Basic Structure Doctrine of the “Constitution of India”
Article By- Om Sanjay Botwe
Introduction:
The Constitution of India has guaranteed several provisions to ensure good governance and to
protect the rights of the Country as well as its citizens. Also, the Constitution of India being a
supreme, special, legal document gives a clear road map to perform their duties in the Centre
and State. All three organs should work within the boundaries of the Constitution.
The concept of the Basic Structure Doctrine was taken into consideration by the Judiciary on
24th April 1973 in the Keshvananda Bharati case which is also known to be an extensively
highlighted area of democracy and the political infrastructure of India. By the Supreme Court,
there was a limitation put upon the amending powers of the Parliament so that the ‘Basic
Structure of Constitution’ cannot be amended under its ‘constituent power’ which is provided
in Art. 368 of the Indian Constitution.1
Keywords:
Constitution, Doctrine, Basic Structure, Parliament, Democracy
The History and the Need for the Constitution:
The Indian constitution, adopted in 1950, represents the history and aspirations of the Indian
people for self-rule. The British East India Company arrived in India in 1608, initially as a
trading entity but later establishing an administrative regime due to socio-political
circumstances and exploitative practices. The Indian National Congress, founded in 1885,
focused on achieving political representation for Indians in the colonial government. India, the
United Kingdom, and South Africa are examples of democratic countries with constitutions
that ensure cooperation among diverse individuals, addressing racial discrimination, and
ensuring a just and inclusive society.
The Rise of the Constitution:
In December 1929, the Indian National Congress held a session in Lahore, where the debate
centered around adopting Dominion status or ‘Poorna Swaraj’. Leaders like Motilal Nehru
supported Dominion Status, while Netaji Subhash Chandra Bose and Pandit Jawaharlal Nehru
supported ‘Poorna Swaraj’. The majority of votes were in favor of ‘Poorna Swaraj’, and the
Congress passed a resolution demanding complete freedom from the British Raj. Today, 26th
January is celebrated as Republic Day, marking India’s independence from British rule.
1Basic Structure Constitutionalism: By Sanjay S. Jain and Sathya Narayan
The Constituent Assembly:
The Constituent Assembly of India was a body established in 1946 to draft the Constitution for
the newly independent nation. The Constituent Assembly comprised 389 members including
15 women, and elected representatives from various provinces, communities, and political
parties, it represented the diversity of India’s populace. Led by Dr. B.R. Ambedkar, the
Assembly engaged in extensive debates and discussions to create a Constitution that would
embody the aspirations and values of the Indian people. For continuous efforts of 2 years, 11
months, and 18 days, the Constituent Assembly crafted a comprehensive document that
outlined the framework for governance, fundamental rights, and duties of citizens. On January
26, 1950, the Constitution of India came into effect, marking a historic milestone in the
country’s journey towards democracy and self-governance. The Constituent Assembly’s efforts
laid the foundation for India’s democratic institutions and principles, ensuring justice, liberty,
equality, and fraternity for all its citizens.
The Parliament:
The Indian Constitution, a republican and federal structure, outlines the parliamentary system
in India. It comprises the President, the Rajya Sabha (Council of States) the Lok Sabha (House
of the People), and a Union Executive responsible to the Lok Sabha. The State’s head, the
President of India, acts on the advice of the Union Council of Ministers. The Parliament
functions within a written Constitution, with limited authority and jurisdiction due to the
distribution of powers between the Union and the States. The Constitution includes a code of
justiciable fundamental rights and judicial review for constitutionality. The largest law-making
assembly in India is the Parliament, consisting of the President, Lok Sabha, and Rajya Sabha.
The Parliament’s structure includes a Horse Shed layout, with 550 seats for the Lok Sabha and
250 seats for the Rajya Sabha. The first Lok Sabha speaker was G.V. Mavalankar.
The Fundamental Rights:
The model for the Fundamental Rights in India has been adopted from the Constitution of the
USA. In America, they are known as the Bill of Rights, commonly they are known as the basic
rights of people, but in India, they are known as the Fundamental Rights. Also, they are known
as the Magna Carta of India i.e. these are the written documents that were related to
fundamental rights. They were adopted in the UK in 1215. The concept of Fundamental Rights
was inspired by the US Bill of Rights. In the Indian Constitution, the Fundamental rights are
given in Part III (Art.12-35). The main objective of fundamental rights is to Secure the Political
freedom of its citizens. Through the Constitution, the political freedoms of the citizens are
ensured by the Fundamental Rights and the Social and Economic Rights of the citizens are
ensured by the Directive Principles of State Policy (DPSP). Fundamental Rights are essential
for the all-round development of an Individual and also, they are important for the existence of
an individual in a dignified manner.
1) Check on the Unlimited Power of the State: Fundamental rights can impose restrictions
on arbitrary powers of the state to protect individual rights.
2) Available Against State: Fundamental rights are available against the State, and not private
Individuals.
3) Not Absolute Rights: As fundamental rights are not absolute; hence reasonable restrictions
can be imposed on them.
4) Suspended During Emergency: Fundamental rights can be suspended during an
emergency. E.g. During National Emergency, Art. 19 is automatically suspended. If needed,
the President can also suspend other rights as well except Art. 20 & 21.
Originally, in our Constitution, there were 7 fundamental rights. They are as follows;
Right to Equality
Right to Freedom
Right Against Exploitation
Right to Freedom of Religion
Cultural and Educational Rights
Right to Property
Right to Constitutional Remedies
But in the 44th amendment that took place in 1978, the Right to Property (Art. 19(1)(f) and
Art. 30) was deleted, and then after, it was put in Art. 300 as a Constitutional Right.
Right to Equality (Articles 14-18): This right ensures equality before the law and
prohibits discrimination based on religion, race, caste, sex, or place of birth.
Right to Freedom (Articles 19-22): This right guarantees freedom of speech,
expression, assembly, association, movement and occupation.
Right against Exploitation (Articles 23-24): This right prohibits trafficking, forced
labor, and child labor.
Right to freedom of religion (Articles 25-28): This right guarantees the freedom of
religion, the right to practice and propagate religion, and the right to manage religious
affairs.
Cultural and Educational Rights (Articles 29-30): These rights protect the rights of
minorities to conserve their language, culture, and education.
Right to Constitutional Remedies (Article 32): This right guarantees the right to
move the Supreme Court for the enforcement of fundamental rights.
Directive Principles of State Policy:
Fundamental Rights have been discussed in the Constitution in Part III from Art. 12-35. While
Art. 36-51 have been discussed under Part IV of the Constitution. DPSPs have been adopted
in our Constitution from the Irish Constitution. DPSPs are not legally enforceable, but they are
elementary in the governance of the country and are considered to be the conscience of the
Constitution. DPSPs are a set of guidelines that the government and the state should follow
while framing policies and passing laws. These principles aim to promote social and economic
democracy, reduce inequality, and create a just society. If we concise our Preamble to the
Indian Constitution, it has mainly three goals i.e. to achieve Social, Economic, and Political
Justice. The Fundamental Rights and DPSPs have the combined responsibility for meeting
these goals.
Now, let us see the difference between Fundamental Rights and DPSPs:
| Fundamental Rights | Directive Principles of State Policy |
| Fundamental Rights are a kind of negative Rights i.e. they lay down certain things that must not be done by the State if they wish to achieve justice e.g. inequality, arbitrariness, etc. |
DPSPs are a kind of positive Rights, that lays down certain things that the State must do to meet the ends of Justice. |
| Fundamental Rights are more concerned with Political Justice. |
DPSPs are more concerned with Social and Economic justice. |
| Fundamental Rights are Justiciable Rights i.e. if the State (Centre & State) fails to respect the Fundamental Rights of an Individual, there is a remedy to approach the Courts, which can direct the State in doing so. |
DPSPs are Non-Justiciable rights i.e. if the State does not follow these rights, an individual cannot approach the Courts. |
From this, we come to know that DPSPs are non-enforceable rights which is also provided in
Article 37. Article 36 is the definition clause, which says that the definition of ‘State’ as given
under Art 12 shall also be applicable in Part IV. There are mainly 3 characteristics of Art. 37.
They are as follows:
1) Directive principles are non-enforceable rights.
2) For the governance of our country, Directive principles are a fundamental source.
3) Whether the State or Government, to make any law have to follow DPSPs.
If Directive principles are to be enforced, the greatest force behind it is the ‘Public Opinion’.
E.g. A government is based upon a popular vote. If a government does not bring good policies
and does not respect Directive Principles, it’s possibility of continuing government after 5 years
of its election gets diminished. So, for the sake of the popular vote and improvement in public
opinion, the State and government are bound to respect and follow DPSPs. The Constitution
has no classifications made concerning Articles in Part IV. They are classified into 3 categories
based on their contents and principles: Socialistic, Gandhian, and Liberal.
1. Socialistic (Art. 38 – 47): These all provide for the establishment of a welfare State.
2. Gandhian (Art. 40 – 48): These all talk about the Gandhian principles that were
envisioned by Gandhiji during the National struggle for Independence.
3. Liberal (Art. 44 – 51): These all promote the idea of Liberalisation.
Overall, DPSPs are a reflection of the ideals and values that the Indian Constitution stands for.
They are essential in creating a just and equitable society, and their importance cannot be
overstated in India’s ongoing journey towards progress and development.2 3 4
“The Basic Structure Doctrine”
The term “Doctrine” refers to a set of beliefs or a body of teachings or instructions, taught
principles or positions, the essence of teachings in a given branch of knowledge or belief
system. The word Doctrine is derived from the Latin term ‘docere’. Also, the term Doctrine
has various usages like Religious usage, Philosophical usage, Military usage, Political usage,
etc.
The Indian Constitution, despite not mentioning the term “Basic Structure,” aims to preserve
the essence of Indian democracy and protect the rights and liberties of the people. The doctrine,
introduced in the Kesavananda Bharati case, outlines the basic structures of the constitution,
including supremacy, unity, and separation of power. Additional features include the rule of
law, judicial review, and a balanced system of free and fair elections. Any law or amendment
violating these principles can be struck down by the Supreme Court.5 6
2Basic Structure Doctrine of Indian Constitution: An article by Gourab Das
3Fundamental Rights Indian Constitution by Priya Jain (Finology Legal)
4Directive Principles Of State Policy | DPSP | Article 36-51 | Indian Constitution by Priya
Jain (Finology Legal) https://www.youtube.com/watch?v=Id_Chh5y8Zc&t=28s
5Basic Structure Doctrine: Ipleaders
6Basic Structure Doctrine: VajiramandRavi.com
Evolution of Basic Structure Doctrine:
The concept of the basic structure of the constitution evolved over time. In this section, we
shall discuss this evolution with the help of some landmark judgements related to this doctrine:
Article 13 of the Indian Constitution:
13. Laws inconsistent with or in derogation of the fundamental rights
(1) All laws in force in the territory of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the provisions of this Pan, shall, to the
extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this
Part and any law made in contravention of this clause shall, to the extent of the
contravention, be void.
(3) In this article, unless the context otherwise requires,
a. “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom
or usage having in the territory of India the force of law;
b. “laws in force” includes laws passed or made by Legislature or other competent
authority in the territory of India before the commencement of this Constitution and
not previously repealed, notwithstanding that any such law or any part thereof may
not be then in operation either at all or in particular areas.
(4) Nothing in this article shall apply to any amendment of this Constitution made under article
368.
Article 368 of the Constitution-
368. Power of Parliament to amend the Constitution and Procedure therefore:
(1) Notwithstanding anything in this Constitution, 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.
(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for
the purpose in either House of Parliament, and when the Bill is passed in each House by
a majority of the total membership of that House and by a majority of not less than two
thirds of the members of that House present and voting, it shall be presented to the
President who shall give his assent to the Bill and thereupon the Constitution shall stand
amended in accordance with the terms of the Bill:
Provided that if such amendment seeks to make any change in –
(a) article 54, article 55, article 73, article 162, article 241 or article 279A or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article,
the amendment shall also require to be ratified by the Legislatures of not less than one-half of
the States by resolutions to that effect passed by those Legislatures before the Bill making
provision for such amendment is presented to the President for assent.
(3) Nothing in article 13 shall apply to any amendment made under this article.
(4) No amendment of this Constitution (including the provisions of Part III) made or purporting
to have been made under this article whether before or after the commencement of section 55
of the Constitution (Fortysecond Amendment) Act, 1976 shall be called in question in any court
on any ground.
(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever
on the constituent power of Parliament to amend by way of addition, variation or repeal the
provisions of this Constitution under this article. 7
1. Shankari Prasad v. Union of India (1951):
In this case, the SC contended that the Parliament’s power of amending the Constitution
under Article 368 included the power to amend the Fundamental Rights guaranteed in
Part III as well.
2. Sajjan Singh v. State of Rajasthan (1965):
i. In this case also, the SC held that the Parliament can amend any part of the Constitution
including the Fundamental Rights.
ii. It is noteworthy to point out that two dissenting judges, in this case, remarked whether
the fundamental rights of citizens could become a plaything of the majority party in
Parliament.
3. Golaknath v. State of Punjab (1967):
i. Court reverses stance on amending Fundamental Rights.
ii. Fundamental Rights are not subject to Parliamentary restriction as per Article 13.
iii. A new Constituent Assembly is required for amendment. Article 368 provides a
procedure for Constitutional amendment, not Parliament’s power.
iv. The majority judgement suggests implied limitations on Parliament’s power to amend
the Constitution.
v. The constitution grants permanence to citizens’ fundamental freedoms.
vi. People reserved these rights in Constitutional creation.
4. Kesavananda Bharati Vs State of Kerala (1973):
i. This was a landmark case dated 24th April 1973, in defining the concept of the basic
structure doctrine.
ii. The SC held that although no part of the Constitution, including Fundamental Rights,
was beyond the Parliament’s amending power, the “basic structure of the Constitution
could not be abrogated even by a constitutional amendment.”
iii. The judgement implied that the parliament can only amend the constitution and not
rewrite it. The power to amend is not a power to destroy.
iv. This is the basis in Indian law in which the judiciary can strike down any amendment
passed by Parliament that conflicts with the basic structure of the Constitution.
5. Indira Nehru Gandhi v. Raj Narain (1975):
i. Here, the SC applied the theory of basic structure and struck down Clause(4) of Article
329-A, which was inserted by the 39th Amendment in 1975 because it was beyond the
Parliament’s amending power as it destroyed the Constitution’s basic features.
ii. The 39th Amendment Act was passed by the Parliament during the Emergency Period.
This Act placed the election of the President, the Vice President, the Prime Minister
and the Speaker of the Lok Sabha beyond the scrutiny of the judiciary.
iii. This was done by the government to suppress Indira Gandhi’s prosecution by the
Allahabad High Court for corrupt electoral practices.
6. Minerva Mills v. Union of India and Ors (1980):
i. This case again strengthens the Basic Structure doctrine.
ii. The judgement struck down 2 changes made to the Constitution by the 42nd
Amendment Act 1976, declaring them to be violative of the basic structure.
iii. The judgement makes it clear that the Constitution, and not the Parliament is supreme.
In this case, the Court added two features to the list of basic structure features.
iv. They were: judicial review and balance between Fundamental Rights and DPSP. The
judges ruled that a limited amending power itself is a basic feature of the Constitution.
7. Waman Rao v. Union of India (1981):
i. The SC again reiterated the Basic Structure doctrine.
ii. It also drew a line of demarcation as April 24th, 1973 i.e., the date of the Kesavananda
Bharati judgement, and held that it should not be applied retrospectively to reopen the
validity of any amendment to the Constitution which took place prior to that date.
iii. In the Kesavananda Bharati case, the petitioner had challenged the Constitution (29th
Amendment) Act, 1972, which placed the Kerala Land Reforms Act, 1963 and its
amending Act into the 9th Schedule of the Constitution.
iv. The 9th Schedule was added to the Constitution by the First Amendment in 1951 along
with Article 31-B to provide a “protective umbrella” to land reforms laws.
v. This was done in order to prevent them from being challenged in court.
vi. Article 13(2) says that the state shall not make any law inconsistent with fundamental
rights and any law made in contravention of fundamental rights shall be void.
vii. Now, Article 31-B protects laws from the above scrutiny. Laws enacted under it and
placed in the 9th Schedule are immune to challenge in a court, even if they go against
fundamental rights.
viii. The Waman Rao case held that amendments made to the 9th Schedule until the
Kesavananda judgement are valid, and those passed after that date can be subject to
scrutiny.
8. The Indra Sawhney Case (1992):
i. The Indra Sawhney Case, a landmark judgement in India, was delivered on November
16, 1992, by the Supreme Court of India.
ii. The case, named after Indra Sawhney, challenged the implementation of the Mandal
Commission Report’s recommendations, which recommended a 27% reservation for
the Other Backward Classes (OBCs) in government jobs and educational institutions.
iii. The Supreme Court ruled that the reservation for OBCs did not exceed the 50% limit
set by the Indira Sawhney Case and that the reservation was not violative of the basic
structure of the Constitution. The Court further established that the Constitution
recognizes the existence of backward classes and provides for their upliftment.
iv. The concept of equality in the Constitution does not mean treating everyone alike but
rather treating different groups differently to achieve substantive equality. Reservation
is an essential feature of the Constitution and a necessary tool to achieve substantive
equality and promote social justice in India.
9. IR Coelho Case (2007):
A 9 Judge Bench reiterated Waman Rao’s Judgement that all laws put in 9th Schedule
after 24th April 1973 shall be under the purview of judicial review.8
8Explained Like A Story- Basic Structure Doctrine by YG Law
Basic Structure Doctrine in Other Countries
The basic structure doctrine can be explained as that part of the Constitution which cannot be
amended by the Parliament. The doctrine, in India, evolved through various cases and was
finally spelt out in Kesavananda Bharati, as discussed above. However, the doctrine can be
found in various countries. This section shall discuss the provisions of the countries where the
doctrine can be found. These include, inter alia, Germany, France, Greece, Portugal, and
Pakistan.
Germany
The German Constitution, known as the Basic Law for the Federal Republic of Germany, is a
prime example of the Constitution, defining the basic structure under Articles 1 and 20. Article
1 guarantees human dignity and inalienable rights, while Article 20 establishes the Federal
Republic as a democratic and social federal state. The basic structure was laid down after Nazi
rule ended in 1945, and is now known as the constitutional identity of Germany.
France
Similar to the German Constitution, the Constitution of France expressly limits the powers of
the government to amend the Constitution. Such limitation is expressed under Article 89 of the
Constitution of France, 1958. The provision, apart from the procedure for amendment, states
that “The republican form of government shall not be the object of any amendment.” Thus, the
structure of the republican form of government is the basic structure provided under the French
Constitution and is protected from any amendment by the Government.
Greece
The Greek Constitution also expressly protects the basic structure like the German and the
French Constitution. Article 110 of the Constitution provides for the procedure of revision. It
states that “The provisions of the Constitution shall be subject to revision with the exception
of those which determine the form of government as a Parliamentary Republic and those of
articles 2 paragraph 1, 4 paragraphs 1, 4 and 7, 5 paragraphs 1 and 3, 13 paragraph 1, and 26.”
Thus, the basic structure of the Greek Constitution is provided under these provisions, and are
safeguarded by Article 110.
Portugal
The Portuguese Constitution also provides explicit provisions for the protection of the basic
structure of the Constitution. Article 288 enlists 14 limitations on the Constitutional revision.
These include national independence and unity, republican form of government, separation of
powers, citizen’s freedoms, rights and guarantees, independence of judiciary etc.
Pakistan
The Constitution of Pakistan, following India’s approach, has been subject to debates on
amendments since Kesavananda Bharati. The Supreme Court of Pakistan revisited the issue in
Mahmood Khan Achakzai v. Federation of Pakistan (1997), but the decision was overruled. In
2015, the Court ruled in District Bar Association & Ors. v. Federation of Pakistan that the
Democratic and Parliamentary form of government, along with the Judiciary, are part of the
basic structure of the Constitution of Pakistan.
Comparative Analysis:
The Indian Constitution, a fundamental aspect of Indian law, has been extensively debated by
legal scholars. It shares similarities with the doctrine of implied limitations in the United States
Constitution, the doctrine of entrenchment in Canada, the doctrine of constitutional supremacy
in the United Kingdom, the concept of fundamental rights in South Africa’s Constitution, and
the democratic constitutionalism in Germany. Both doctrines emphasize the importance of
safeguarding democratic values and individual rights, and the basic structure doctrine in the
Indian Constitution is crucial in upholding these values.
Criticisms:
The concept of the “basic structure” in the Constitution, proposed nearly 50 years ago, is often
seen as an abstract idea due to its absence from the text. Critics argue that this doctrine gives
the judiciary power to impose itself over a democratically formed government, leading to
criticisms like Arun Jaitley’s term “tyranny of the unelected” in his 2015 criticism of the NJAC
judgement. Critics argue that the doctrine is unsuitable and destructive to constitutional
legitimacy, as it is inconsistent with the concept of separation of power and is subjectively
defined by judges. 9 10 11
Conclusion:
The basic structure doctrine of the Indian Constitution has been instrumental in its growth and
interpretation, ensuring that it remains an adaptable, living document that meets the evolving
needs of society. The doctrine, first introduced by the Supreme Court in the Kesavananda
Bharati case in 1973, asserts that certain fundamental aspects of the Constitution are beyond
the reach of parliamentary amendments. These features form the foundation of the
constitutional framework and are crucial for upholding democracy, secularism, rule of law, and
individual rights.
The doctrine is a vital tool in preserving the integrity and stability of the Indian Constitution.
It acts as a check on arbitrary legislative power and ensures the preservation of core
constitutional principles. It enables judicial review and safeguards citizens’ rights against
unconstitutional amendments. The boundaries of the basic structure are not always clearly
9https://en.wikipedia.org/wiki/Amendment_of_the_Constitution_of_India#:~:text=Part%2Dx
x%20Article%20368%20(1,the%20procedure%20for%20ordinary%20legislation.
10 https://byjusexamprep.com/current-affairs/criticism-of-basic-structure-doctrine
11 https://pwonlyias.com/upsc-notes/basic-structure-of-constitution-2/
defined, allowing for judicial interpretation and evolution in response to societal changes and
constitutional challenges.
In conclusion, the basic structure doctrine is a crucial principle in Indian constitutional law,
safeguarding the fundamental principles and essential features of the Constitution. It serves as
a protection against attempts to undermine the basic structure and helps maintain a
constitutional balance between the branches of government while safeguarding individual
rights. The doctrine has been widely accepted and upheld by subsequent court decisions, but
its application and interpretation continue to be subject to ongoing legal discourse.