The Basic Structure doctrine, from Kesavananda to today

Most constitutions can be amended. The hard question every democracy faces is whether there is anything an amendment cannot do. Can a legislature with a large enough majority abolish elections? End judicial review? Turn a secular republic into something else?

India's answer, arrived at through a sequence of cases between 1951 and 1980, is the basic structure doctrine: Parliament's amending power under Article 368 is wide, but it does not extend to destroying the Constitution's basic structure. It is one of the most important — and most debated — ideas in Indian constitutional law.

The question in its original form

Article 368 gives Parliament the power to amend the Constitution. Article 13(2) says the State shall not make any "law" that takes away or abridges Fundamental Rights. So the early question was narrow: is a constitutional amendment a "law" under Article 13? If it is, Parliament cannot amend Fundamental Rights at all.

The sequence of cases

Golaknath and Parliament's response

Golaknath (1967), decided by eleven judges by a 6–5 majority, held that Parliament had no power to amend Fundamental Rights. Parliament responded with the 24th Amendment (1971), which declared that nothing in Article 13 applies to amendments under Article 368, and that the President must assent to amendment bills.

Kesavananda Bharati (1973)

Thirteen judges heard the case — the largest bench in the Court's history — and it was decided on 24 April 1973, by a 7–6 majority. The Court:

• upheld the 24th Amendment and overruled Golaknath: Parliament can amend any provision, including Fundamental Rights;
• but held that the power to amend does not include the power to destroy — Parliament cannot alter the "basic structure" or framework of the Constitution.

The judges did not agree on a single list of what the basic structure contains. That openness was deliberate and remains the source of both the doctrine's strength and its critics' objections.

The Emergency years

In Indira Nehru Gandhi v. Raj Narain (1975), the Court struck down a clause of the 39th Amendment that placed the election of the Prime Minister beyond judicial scrutiny. Free and fair elections were held to be part of the basic structure.

The 42nd Amendment (1976) then inserted clauses (4) and (5) into Article 368, declaring that no amendment could be questioned in any court and that there was no limitation on Parliament's amending power.

Minerva Mills (1980)

The Supreme Court struck those clauses down. Its reasoning was elegant: since Parliament's power to amend is itself limited, Parliament cannot convert it into an unlimited power. Limited amending power and judicial review are themselves part of the basic structure. The Court also held that the balance between Fundamental Rights and Directive Principles is basic.

What counts as basic structure?

There is no exhaustive list. Through many judgments, the Court has identified features including:

• supremacy of the Constitution;
• the republican and democratic form of government;
• the secular character of the Constitution;
• separation of powers between the legislature, executive and judiciary;
• the federal character of the Constitution;
• sovereignty, unity and integrity of India;
• judicial review, including the powers of the High Courts under Article 226 (L. Chandra Kumar, 1997);
• free and fair elections;
• limited power of Parliament to amend the Constitution;
• the harmony and balance between Fundamental Rights and Directive Principles;
• the rule of law and the essence of equality;
• independence of the judiciary.

Independence of the judiciary: the NJAC case

The 99th Amendment (2014) replaced the collegium system of appointing judges with a National Judicial Appointments Commission. In 2015 the Supreme Court struck it down, holding that the NJAC's composition — which included the Law Minister and two eminent persons with a potential veto — compromised judicial independence, a basic feature. The collegium system was restored.

This case shows the doctrine is not a historical relic: it continues to decide live disputes between the branches of government.

The debate over the doctrine

For Mains, you should be able to present both sides.

Arguments for the doctrine:

• It protects the Constitution's core against a transient majority — a safeguard especially relevant given the experience of the Emergency.
• It gives substance to constitutionalism: some values are meant to be permanent.
• Several other countries' courts have drawn on the Indian doctrine.

Arguments against it:

• It is not written in the Constitution; critics see it as judges claiming a power the text does not give them.
• Its content is uncertain and expands case by case, which makes amendments unpredictable.
• It can place unelected judges above elected representatives on fundamental questions of policy.

A balanced conclusion recognises that the doctrine has worked as a check in moments of genuine constitutional danger, while acknowledging that its open-endedness requires judicial restraint.

A timeline worth memorising

1951 Shankari Prasad → 1965 Sajjan Singh → 1967 Golaknath → 1971 24th Amendment → 1973 Kesavananda → 1975 Raj Narain → 1976 42nd Amendment → 1980 Minerva Mills → 1981 Waman Rao → 1997 L. Chandra Kumar → 2007 I.R. Coelho → 2015 NJAC judgment.

Practice questions

1. Prelims-type: Which case held, by a 7–6 majority, that Parliament cannot alter the basic structure? Which case struck down clauses (4) and (5) of Article 368?
2. Mains-type (150 words): Trace the evolution of the basic structure doctrine from Golaknath to Kesavananda Bharati.
3. Mains-type (250 words): "The basic structure doctrine is a judicial innovation that has preserved Indian democracy." Critically examine.