The 'Basic Structure' doctrine post-Kesavananda Bharati
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An Implied Limit on an Express Power
The question of how far a Parliament may go in rewriting its own Constitution is among the most consequential in any constitutional democracy. In India, that question was settled — or at least, given its most durable answer — on 24 April 1973, when the Hon'ble Supreme Court pronounced judgment in Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
The verdict of that thirteen-judge bench introduced what has since been called the Basic Structure doctrine: the proposition that Article 368 of the Constitution of India, which confers on Parliament the power to amend the Constitution, does not enable Parliament to alter the basic structure or framework of the Constitution.
The doctrine is, it must be said at the outset, a judicial innovation. It is not found in any express provision of the Constitution. The majority in Kesavananda derived it as an implied limitation from an interpretation of the word 'amend' in Article 368 itself — not from the Preamble, though the objectives specified in the Preamble were referred to in formulating what those basic features actually are.
Fifty-two years after Kesavananda, the doctrine remains the single most significant constraint on Parliament's constituent power. It has survived determined legislative efforts to abrogate it, has been applied across domains from property rights to judicial appointments, and continues to generate controversy precisely because the Supreme Court has never been able to enumerate a fixed, exhaustive list of what the basic features are.
The Pre-History: From Shankari Prasad to Golak Nath
Shankari Prasad and Sajjan Singh: The Legislature Prevails
The controversy over the scope of the amending power predates Kesavananda by more than two decades. In Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458, the Supreme Court, faced with a challenge to the Constitution (First Amendment) Act, 1951, held that an Amendment Act passed in exercise of the power conferred by Article 368 was not 'law' within the meaning of Article 13(2). Constitutional amendments were therefore not subject to the fundamental rights test. Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845, affirmed this position.
On this view, Parliament's constituent power was plenary. It could, in theory, amend any provision of the Constitution, including the fundamental rights chapter, without transgressing any implied limit.
Golak Nath: The Pendulum Swings
By 1967, the mood on the Bench had changed. In Golak Nath I.C. v. State of Punjab, AIR 1967 SC 1643, an eleven-judge majority took the view that Parliament could not amend the Constitution so as to abridge or take away any of the fundamental rights guaranteed by Part III. The majority held, in particular, that the Preamble could not impose any implied prohibition or limitation on the power to amend contained in Article 368, but that the Fundamental Rights themselves were not amenable to amendment.
Parliament responded by enacting the Constitution (24th Amendment) Act, 1971, which inserted Clause (4) in Article 13 and Clause (1) in Article 368, specifically providing that an amendment passed in accordance with Article 368 would not be 'law' within Article 13, and that the validity of a Constitution Amendment Act would not be open to question on the ground that it takes away or affects a fundamental right. The 24th Amendment was a direct legislative overruling of Golak Nath.
Kesavananda Bharati: The Watershed
It was against this backdrop — of a legislature determined to make its amending power absolute — that the case of Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 : (1973) 4 SCC 225, came to be heard by the largest bench ever assembled in the Supreme Court of India.
The Court's Method: Reading 'Amend' in Article 368
The majority of the thirteen-judge bench overruled Golak Nath and upheld the Constitution (24th Amendment) Act, 1971 as valid. So far, it was a legislative victory. But the majority simultaneously held that Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution. This was not derived from the Preamble but from the word 'amend' in Article 368 itself — 'amend' does not mean 'destroy' or 'abrogate'.
The consensus of the majority judgments, as later explained by a Constitution Bench in Waman Rao v. Union of India, AIR 1981 SC 271, was that the basic structure of the Constitution could not be destroyed or damaged by amending the Constitution in exercise of the power under Article 368. Any amendment that had such an effect was beyond Parliament's constituent competence and therefore void.
The second part of Article 31C, as it originally stood — which ousted the jurisdiction of courts to examine whether a law enacted under the Directives actually gave effect to those Directives — was struck down as offending against the basic structure, specifically because judicial review was held to be a basic feature of the Constitution which could not be done away with by amendment under Article 368.
The Preamble as a Mirror of Basic Structure
Seven judges out of thirteen in Kesavananda held that the objectives specified in the Preamble contain the basic structure of the Constitution, which cannot be amended in exercise of the power under Article 368.
The Preamble had, prior to Berubari, been treated as no part of the Constitution and as conferring no implied limitation.
Kesavananda revised that position: the majority held that the Preamble should be interpreted as a part of the Constitution, and
that while it did not itself confer substantive power or limitation, the objectives it enshrined — Justice, Liberty, Equality, Fraternity — were reflective of the basic structure.
Recognised Elements of the Basic Structure
The Supreme Court has not drawn up a single, closed list of basic features. The catalogue has been built incrementally, case by case, over more than five decades since Kesavananda. The following features have been judicially recognised as part of the basic structure.
Secularism
Secularism was identified as a basic feature of the Constitution even in Kesavananda itself, and reiterated by Justice KHANNA, J., to mean that the State shall not discriminate against any citizen on the ground of religion only (Articles 15(1) and 16(2)). In Indira Nehru Gandhi v. Rajnarain, AIR 1975 SC 2299, Justice CHANDRACHUD, J., explained secularism as a basic feature to mean that the State shall have no religion of its own and all persons shall be equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
The nine-judge bench in S.R. Bommai v. Union of India, AIR 1994 SC 1918, took the doctrine further, holding that secularism as a basic feature means not only that the State is prohibited from establishing any religion of its own, but that it is prohibited from identifying itself with or favouring any particular religion, for the State is enjoined to accord equal treatment to all religions. The secular character of the Constitution, several judges held, is a matter of conclusion to be drawn from the various Articles of the Constitution, particularly Articles 14 to 16, 25 to 30, and 51A(e). Secularism is described as an unalienable segment of the basic structure of the country's political system.
Rule of Law and Equality
The Rule of Law and the Rule of Equality have been consistently recognised as basic features. In High Court of Judicature at Bombay v. Shirish Kumar Rangrao Patil, (1997) 6 SCC 339, the Rule of Law was expressly identified as a basic feature. Indra Sawhney v. Union of India, (2000) 1 SCC 168, confirmed the Rule of Equality as a basic feature, and the Hon'ble Court categorically held that any legislation or executive action violative of the basic structure or feature of the Constitution would be unconstitutional or invalid.
Critically, the range of judicial review available in the superior judiciary of India is recognised to extend to examining the validity of even an amendment to the Constitution. As observed in Union of India v. Raghubir, AIR 1989 SC 1933, no Constitution amendment can be sustained which violates the basic structure of the Constitution.
Judicial Review
Judicial review — the power of the courts to scrutinise the validity of legislative and executive action — is among the most firmly entrenched basic features. It was held to be a basic feature in Kesavananda itself (the second part of Article 31C was struck down on precisely this ground) and has been consistently reaffirmed thereafter.
The power of judicial review is described as implicit in a written constitution, A.K. Kaul v. Union of India, (1995) 4 SCC 73, and has been held to extend even to scrutiny of constitutional amendments.
The power of judicial review, it has been observed, is perhaps the widest and most extensive known to the world of law. Any attempt to exclude it by constitutional amendment would itself be unconstitutional.
Republican and Democratic Form of Government
The republican and democratic form of government is recognised as a basic feature, drawn from the Preamble's declaration of India as a "Sovereign Democratic Republic" and later amended to "Sovereign Socialist Secular Democratic Republic". In Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294, the democratic form of government was treated as a basic feature within the meaning of the doctrine.
Independence of the Judiciary
Independence of the judiciary has been most prominently defended in the context of judicial appointments. In Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441, and subsequently in the NJAC judgment of 2016, the independence of the judiciary was identified as a basic feature — a point developed in greater detail below.
Parliament Fights Back: The 42nd Amendment and Minerva Mills
Kesavananda was handed down in April 1973. Within three years, Parliament struck back with the Constitution (42nd Amendment) Act, 1976 — perhaps the most ambitious legislative attempt to override the Basic Structure doctrine.
Section 55 of the 42nd Amendment inserted Clauses (4) and (5) into Article 368, declaring that no amendment of the Constitution shall be called in question in any court on any ground, and that there shall be no limitation whatsoever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of the Constitution.
The language was unambiguous: Parliament was attempting to constitutionalise the very proposition that Kesavananda had struck down.
The challenge came in Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789 : (1980) 3 SCC 625. A five-judge bench of the Supreme Court held that Section 55 of the 42nd Amendment Act which inserted these clauses was void, as it purported to destroy a basic feature of the Constitution.
The power of judicial review over constitutional amendments was itself a basic feature; to abolish that review power by amendment was to destroy the very feature being protected. The 42nd Amendment, in this respect, was unconstitutional.
It is a neat logical irony: Parliament could not constitutionally confer on itself an unlimited power to amend, because doing so would itself amount to an alteration of the basic structure.
The Minerva Mills decision also addressed the extended version of Article 31C introduced by the 42nd Amendment — which had sought to extend the protection of Article 31C to all Directives in Part IV rather than only Articles 39(b)-(c). This extension was struck down as well.
The Ninth Schedule and the Waman Rao Line
One of the more practically significant applications of the Basic Structure doctrine has been in relation to the Ninth Schedule of the Constitution. Article 31B places Acts included in the Ninth Schedule beyond challenge on the ground of contravention of fundamental rights.
What began as a list of thirteen enactments in 1951 expanded to 284 enactments by 1995, as successive governments discovered the convenience of insulating legislation from judicial challenge by placing it in the Ninth Schedule.
In Waman Rao v. Union of India, AIR 1981 SC 271, a Constitution Bench drew a critical temporal line consequent upon Kesavananda:
Amendments of the Ninth Schedule prior to 24-04-1973 (the date of the Kesavananda judgment) shall be valid, and the Acts added to the Schedule prior to that date shall be fully protected.
Amendments of the Ninth Schedule on or after 24-04-1973 shall be open to challenge on the doctrine of basic features, even though Article 31B itself is beyond the pale of that doctrine. Acts added to the Ninth Schedule on or after that date will not be protected by Article 31B; they will be valid only if such amendments do not damage or destroy the basic structure of the Constitution.
I.R. Coelho: The Doctrine Reaches the Ninth Schedule
The Waman Rao position was affirmed and amplified by a nine-judge bench in I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1. The Hon'ble Court held that when a constitutional amendment violates Article 21 read with Article 14 of the Constitution, it destroys the basic framework of the Constitution and is not protected under Article 31B. To use the Ninth Schedule to override entire Part III of the Constitution would not only make fundamental rights subject to directive principles, but would also defeat such basic features as secularism, separation of powers, equality, and judicial review — the essential elements of the rule of law.
The I.R. Coelho judgment effectively means that no Act placed in the Ninth Schedule after 24 April 1973 can claim immunity from scrutiny on the basis that it offends the basic structure. The protection afforded by the Ninth Schedule is not a blank cheque.
The NJAC Judgment: The Doctrine in the Twenty-First Century
In 2014, Parliament enacted the Constitution (99th Amendment) Act and the National Judicial Appointments Commission Act, replacing the collegium system of judicial appointments with a new body — the National Judicial Appointments Commission (NJAC) — which included, among others, the Union Minister in charge of Law and Justice as an ex-officio member.
The challenge came swiftly. In Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1, a five-judge Constitution Bench struck down both the 99th Amendment and the NJAC Act as unconstitutional.
The majority held that including three non-judicial members — including the Law Minister — against three members of the judiciary in the NJAC affected the primacy of the judiciary in the process of appointment and transfer of judges, and therefore violated the independence of the judiciary, which is the basic structure or framework of the Constitution.
The inclusion of the Union Minister in charge of Law and Justice, in particular, was held to bring political influence into the appointment process, violating the independence of the judiciary as a basic feature. The 99th Amendment could not survive this scrutiny.
The NJAC judgment is the most recent high-profile application of the Basic Structure doctrine. It confirms that the doctrine is not a relic of the Emergency era but a living constitutional principle actively shaping the contours of governmental power in contemporary India.
The Unresolved Tension: Uncertainty as to Scope
The Basic Structure doctrine is not without its critics, and the criticism is not merely political. The doctrine is a judicial innovation introduced seventeen years after the adoption of the Constitution to stem the spate of amendments which was, bit by bit, taking away the vitals of the constitutional order. But by its very nature, the doctrine operates through an open-ended, judicially defined list.
The Supreme Court has itself acknowledged that it has not yet been able to enumerate any definite list of basic features.
For instance, the question of how much of Article 14 constitutes a basic feature remains, in the original Author's view in Indira Nehru Gandhi (Smt.) v. Rajnarain, AIR 1975 SC 2299, without a precise answer. The further application of the doctrine under Article 356 — as in Bommai — to suspend State Governments that violate a basic feature such as secularism was not envisaged by any judge in the long catena of cases up to 1993.
This vagueness is simultaneously the doctrine's strength and its vulnerability. Its strength lies in its flexibility — it can respond to new threats to constitutional democracy as they arise.
Its vulnerability is that the line between a court applying an existing basic feature and a court announcing a new one is not always visible, and the doctrine can therefore appear to vest substantial lawmaking power in an unelected judiciary.
Frequently Asked Questions
Q: What is the Basic Structure doctrine in Indian constitutional law?
The Basic Structure doctrine is a judicial principle, first propounded by the Supreme Court in Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461, which holds that while Parliament has the power to amend the Constitution under Article 368, it cannot amend or destroy the basic structure or framework of the Constitution. It operates as an implied limitation derived from the word 'amend' in Article 368 itself.
Q: Which features have been recognised as part of the basic structure?
No exhaustive list exists, but features judicially recognised include: secularism, the rule of law, the rule of equality, judicial review, the republican and democratic form of government, independence of the judiciary, federalism, the supremacy of the Constitution, and the separation of powers. The list is built incrementally through case law rather than by a single authoritative enumeration.
Q: Did Parliament ever try to abolish the Basic Structure doctrine?
Yes. The Constitution (42nd Amendment) Act, 1976 inserted Clauses (4) and (5) into Article 368, declaring that no constitutional amendment could be called in question in any court and that Parliament's constituent power had no limitation whatsoever. The Supreme Court struck down these clauses as void in Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, holding that the clauses themselves violated the basic structure by attempting to destroy judicial review over constitutional amendments.
Q: Does the Basic Structure doctrine apply to laws placed in the Ninth Schedule?
Yes, for Acts placed in the Ninth Schedule on or after 24 April 1973 (the date of Kesavananda). The Constitution Bench in Waman Rao v. Union of India, AIR 1981 SC 271, held that post-Kesavananda Ninth Schedule amendments are open to challenge on the basic structure doctrine. The nine-judge bench in I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1, further confirmed that any constitutional amendment violating Articles 21 and 14 destroys the basic framework and is not protected under Article 31B.
Q: How was the NJAC struck down using the Basic Structure doctrine?
In Supreme Court Advocates-on-Record Association v. Union of India (2016), the Supreme Court struck down the Constitution (99th Amendment) Act, 2014 and the NJAC Act on the ground that the composition of the NJAC — including the Law Minister and two eminent persons — undermined the primacy of the judiciary in judicial appointments, thereby violating the independence of the judiciary, which is a basic feature of the Constitution under the Basic Structure doctrine.
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