I.D. NO.
: 2023-2MACPL-___
NAME OF THE CANDIDATE:
NAME OF THE SUBJECT: Introduction to Law and Legal Methods (1.1.1)
TOTAL NUMBER OF PAGES:
Contents
LIST OF CASES........................................................................................................................3
LIST OF STATUTES................................................................................................................3
INTRODUCTION......................................................................................................................4
HISTORICAL BACKGROUND...............................................................................................6
THE ‘BASIC STRUCTURE’ DOCTRINE AND ITS EVOLUTION......................................8
JUSTIFICATION BY THE JUDICIARY.................................................................................9
LIMITATIONS OF THE DOCTRINE....................................................................................10
CONCLUSION........................................................................................................................12
BIBILIOGRAPHY...................................................................................................................14
LIST OF CASES
LIST OF STATUTES
INTRODUCTION
Our constitution was presented in the written form to provide a rigid character to it and to
tackle certain ambiguities that might have come up otherwise. The power to amend it was
also enshrined in the hands of the Parliament through Article 368 1. The idea of assigning
amending powers to the Parliament does seems positive because with due time and with an
evolving India, there might be instances where specific changes have to be made. However,
the idea is a double-edged sword. A lot of prejudices of the existing ruling party which has
substantial control over the Parliament might be introduced into the Constitution under the
pretext of a constitutional amendment. There had to be a clear distinction of superiority
between the Constitution and the amending powers of Parliament. The Constitution was not
to be altered as per the whims and fancies of the parliamentary majorities of the nation. To
achieve that objective, Article 368 did not put any restrictive conditions the Parliament’s
power to amend the Constitution; however, in Keshavananda Bharati v. State of Kerala
(1973). The Apex Court held, Parliament could not change the ‘Basic Structure or
Framework’ of the Constitution 2. The court made it clear that Article 368 does not empower
the Parliament to make changes that distort the basic structure of the Constitution under the
garb of an amendment. The topic since its inception has been heavily debated upon while the
doctrine continues to be a constitutional safeguard. Before the judgement, a vast cloud of
uncertainty existed over the powers of the Parliament to bring amendment the bare text.
STATEMENT OF PROBLEM
When it comes to the Basic Structure Doctrine, the constant tussle between Parliament and
Judiciary was a significant challenge. This majorly include the parliamentary powers to
amend any part of the constitution under Article 368. Consequently, Plethora of Judgements
came pertaining to limiting the power of Parliament and these judgements and their timeline
serve as the impetus for the study that seeks answers to the questions that are associated with
these issues and present insights for the same.
RESEARCH QUESTIONS
1. What is the Historical Background which leads to the need for the Basic Structure
1
INDIA CONST art. 368.
2
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
2. What is Basic Structure Doctrine and How it has been evolved in the Constitutional
discourse
3. What are the Limitations of this Basic structure doctrine and how it is justified by the
Indian judiciary?
HYPOTHESIS
The basic structure doctrine posits that there exists an intrinsic and immutable framework
within a constitution, comprising essential principles, fundamental rights, and structural
elements, the alteration of which through ordinary legislative processes poses a threat to the
foundational integrity and identity of the legal and political system. This hypothesis
anticipates that the recognition and application of the basic structure doctrine serve as a
crucial mechanism for maintaining constitutional stability, preserving democratic values, and
upholding the rule of law within a nation.
RESEARCH METHODOLOGY
The project has been prepared through the doctrinal method of research. The researchers have
referred to various sources and have taken help from both primary as well as secondary
sources such as government reports, books, journals and internet web pages. No empirical
data through field work has been used for this project. Some of the own views, findings, ideas
and opinions of the researchers will be brought out. They are not generally of authoritative
importance and are correct.
HISTORICAL BACKGROUND
The pre-independence India had mixed views about the future of free India. Subhash Chandra
Bose, one of the most prominent members of the pre-independence congress, was of the
opinion that India shall have a more authoritative and strong state like the fascist
governments in other parts of the world at that time 3. Mahatma Gandhi, on the other hand,
was proposing a more decentralized, self-sufficient India 4. However, the ideological clash
that the constituent assembly paid the most attention to, was between Sardar Vallabh Bhai
Patel and Jawaharlal Nehru. The same clash also sowed the historical seeds of the doctrine of
basic structure. Patel favored a model that was based on the principles of laissez-faire i.e., an
economy which is free from the intervention of the state except for a few key areas 5. Some
countries that followed the same structure were - Switzerland, Ireland, Estonia and the United
Kingdom. One prominent factor about the laissez-faire system was that it did not allow the
government to have much control over a lot of areas available to the public. The private
sector played an important role in this system and the prices of various goods were decided
by the market forces existing at that time. At the same time, Nehru wanted an economy that
was based on property redistribution as a way of correcting past wrongs 6. He wanted the
government to have a certain higher ground when it came to the acquirement of property and
hence was finding a way to mend with the fundamental right to property that the citizens had.
Nehru’s views gained much more traction as the Indians believed that there must be a certain
limit as to which one can own land and property.
Sardar Vallabh Bhai Patel was the first choice for the post of Prime Minister as per the
general consensus of the congress. To sort this dispute, Mahatma Gandhi had to step in and
after having discussions with him, Patel decided to make way for Nehru as the PM. The death
of Patel in 1950 allowed Nehru to start implementing judicial decisions as per his vision of
right to property without much opposite intervention. Patel’s death also meant that no
obstruction lied in the path of Nehru in the upcoming elections and the chances of him losing
his post were practically negligible. In 1951, the Nehru government passed Articles 31A and
31B 7, which acted as the origin of the dispute that resulted in formation of the doctrine. As
per Article 31A, the acquisition of land by the government couldn’t be questioned on the
3
Rudolph, L.I. and Rudolph, S.H., 1987. In pursuit of Lakshmi: The political economy of the Indian state.
University of Chicago Press.
4
Id.
5
Id.
6
Kaviraj, S., 1988. A critique of the passive revolution. Economic and political weekly, pp. 43, 57–58.
7
INDIA CONST art. 31A–B.
basis of one’s fundamental right in relation with one’s property, the freedom of profession
and speech he possessed and equality. Article 31B provided for a Ninth Schedule, which
included laws that did not allow the judiciary to invalidate them on the anvil of fundamental
rights. Although the schedule was brought in for of making land reforms, it could have
potentially been used to protect any other law from judicial intervention.
This caused a massive uproar amongst the people. The people argued that as per Article 13 of
the constitution 8, no law can encroach upon the fundamental rights of the citizens and this
amendment had the status of a law, hence it shall be invalid. The Supreme Court, basing its
judgement on the 1952 (Sankari Prasad case 9) and the 1955 (Sajjan Singh’s case 10) ruled that
the Parliament had powers to amend any part of the Constitution, even when it affected the
fundamental rights of citizens. Indian judiciary was not able to elaborate on the question of
whether an amendment held the status of a law and if it did why was it not considered under
the purview of Article 13, meaning it curbed the fundamental rights of the people and should
have been invalidated.
This position was challenged by the Supreme Court when in Golak Nath v. the State of
Punjab11, in which it ruled that Article 368 did not confer the power on the Parliament to
amend the constitution to the parliament; it only provided for the amending procedure. The
power to amend was derived from other provisions that were present in our constitution
(Article 245,246, 248), which empowered the parliament to formulate laws. Hereby it was
clear that the legislative powers and the amending powers were essentially the same, and they
fell under the ambit of ‘law’ under the purview of Article 13. The court further elaborated on
the fact that Fundamental Rights have a sacrosanct place in the Indian Constitution, and even
a unanimous decision by the parliament would not be sufficient enough to amend them. In
order to question the fundamental rights, which formed an intrinsic part of the citizens of
India, the parliament could have come up with another Constituent Assembly to readdress the
issue of fundamental rights; however, a mere majority did not empower the parliament to
amend and encroach upon the citizen’s fundamental rights.
The Golak Nath case created a tussle between the Parliament and Judiciary and brought the
issues of fundamental rights and DPSP into the limelight. Executive was of the view that it
had an absolute power of amending the entirety of the Constitution which it derived from
8
INDIA CONSTI art. 13.
9
Sankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458.
10
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.
11
I.C. Golak Nath v. State of Punjab, (1967) 2 S.C.R. 762, 819.
Article 368, whereas the Judiciary was of the view that curbing the fundamental rights was a
significant issue and the parliament shall not have an absolute power to mend with the same.
Under the objective of promoting equity with respect to wealth and fair redistribution of
resources amongst the masses, the ruling government brought two more laws relating to the
nationalization of banks and the abolishment of privy purses. Both of them were quashed by
the Supreme Court. There was a clear rift between the Judiciary and the Parliament, which
caused the Constitution to be an electoral issue for the first time in independent India. While
core issues like poverty, unemployment and the economy were at the helm of matters, this
issue of constitutionality slyly crept into the minds of people due to the focus it got after the
dispute between the executive and the judiciary. The people were now starting to be more
aware about their fundamental rights. The ruling party started to have significant
apprehensions about this issue swaying the elections into the opposition’s court.
THE ‘BASIC STRUCTURE’ DOCTRINE AND ITS EVOLUTION
In 1973, a Constitution Bench consisting of 13 judges made a ruling in Kesavananda Bharati
v. State of Kerala12, stating that Article 368 does not grant Parliament the power to modify
the basic structure of the Indian constitution. The landmark judgment became widely
recognized as the "basic structure" doctrine - a legal tenet that asserts the Constitution
possesses fundamental characteristics that are immune to modification or annihilation by
parliamentary changes. Over time, several aspects of the fundamental structural theory have
developed, serving as the foundation for the judicial examination of Constitutional
amendments. The Kesavananda Bharati case marked the final stage of a struggle between the
court and the government led by Indira Gandhi at that time. The Supreme Court, in the case
of I.C. Golak Nath v. State of Punjab (1967), ruled that the Parliament does not have the right
to restrict the fundamental rights that are protected by the Constitution.
The phrase 'basic structure' was initially employed in this instance by attorney M.K Nambyar.
Mr. Nambyar argued that Parliament lacked the authority to modify the fundamental rights
outlined in Part III, drawing on a notion advocated by German philosopher Dieter Conrad.
Nevertheless, it was not until a few years later that the idea was explicitly defined in a case
by the Supreme Court. The previous administration implemented a sequence of constitutional
revisions in response to consecutive verdicts that were unfavorable to it. The 24th, 25th, and
12
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
29th Constitutional (Amendment) Act granted Parliament unrestricted authority to modify or
even eliminate any basic right. In 1970, Kesavananda Bharti, the leader of a religious
institution in Kerala, contested the Kerala Land Reforms Act which imposed limitations on
the administration of religious assets. The case was adjudicated by a 13-Judge bench, which
is the largest in history.
The doctrine of "basic structure" was first implemented following its introduction in the 1975
case Indira Gandhi v. Raj Narain 13. Indira Gandhi was found guilty of election malpractices
in Lok Sabha election by the Allahabad High Court, following a challenge from her opponent
Raj Narain. Following the declaration of an emergency, Parliament enacted the 39th
Amendment, which explicitly forbids any attempt to contest the election of the President,
Vice-President, Prime Minister, and Speaker, regardless of any electoral misconduct. The 5-
judge Bench classified the autonomous execution of elections as an integral part of the
Constitution and decided that Parliament is prohibited from modifying the Constitution if
such changes impact essential matters such as fundamental rights.
The doctrine regained prominence in 1980 during the Minerva Mills case 14, which concerned
the 42nd Amendment implemented by the Indira Gandhi administration. The highest court, in
a decision supported by most of the judges, affirmed the authority of the judiciary to examine
and evaluate changes made to the constitution. Judicial review is a foundational tenet of our
Constitution; its abolition would have an adverse effect on the Constitution's basic structure.
The judgement observed that a complete undermining of the Constitution would occur if the
authority of judicial review were eliminated via a constitutional amendment, stipulating that
the validity of any legislation enacted by the legislature would not be subject to challenge on
any basis, regardless of whether it violates fundamental rights or falls outside the jurisdiction
of the legislature. Such an action would compromise the division of legislative authority
between the central government and the states, effectively nullifying the fundamental rights.
JUSTIFICATION BY THE JUDICIARY
The judiciary effectively justified its actions and upheld the basic structure of the
Constitution. The deficiencies and erroneous actions of the Parliament and the government
have facilitated the Supreme Court's effective declaration that the Constitution of India
should be interpreted to have an unalterable characteristic. Additional significant reasons that
contributed to this realization included the frequent exercise of the parliament’s amendatory,
13
Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1
14
Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625
the ulterior goals of ambitious politicians, and a poorly run Parliament. Editing and revising
the entire constitution would have been a highly perilous undertaking for any parliament,
given the countless historical and political concessions that were made.
The 9-judge bench in I.R. Coelho has demonstrated a specific dedication to enhancing the
basic structure concept15. Firstly, it has provided a logical basis for the implementation of this
principle by grounding it on the foundation of fundamental rights. This has been achieved by
implementing 2 tests: the "rights test" and the "essence of rights test". This solidification
eradicates the previously prevailing ambiguity in the understanding and application of this
regulation. In summary, it demonstrates a thorough understanding of the idea as a whole by
establishing a strong connection with fundamental rights.
Furthermore, it has expanded the scope of the fundamental structure doctrine. Instead of
simply stating that certain Articles of the Constitution would form the basic components of
the Constitution, and its violation would be a violation of the basic structure, it has shifted the
emphasis from the 'rights' to the 'essence' or 'fundamental principles' of those rights. If a law
obstructs any fundamental rights or another element of the essential framework, it will be
invalidated.
Furthermore, the expanded foundation of the fundamental construction convention
instantaneously enhances its potency and adaptability, as it enables the inclusion of implicit
liberties based on concerned attributes.
LIMITATIONS OF THE DOCTRINE
It is frequently contended that the notion lacks basis in the explicit language of the
Constitution. The assertion is made that the term "basic structure" is not present in the
Constitution. In addition, detractors argue that aside from its lack of legitimacy in written
form, the doctrine grants the court the ability to impose its own ideology on a government
that has been democratically elected, resulting in a situation similar to what Union Minister
Arun Jaitley famously described as "tyranny of the unelected."
The detractors argue that the theory grants the court the authority to impose its ideology on a
government that has been elected by the people. This problem typically occurs due to
misunderstanding regarding the composition of the Basic structure. It is frequently
challenging to precisely determine the phrases. It is frequently contended that the notion lacks
15
I.R. Coelho v. State of T.N., (2007) 2 SCC 1
basis in the explicit language of the Constitution. There is a lack of textual evidence to
support the idea. There is no explicit provision in this Constitution declaring that its basic
structure is immune to the jurisdiction of the amending power. The theory has recently been
employed in instances that have been perceived as illustrations of excessive judicial
intervention. The Supreme Court employed this argument to declare the NJAC statute
invalid.
Despite the existence of the fundamental structure concept, there have been cases where the
basic structure has been modified to align with and include judicial ideas and opinions.
New features are continually being added to this structure, providing them the same
immunity as the basic structure. Right to Education was introduced in the 86 th Amendment
Act, in the guise of Article 2116. The introduction of such an amendment was considered to
be a landmark addition. This involves a remarkable number of changes and demands a
significant amount of public money and important resources and responsibilities like such as
the financial sustainability of running low-cost private schools. To meet the country's
evolving demands, the provision may necessitate talks about specific modifications and
subsequent amendments. However, because of its location in the Fundamental Rights chapter,
it is beyond of reach of Parliament. This again raises the question of what can be classified as
a change beneficial to the society?
In another amendment where Article 15 was introduced in 2006 caused a major effect on the
Fundamental Rights. With the introduction of Article 15 (5), even private, unaided
educational institutions were required to implement reservations 17. Minority institutions,
however, were exempt from the ban, even if they were government-funded. The
Constitution's framers did not intend for this to happen. All of this raises the question of
whatever static constitutional principles the basic structure theory is attempting to defend,
given that the Constitution has been amended 104 times.
The regulation has set the legal executive in the specific place of limitless power that it
looked to keep Parliament from possessing. The Constitution actually should have specific
non-debatable standards yet the equivalent should be tight and completely recognized. In the
journey to shield vote-based system from the hands of chosen parliamentary agents, it is
unsuitable to put it totally in the possession of an appointed legal executive.
16
The Constitution of India, 1950, Article 21A
17
The Constitution of India, 1950, Article 15(5)
A validity of a legislature can be determined it two ways. One in the determination of the
competency of the legislature and other is whether the legislature attracts Article 13 (1) and
13 (2) or not. The question over here is how can the ordinary legislation be invalidated by the
judiciary as violative on the grounds of the basic structure when there is are already two
important grounds.
In State of West Bengal v. Committee for Protection of Democratic Rights 18, (2010) 3 SCC
571 Supreme Court held that the power of the judicial review is an intrinsic part of the basic
structure of the Constitution and no act by the legislature has the power to thwart or exclude
this power possessed by the courts.
CONCLUSION
As an end it could be concluded that the principle of essential design is an extraordinary idea
taken from the Constitution that is officially formed upon the Constitution by the legal
executives through the explanative cycles. The framework is remarkably well-defined, and it
has successfully reconciled the rigidity and flexibility of the Constitution.
The principle of basic structure is the most essential component whose impeccable design has
enabled the Constitution to endure for so long. It has effectively maintained the equilibrium
among the various branches of government while successfully rejecting the potential
consequences of improperly tailoring the Constitution, nullifying early-stage freedoms that
are crucial for the development of human character, and undermining the Rule of Law. It
impedes the legislature from attaining authentic authority and transforming itself into the
legal authority, thereby disadvantaging the stakeholders. As of now, it has proven to be an
exceptionally potent instrument for determining the legitimacy of constitutional amendments
and preventing unwarranted changes. Nevertheless, further deliberation is required to
determine whether this convention is adequate and suitable to accommodate the potential
necessity for change in the current context. Undoubtedly, this legal lesson has proven to be
exceptionally beneficial for the nation in times of turmoil, when the legislature exhibited a
tendency to haphazardly rely on Article 368. This situation was anticipated by the
constitution's framers during the constitution's formulation process.
The Apex Court has done an incredible duty to the country by establishing that there are
definitely some essential elements of the Constitution which can't be restructured. It has been
most remarkably brought up to the notice of the parliament that Constitution isn't any
18
West Bengal v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571
political party or group’s proclamation which can be changed to their own advantage.
However, it is a public legacy and endowment which can be edited just when a public, the
actual stakeholders and situation requests for it. In this manner, the tenet of essential design
might be required to work as the much-needed guard of Constitutional administration. There
can in any case be banters concerned with what actually establishes the essential nature.
There is nothing out of sorts in such discussions. We should remember and follow those
legislative issues in a majority rule system is fundamentally brimming with discussions and
contrasts. That is an indication of variety, energy and lucidity.
BIBILIOGRAPHY
1. Rudolph, L.I. and Rudolph, S.H., 1987. In pursuit of Lakshmi: The political economy
of the Indian state. University of Chicago Press.
2. Kaviraj, S., 1988. A critique of the passive revolution. Economic and political weekly,
pp. 43, 57–58.
