BASIC STRUCTURE DOCTRINE

LEGAL METHOD PSDA

Submitted to- Mr. Prakash Sharma Submitted by- Swati Singh

Assistant Professor VSLLS

BA.LLB /SECTION 1-D

VIVEKANANDA SCHOOL OF LAW AND LEGAL STUDIES (VSLLS)

VIVEKANANDA SCHOOL OF PROFESSIONAL STUDIES

DELHI
2021
 DECLARATION

I hereby declare that the PSDA (Professional Skill Development Activity) Submission
under the topic “BASIC STRUCTURE DOCTRINE” submitted to Vivekananda Institute
of Professional Studies, Delhi is a record of an original work done by me under the
guidance of Mr. Prakash Sharma, Assistant Professor, Law, VSLLS, and this research
paper is submitted as a project work for internal assessment and evaluation for the first
semester.

SWATI SINGH
 ACKNOWLEDGEMENT

I have taken sincere efforts towards the completion this project. However, it would not
have been possible without the kind support and help of many individuals and
organizations. I would like to extend my sincere thanks and gratitude to all of them. Firstly,
I’d like to thank Ms. Rashmi Salpekar, Dean, VSLLS for providing me with this
opportunity to work on a project through which I’m able to enhance my research skills
later required in the field of law and for always supporting the students in the best possible
manner. I’d like to extend my gratitude towards Mr. Prakash Sharma, Assistant Professor,
VSLLS for his guidance and constant supervision as well as for providing all the necessary
information and assistance regarding the project whenever required. I would like to express
my gratitude towards my parents for believing in me and displaying their co-operation and
encouragement which helped me in completion of this project. My thanks and
appreciations also go to my fellow classmates who have willingly helped me out with their
abilities whenever I had reached out to them.
 BASIC STRUCTURE DOCTRINE

Swati Singh*

Abstract

According to the Indian Constitution, the Parliament and the State Legislatures can make laws within their
jurisdictions. The power to amend the Constitution is only with the Parliament and not the state legislative
assemblies. However, this power of the Parliament is not absolute. The Supreme Court has the power to
declare any law that it finds unconstitutional void. As per the Basic Structure Doctrine of the Indian
Constitution, any amendment that tries to change the basic structure of the constitution is invalid.The
‘Doctrine of Basic Structure’ is a judge-made doctrine which was propounded by the Indian Judiciary on
24th April 1973 in Keshavananda Bharati Sripadagalvaru case to put a limitation on the amending powers of
the Parliament so that the ‘basic structure of the basic law of the land’ cannot be amended in exercise of its
‘constituent power’ under the Constitution. Though attempt was first made in the year 1967 in Golakh Nath
case by M. K. Nambyar to get it approved in the name of ‘necessary implied restraint on the amending power
of the Parliament’ but it took almost half decade for the Indian judiciary to overcome its hesitancy and
pronounce it in Keshavananda case the same thing what German Professor Dietrich Conrad already said in
his lecture that he delivered in India in 1965. The Constitution-makers gave the power to amend the
Constitution of India in the hands of the Parliament so as to cope up with the changing needs and demands of
‘we the people’ under Article 368 and to make the Constitution 'stand amended' but the Parliament in
exercise of its constituent power under Article 368 of the Indian Constitution can amend any of the provisions
of the Constitution and this power empowers the Parliament to amend even Article 368 itself which might led
the Constitution of India opposite of 'stand amended' i.e., 'sit amended'.

* Student, Vivekananda Institute of Professional Studies, New Delhi

INTRODUCTION:
The constitution of India is considered to be the ‘General Will’ of the people of India. It is
a document of immense importance. It is not only is the basic law of the land but the living
organic by which the other laws are to be created as per the requirement of the nation. The
life of a nation is dynamic, living, and organic its political, social and economic conditions
are always subject to change. Therefore, a Constitution drafted in one era and in a
particular circumstance may be found to be inadequate in another era in a different context.
It becomes necessary therefore to have machinery or some process by which the
constitution may be adopted from time to time as per the contemporary needs of the nation.
Such changes may be brought by different ways including formal method of amendment
contained in Article 368 of the constitution. Article 368 of the constitution does not
prescribe any express limitation upon the parliament’s amending power. Since the
commencement of the constitution, a constitutional battle has been fought, in this regard,
both in the courts as well as, inside the parliament. It appears that parliament has been
asserting its supremacy as enjoyed by the British parliament, but the Supreme Court has
been interpreting parliament as a creature of the constitution, exercising powers under and
not beyond the constitution. The constitution, though expressly confers amending powers
on the parliament, but it is the Supreme Court which is to finally interpret the scope of such
power and to spell out the limitations, if any, on such amending power. This battle between
the parliament and judiciary gave birth to one of the important doctrine- a limitation on
parliaments amending power which is known as the doctrine of Basic Structure. This
doctrine was evolved in the famous case of Keshvananda Bharti vs. State of Kerala
A.I.R 1973 SC popularly known as the Fundamental Rights Case in which the court
observed that article 368 of the Indian constitution did not enable parliament to alter the
‘Basic Structure or Framework’ The basic structure doctrine is a judicial creation whereby
certain features of the constitution of India are beyond the limits of amending powers of
parliament of the constitution. From then till very recently, this doctrine continues to be the
limitation upon the parliament’s power to amend the constitution, in spite of the fact that
Article 368 is really silent as to the width of amending power. There has been a long
journey almost two decades in carving an implied limitation in the form of doctrine of
basic structure on the on amendment powers of the parliament under article 368.

EVOLUTION OF BASIC STRUCTURE THEORY IN INDIA

Generally academicians always argue that the basic structure theory is the product of
long struggle and conflict between the Parliament and Judiciary. But, the author
opines that this doctrine came into existence not because of confront between
Judiciary and Parliament, but, because of framers passive approach, where they did not
give any scope and place for agrarian reforms under the provisions of the original
Constitution. Further, incorporating the right to property under the list of
fundamental rights was also one of the factors responsible for giving birth to this
doctrine by the Apex Court in 1973.
If framers had not brought right to property under Part-III of Indian Constitution, we
would have not seen the case of Kameshwar Singh v. State of Bihar4. Because of this
case, the then Prime Minister Jawaharlal Nehru brought Ninth Schedule5 read with
Article 31-B6 of the Indian Constitution in the first amendment in order to give much
importance to agrarian reforms which was one of the manifest of Indian Congress
before independence. If we would have not had this 1st amendment, Shanakri
Prasad’s7case would have not come into the picture. After Shankari prasad’s case,
basic structure doctrine was conceived first time in Sajjan Singh8 case. In these two
cases, Supreme Court in fact respected and upheld the decision of Parliament for
giving scope for agrarian reforms through Ninth Schedule.
Thereafter, Supreme Court in Golak Nath’s9 case said that amendment will also come
under the definition of ‘Law'. When ‘law' has limitations under Article 245 of the
Constitution (subject to the Provisions of the Constitution), ‘amendment’ will also
have limitations. Till date, there is no single express provision under the Indian
Constitution to limit the amendment power of the Parliament. But, for the first time,
Supreme Court in this case, imposed implied limitation upon the amending power
of the Parliament by adding the word ‘amendment’ under the definition of ‘law'
according to Article 13(3)(a). The petitioner Golak Nath spent money in this case
for no relief but for evolving the ‘doctrine of prospective overruling.’

3
The doctrine of “basic structure” is introduced into India by a German scholar, Dietrich Conrad. See
Dietrich Conrad, Limitation of Amendment Procedures and the Constituent Power, 15-16 Indian Year book of
International Affaris 375 (1970). For the D. Conrad's influence on the Indian Supreme Court, see A. G.
Noorani, “Behind the Basic Structure Doctrine: On India’s Debt to a German Jurist, Professor Dietrich
Conrad”, 18 FRONTLINE (April 28 - May 11, 2001), available at http://www.hinduonnet.com/fline/
fl1809/18090950.htm. 4 AIR 1951 Pat.91, SB.
5
Ninth Schedule was introduced in the Constitution by the Constitution First Amendment Act 1951. 6 Article
31-B: Validation of certain Acts and Regulations- Without prejudice to the generality of the provisions
contained in Article 31-A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the
provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act,
Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by any
provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the
contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to
repeal or amend it, continue in force.
7
Sankari Prasad Singh v. Union of India, AIR 1951SC 458.
8
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.
9
Golak Nath v. State of Punjab, (1967) 2 SCR 762; AIR 1967 SC.
As a result, to nullify the verdict, Parliament brought 24th amendment10 and added
clearly clause 3 under Article 368 and clause 4 under Article 13 stating that
Parliament is having power to amendment the Constitution is not a law making
power but it is a constituent power. Thereafter, constitutional validity of 24th
Amendment was challenged in the case of Keshavananda Bahrathi.11 Supreme
Court constitutional bench consisting of 13 judges12 (6:1:6) upheld the 24th
Amendment and said that Parliament under Article - 368 can bring an amendment to
any provisions of the Indian Constitution including fundamental rights but not for
the basic structure. This is how; the Supreme Court gave real birth to this basic
structure doctrine to check the uncontrolled power of the Parliament.
Therefore, the author strongly observes that because of the framers of the
Constitution attempt to include right to property in the list of fundamental rights
in the original Constitution. The doctrine of basic structure came into existence in
the Keshavananda Bahrathi’s case. Hence, right to property is the main cause and
responsible right for evolving this doctrine.

WHAT CONSTITUTES BASIC STRUCTURE?

People in India seem to have accepted, the basic structure doctrine in the same
manner as the Americans accepted judicial review of legislation claimed by the
Supreme Courts of the United States in Marbury v. Madison.13 In determining
what basic structure is, the Court will have to keep national consensus about such
basic structure in mind. It is impossible to articulate exhaustively the elements which
would constitute the basic structure of the Constitution. It will have tobe
articulated from case to case. During last few years the Supreme Court has

10 th
Article 13(4) and 368(3) were inserted through 24 Amendment. [13 (4) Nothing in this article
shall apply to any amendment of this Constitution made under article 368.]
11
Supra Note 2.
12
These Seven Judges were, Chief Justice Sikri, Justices Shelat, Hegde, Grover, Mukherjea,
Jaganmohan Reddy, and Khanna. The minority consisting of Justices Ray, Mathew, Beg, Dwivedi,
Palekar and Chandrachud held that Parliament had unlimited power of constitutional amendment.
See S.P.Sathe, “Judicial Review in India: Limits and Policy”. H.M. Seervai, in his analysis of the case in
his magnum opus, “Constitution of India” states that six out of the seven majority judges held that
there were implied and inherent limitations on the amending power of the Parliament, which
precluded Parliament from amending the Basic Structure of the Constitution. However Khanna J.
rejected this theory of implied limitations but held that the Basic Structure could not be amended
away.All Seven judges gave illustrations of what they considered Basic Structure comprised of.
13
I. Cranch 137 : 2 L.Ed. 60.
intervened with constitutional amendments on the ground of basic structure
initially only in five cases.14
In Kesavananda Bharati’s case, the majority of judges who admitted the existence
of “basic structure of the Constitution” did not agree with the list of the
principles included in this concept. Each judge drew a different list. Each judge
is able to define the basic structure concept according to his own subjective
satisfaction. This leads to the fact that the validity or invalidity of the Constitution
Amendment lies on the personal preference of each judge. In the event of this, the
judges will acquire the power to amend the Constitution, not specifically conferred
to them under the Constitution but given to the Parliament under Art.368 of the
Constitution. For that reason, as noted by Anuranjan Sethi, the basic structure
doctrine can be shown as a “vulgar display of usurpation of constitutional power by
the Supreme Court of India.”15
As illustrated in the case-law of the Indian Supreme Court, when there is no
explicit substantive limitation on the amending power, the attempt by a
constitutional court to review the substance of the constitutional amendments would
be dangerous for a democratic system in which the amending power belongs to the
people or its representatives, not to judges.

SUBJECT MATTER OF BASIC STRUCTURE THEORY

Supreme Court in series of cases considered following are the subject matters of basic
structure and same cannot be altered or amended by the Parliament under Article 368
of the Indian Constitution. They are:

 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
ofthe Constitution16.

14
Kesavananda Bharti v. Kerala, AIR 1973, SC 1461; Indira Gandhi v. Raj Narain, AIR 1975
SC 2299; Minerva Mills v.Union of India, AIR 1980 SC 1789; S.P. Sampat Kumar v. India, AIR
1987 SC 386; Sambamurthy v. A.P, AIR 1987 SC 663.
15
Anuranjan Sethi, Basic Structure Doctrine: Some ReÀections,
http://ssrn.com/abstract=835165, p. 6-8, 26-27 Similarly, S. P. Sathe concluded that “the Court
has clearly transcended the limits of the judicial function and has undertaken functions which
really belong to… the legislature” (S. P. Sathe, Judicial Activism: The Indian
Experience,6WASH. U. J. 29-108, at 88 (2001) Available at
http://law.wustl.edu/journal/6/p_29_Sathe.pdf. Likewise, T. R. Andhyarujina said that the
“exercise of such power by the judiciary is not only anti-majoritarian but inconsistent with
constitutional democracy” (T. R. Andhyarujina, ‘Judicial Activism and Constitutional
Democracy in India’10 (1992), quoted in Sathe, at 70.
16
Keshavananda Bahrathi Case Sikri, C.J. explained the concept of basic structure.
  The mandate to build a welfare state contained in the Directive
Principles of State Policy- Unity and Integrity of the nation-Sovereignty
of the country17.
 Democratic character of the polity-Unity of the country- Essential
features of the individual freedoms secured to the citizens- Mandate to
build a welfare state.
 Unity and integrity of the nation18 -Equality of status and the
opportunity
-Sovereign democratic republic-Justice - social, economic and political-
Liberty of thought, expression, belief, faith and worship. Democratic
character of the polity-Unity of the country- Essential features of the
individual freedoms secured to the citizens-Mandate to build a welfare
state.
 Democracy and the Preamble to the Indian Constitution
guarantees equality of status and of opportunity and that the
Rule of law is the basic structure of the Constitution19.
 The doctrine of equality enshrined in Art.14 of the Constitution,
which is the basis of the Rule of Law, is the basic feature of the
Constitution.20
 Independence of judiciary is a basic feature of the Constitution
as it is the sine qua non of democracy.21
 Secularism and Democracy and Federalism are essential
features of our Constitution and are part of its basic structure.22
 Judicial review is a part of the basic constitutional structure
and one of the basic features of the essential Indian
Constitutional Policy. Several

17 18
Shelat, J. and Grover, J. added three more basic features to the list. Hegde, J. and Mukherjea, J.
19
identified a separate and shorter list of basic features. Indira Gandhi v. Rajnarain AIR 1975 SC, 2299
20
(1975) 3 SCC 34; Kihoto Hollohon AIR, 1993, SC 412 Nachane, Ashwini Shivram v. State of
21
Maharashtra, AIR 1998 Bom 1; Raghunath Rao v. Union of India, AIR1993 SC 1267 Bhagwati, J.
Union of India v. Sankal Chand, Himmatlal Sheth, AIR 1977 SC 2328 : (1977) 4 SCC 193. and The Gupta
Case, AIR 1982 SC 149 at 197, 198, Kumar Padma Prasad v. Union of India, AIR 1992 SC 1213 : (2000) 4
SC 640, State of Bihar v. Bal Mukund Shah, AIR 2000 SC 1296, Supreme Court Advocates-records-
22
Association v. Union of India, (1993) 4 SCC 441; AIR 1994 SC 268. S.R. Bommai v. Union of India, AIR
1994 SC 1918, at 1976; Poudyal v. Union of India, (1994) Supp.1 SCC 324.
articles in the Constitution, such as Arts.32, 136, 226 and 227, guaranteejudicial
review of legislation and administrative action23

 The unity and integrity of the nation24 and Parliamentary system.25

Adding many subject matters to the Basic structure box, Judiciary has
completely tightened the hands of Parliament. As a general rule, Judiciary
has been adding many aspects as basic structure and directed the
parliamentarian notto change or alter above mentioned subject matters.

EFFECTS OF BASIC STRUCTURE THEORY ON AMENDMENT POWER

OF THE PARLIAMENT
The “Basic Structure” doctrine is the judge-made doctrine whereby certain
features of the Constitution of India are beyond the limits of the amending
powers of the Parliament. Though the Court held that the power of
Parliament to amend the Constitution was impliedly limited by the doctrine of
basic structure, it did not clearly define or explain what constitutes the basic
structure.26
According to Prof. Upendra Baxi,27 the effect of the decision in
Keshavananda Bharathi’s case on amendment power of the Parliament
rendered so far indicatethe following limitations alone, viz.,
 Total repeal of the Constitution would be violative of the basic structure,
 Any expansion of Art.368 to achieve consequence of total repeal
wouldsimilarly be violative of the basic structure,
 Any attempt to deprive the Court of its power of judicial review of
Constitutional amendment would also be transgressive of basic
structure,
 Freedoms guaranteed by Arts.14, 19 and 21 constitutes to limit the
powerof amendment,
 Any attempt to abrogate Part IV of the Constitution may violate
basicstructure and

23
L.Chandrakumar v. Union of India, AIR 1997 SC 1125; Waman Rao v. Union of India, AIR 1981 SC
271. 24 Raghunath Rao v. Union of India, AIR 1993 SC 1267. 25 In Raghunath Rao v. Union of India
case, AIR 1973 SC at 1535, 1603, 1628 and 1860. 26 Article on “Basic Structure Doctrine and its
Widening Horizons” by V.R. Jayadevan, published in CULR, Vol. 27, March 2003 p.333. 27 See article
on ‘Amendment of the Constitution in Constitutional Law of India,’ VOL.II, (Bar Council of India
Trust).
INSERTION OF CLAUSE 4 & 5 OF ARTICLE 368 (42nd AMENDEMENT)
After the decisions of the Supreme Court in Keshavnand Bharati and Indira
Gandhi28 cases, the Constitution (42nd Amendment) Act, 1976, was passed which
added two new clauses of 4 and 5 to Article 36829 of the Constitution expressly
prohibiting the review of the Constitutional amendments. The 42nd Amendment tried
to overreach the implication of Kesavananda Bharathi’s case.

But in Minerva Mills Ltd. v. Union of India,30 question arose that, whether the
amendments introduced by Sections 4 and 55 of the Constitution (42nd Amendment)
Act, 1976 damage the basic structure of the Constitution by destroying any of its
basic features or essential elements? The Supreme Court in its answer considered
clause (4) and (5) of Art. 368 that were inserted by the 42nd Amendment and held
them to be unconstitutional since they damage and destroy the basic structure of the
Constitution. On the whole, Minerva Mills31 is a comprehensive decision bringing
clarity to the doctrine of basic structure. The holding enables the Indian Constitution
and the Indian legal system to retain their identity even when attempts have been
made to alter them for bringing about social revolution through legislation.32

After this case, Supreme Court in Waman Rao v. Union of India33 once again
reiterated and applied the doctrine of basic features of the Constitution. In
I.R.Coelho case,34 the Constitution Bench observed that, according to Waman Rao
28
AIR 1975 SC 2299.
29
Clause (4) Art. 368 stipulated that “No constitutional amendment (including the provision of Part
III) or purporting to have been made under Art.368 whether before or after the commencement of
the Constitution (42nd Amendment) Act, 1976 shall be called in any court on any ground.” Therefore
in India, as of 1976, the Supreme Court was precluded from reviewing constitutionality of
Constitutional amendments. There is no doubt on this issue because clause (4) of Art.368 explicitly
prohibits the judicial review of constitutional amendments. Moreover, clause 5 of the same Article
states that “there shall be no limitation whatever on the constituent power of Parliament to amend by
way of addition, variation or repeal of the provisions of the Constitution under this Article.” This
clause also provides that constitutional amendments cannot be judicially reviewed because Indian
Constitution does not impose any limitations on the power of Indian Parliament to amend the
Constitution.
30
(1981) 1 SCR 206, (AIR 1980 SC 1789)
31
Ibid
32
V.R. Jayadevan's ‘Basic Structure Doctrine and its Widening Horizons, published in CULR (2003)
p.349.
33
AIR 1981 SC 271.
34
AIR 2007 SC 137.
and Ors. v. Union of India and Ors35 amendments to the Constitution made on or after
24th April, 1973 by which the Ninth Schedule was amended from time to time by
inclusion of various Acts, regulations therein were open to challenge on the ground
that they, or any one or more of them, are beyond the constituent power of Parliament
since they damage the basic or essential features of the Constitution or its basic
structure.

THE CONSTITUTION 45th AMENDMENT BILL,1978

It is really not possible to exhaustively enumerate the aspects of the basic structure of
the Constitution. Such an attempt was made by the Constitution (Forty-Fifth)
Amendment Bill, 1978 (CB 45), which was undertaken during the short period of
rule of the Janatha Government. In this, the following features were mentioned as
features requiring special process of referendum for their amendment. They are: (i)
The secular or democratic character of the Constitution; (ii) Rights of citizens under
Part III; (iii) Free and fair elections to the House of the People or the Legislative
Assemblies of states on the basis of adult suffrage; (iv) The independence of the
Judiciary and (v) Amendment of the provision for the entrenchment of the above
basic features and the requirement for the referendum. If an amendment of the
Constitution was to be made for the amendment of any of the above matters, such
an amendment had to be approved by the people at a referendum. The referendum for
the purpose of seeking the approval of the people of India for any amendment of the
nature referred to in the above provision was to be through a poll and all persons
eligible for voting in the elections to the Lok Sabha were to vote in such a poll.
Not less than fifty one percent of the total number of eligible voters must actually
vote in the poll and the amendment was deemed to be approved at the poll, if it was
supported by a majority of the votes actually polled. The opposition to the
amendment was a tacit admission of the basic structure doctrine. The opposition to
the amendment was not because it had entrenched the basic structure but because it
provided for even the destruction of such basic structure through a referendum.
Whether such matters could be left to popular will was also doubted. Seervai
observed.36

35
Supra Note 33. 36 H.M. Seervai, 2 Constitutional Law, p. 2702.
APPLICATION OF BASIC STRUCTURE THEORY IN APPOINTMENT OF
JUDGES OF HIGHER COURTS
When it comes to the matter pertaining to the appointment of Supreme Court
judges under NJAC, it is really an interesting part to discuss how all three organs of
the Government have taken decisions without any rationality. When the basic structure
doctrine was evolved by majority of the judges in Keshavanada Bahrathi’s case,
Judges who were in the Majority group had to face situations of humiliation and
while appointing as chief justice of India after Justice S.M. Sikri’s retirement (Former
CJ of Supreme Court). Justices J.M. Shelat, K.S.Hegde, A.N. Grover, though they
posses seniority, government was not appointing any one among the three as chief
justice of India, because these three judges were also responsible for upholding the
doctrine of basic structure. The three superseded judges were a party to the majority
opinion of the historic Keshavananda Bharti case which held that the Parliament’s
right to amend the Constitution did not include the right to amend, abrogate or
destroy the basic structure of the Constitution. This judgement was delivered on
the eve of superseding of judges. Needless to say, Justice A.N. Ray agreed with the
minority view which upheld Parliament’s supremacy to amend the Constitution.
Finally, Executive appointed A.N Ray as Chief Justice of India in 1973, violating
the Constitutional conventions i.e., seniority in case of appointing CJI was considered
as darkest day in the history of the Constitution.

In another incident, proclamation of Emergency on June 26, 1975 was an attempt to

destroy Indian democracy. While a large section of the Indian judiciary decided to
resist the onslaught on democratic institutions like the press and judiciary, a section of
the Supreme Court surrendered. The unanimous verdict of nine High Courts relating
to Habeas Corpus-that Article 21 is not the sole repository of life and liberty and that
a detainee has a right of Habeas Corpus during the emergency- was reversed by a 4:1
verdict of the Supreme Court. The High Courts displayed courage whether it was on
the matter of a detainee’s right of medical treatment or his interviews with his
relatives, or the right of a lawyers’ association to organise a meeting, or to stay a
High Court Judge’s arbitrary transfer. The Supreme Court, however, showed
subservience in the Habeas Corpus case45. Justice Khanna and
45
Chief Justice A.N. Ray said, “There is no record of any life of an individual being taken away
either in our country during Emergency or in England or America during the emergency in their
countries. It can never be reasonably assumed that such a thing will happen. Some instances from
different countries were referred to by some counsel for the respondents as to what happened there
when people were murdered in gas chambers or people were otherwise murdered.”
other judges of various high courts who displayed courage were punished for their
independent views. Fourteen judges of high courts who were party to various
judgements, who were against the government, were transferred from one high court
to another without their consent. Executive prepared a list of 52 inconvenient judges.
Proposals were mooted for the establishment of a superior council over the
judges. Upon the retirement of Justice A.N. Ray, the next senior most judge, Justice
H.R. Khanna, was denied his right to become the Chief Justice of India. Justice R.N.
Aggarwal and Justice U.R. Lalit, who were additional judges of the Delhi and
Bombay High Courts respectively, were not confirmed.46

Thereafter, issue pertaining to primacy with respect to appointment of

judges of Supreme Court was discussed in S.P. Gupta v. Union of India47, S.C.
Advocates on Record Association v. Union of India48 and Finally, in S.C.
Advocates on Record Association v. Union of India50, the Supreme Court
declared that the Constitution (Ninety-ninth Amendment) Act, 2014 is
unconstitutional. On the basis of the conclusions given by Hon’ble judges in
Justice Chandrachud expressed his optimism by writing that “counsel after
counsel expressed the fear that during the Emergency, the executive may whip
and strip and starve the detainee and if this be one’s judgement even shoot him
down. Such misdeeds have not tarnished the record of free India and I have a
diamond bright, diamond hard hope that such things will never come to
pass.Justice P.N. Bhagwati agreed with the majority and said, “The
apprehensions and fears voiced on behalf of the detainees may not altogether be
ruled out. It is possible that when vast powers are vested in the executive, the
exercise of which is immune from judicial scrutiny, they may sometimes be
abused and innocent persons may be consigned to temporary detentions. But
merely because a power may sometimes be abused is no ground for denying the
existence of the power. All power is likely to be abused I have always leaned in
favour of upholding personal liberty, for I believe it is one of the most cherished
values of mankind. Without it life would not be worth living.
46
http://www.pucl.org/from-archives/81july/judiciary.htm.
47
AIR 1982 SC 149, the first judge's case (S.P.Gupta v. Union of India AIR 1982 SC 149) gave the
primacy to the executive in appointments to the higher judiciary, declaring that the advice of the CJI’s
recommendation on judicial appointments and transfers can be refused for “cogent reasons.”
48
AIR 1994 SC 268, the majority verdict gave back CJI's power over judicial appointments and
transfers. It says the CJI only need to consult two senior-most judges. Court held that the role of the CJI
is primal in nature because this being a topic within the judicial family, the Executive cannot have an
equal say in the matter, the verdict reasoned. However, confusion prevails as the CJIs start taking
unilateral decisions without consulting two colleagues. The President is reduced to only an approver.
50
Supreme Court Advocates-on-Record Association v. Union of India (Writ Petition (C) No.83 of 2015
their respective judgments it can be said that the 2014 amendment is being struck
down as it is against the principles of ‘separation of powers’ and ‘independence of
judiciary’ and thus violative of the basic structure of the Constitution.
Let examine the role of legislature, executive and judiciary with respect to
appointment of judges of the Supreme Court. Because, Constitution gave the
primacy to the executive in appointments to the higher judiciary, they violated
constitutional conventions in appointing chief justice of India twice in 1973 and
1977. As a result, after 1993, Judiciary adopted the method of Collegium system
which does not have any constitutional basis or mandate from 1993 to 2014; even
the Parliament did not make any attempt to constitutionalise the Collegium system.
Finally, in 2014, the NDA government introduced the Constitutional (121st
Amendment) Bill, which was subsequently passed by both houses of the Parliament,
ratified by 16 state legislatures and assented by the President; NJAC, Act 2014 and
the Constitutional Amendment Act came into force from 13 April 2015. By this
NJAC case The Constitution (Ninety-ninth Amendment) Act, 2014 and The
National Judicial Appointments Commission Act, 2014 have been declared null and
void by the court which is the issue in hand.51
Judiciary nullified the Act of NJAC which is against the principles of ‘separation of
powers’ and violative of the basic structure of the constitution. But, Judiciary instead
of declaring the serious attempt of the Parliament as unconstitutional, they could
have amended in the composition of NJAC itself while pronouncing judgement.
Further, If NDA government had incorporated the recommendations of
Venkatachaliah Commission,52 judiciary might not have declared NJAC Act, is
unconstitutional. At present, the Executive is not showing their interest in filling
vacancies of post in higher judiciary which is really a great threat to the democracy.
Conflict between judiciary and executive with respect to appointment of judges

51
http://www.legallyindia.com/views/entry/njac-or-collegium-the-need-of-an-ideal-system-for-appointments-to-
the-higher-judiciary.
52
In 2000, the Venkatachaliah Commission was set up by NDA government to review the working of the
constitution. In its report the commission recommended the formulation of a judicial commission comprising of:

(1) The Chief Justice of India: Chairman

(2) Two senior most judges of the Supreme Court: Member
(3) The Union Minister for Law and Justice: Member
(4) One eminent person nominated by the President after consulting the Chief Justice of India: Member.
has made democracy in danger. In action of the Executive with respect to Non-
appointment of judges in lower and higher judiciary within stipulated time leads, not
only to violation of basic rights of an individual but it also affects to ensure Centre-
State relations.

CONCLUSION
If framers had inserted express clause under Constitution of India regarding limitation
of amending power of the Parliament under Art.368 itself and provisions for agrarian
reforms and had not incorporated right to property in the list of fundamental right in
the original constitution itself , there would not have been a situation of introducing
this basic structure doctrine and very importantly, if the Parliament had exercised its
amending power without disturbing the Supremacy of the Constitution in the case of
Ninth Schedule, judiciary would not have made any attempt to propound the doctrine
of basic structure. Violating constitutional conventions regarding appointment of
the chief justice of India by the Executive and applying application of basic structure
doctrine for all cases as a general rule including appointment of judges by judges are
against the theory of separation of power. Therefore, author suggests that:

 All three organs of the government should work within the frameworks
of the Constitution to uphold constitutional supremacy.

 There is a need to incorporate some important features expressly by

amending Article 368 of the Constitution.

 Recognition of subject matters as basic structure should be decided by

constitutional bench consisting more than 10 judges in an exceptional
cases.
.