This article has been written by Yash Dodani, a second-year student at NALSAR University. He has provided a detailed analysis of the basic structure doctrine and the final word on it.


The Constitution of India has given powers to Parliament and the State Governments to make laws in their respective jurisdictions. However, the law-making powers and exercise by the Parliament or the State Governments are not ultimate. The Supreme Court of India has the power to declare any law made by the above-said authorities as constitutionally invalid, or Ultra Virus if that law is against any Article[s] of the Constitution. The Founding members of the Constitution wanted the Constitution to be an adaptive document that can be amended according to the changing situations of the country and not a rigid one. To give rise to such intention, the Constitution gives powers to the Parliament to amend the Constitution under Article 368 which has given absolute powers to the Parliament to amend the Constitution as and when required. However, the Supreme Court has acted as a big speed breaker to the speed in which the Parliament wanted to amend the Constitution. The intention of the Supreme Court doing such is to preserve the basic ideas of the Constitution which were embodied by the creators of the Constitution. The apex Court has pronounced in cases that the Parliament can’t change the basic features of the Constitution under the power to amend the Constitution. The apex Court recognized the concept of ‘basic structure’ for the first time in the landmark and the judgment of the highest Judge bench, the Keshavnanda Bharti case.[1]

Before the Keshavnanda Bharti Judgment | History

The investing of the power of the Parliament to amend the Constitution and especially the 3rd chapter which gives the fundamental rights to the citizens was challenged in the Court in 1951, just 4 years after the independence. The petition was filed by various landowners. At that time the ruling Congress party had an electoral promise that it will apply the socialistic goals of the Constitution provided under the chapter of directive Principles of State Policies [Article 39[b] and [c]] which directed the state to distribute the resources equally among all citizens and to prevent the concentration of power and resources among few. Keeping the DPSP in mind the Congress made various land reforms which were taking away the land of the people in order to distribute equal resources. The people who had lands challenged the validity of these laws on the ground that it is violative of the fundamental right to property. The courts on the ground of fundamental rights to property stuck down the land reform laws.

Piqued by the judgments of the Courts, the Parliament made the Ninth Schedule and made it to remove the laws under it from the scope of judicial review. The parliament brought the Ninth Schedule through the very first amendment made in 1951 in order to remove certain laws from judicial review. This umbrella gave support to more than 250 laws made by the parliament in order to regulate the size of property held by the citizens. The whole object of the Ninth Schedule was to protect certain laws from the judiciary. The property owners again challenged the constitutional validity of putting the land reform laws under the Ninth Schedule and argued that these laws are violating Article 13[2] of the Constitution of India which guarantees the protection of the fundamental rights of the citizen. The Article provides that the Parliament can’t pass a law which affects the fundamental right of the citizen. But this argument was not accepted by the Supreme Court in two cases namely, Sanskari Prasad Singh Dev v UOI[2] and Sajjan Singh v Rajasthan.[3]  But decisions after that which actually accepted the argument made confusion as to what is the stand of the Court.

The Golaknath Judgment

The Golaknath Judgment[Golaknath v State of Punjab[4]] was a landmark judgment with a 6:5 decision of the SC where the then CJI, Justice Subba Rao said that the power of parliament to make laws is vested under Article 245, 246 and 248 and to amend them the power is under Article 368. The powers of the parliament to amend the Constitution will be considered as law as said in Article 13[2].

The majority judgment of the SC said that there are some Implied limitations of the Parliament while they are amending the constitution. The view further goes on to say that the fundamental rights of the citizens have a permanent place in the constitution. The court further goes on to say that when the people have given the Constitution to themselves, they have reserved for themselves something and that is the Fundamental Rights. The parliament can’t bring the amendments that modify, restrict the rights of the people, because of the very nature of the Constitution. They said that fundamental rights can only be amended by making a constitution assembly, if they want to do so.

In other words, there are some things which need to have some special procedures because these changes affect the rights of the citizens and can influence the life of the citizens.

The term ‘basic structure’ was used for the first time by the counsels who were arguing for Golaknath in the above case but the court in its judgment never used that term. It was only in the case of Keshavnanda Bharti v State of Kerala which was decided by a 13 judge bench in the year 1973 where the court had recognized the concept of ‘basic structure’. 

Nationalisation of Banks

The Congress had suffered a heavy loss after the Golaknath verdict in the parliamentary elections and the state elections. Barrister Nath Pai brought a bill in the parliament on the table which had an object to restore the supremacy of Parliament in amending the Constitution, but that bill could not be passed due to the political reasons. But this came out in another form when the Parliament passed the laws giving access to the agriculture sector to bank credits ensuring equal distribution of wealth. It was done by Nationalising the Banking system. The Parliament said that they were bringing and implementing the DPSPs, but the SC rejected the move.

It can be seen from the above discussion that the Parliament was more stuck to DPSP, while the SC was running with the idea of ‘Protection of Fundamental rights’ as given in Article 13[2]. At another level, the battle was between the elite property-holding class which were very few in number and the majority less or no property holders, for whose interest the Congress party claimed to do its duty as promised in the electoral promise. After all these, in less than a few weeks, PM Indira Gandhi dissolved the LokSabha.

In the 1971 elections, the Constitution itself became a tool for the election. Majority of the parties called for the changes in the Constitution so as to get supremacy of the Parliament. A.K. Gopalan of the Communist Party of India (Marxist) went to the extent of saying that the Constitution be done away with lock stock and barrel and be replaced with one that enshrined the real sovereignty of the people.[5] As said above, the Congress after coming to power in the year 1971, tried to regain the power of the Parliament in amending the constitution. The parliament achieved the power to amend any part of the constitution including the Part on Fundamental rights by the 24th Amendment. Again the land reform of the parliament was put under the Ninth schedule which was not allowed for the judicial review. Even the President was made bound to assent to any amendment made by both the houses.

Emergence of Basic structure Doctrine in Keshavnanda Bharti case

However, the Constitutional validity of these provisions was challenged in the Keshavnanda Bharti v State of Kerala which was heard by the Full Bench of the Supreme Court [13 judges]. The summary report of the Case was signed by Nine Judges. This summary records the most important points that came out in the judgment of this case. Finally, this case was the first of all where the SC has recognized the concept of ‘basic structure’,

The judges agreed that the parliament had the power to amend any part of the Constitution and the 24th Amendment is valid and also agreed that the Golaknath case has been decided wrongly and there is a difference in Article 245, 246, 248 and 368. There are two types of powers as given under

  1. To make any law by using the legislative powers.
  2. To amend the constitution as under 368.

The court also agreed that to amend the constitution is not always a law.

To amend the constitution is not an ordinary exercise as compared to enacting the legislation. As the Constitution is the most superior to any other body, all laws in the Country should follow the framework to make these laws as given in the Constitution. Constitution does not contain all the laws which govern the country, but a framework to enact the laws. To amend the framework, Parliament is alone given the powers under Article 368.

All the seven judges including the then CJI Sikri, who said that the powers of the Parliament to amend the constitution are subject to some inherent limitations, which are implied while framing the constitution. He said that the parliament can’t damage, alter, change the basic structure of the Constitution. This was said in keeping in mind the preservation of the ideas of the Constitution. 

Basic structure according to the Majority Decision

In claiming the basic features of the constitution, every judge in the majority had different views and there were differences in the majority view as well.

Sikri CJ said that the basic structure would include things which are said in the Preamble of the Constitution i.e. republic, sovereignty, secular and federal.

Shalat J and Grover J added some more features, two of which were the DPSP to make a welfare state and the unity of the nation as a whole.

 Hegde J and Mukherjee J were satisfied with the above list.

Although only six judges agreed that the fundamental rights are the basic features of the constitution and the Parliament could not be vested with the power to amend such provision. But as it was a minority view, it could not be said that the fundamental rights are the basic features.

The Minority View

 The minority view said that there can’t be any distinction between what is essential or the basic structure and what is not because their reasoning said that all the parts of the constitution are equally important and thus the Parliament can make any change in the constitution as given under Article 368, without looking at the basic structure.

The Indira Gandhi election case

Again in 1975, the questions were raised on the basic structure of the constitution. Raj Narian who was the opponent of Indira Gandhi in the 1975 elections, filed a petition in the Supreme Court saying that the elections were not free and fair and Indira Gandhi had malpractice in order to win the election. The court had given an order saying that Indira Gandhi can function as a Prime Minister provided that she will not get to draw the salary, or to speak or vote in the Parliament. To save the PM from the court proceedings, the parliament passed the Thirty-Ninth Amendment to the constitution which said that the SC can’t take up the disputes of the election of President, Speaker of Lok Sabha or the PM. But there will be a separate body made by the Parliament in order to resolve the issues related to the election of these members. The wrong intentions of the Government can be seen when the Thirty-Ninth Amendment was made in a super fast speed. This amendment was passed by the Lok Sabha on the same date when the bill was introduced, was passed by Rajya Sabha in two days and the later day, it got the assent of the President and was introduced in the official gazette after 3 days.  

The counsel for Raj Narian argued that the move of the parliament is affecting the basic structure of the constitution and it can’t make amendments to the constitution where an election has been declared void by the High Court at Allahabad.

Interestingly the court was busy with the part which said that the courts can’t adjudicate upon the election issues and said that it can adjudicate upon at least the current issue and upheld the Thirty-Ninth Amendment otherwise. And the election was declared to be valid on the point that the current election laws fit into the election.

The court again made a list in the basic structure and said that free and fair elections are one such feature to it. It was also agreed that the power of judicial review is another essential feature of the basic structure.

After two days of this decision, the court sat on a review of the Keshavnanda Bharti case. The counsel for the coal mining company argued a lot on the line that if there were no such review petitions, the courts can’t sit on its own to review a case. It was seen that there was an indirect involvement of the government in this issue. 

However, after the National Emergency in the year 1975, the whole country moved away from this issue.

In light of the national emergency, the party formed a committee under the chairmanship of Sardar Swaran Singh that brought the 42nd amendment to the constitution that said that the DPSPs would get preference over the fundamental rights of the citizens. It also said that the amendments to the constitution can’t be questioned in any court on any ground.

This amendment was challenged again by the owners of the Minerva Mills. Mr. N. A Palkhiwala who was the counsel for the owners argued that section 55 of the 42nd amendment had given absolute powers to the parliament to amend the constitution. When the amendments were made and protected from judicial review, it violated the basic structure of the constitution. The court accepted the argument saying that the courts have the power to review any amendment to the constitution.

The court also declared the amendment to Article 31C which said that the DPSP would be focused and fundamental rights will be less important, unconstitutional. However, the amendment to Article 31C has not been deleted till today.

Similar cases after it said that the laws under Ninth Schedule will also be open to review.


It can be said that the final way in this issue has not been decided by the SC. However, it is clear that all amendments to the constitution can be put for judicial review and even those laws which are put under the Ninth Schedule can be put for review.

[1] Keshavnanda Bharti v State of Karela , [1973] 4 SCC 225.

[2] AIR 1951 SC 458.

[3] AIR 1965 SC 845.

[4]  AIR 1967 SC 1643. ss

[5] Quoted in Granville Austin, Working a Democratic Constitution, The Indian Experience, Oxford University Press, New Delhi, 1999, p. 235.   

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