Constitutional law: Doctrine of Basic structure

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Much like any other Charter, the Constitution of India has fundamental features that capture the essence of it, without which, it would lose its key attributes.  The Basic Structure Doctrine assume the role of the protector of these key attributes and lists down features of the Constitution that are out of the purview of  amendment as to uphold constitutional liberty.

The Basic Structure Doctrine is one evolved by the Supreme Court of India so as to curtail the amending power of the Parliament. The Parliament of India, through Article 368 of the Constitution is vested with the power to amend the Constitution; however, the Basic Structure Doctrine defines the extent up to which such a power can be exercised. The Constitution is deemed to be the supreme law of the nation, and through its Preamble states its key attributes. The Doctrine safeguards the supremacy of the Constitution and prevents amendments to its basic features.

AMENDMENT POWER under Article 368

 The will of the people is represented through the Constitutional provisions and becomes the absolute law of the Country. For a law to be dynamic, it is to encompass within itself the quality of flexibility and the quality to respond to change adequately.

Article 368 of the Indian Constitution grants the parliament a formal method and authority to amend the Constitution when need be so. Amendment is the process of adding, correcting or modifying a pre-existing statue so as to remove any irregularities from the same. Oxford’s Dictionary of Law. The Article states that the Parliament may add, vary or repeal any provision of the Constitution by Special Majority in some cases and Special Majority and Ratification by at least half of the State Legislatures.

The Parliament of newly independent India, in 1951, amended for the first time Part III of the Constitution and added Article 31(A) and 31(B) by the Constitution’s First Amendment Act, 1951 to insert Right to Property as a Fundamental Right. However, the Article reduced the purview of fundamental rights and accumulated majority of the land under the control of the feudal landlords.

Amendments 31(A) and 31(B) were challenged in the Shankari Prasad v. Union Of India case, 1951 (1951). AIR. SC 458 on the grounds that they abridged the citizens from their fundamental rights and hence was not allowed by Article 13.

Article 13(1) states that all laws that are inconsistent with Part III of the Constitution shall be held void. Clause 2 of Article 13 further prevents the Parliament from making any laws that infringe upon the fundamental rights safeguarded and any laws in contravention of the same will be held void ab initio.

The Hon’ble Court in the Shankari case held that Article 13 is applicable only to the laws made by the Parliament under their Legislative power and that Constitutional Amendments did not come within the ambit of the Article.

In 1965, this issue of land reforms was raised again in the Sajjan Singh v. State of Rajasthan 1965 AIR 845, 1965 SCR (1) 933 case where the validity of the Constitution 17th Amendment Act, 1964, which added certain land legislations to the Ninth Schedule was challenged. The Hon’ble Supreme Court once again by 3-2 majority held that the amending power conferred to the Parliament by the virtue of Article 368 was limitless. However, Justice J.R. Mudolkar in his dissenting opinion stated that changing the basic features of the Constitution would amount to re-writing the Constitution itself and hence the amending power should be curtailed.


In 1971, the Hon’ble Supreme Court interpreted Article 368 in the Golak Nath v. State of Punjab 1967 AIR 1643, 1967 SCR (2) 762 case.  The eleven-judge bench headed by the then Chief Justice Subba Rao: firstly held that Article 368 merely lays down the procedure for Constitutional amendments and the not extent of such power. Furthermore, the Hon’ble Court held that the amending power and procedure, for the Parliament, specifically dealing with legislative amendments can be found under Articles 245, 246, 248.

Secondly, The Court held that whereof fundamental rights were in question, the Parliament were under ‘implied limitation’ and  had no authority to amend them even with complete majority. The Court identified that fundamental rights are absolutely sacred to the existence of an individual and could only be amended by the convening of a Constituent Assembly.


To counter and abrogate the judgment pronounced in the Golak Nath case, the Parliament under the then ruling party of Congress, headed by Indira Gandhi inserted an additional clause to Article 13 by the 24th Constitution Amendment Act, 1971; which stated, stated that Article 13 did not apply to any amendments made under the virtue of Article 368. Similarly, an amendment was made to Article 386 stating that any amendment made under this Article shall not be subject to the provisions under Article 13. The Constitution 25th Amendment Act, 1971 introduced Article 31(C) which gave Directive Principles significantly more importance than fundamental rights.

The historic and celebrated case of  Keshavananada Bharati v. State of Kerala (1983) 4 SCC 225; AIR 1973 SC 1461 marks the inception of  Doctrine of Basic Structure. The case challenged the Constitution 24th, 25th and 29th Amendment Act, 1971 on the grounds that it was against the founding principles of the Constitution and should be held ultravires (against the Constitution).

The thirteen and largest judge bench formed of the Supreme Court held that the Constitution 24th Amendment Act, 1971 was valid, as, the word ‘law’ in Article 13 meant only ordinary law and the Article did not extent to amendments made to the Constitution under Article 368. Adding to that, the Hon’ble Court held that the Parliament had power to amend any part of the Constitution including fundamental rights by the virtue of Article 386; however, stated that an amendment cannot be such which takes away the original spirit or rebuilds the basic structure of the Constitution; thus, upholding that the basic features of the Constitution need to be intact after an amendment.

While in the Golaknath judgment, the Hon’ble Court held that no fundamental rights could be amended at all, in the Keshavananda Bharti case it was held that only those fundamental rights which constitute the basic structure of the Constitution cannot be amended; and in doing so, gave birth to the Doctrine of Basic Structure.


The Keshavananda Bharti judgement laid down the following as the essentials of  the Doctrine of Basic Structure:

  1. Supremacy of the Constitution
  2. Separation of Powers
  3. Democratic and Republican form of Government
  4. Unity and Sovereignty                 
  5. Federalism and Secularism                   
  6. Parliamentary form of Governance


After the landmark case of Keshavananda Bharti the Doctrine of Basic Structure saw great expansion and development. The same can be explained through the following case laws:

  • Raj Narain v. Indira Nehru (AIR 1975 SC 2299) : In the present case, the Hon’ble Supreme Court was to deliberate on the Constitution 39th Amendment Act,1975 which inserted a new Article 329 A and  retrenched the Courts from adjudication upon elections of the President, Vice President, Prime Minister and the Speaker of Lok Sabha. The Hon’ble Court upheld the 39th amendment but struck down the part which tried to strangle Judicial Review. It was further held that Judicial Review shall be a basic feature of the Constitution.
  • Minerva Mills v. Union of India (AIR 1980 SC 1789): Which resulted out of the Constitution 42nd Amendment Act, 1976, held a harmony is to be achieved between fundamental rights and directive principles and the same will be a basic feature of the Constitution.
  • Waman Rao v. Union of India. (1981). 2 SCC 587: This judgment opened the purview of Judicial Review to every judgment passed after the Keshavanana Bharti Judgment.
  • Kihoto Hollohan v. Zachillhu (1992 SCR(1) 686): This case challenged the constitutional validity of the Constitution 52nd Amendment Act, 1985 which stated the rules for defection on the grounds that it abridged freedom of speech and right to dissent which fundamental to a parliamentary democracy. Through this case ‘free and fair elections’ were bought under the ambit of the Basic Structure of the Constitution.
  • Indira Sawhney v. Union of India (1992 (3) SCC 217 [2]): The Supreme Court in this case examined the scope of Article 16(4) which lays down provisions relating to reservation. Through this case ‘Rule of law’ was held to be a basic feature of the Constitution.


Just as a Gospel prescribes commandments for its disciple, the Constitution of India prescribes the commandments for every India to be followed. The Constitution captures the essence of being Indian since the conception of the nation itself. The Doctrine of Basic Structure has been put in place to thoroughly guard these attributes of our Constitution, which the founding fathers deemed necessary for the functioning of a secular, democratic, republic.

As correctly stated in the Sajjan Singh case, if the basic attributes of the Constitution are altered, it would amount to re-writing the constitution itself and hence the sanctity and supremacy of the Constitution should be vehemently protected. The Doctrine of Basic Structure has, since its inception, encompassed various attributes within its ambit which play a key role in maintaining social order.

Author: Fareedunnisa Huma

Editor: Kanishka Vaish, Editor, LexLife India.

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