Basic Structure Doctrine

BASIC STRUCTURE DOCTRINE
INTRODUCTION
The basic structure doctrine is an Indian judicial principle. The constitution of India has
certain basic features that cannot be altered or destroyed through the amendments by the
parliament. Thus, it gives extra power to court to review and strike down any constitutional
amendments and act enacted by the parliament.
The Kesavananda Bharati judgement introduced the Basic Structure doctrine which limited
Parliament’s power to make drastic amendments that may affect the core values enshrined in
the Constitution like secularism and federalism.
The verdict upheld the power of the Supreme Court to judicially review laws of Parliament. It
evolved the concept of separation of powers among the three branches of governance —
legislative, executive and the judiciary.
Basic Structure Theory
Doctrine of Basic Structure says that, the parliament’s unlimited power to amend the
constitution is subject to only one restriction i.e it should not dilute or violate the basic
structure of the constitution or the effects of the amendment should not be abrogating or
disturbing in nature towards the basic structure.
Evolution of doctrine of basic structure
 The Parliament’s amending power is subject to substantive limitations. This was first
raised in Sankari Prasad Deo v. UOI. In this case the question was whether the
fundamental rights can be amended under Article 368 of the constitution. It is the first
amendment to the constitution. In this amendment, Article.31-A and 31-B of the
constitution which deals with right to property was challenged. The challenge in this case
was premised upon the wording of Article 13 of the Constitution, which prohibits the
State from making any law in violation of any fundamental right enumerated in Part III. It
was argued that a Constitutional amendment was “law”, properly called; and so, under
Article 13, it was impermissible for the State to amend Part III of the Constitution. It
based its judgment on the logic that the word ‘law’ mentioned in Article 13 includes only
ordinary laws and not constitutional amendment acts
 The question came up again fourteen years later in Sajjan Singh v. State of Rajasthan, in
this case 17th constitutional amendment act was challenged. The supreme court approved
the majority judgement given in Sankari Prasad case and held that the words amendment
to the constitution means any part of the constitution can be amended.
 I.C. Golak Nathv. State of Punjab, an eleven judge bench of the Supreme Court
overruled its judgment. It ruled in this that- Fundamental Rights are given a
transcendental and immutable position and hence the Parliament cannot abridge or take
away any of these rights it opined the constitutional amendment act is also a law under
Art 13. Parliament reacted to this judgment by enacting 24th amendment act which
included a provision in Art 368 which declared that Parliament has power to take away
any of the fundamental rights.
 In Kesavananda Bharati v. State of Kerala the 24th Amendment and Golak Nath case was
challenged and the parliament’s power to amend the constitution was questioned. SC
upheld the validity of the 24th amendment act and opined that parliament is empowered
to take away or abridge any of the Fundamental rights. However, such changes should not
alter the ‘basic structure’ of the constitution. Therefore, SC gave a balanced approach.
 The basic structure doctrine was crystallized in three further decisions of the decade. In
Indira Nehru Gandhi v. Raj Narain, a Constitutional amendment dealing with the
election of the Prime Minister and the Speaker was struck down for violating the basic
features of democracy, the rule of law and equality.
 In Minerva Mills v. Union of India, the Parliament attempted to overturn Kesavananda
Bharati case by inserting the 42ndAmendment, which expressly stated that the amending
power was unlimited, and not open to judicial review. The amendment was struck down
by the Court on the ground that the limited amending power of the Parliament was itself
part of the basic structure.
 In Waman Rao v. Union of India, 9th schedule and all amendments that came after the
Kesavananda Bharati case (i.e after Basic Structure Doctrine was introduced) was
challenged. SC clarified that doctrine would be apply to constitutional amendments
enacted after Kesavananda Bharati case (April 24, 1973) (Including 9th schedule)
Main criticisms of Basic Structure:

 The common criticism is that the doctrine has no basis in the Constitution’s
language. The doctrine does not have a textual basis. There is no provision
stipulating that this Constitution has a basic structure and that this structure is
beyond the competence of amending power
 Its detractors also believe the doctrine accords the judiciary a power to impose its
philosophy over a democratically formed government
 There is no definite elucidation on what exactly constitutes basic structure,
thereby, making the doctrine ambiguous
 In recent times, the doctrine has been invoked in cases that has been regarded as
examples of judicial overreach. Ex: NJAC bill was declared null and void by the
SC by relying on this doctrine
Conclusion:
At the end of the day, whether the Supreme Court chooses to invoke the basic structure
doctrine is at its discretion.

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BASIC STRUCTURE DOCTRINE

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