Doctrine of Basic Structure: Assignment On Constitutional Law-Ii

ASSIGNMENT ON CONSTITUTIONAL LAW-II
DOCTRINE OF BASIC
STRUCTURE
SUBMITTED BY
R.SANGEETHA
14BLA1001
Doctrine of basic structure
There are certain principles within the framework of the Indian constitution which are
inviolable and hence cannot be amended by parliament. These principles are commonly
termed as basic structure. Parliament has wide powers, it did not have the power to destroy or
emasculate the basic elements or fundamentals features of the constitution.
A judge-made doctrine where certain features of the Constitution of India are beyond
the limit of the amending powers of the Parliament of India. On April 24, 1973, a Special
Bench comprising 13 Judges of the Supreme Court of India held that Article 368 of the
Constitution does not enable Parliament to alter the basic structure or framework of the
Constitution. On Feb 27, 1967, it overruled a decision of a Special Bench of 11 Judges, that
"Parliament has no power to amend Part III of the Constitution so as to take away or abridge
the fundamental rights". Instead, the court propounded what has come to be known as “the
basic structure doctrine”.
The Supreme Court recognized basic structure doctrine concept for the first time in the
historic keshvananda bharti vs. state of Kerala1case in 1973. Ever since the Supreme Court
has been the interpreter of the Constitution and the arbiter of all amendments made by
parliament.
The Golaknath Verdict:
In 1967, an eleven-judge bench of the Supreme Court reversed its position. Chief
Justice Subba Rao put forth the curious position that Art.368 did not confer upon Parliament
the power to amend the Constitution. Thus, the apex court held that the amending power and
legislative powers of Parliament were essentially the same. Therefore, any amendment of the
Constitution must be deemed law as understood in Article 13 (2).
KESHAVANANDA BHARTI CASE:
Emergence of the Basic Structure Doctrine After the death of Pt. Jawaharlal Nehru,
Congress party, under the guidance of Mrs. Indira Nehru Gandhi, was committed to bring
about land reforms in the country which caused widespread social inequities in the country.
1
AIR 1973SC 1461
The most aggrieved among various classes were the propertied class who felt that the
parliament is acting ultra vires Indian constitution. In 1973, the largest Constitutional Bench
of 13 Judges, heard arguments in Kesavananda Bharati v. State of Kerala.
The Supreme Court reviewed the decision in Golaknath v. State of Punjab2, and
considered the validity of the 24th, 25th, 26th and 29th Amendments. The Court held that
although no part of the constitution, including fundamental rights, was beyond the amending
power of Parliament, the "basic structure of the Constitution could not be abrogated even by a
constitutional amendment". Parliament could not use its amending powers under Article 368
to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or
framework of the Constitution.
Basic Features of the Constitution according to the Kesavanada verdict each judge laid out
separately, what he thought were the basic or essential features of the Constitution.
As per SIKRI CJ,main contents in basic structure is as follows:
 Supremacy of the Constitution

 Republican and democratic form of government
 Secular character of the Constitution
 Separation of powers between the legislature, executive and the judiciary
 Federal character of the Constitution
Indira Gandhi vs. Raj Narain :3
The Supreme Court referred to keshavananda bharti case and accepted the doctrine of
basic structure of frame work of constitution. The validity of thirty ninth amendment of the
constitution was in question. This amendment excluded judicial review of election and law
relating to elections. This amendment was held to be invalid by the SC.as it altered a basic
feature of the constitution; the judicial review in election disputes.
Chandrachud J in Indira Gandhi case, this judge took the opportunity to expand the scope of
basic structure by identifying 4 basic features:
 Sovereign democratic republic status

 Equality
2
(1967) 2 SCR 762: AIR 1967 SC
3
(AIR 1975 SC 2299)
 Secularism, Freedom of conscience and religion
 Government of laws, not of men
To neutralise the affect of doctrine of the basic structure, the Govt. enacted the constitution
(42ND Amendment) Act.1979 and added clauses (4) and (5) to art. 368 which provided for
exclusion of judicial review of amendments of the constitution made before or after the 42nd
Amendment. It also declared that there shall be no limitation on the amending power of the
parliament under article 368. The court held that clause (4) and (5) of art. 368 are
unconstitutional as it affects the basic structure of the constitution i.e. judicial review.
However, there was difference of opinion on validity of amended article 31-C which gave
primacy to all Directive principles over the fundamental rights. Although the minority
declared void the amended article 31-C, justice Bhagwati (minority judgment) upheld it by
giving a restrictive interpretation in terms of doctrine of basic structure.
Former Chief Justice K. Subba Rao in an article on the two judgments Golaknath and
Kesavananda Bharati, expressed the view:
"The existence of a remote judicial control may only act as a brake against hasty and
unreasonable legislative and executive action and as a form of guarantee to the public against
instability. The stability of the Constitution stabilizes the State."
Woman Rao vs. Union of India 4
The supreme court held that all amendment to the constitution which were made before
April 24th, 1973(i.e.. the date on which the judgment of Keshvananda Bharti was
delivered )including those by which the ninth schedule to the constitution was amended from
time to time were valid and constitutional.
S.P. Sampat Kumar vs. union of India5
The Supreme Court upheld the validity of art. 323-A and the Act as the necessary
changes suggested by the court were incorporated in the Administrative Tribunal Act.
Chandra Kumar vs. union of India6
A seven-member constitutional bench of the supreme court has unanimously while

reconsidering the SAMPATH KUMAR'S CASE, has struck down clause 2(d) of articles
4
AIR 1881 SC 271
5
(AIR 1987 SC 271)
6
AIR 1997 SC 1125
323A and clause 3(d) of art.323B which provided for the exclusion of the jurisdiction of the
high courts under articles 226 and 227 and the Supreme Court under article 32 of the
constitution as unconstitutional and invalid as they damage the power of judicial review
which is the basic structure of the constitution.
In SR Bommai, “federalism” was said to be a basic feature.
It can be concluded that the Basic Structure is, in fact a reality, and there is more to it than
just the Supreme Court case laws. Like the Doctrine of ultra vires which seeks to prevent any
law that violates the provisions of the Constitution, this Doctrine seeks to negate any attempt
to change the Constitution in a ‘negative’ way and hence, preserve the sanctity of the
Constitutiont. The doctrine of Basic Structure of Constitution was framed and has been very
rightly implemented by the Hon’ble Supreme Court in the various cases to protect the very
Principles this great Nation is built upon.
Books referred:
1. VN Shukla’s Constitution of India
2. bare act of Indian constitution
Websites referred:
http://www.civilserviceindia.com/subject/Law/notes/amending-power.html
http://www.legalserviceindia.com/articles/thyg.htm
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2661127
https://indconlawphil.wordpress.com/2013/11/01/basic-structure-i-history-and-evolution/

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ASSIGNMENT ON CONSTITUTIONAL LAW-II

The Golaknath Verdict:

KESHAVANANDA BHARTI CASE:

As per SIKRI CJ,main contents in basic structure is as follows:

 Supremacy of the Constitution

Indira Gandhi vs. Raj Narain :3

 Sovereign democratic republic status

Woman Rao vs. Union of India 4

S.P. Sampat Kumar vs. union of India5

Chandra Kumar vs. union of India6

A seven-member constitutional bench of the supreme court has unanimously while

In SR Bommai, “federalism” was said to be a basic feature.

2. bare act of Indian constitution

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