GURU NITHYA CHAITHANYA YATHI COLLEGE OF LAW AND RESEARCH

CENTRE (G-CLAR)
KAYAMKULAM
AFFLIATED TO UNIVERSITY OF KERALA

EVOLUTION OF BASIC
STRUCTURE DOCTRINE

Submitted by
Submitted to
Ruksana Hashim Asst Prof. Vismaya S Nair
Candidate code:47320556029
Batch-2020-2025
 INDEX

1.INTRODUCTION……………………………………………….………….3

2.SIGNIFICANCE OF DOCTRINE OF BASIC STRUCTURE….….……..4

3.ELEMENTS OF DOCTINE OF BASIC STRUCTURE………….………...6

4.EVOLUTION OF DOCTRINE OF BASIC STRUCTURE………………...8

6.CONCLUSION…………………………………………………………………20

7.BIBLIOGRAPHY……………………………………………………………….21

1
 TABLE OF CASES

1.Theshankari prasad vs Union of India AIR1951 SC 458

2.Sajjan Singh vs State of Rajasthan 1965 AIR 845

3.Golaknath vs State of Punjab AIR 1643 1967 SCR(2)762

4.Kesavananda Bharathi vs State of Kerala AIR 1773 SC 1461

5.Indira Nehru Gandhi v. Raj Narain AIR 1975 SC

4.Minerva Mills vs Union of India AIR 1980 SC 1789

7. Madras Bar Assn. v. Union of India AIR 2015 SCW 3376

8. Supreme Court Advocates-on-Record Assn. v. Union of India SC 2016

2
INTRODUCTION

In India, the basic structure doctrine has been promulgated through a series of

judgments, including the renowned case of Kesavananda Bharati. Thus, the basic

structure doctrine does not have a limited scope. The application of the doctrine has

evolved only through the judicial interpretation of the Constitution. The Hon’ble

Supreme Court and the High Courts, through their writ jurisdiction, intervene and

interpret the Indian Constitution to impart its true meaning. However, the question that

needs a proper response is whether the doctrine provides the judiciary an overhauling

power over the legislature? A brief overview of the doctrine along with the timeline of

cases discussing the doctrine, and the presence of such provisions under the

Constitutions of other democratic countries forms the scope of the present article and

has been discussed hereafter

3
SIGNIFICANCE OF DOCTRINE OF BASIC STRUCTURE
DOCTRINE

The Doctrine of Basic Structure of the Constitution holds a place of paramount

significance in the constitutional framework of India. Its importance can be understood

as follows:

● Upholds Constitutional Morality – It upholds the principles of constitutional

morality and ensures that constitutional amendments adhere to

the overarching values of justice, equality, and fairness.

● Prevents Authoritarianism – This doctrine acts as a bulwark against

authoritarian tendencies to dismantle democratic institutions or undermine

Preserves Constitutional Integrity – The doctrine strikes a balance between

the need for constitutional flexibility and the imperative of maintaining the

fundamental integrity and identity of the Constitution. This helps maintain

the integrity and stability of the constitutional order.

● Maintains Supremacy of the Constitution – The doctrine upholds the

principle that the Constitution is supreme and serves as the highest law of

the land.

● constitutional norms.

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● Ensures Stability and Consistency – The doctrine prevents frequent and

radical changes to the constitution that could disrupt governance, thereby

contributing to the stability and consistency of the legal system.

● Protects Democracy – By protecting the democratic values as ‘basic features’

of the Constitution, this ensures that India remains a sovereign, socialist,

secular, and democratic republic.

● Protects Fundamental Rights – By preserving these fundamental rights from

infringement through constitutional amendments, this doctrine safeguards

individual liberties and promotes social justice.

● Promotes Judicial Review – This doctrine empowers the judiciary to

review constitutional amendments while enhancing its role as a guardian

of the constitution and promoting the rule of law.

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ELEMENTS OF DOCTRINE OF BASIC STRUCTURE

● From the various judgments, the following have emerged as the basic

features of the Constitution:

o The Supreme Court has not yet defined what constitutes the

‘basic structure’ of the Constitution. It has kept evolving the

elements of basic structure through various judgments.

● Some of the major elements of the Basic Structure of the Constitution as

listed as follows:

● – Supremacy of the Constitution

– Sovereign, Democratic, and Republican nature of the Indian Polity

– Secular Character of the Constitution

– Separation of powers between the legislature, the executive and the judiciary

– Federal character of the Constitution

● – Unity and integrity of the nation

– Welfare State (socio-economic justice)

– Judicial Review

– Freedom and dignity of the individual

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● – Parliamentary system6

● – Rule of law

– Harmony and balance between Fundamental Rights and Directive Principles

● – Principle of Equality

– Free and fair elections

– Independence of Judiciary

– Limited Power of Parliament to amend the Constitution

– Effective access to justice

– Principles (or essence) underlying fundamental rights

– Powers of the Supreme Court

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EVOLUTION OF DOCTRINE OF BASIC STRUCTURE

Shankari Prasad v. Union of India (1951)

The case of Shankari Prasad is among the initial cases of the Hon’ble Supreme Court

evolving the basic structure doctrine in India. Here, the Court was concerned with the

constitutional validity of the First Amendment Act, 1951 which restricted the

fundamental right to property. Upholding the amendment, the Supreme Court opined

that the Parliament had the power under Article 368 to modify any part of the Indian

Constitution by way of constitutional amendment, including the fundamental rights.

Thus, the position of law after this judgment was that the State had the power to take

away/restrict the fundamental rights of people through a constitutional amendment and

such an amendment would not be even nullified by Article 13 of the Indian Constitution.

8
Sajjan Singh v. State of Rajasthan (1965)

During the advent of agrarian reforms in India, the Parliament passed the

Constitution (Seventeenth Amendment) Act, 1964 to further amend Article 31A and

bring a number of statutes within the ambit of the Ninth Schedule. Petitioners in this

case, being affected by the amendment, raised an issue challenging the constitutional

validity of the amendment, contending that a fundamental right could not be amended by

way of Article 368. Upholding the validity of the constitutional amendment and

following the judgment of Shankari Prasad, the majority view held that fundamental

rights could also be amended by the Parliament, both prospectively and retrospectively

by virtue of its power under Article 368 of the Indian Constitution. Nevertheless, giving

the dissenting view, Justice Mudholkar and Justice Hidayatullah opined that the

nomenclature of the term ‘fundamental rights’ indicated that these rights were inherent

and fundamental to every citizen and hence, should not be allowed to be amended or

modified.

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Golak Nath v. State of Punjab (1967)

In the landmark I.C. Golaknath judgment, the Constitution (Seventeenth Amendment)

Act, 1964 was once again questioned after the Punjab Security and Land Tenures Act,

1953 restricted the petitioners from holding more than thirty acres of land. The

Petitioners held the statute to be violative of Article 14 and Article 19(1)(g) since they

were not allowed to hold additional land and resultantly, were unable to rent out this

additional land causing them economic loss. This was the first case where an

eleven-judge Constitutional Bench was made to adjudicate the issue. In a ratio of 6:5,

the majority view held that the fundamental rights could not be amended in any manner.

In the words of the Court, “Fundamental rights are the primordial rights necessary for

the development of human personality. They are the rights which enable a man to chalk

out his own life in the manner he likes best. Our Constitution, in addition to the

well-known fundamental rights, also included the rights of minorities and other

backward communities in such rights. The fundamental rights are given a

transcendental position under our Constitution and are kept beyond the reach of

Parliament.
 10

Kesavananda Bharati v. State of Kerala and Anr.

(1973)

The Kesavananda Bharati case turned out to be the longest judgement in the history of

the Indian legal system and also laid the foundation of one of the most imperative

doctrines, i.e., the basic structure doctrine. Here, the petitioner was the leader of Edneer

Mutt, a religious sect in the state of Kerala. He held some of the land of the sect under

his own name. Government sought to acquire a part of such land. Immediately after

the Golaknath case, the 24th Constitutional Amendment Act was passed to nullify the

effect of the judgement. The Amendment provided that the Parliament had the power to

amend or modify any provision of the Indian Constitution without being hit by Article

13. Thereafter, a series of amendments basis the 24th Constitutional Amendment were

also passed to nullify the Golaknath verdict. Hence, petitioner approached the Hon’ble

Supreme Court contending violation of Article 25 and Article 26 which deal with right

to practice and propagate religion and right to manage religious affairs respectively.

While the petition was still pending, the Kerala Land Reforms (Amendment) Act, 1971

was passed making amendments in the Kerala Land Reforms Act, 1963 and brought

within Ninth Schedule. Thus, the said law was also challenged.

The case saw the largest Constitutional Bench of thirteen judges to decide upon the
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matter. Pursuant to 68 days of hearing, the verdict of the case was passed with a ratio of

7:6. The Court opined that the wide powers of the Parliament under Article 368 of the

Indian Constitution were subjected to the basic structure doctrine. Any component

forming part of the basic structure was not open to amendment by the legislature. Justice

S.M. Sikri states as follows:

“The true position is that every provision of the Constitution can be amended provided

in the result the basic foundation and structure of the Constitution remains the same.

The basic structure may be said to consist of the following features:

(1) Supremacy of the Constitution;

(2) Republican and Democratic form of Government.

(3) Secular character of the Constitution;

(4) Separation of powers between the Legislature, the executive and the judiciary;

(5) Federal character of the Constitution.

The above structure is built on the basic foundation, i.e., the dignity and freedom of the
 12

individual. This is of supreme importance. This cannot by any form of amendment be

destroyed.”

The Court also said that Preamble was an intrinsic part of the basic structure as it is the

basis of the Indian Constitution and envisages the fundamental rights for all the people.

The Court also established the golden triangle consisting of Article 14, Article

19 and Article 21 of the Indian Constitution and held that the same bounds the Indian

legal system.

The judgement acted as a cornerstone of the Indian Constitution which secured the rights

of the people and ensured that the amending powers could not be usurped by the

Parliament to get political gains. It reserved the essence of Indian democracy and

ensured that constitutionalism continues to exist in the country.

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Indira Nehru Gandhi v. Raj Narain (1975)

Kesavananda Bharati case had already laid down the foundation of basic structure

doctrine in India by holding that certain parts of the Constitution cannot be amended in

any manner. Just two years later, another issue in the form of the case of Indira Gandhi

v. Raj Narain came up before the Court. The facts were such that the Allahabad High

Court had invalidated the petitioner’s election owing to corruption and malpractices. As

a consequence, the Parliament passed the 39th Constitutional Amendment Act to

invalidate the judgment. The Amendment provided that the President, the Vice

President, the Prime Minister and the Speaker of the Lok Sabha could not be subjected

to the judicial review, thereby nullifying the effect of the Allahabad High Court

judgment. Eventually, the Amendment was constitutionally challenged contending

whether it was permissible to nullify the effect of the judgment and also affect the

procedure concerning elections. The Supreme Court held that free and fair elections

form part of the basic structure doctrine and hence, the clause was held to be invalid.

Further, the Court added a few more elements to the doctrine, one of which was

democracy implying free and fair elections. Other elements included judicial review,

rule of law and Article 32 empowering the Supreme Court.

 14

Minerva Mills v. Union of India (1980)

In Minerva Mills Ltd. v. Union of India, the issue before the Hon’ble Supreme Court was

the constitutional validity of Sections 4 and 55 of the Constitution (Forty-Second

Amendment) Act, which transgressed the limitations of amending powers of the

Parliament. The Parliament, by way of the 42nd Amendment, introduced clause (4) and

clause (5) to Article 368, which, in essence, excluded the amendments to the

Constitution from being subject to the judicial review, and provided the Parliament an

unrestricted power to amend the Constitution.

The Supreme Court held that in India, the supremacy of the Constitution is the most

crucial aspect. The power to amend the Constitution provided to the legislature, thus,

cannot be an absolute one, and it must respect the basic structure of the Constitution. If

an absolute power is granted, the amendments would be outside the scope of judicial

review, in which case, Article 13 would be a dead letter, as the legislature would escape

the scrutiny of the Courts. However, judicial review was viewed as a part of the basic

structure of the Constitution, and the amendment could not bypass the powers of the

Courts to scrutinise laws, including the Constitutional amendments.

 15

The Court also held that harmonising the Fundamental Rights (Part III) and the Directive

Principles of State Policy (Part IV) is also a part of the basic structure.
 16

Madras Bar Assn. v. Union of India (2014)

In Madras Bar Association case, the issue before the Hon’ble Supreme Court were

threefold: firstly, the constitutional validity of the NCLT and NCLAT on the grounds that

it violated the basic structure of the Constitution; secondly, the prescription of

qualifications including term of their office and salary allowances etc. of president and

members of the NCLT and as well as chairman and members of the NCLAT; and lastly,

the criteria for selection of the committee for appointing the members of both the

tribunals. The Supreme Court did not accept the contentions of the Petitioner. It was held

that the NCLT and NCLAT are compliant with the basic structure of the Constitution, as

it was in consonance with the separation of powers, judicial review, and independence of

judiciary. The Parliament is empowered to create a law which transfers a judicial

function on a specific subject to any tribunal, given that the tribunal shall follow the

principles of natural justice and the provisions of the Constitution.Additionally, the

jurisdiction of the courts can be shifted to tribunals if it would abrogate the pendency

and delay. Thus, NCLT and NCLAT were held to be constitutionally valid.
 17

Supreme Court Advocates-on-Record Assn. v.

Union of India (2016)

One of the very recent cases on basic structure doctrine is the NJAC case or famously

called the Fourth-Judges case. By virtue of the 99th Constitutional Amendment, the

Parliament replaced the then mechanism of selection of judges with the National Judicial

Appointments Commission (NJAC). The initial composition of NJAC was thought to be

comprising of Chief Justice of the Supreme Court along with four senior-most judges of

the Supreme Court. However, at the time of enactment of the NJAC Act, the

commission was composed of the Union Minister of Law and Justice and two eminent

persons, alongside Chief Justice of India and two senior-most judges. Resultantly,

petitions were filed challenging the constitutionality of amendment and NJAC Act

raising the serious concern that the impugned law affected the independence of judiciary

and caused lack of transparency and accountability. By a ratio of 4:1, the majority view

held that the said Amendment and Act were violative of the basic structure doctrine

since it affected the independence of judiciary by including the executive in selection

process of judges. The Court was of the view that the impugned law goes against the

judicial precedents set in Kesavananda Bharati and Minerva Mills case.

 18

The only dissent i.e. Justice Chelameswar opined that the present collegium system

which is full of defects could have been corrected by the constitution of NJAC. He

stated, “NJAC could have acted as a check on unwholesome trade-offs within the

collegium and incestuous accommodations between Judicial and Executive branches.”

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CONCLUSION

Although it is true that the basic structure doctrine provides an overhauling power to the

judiciary, it is pertinent to note that the Indian Constitution has been drafted with a pious

and sacred intent. The makers of the Constitution endowed the responsibility of

protecting the true values of the Constitution upon the judiciary. Thus, the judiciary has

to protect and uphold the true values of the Constitution above everything surrounding

it. If these values themselves are amended by the legislature, it would be detrimental to

the spirit of the Constitution. These values are what form the basic structure of the

Constitution.

However, the biggest problem faced while protecting the basic structure is that it has not

been clearly defined. As discussed above, the basic structure is also found in various

other democracies. Since the scope of the basic structure is defined in these countries,

the scope of criticism is limited. Thus, a definite basis of the basic structure is the need

of the hour.
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BIBLIOGRAPHY

Books

1.V. N Shukla’s Constitution of India, Mahendra Pal Singh, 14th Edition.

2.Dr. J. N Pandey, Constitutional Law of India, 60th Edition.

3.H. M Seervai, Constitutional Law of India, 4th Edition.

Websites

4.http://supremecourtonline.com.
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5.http://supremecourtcases.com.

6.http://ipleaders.com.

7.http://en.wikepedia.org

8.http://dictionary.Cambridge.org/dictionary/british/legal-aid