Basic Structure Doctrine in light of the Kesavananda Bharti case.

Table of Contents

S. No. Topic Page

Number

1 Index of Authorities 2

2 Introduction 3
1.1 Research Objectives 3
1.2 Research Methodology 3
1.3 Statement of Problem 4
1.4 Chapterisation 4
3 Basic Structure Doctrine in Light of Kesavananda Bharti case 5
3.1 Brief Synopsis 5
3.2 Overview of the Judgement 6

4 Origin of the Basic Structure Doctrine 8

5 Conclusion 10

6 Bibliography 11

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 Basic Structure Doctrine in light of the Kesavananda Bharti case.

Index of Authorities
Constitution
1. The Constitution of India, 1950
2. The Weimar Constitution of 1919
List of Cases
1. Kesavananda Bharti v. State of Kerela, W.P. 135, 1970
2. C. Golakhnath & Ors. v. State of Punjab & Anr., 1967 AIR 1643

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 Basic Structure Doctrine in light of the Kesavananda Bharti case.

Introduction- Basic Structure Doctrine

The Constitution of India, has often being called a living, breathing, organic document. Such
a statement hold importance when one tries to look at the constitution by way of close
analysis as to what it stands for. In a country like India, wherein the Preamble clearly calls
India a “democratic, sovereign, socialist, republic”, it is vital to understand that it talks about
not only the method of Governance, but also what India represents and its nature of being.

Although Constitution is being called an organic document, capable of evolution, with time;
it is to be kept in mind, that the Constitution is supreme. It is not ruled over by the organs that
it has created, but rather it rules over them. There have been numerous incidences when the
‘Basic Structure Doctrine’ was put to use, by the apex court. Some landmark judgements
such as, Indira Nehru Gandhi v. Raj Narain (1975) and Minerva Mills Ltd. v. Union of India
(1980) are based around this very doctrine.

However, the first time this case was propounded was in the Kesavananda Bharati
Sripadagalvaru & Ors. v. State of Kerala & Anr. In the year 1970, by the hon’ble Supreme
Court. The case was adjudged by a bench of 13 eminent judges and was decided on a ratio of
7:6. The case is popularly known as ‘Kesvananda Bharti case’. The doctrine holds that there
are certain essential features of the Indian Constitution that cannot be amended by the
Parliament through the process of ordinary legislation.

This Doctrine has been the corner stone of creating constitutionalism, i.e., limiting the power
of the Government and promoting the supremacy of law. The Indian Governance would have
been different and unknown had it not been for this doctrine. It is used by various jurists, to
strike down laws, made by the legislature, that shadow and undermine the Fundamental
Rights.

1.1 Research Objectives

The purpose of this Research is to-
1. Understand the “Basic Structure Doctrine” in light of Kesvananda Bharti case.
2. Analyse the origin of the Doctrine.
3. Critically analyse the Doctrine and its relevance in India.

1.2 Research Methodology

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 Basic Structure Doctrine in light of the Kesavananda Bharti case.

The methodology of research used is Doctrinal. The researcher is using analytical

method of understanding texts that involve judgements, academic articles and other
research papers.
1.3 Statement of Problem
The researcher aims to analyse the instant case in order to get a better view of what
the Basic structure doctrine actually entails and what it implies in case of the Indian
scenario.

1.4 Chapterisation
a. Chapter 1- Introduction to Basic Structure Doctrine.
This Chapter deals with the introduction of the study, which is a brief overview of
what the Doctrine stands for and the various landmark Cases where it has been
employed, which is talks about the basic the objectives of the research, and the
methodology used.
b. Chapter 2- Basic Structure Doctrine in light of Kesvananda Bharti case.
The second chapter discusses the Judgement where the Doctrine was first used, in
India. The Kesavananda Bharti case is called a landmark judgement and a turning
point in Indian Governance as this was the first Judgement which used basic
structure doctrine for the first time. There is a brief overview of the judgement
provided along with the points of relevance mentioned in the Judgement.
c. Chapter 3-Origin of Basic Structure Doctrine.
This Chapter deals with the origination of the Doctrine. The chapter revolves
around the study which led to the evolution of Basic structure doctrine in
Germany and the multiple times when it was used. The doctrine is now widely
accepted and a well-known ideal that is being used by multiple countries including
the United Kingdoms, India and etc.
d. Chapter 4- Conclusion
This chapter expresses an analytical view of the researcher and the approach of
understanding that has been employed, to give a conclusive statement to the said
research.

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 Basic Structure Doctrine in light of the Kesavananda Bharti case.

Basic Structure Doctrine in light of Kesavananda Bharti case

Brief synonymous

Kesavananda Bharati v. State of Kerala is a landmark case in Indian constitutional law that
dealt with the scope and limits of the Parliament's power to amend the Constitution. The case
was heard by a 13-judge bench of the Supreme Court of India and resulted in the formulation
of the Basic Structure Doctrine, which has been a cornerstone of Indian constitutional law
ever since. The case arose from a challenge to the Kerala Land Reforms Act, which sought to
impose restrictions on the ownership of land by certain religious institutions.

The petitioner, Kesavananda Bharati, argued that the Act violated the Constitution's
fundamental rights and also challenged the Parliament's power to amend the Constitution.
The main issue before the court was whether the Parliament's power to amend the
Constitution was unlimited or whether there were certain essential features of the
Constitution that could not be amended. The petitioner argued that the Constitution had a
basic structure that included certain essential features such as the sovereignty of India, the
democratic system of government, the federal character of the Constitution, and the
protection of fundamental rights, which could not be amended by the Parliament.

The court, in its landmark judgment, held that the Constitution did indeed have a basic
structure that was inviolable and could not be amended by the Parliament. The court
identified certain essential features of the Constitution that constituted its basic structure,
including the sovereignty of India, the republican and democratic form of government, the
secular character of the Constitution, the federal structure of the Constitution, and the
protection of fundamental rights. The court held that any amendment that violated the
Constitution's basic structure would be declared invalid, and that the Parliament's amending
power was subject to judicial review. The court also held that the Constitution's basic
structure could not be altered even by the Parliament's constituent power, which was derived
from the people themselves.

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 Basic Structure Doctrine in light of the Kesavananda Bharti case.

Overview of the Judgement

The landmark judgement herein was levelled by the Petitioner who was represented by the
celebrated lawyer Nana A Palkhivala. The court was led by the arguments of Mr Palkhivala
and judgement reflects multiple points have been raised from the commentary of the revered
Scholar, H.M. Seervai. The idea of Basic structure was propagated by multiple scholars, even
before the advent and use of the same in the Indian judiciary.

The court had made remarkable observations in this case. The court had categorically
emphasised that the term “amendment of constitution” as stated in article 368 cannot be all
inclusive and the Parliament cannot try to increase its own powers by way of using a power
granted under the constitution. It was stated that the Article, nowhere mentions, that the basic
structure or founding principles of the constitution can be changed by Legislature. Further it
was stated that, if it were true, and the intention of constitution makers were to give the
Parliament equivalent powers to the constituent assembly, and the list of articles mentioned
was rather exhaustive, then the clause (a), in the proviso, which makes a mention to article 54
and 55, are included as articles that cannot be amended, however article 52, and 53, which
talk about the President as executive head and the powers of the union are not mentioned
therein. This would entail that the entire structure of Indian Governance can be changed by an
ordinary bill getting passed in the parliament. 1 This was a very thought provoking idea, as
this substantiates the fact, that the Constituent Assembly debates can give us an idea of what
the framers had in mind however they cannot precisely tell the reason and the nexus used by
them.

The Respondents had also tried to put forth the idea that the Article 368, so as to not make the
constitution rigid. The respondents also argued that Parliament, being the representative, must
have the power to the same extent of the Constituent Assembly so as to realise the ideals of
the Constituent Assembly, however, it was rightly pointed out by the court that, just because
the constitution grants the kind of power mentioned by the respondents, it does not give the
rights to negate the whole of it. Ours is a constitution based on morals of equity, equality and

1
Kesavananda Bharti v. State of Kerela, W.P. 135 of 1970, p.no. 76, para 528.

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 Basic Structure Doctrine in light of the Kesavananda Bharti case.

an “egalitarian society”2. The Respondents commented that the ideas of Preamble, namely
justice, social and economic cannot be fulfilled if the DPSPs are not placed above
fundamental rights. The court however was of the idea, that absolute disruption of one for the
other was not proper. It held that the ideal role would be for the Government to find the
perfect balance between the two sects of law, and there has to be a harmonious existence of
the two.

The judgement was also the first one to attempt to draw a line explaining what was to be
considered as Basic Structure and it said, “There can be no difficulty in discerning that the
following can be regarded as the basic elements of the Constitutional structure. (These cannot
be catalogued but can only be illustrated).

1. The supremacy of the Constitution.

2. Republican and Democratic form of Government and sovereignty of the country.

3. Secular and federal character of the Constitution.

4. Demarcation of power between the legislature, the executive and the judiciary.

5. The dignity of the individual (secured by the various freedoms and basic rights in Part III
and the mandate to build a welfare State contained in Part IV.

6. The unity and the integrity of the nation.”3

As stated by the court, the list is not exhaustive rather, it is illustrative and as such, and not
exhaustive but as can be discerned, the court already tried to include every facet of law which
might face the brunt of politics and tacit practices.

There are multiple instances in the case wherein the Basic Structure was employed, however
a write up of limited words cannot do justice to all that is entailed in the said judgement. The
above are a few examples of a very relevant excerpts of the judgement which are referred to,
by jurists and advocates to this date.

2
Ibid. p.n0. 105, para 620
3
Ibid. p. no. 105, para 620

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 Basic Structure Doctrine in light of the Kesavananda Bharti case.

Origin of The Basic Structure Doctrine

At the beginning of the 20th century, the idea of Basic structure was a pondering thought, set
in Germany and France. Theoretical writings advocating for implicit constitutional
constraints on constitutional modification were written during this time by the German
constitutional lawyer Carl Schmitt and the French constitutional lawyer Maurice Hauriou.
Both works are extremely important because they established the two main lines of reasoning
that, theoretically speaking, might be used to support implied restrictions on constitutional
amendment. The story continues with the contributions made by the German attorney
Dietrich Conrad, who had an impact on the Indian basic-structure theory.

Carl Schmitt worked with the then Weimar Constitution and in his book called the
“Verfassungslehre” worked on the lines of developing a restraint on the ability of the
legislature to draft and edit the constitution. The article 76 of the then Weimar constitution
stated that the legislatiure can make any edits to the constitution as long as it obtained a total
of two third majourity. Carl Schmitt worked with the implied sense of what constitutes the
implied restriction on edits to the constitution. He opined that the constituent power was the
basic of all powers and that it was a seprate legal entity, existing above and beyond the realm
of the constitution and which imparted this power to the constitution.

He then went ahead and examined the existence of two major types of provisions, one which
had the sanction or power of the constituent power and one that did not. He argued that, only
provisions which did not carry the sanction of this material power could be amended. The
other could not be. He stated that-

“The limits for constitutional amendment follow from the rightly-understood notion of
constitutional change. A competence given only by a constitutional law to amend the
constitution means that one or several constitutional laws can be changed, but only on the
condition that the identity and continuity of the constitution as a whole are preserved.” 4

The other relevant author would be Maurice Hauriou. For Hauriou, the constituent power was
the founding legislative power that acted in the name of a sovereign nation. In addition, the
constituent power was not completely unbound, but subject to certain rules of law. It should
be exercised by an organ that was close to the nation itself. Therefore, the genuine constituent
organ was a national assembly expressly elected to elaborate the constitution. The process

4
The basic-structure doctrine and its German and French origins: a tale of migration, integration, invention and
forgetting, Monika Polzin, INDIAN LAW REVIEW, 2021, VOL. 5, NO. 1, 45–61

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 Basic Structure Doctrine in light of the Kesavananda Bharti case.

could be complemented by submitting the constitution to a national referendum. He implied

two ways to amend a provision and states that some can only be amended based on a special
process of amendment, specially the one that were relevant and formed the crux of nationally
important laws. In addition to this rule-of-law based approach to the concept of constituent
power, Hauriou argued that certain principles were so essential that they had a higher rank or
legitimacy than the written constitution itself, irrespective of whether those principles were
contained in the constitution. He described them as “principles that have a higher legitimacy
than the text of the written constitution and that do not have to be expressly embodied in the
constitution.”5

The most relevant one was Deitrich Conrad who pioneered the idea into the realms of Indian
Judiciary. Conrad presented a presentation on “Implied Limitations of the Amending Power”
at the Banaras Hindu University's Law Faculty in 1965. Subsequently, he published
important works on implied restrictions on constitutional amendment in Indian law journals.
“Limitations of Amendment Procedures and the Constituent Power” was the title of the first
and most significant essay, which was released in 1970 in the Indian Yearbook of
International Affairs. Also mentioned in the Kesavananda ruling was this article. The second
article was entitled “Constituent Power, Amendment and Basic Structure of the Constitution:
A Critical Reconsideration” and it first published in the Delhi Law Review in 1978.

He argued, after the Golakhnath case, that an constitution like India’s, should try to be
influenced from Schimtt’s work, he however argued that such an idea is not to be mystical
and look into the philosiphies of power, but rather to safeguard the “basic structure” or the
sanctimonia of the Constitution. 6

5
Id at 4
6
Ibid

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 Basic Structure Doctrine in light of the Kesavananda Bharti case.

Conclusion

The Landmark case studied above has tried to analyse and understand every single aspect of
law, it has tried to put boundaries on the power of the legislature and has ensured that the
creations of the constitution, i.e, the three limbs of it, do not partake the creator, the
Constitution.

The three schools of thought to this Doctrine have tried to propagate views that are very
specific and important to analyse the stance of the doctrine and why it is so important.
Although Schmitt and Hauriou have taken a more philopsophical approach, Conrad had tried
to entail on a more logical understanding, one that pertains to India.

In conclusion, the basic structure doctrine is a crucial legal principle that has been established
by the Indian judiciary. It holds that certain fundamental features of the Constitution cannot
be amended by the Parliament, even with a constitutional amendment. These features include
the supremacy of the Constitution, the democratic and republican form of government,
separation of powers, the rule of law, and the independence of the judiciary. The doctrine has
played a significant role in ensuring that the Constitution remains a living and evolving
document, while at the same time preserving its core values and principles. Overall, the basic
structure doctrine has been instrumental in safeguarding the constitutional democracy of
India.

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 Basic Structure Doctrine in light of the Kesavananda Bharti case.

Bibliography/References

Books Referred-

1. Indian Constitutional Law, Eighth Edition, M.P. Jain

2. V.N. Shukla’s Constitution of India, Fourteenth edition, Mahendra Pal Singh
3. Introduction to the Constitution of India, DD Basu

Research Articles:

1. The basic-structure doctrine and its German and French origins: a tale of migration,
integration, invention and forgetting, Monika Polzin, Indian Law Review
2021, Vol. 5, No. 1, 45–61

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