National University of Advanced Legal Studies

CONSTITUTIONAL LAW - 1
BASIC STRUCTURE DOCTRINE

Submitted By
Anagha Sambath
Roll No: 1823
Ba Llb (Hons)
4th Semester

Submitted To
Abhayachandran
Faculty in charge
Constitutional law - 1
Nuals
 Acknowledgment

I express my deepest gratitude to all those who have contributed to the

completion of this work.

I am immensely thankful to the legal luminaries and scholars whose insights

and analyses have guided my understanding of complex legal concepts and
doctrines. Their expertise has been invaluable in shaping the arguments
presented in this document.I am indebted to my mentors and advisors for their
unwavering support and guidance throughout the research process. Their
wisdom, encouragement, and constructive feedback have been instrumental in
refining the content of this work.I would also like to express my gratitude to my
colleagues and peers for their stimulating discussions and collaborative efforts,
which have enriched my perspective and enhanced the quality of this work.
 Introduction

The Basic Structure Doctrine is a cornerstone of constitutional jurisprudence,

particularly in the context of Indian law. Originating from a landmark ruling by
the Supreme Court of India in the case of Kesavananda Bharati v. State of
Kerala (1973), this doctrine asserts that certain fundamental features of the
Constitution cannot be altered or destroyed through amendments by the
Parliament. This principle serves as a guardian of the Constitution's core ideals,
ensuring that amendments do not compromise the foundational aspects of the
democratic framework, such as the rule of law, separation of powers, and the
protection of fundamental rights.The development of the Basic Structure
Doctrine has been a dynamic and evolving process, influenced by various legal
challenges and interpretations over the decades. It represents a balance between
the necessity of constitutional flexibility and the need to preserve the essential
principles upon which the Constitution is built. This doctrine has been invoked
in numerous subsequent cases, reinforcing its significance and adaptability in
the face of changing political and social landscapes.

In this research paper, we will explore the origins and evolution of the Basic
Structure Doctrine, analyzing its impact on constitutional amendments and
judicial review in India. We will examine key cases that have shaped this
doctrine, highlighting the judiciary's role in maintaining the integrity of the
Constitution. Furthermore, we will compare the Basic Structure Doctrine with
similar principles in other jurisdictions to understand its unique characteristics
and broader implications.
By delving into the intricacies of the Basic Structure Doctrine, this paper aims
to provide a comprehensive understanding of its significance in constitutional
law. It will also shed light on the ongoing debates surrounding its application
and relevance in contemporary legal discourse. Through this analysis, we seek
to underscore the importance of this doctrine in safeguarding democratic values
and ensuring the longevity of constitutional governance.

Recently, the Former Chief Justice of India, Mr. Ranjan Gogoi, who is currently a Rajya
Sabha member, remarked that the basic structure doctrine has “a debatable, a very debatable,
jurisprudential basis”. Gogoi referred to the basic structure doctrine while the members of the
Rajya Sabha were discussing the Delhi Services Bill, 2023 (now the Government of National
Capital of Delhi (Amendment) Act, 2023) to control the administration and civil servants in
the National Capital Region. This led to the long-standing debate on the validity of the basic
structure doctrine.

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.

Recently, former Chief Justice of India and current Rajya Sabha member, Mr. Ranjan Gogoi,
sparked a renewed debate on the basic structure doctrine by asserting that its jurisprudential
basis is "very debatable." Gogoi's remarks came during Rajya Sabha discussions on the Delhi
Services Bill, 2023 (now the Government of National Capital of Delhi (Amendment) Act,
2023), which pertains to the administration and management of civil servants in the National
Capital Region. This commentary reignited long-standing discussions regarding the validity
and scope of the basic structure doctrine.
In India, the basic structure doctrine emerged through a series of judicial decisions, most
notably the landmark Kesavananda Bharati case. This doctrine is not confined to a narrow
scope but has expanded through judicial interpretation of the Constitution. The Supreme
Court and High Courts, exercising their writ jurisdiction, play a crucial role in interpreting the
Constitution to reveal its true meaning. The present article explores this issue by providing a
concise overview of the basic structure doctrine, tracing its evolution through significant
cases, and examining similar provisions in the constitutions of other democratic nations. This
comprehensive analysis aims to shed light on the doctrine's implications and its role in the
balance of powers within India's constitutional framework.

Brief Overview of the “Basic Structure Doctrine”

In simple terms, the Basic Structure Doctrine asserts that certain parts of the Indian
Constitution are fundamental and cannot be changed or eliminated. These core elements
reflect the essential principles envisioned by the Constitution's framers and embody the basic
tenets of constitutionalism in India. Therefore, they are referred to as the "basic structure."
The Indian judiciary has developed this doctrine through various landmark cases, ensuring
that these crucial aspects of the Constitution remain protected.

Shankari Prasad v. Union of India (1951)

The case of Shankari Prasad v. Union of India (1951) is one of the early instances where the
Supreme Court of India began shaping the Basic Structure Doctrine. This case examined the
constitutional validity of the First Amendment Act, 1951, which limited the fundamental
right to property. The Supreme Court upheld the amendment, ruling that Parliament had the
authority under Article 368 to amend any part of the Constitution, including fundamental
rights. Consequently, the legal position established by this judgment was that the State could
restrict or remove fundamental rights through a constitutional amendment, and such
amendments would not be invalidated by Article 13 of the Indian Constitution.

Sajjan Singh v. State of Rajasthan (1965)

In the context of India's agrarian reforms, the Parliament enacted the Constitution
(Seventeenth Amendment) Act, 1964, which amended Article 31A and included several
statutes in the Ninth Schedule. Affected petitioners challenged the constitutional validity of
this amendment, arguing that fundamental rights could not be amended through Article 368.
The Supreme Court upheld the amendment's validity, aligning with the precedent set in
Shankari Prasad, and ruled that Parliament could amend fundamental rights both
prospectively and retrospectively under Article 368. However, in a dissenting opinion,
Justices Mudholkar and Hidayatullah argued that the term 'fundamental rights' implies these
rights are inherent and essential to every citizen, and therefore should not be subject to
amendment or modification.

Golak Nath v. State of Punjab (1967)

In the landmark Golak Nath judgment, the Constitution (Seventeenth Amendment) Act, 1964,
faced scrutiny again when the Punjab Security and Land Tenures Act, 1953, restricted the
petitioners from owning more than thirty acres of land. The petitioners argued that the statute
violated Article 14 and Article 19(1)(g) of the Constitution, as it prevented them from
holding additional land and renting it out, leading to economic loss. This case marked the
first time an eleven-judge Constitutional Bench was convened to address the issue. By a
narrow 6:5 majority, the Court ruled that fundamental rights could not be amended. The
Court stated, “Fundamental rights are the primordial rights necessary for the development of
human personality. They are the rights which enable a person to live their life as they see fit.
Our Constitution includes not only the well-known fundamental rights but also the rights of
minorities and other backward communities. These fundamental rights are given a
transcendental position under our Constitution and are kept beyond the reach of Parliament.”

Kesavananda Bharati v. State of Kerala and Anr. (1973)

The Kesavananda Bharati case is notable for being the longest judgment in Indian legal
history and for establishing the critical Basic Structure Doctrine. The petitioner, Kesavananda
Bharati, was the head of the Edneer Mutt, a religious sect in Kerala, and held some of the
sect's land in his name. The government sought to acquire part of this land. Following the
Golak Nath case, the 24th Constitutional Amendment Act was enacted to counteract the
judgment, allowing Parliament to amend any part of the Constitution without being restricted
by Article 13. Subsequently, further amendments were made to negate the Golak Nath
verdict. Kesavananda Bharati challenged these actions, arguing that they violated Articles 25
and 26, which protect the rights to practice and propagate religion and to manage religious
affairs.While the petition was pending, the Kerala Land Reforms (Amendment) Act, 1971,
amending the Kerala Land Reforms Act, 1963, was passed and included in the Ninth
Schedule, thereby protecting it from judicial review. This law was also contested in the case.

A thirteen-judge Constitutional Bench, the largest in Indian history, was convened for this
case. After 68 days of hearings, the Supreme Court delivered its judgment with a narrow 7:6
majority. The Court ruled that while Parliament had broad powers under Article 368 to
amend the Constitution, these powers were limited by the Basic Structure Doctrine. The
Court held that any amendment affecting the basic structure of the Constitution would be
invalid. Justice S.M. Sikri articulated this principle, stating:

“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:”

Justice Sikri’s statement emphasized that while amendments are permissible, they must not
alter the fundamental framework and principles underlying the Constitution. This decision
has since served as a crucial check on the amending powers of the legislature, ensuring the
protection of the Constitution's core values.

Justice S.M. Sikri identified the following features as part of the basic structure of the
Constitution:
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.

He emphasized that this structure rests on the fundamental foundation of individual dignity
and freedom, which are of paramount importance and cannot be destroyed by any
amendment.

The Court also asserted that the Preamble is an intrinsic part of the basic structure because it
underpins the Indian Constitution and envisions fundamental rights for all citizens.
Additionally, the Court highlighted the "golden triangle" of Articles 14, 19, and 21, declaring
these articles as central to the Indian legal system.

The Kesavananda Bharati judgment has become a cornerstone of the Indian Constitution,
safeguarding the rights of the people and ensuring that Parliament's amending powers cannot
be exploited for political gains. This ruling preserves the essence of Indian democracy and
ensures the continuation of constitutionalism in the country.

Indira Nehru Gandhi v. Raj Narain (1975)

Following the Kesavananda Bharati case, which established that certain parts of the
Constitution could not be amended, the case of Indira Gandhi v. Raj Narain brought new
challenges. The Allahabad High Court had invalidated Prime Minister Indira Gandhi's
election due to corruption and malpractice. In response, Parliament passed the 39th
Constitutional Amendment Act to override the judgment, stating that the President, Vice
President, Prime Minister, and Speaker of the Lok Sabha were beyond judicial review. This
amendment was challenged on the grounds that it nullified judicial verdicts and altered
electoral procedures. The Supreme Court ruled that free and fair elections are part of the basic
structure of the Constitution, rendering the amendment invalid. The Court also expanded the
basic structure doctrine to include democracy, judicial review, rule of law, and Article 32,
which empowers the Supreme Court.

Minerva Mills v. Union of India (1980)

In Minerva Mills Ltd. v. Union of India, the Supreme Court reviewed the constitutional
validity of Sections 4 and 55 of the 42nd Amendment Act, which significantly expanded
Parliament's amending powers and restricted judicial review. The Court held that the
supremacy of the Constitution is paramount, and Parliament's power to amend it is not
absolute. If such power were unchecked, it would effectively nullify Article 13 and escape
judicial scrutiny. The Court ruled that judicial review is a part of the basic structure and
cannot be eliminated. It also emphasized that balancing Fundamental Rights (Part III) and
Directive Principles of State Policy (Part IV) is part of the basic structure.

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

In the Madras Bar Association case, the Supreme Court addressed several issues: the
constitutional validity of the National Company Law Tribunal (NCLT) and the National
Company Law Appellate Tribunal (NCLAT), the qualifications and terms for their members,
and the selection committee's criteria. The Court upheld the constitutionality of the NCLT
and NCLAT, finding them consistent with the basic structure, particularly regarding the
separation of powers, judicial review, and judicial independence. The Court ruled that
Parliament could establish tribunals to perform judicial functions as long as they adhere to
natural justice and constitutional provisions. Shifting court jurisdiction to tribunals to reduce
pendency and delay was deemed valid.

Supreme Court Advocates-on-Record Assn. v. Union of India (2016)

One of the recent significant cases concerning the basic structure doctrine is the NJAC case
or the Fourth Judges Case. The 99th Constitutional Amendment Act sought to replace the
collegium system of judicial appointments with the National Judicial Appointments
Commission (NJAC). Initially, the NJAC was to include the Chief Justice of India and four
senior-most Supreme Court judges, but the enacted NJAC included the Union Minister of
Law and Justice and two eminent persons alongside the Chief Justice and two senior-most
judges. The amendment and the NJAC Act were challenged on the grounds that they
compromised judicial independence and lacked transparency and accountability. By a 4:1
majority, the Supreme Court held that the amendment and the NJAC Act violated the basic
structure doctrine by allowing executive influence in judicial appointments. The dissenting
opinion by Justice Chelameswar argued that the NJAC could have addressed flaws in the
collegium system and prevented unwholesome trade-offs and accommodations between the
judiciary and the executive.

Criticism around the Basic Structure Doctrine

The basic structure doctrine is often criticised for the reason that it does not find its roots in the
Constitutional text. No provision of the Constitution, neither expressly nor impliedly, discusses
the basic structure. The critics believe that the Constitutional value of sovereignty of the people is
the supreme power, which vests with the democratically elected government. Any judgement
overturning such power of the people shall thus be against the spirit of the Constitution. The
Constitution emphasizes on the separation of powers among the functionaries established
thereunder. As much as the legislature does not have the power to pen down the verdict of a case,
the judiciary also does not have the power to declare any Constitutional amendment void.
The NJAC Case

The NJAC Case discussed above has been a very recent case in the history of basic structure
doctrine. However, the judgement is much criticised at various instances. The argument made by
the critics related to the fact that NJAC Act did not affect the independence of judiciary.
Moreover, a question is raised in this regard on how the collegium system is necessary for the
independence of the judiciary. Referring to the 2015 verdict which had invoked the basic
structure theory, Jagdeep Dhankar, the Vice President of India, addressing the 83rd All India
Presiding Officers’ Conference, remarked that the scrapping of the NJAC Act was “a scenario
perhaps unparalleled in the democratic history”. According to him, Parliamentary sovereignty
and autonomy cannot be permitted to be compromised by the executive or judiciary.

Another aspect on which the basic structure is criticised is that the structure is not defined
properly. The way the basic structure functions can be referred to as the ‘Ex-Post Review
Mechanism’. Under the mechanism, since the contents of the basic structure are not defined or
fixed, it comes to picture as a review mechanism after the amendment is implemented. This is
because the function of the basic structure is to keep a check on the impact of the amendment
rather than the contents of the amendment. Thus, the Court takes into account the socio-economic
and political circumstances of the given time at which the amendment comes into effect. As a
result, the basic structure excludes the legislative and executive functions from its scope, giving
space to ambiguity, and raising an important question – whether the basic structure should be
confined to the amendments to the Constitution only?

Apart from the aforementioned criticisms, the critics also question the judicial power to impose
its philosophy over a democratically elected government. More specifically, the question is
related to judicial overreach, as the Constitution does not empower the judiciary to abrogate any
legislative action.

Is the Basic Structure still intact in India

Time and again, the High Courts as well as the Hon’ble Supreme Court have held that the basic
structure of the Constitution is one of the most crucial aspects in the largest democracy of the
world. It ensures that nothing in the country is above the Constitution and the Constitution is
indeed the Suprema Lex. The non-definite structure of the doctrine provides the judiciary an
opportunity to apply the Constitution in its true sense.

After Kesavananda Bharati, the basic structure of the Constitution has been kept intact by various
Courts. In Vemireddy Pattabhirami Reddy v. Yendapalli Srinivasulu Reddy and Others (2002),
while the Andhra Pradesh High Court was deciding whether the non-disclosure of criminal cases
by an electoral candidate would render the election result as void, the basic structure of the
Constitution was resorted to. It was held that a ‘free and fair’ election is a basic feature of our
democracy, and hence, the basic structure of the Constitution.

In All India Judges Association v. Union of India & Ors. (2023), the Hon’ble Supreme Court has
reiterated that the independence of the judiciary is a part of the basic structure of the Constitution,
and it includes the independence of the district judiciary as well.

In State (NCT of Delhi) v. Union of India (2023), the issue before the Hon’ble Supreme Court
was the asymmetrical federal model of governance in India, especially in the case of the National
Capital Territory of Delhi. The issue was the constitutional validity of Article 339AA(3)(a) of the
Constitution. The Constitutional bench of the Hon’ble Supreme Court held that an interpretation
of Article 239AA(3)(a) in an expansive manner would further the basic structure of federalism.

Thus, it can be seen that not only the basic structure is still intact in the current times, the doctrine
is still evolving and is construed to incorporate as many crucial aspects of the Constitution as the
contemporary times deem fit.

Basic Structure Doctrine in Other Countries

The basic structure doctrine can be explained as that part of the Constitution which cannot be
amended by the Parliament. The doctrine, in India, evolved through various cases and was finally
spelt out in Kesavananda Bharati, as discussed above. However, the doctrine can be found in
various countries. This section shall discuss the provisions of the countries where the doctrine can
be found. These include, inter alia, Germany, France, Greece, Portugal, and Pakistan.

Germany
The German Constitution, known as the Basic Law for the Federal Republic of Germany, is one
of the prime examples of the Constitutions which include the doctrine of basic structure. Article
79(3) (Amendment of the Basic Law) states that the “Amendments to this Basic Law affecting the
division of the Federation into Länder, their participation in principle in the legislative process,
or the principles laid down in Articles 1 and 20 shall be inadmissible.”The Constitution has
defined the basic structure under Article 1 and Article 20, and has safeguarded the same by
excluding it from the scope of amendments. Article 1 of the Basic Law provides that the human
dignity shall be inviolable, and the German people shall have inalienable human rights.
Moreover, it is the duty of the State to protect the human rights of the people. Article 20 provides
that the Federal Republic of Germany shall be a democratic and social federal state.

The German Constitution laid down the basic structure in express terms only after the Nazi rule
ended in 1945, in order to avoid any similar situation again. The Federal Court of Justice (the
Apex Court in Germany) recognized the provisions envisaged under Article 79(3) and referred to
it as the “constitutional identity” in the renowned Solange I and Solange II judgements. Thus, the
basic structure in Germany is now known as the constitutional identity of Germany.

France

Similar to the German Constitution, the Constitution of France expressly limits the powers of the
government to amend the Constitution. Such limitation is expressed under Article 89 of the
Constitution of France, 1958. The provision, apart from the procedure for amendment, states
that “The republican form of government shall not be the object of any amendment.”Thus, the
structure of the republican form of government is the basic structure provided under the French
Constitution, and is protected from any amendment by the Government.

Greece

The Greek Constitution also expressly protects the basic structure like the German and the French
Constitution. Article 110 of the Constitution provides for the procedure of revision. It states
that “The provisions of the Constitution shall be subject to revision with the exception of those
which determine the form of government as a Parliamentary Republic and those of articles 2
paragraph 1, 4 paragraphs 1, 4 and 7, 5 paragraphs 1 and 3, 13 paragraph 1, and 26.” Thus, the
basic structure of the Greek Constitution is provided under these provisions, and are safeguarded
by Article 110.

Portugal

The Portuguese Constitution also provides explicit provisions for protection of the basic structure
of the Constitution. Article 288 enlists 14 limitations on the Constitutional revision. These
include the national independence and unity, republican form of government, separation of
powers, citizen’s freedoms, rights and guarantees, independence of judiciary etc.

Pakistan

Pakistan has followed the steps of India while promulgating the basic structure doctrine. In
Pakistan, the question regarding limitations on amendments to the Constitution were raised after
Kesavananda Bharati, but to no avail. However, the question was revisited by the Supreme Court
of Pakistan in Mahmood Khan Achakzai v. Federation of Pakistan (1997). In this case, the issue
before the Court was the constitutional validity of the amendment allowing the President to
dissolve the National Assembly. This provided an opportunity to the Apex Court to pen down the
basic structure doctrine in Pakistan. This decision, however, was overruled by a larger bench
within a year. The question regarding the basic structure was again raised before a 12-judge
bench in 2015, which held by a majority of 8:4, in the case of District Bar Association & Ors. v.
Federation of Pakistan (2015), that “This Court is vested with the jurisdiction to interpret the
Constitution in order to ascertain and identify its defining Salient Features. It is equally vested
with jurisdiction to examine the vires of any constitutional amendment so as to determine
whether any of the Salient Features of the Constitution has been repealed, abrogated or
substantively altered as a consequence thereof.” Thus, the Court held the Democratic and
Parliamentary form of government, along with the Judiciary as a part of the basic structure of the
Constitution of Pakistan.

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.

References
 Indian Constitutional Law, M.P. Jain (2018).

 Constitution of India, V.N. Shukla (2022).

 Constitutional Law, Mamta Rao (2021).

 Karim, F.: Judicial Review of Public Actions: A Treatise on Judicial Review

(Karachi, Pakistan Law House 2006), 1254–76.