Magna Carta Mains 2024 : Crash Course for GS Paper II : Atish Mathur
1. What is Basic Structure? (Intro)
● It is a constitutional law doctrine that places restrictions on amending certain
essential or basic principles embedded in the Constitution
● Influenced by several radical constitutional amendments in Germany during the
Weimar regime, German Law Professor Conrad is responsible for the genesis of the
basic structure doctrine.
● Though mentioned briefly during the Golak Nath case in 1967, the doctrine was
cemented in the landmark 13 judge SC case of Kesavananda Bharti in 1973
● The great lawyer Mr. Nani Palkiwala has been credited with persuading the SC to
formulate the doctrine of Basic Structure
● Hailed as a landmark in modern constitutional jurisprudence, one of India’s finest
legal minds Zia Mody credits this as the first case in her book ‘10 Judgments that
changed India’
2. What is the rationale behind the doctrine of Basic Structure?
● Based on the theory of implied limitation.
● Parliamentary powers to amend the constitution must be subject to certain conditions
or limitations.
● This ensures the essence and purpose of written constitutions and constitutionalism
to be intact.
● It also upholds the tenets of Rule of Law.
● “It balances the power of the Parliament to amend the Constitution and the Supreme
Courts Power of judicial review of those amendments” - Justice Ashok Ganguly,
Landmark Judgements that changed India
3. What is the relationship between basic structure and
constitutionalism?
● Constitutionalism refers to the idea of limiting the powers of the State.
● A Constitution is a manifestation of the idea of constitutionalism. A Constitution, inter
alia, provides for the powers of the organs of the State. One such power is the power
of the Parliament to amend the Constitution itself.
● If unchecked, this power may include the power to amend critical provisions of a
Constitution necessary to safeguard the rights of the people as well as democratic
ideals.
● The doctrine of basic structure prevents the Parliament from amending those
provisions in the Constitution which the SC thinks to be absolutely necessary for the
efficacious functioning of the State.
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● By restricting the amending powers of the Parliament, the Basic Structure upholds
the principles of Constitutionalism.
4. What is the relationship between basic structure and Rule Of
Law?
● A.V. Dicey in his book ‘Introduction to the study of the Constitution’ in 1885 identified
three essentials of Rule of Law
● Absence of Arbitrary Power, Equality before Law, and Predominance of Legal Spirit.
● The Basic Structure Doctrine by limiting the powers of the Parliament to amend the
essential or basic features of the Constitution also limits the arbitrariness which
would led to unlimited powers of the Parliament to amend the Constitution.
● Furthermore, by recognising Judicial Review as one of the elements of Basic
Structure, it also upholds the principle of predominance of legal spirit.
5. How did the doctrine of Basic Structure evolve?
● The Socialist Prologue
○ It began with a series of Land Reform Acts passes by several state
legislatures such as Madras, Bombay, Bihar etc.
○ These Acts aimed at curtailing the quantum of land ownership leading to
excess land being compulsory purchased by the government to be
redistributed amongst those who were landless.
○ The socialist Acts were challenged at several High Courts by land owners
claiming a violation of then existing fundamental right to Property contained in
Art 19(1)(f) as well as Art 31. Additionally, Art 14 and 21 were also claimed to
the violated as the Acts only aimed at excess land onwers and deprivation of
their own property could be considered a violation of Art 21.
○ The cases received a mixed response with some High Courts invalidated the
Acts while some upheld them.
● The Constitutional Context
○ In response to this apparent chaos, the Parliament amended the Constitution
in 1951 (1st CA, 1951) inserting
○ Art 31 A and Art 31 B which allowed for the govt to acquire property without
affecting FRs and inserting the Ninth Schedule which gave immunity to any
law from judicial scrutiny placed under it.
○ Several Acts were incrementally placed under the Ninth Schedule.
Consequently, the amendments through which the acts were placed under the
Ninth Schedule were challenged.
● The Legal Questions : On the pretext of hearing challenges to amendments inserting
land reform Acts to the Ninth Schedule, the SC framed larger questions :
○ Does ‘law’ as per Art 13(2) include Constitutional Amendments?
What is the extent to which the Parliament can amend the Constitution?
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Magna Carta Mains 2024 : Crash Course for GS Paper II : Atish Mathur
Issue Shankari Golak Nath Kesavanada Minerva Waman IR
Prasad (1967) [6:5] Bharti Mills Rao(1981) Coelho
(1951) & (1973) [7:6] (1980) (2006)
Sajjan [4;1*]
Singh
(1967) [3:2]
C.A law No Yes No Status Status Quo Status
as per Quo Quo
13(2)
Extent Unlimited, Limited - Limited by Reaffirmed Basic JR of pre
of Parl Parl has FR could Basic Basic Structure 1973
powers Constituent not be Structure, Structure, applies to additions
powers to amended, overruled 39(b)(c) > amendment to IXth
amend u/a no Golaknath, 14,19,31 and the Schedule
368 distinction inter alia JR laws added as well.
between is Basic to IXth
Constituent Structure, Schedule
& Ordinary no JR of pre
powers, 1973
prospective additions to
overruling IXth
Schedule.
6. What was held in the Kesavananda Bharti Case?
● 24th CA, 1971 was valid
● 25th CA, 1971 was valid except for clause ousting judicial review
● 29th CA, 1971 was valid.
● Overruled Golak Nath, Parliament can amend FRs.
● Subject to the Doctrine of Basic Structure, no implied limitation on Parliament’s power
to amend the Constitution under Art 368
● Pre judgment additions to Ninth Schedule not subject to Judicial Review (prospective
overruling)
● Special Remarks
○ Though the doctrine was evolved in this case, the seeds of Basic Structure
were actually sown in the Golak Nath case.
○ Upendra Baxi's words in 1974 that Kesavananda was the Indian Constitution
of the future turned out to be ncar prophetic
○ In delineating the basic structure of the Constitution, most judges relied upon
the Preamble, the fundamental rights and the direcrive principles of state
policy.
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7. What has been included in the Doctrine of Basic Structure?
Core Constitutional Principles
Principles Cases
Supremacy of the Kesavanada Bharti v. State of Kerala (1973) SR Bommai v.
Constitution Union of India (1994)
Rule of Law Indira Gandhi v. Raj Narain (1975) Indira Sawhney v. Union
of India (1993) IR Coelho v. State of Tamil Nadu (2007)
Separation of Powers Kesavanada Bharti v. State of Kerala (1973) SR Bommai v.
Union of India (1994) IR Coelho v. State of Tamil Nadu
(2007)
Federalism Kesavanada Bharti v. State of Kerala (1973) SR Bommai v.
Union of India (1994)
Limitations of amending Minerva Mills v. Union of India (1980)
power under Art 368
Core Constitutional Features: Rights etc.
Principles Cases
Principles behind Kesavanada Bharti v. State of Kerala (1973) IR Coelho v.
Fundamental Rights State of Tamil Nadu (2007)
Secularism Kesavanada Bharti v. State of Kerala (1973) SR Bommai v.
Union of India (1994) Sri Adi Vishveshwarya of Kashi
Vishwanath Temple, Varanasi v. State of UP (1997)
Balance between FRs Minerva Mills v. Union of India (1980)
and DPSPs
Concept of social and Kesavanada Bharti v. State of Kerala (1973) Bhim Singh JI v.
economic justice, DPSP Union of India (1981)
in toto
Objectives specified in Kesavanada Bharti v. State of Kerala (1973)
the Preamble
Democracy Related
Principles Cases
Parliamentary System of Govt Kesavanada Bharti v. State of Kerala
(1973)
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Principle of free and fair elections Kihoto Hollohan v. Zachillu (1993)
Parliamentary Democracy & Multi Party Kuldip Nayar v. Union of India (2006)
Systems
Judiciary Related
Principles Cases
Independent & Registrar (Admin) v. Sisir Kant Satapathy (1999)
Efficient Judicial
Systems
SC Powers under Art Delhi Judicial Service Association v. State of Gujarat (1991)
32, 136, 141, 142
Effective Access to Central Coal Fields v. Jaiswal Coal Co. (1980)
Justice
Judicial Review, Art Kesavanada Bharti v. State of Kerala (1973) Indira Gandhi v. Raj
32, Art 226/227 Narain (1975) Minerva Mills v. Union of India (1980) SP Sampat
Kumar v. Union of India (1987) L Chandra Kumar v. Union of India
(1997)
Independence of SC AoR Assn. v. Union of India (1994)
Judiciary
8. What has been excluded in the Doctrine of Basic Structure?
Provision Description
Art 31A (1st CA, Acquisition of estates, attempts to remove inequalities in the matter
1951) of agricultural holdings (Waman Rao v. UoI, 1981)
Art 105(2) Even though Parliamentary Democracy is a basic feature of our
Constitution, the rights and immunities under Art 105(2) cannot be
elevated as FRs or basic feature to invalidate insertion of Xth
Schedule (Kihoto Hollohan v. Zachillu, 1993)
Art 334 Extending reservation for SC, ST, Anglo Indians in Legislatures
amendment via 45
CA 1978
Fifth Schedule and Temporary Provision and CA under 368 not required to amend it.
amendments [SC AoR Assn. v. Union of India (1994)]
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Magna Carta Mains 2024 : Crash Course for GS Paper II : Atish Mathur
323A (Tribunals) Takes away service matters jurisdiction from HC and Civil Courts.
via 42nd CA, 1976 [SP Sampat Kumar v. Union of India (1987) & L Chandra Kumar v.
Union of India (1997)]
Amendment taking Sankari Prasad Singh Deo v. Union of India (1951)
away a FR
9. What is the impact of the judgement and the doctrine of Basic
Structure?
● Chief Justice of India Dr DY Chandrachud has called the ‘basic structure doctrine’ a
north star “which guides and gives a certain direction to the interpreters and
implementers of the Constitution when the path ahead is convoluted.”.
● Impact :
○ Judiciary v. Parliament : Checks & Balances
■ While the Supreme Court's decisionin Golak Nath was the first
significant sign of judicial supremacy in constitutional interpretation,
Kesavananda firmly established that the Supreme Court was
unmatched in authority when it came to constitutional matters.
■ The Supreme Court made a strategic retreat over amendments to
fundamental rights but significantly broadened the scope of its judicial
review by assuming the power to scrutinise all constitutional
amendments-not just those affecting fundamental rights.
■ If the Parliament had an unfettered right to amend the Constitution,
the Supreme Court had a coextensive power to review and invalidate
any amendment that violated its basic structure.
■ To an extent, the judges who recognised the Basic Structure Doctrine
sought to achieve a win-win situation for Parliament & Supreme Court.
○ Constitutionalism Above all
■ Kesavananda recognises the distinction between the drafting and
working of the Constitution.
■ The decision in Kesavananda ensured that the Parliament, which
holds its constituent power in trust for the people of India, can never
change the fundamental bases of India. The Parliament's power to
amend is not limitless and is always coextensive with that of the
people
○ Domino Effect
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■ The basic structure doctrine postulated in Kesavananda has been
credited with protecting the Indian state from collapsing like many of
its South Asian counterparts, whether through totalitarian rule, military
coup or other extra-constitutional means.
■ It has also protected India from moving in a 'sharply socialist direction'
○ Expansive Applications
■ For many years now, the Apex Court has applied the basic structure
doctrine either directly or tangentially, to invalidate ordinary
legislations. It is a well-established rule that there are two grounds
based on which ordinary legislation gets tested, namely, whether it
attracts Art.13(1) and (2) bar of the constitution or not and legislative
competence. However, in the NJAC Case as well as Madras Bar
Assn. v Union of India (2015), the doctrine was held applicable to
ordinary legislations as well.
■ In the Elections case, the 39th CA, 1975 was struck down upholding
Judicial Review
■ In the NJAC Case, the 99th CA, 2014 was struck down upholding
Independence of Judiciary as Basic Structure
■ Federalism was raised as an ingredient of basic structure in petitions
challenging abrogation of Art 370 which was eventually upheld
recently by the SC in Re: Abrogation of Art 370 in 2024.
■ Secularism as a part of Basic Structure has been argued in pending
litigation challenging the CAA 2019, review petitions post Sabrimala.
● One of the most apt closure remarks to the impact of doctrine can be found with
Michael Foley, in his treatise The Silence of Constitutions', explained that what is said
in the Constitution is important but what is not said, but is implied in the silence from
what is said, is equally important.
● Judicial Review and Constitutional Supremacy: The doctrine reinforces the
principle of judicial review, granting the Indian judiciary the power to review and
strike down laws that violate the basic structure of the Constitution. This ensures the
supremacy of the Constitution and prevents the arbitrary exercise of power by the
legislature.
● Fundamental Rights: The doctrine of basic structure acts as a safeguard for
fundamental rights enshrined in the Indian Constitution. It ensures that no
constitutional amendment can dilute or abrogate these rights, such as the right to
equality, freedom of speech, or protection against discrimination.
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● Maintaining Federalism: The doctrine protects the basic structure of federalism in
India. It prevents the Parliament from altering the essential features of the federal
structure, such as the distribution of powers between the Union and the states. This
has helped maintain the balance between the central government and state
governments. Secularism and
● Separation of Powers: The doctrine of basic structure upholds the principle of
secularism and the separation of powers. It prevents any amendment that
undermines the secular character of the Indian state or disturbs the delicate balance
between the executive, legislative, and judicial branches of government.
● Limiting Constitutional Amendments: The doctrine imposes limitations on the
amending power of the Parliament. While the Indian Constitution allows for
amendments, the doctrine sets a boundary by prohibiting amendments that violate
the basic structure. This prevents the Parliament from altering the Constitution in a
manner that fundamentally transforms its character.
● Evolution of the Constitution: The doctrine of basic structure allows for the
evolution of the Indian Constitution in response to changing societal needs and
aspirations. While the basic structure remains protected, the interpretation and
application of the Constitution by the judiciary have allowed for progressive
developments in areas such as expanding fundamental rights and inclusivity.
10. What is the critical analysis of having such a doctrine?
● The Invisible hand
○ The basic structure doctrine finds no mention in the language of the
Constitution
○ Opposes the original intent of the Constituent Assembly
○ The nexus the doctrine and the Constitution as it has been codified can be
attributed more accurately to spirit than to text.
● Lost in transition
○ Kesavananda has been condemned for being too lengthy, thus causing
uncertainty about what the eleven opinions collectively meanand what the
basic structure actually comprised. comprised. The judgement has also been
described as one that provides an 'outstanding study on lack of consensus'.
○ The danger with the ambiguity of the basic structure doctrine is that each
judge's conception depends on his personal preferences and virtually vests
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Magna Carta Mains 2024 : Crash Course for GS Paper II : Atish Mathur
amending power in judges, resting on variable judicial perceptions and
majorities.
● Democratic Dangers
○ The basic structure doctrine has also been sharply criticized as being
counter-majoritarian, and one that causes a democratic imbalance since it
gives inordinate power over constitutional amendments to the Supreme
Court, an unelected and self- appointed body
11. Can Basic Structure Doctrine be amended or dilluted?
● Since the basic structure or basic principles are not explicitly mentioned in the
Constitution, these features per se cannot be amended by Constitutional
Amendments under Art 368. Therefore, possibilities of a new constitution or replacing
a core feature such as a parliamentary system of government arise for which there
are usually the following choices
○ Revolution - Highly unlikely in a written constitution
○ Parliament itselt converting into a Constituent Assembly - would have been
possible Pre Minerva Mills but post, the limited power to amend the
Constitution is itself Basic Structure
○ Referendum - Would not have any effect on the power of the Parliament to
amend anyway
■ Acc. to DD Basu, in his book Shorter Constitution of India, Vol II, - he
suggests referendum as as a mode by passing a Constitution
Amendment providing for the same.
○ Higher Bench - Review : This is technically possible and was attempted
before in 1975 during the emergency.
■ However, the review was inexplicably and suddenly abandoned.
There's no official report or record concerning the said review. Such
an attempt occurred during an emergency when there were
restrictions regarding the reporting of court decisions by the press
○ Constitutional Amendments to dilute basic features : This was attempted
previous via the 25th, 42nd, and 44th CA, 1978 but were eventually struck
down as violative of Basic Structure.
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