Basic Structure of the Constitution
Article 368 • Kesavananda Bharati • Constitutional Identity • Judicial Review • Landmark Judgments
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?
This limitation is known as the Basic Structure Doctrine.
Can a constitutional amendment be invalid even after Parliament follows the correct voting procedure?
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.
Does the basic structure doctrine prevent every major constitutional reform?
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.
Is Parliament’s power under Article 368 unlimited?
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.
| Case | Year | Position |
|---|---|---|
| Shankari Prasad | 1951 | Fundamental Rights could be amended |
| Sajjan Singh | 1965 | Reaffirmed amendment power |
Did Shankari Prasad hold that Fundamental Rights could never be amended?
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.
Which judgment held that Parliament could not abridge Fundamental Rights through constitutional amendment?
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?
Kesavananda Bharati v. State of Kerala, 1973
This is the foundational judgment of the Basic Structure Doctrine.
The Court held that Parliament can amend the Constitution, including Fundamental Rights, but cannot alter its basic structure.
Did Kesavananda Bharati completely prohibit amendment of Fundamental Rights?
Why Was Kesavananda Revolutionary?
The Court found a middle position between two extremes.
| Extreme position | Basic structure approach |
|---|---|
| Parliament cannot amend Fundamental Rights | Amendment is possible, subject to limits |
| Parliament can amend without substantive limits | Essential constitutional identity must survive |
This preserved constitutional adaptability while protecting foundational principles.
Why is Kesavananda often described as balancing constitutional flexibility and stability?
Constitutional Identity: The First Group
Supreme Court judgments have recognised several principles as components of the basic structure.
| Feature | Simple explanation |
|---|---|
| Supremacy of Constitution | All public authorities operate under constitutional limits |
| Sovereign democratic republic | India is independent and political authority derives from the people |
| Secularism | Constitutional commitment to religious freedom and equal treatment |
| Federalism | Constitutional distribution of powers between Union and States |
| Unity and integrity | Preservation of the constitutional nation |
Could an amendment abolishing democratic elections threaten the basic structure?
Institutions and Constitutional Government
| Feature | Meaning |
|---|---|
| Separation of powers | Distinct constitutional roles of legislature, executive and judiciary |
| Parliamentary system | Executive responsibility within parliamentary government |
| Rule of law | Government must act according to law, not arbitrary will |
| Judicial review | Courts may examine the constitutionality of State action |
| Independent judiciary | Courts must decide without improper institutional interference |
| Limited amending power | Parliament cannot destroy basic constitutional features |
Which basic feature enables courts to test constitutional amendments?
Rights, Justice and Democratic Participation
| Feature | Significance |
|---|---|
| Freedom and dignity | Protection of essential individual liberty |
| Welfare state | Commitment to socio-economic justice |
| Equality | Constitutional opposition to arbitrary discrimination |
| Free and fair elections | Genuine democratic choice |
| Harmony of Rights and DPSPs | Balance between liberty and social transformation |
| Effective access to justice | Meaningful ability to seek legal remedies |
| Essence of Fundamental Rights | Protection of foundational rights principles |
Are Fundamental Rights and DPSPs necessarily enemies of one another?
Constitutional Powers of the Supreme Court and High Courts
| Article | Function |
|---|---|
| 32 | Supreme Court remedies for enforcement of Fundamental Rights |
| 136 | Special leave to appeal |
| 141 | Binding force of Supreme Court-declared law |
| 142 | Power to do complete justice in cases before the Court |
| 226 | High Court writ jurisdiction |
| 227 | High 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?
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?
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.
Did the 42nd Amendment permanently eliminate the basic structure limitation?
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
- Parliament’s amending power is limited.
- Judicial review is a basic constitutional feature.
- Harmony between Fundamental Rights and DPSPs is part of the basic structure.
Which case strongly reaffirmed limited amending power and harmony between Parts III and IV?
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.
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?
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?
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?
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.
Which case is associated with protecting High Court judicial review over tribunal decisions?
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.
Which basic feature was central to the NJAC decision?
Important Cases in One Table
| Year | Case | Remember |
|---|---|---|
| 1951 | Shankari Prasad | Amendment of Fundamental Rights allowed |
| 1965 | Sajjan Singh | Reaffirmed amendment power |
| 1967 | Golaknath | Restricted amendment of Fundamental Rights |
| 1973 | Kesavananda Bharati | Basic structure doctrine |
| 1975 | Indira Nehru Gandhi | Democracy and election review |
| 1980 | Minerva Mills | Limited power, judicial review, Rights–DPSP harmony |
| 1980 | Waman Rao | 24 April 1973 cut-off |
| 1992 | Kihoto Hollohan | Anti-defection and judicial review |
| 1994 | S. R. Bommai | Federalism and secularism |
| 1997 | L. Chandra Kumar | Constitutional judicial review |
| 2007 | I. R. Coelho | Ninth Schedule scrutiny |
| 2015 | NJAC case | Judicial independence |
Which came first: Golaknath or Kesavananda Bharati?
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.
Situation B: Parliament abolishes all future general elections.
Situation C: Parliament completely removes judicial review of constitutional amendments.
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.
Does the absence of an exhaustive list mean the doctrine has no legal force?
Everything You Must Remember
| Question | Answer |
|---|---|
| Amendment power | Article 368 |
| Foundational judgment | Kesavananda Bharati |
| Judgment year | 1973 |
| Judgment date | 24 April 1973 |
| Bench strength | 13 judges |
| Decision | 7:6 majority |
| Amendment power reaffirmed | 24th Amendment, 1971 |
| Limited power and FR–DPSP harmony | Minerva Mills, 1980 |
| 1973 cut-off | Waman Rao, 1980 |
| Federalism and secularism | S. R. Bommai, 1994 |
| Tribunal judicial review | L. Chandra Kumar, 1997 |
| Ninth Schedule review | I. R. Coelho, 2007 |
| Judicial appointments | NJAC case, 2015 |
State the basic structure doctrine in one sentence.
20 Conceptual MCQs
Choose an answer and select Check answer for immediate feedback and explanation.
Analytical Answer Writing
Explain the significance of the Basic Structure Doctrine in preserving India’s constitutional democracy.
Trace the evolution of Parliament’s constitutional amendment power from Shankari Prasad to Kesavananda Bharati.
Discuss how Minerva Mills established the importance of harmony between Fundamental Rights and Directive Principles of State Policy.
Why is judicial review regarded as a basic feature of the Indian Constitution?
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?
