PROTEACHER • UPSC INDIAN POLITY

Basic Structure of the Constitution

Article 368 • Kesavananda Bharati • Constitutional Identity • Judicial Review • Landmark Judgments

📘 UPSC Prelims ⚖️ GS-II Mains 🏛 State PCS 🧠 Interactive Learning
Learning outcome: Understand why Parliament’s constitutional amendment power is limited, how the basic structure doctrine developed, which principles it protects, and how to apply it to UPSC questions.
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Can Parliament Change Everything?

Imagine Parliament passes a Constitutional Amendment declaring that elections will never be held again.

Suppose the Bill is passed with the special majority required under Article 368.

Would that make the amendment constitutionally valid?

The answer is no. Parliament has broad power to amend the Constitution, but it cannot destroy or damage its basic structure.

This limitation is known as the Basic Structure Doctrine.

368Amendment power
1973Landmark judgment
7:6Judicial majority

Can a constitutional amendment be invalid even after Parliament follows the correct voting procedure?

Yes. An amendment can be struck down if it violates the basic structure, even if procedural requirements under Article 368 have been satisfied.

The Constitution as a Living Building

Imagine the Constitution as a building.

Changes allowed

Renovating rooms, adding facilities or modifying arrangements without destroying the building.

Changes not allowed

Removing the foundation and destroying the essential identity of the building.

Similarly, Parliament may alter constitutional provisions, but it cannot abolish essential constitutional principles such as democracy or judicial review.

Remember: This is an explanatory analogy. The legal test depends on the constitutional amendment and relevant Supreme Court judgments.

Does the basic structure doctrine prevent every major constitutional reform?

No. Significant changes are permissible as long as they do not damage or destroy the basic structure.

Article 368 and the Power to Amend

Article 368 provides the constitutional framework for Parliament’s constituent power to amend the Constitution.

What Parliament can do

  • Add constitutional provisions.
  • Modify existing provisions.
  • Repeal constitutional provisions.
  • Amend Fundamental Rights, subject to the basic structure limitation.

What Parliament cannot do

Use its amendment power to destroy the Constitution’s fundamental identity.

Key distinction: Constituent power under Article 368 is different from Parliament’s ordinary legislative power.

Is Parliament’s power under Article 368 unlimited?

No. The Supreme Court has held that Parliament’s constituent power is subject to the basic structure doctrine.

Shankari Prasad and Sajjan Singh

Shankari Prasad v. Union of India (1951)

The Supreme Court upheld Parliament’s power to amend Fundamental Rights through a constitutional amendment.

Sajjan Singh v. State of Rajasthan (1965)

The Court reaffirmed Parliament’s power to amend Fundamental Rights.

CaseYearPosition
Shankari Prasad1951Fundamental Rights could be amended
Sajjan Singh1965Reaffirmed amendment power

Did Shankari Prasad hold that Fundamental Rights could never be amended?

No. It upheld Parliament’s power to amend them.

Golaknath Case, 1967

In I. C. Golaknath v. State of Punjab, the Supreme Court held that Parliament could not amend Fundamental Rights so as to abridge or take them away.

This departed from the earlier approach in Shankari Prasad and Sajjan Singh.

Chronology: 1951 and 1965 — Amendment permitted. 1967 — Golaknath restricted Parliament’s power. 1973 — Kesavananda established the basic structure limit.

Which judgment held that Parliament could not abridge Fundamental Rights through constitutional amendment?

Golaknath, 1967.

24th Constitutional Amendment, 1971

Following Golaknath, Parliament enacted the 24th Amendment Act, 1971.

Its significance

  • Affirmed Parliament’s power to amend any constitutional provision.
  • Amended Articles 13 and 368.
  • Made presidential assent to a duly passed Constitutional Amendment Bill obligatory.

The validity of this amendment became an important issue in the Kesavananda Bharati litigation.

Which amendment affirmed Parliament’s constituent power after Golaknath?

The 24th Amendment Act, 1971.

Kesavananda Bharati v. State of Kerala, 1973

This is the foundational judgment of the Basic Structure Doctrine.

13Judges
7:6Majority
24 Apr1973 judgment

The Court held that Parliament can amend the Constitution, including Fundamental Rights, but cannot alter its basic structure.

UPSC core formula: Amendment power is broad, but not unlimited.

Did Kesavananda Bharati completely prohibit amendment of Fundamental Rights?

No. It permitted amendment of Fundamental Rights subject to the basic structure limitation.

Why Was Kesavananda Revolutionary?

The Court found a middle position between two extremes.

Extreme positionBasic structure approach
Parliament cannot amend Fundamental RightsAmendment is possible, subject to limits
Parliament can amend without substantive limitsEssential constitutional identity must survive

This preserved constitutional adaptability while protecting foundational principles.

Why is Kesavananda often described as balancing constitutional flexibility and stability?

It permits constitutional reform while preventing the destruction of essential constitutional features.

Constitutional Identity: The First Group

Supreme Court judgments have recognised several principles as components of the basic structure.

FeatureSimple explanation
Supremacy of ConstitutionAll public authorities operate under constitutional limits
Sovereign democratic republicIndia is independent and political authority derives from the people
SecularismConstitutional commitment to religious freedom and equal treatment
FederalismConstitutional distribution of powers between Union and States
Unity and integrityPreservation of the constitutional nation

Could an amendment abolishing democratic elections threaten the basic structure?

Yes. Democracy and free and fair elections are recognised basic features.

Institutions and Constitutional Government

FeatureMeaning
Separation of powersDistinct constitutional roles of legislature, executive and judiciary
Parliamentary systemExecutive responsibility within parliamentary government
Rule of lawGovernment must act according to law, not arbitrary will
Judicial reviewCourts may examine the constitutionality of State action
Independent judiciaryCourts must decide without improper institutional interference
Limited amending powerParliament cannot destroy basic constitutional features

Which basic feature enables courts to test constitutional amendments?

Judicial review, operating alongside the limitation on Parliament’s constituent power.

Rights, Justice and Democratic Participation

FeatureSignificance
Freedom and dignityProtection of essential individual liberty
Welfare stateCommitment to socio-economic justice
EqualityConstitutional opposition to arbitrary discrimination
Free and fair electionsGenuine democratic choice
Harmony of Rights and DPSPsBalance between liberty and social transformation
Effective access to justiceMeaningful ability to seek legal remedies
Essence of Fundamental RightsProtection of foundational rights principles

Are Fundamental Rights and DPSPs necessarily enemies of one another?

No. Their harmony and balance have been recognised as part of the basic structure.

Constitutional Powers of the Supreme Court and High Courts

ArticleFunction
32Supreme Court remedies for enforcement of Fundamental Rights
136Special leave to appeal
141Binding force of Supreme Court-declared law
142Power to do complete justice in cases before the Court
226High Court writ jurisdiction
227High Court superintendence over subordinate courts and tribunals

Judgments have recognised the constitutional importance of these judicial powers and the supervisory jurisdiction of constitutional courts.

Which Article gives High Courts writ jurisdiction?

Article 226.

Indira Nehru Gandhi v. Raj Narain, 1975

The 39th Constitutional Amendment attempted to place certain election disputes involving high constitutional office-holders beyond judicial scrutiny.

The Supreme Court invalidated the relevant provision concerning the Prime Minister’s election.

Important principles

  • Free and fair elections.
  • Democracy.
  • Rule of law.
  • Judicial review.

Why did the Election Case matter for basic structure?

It demonstrated that Parliament could not use constitutional amendment to undermine fundamental democratic principles.

Attempt to Expand Parliament’s Power

The 42nd Amendment Act, 1976 attempted to make Parliament’s constitutional amendment power effectively unlimited.

It introduced provisions seeking to exclude judicial review of constitutional amendments and remove limits on constituent power.

Central conflict: Could Parliament use a limited constitutional power to make that very power unlimited?

Did the 42nd Amendment permanently eliminate the basic structure limitation?

No. The Supreme Court invalidated the relevant attempts in Minerva Mills.

Limited Amendment Power Is Itself Basic

In Minerva Mills v. Union of India, the Supreme Court invalidated provisions of the 42nd Amendment that attempted to remove constitutional limitations on amendment power.

Three essential lessons

  1. Parliament’s amending power is limited.
  2. Judicial review is a basic constitutional feature.
  3. Harmony between Fundamental Rights and DPSPs is part of the basic structure.
Memory line: Parliament cannot convert its limited amending power into an unlimited power.

Which case strongly reaffirmed limited amending power and harmony between Parts III and IV?

Minerva Mills, 1980.

Why Is 24 April 1973 Important?

In Waman Rao v. Union of India, the Supreme Court clarified the importance of the Kesavananda judgment date for examining constitutional amendments concerning the Ninth Schedule.

Cut-off date: 24 April 1973 — the date of the Kesavananda Bharati judgment.

Post-Kesavananda constitutional amendments placing laws in the Ninth Schedule may be examined under basic structure principles.

Which date is associated with the Waman Rao basic structure cut-off?

24 April 1973.

Does the Ninth Schedule Give Absolute Immunity?

The Ninth Schedule was inserted by the 1st Amendment Act, 1951.

It was designed to protect specified laws from certain constitutional challenges.

However, the protection is not unlimited.

I. R. Coelho v. State of Tamil Nadu (2007)

The Supreme Court held that laws placed in the Ninth Schedule through constitutional amendments after 24 April 1973 remain subject to basic structure review.

Can a post-1973 Ninth Schedule insertion automatically escape all constitutional scrutiny?

No. The relevant constitutional amendment may be reviewed under the basic structure doctrine.

S. R. Bommai v. Union of India, 1994

The Supreme Court emphasised the constitutional importance of federalism and secularism.

The judgment is also significant for judicial review of proclamations under Article 356.

Basic features highlighted

  • Federalism.
  • Secularism.
  • Democracy.
  • Constitutional unity and integrity.
  • Judicial review.

Which landmark case is especially associated with federalism, secularism and Article 356?

S. R. Bommai, 1994.

L. Chandra Kumar v. Union of India, 1997

This case addressed the constitutional position of tribunals and the judicial review powers of High Courts and the Supreme Court.

The Supreme Court recognised the importance of judicial review under Articles 226 and 227, and Article 32, as part of the basic structure.

Exam concept: Tribunals can perform important adjudicatory functions, but cannot completely replace constitutional judicial review.

Which case is associated with protecting High Court judicial review over tribunal decisions?

L. Chandra Kumar, 1997.

The NJAC Judgment, 2015

The 99th Constitutional Amendment Act, 2014, and the related NJAC Act proposed a new judicial appointments framework.

In 2015, the Supreme Court invalidated the NJAC constitutional arrangement.

The majority held that the arrangement undermined judicial independence, a recognised basic feature.

Important distinction: The basic structure doctrine does not require that every institutional procedure remain unchanged. The issue is whether the change damages an essential constitutional feature.

Which basic feature was central to the NJAC decision?

Independence of the judiciary.

Important Cases in One Table

YearCaseRemember
1951Shankari PrasadAmendment of Fundamental Rights allowed
1965Sajjan SinghReaffirmed amendment power
1967GolaknathRestricted amendment of Fundamental Rights
1973Kesavananda BharatiBasic structure doctrine
1975Indira Nehru GandhiDemocracy and election review
1980Minerva MillsLimited power, judicial review, Rights–DPSP harmony
1980Waman Rao24 April 1973 cut-off
1992Kihoto HollohanAnti-defection and judicial review
1994S. R. BommaiFederalism and secularism
1997L. Chandra KumarConstitutional judicial review
2007I. R. CoelhoNinth Schedule scrutiny
2015NJAC caseJudicial independence

Which came first: Golaknath or Kesavananda Bharati?

Golaknath (1967), followed by Kesavananda Bharati (1973).

Can This Amendment Survive?

Consider these hypothetical constitutional amendments.

Situation A: Parliament changes the minimum age for contesting a constitutional office through a valid amendment.

Such a change is not automatically unconstitutional. Its validity depends on the relevant constitutional provisions and whether it damages the basic structure.

Situation B: Parliament abolishes all future general elections.

This would directly threaten democracy and free and fair elections, which are basic features.

Situation C: Parliament completely removes judicial review of constitutional amendments.

This would conflict with judicial review and limited amending power, recognised basic features.

Strengths and Criticisms

Strengths

  • Protects constitutional democracy.
  • Prevents unlimited constituent power.
  • Preserves judicial review.
  • Protects federalism and judicial independence.
  • Maintains continuity of constitutional identity.

Criticisms

  • The doctrine is not expressly enumerated in Article 368.
  • There is no exhaustive list of basic features.
  • Critics argue that its scope can be uncertain.
  • It raises questions about the balance between judicial and parliamentary authority.
Balanced UPSC conclusion: The doctrine allows constitutional evolution while safeguarding foundational democratic commitments.

Does the absence of an exhaustive list mean the doctrine has no legal force?

No. It is binding constitutional law developed through Supreme Court judgments.

Everything You Must Remember

QuestionAnswer
Amendment powerArticle 368
Foundational judgmentKesavananda Bharati
Judgment year1973
Judgment date24 April 1973
Bench strength13 judges
Decision7:6 majority
Amendment power reaffirmed24th Amendment, 1971
Limited power and FR–DPSP harmonyMinerva Mills, 1980
1973 cut-offWaman Rao, 1980
Federalism and secularismS. R. Bommai, 1994
Tribunal judicial reviewL. Chandra Kumar, 1997
Ninth Schedule reviewI. R. Coelho, 2007
Judicial appointmentsNJAC case, 2015

State the basic structure doctrine in one sentence.

Parliament may amend the Constitution under Article 368, but it cannot damage or destroy its basic structure.

20 Conceptual MCQs

Choose an answer and select Check answer for immediate feedback and explanation.

Questions answered: 0 / 20

Analytical Answer Writing

Question 1 • 150 words

Explain the significance of the Basic Structure Doctrine in preserving India’s constitutional democracy.

Question 2 • 250 words

Trace the evolution of Parliament’s constitutional amendment power from Shankari Prasad to Kesavananda Bharati.

Question 3 • 250 words

Discuss how Minerva Mills established the importance of harmony between Fundamental Rights and Directive Principles of State Policy.

Question 4 • 150 words

Why is judicial review regarded as a basic feature of the Indian Constitution?

Question 5 • 250 words

Critically examine the strengths and limitations of the Basic Structure Doctrine in the relationship between Parliament and the judiciary.

How should you structure a Mains answer on the basic structure doctrine?

Begin with Article 368 and Kesavananda Bharati. Explain the doctrine, cite relevant judgments, analyse constitutional implications, discuss limitations if required, and conclude with the balance between stability and change.
Understand • Revise • Practise

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