UNIVERSITY OF LEGAL STUDIES

ORIGIN AND DEVELOPMENT OF

THEORY OF BASIC STRUCTURE

SUBMITTED BY
ISHU SHARMA
(23MLL10087)
 INTRODUCTION

To say that Kesavananda Bharati v, State of Kerala1 is a landmark case on the Indian Constitution
is dot enough. Even though the circumstances which gave rise to the case are peculiarly Indian, the
"basic structure" doctrine enunciated in this case will, in time, affect juristic learning in a very
fundamental way. Broadly speaking, the "basic structure" asserts the provocative proposition that
even a sovereign legislative body with plenary powers cannot 'amend' the constitution of a country
(in this instance, India) in a manner which would weaken the "basic structure" or "principles"
underlying that country's constitution. We will begin by analyzing the judgments after setting them
in the peculiar "Indian" circumstances from which they arose. Having done this, we will consider
the juristic implications of the "basic structure" doctrine.

Very few lawyers in England and America have taken an interest in the Indian Supreme Court's
latest contribution to the discussion on parliamentary sovereignty. What were at issue, of course,
were not just the sovereignty question, but the nature and viability of the Indian Constitution itself.
The Indian Constitution was designed to achieve certain social and economic goals2 and at the
same time contained certain provisions designed to protect individual rights3. A few months after
the Constitution was promulgated Parliament and the state legislatures discovered that the
libertarian part of the Constitution made certain nationalization and positive discrimination
schemes impossible.' This necessitated the First Amendment Act, 1951, which the Supreme Court
declared not to be invalid in a case decided in the same year. In fact, the Court went one step
further and suggested that the plenary power to amend the Constitution was unlimited. Seventeen
amendments later when the question wall reagitated before the Supreme Court, at least two judges
were prepared to accept that there were some implied limitations on the otherwise plenary power to
amend the Constitution." In 1957 in the famous Golak Nath case, the Supreme Court by a 6: 5
ruling decided that an "amendment" was a "law" within the meaning of part III of the Constitution
with the result that the validity of a law to amend the fundamental rights part of the Constitution
had to be tested by the very provisions it sought to amend," But, aware that this new decision
would pose problems, the Court used a rather twisted version of the doctrine of prospective
overruling to ensure that the amendments were valid both prospectively and retrospectively. The
Court seemed merely to assert that future amendments would be somewhat more strictly
construed."

The Pre-Kesavanada position

Parliament's authority to amend the Constitution, particularly the chapter on the fundamental rights
of citizens, was challenged as early as in 1951. After independence, several laws were enacted in
the states with the aim of reforming land ownership and tenancy structures. This was in keeping
with the ruling Congress party's electoral promise of implementing the socialistic goals of the
Constitution [contained in Article 39 (b) and (c) of the Directive Principles of State Policy] that
required equitable distribution of resources of production among all citizens and prevention of
concentration of wealth in the hands of a few. Property owners -- adversely affected by these laws
-- petitioned the courts. The courts struck down the land reforms laws saying that they transgressed
1
(1973) 4 SCC 225; AIR 1973 SC 1461 A Critique of its Approach to the Recent Constitutional Crisis (Sterling,
Delhi, 1976).
2
Articles 36-51, The Constitution of India, part IV: Directive Principles of State Policy
3
Articles 12-35, part III, Fundamental Rights.
2
the fundamental right to property guaranteed by the Constitution. Piqued by the unfavorable
judgments, Parliament placed these laws in the Ninth Schedule4 of the Constitution through
the First and Fourth amendments (1951 and 1952 respectively), thereby effectively removing them
from the scope of judicial review.

[Parliament added the Ninth Schedule to the Constitution through the very first amendment in
1951as a means of immunizing certain laws against judicial review. Under the provisions of Article
31, which themselves were amended several times later, laws placed in the Ninth Schedule --
pertaining to acquisition of private property and compensation payable for such acquisition --
cannot be challenged in a court of law on the ground that they violated the fundamental rights of
citizens. This protective umbrella covers more than 250 laws passed by state legislatures with the
aim of regulating the size of land holdings and abolishing various tenancy systems. The Ninth
Schedule was created with the primary objective of preventing the judiciary - which upheld the
citizens' right to property on several occasions - from derailing the Congress party led government's
agenda for a social revolution.

Property owners again challenged the constitutional amendments which placed land reforms laws
in the 9th Schedule before the Supreme Court, saying that they violated Article 13 (2) of the
Constitution.

Article 13 (2) provides for the protection of the fundamental rights of the citizen5. Parliament and
the state legislatures are clearly prohibited from making laws that may take away or abridge the
fundamental rights guaranteed to the citizen. They argued that any amendment to the Constitution
had the status of a law as understood by Article 13 (2). In 1952 (Sankari Prasad Singh Deo v.
Union of India6) and 1955 (Sajjan Singh v. Rajasthan7), the Supreme Court rejected both arguments
and upheld the power of Parliament to amend any part of the Constitution including that which
affects the fundamental rights of citizens. Significantly though, two dissenting judges in Sajjan
Singh v. Rajasthan case raised doubts whether the fundamental rights of citizens could become a
plaything of the majority party in Parliament.

4
Originally, the Constitution guaranteed a citizen, the fundamental right to acquire hold and dispose of property under
Article 19f. Under Article 31 he could not be deprived of his property unless it was acquired by the State, under a law
that determined the amount of compensation he ought to receive against such an acquisition. Property owned by an
individual or a firm could be acquired by the State only for public purposes and upon payment of compensation
determined by the law. Article 31 has been modified six times -- beginning with the First amendment in 1951 --
progressively curtailing this fundamental right. Finally in 1978, Article 19f was omitted and Article 31 repealed by the
44th amendment. Instead Article 300A was introduced in Part XII making the right to property only a legal right. This
provision implies that the executive arm of the government (civil servants and the police) could not interfere with the
citizen's right to property. However, Parliament and state legislatures had the power to make laws affecting the citizens'
right to property.]
5
Article 13 (2) states- "The State shall not make any law which takes away or abridges the rights conferred by this Part
and any law made in contravention of this clause shall, to the extent of the contravention, be void." The term Part refers
to Part III ofthe Constitution which lists the fundamental rights of the citizen.
6
Sankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458

7
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.

3
 The Golaknath verdict
In 1967 an eleven judge bench of the Supreme Court reversed its position. Delivering its 6:5
majority judgments in the Golaknath v. State of Punjab case, Chief Justice Subba Rao put forth the
curious position that Article 3688, that contained provisions related to the amendment of the
Constitution, merely laid down the amending procedure. Article 368 did not confer upon
Parliament the power to amend the Constitution. The amending power of Parliament arose from
other provisions contained in the Constitution (Articles 245, 246, 248) which gave it the power to
make laws. 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).

The majority judgment invoked the concept of implied limitations on Parliament's power to amend
the Constitution. This view held that the Constitution gives a place of permanence to the
fundamental freedoms of the citizen. In giving the Constitution to them, the people had reserved
the fundamental rights9 for themselves. Article 13, according to the majority view, expressed this
limitation on the powers of Parliament. Parliament could not modify, restrict or impair fundamental
freedoms due to this very scheme of the Constitution and the nature of the freedoms granted under
it. The judges stated that the fundamental rights were so sacrosanct and transcendental in
importance that they could not be restricted even if such a move were to receive unanimous
approval of both houses of Parliament.

In other words, the apex court held that some features of the Constitution lay at its core and
required much more than the usual procedures to change them.

The phrase 'basic structure' was introduced for the first time by M.K. Nambiar and other counsels
while arguing for the petitioners in the Golaknath case, but it was only in 1973 that the concept
surfaced in the text of the apex court's verdict.

Emergence of the Basic Structure Concept- the Kesavanada milestone

Inevitably, the constitutional validity of these amendments was challenged before a full bench of
the Supreme Court (thirteen judges). Their verdict can be found in eleven separate judgments. Nine
judges signed a summary statement which records the most important conclusions reached by them
in this case. Nevertheless, the seminal concept of ‘basic structure' of the Constitution gained
recognition in the majority verdict.

All judges upheld the validity of the Twenty-fourth amendment saying that Parliament had the
power to amend any or all provisions of the Constitution. All signatories to the summary held that
the Golaknath case had been decided wrongly and that Article 368 contained both the power and
the procedure for amending the Constitution.

However they were clear that an amendment to the Constitution was not the same as a law as
understood by Article 13(2).

8
Power of Parliament to amend the Constitution and Procedure therefor: (1) Notwithstanding anything in this
Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any
provision of this Constitution in accordance with the procedure laid down in this article.

9
Article 12 to 35 contained in Part III of the Constitution deal with Fundamental Rights
4
It is necessary to point out the subtle difference that exists between two kinds of functions
performed by the Indian Parliament:

a) It can make laws for the country by exercising its legislative power and

b) It can amend the Constitution by exercising its constituent power.

Constituent power10 is superior to ordinary legislative power11. Unlike the British Parliament which
is a sovereign body (in the absence of a written constitution), the powers and functions of the
Indian Parliament and State legislatures are subject to limitations laid down in the Constitution.
The Constitution does not contain all the laws that govern the country. Parliament and the state
legislatures make laws from time to time on various subjects, within their respective jurisdictions.
The general framework for making these laws is provided by the Constitution. Parliament alone is
given the power to make changes to this framework under Article 368. Unlike ordinary laws,
amendments to constitutional provisions require a special majority vote in Parliament.

Most importantly seven of the thirteen judges in the Kesavananda Bharati case, including Chief
Justice Sikri who signed the summary statement, declared that Parliament's constituent power was
subject to inherent limitations. 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. There was no unanimity of opinion within the majority view either.

Sikri, C.J. explained that the concept of basic structure included:

• 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

Shelat, J. and Grover, J. added two more basic features to this list:

• the mandate to build a welfare state contained in the Directive Principles of State Policy

• unity and integrity of the nation

Hegde, J. and Mukherjea, J. identified a separate and shorter list of basic features:

• sovereignty of India

10
the authority to amend the constitution and the ability to pass any law
11
the capacity of a legislative chamber or actors within that chamber to thwart, encourage, or compel actions by others
5
• 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

Jaganmohan Reddy, J. stated that elements of the basic features were to be found in
the Preamble12 of the Constitution and the provisions into which they translated such as:

• sovereign democratic republic

• parliamentary democracy

• three organs of the State

He said that the Constitution would not be itself without the fundamental freedoms and the
directive principles.

Only six judges on the bench (therefore a minority view) agreed that the fundamental rights of the
citizen belonged to the basic structure and Parliament could not amend it.

The Kesavananda Review Bench

Within three days of the decision on the Election case Ray, C.J. convened a thirteen judge bench
toreview the Kesavanada verdict on the pretext of hearing a number of petitions relating to land
ceiling laws which had been languishing in high courts. The petitions contended that the
application of land ceiling laws violated the basic structure of the Constitution. In effect the
Review bench was to decide whether or not the basic structure doctrine restricted Parliament's
power to amend the Constitution. The decision in the Bank Nationalisation case was also up for
review.

Meanwhile Prime Minister Indira Gandhi, in a speech in Parliament, refused to accept the dogma
of basic structure.

It must be remembered that no specific petition seeking a review of the Kesavananda verdict filed
before the apex court- a fact noted with much chagrin by several members of the bench.
N.N.Palkhivala appearing for on behalf of a coal mining company eloquently argued against the
move to review the Kesavananda decision. Ultimately, Ray, C.J. dissolved the bench after two days
of hearings. Many people have suspected the government's indirect involvement in this episode
seeking to undo an unfavourable judicial precedent set by the Kesavananda decision. However no
concerted efforts were made to pursue the case.

The declaration of a National Emergency in June 1975 and the consequent suspension of
fundamental freedoms, including the right to move courts against preventive detention, diverted
theattention of the country from this issue.

12
According to the preamble, the constitution of India has been pursuance of the solemn resolution of the people of
India to constitute India into a 'Sovereign Socialist Secular Democratic Republic', and to secure well-defined objects
set forth in the preamble. Sovereignty denotes supreme and ultimate power
6
 Basic structure doctrine reaffirmed- the Minerva Mills and Waman Rao cases
Within less than two years of the restoration of Parliament's amending powers to near absolute
terms, the 42nd amendment was challenged before the Supreme Court by the owners of Minerva
Mills13 (Bangalore) a sick industrial firm which was nationalised by the government in 1974.

Mr. N.A. Palkhivala, renowned constitutional lawyer and counsel for the petitioners, chose not to
challenge the government's action merely in terms of an infringement of the fundamental right to
property. Instead, he framed the challenge in terms of Parliament's power to amend the
Constitution.

Mr. Palkhivala argued that Section 55 of the amendment14 had placed unlimited amending power in
the hands of Parliament. The attempt to immunize constitutional amendments against judicial
review violated the doctrine of basic structure which had been recognized by the Supreme Court in
the Kesavananda Bharati and Indira Gandhi Election Cases. He further contended that the
amended Article 31C was constitutionally bad as it violated the Preamble of the Constitution and
the fundamental rights of citizens. It also took away the power of judicial review.

Chief Justice Y.V. Chandrachud, delivering the majority judgement (4:1), upheld both contentions.
The majority view upheld the power of judicial review of constitutional amendments. They
maintained that clauses (4) and (5) of Article 368 conferred unlimited power on Parliament to
amend the Constitution. They said that this deprived courts of the ability to question the
amendment even if it damaged or destroyed the Constitution's basic structure.

The judges, who concurred with Chandrachud, C.J. ruled that a limited amending power itself is a
basic feature of the Constitution.

Bhagwati, J. the dissenting judge also agreed with this view stating that no authority howsoever
lofty, could claim to be the sole judge of its power and actions under the Constitution.

The majority held the amendment to Article 31C unconstitutional as it destroyed the harmony and
balance between fundamental rights and directive principles which is an essential or basic feature
of the Constitution. The amendment to Article 31C remains a dead letter as it has not been repealed
or deleted by Parliament. Nevertheless cases under it are decided as it existed prior to the Forty-
second amendment.

In another case relating to a similar dispute involving agricultural property the apex court, held that
all constitutional amendments made after the date of the Kesavananda Bharati judgement were
open to judicial review. All laws placed in the Ninth Schedule after the date of the Kesavananda
Bharati judgement were also open to review in the courts. They can be challenged on the ground
that they are beyond Parliament's constituent power or that they have damaged the basic structure
of the Constitution. In essence, the Supreme Court struck a balance between its authority to
interpret the Constitution and Parliament's power to amend it.

13
Minerva Mills vs. Union of India AIR 1980 SC 1789
14
Section 55 prevented any constitutional amendment from being "called in question in any Court on any ground". It
also declared that there would be no limitation whatever on the power of Parliament to amend the Constitution.
7
 Concluding Observation
The theory of basic structure, primarily associated with the Indian legal and constitutional context,
has evolved significantly over time. Here are some concluding observations on its origin and
development:
Origin in Indian Constitutionalism: The theory of basic structure finds its roots in the Indian
Constitution, particularly through judicial interpretation. It was first articulated in the historic
Kesavananda Bharati case (1973) by the Supreme Court of India. This case marked a significant
turning point in Indian constitutional jurisprudence.
Evolution through Landmark Cases: The concept of basic structure has evolved and gained clarity
through various landmark cases. Cases like Golaknath (1967), Sajjan Singh (1965), and Minerva
Mills (1980) played a crucial role in shaping the doctrine.
Core Principles: The theory of basic structure asserts that there are certain core principles and
features of the Indian Constitution that cannot be amended by the Parliament. These include
federalism, secularism, democracy, and the rule of law15. These principles are deemed to be beyond
the amending power of the legislature.
Judicial Activism: The development of the basic structure doctrine reflects a degree of judicial
activism16. The judiciary has taken upon itself the responsibility of safeguarding the fundamental
values and spirit of the Constitution. This has led to a balance of power between the three branches
of government.
Global Influence: While the theory of basic structure has its roots in India, it has influenced
constitutional jurisprudence in other countries. The idea of protecting core constitutional values
from amendments has found resonance in various nations' legal systems.
Limitation on Amendment Powers: The theory of basic structure places a limitation on the
amendment powers of the Indian Parliament. While it doesn't deny the possibility of constitutional
amendments, it ensures that any changes made do not undermine the foundational principles of the
Constitution.
Ongoing Debate: The theory of basic structure remains a subject of debate and discussion in the
Indian legal and political sphere. Questions regarding the scope and boundaries of the basic
structure are continuously examined by courts and scholars.
Balancing Act: It is important to strike a balance between the need for flexibility in a changing
world and the imperative to protect the essence of the Constitution. This balancing act is at the
heart of the basic structure doctrine.
In conclusion, the theory of basic structure has significantly impacted the Indian constitutional
landscape. It represents an important tool for the protection of fundamental constitutional principles
and has been a driving force behind judicial review in India. While it has evolved and faced
challenges over the years, it remains a pivotal aspect of Indian constitutional law, ensuring that the
spirit and core values of the Constitution are preserved.

15
Rule of Law is borrowed from United Kingdom which means law is supreme
16
Article 142 of the Indian Constitution, which gives the Supreme Court the authority to issue an order to ensure full
justice in the case at hand, is the most significant provision in relation to judicial activism.
8
 Bibliography
STATUTES

 The constitution of India (1950)

BOOKS

 The crisis of the Indian Legal System (1982)

 Working a democratic constitution: The Indian Experience (1999)
 V.N. Shukla “Constitution of India (1987)”

Various Journals and Articles

Websites
 https://byjus.com/free-ias-prep/landmark-cases-relating-basic-structure-constitution/
 https://constitutionnet.org/vl/item/basic-structure-indian-constitution/
 https://timesofindia.indiatimes.com/readersblog/legal-paradigm/evolution-of-basic-
structure-doctrine-in-india-46758/