Basic Structure Doctrine and Comparison with Other Constitutions

The question: is Parliament's amending power unlimited?

Soon after 1950, land reform laws collided with the Fundamental Right to property. Parliament responded with amendments, and the courts had to decide whether an amendment could take away Fundamental Rights. Article 13(2) says the State shall not make any "law" that takes away or abridges Fundamental Rights. Was a constitutional amendment such a "law"? The answer evolved through a series of cases and produced India's most important constitutional innovation – the basic structure doctrine.

Evolution through cases

Shankari Prasad (1951) – the Supreme Court upheld the 1st Amendment. A constitutional amendment is not "law" under Article 13; Parliament can amend Fundamental Rights.

Sajjan Singh (1965) – the Court reaffirmed Shankari Prasad, although two judges doubted whether Fundamental Rights could be abridged.

Golak Nath (1967) – an 11-judge bench reversed the position: Fundamental Rights have a "transcendental and immutable" position; Parliament cannot abridge them by amendment, since an amendment is "law" under Article 13. The Court applied prospective overruling to protect earlier amendments.

24th Amendment (1971) – Parliament responded: it amended Articles 13 and 368 to say that Parliament can amend any part including Fundamental Rights and that an amendment is not "law" under Article 13.

Kesavananda Bharati (1973) – a 13-judge bench (the largest ever) decided 7:6. It overruled Golak Nath and upheld the 24th Amendment – Parliament can amend any part, including Fundamental Rights – but it cannot alter the "basic structure" of the Constitution. The amending power is not a power to destroy the Constitution's identity.

Indira Nehru Gandhi v Raj Narain (1975) – the Court applied the doctrine to strike down clause (4) of Article 329A (inserted by the 39th Amendment), which placed the election of the PM and Speaker beyond judicial scrutiny. Free and fair elections and judicial review were held part of the basic structure.

42nd Amendment (1976) – declared that there was no limitation on Parliament's amending power and that no amendment could be questioned in court (Article 368(4) and (5)).

Minerva Mills (1980) – struck down those clauses: limited amending power is itself a basic feature. The Court also held that the harmony and balance between Fundamental Rights and DPSPs is part of the basic structure.

Waman Rao (1981) – laws placed in the Ninth Schedule after 24 April 1973 (the Kesavananda date) can be challenged if they violate the basic structure.

S.R. Bommai (1994) – federalism and secularism are basic features.

I.R. Coelho (2007) – a nine-judge bench held that Ninth Schedule laws after 24 April 1973 are open to review if they violate Fundamental Rights that form part of the basic structure (e.g. Articles 14, 19, 21).

Supreme Court Advocates-on-Record Association (2015) – the 99th Amendment and NJAC Act were struck down because independence of the judiciary (including primacy in appointments) is part of the basic structure.

What forms the basic structure?

The Court has never given an exhaustive list; it identifies features case by case. Elements recognised include:

• supremacy of the Constitution;
• sovereign, democratic and republican nature of the polity;
• secular character; federal character;
• separation of powers;
• unity and integrity of the nation;
• welfare state (socio-economic justice);
• judicial review; independence of the judiciary;
• freedom and dignity of the individual;
• parliamentary system;
• rule of law;
• harmony between Fundamental Rights and DPSPs;
• principle of equality;
• free and fair elections;
• limited power of Parliament to amend;
• effective access to justice;
• powers of the Supreme Court under Articles 32, 136, 141 and 142.

In Janhit Abhiyan (2022) the Court upheld the 103rd (EWS) Amendment by 3:2, holding that economic criteria for reservation do not violate the basic structure.

Assessment

Supporters argue the doctrine saved Indian democracy during the Emergency: it ensures that a transient majority cannot destroy core values. Critics call it judicial overreach: unelected judges define and expand an undefined list, and the doctrine lacks textual basis. Defenders reply that it is used sparingly – few amendments have been struck down – and that it protects the Constitution's identity. The doctrine has influenced courts in Bangladesh, Pakistan and elsewhere, and is studied worldwide.

Comparison with other constitutions

Borrowed features: Government of India Act 1935 (federal scheme, Governor, emergency provisions, judiciary, PSCs), Britain (parliamentary government, rule of law, single citizenship, writs, bicameralism), USA (Fundamental Rights, judicial review, impeachment, Vice-President), Ireland (DPSP, nomination to Rajya Sabha, method of presidential election), Canada (strong Centre, residuary powers with Centre, Governor appointed by Centre), Australia (Concurrent List, joint sitting, freedom of trade), Weimar Germany (suspension of FRs during emergency), USSR (Fundamental Duties, ideals of justice in the Preamble), France (republic; liberty, equality, fraternity), South Africa (amendment procedure, election of Rajya Sabha members), Japan (procedure established by law).

Practice: Mains question

*"The basic structure doctrine has protected the Constitution from majoritarian excess, but has also raised concerns of judicial overreach." Discuss. (250 words)* Trace Golak Nath → Kesavananda → Minerva; give examples (Indira Gandhi case, NJAC); balance both views; conclude that the doctrine is now a settled part of constitutional practice.

Basic structure in practice: how the courts apply it

The doctrine applies only to constitutional amendments. Ordinary laws are tested against the specific provisions of the Constitution, such as Fundamental Rights and legislative competence. In Indira Gandhi (1975) some judges said that ordinary laws cannot be struck down directly for violating the basic structure, and later benches have generally followed this approach. The test is whether an amendment destroys or damages the identity of the Constitution. A mere change is not enough. For example, the 73rd Amendment changed federal relations but strengthened democracy, so it was valid. The 39th Amendment, by contrast, removed judicial scrutiny of a particular election and therefore struck at free elections and the rule of law.

Courts also use the "width and identity" tests (M. Nagaraj, 2006). The width test asks whether the power conferred is so wide that it removes constitutional limits. The identity test asks whether the amendment changes the core identity of the Constitution, for instance by abolishing equality. In M. Nagaraj the Court upheld the 77th, 81st, 82nd and 85th Amendments on reservation in promotions. It did so subject to the State showing backwardness, inadequacy of representation and administrative efficiency (the requirement to show backwardness was later relaxed for SC/STs in Jarnail Singh, 2018).

Comparative note: other countries

Germany's Basic Law contains an explicit "eternity clause" (Article 79(3)), which forbids amendments affecting federalism, human dignity and the basic principles of the state. In India the same idea was developed by judges rather than written into the text. Germany's example is often cited to show that implied limits on amendment are not unique to India.

Quick self-test

1. Which amendment did Minerva Mills strike down in part? *The 42nd Amendment, specifically clauses (4) and (5) of Article 368.*
2. Is the basic structure list closed? *No. The courts identify basic features case by case.*