Critical Study of Doctrine of Basic Structure of the Constitution

Critical Study of Doctrine of Basic Structure of the Constitution

There isn’t any point out of the term “Basic Structure” everywhere withinside the Constitution of India. The concept that the Parliament can’t introduce legal guidelines that might amend the primary shape of the charter developed steadily over the years and in lots of cases. The concept is to maintain the character of Indian democracy and defend the rights and liberties of people.

This Basic Structure doctrine of the Indian Constitution enables to defence and maintain the spirit of the charter document. It became the Kesavananda Bharati case that added this doctrine into the limelight.

It held that the “primary shape of the Indian Constitution couldn’t be abrogated even through a constitutional amendment”.

The judgement indexed a few primary systems of the charter as Supremacy of the Constitution Unity and sovereignty of India Democratic and republican shape of government Federal individual of the Constitution Secular individual of the Constitution Separation of strength Individual freedom Over time, many different functions have additionally been introduced to this listing of primary structural functions. Some of them are Rule of law Judicial review Parliamentary system Rule of equality Harmony and stability among the Fundamental Rights and DPSP Free and honest elections Limited strength of the parliament to amend the Constitution Power of the Supreme Court of India beneath Articles 32, 136, 142 and 147 Power of the High Court beneath Articles 226 and 227.

The Constitution of India is a dynamic, creative, and eloquent text. It is a foregone end that it should constantly reflect, invariably, the values, politics, and social-financial goals as it governs. There will constantly be an underlying, noticeable, or unseen conflict, consequently looking to stabilise the progressive social and political reform and retaining the Constitution itself. The judiciary has performed a giant function in deciphering the Indian Constitution. It is the judiciary that has carried out its toughest to uphold the constitutional framework of the Indian Constitution. Article 21 of the Constitution, the Supreme Court cannot be given Suo Moto consciousness of infringement of the charter’s primary shape regarding the Parliament’s change of the Constitution. A constitution is a gadget of primary legal guidelines or policies regulating a country. This constitution typically lays out the primary ideas and shape of regulation and policy.


The argument over the Constitution’s ‘simple foundation,’ sitting somnolently withinside the statistics of the political beyond of India over the past decade of the 20th century, has reappeared withinside the public area. During the status quo of the National Commission for Reviewing the Working of the Constitution (the Commission), the Government of the National Democratic Alliance (shaped via way of means of a coalition of 24 countrywide and local parties) said that the simple shape of the Constitution might now no longer be altered. The Chairman of the Commission, Justice M.N. Venkatachaliah, has emphasised on many events that an inquiry into the essential framework of the Constitution is out of doors in the area of the paintings of the Commission. In 1973 the Supreme Court in Kesavananda Bharati v. State of Kerala declared the simple shape doctrine. In India, the simple structural evaluation is an impartial and wonderful sort of constitutional judicial evaluation that applies to all kinds of kingdom movements to make certain that such movement does now no longer ‘harm or destroy’ the ‘simple capabilities of the Constitution.’ Such simple legislative traits are described via way of means of a not unusual place regulation technique which might be essential procedural standards which can be enforced via way of means of many Legislative clauses. The essential idea of the gadget and all kinds of major judicial evaluation has a clean legislative foundation and is primarily based totally on a clean and justifiable analysis of the Constitution.

The legitimacy of the assessment of primary systems may be assessed in 3 categories: felony, moral, and sociological. By protecting a structuralism interpretation as a coherent and justifiable version of constitutional interpretation, the felony legitimacy of such assessment is set. The philosophical validity of essential framework evaluation is based on opposing majoritarian fashions of the presidency and embracing a dualistic shape of deliberative choice-making in a consultant society. To a considerable degree, the sociological validity of the principle is depending on the effectiveness of the claims of spiritual and felony authority.

The “Basic Structure Doctrine” is a decide-made doctrine wherein sure functions of India’s Constitution pass past the restriction of the Indian Parliament’s amending powers. On 27 February 1967, withinside the case of Golaknath v. State of Punjab, a Special Bench of eleven Judges dominated that “Parliament has no electricity to amend Part III of the Constitution to abolish or abridge constitutional freedoms.” On 24 April 1973, a unique bench comprising thirteen Supreme Court of India judges held that Article 368 of the Constitution does now no longer permit Parliament to regulate its primary shape or the constitutional framework. While the courtroom docket overruled the Golaknath choice and held that the handiest constitutional rights can be changed, it additionally held that different factors of the Constitution couldn’t be changed, in flip offering the “doctrine of the essential shape.” Sajjan Singh’s primary function of the Constitution while he used the word to argue that there are sure traits of the Constitution that the Parliament cannot amend through its amending powers below Article 368 of the Constitution. The Constitution gives the Parliament and the Indian kingdom legislatures the electricity to make legal guidelines inside their respective jurisdictions. In the judiciary, the Constitution holds the electricity to decide the constitutional validity of all legal guidelines. The Supreme Court has the proper to claim this sort of statute null or extremely vires if a regulation enacted through Parliament or the kingdom legislatures contradicts any clause of the Constitution. Notwithstanding this test, the founding fathers meant the Constitution to be greater an adaptable textual content than a set governing shape. Therefore, Parliament changed into empowered to alternate the Constitution.

Article 368 of the Constitution offers the impact that the amending powers of this Parliament are absolute and cowl all elements of the document. Yet seeing that independence, the Supreme Court has been serving as a take a look at Parliament’s constitutional zeal. Intending to hold the constitution-makers unique ideals, the apex courtroom docket dominated that below the pretext of amending it, Parliament couldn’t distort harm or regulate the primary functions of the Constitution. The real term ‘primary shape’ cannot be protected withinside the Constitution itself.

Shankari Prasad Case (1951)

In this example, the SC contended that the Parliament’s power of amending the Constitution below Article 368 covered the power to amend the Fundamental Rights assured in Part III as well. Sajjan Singh case (1965) In this example additionally, the SC held that the Parliament can amend any part of the Constitution consisting of the Fundamental Rights. It is noteworthy to point out that two dissenting judges, in this case, remarked on whether the fundamental rights of citizens could become a plaything of the majority party in Parliament.

Golaknath case (1967)

In this example, the courtroom reversed in the advanced stance that the Fundamental Rights may be amended. It stated that Fundamental Rights aren’t amenable to the Parliamentary restriction as said in Article thirteen and that to amend the Fundamental rights a brand-new Constituent Assembly could be required. Also said that Article 368 offers the system to amend the Constitution however now no longer confers on Parliament the energy to amend the Constitution. This case conferred upon Fundamental Rights a ‘transcendental position. The majority judgement referred to as upon the idea of implied boundaries at the energy of the Parliament to amend the Constitution. In step with this view, the Constitution offers an area of permanence to the essential freedoms of the residents. In giving to themselves the Constitution, human beings had reserved those rights for themselves.

Kesavananda Bharati case (1973)

This changed into a landmark case in defining the idea of the primary shape doctrine. The SC held that even though not a part of the Constitution, consisting of Fundamental Rights, changed past the Parliament’s amending energy, the “primary shape of the Constitution couldn’t be abrogated even with the aid of using a constitutional change.” The judgement implied that the parliament can most effectively amend the charter and now no longer rewrite it. The energy to amend isn’t the energy to destroy. This is the premise in Indian regulation wherein the judiciary can strike down any change surpassed with the aid of using Parliament this is in battle with the primary shape of the Constitution.

Indira Nehru Gandhi v. Raj Narain case (1975)

Here, the SC carried out the idea of the primary shape and struck down Clause (4) of Article 329-A, which changed into inserted with the aid of using the thirty-ninth Amendment in 1975 on account that it changed past the Parliament’s amending energy because it destroyed the Constitution’s primary capabilities. The thirty-ninth Amendment Act changed surpassed with the aid of using the Parliament in the course of the Emergency Period. This Act located the election of the President, the Vice President, the Prime Minister and the Speaker of the Lok Sabha past the scrutiny of the judiciary. This changed into execution with the aid of using the authorities to suppress Indira Gandhi’s prosecution with the aid of using the Allahabad High Court for corrupt electoral practices.

Minerva Mills case (1980)

This case once more strengthens the Basic Structure doctrine. The judgement struck down 2 modifications made to the Constitution with the aid of using the forty-second Amendment Act 1976, affirming them to be violative of the primary shape. The judgement makes it clear that the Constitution and now no longer the Parliament is supreme. In this example, the Court delivered capabilities to the listing of primary shape capabilities. They were: judicial assessment and stability among Fundamental Rights and DPSP. The judges dominated that a restrained amending energy itself is a primary characteristic of the Constitution.

Waman Rao Case (1981)

The SC once more reiterated the Basic Structure doctrine. It additionally drew a line of demarcation as April 24th, 1973 i.e., the date of the Kesavananda Bharati judgement, and held that it ought to now no longer be carried out retrospectively to reopen the validity of any change to the Constitution which befell previous to that date. In the Kesavananda Bharati case, the petitioner had challenged the Constitution (Twenty-ninth Amendments) Act, 1972, which located the Kerala Land Reforms Act, 1963 and it’s amending Act into the ninth Schedule of the Constitution. The ninth Schedule changed into delivered to the Constitution with the aid of using the First Amendment in 1951 together with Article 31- B to offer a “defensive umbrella” to land reforms legal guidelines. This changed into execution to save them from being challenged in the courtroom docket. Article 13(2) says that the nation shall now no longer make any regulation inconsistent with essential rights and any regulation made in contravention of essential rights will be void. Now, Article 31-B protects legal guidelines from the above scrutiny. Laws enacted below it and located withinside the Ninth Schedule are proof against undertaking in a courtroom docket, even though they move in opposition to essential rights. The Waman Rao case held that amendments made to the ninth Schedule till the Kesavananda judgement are legitimate, and people surpassed after that date may be a challenge to scrutiny.

Indra Sawhney and Union of India (1992)

SC tested the scope and volume of Article 16(4), which presents the reservation of jobs in favour of backward classes. It upheld the constitutional validity of 27% reservation for the OBCs with sure conditions (like creamy layer exclusion, no reservation in promotion, overall reserved quota ought to now no longer exceed 50%, etc.) Here, ‘Rule of Law’ changed into delivered to the listing of primary capabilities of the constitution.

S.R. Bommai case (1994)

In this judgement, the SC attempted to reduce the blatant misuse of Article 356 (concerning the imposition of the President’s Rule on states). In this example, there has been no doubt of constitutional change however, even so, the idea of primary doctrine changed carried out. The Supreme Court held that rules of a nation’s authorities directed in opposition to the detail of the primary shape of the Constitution could be a legitimate floor for the exercising of the vital energy below Article 356.



The Golak Nath case left the Parliament without its powers to amend the Constitution freely, consequently to repair the sooner role; the 24th Constitutional Amendment become added forth. The Amendment Act now no longer simplest restored the sooner role but prolonged the powers of Parliament. The following modifications have been made thru the modification:

  • A new clause (4) becomes brought to Article thirteen which said that ‘not anything on this Article shall follow to any modification of this Constitution made below Article 368’.
  • The marginal heading of Article 368 becomes modified to ‘Power of Parliament to amend the Constitution and Procedure, consequently’ from ‘Procedure for modification of the Constitution.
  • Article 368 becomes supplied with a brand-new sub-clause (1) which read ‘however whatever on this Constitution, Parliament may, withinside the workout of its Constituent Power amend through manner of addition, variation, or repeal any provision of this Constitution according with the process laid down on this Article.
  • President becomes positioned below a duty to present assent to any Bill amending the Constitution through converting phrases from ‘it will be offered to the President who shall supply his assent to the Bill and thereupon’ to ‘it will be offered to the President for his assent and upon such assent being given to the Bill’.
  • A reassuring clause (3) become additionally brought to Article 368, which once more clarified that ‘not anything in Article thirteen shall follow to any modification made below this Article.


Indra Nehru Gandhi v. Raj Narain became the case wherein the religion withinside the doctrine became affirmed and established. In this case, the appellant had filed an attraction in opposition to the selection of Allahabad High Court invalidating her election because of the Prime Minister. While the attraction became nevertheless pending on the Supreme Court, the 39th Amendment became enacted and enforced which said that no courtroom docket has jurisdiction over the election disputes of the Prime Minister.

The Hon’ble Supreme Court counting on the selection of Kesavananda Bharati said that democracy became a critical characteristic of the Constitution and bureaucracy a part of the fundamental structure. The bench brought sure different capabilities to the listing of the fundamental structure, which became: Rule of Law and the power of Judicial Review.

The simple shape then got here up withinside the case of Minerva Mills Ltd. v. Union of India, in which the Supreme Court furnished readability to the doctrine and laid down that the electricity of change below Article 368 is restricted and exercising of such electricity cannot be absolute. Restricted amending electricity turned into thoroughly a part of the simple shape doctrine of the Constitution. Further, the concord and stability among essential rights and directive concepts also are a part of the simple shape, and something that destroys the stability is an ipso facto violation of the doctrine.

The case of L. Chandra Kumar v. Union of India once more said that the electricity of the judicial overview below Article 32 of the Supreme Court and Article 226 of the High Court is a part of the simple shape doctrine and those powers cannot be diluted via way of means of moving them to administrative tribunals.


  • The most common criticism of the introductory structure doctrine is that there has been no base for the doctrine in the language of the It has no textual base. There’s an absence of a provision that can stipulate that the Constitution has an introductory structure beyond the capability of amending power.
  • Another pivotal review of the Basic Structure Doctrine lies in the study that the doctrine is infelicitous and indeed destructive to indigenous legality.
  • It’s inconsistent with the conception of the separation of Powers
  • It’s a matter of subjectivity. It’s seen that the introductory structure doctrine gets defined else by different judges grounded on their private satisfaction. This leaves the decision to decide the validity or invalidity of indigenous emendations told on the particular preferences of judges who also acquire the power to amend the Constitution.
  • Another review of the introductory structure doctrine is that it makes the bar the third decisive chamber of the Parliament.
  • The introductory structure doctrine has also been criticised because it accords power to the bar that allows it to put its gospel on a government that’s formed democratically. There’s also a lack of definite explanation as to what constitutes the introductory structure, thereby leaving the doctrine
  • Lately, the doctrine has been called upon in cases regarded as incidents of judicial overreach like the NJAC bill was declared null and void by the Supreme Court grounded on this doctrine.


Despite the creation of a robust and extensive rights structure in the immediate post-emergency period by the Supreme Court, the compass of abecedarian rights and right-grounded judicial scrutiny of post-1991 globalization programs have been confined and limited by the Court. One fact that redounded from this hassle between Parliament and the courts is that all legislation and indigenous emendations are now open to judicial scrutiny and are bound to be struck down by the Supreme Court for transgressing the abecedarian structure. The authority of the Parliament to amend the Constitution isn’t absolute and the Supreme Court is the sole arbitrator and anthology of all indigenous emendations

The moment there’s no disagreement regarding the actuality of the doctrine; the only problem that arises time and again is the contents of the same. Certain contents have been reaffirmed again and again by the Courts whereas some of them are still in the process of deliberations. The introductory structure doctrine subventions the fine balance between inflexibility and severity that should be present in the amending powers of any Constitution.

Judicial Review is a tool to check the power of Composition 368 of the Constitution which gives the opinion that the Parliament’s amending powers are absolute in nature and can touch all corridors of the Constitution But the Supreme Court has acted as an interference to the legislative appetite of Parliament.

Written By- Shivam Sonkar

Lovely Professional University


  1. ‘Important Judgments that transformed India’ by Alex Andrews George
  2. P. Jain, Indian Constitutional Law
  3. N. Shukla, Constitution of India
  4. Krishan Keshav, Singhal’s Constitutional Law – II
  5. A critique – Legal Service India
  6. Doctrine – Wikipedia
  7. Minerwa Mils Case – Law Octopus
  8. Shankari Prasad Singh Deo Union of India, AIR 1951 SC 455
  9. Sajjan Singh State of Rajasthan, AIR 1965 SC 845
  10. Golak Nath v. State of Punjab, AIR 1967 SC 1643
  11. Kesavananda Bharati State of Kerala, AIR 1973 SC 1461
  12. Indra Nehru Gandhi Raj Narain, AIR 1975 SC 2299
  13. Minerva Mills V. Union of India, AIR 1980 SC 1789
  14. Chandra Kumar Union of India, AIR 1997 SC 1125The Basic Structure of the Indian Constitution | Constitution Net
  15. M. Seervai, Constitutional Law of India 3113 (2006).
  16. From Brooding Omnipresence to Concrete Textual Provisions: IR Coelho Judgment and Basic Structure Doctrine 49 JILI (2007) 240
  17. Basic Structure of the Indian Constitution: Doctrine of Constitutionally Controlled Governance: [From Kesavananda Bharati to R. Coelho] 49 JILI (2007) 365
  18. Today’s Promise, Tomorrow’s Constitution: ‘Basic Structure’, Constitutional Transformations and the Future of Political Progress in India (2008) 1 NUJS L Rev 417

Leave a Comment

Your email address will not be published. Required fields are marked *