The Constitution is not a mere lawyer’s document, it is a vehicle of life, and its spirit is always the spirit of the age.

Dr. B.R. Ambedkar

As the mitochondria in biology are referred to as the powerhouse of the cell, the Indian Constitution can be said to be the powerhouse for the working system of the nation. It is an instrument of control for the three arms of the nation namely Legislature, Executive & Judiciary. It helps in the systematic separation of power between the three arms of the government, safeguarding the rights & providing the limitations for the inhabitants. 

Basic structure doctrine & its evolution

As article 368 power to the parliament (legislature) to amend the constitution when the necessity arises, the article also lays the fundamental rules & procedure for amending the constitution.    

Parliament’s amending powers are absolute and they incorporate all parts of the constitution. Although, the Supreme Court has functioned as decelerate to the legislative ardor of Parliament since India’s independence. With the focal intent on safeguarding the beliefs of the constitution-makers, the Supreme Court articulated that Parliament could not contort; detriment, or reorient the fundamental characteristics of the Constitution under the plea of amending it.  

It was the case of Indra Nehru Gandhi case in which the faith of the doctrine of basic structure was established & reaffirmed. The petitioner had filed an appeal against the ruling of the Allahabad High Court refusing her win in the election as the Prime Minister. While the appeal was unsettled or in reserve at the Supreme Court, the 39th Amendment was legislated and upheld which affirmed that no court has its jurisdiction over the election of the Prime Minister. Certain other features were also added like the Rule of Law & Power of Judicial Review to the basic structure.

In the case of Minerva Mills, the Supreme Court gave lucidity to the doctrine and set out that the power of amendment under Article 368 is restricted and execution of such power cannot be absolute. A restricted amending power was important for the basic structure doctrine of the Constitution. Further, the congruence and harmony between fundamental rights and directive principles are additionally essential for the basic structure, and anything annihilating the equilibrium is an ipso facto infringement of the doctrine. 

The case of L. Chandra Kumar, again expressed that the power of judicial review under Article 32 of the Supreme Court and Article 226 The High Court is essential for the basic structure doctrine and these powers cannot be attenuated by moving them to administrative tribunals.

Golak Nath Era

The Constitution of India was amended in 1951, which set forth the much-discussed Article 31A and 31B to it. Article 31B instituted the ninth Schedule which asserted that any law gave under it could not be tested for the infringement of Fundamental Rights according to Article 13(2) of the Constitution. Article 13(2) states that the Parliament will not draft any law which abbreviates the rights given under Part III and to that degree it will be void.

An appeal was documented in the Supreme Court of India testing Article 31A and 31B on the ground that they curtail or detract rights ensured under Part III of the Constitution which is against the pneuma of Article 13(2) and thus ought to be pronounced void. In the case of Shankari PrasadThe, Hon’ble Supreme Court held that the power to amend the Constitution including the Fundamental Rights is presented under Article 368, and the word “Law” as referenced under Article 13(2) does exclude an amendment of the Constitution. There is a dissimilitude between Parliament’s law-making power, that is, the legislative power and Parliament’s power to amend or integral power.

After this, few amendments were brought to the Constitution and indeed the extent of amendments was tested in the Sajjan Singh case. The five-judge bench in Sajjan Singh dispensed the legitimacy of the 17th amendment which had added 44 regulations to the 9th schedule. However the entirety of the judges concurred with the verdict of Shankari Prasad yet without precedent for the agreeing belief by Hidyatullah and Mudholkar JJ, questions were raised on the liberating power of Parliament to amend the Constitution and reduce the fundamental rights of the residents.

The Golak Nath verdict

In 1967 an eleven-judge bench of the Supreme Court, passing its 6:5 majority judgment in the Golak Nath case, Chief Justice Subba Rao set forth the inquisitive position that Article 368, which contained provisions associated with the amendment of the Constitution, simply set out the amending procedure. Article 368 did not present upon Parliament the power to amend the Constitution. The amending power (constituent force) of Parliament emerged from different provisions contained in the Constitution (Articles 245, 246, 248) which enabled it to make laws i.e. plenary legislative power.

Consequently, the Supreme Court held that the amending power and legislative power of Parliament were basically something similar. Hence, any amendment of the Constitution should be account law as perceived in Article 13 (2).

The judgment summoned the idea of inferred constraints on Parliament’s power to amend the Constitution. Article 13, as per the majority view of judgment, manifested this constraint on the power of Parliament. Parliament could not change, limit or hinder fundamental rights because of this very plan of the Constitution and the idea of the rights allowed under it. The judges expressed that the fundamental rights were so sacred and supernatural insignificance that they could not be limited regardless of whether such a move was to get the consistent endorsement of the two houses of Parliament. They saw that a Constituent Assembly together might be invoked by Parliament to amend the fundamental rights if vital.

Kesavananda Bharati Era

This case was at first filed to challenge the legitimacy of the Kerala Land Reforms Act, 1963. However, the 29th Amendment of the Constitution set it under the 10th schedule. The appellant was allowed to challenge the 29th Amendment as well as the legitimacy of the 24th and 25th Amendments. 

  • The Kesavananda Bharati Judgement

The notable judgment was given by a 13 judge bench and with a 7:6 majority; they overruled the Golak Nath case. It was held that the power of Parliament to amend the Constitution is all over and reaches out to every one of the Articles yet it’s anything but limitless to a degree that it annihilates certain fundamental features or structure of the Constitution.

The Hon’ble Supreme Court, although, held that the 24th Amendment was legitimate as it just states what was available before certainly. It does not augment the powers of Parliament; Article 368 consistently incorporated the power and way to amend the Constitution.

Basic features of constitution according to Kesavananda verdict

Each judge set down independently, what he thought were the primary or fundamental elements of the Constitution. There was no unanimity of assessment inside the majority view. 

The majority view of the verdict, Chief Justice Sikri, clarified that the idea of basic structure incorporates:

  • Primacy of the Constitution 
  • Conservative and elected based of government 
  • Secular nature of the Constitution 
  • Separation of powers between the legislature, executive and the judiciary
  • Federal nature of the Constitution

Justice Shelat & Grover added two more essential characteristics to the list: 

  • The command to assemble a government assistance state contained in the Directive Principles of State Policy
  • Solidarity and probity of the country

Justice Hegde & Mukherjea recognized a different and more limited list of fundamental characteristics: 

  • Supremacy of India 
  • Parliamentary based feature of the country 
  • Solidarity of the country 
  • Fundamental characteristic of the individual freedom got to the residents 
  • Command to construct a government assistance state

Justice Jaganmohan Reddy expressed that components of the fundamental highlights were to be found in the Introduction of the Constitution and the arrangements into which they interpreted, for example: 

  • Sovereign elected republic 
  • Parliamentary democracy 
  • Three organs of the State

The minority view of the verdict given by Justice A.N. Ray, M.H. Beg, K.K. Mathew and S.O.N. Dwivedi additionally concurred that the Golaknath verdict had been wrongly interpreted. They maintained the legitimacy of every one of the three amendments tested under the eye of the court. Justice Ray held that all pieces of the Constitution were fundamental and no qualification could be made between its fundamental and unimportant parts. Every one of them concurred that Parliament could enact fundamental amendments in the Constitution by practicing its power under Article 368.


One of the most favorable attributes of the Indian Constitution is that it can be amended as per the needs of society. The basic structure doctrine gives the fine harmony among adaptability and inflexibility that ought to be there for amending the power of any Constitution. In today’s time, we can say that there is no quarrel concerning the doctrine but, the only trouble that emerges time & again is the content of the same. 

Still, the sovereign, parliamentary based and secular character of the nation, rule of law, judicial independence, fundamental rights of residents, and so forth are a portion of the fundamental characteristics of the Constitution that have seemed consistently in the Supreme Court’s pronouncements.

The article has been written by Ajay Kataria, from Dr. B.R. Ambedkar National Law University, Sonepat, Haryana.

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