Basic Structure Doctrine Group Ass Consti 1

Basic structure Doctrine
According to the Indian Constitution, the Parliament and the State

Legislatures can make laws within their jurisdictions. The power to
amend the Constitution is only with the Parliament and not the state
legislative assemblies. However, this power of the Parliament is not
absolute. The Supreme Court has the power to declare any law that it
finds unconstitutional void. As per the Basic Structure Doctrine of the
Indian Constitution, any amendment that tries to change the basic
structure of the constitution is invalid.
What is the Basic Structure Doctrine of Indian Constitution?

There is no mention of the term “Basic Structure” anywhere in
the Constitution of India. The idea that the Parliament cannot
introduce laws that would amend the basic structure of the
constitution evolved gradually over time and many cases. The idea is
to preserve the nature of Indian democracy and protect the rights
and liberties of people. This Basic Structure doctrine of the Indian
Constitution helps to protect and preserve the spirit of the
constitution document.
it was the Kesavananda Bharati case that brought this doctrine into
the limelight. It held that the “basic structure of the Indian
Constitution could not be abrogated even by a constitutional
amendment”. The judgement listed some basic structures of the
constitution as:
1. Supremacy of the Constitution

2. Unity and sovereignty of India
3. Democratic and republican form of government
4. Federal character of the Constitution
5. Secular character of the Constitution
6. Separation of power
7. Individual freedom
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 of India 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 on the grounds that they distort the basic structure
of the Constitution.
Evolution of the Basic Structure Concept

The concept of the basic structure of the constitution evolved over
time. In this section, we shall discuss this evolution with the help of
some landmark judgement related to this doctrine.
Shankari Prasad Case (1951)
 In this case, the SC contended that the Parliament’s power of

amending the Constitution under Article 368 included the
power to amend the Fundamental Rights guaranteed in Part III
as well.
Sajjan Singh case (1965)
 In this case also, the SC held that the Parliament can amend any
part of the Constitution including the Fundamental Rights.
 It is noteworthy to point out that two dissenting judges, in this
case, remarked whether the fundamental rights of citizens
could become a plaything of the majority party in Parliament.
Golaknath case (1967)
 In this case, the court reversed its earlier stance that the
Fundamental Rights can be amended.
 It said that Fundamental Rights are not amenable to the
Parliamentary restriction as stated in Article 13 and that to
amend the Fundamental rights a new Constituent Assembly
would be required.
 Also stated that Article 368 gives the procedure to amend the
Constitution but does not confer on Parliament the power to
amend the Constitution. This case conferred upon Fundamental
Rights a ‘transcendental position’.
 The majority judgement called upon the concept of implied
limitations on the power of the Parliament to amend the
Constitution. As per this view, the Constitution gives a place of
permanence to the fundamental freedoms of the citizens.
 In giving to themselves the Constitution, the people had
reserved these rights for themselves.
Kesavananda Bharati case (1973)
 This was a landmark case in defining the concept of the basic

structure doctrine.
 The SC held that although no part of the Constitution, including
Fundamental Rights, was beyond the Parliament’s amending
power, the “basic structure of the Constitution could not be
abrogated even by a constitutional amendment.”
 The judgement implied that the parliament can only amend the
constitution and not rewrite it. The power to amend is not a
power to destroy.
 This is the basis in Indian law in which the judiciary can strike
down any amendment passed by Parliament that is in conflict
with the basic structure of the Constitution.
Indira Nehru Gandhi v. Raj Narain case (1975)
 Here, the SC applied the theory of basic structure and struck

down Clause(4) of Article 329-A, which was inserted by the
39th Amendment in 1975 on the grounds that it was beyond
the Parliament’s amending power as it destroyed the
Constitution’s basic features.
 The 39th Amendment Act was passed by the Parliament during
the Emergency Period. This Act placed the election of the
President, the Vice President, the Prime Minister and the
Speaker of the Lok Sabha beyond the scrutiny of the judiciary.
 This was done by the government in order to suppress Indira
Gandhi’s prosecution by the Allahabad High Court for corrupt
electoral practices.
Minerva Mills case (1980)
This case again strengthens the Basic Structure doctrine. The

judgement struck down 2 changes made to the Constitution by
the 42nd Amendment Act 1976, declaring them to be violative
of the basic structure.
 The judgement makes it clear that the Constitution, and not the
Parliament is supreme.
 In this case, the Court added two features to the list of basic
structure features. They were: judicial review and balance
between Fundamental Rights and DPSP.
 The judges ruled that a limited amending power itself is a basic
feature of the Constitution.
Waman Rao Case (1981)
 The SC again reiterated the Basic Structure doctrine.

 It also drew a line of demarcation as April 24th, 1973 i.e., the
date of the Kesavananda Bharati judgement, and held that it
should not be applied retrospectively to reopen the validity of
any amendment to the Constitution which took place prior to
that date.
 In the Kesavananda Bharati case, the petitioner had challenged
the Constitution (29th Amendment) Act, 1972, which placed
the Kerala Land Reforms Act, 1963 and its amending Act into
the 9th Schedule of the Constitution.
 The 9th Schedule was added to the Constitution by the

First Amendment in 1951 along with Article 31-B to
provide a “protective umbrella” to land reforms laws.
 This was done in order to prevent them from being

challenged in court.
 Article 13(2) says that the state shall not make any law
inconsistent with fundamental rights and any law made in
contravention of fundamental rights shall be void.
 Now, Article 31-B protects laws from the above scrutiny.

Laws enacted under it and placed in the 9th Schedule are
immune to challenge in a court, even if they go against
fundamental rights.
 The Waman Rao case held that amendments made to the 9th
Schedule until the Kesavananda judgement are valid, and those
passed after that date can be subject to scrutiny.
Indra Sawhney and 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 case (1994)
 In this judgement, the SC tried to curb the blatant misuse of

Article 356 (regarding the imposition of President’s Rule on
states).
 In this case, there was no question of constitutional
amendment but even so, the concept of basic doctrine was
applied.
 The Supreme Court held that 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.
The doctrine of the basic structure helps to prevent legislative
excesses, as was evident in the Emergence Era. This is required as a
shield against an all-powerful parliament, which can resort to
overuse of Article 368.

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Basic structure Doctrine

According to the Indian Constitution, the Parliament and the State

What is the Basic Structure Doctrine of Indian Constitution?

1. Supremacy of the Constitution

 Harmony and balance between the Fundamental Rights and

 Limited power of the parliament to amend the Constitution

 Power of the Supreme Court of India under Articles 32, 136,

Any law or amendment that violates these principles can be struck

Evolution of the Basic Structure Concept

 In this case, the SC contended that the Parliament’s power of

 This was a landmark case in defining the concept of the basic

 Here, the SC applied the theory of basic structure and struck

This case again strengthens the Basic Structure doctrine. The

 The SC again reiterated the Basic Structure doctrine.

 The 9th Schedule was added to the Constitution by the

 This was done in order to prevent them from being

 Now, Article 31-B protects laws from the above scrutiny.

 SC examined the scope and extent of Article 16(4), which

 In this judgement, the SC tried to curb the blatant misuse of

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