Basic Structure of the Constitution

Basic Structure of the Constitution: Comprehensive Study Notes

Introduction

The Basic Structure doctrine represents one of the most significant constitutional principles in Indian jurisprudence. It establishes that while Parliament possesses the power to amend the Constitution under Article 368, this power is not absolute. Certain fundamental features—collectively termed the “basic structure”—are inviolable and cannot be altered or destroyed through constitutional amendments, even by a super-majority in Parliament.

Evolution of the Doctrine: Landmark Cases

1. Shankari Prasad v. Union of India (1951)

Facts: The constitutional validity of the First Amendment Act (1951), which curtailed the right to property, was challenged on the ground that it violated fundamental rights.

Supreme Court’s Ruling:

• Parliament’s amending power under Article 368 includes the power to amend Fundamental Rights

• The word “law” in Article 13 refers only to ordinary legislation, not constitutional amendment acts

• Constitutional amendments cannot be challenged under Article 13

• Therefore, Parliament can abridge or take away any Fundamental Right through constitutional amendment

Significance: Established Parliament’s plenary power to amend the Constitution without judicial intervention.

2. Golak Nath v. State of Punjab (1967)

Facts: The constitutional validity of the Seventeenth Amendment Act (1964), which inserted certain state acts in the Ninth Schedule, was challenged.

Supreme Court’s Ruling:

• Overturned Shankari Prasad judgment

• Fundamental Rights are given a “transcendental and immutable” position

• Parliament cannot abridge or take away Fundamental Rights

• A constitutional amendment act is also a “law” within Article 13

• Any amendment violating Fundamental Rights would be void under Article 13

Significance: Protected Fundamental Rights from parliamentary amendment but was itself later reversed.

3. 24th Constitutional Amendment Act (1971)

Parliamentary Response:

• Parliament amended Articles 13 and 368 in response to Golak Nath judgment

• Declared that Parliament has the power to abridge or take away any Fundamental Right under Article 368

• Such amendment would not be considered a “law” under Article 13

Impact: Restored Parliament’s amending power but invited further judicial intervention.

4. Kesavananda Bharati v. State of Kerala (1973) – The Landmark Judgment

Facts: Constitutional validity of the 24th Amendment Act (1971) was challenged.

Key Features:

• Largest Constitution Bench: 13 judges (record for that time)

• Decision: 7-6 majority

• Duration: 68 days of hearing

• Judgment volume: One complete volume in Supreme Court Cases

Supreme Court’s Historic Ruling:

1. Upheld the 24th Amendment Act – Parliament can amend Fundamental Rights

2. Introduced the Basic Structure Doctrine – Parliament’s amending power under Article 368 is not absolute

3. Fundamental Principle: The constituent power of Parliament does not enable it to alter the “basic structure” of the Constitution

4. Consequence: Parliament cannot destroy or fundamentally alter those elements that constitute the basic features of the Constitution

Justice Hans Raj Khanna’s Reasoning:

• The power to amend is NOT the power to destroy

• The Constitution has certain immutable characteristics that reflect its foundational values

• The preamble is an intrinsic part of the basic structure

• The golden triangle consisting of Articles 14, 19, and 21 forms the basis of the Indian legal system

Significance:

• Landmark jurisprudence establishing limits on constitutional amendment power

• Introduced the doctrine that would guide constitutional interpretation for decades

• Protected the core principles of the Constitution from majoritarian destruction

5. 42nd Constitutional Amendment Act (1976)

Context: Parliamentary response to Kesavananda Bharati judgment during the Emergency period.

Major Changes:

• Amended Article 368

• Declared that there is NO limitation on Parliament’s constituent power

• No amendment can be questioned in any court on any ground

• Cannot be challenged for violation of Fundamental Rights

• Expanded Article 31C to protect all Directive Principles

Attempt: To nullify the basic structure doctrine and grant absolute amending power to Parliament.

6. Minerva Mills Ltd. v. Union of India (1980)

Facts: Validity of provisions in the 42nd Amendment restricting judicial review was challenged.

Supreme Court’s Landmark Ruling:

1. Struck Down the 42nd Amendment provisions that excluded judicial review

2. Reaffirmed the Basic Structure Doctrine

3. Articulated the Key Principle:

“Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of the Constitution and, therefore, the limitations on that power cannot be destroyed.”

4. The Doctrine: A donee of a limited power cannot convert that power into an unlimited one

5. New Elements Added to Basic Structure:

   • Judicial review (power of courts to scrutinize constitutional amendments)

   • Balance between Fundamental Rights and Directive Principles

Significance:

• Established that judicial review itself is a basic feature

• Parliament cannot use Article 368 to remove the Court’s power to judge constitutional amendments

• Confirmed that the Constitution is supreme, not Parliament

7. Waman Rao v. Union of India (1981)

Facts: Challenge to the validity of certain constitutional amendments under the basic structure doctrine.

Supreme Court’s Ruling:

• Reaffirmed adherence to the basic structure doctrine

• Critical Clarification: The doctrine would apply to constitutional amendments enacted AFTER April 24, 1973 (date of Kesavananda Bharati judgment)

• Earlier amendments made before this date would not be subjected to basic structure review

Significance: Determined the temporal application of the doctrine, providing clarity on retrospectivity.

8. S.R. Bommai v. Union of India (1994)

Facts: Validity of President’s Rule in several states under Article 356 was challenged during a constitutional crisis involving frequent dismissals of opposition-led state governments.

Nine-Judge Bench Ruling:

1. Scope of Article 356:

   • Limited power for extraordinary circumstances

   • Cannot be used for political convenience

   • Requires objective material and cannot be mala fide

2. Federalism as Basic Structure:

   • State governments are NOT subordinate to the center

   • Federal balance is a core constitutional feature

   • Established principle of “Cooperative Federalism”

3. Secularism as Basic Structure:

   • Established that secularism is part of the basic structure

   • President’s Rule can be imposed if a state violates secular principles

   • Requires clear evidence of communal governance

4. Judicial Review of Proclamations:

   • Court can review Article 356 proclamations

   • Presidential power is not absolute and is subject to constitutional limits

Outcomes:

• Struck down President’s Rule in Karnataka, Meghalaya, and Nagaland as unconstitutional

• Upheld proclamations in other states where breakdown was evident

Significance:

• Reinforced federalism as inviolable feature

• Expanded application of basic structure doctrine

• Established checks on executive power

• Recognized secularism as core constitutional principle

9. Indra Sawhney v. Union of India (1992) – Mandal Commission Case

Facts: Constitutional validity of 27% reservation for OBCs was challenged.

Nine-Judge Bench Ruling:

1. Upheld OBC reservations based on social and educational backwardness

2. 50% Ceiling: Total reservations cannot exceed 50% of available positions

3. Creamy Layer Concept: Excluded wealthier members of backward communities from reservation benefits

4. Scope of Application: Reservations apply at initial appointments, not promotions (later modified by 77th Amendment)

Basic Structure Elements Affirmed:

• Principle of equality

• Social and economic justice

Significance:

• Applied basic structure doctrine to reservation jurisprudence

• Balanced equality with compensatory justice

• Established flexibility in basic structure interpretation

10. Janhit Abhiyan v. Union of India (2023)

Facts: Constitutional validity of 103rd Amendment introducing 10% EWS (Economically Weaker Sections) reservation was challenged on basic structure grounds.

Five-Judge Constitutional Bench (3:2 Majority):

1. Upheld the 103rd Amendment introducing 10% EWS reservation

2. Key Findings:

   • Reservations based exclusively on economic criteria are constitutionally permissible

   • Economic backwardness is a valid classification ground

   • The 50% reservation ceiling is NOT absolute and can be exceeded for compelling reasons

   • Reasonable classification between “economically weaker sections” and existing beneficiaries (SCs, STs, OBCs) is valid

3. Principle Established:

   “Just as equals cannot be treated unequally, unequals also cannot be treated equally”

4. Basic Structure Application:

   • Principle of equality remains protected

   • Economic justice (from Preamble and Articles 38, 46) justified the amendment

   • The amendment did not destroy the basic structure

Dissent (2 Judges):

• Argued that exceeding the 50% ceiling and exclusion of existing beneficiaries violated basic structure principles

Significance:

• Demonstrated flexibility of basic structure doctrine

• Recognized economic justice as core constitutional value

• Showed Court’s pragmatic interpretation of equality

11. Property Owners Assn. v. State of Maharashtra (2024)

Facts: Challenge to Maharashtra Housing and Area Development Act under Articles 14 and 19; protection claimed under Article 31C.

Nine-Judge Bench Ruling (November 2024):

1. Doctrine of Revival: When a constitutional amendment is struck down, the original provision automatically revives

2. Continuity Principle: The Court rejected the “pen and ink theory” arguing that original text ceases to exist

3. Article 31C Status:

   • Unamended Article 31C survives and continues in force

   • Protects laws furthering Articles 39(b) and (c) from challenge under Articles 14 and 19

4. Reasoning:

   • Basic structure doctrine ensures continuity and coherence of constitutional framework

   • Automatic revival prevents legal vacuum

   • The NJAC case and similar precedents support this approach

5. Flexibility Clause:

   • In cases where evidence suggests legislature would have repealed original text independently, courts can effect the repeal despite invalidating new text

Significance:

• Strengthened constitutional continuity principle

• Protected welfare legislation through Article 31C

• Applied basic structure to ensure stable constitutional framework

12. Uttar Pradesh Board of Madrassa Education Act Challenge (2024)

Context: Allahabad High Court struck down the UP Madrasa Education Board Act, 2004 for violating secularism.

Supreme Court’s Three-Judge Bench Ruling (November 2024):

1. Basic Structure and Secularism:

   • Agreed that secularism is part of basic structure

   • Clarified that a law is unconstitutional on secularism grounds ONLY if it explicitly violates secularism-related constitutional provisions

   • Mere contradiction with broad secularism principles does not render law unconstitutional

2. Test Applied:

   • The Act does not violate Articles related to secularism

   • The State can regulate educational standards in minority institutions

   • Article 28(3) protection ensures students cannot be forced into religious instruction

3. Significant Clarification:

   • The basic structure doctrine CANNOT be applied to challenge the validity of ordinary laws

   • Applied directly to constitutional amendments and extraordinary situations

Significance:

• Limited scope of basic structure doctrine application

• Clarified that secularism challenge requires explicit constitutional violation

• Maintained distinction between amendment review and law validity

13. Article 31C and Preamble Amendment (2024)

Supreme Court’s Ruling (November 2024):

1. Preamble Amendability:

   • Parliament has power to amend the Preamble under Article 368

   • Preamble is part and parcel of the Constitution, not separate

2. 42nd Amendment Validation:

   • The 42nd Amendment that inserted “socialist” and “secular” in the Preamble has been subjected to extensive judicial review

   • The Court acknowledged Parliament’s intervention and constitutional legitimacy

   • Will not nullify Parliament’s Emergency-period actions without compelling reason

Significance:

• Affirmed that Preamble, despite fundamental importance, is amendable

• Showed judicial deference to legislative judgment in specific circumstances

Elements of the Basic Structure

The Supreme Court, though avoiding a definitive and closed list, has identified the following elements as constituting the “basic structure” of the Constitution:

Foundational Principles:

1. Supremacy of the Constitution – Constitution is the supreme law; no law or amendment can override it

2. Sovereign, Democratic, and Republican Nature – India is a sovereign democratic republic

3. Secular Character – State has no official religion; equal treatment of all religions

Structural Elements:

4. Separation of Powers – Division of legislative, executive, and judicial functions with checks and balances

5. Federal Character – Division of powers between Union and States; state autonomy and cooperative federalism

6. Parliamentary System – Democratic governance through elected representatives; Cabinet accountability to Parliament

7. Independence of Judiciary – Judicial autonomy in decision-making; protection from executive/legislative interference

Rights and Justice:

8. Judicial Review – Power of courts to scrutinize laws and amendments for constitutionality

9. Fundamental Rights – Protected rights of individuals (especially those in Articles 14, 19, 21)

10. Freedom and Dignity of the Individual – Core human rights protection

11. Rule of Law – Government operates within constitutional bounds; equal application of law

Democratic Principles:

12. Free and Fair Elections – Democratic legitimacy based on periodic, transparent elections

13. Principle of Equality – No discrimination on grounds of religion, caste, gender, etc. (Article 14)

14. Principle of Reasonableness – Laws must be reasonable and not arbitrary

Welfare and Justice:

15. Welfare State (Socio-Economic Justice) – State responsibility for social and economic well-being

16. Directive Principles of State Policy – Socio-economic aspirations and goals of the nation

Balance and Limitation:

17. Harmony and Balance between Fundamental Rights and Directive Principles – Both Parts III and IV must coexist and support each other

18. Limited Power of Parliament to Amend the Constitution – Parliament’s amending power itself is limited and cannot be converted into absolute power

Judicial Powers:

19. Powers of the Supreme Court under Articles 32, 136, 141, and 142 – Protective jurisdiction and remedial powers

Key Principles Derived from Basic Structure Doctrine

1. The Doctrine of Limited Amendment Power

• Parliament can amend any part of Constitution (including Fundamental Rights)

• But amendments cannot alter or destroy the basic structure

• The power to amend is not the power to destroy

2. Judicial Review of Constitutional Amendments

• Courts can scrutinize constitutional amendments for validity

• Even amendments cannot override the basic structure

• Judicial review is itself a basic feature and cannot be removed

3. Temporal Application

• Basic structure doctrine applies to amendments after April 24, 1973 (Kesavananda date)

• Earlier amendments (before this date) generally not subjected to basic structure review (except in specific circumstances)

4. Case-by-Case Determination

• No exhaustive definition of basic structure

• Each feature is determined through judicial interpretation

• Different judges may have varying views on what constitutes basic structure

5. Flexibility and Evolution

• Basic structure doctrine is not static

• New elements can be recognized as society and constitutional interpretation evolve

• The doctrine balances protection with flexibility

6. Hierarchy of Constitutional Principles

• Basic structure principles are hierarchically superior to non-basic elements

• A conflict between basic and non-basic features resolves in favor of basic structure

Significance of the Basic Structure Doctrine

1. Protection of Constitutional Identity

• Preserves the fundamental character and identity of the Constitution

• Prevents majoritarian destruction of constitutional values

• Protects minority rights and democratic principles

2. Limitation on Political Power

• Checks arbitrary use of amendment power for political gains

• Prevents governments from using super-majority to dismantle democracy

• Ensures constitutional amendments serve nation-building, not political convenience

3. Judicial Role in Constitutional Governance

• Establishes courts as custodians of constitutional values

• Grants judicial review over amendments

• Balances between legislative supremacy and constitutional supremacy

4. Constitutional Continuity and Stability

• Ensures constitutional framework remains coherent and stable

• Prevents fragmentation through repeated fundamental amendments

• Maintains constitutional trust and legitimacy

5. Democratic Safeguard

• Protects democratic institutions and processes from dismantling

• Ensures periodic elections and civilian rule

• Guards against authoritarian constitutional change

Criticisms and Challenges

1. Subjectivity and Judicial Overreach

• Different judges define basic structure differently

• Raises concerns about judicial activism

• Gives unelected judges power to override elected Parliament

2. Lack of Clear Definition

• No exhaustive list provided by courts

• Case-by-case determination creates uncertainty

• Ambiguity in application and scope

3. Conflict with Separation of Powers

• Violates strict separation of powers principle

• Judiciary interferes in legislative amendment power

• Creates tripartite tension in constitutional governance

4. Criticism of Emergency Period Application

• Some argue doctrine was unduly invoked during 1975-1977 Emergency

• Courts faced pressure to validate or invalidate Emergency amendments

• Political circumstances influenced judicial interpretation

5. Practical Implementation Issues

• Difficulty in determining when amendments violate basic structure

• Different benches may reach different conclusions

• Creates scope for strategic litigation

Application in Practice: Recent Trends (2023-2025)

Narrower Scope Application:

• Recent judgments suggest courts apply basic structure doctrine more conservatively

• Clear violation required, not merely inconsistency with basic principles

• Courts show deference to Parliament’s legislative judgment in certain areas

Specific Sectoral Applications:

1. Reservation Policy: Flexibility shown in economic criteria reservation

2. Welfare Legislation: Article 31C protection for welfare laws

3. Fundamental Rights: Continued protection but with reasonable restrictions allowed

4. Secularism: Requires explicit violation of constitutional provisions, not general inconsistency

Emerging Principles:

• Doctrine of Revival: Original provisions revive when amendments struck down

• Composite legislative intent: Courts respect Parliament’s overall legislative purpose

• Proportionality Test: Amendments must be proportionate to their objectives

Conclusion

The Basic Structure doctrine represents a sophisticated constitutional principle balancing competing values in Indian democracy:

• Parliamentary sovereignty with constitutional supremacy

• Majoritarian will with minority rights protection

• Democratic flexibility with constitutional permanence

• Legislative power with judicial review

The doctrine has evolved from its 1973 inception in Kesavananda Bharati to become a cornerstone of Indian constitutional jurisprudence. Recent judgments demonstrate both its enduring importance and its contextual application, as courts navigate the tension between respecting legislative power and protecting foundational constitutional values.

For UPSC aspirants and constitutional scholars, the basic structure doctrine represents the intersection of constitutional law, political philosophy, and judicial statesmanship—making it essential for understanding modern Indian constitutional governance.

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