Rajiv Gandhi National University of Law

Constitutional Law

Group 25 / Semester 4

Topic: Doctrine Of Basic Structure and Fundamental Rights

Submitted to: Submitted by :

Mrs. Ruchi Sapahia Rahul Danodia
Asst. Professor of Law 15213
Contents
Acknowledgement ............................................................................................................................................................. 2
Introduction ....................................................................................................................................................................... 3
Basic Structure: History and Evolution ............................................................................................................................. 3
The Kesavananda Bharati Case .......................................................................................................................................... 7
Political Consequences of the Case and the Attempt to Reverse It .................................................................................. 8
What constituted the “Basic Structure” in Kesavananda Bharati, and was there a Ratio? .............................................. 8
Consolidation of the Basic Structure Doctrine ................................................................................................................ 10
Conclusion ....................................................................................................................................................................... 11
Bibliography .................................................................................................................................................................... 12

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Acknowledgement

I express my gratitude to the Mrs. Ruchi Sapahia for assigning us our project topics. The process of
completion of the project has taught me a lot. I also thank my friends and colleagues who have helped
me complete my project.

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 Introduction

The debate on the 'basic structure' of the Constitution, lying somnolent in the archives of India's
constitutional history during the last decade of the 20th century, has reappeared in the public realm.While
setting up the National Commission to Review the Working of the Constitution (the Commission), the
National Democratic Alliance government (formed by a coalition of 24 national and regional level parties)
stated that the basic structure of the Constitution would not be tampered with. Justice M.N. Venkatachalaiah,
Chairman of the Commission, has emphasised on several occasions that an inquiry into the basic structure of
the Constitution lay beyond the scope of the Commission's work.

Several political parties -- notably the Congress (I) and the two Communist parties which are in the
opposition -- have made it clear that the review exercise was the government's ploy to seek legitimacy for its
design to adopt radical constitutional reforms thus destroying the basic structure of the document.

Much of the public debate has been a victim of partial amnesia as even literate circles of urban India are
unsure of the ramifications of this concept, which was hotly debated during the 1970s and 1980s. The
following discussion is an attempt to chart the waters of that period rendered turbulent by the power struggle
between the legislative and the judicial arms of the State.

According to the Constitution, Parliament and the state legislatures in India have the power to make laws
within their respective jurisdictions. This power is not absolute in nature. The Constitution vests in the
judiciary, the power to adjudicate upon the constitutional validity of all laws. If a law made by Parliament or
the state legislatures violates any provision of the Constitution, the Supreme Court has the power to declare
such a law invalid or ultra vires. This check notwithstanding, the founding fathers wanted the Constitution to
be an adaptable document rather than a rigid framework for governance. Hence Parliament was invested
with the power to amend the Constitution. Article 368 of the Constitution gives the impression that
Parliament's amending powers are absolute and encompass all parts of the document. But the Supreme Court
has acted as a brake to the legislative enthusiasm of Parliament ever since independence. With the intention
of preserving the original ideals envisioned by the constitution-makers, the apex court pronounced that
Parliament could not distort, damage or alter the basic features of the Constitution under the pretext of
amending it. The phrase 'basic structure' itself cannot be found in the Constitution. The Supreme Court
recognised this concept for the first time in the historic Kesavananda Bharati case in 1973. Ever since the
Supreme Court has been the interpreter of the Constitution and the arbiter of all amendments made by
Parliament.

Basic Structure: History and Evolution

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Article 245 of the Constitution invests the Parliament with the power to make laws subject to the provisions
of the Constitution. Article 368 provides the Parliament with a special type of power, i.e., to amend
constitutional provisions. This power can be exercised through a two-thirds majority in both Houses of
Parliament and, in some cases, with the additional consent of half the number of State legislatures. The
article remains silent, however, upon the exact nature, scope and limitations (if any) of the amending power.
The question, therefore, arises: is the Parliament’s power to amend the Constitution unfettered and free from
all restraints? For example, can the Parliament, if it so desires, repeal the Constitution entirely, and convert
India from a secular democratic republic to a theocratic despotic monarchy, subject to fulfilling the
procedural requirements of Article 368?

In the case of Kesavananda Bharati v. State of Kerala, a thirteen-judge bench of the Indian Supreme Court,
by a majority of 7:6, answered that question in the negative. It was held that the Parliament could only
amend the Constitution to the extent that it did not “damage or destroy the basic structure of the
Constitution.” By subjecting Constitutional amendments to judicial review, the Court essentially placed a
substantive non-legislative check upon the Parliament’s amending power.

An inquiry into the legitimacy of the basic structure doctrine must therefore answer three fundamental
questions: first, in democracies that follow the principle of separation of powers, can any form of restriction
upon the Parliament’s law-making powers be justified? (Or, in States such as India, that have a written
Constitution, the question is slightly modified: is any restriction upon the Parliament’s power to change, alter
or even abrogate the Constitution, through the means of a Constitutional amendment, justified?) Secondly, if
yes, then is the judiciary the correct organ to impose such a restriction? And thirdly, if yes again, then what
is the content of the basic structure doctrine to make it a valid restriction, keeping in mind the separation of
powers, upon the amending power?

Let us begin with the history of the doctrine. The argument that the Parliament’s amending power is subject
to substantive limitations was first raised in Sankari Prasad Deo v. Union of India. The Constitutional
challenge had arisen with respect to Part III of the Constitution, which contains fundamental rights such as
the rights to life, equality, freedom of expression etc. The challenge in Sankari Prasad was premised upon
the wording of Article 13 of the Constitution, which prohibits the State from making any law in violation of
any fundamental right enumerated in Part III. It was argued that a Constitutional amendment was “law”,
properly called; and so, under Article 13, it was impermissible for the State to amend Part III of the
Constitution. The argument was unanimously rejected by a constitution bench of the Supreme Court, which
held that the Parliament had the power to amend any provision of the Constitution, without exception.

The question came up again fourteen years later in Sajjan Singh v. State of Rajasthan, also before a
Constitution bench. Gajendragadkar C.J., speaking for himself and two others, upheld Sankari Prasad.
However, Justices Hidayatullah and Mudholkar expressed doubts about the verdict. Hidayatullah J. opined

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that the many assurances given in Part III made it difficult to visualize fundamental rights as mere
“playthings of a special majority.” Mudholkar J. observed that the framers may have intended to give
permanency to certain “basic features” such as the three organs of the State, separation of powers etc. He
also questioned whether a change in the basic features of the Constitution could be defined as an
“amendment” within the meaning of Article 368, or whether it would amount to rewriting the Constitution
itself.

The position of law was then reversed in I.C. Golak Nath v. State of Punjab. An eleven judge bench of the
Supreme Court, by a slender margin of 6 to 5, and by divided majority opinions, held that the Parliament had
no power to amend Part III of the Constitution. All provisions dealing with fundamental rights were thus
placed beyond the reach of the legislature.

The Parliament’s response was immediate and telling. In order to overcome Golak Nath, it enacted the
Twenty-Fourth Constitutional Amendment. This provided, inter alia, that the prohibition in Article 13 would
not apply to an amendment of the Constitution under Article 368. It also substituted the words “amendment
by way of addition, variation or repeal” for only “amendment” in Article 368. The Constitutional validity of
the Twenty-Fourth Amendment, amongst others, was strongly challenged. In order to obtain a conclusive
judicial ruling upon the exact scope, nature and limitations of the amending power, a thirteen-judge bench of
the Supreme Court was constituted. The case was Kesavananda Bharati v. State of Kerala.

Eleven separate opinions were delivered in Kesavananda. The complexity of the issues notwithstanding, it
may safely be said that by a majority of 7 to 6, the Court held that whereas the Parliament’s amending power
was plenary, and extended to every provision of the Constitution (thus overruling Golak Nath), the
Parliament could not damage or destroy the basic structure of the Constitution. In order to determine the
basic structure of the Constitution, recourse was had to the preamble, the Constitutional “scheme”, the
struggle for independence from colonial rule, and the drafting history of the Constitution. Chief Justice Sikri,
in his majority opinion, provided five such “basic features”: supremacy of the Constitution, republican and
democratic form of government, secular character of the Constitution, separation of powers between the
executive, legislature and judiciary, and federal character of the Constitution. Similar lists were prepared by
the other majority judges.

The basic structure doctrine was crystallized in three further decisions of the decade. In Indira Nehru Gandhi
v. Raj Narain, a Constitutional amendment dealing with the election of the Prime Minister and the Speaker
was struck down for violating the basic features of democracy (Mathew and Khanna JJ.), the rule of law
(Ray C.J.) and equality (Chandrachud J.). In Minerva Mills v. Union of India, the Parliament attempted to
overturn Kesavananda by inserting the 42nd Amendment, which expressly stated that the amending power
was unlimited, and not open to judicial review. The amendment was struck down by the Court on the ground
that the limited amending power of the Parliament was itself part of the basic structure. Lastly, in Waman

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Rao v. Union of India, it was held that laws placed in the 9th Schedule, and thus beyond the pale of
fundamental rights review, would nevertheless have to be tested on the touchstone of the basic structure
before they were given immunity.

The next two decades saw the consolidation of the doctrine. In a series of judgments, which may collectively
be called the Tribunals Cases, it was held that judicial review of the Supreme Court under Article 32, and of
the High Courts under Article 226, was a basic feature. First enunciated in S.R. Bommai v. Union of India,
and then crystallized in the decisions of Ismail Faruqui v. Union of India and Aruna Roy v. Union of India,
the Court developed the concept of the basic feature of secularism as an attitude of even-handedness towards
all religions. In I.R. Coelho v. State of Tamil Nadu, the Court added Articles 14 (right to equality), Article
19 (fundamental freedoms) and Article 21 (right to life) to the list of basic features.

It is also important to note certain other landmark judgments where basic structure challenges were rejected.
In Kuldip Nayar v. Union of India, both secret ballots, and domicile requirements for election to State
legislative Assemblies were held not to be basic features. In M. Nagaraj v. Union of India, the Constitutional
amendment introducing Articles 16(4A) and 16(4B), was impugned. These articles dealt with certain
specifics of affirmative action. Rejecting the contention that these provisions damaged equality, the Court
observed that they only enunciated certain specific rules of “service jurisprudence”, not affecting the basic
feature of equality under Articles 14, 15 and 16 of the Constitution.

This brief overview highlights the following salient points: first, basic structure review is a substantive
limitation upon the power of the Parliament to amend the Constitution, i.e., Constitutional amendments must
conform to certain standards or values, and must not be in violation of certain substantive content, in order to
be constitutionally valid; secondly, the task of adjudicating content-based violations of the basic structure
must be performed by the judiciary; and thirdly, the components of the basic structure doctrine, such as
democracy, the rule of law, secularism etc., have been enunciated in a highly abstract manner, permitting
varying and different interpretations. It is this framework that must be kept in mind while analyzing the
legitimacy of the basic structure doctrine.

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The Kesavananda Bharati Case

Kesavananda Bharati involved six different writ petitions by a number of petitioners who represented the
propertied class, land proprietors opposed to land ceiling laws, sugar companies in Maharashtra, coal mining
companies and former Princes seeking to preserve their earlier privileges. The writ petitions questioned
whether there were limitations on the power of Parliament to amend the Constitution, particularly the
fundamental rights, as decided in the Golak Nath case.

The lead petitioner, His Holiness Kesavananda Bharati Sripadagalvaru, the leader of a math in Kerala,
challenged the Constitution (29th Amendment) Act, 1972, which placed the Kerala Land Reforms Act, 1963
and its amending Act into the IX Schedule of the Constitution. A bench of 13 judges was constituted to hear
the matter. In a seven-six majority, the bench held that Parliament’s power to amend the Constitution was
not explicitly limited, but was limited to not altering or modifying the basic features or structure of the
Constitution. Eleven separate judgments were pronounced orally in court.

In a controversial move, during the pronouncement, Chief Justice Sikri circulated a paper entitled “View by
the Majority”, which set out six propositions including Proposition No. 2: “Article 368 does not enable
Parliament to alter the basic structure or framework of the Constitution”. This proposition, lifted from Justice
Khanna’s judgment, has become synonymous with the ratio of Kesavananda Bharati. Pertinently, only nine
out of the 13 Judges signed the “View by the Majority”.

The Supreme Court in Kesavananda Bharati ultimately upheld the Land Reform Acts and the Amendment
Acts that had been challenged. The only provision that was struck down was that portion of the Constitution
(25th Amendment) Act, which denied the possibility of judicial review. Aside from the limit imposed on the
ability of Parliament to alter the basic structure, the case was an overall success for the Government.

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Political Consequences of the Case and the Attempt to Reverse It

Controversy surrounded the judgment. As a reaction to this judgment, the Government elevated Justice A.N.
Ray to the office of Chief Justice despite there being three other judges, who were senior to him, on the
bench at the time. Many new judicial appointments were also made, and, in 1975, with eight new judges on
the bench and an emergency having been declared, Chief Justice A.N. Ray set up a bench of 13 Judges to
review Kesavananda Bharati.

The hearing of the case began on 10 November 1975 and the matter was argued for over two days. On 12
November 1975, Chief Justice A.N. Ray unilaterally dissolved the bench as it was discovered that no review
petition had been filed and the review had been initiated over an oral request, making the review process
improper. In such circumstances, the basic structure doctrine survived and no further judicial review of the
decision was attempted again.

What constituted the “Basic Structure” in Kesavananda Bharati, and

was there a Ratio?

It is difficult to infer that the Judges that formed the majority view in Kesavananda Bharati agreed with each
other on what constituted the “basic structure” of the constitution and/or why Parliament’s power to amend it
was limited. Chief Justice Sikri held that there were certain inherent limitations on Parliament’s power to
amend based on higher principles underpinning the Constitution, such as the supremacy of the Constitution,
the republican and democratic form of Government, separation of powers, and the secular and federal
character of the Constitution.

Justices Shelat and Justice Grover, in their common judgment, focused on individual dignity, along with the
unity and integrity of the nation, to establish the basic elements of the Constitution. Justices Hegde and
Mukherjea held that Parliament’s power to amend, though wide, did not include the power to destroy or
emasculate basic elements of the Constitution, which are determinable from the Preamble. They identified
two basic objectives of the Preamble: to set up a sovereign democratic republic, and to secure the citizens of
India the rights mentioned in the Constitution.

Justice Jaganmohan Reddy held that the essential structural elements of the Constitution, such as the
sovereign democratic republican nature of the Constitution, social, economic and political justice, liberty of
thought, expression, belief, faith and worship, and the equality of status and opportunity could not be
amended. Justice Khanna, on the other hand, held that the basic structure only referred to the broad outlines

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of the Constitution and not any specific provision or detail of the Constitution. As such, he rejected the idea
that the fundamental rights provisions or the Preamble could not be amended, as well as rejecting inherent
limitations based on natural rights or cherished values like liberty, democracy and equality. The only
limitation he believed existed on Parliament’s power to amend the Constitution was on the basis of the
connotations of the word “amend” itself. He believed that the word “amend” implied the continued existence
of some “basic structure” of the Constitution of India, pre and post amendment, thereby preventing
Parliament from completely abrogating the Constitution.

Another point of departure between the Judges in the majority related to their conclusion as to the amended
Article 31C of the Constitution. Five of the majority judges held that the entirety of Article 31C, which was
added to the Constitution by the 25th Amendment, was void. Justice Reddy separated parts of the same
Article to hold it valid, and only Justice Khanna held that the first part of Article 31C was valid while the
second part was void.

The “View by the Majority” did not agree, acknowledge, harmonise or rationalise these distinctions. Even
the legal basis for the “View by the Majority” (which was not signed by four of the 13 judges in protest) is
questionable as it does not form part of any judgment. It was only in subsequent decisions of the Supreme
Court, starting from Indira Gandhi v. Raj Narain that the Courts began formulating a cohesive doctrine of
what constituted the “basic structure” of the Constitution.

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Consolidation of the Basic Structure Doctrine

The inherent ambiguity of the doctrine, as well as that of the ratio in Kesavananda Bharati, resulted in
various challenges both to and under the doctrine before the Supreme Court. The period following
Kesavananda Bharati was one where the doctrine has evolved on a case-to-case basis, resulting in a gradual
expansion of the doctrine.

In Indira Gandhi v. Raj Narain, a Constitutional amendment to regularise Prime Minister Indira Gandhi’s
election was struck down citing the basic features of democracy, rule of law and equality. In Minerva Mills
v. Union of India, the Parliament, through the Constitution (42nd Amendment) Act, 1976, attempted to
circumvent Kesavananda Bharati by making Parliamentary power unlimited. The Court in this case struck
down the amendment on the ground that the judicial review of Parliamentary enactments, and the limitation
of Parliamentary power to amend the Constitution, were themselves part of the basic structure of the
Constitution.

From 1975 onwards, the courts have interpreted and expanded the doctrine to include judicial review of
decisions by the High Court and Supreme Court under Articles 226 and 32, secularism and federalism, the
freedoms under Article 19, judicial independence, and recently, judicial primacy in the judicial appointment
process to the basic structure and framework of the Constitution.

However, it was not until much later that the Supreme Court ruled on the question of whether an addition to
the Ninth Schedule would make the listed statute immune from the requirement of not infringing on a
fundamental right. In I. Coelho v State of Tamil Nadu the Supreme Court held that all laws were subject to
the test of being consistent with fundamental rights, which are a part of the basic structure.

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Conclusion

Debates and discussions on the limits on a legislative body to amend a Constitution are neither novel nor
unique. Thomas Jefferson strongly believed that however great a written Constitution may be, experiences
and changes in society would necessitate corresponding changes to the written text, with each generation
having the right to determine the law under which they live. Justices Hegde and Mukherjea accepted the
thought that no generation should bind the course of generations to come. Yet, opinions have differed on
what values and principles should constitute the “basic structure” and, therefore, whether value judgments
formed in an era of unbridled socialism can be imposed upon future generations.

What the Supreme Court faced in 1973 was a struggle for supremacy. Kesavananda Bharati created a check
on Parliament’s attempts to eliminate judicial review and seek absolute power to amend the Constitution.
But it also conceded to Parliament the widest latitude to institute socio-economic policies. It refused to
recognise the right to property as a basic feature of the Constitution, overruling Golak Nath and paving the
way for land reforms.

Prior to Kesavananda Bharati, nearly 30 Constitutional amendments had already been passed since the
Constitution came into effect in 1950, and there have been nearly 70 amendments since Kesavananda
Bharati. In comparison, the United States has had 27 Constitutional amendments (33 proposed, but only 27
ratified by the States) in its 230 year history. However, despite the larger number of amendments made to
the Indian Constitution, the hopes and ideas of its framers remain intact and identifiable as the Constitution
adopted by the Constituent Assembly in 1949. We owe this principally to the Supreme Court’s decision in
Kesavananda Bharati.

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Bibliography

 www.corporate.cyrilamarchand.com
 www.indconlawphil.wordpress.com
 www.sodhganga.inflib.net
 www.legalserviceindia.com
 www.thehansindia.com

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