Federal character of the Constitution
• Secular character of the Constitution
• Separation of powers between legislature, executive and judiciary
• Individual freedom and dignity

Over time, many other features have also been added to this list of basic structural features. Some of them are:

• Rule of law
• Judicial review
• Parliamentary system
• Rule of equality
• Harmony and balance between the Fundamental Rights and DPSP
• Free and fair elections
• Limited power of the parliament to amend the Constitution
• Power of the Supreme Court under Articles 32, 136, 142 and 147
• Power of the High Court under Articles 226 and 227

Any law or amendment that violates these principles can be struck down by the SC because they distort the basic structure of the Constitution.

Basic Structure Doctrine - Elements

The Supreme Court has yet to define or clarify what constitutes the basic structure of the Constitution. From the various judgments, the following have emerged as basic features of the Constitution or elements of the basic structure of the Constitution:

1. Supremacy of the Constitution.
2. Sovereign, democratic and republican nature of the Indian polity.
3. Secular character of the Constitution.
4. Separation of powers between the legislature, the executive, and the judiciary.
5. Federal character of the Constitution.
6. Unity and integrity of the nation.
7. Welfare state (socio-economic justice).
8. Judicial review.
9. Freedom and dignity of the individual.
10. Parliamentary system.
11. Rule of law.
12. Harmony and balance between Fundamental Rights and Directive Principles.
13. Principle of equality.
14. Free and fair elections.
15. Independence of Judiciary.
16. Limited power of Parliament to amend the Constitution.
17. Effective access to justice 18. Principles (or essence) underlying fundamental rights.
18. Powers of the Supreme Court under Articles 32, 136, 141 and 142.
19. Powers of the High Courts under Articles 226 and 227.

Evolution Of The Doctrine: Landmark Cases

This doctrine evolved through so many cases, i.e. through many judicial and legal interpretations:

Shankari Prasad Singh Deo v. Union of India (1951)

The Supreme Court held that Article 368 conferred on Parliament the power to amend any part of the Constitution, including Fundamental Rights. This view was the first judicial position on constitutional amendments.

Sajjan Singh v. State of Rajasthan (1965)

The Court reaffirmed that Parliament could amend any part of the Constitution, including Fundamental Rights. It is noteworthy to point out that two dissenting judges, in this case, remarked on whether the fundamental rights of citizens could become a plaything of the majority party in Parliament.

Golaknath v. State of Punjab (1967)

The Supreme Court reversed earlier rulings and held that Parliament could not abridge Fundamental Rights through ordinary amendment; it interpreted that Fundamental Rights enjoy a special, protected place in the constitutional scheme (invoking Article 13 and the basic supremacy of Fundamental Rights).

Kesavananda Bharati v. State of Kerala (1973)

• The case marked a turning point in establishing the basic structure doctrine.
• The Supreme Court ruled that while the Parliament could amend any part of the Constitution, including Fundamental Rights, it couldn't abolish the "basic structure of the Constitution" through amendments.
• Essentially, the judgment conveyed that the Parliament can make changes to the Constitution, but it cannot completely rewrite it. The power to amend doesn't mean the power to destroy.
• In Indian law, this principle allows the judiciary to reject any amendment passed by Parliament if it contradicts the fundamental framework or core principles of the Constitution, known as the basic structure.

Indira Nehru Gandhi v. Raj Narain (1975)

• In this case, the Supreme Court applied the basic structure theory and invalidated Clause (4) of Article 329-A, introduced by the 39th Amendment in 1975.
• The 39th Amendment Act, enacted during the Emergency Period, aimed to shield the elections of the President, Vice President, Prime Minister, and Speaker of the Lok Sabha from judicial review.
• The Court ruled that Clause (4) of Article 329-A went beyond the Parliament's amending power as it undermined the fundamental features of the Constitution.
• The background of this amendment was linked to the government's attempt to protect Indira Gandhi from prosecution by the Allahabad High Court for alleged corrupt electoral practices.

Minerva Mills Ltd. v. Union of India (1980)

• This case further reinforced the Basic Structure doctrine by nullifying two modifications introduced by the 42nd Amendment Act of 1976, deeming them in violation of the basic structure.
• The judgment emphasized that the Constitution, not the Parliament, holds supreme authority.
• The Court, in this instance, included two elements in the fundamental structure: judicial review and maintaining a balance between Fundamental Rights and Directive Principles of State Policy (DPSP).
• The judges asserted that the Constitution's fundamental nature includes a restricted amending power, making it a basic feature.

Waman Rao v. Union of India (1981)

• The Supreme Court once again affirmed the Basic Structure doctrine.
• It established a clear distinction from April 24th, 1973, the date of the Kesavananda Bharati judgment, stating that the doctrine should not be applied retroactively to question the validity of amendments made before that date.
• In the Kesavananda Bharati case, the petitioner contested the Constitution (29th Amendment) Act, 1972, which included the Kerala Land Reforms Act, 1963, and its amending Act in the 9th Schedule of the Constitution.
• The 9th Schedule, added by the First Amendment in 1951 with Article 31-B, aimed to shield land reform laws from legal challenges.
• Article 13(2) prohibits laws inconsistent with fundamental rights, but Article 31-B and the 9th Schedule protect certain laws, making them immune to court challenges.
• The Waman Rao case determined that amendments made to the 9th Schedule until the Kesavananda judgment are valid, but those made after that date can be scrutinized for conformity with the Constitution.

Indra Sawhney & Union of India (1992)

• SC examined the scope and extent of Article 16(4), which provides for the reservation of jobs in favour of backward classes. It upheld the constitutional validity of 27% reservation for the OBCs with certain conditions (like creamy layer exclusion, no reservation in promotion, total reserved quota should not exceed 50%, etc.)
• Here, 'Rule of Law' was added to the list of basic features of the constitution.

S.R. Bommai v. Union of India (1994)

• In this case, the Supreme Court aimed to prevent the improper use of Article 356, which deals with the imposition of the President's Rule on states.
• While there was no issue related to constitutional amendments, the court applied the concept of the basic structure doctrine.
• The judgment established that if the policies of a state government were contrary to a fundamental aspect of the Constitution's basic structure, it could be considered a legitimate reason for the central government to use its power under Article 356 to impose the President's Rule in that state.

Later Developments And Important Doctrinal Points

• The basic structure doctrine is open-ended and evolves with judicial interpretation. The Supreme Court decides whether a particular amendment violates the basic structure by examining its effect on the Constitution's essential features.
• Judicial review remains central: the power of courts under Articles 32, 136, 141 and 142, and the High Courts under Articles 226 and 227, is a main mechanism for testing the validity of amendments and laws against the basic structure.
• The Ninth Schedule and reviewability: laws placed in the Ninth Schedule were originally thought to be immune from challenge, but subsequent rulings clarified that entries added after 24 April 1973 can be examined if they violate Fundamental Rights or the basic structure (see later jurisprudence developing this principle).
• Practical effect: if an amendment removes or substantially impairs an essential feature-such as democracy, secularism, federalism, judicial independence or rule of law-the amendment can be held unconstitutional.

Key Takeaways

• The Basic Structure Doctrine places an intrinsic limit on Parliament's amending power so that the Constitution's fundamental character is preserved even while it can be adapted to changing needs.
• The doctrine is judicially created and applied case by case; there is no closed list of features and the Court determines what is essential by examining the purpose and effect of the amendment.