Doctrine of the Basic Structure

28 Nov 2020  Read 12589 Views

Just like how important the judges are important for the courts to function, the bare acts hold importance to the lawyers, a similar significance is held by the Doctrine of basic structure to the Constitution. The term ‘basic structure’ is not explained anywhere however the idea is vividly conveyed by the constitution itself. The constitution of India is considered to be the most valuable document for the entire nation and the provisions mentioned in it are in no way, to be disregarded. So, to preserve and protect their essence, this doctrine had to come into the picture.

The major concept backing it is that the Parliament shall not be overpowered to introduce a new set of laws that would affect and alter the basic structure of the constitution. Hence the doctrine states that the parliament’s unlimited power to amend the constitution is subject to only one restriction i.e. it should not dilute or violate the basic structure of the constitution.  Or the effects of the amendment should not be abrogating or disturbing in nature towards the basic structure.

Basically, the very spirit of the constitution is safeguarded by this doctrine. In the Constitution Article 368 talks about this doctrine by stating that, 

           “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

When the constitution was being framed, the framers were smart enough to forecast the fact that if the constitution is left to be very flexible then it would be almost like playing games of the party that stays in the rule for the time being and if made too rigid then it would again be a problem to inculcate changes according to the changing times.

So they took a middle course and by keeping in view the value of Freedom, they constructed a constitution where every citizen was equal with no gender, caste, religion-based discrimination and to ensure it, they provided us with the Judiciary which was absolutely independent.

Indian Judiciary- String of Cases

The constitution provides the Judiciary with every power to look into the laws and decide upon their constitutional validity through the process of judicial review and ascertain the rights of every citizen. This is exactly why the Basic structure doctrine was inculcated. The origins of the basic structure doctrine are found in the German Constitution which, after the Nazi regime, was amended to protect some basic laws.

Now in the history of the Indian judiciary, there have been instances where this power was called on. These instances are in the form of midnight cases (a case which has to be remembered even when someone asks for it at midnight). The very first case in that manner is the Shankari Prasad Singh Deo vs Union of India where in order to abolish the practice of Zamindari system, few states like Bihar, Uttar Pradesh, and Madhya Pradesh came up with their own legislature of Zamindari Act where huge holdings of land with the zamindars were to be redistributed amongst the tenants. (Too much of exercising power, isn’t it?).

The Zamindars aggrieved by this legislation approached the court that such an act was violative of their Fundamental rights i.e. the Right to Property (which is not a fundamental right now). The Supreme Court in the end concluded that the power to amend the Constitution under Article 368 and not the Fundamental rights. And so the petition was rejected with cost.

Next in the list is one of the most landmark judgments by the court i.e. Golaknath vs State of Punjab, where Golaknath (quite a rich man) held 500 acres of the property but under Punjab Security Land Tenures Act 1953 the state govt. allowed an individual to hold a maximum of 30 acres of land and the rest to be treated as surplus. Aggrieved by that, Golaknath filed a petition for a violation of his fundamental right to hold and acquire property (again, not a fundamental right now).

The Supreme Court overruled its decision in the earlier case and went on to establish that the Parliament cannot amend any part of the constitution, not even the Fundamental rights and in order to remove all the complications, it passed the 24th Amendment act.

A Case that saved Indian Democracy

Now comes the Kesavananda Bharti vs State of Kerala case. The case that saved the Indian democracy, that gave a brand new derivation to the basic structure doctrine and also the case with the largest bench of judges. i.e., 13 Judges!

The petitioner Lt. Kesavananda Bharti filed a petition challenging the validity of the Kerela Land reforms Legislations in 1970 which restricted the management of the religious property under Article 26. It was majorly concerned with the right to manage the property which was owned for religious purpose without government interference. The question here was can the parliament take away even the Fundamental rights of an individual with its power?

The Supreme Court laid down that no part of the Constitution (including fundamental rights) could be amended. The Basic Structure of the Constitution could not be abrogated even by any amendment. Parliament is empowered only to amend it and not rewrite it or destroy any provision.

This provision was again sparked in 1971 when Indira Gandhi contesting elections from Rai Bareily U.P. swept majority seats but later was called to the court due to a petition filed by Raj Narain where he stated that Indira Gandhi won due to election malpractices. The Allahabad High court took the matter and gave the decision in favor of the petitioner and barring Mrs. Gandhi from contesting the election for the next 6 years. Aggrieved by that, she went to the Supreme Court that was on vacation for the time being.

Meanwhile, the president pronounced an emergency in the country due to the failure of Constitutional machinery (the real reason being the Allahabad high court judgment) and also passed 39th Amendment Act 1971 which took away the powers of the courts to decide on election matters.

The Supreme Court later gave the decision and by quoting the Kesavananda Bharti case, it again established that Parliament cannot amend the basic structure of the constitution in any situation. And so the democracy was saved again until 1975 because that’s when the next major case had taken place.

Minerva Mills vs Union of India case

The Minerva mills were a textile industry operating in Karnataka was under suspicion of the central government to be a sick company. To ensure that they appointed a committee to draft a full report for them and if so, the mills could be taken over by the National Textile Corporation through without the remedy of any judicial review as provided under the 39th amendment. But after the 42nd amendment that took place after the previous case, the petitioner could challenge this step.

The Supreme Court with the ratio of 4:1 struck down clauses (4) and (5) of Article 368 on the ground that it destroyed the essence of the basic structure of the constitution. While framing our constitution, framers made a special provision to provide quality to every citizen of the country, especially in supporting them economically by providing them employment as under Article 16(4).

In 1979, the government appointed a commission to look into the matter of all the socially and educationally backward classes and report it to them and so the commission recognized 3743 of such classes and recommended 27% of reservation for their advancement. But the government changed and couldn’t be implemented. When the former govt. came back in action, it made the reservations available only to later address outrage of anti-reservation movements.

Later the reservation was changed to 37% for the socially and economically backward class and the matter went to the Supreme court that issues a notice to the government asking the grounds for extending the reservation percentage. The govt. failed to provide any reason. And so the Supreme Court made one of its most commendable judgment by separating the ‘creamy layer’ and deriving that ‘backward’ can be ascertained on the caste system and not only an economic basis. And so the Federal structure, unity, and integrity of India, secularism, socialism, social justice, and judicial review were reiterated as basic features of the Constitution.

This epic case was called Indra Sawhney's case. Which was followed by Nagraj’s case where the Supreme Court validated the parliament’s decision to extend reservations for SCs and STs that includes promotions with the three riders. It instructed the state to provide proof as to benefits that the backward class was getting through these reservations. Experts were of the view that this judgment failed to recognise the discrimination these classes have to face from centuries and also overruled the decision taken in the former case.

In that manner, Supreme Court decided few other cases too like the Waman Rao case, where the doctrine of basic structure was again into the picture for examining Article 31-B and it drew a line of demarcation and established that it should not be applied retrospectively to reopen the validity of any amendment made o the constitution. And all amendments made to the 9th schedule were valid.

And then the Bommai case, which is again a landmark judgment discussing provisions under Article 356 of the constitution which impacted state-center relations by curbing the misuse of the said article which gave power to the proclamation of emergency and dissolution of Legislative assemblies according to the article. This verdict stopped the misuse or overuse of the said article.


It is pretty clear by now that there is no solid rule for saving the basic feature of the constitution yet it is the most significant feature of it and function of the judiciary. Judges may altercate upon it sometimes but ultimately they agree that it is of utmost importance to save the basic framework of the constitution.

The democratic and federal attributes of the constitution also add to its importance. And losing its essence would render the constitution as a deficient document that’s not capable of safeguarding the basic attributes of the world’s largest democracy.

About the Author: Shalu Singh | 18 Post(s)

Shalu Shravan Singh, currently a final year law student, and quite enamoured of writing. A music aficionado that’s also a wanderer and desires to visit more of these places.

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