INDIAN POLIY BY M LAXMIKANTH 8TH EDITION

CHAPTER 12 Basic Structure of the Constitution

EMERGENCE OF THE BASIC STRUCTURE

The question whether Fundamental Rights can be amended by the Parliament under Article 368 came
for consideration of the Supreme Court within a year of the Constitution coming into force. In
the Shankari Prasad case1 (1951), the constitutional validity of the First Amendment Act (1951), which
curtailed the right to property, was challenged. The Supreme Court ruled that the power of the
Parliament to amend the Constitution under Article 368 also includes the power to amend Fundamental
Rights. The word ‘law’ in Article 13 includes only ordinary laws and not the constitutional amendment
acts (constituent laws). Therefore, the Parliament can abridge or take away any of the Fundamental
Rights by enacting a constitutional amendment act and such a law will not be void under Article 13.

Again, in the Sajjan Singh case1a (1964), the Supreme Court re-affirmed the above stand. In other words,
the court held that a constitutional amendment act made under Article 368 is not a law within the
meaning of Article 13.

But in the Golak Nath case2 (1967), the Supreme Court reversed its earlier stand. In this case, the
constitutional validity of the Seventeenth Amendment Act (1964), which inserted certain state acts in
the Ninth Schedule, was challenged. The Supreme Court ruled that the Fundamental Rights are given a
‘transcendental and immutable’ position and hence, the Parliament cannot abridge or take away any of
these rights. A constitutional amendment act is also a law within the meaning of Article 13 and hence,
would be void for violating any of the Fundamental Rights.

The Parliament reacted to the Supreme Court’s judgement in the Golak Nath case (1967) by enacting the
24th Amendment Act (1971). This Act amended Articles 13 and 368. It declared that the Parliament has
the power to abridge or take away any of the Fundamental Rights under Article 368 and such an act will
not be a law under the meaning of Article 13.

However, in the Kesavananda Bharati case3 (1973), the Supreme Court overruled its judgement in
the Golak Nath case (1967). It upheld the validity of the 24th Amendment Act (1971) and stated that
Parliament is empowered to abridge or take away any of the Fundamental Rights. At the same time, it
laid down a new doctrine of the ‘basic structure’ (or ‘basic features’) of the Constitution. It ruled that the
constituent power of Parliament under Article 368 does not enable it to alter the ‘basic structure’ of the
Constitution. This means that the Parliament cannot abridge or take away a Fundamental Right that
forms a part of the ‘basic structure’ of the Constitution.

The doctrine of basic structure of the constitution was reaffirmed and applied by the Supreme Court in
the Indira Nehru Gandhi case3a (1975). In this case, the Supreme Court invalidated a provision of the
39th Amendment Act (1975) which kept the election disputes involving the Prime Minister and the

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Speaker of Lok Sabha outside the jurisdiction of all courts. The court said that this provision was beyond
the amending power of Parliament as it affected the basic structure of the constitution.

Again, the Parliament reacted to this judicially innovated doctrine of ‘basic structure’ by enacting the
42nd Amendment Act (1976). This Act amended Article 368 and declared that there is no limitation on
the constituent power of Parliament and no amendment can be questioned in any court on any ground
including that of the contravention of any of the Fundamental Rights.

However, the Supreme Court in the Minerva Mills case4 (1980) invalidated this provision as it excluded
judicial review which is a ‘basic feature’ of the Constitution. Applying the doctrine of ‘basic structure’
with respect to Article 368, the court held that:

“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. In other words, Parliament cannot, under article 368, expand its
amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy
its basic features. The donee of a limited power cannot by the exercise of that power convert the limited
power into an unlimited one”.

Again, in the Waman Rao case5 (1980), the Supreme Court adhered to the doctrine of the ‘basic
structure’ and further clarified that it would apply to constitutional amendments enacted after April 24,
1973 (i.e., the date of the judgement in the Kesavananda Bharati case).

ELEMENTS OF THE BASIC STRUCTURE

The present position is that the Parliament under Article 368 can amend any part of the Constitution
including the Fundamental Rights but without affecting the ‘basic structure’ of the Constitution.
However, the Supreme Court is yet to define or clarify as to what constitutes the ‘basic structure’ of the
Constitution. From the various judgements, the following have emerged as ‘basic features’ of the
Constitution or elements of the ‘basic structure’ of the constitution:

1. Supremacy of the Constitution

2. Sovereign, democratic and republican nature of the Indian polity

3. Secular character of the Constitution

4. Separation of powers between the legislature, the executive and the judiciary

5. Federal character of the Constitution

6. Unity and integrity of the nation

7. Welfare state (socio-economic justice)

8. Judicial review

9. Freedom and dignity of the individual

10. Parliamentary system

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11. Rule of law

12. Harmony and balance between Funda mental Rights and Directive Principles

13. Principle of equality

14. Free and fair elections

15. Independence of Judiciary

16. Limited power of Parliament to amend the Constitution

17. Effective access to justice

18. Principles (or essence) underlying fundamental rights

19. Powers of the Supreme Court under Articles 32, 136, 141 and 1426

20. Powers of the High Courts under Articles 226 and 2277

Table 12.1 Evolution of the Basic Structure of the Constitution

Sl. Elements of the Basic Structure (As Declared

Name of the Case (Year)
No. by the Supreme Court)

1. Kesavananda Bharati Case3 (1973) (popularly 1. Supremacy of the Constitution

known as the Fundamental Rights Case)
2. Separation of powers between the
legislature, the executive and the judiciary

3. Republic and democratic form of

government

4. Secular character of the constitution

5. Federal character of the constitution

6. Sovereignty and unity of India

7. Freedom and dignity of the individual

8. Mandate to build a welfare state

9. Parliamentary System

2. Indira Nehru Gandhi Case3a (1975) (popularly 1. India as a sovereign democratic republic
known as the Election Case)
2. Equality of status and opportunity of an
individual

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Sl. Elements of the Basic Structure (As Declared

Name of the Case (Year)
No. by the Supreme Court)

3. Secularism and freedom of conscience and

religion

4. Government of laws and not of men (i.e.,

Rule of Law)

5. Judicial review

6. Free and fair elections which is implied in

democracy

3. Minerva Mills Case4 (1980) 1. Limited power of Parliament to amend the

constitution

2. Judicial review

3. Harmony and balance between

fundamental rights and directive principles

4. Central Coal Fields Ltd. Case8 (1980) Effective access to justice

5. Bhim Singhji Case9 (1980) Welfare State (Socio-economic justice)

6. S.P. Sampath Kumar Case10 (1986) 1. Rule of law

2. Judicial review

7. P. Sambamurthy Case11 (1986) 1. Rule of law

2. Judicial review

8. Delhi Judicial Service Association Case12 (1991) Powers of the Supreme Court under Articles
32, 136, 141 and 142

9. Indra Sawhney Case13 (1992) (popularly known Rule of law

as the Mandal Case)

10. Kumar Padma Prasad Case14 (1992) Independence of judiciary

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Sl. Elements of the Basic Structure (As Declared

Name of the Case (Year)
No. by the Supreme Court)

11. Kihoto Hollohan Case15 (1992) (popularly 1. Free and fair elections
known as Defection Case)
2. Sovereign, democratic, republican
structure

12. Raghunath Rao Case16 (1993) 1. Principle of equality

2. Unity and integrity of India

13. S.R. Bommai Case17 (1994) 1. Federalism

2. Secularism

3. Democracy

4. Unity and integrity of the nation

5. Social justice

6. Judicial review

14. L. Chandra Kumar Case18 (1997) Powers of the High Courts under Articles 226
and 227

15. Indra Sawhney II Case19 (1999) Principle of equality

16. All India Judge’s Association Case20 (2001) Independent judicial system

17. Kuldip Nayar Case21 (2006) 1. Democracy

2. Free and fair elections

18. M. Nagaraj Case22 (2006) Principle of equality

19. I.R. Coelho Case23 (2007) (popularly known as 1. Rule of law

IX Schedule Case)
2. Separation of powers

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Sl. Elements of the Basic Structure (As Declared

Name of the Case (Year)
No. by the Supreme Court)

3. Principles (or essence) underlying

fundamental rights

4. Judicial review

5. Principle of equality

20. Ram Jethmalani Case24 (2011) Powers of the Supreme Court under Article
32

21. Namit Sharma Case25 (2012) Freedom and dignity of the individual

22. Madras Bar Association Case26 (2014) 1. Judicial review

2. Powers of the High Courts under Articles

226 and 227

1
Shankari Prasad vs. Union of India (1951)
1a
Sajjan Singh vs. State of Rajasthan (1964)
2
Golak Nath vs. State of Punjab (1967)
3
Kesavananda Bharati vs. State of Kerala (1973)
3a
Indira Nehru Gandhi vs. Raj Narain (1975)
4
Minerva Mills vs. Union of India (1980)
5
Waman Rao vs. Union of India (1980)
6
Article 32 (Remedies for enforcement of fundamental rights including writs), Article 136 (Special leave
to appeal by the Supreme Court), Article 141 (Law declared by Supreme Court to be binding on all
courts) and Article 142 (Enforcement of decrees and orders of Supreme Court and orders as to discovery,
etc.).
7
Article 226 (Power of High Courts to issue certain writs) and Article 227 (Power of Superintendence over
all courts by the High Court).
8
Central Coal Fields Ltd., vs. Jaiswal Coal Co. (1980)
9
Bhim Singhji vs. Union of India (1980)
10
S.P. Sampath Kumar vs. Union of India (1986)

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11
P. Sambamurthy vs. State of A.P. (1986)
12
Delhi Judicial Service Association vs. State of Gujarat (1991)
13
Indra Sawhney vs. Union of India (1992)
14
Kumar Padma Prasad vs. Union of India (1992)
15
Kihoto Hollohan vs. Zachillhu (1992)
16
Raghunath Rao vs. Union of India (1993)
17
S.R. Bommai vs. Union of India (1994)
18
L. Chandra Kumar vs. Union of India (1997)
19
Indra Sawhney II vs. Union of India (1999)
20
All India Judge’s Association vs. Union of India (2001)
21
Kuldip Nayar vs. Union of India (2006)
22
M. Nagaraj vs. Union of India (2006)
23
I.R. Coelho vs. State of Tamil Nadu (2007)
24
Ram Jethmalani vs. Union of India (2011)
25
Namit Sharma vs. Union of India (2012)
26
Madras Bar Association vs. Union of India (2014)

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