Doctrine of Basic Structure: A Short Story of a Long History

Doctrine of Basic Structure


It has been a decade since the basic structure doctrine has become the bedrock of India’s constitutional jurisprudence. The doctrine which was formulated by the supreme court in Kesavananda Bharathi’s case prevents the uncontrolled exercise of the power of the parliament to amend the constitution. Accordingly, any constitutional Amendments which alter the “basic structure” of the constitution are void.

The whole theory of basic structure is a tussle between the power of judicial review and the Amending power of the constitution

What does the basic structure of the constitution mean?

The constitution is the basic norm of the country which comprises certain fundamental principles and lays down the foundation of civil society. So when referring to the basic structure of such a basic document, it means that ‘we are speaking about some fundamentals of the fundamentals or some basic feature of such a basic document ’.[1]

There is no exhaustive definition as to what constitutes the basic structure of the constitution, the judiciary has pointed out a list of features that forms the basic structure of the constitution in several cases.

Evolution of the doctrine

The doctrine of basic structure revolves around Article 13 and Article 368, on one hand, Article 13 says laws inconsistent with or in derogation with the fundamental rights are void and on the other Article 368 speaks about the power of parliament to amend the constitution. So this gave rise to the questions like,

  • whether the fundamental rights can be Amended?
  • whether Article 13 restricts the parliament from using their power to amend the constitution?
  • And does the parliament has the unlimited power of amending the constitution?

The supreme court has clarified these questions in a series of cases, the evolution of the doctrine can be seen through these landmark decisions.

In Shankari Prasad v. Union of India,[2], the constitutional validity of the 1st Amendment Act,1951 which introduced Article 31-A and 31- B was challenged. It was challenged on the ground that the Amendment curtails the right to property, which isn’t allowed by Article 13.

It was held that the parliament can amend the constitution including fundamental rights.

Further, the court has observed that “Article 13 only includes ordinary laws and not amendments to the constitution, which are made in the exercise of constituent power[3]

And in Sajjan Singh v. State of Rajasthan,[4] the supreme court confirmed the judgment passed by the Shankari Prasad case and held that the parliament can amend any part of the constitution including the fundamental rights.

In Golaknath v. State of Punjab, [5] the supreme court overruled its stance and by a majority of 6:5 held that the parliament had no power to amend part III of the constitution to take away or abridge the fundamental rights.

The court also observed that a law amending the constitution is “law” within the meaning of Article 13(2).

Following this judgment, the parliament has passed series of amendments to overrule the decision of Golaknath’s case, the 24th Amendment Act was passed in 1971 which inserted two new clauses, clause (4) to Art.13 i.e ’Nothing in this Article shall apply to any amendment of this Constitution made under Article 368’.

And clause (3) to Art.368 says ‘Nothing in article 13 shall apply to any amendment made under this article.

And subsequently, 25th, 26th, and 29th Amendments Acts were also passed in 1972.

All these amendments and the power of the parliament to amend the constitution were challenged in Kesavananda Bharthi v. State of Kerala, [6] the court by majority overruled the Golaknath case which denied parliament the power to amend the fundamental rights of the citizens. The majority held that even before the 24th amendment, Article 368 had the power and procedure of amendment.

The supreme court held that Article 368 of the constitution does not provide the parliament with the absolute power to amend the constitution. The limitation was that the Parliament cannot destroy the fundamental structure of the Constitution i.e the basic structure of the constitution could not be altered.

The judgment listed some features as the basic structure of the constitution, they are :

  1. Supremacy of the constitution
  2. Unity and sovereignty of India
  3. Democratic and republic form of government
  4. Federal character of Constitution
  5. Secular character of the constitution
  6. Separation of power
  7. Individual freedom

Any law or amendment that violates these principles can be struck down by the courts on the ground that they distort the basic structure of the constitution.

The supreme court for the first time applied the doctrine of basic structure in Indira Nehru Gandhi v. Raj Narain,[7] and struck down clause (4) of Art.329-A which was inserted by the 39th amendment in 1975, as it violates the basic structure of the constitution.

The concept of basic structure doctrine was more strengthened in Minerva Mills v. Union of India, [8] where the constitutional validity of the 42nd Amendment Act was challenged, the court by majority held that the amending power of the parliament can’t be unlimited, limited amending power is itself a part of the basic structure of the constitution. And the court struck down sections 4 and 55 of constitution 42nd (Amendment ) Act, 1976, declaring them to be a violation of the basic structure.

The court also added the three new basic features to the list, they are :

  1. Judicial review
  2. Limited amending power, and
  3. Harmony and balance between fundamental rights and DPSP

The supreme court again reiterated the basic structure doctrine in Waman Rao v. Union of India, [9] it was observed that the basic structure doctrine is applicable prospectively and not retrospectively. Any law which has been inserted in the 9th schedule after 24th April 1973 ( the date on which the doctrine was pronounced in the Kesavananda Bharthi case ) would be subject to judicial review.

The supreme court applied the basic structure doctrine even though there was no issue relating to a constitutional amendment in SR Bommai v. Union of India, [10] The SC while holding secularism as a part of the basic structure, held that any state that violates this would consequently invite the president’s rule, thereby extending the doctrine to executive action. [11]

In IR Coelho v. State of Tamil Nadu, [12] the supreme court held that all laws which are incorporated after 24th April 1973, shall be under the purview of judicial review and could not violate the provisions mentioned in part III which forms the part of the basic structure doctrine.


The basic structure doctrine is the fundamental principle that has been propounded and upheld by the judiciary. It is of prime importance because it prevents the parliament from misusing its power of amending the constitution. The fact that has been appeared from this tussle between the parliament and the judiciary is that all the laws and amendments are now subject to judicial review and the laws which violate the basic structure are likely to be struck down by the supreme court.

Finally, the basic structure doctrine reiterates that neither the parliament nor the judiciary, it is the constitution which is SUPREME.


  1. Virendra Kumar, Basic structure of the Indian constitution: Doctrine of constitutionality controlled governance [From Kesavananda Bharati to I.R. Coelho] (2007), Available Here
  2. Shankari Prasad v. Union of India, 1951 AIR 458, 1952 SCR 89
  3. Ibid
  4. Sajjan Singh v. State of Rajasthan, 1965 AIR 845, 1965 SCR (1) 933
  5. Golaknath v. State of Punjab, 1967 AIR 1643, 1967 SCR (2) 762
  6. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; AIR 1973 SC 1461
  7. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299
  8. Minerva Mills v. Union of India, 1980 AIR 1789, 1981 SCR (1) 206
  9. Waman Rao v. Union of India, (1981) 2 SCC 362, 1981 2 SCR 1
  10. SR Bommai v. Union of India, 1994 AIR 1918, 1994 SCC (3) 1
  11. Madhav Khosla, The Ninth Schedule Decision: Time to Define the Constitution’s Basic Structure (2007) Available Here
  12. IR Coelho v. State of Tamil Nadu, (AIR 2007 SC 861)

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