Components of the Basic Structure

Supremacy of the Constitution

The principle of constitutional supremacy is the cornerstone of Indian constitutional law. It asserts
that the Constitution is the supreme law of the land and that all laws and governmental actions must
conform to it. Any amendment that seeks to dilute or subvert this supremacy is considered
unconstitutional.

Republican and Democratic Form of Government

The Republic and democracy are fundamental to the Indian political system. The doctrine upholds
the idea that India is a sovereign, democratic republic where the government derives its authority
from the people. This ensures that the government remains accountable to the citizens, and any
amendment that undermines this democratic character is subject to judicial review.

Secularism

Secularism is integral to maintaining the state’s neutrality in religious matters. The doctrine ensures
that no amendment can tilt the balance towards a theocratic system or erode the secular fabric that
guarantees equal treatment of all religions. The secular character of the Constitution has been
reaffirmed in numerous judgements, notably in cases like S. R. Bommai v. Union of India (1994).

Federal Structure

India’s federal structure is designed to balance power between the central government and the
states. This division of power is a critical aspect of the Constitution’s basic structure. Any
amendment that disrupts this delicate balance or attempts to recentralise power is likely to be
struck down as violative of the basic structure.

Separation of Powers

The doctrine reinforces the separation of powers among the legislative, executive, and judicial
branches. This separation is essential to prevent any concentration of power that might lead to
authoritarianism. Judicial review, which is a critical component of the basic structure, ensures that
each branch acts within its prescribed limits.

Judicial Review and an Independent Judiciary

Judicial review is the mechanism by which the judiciary monitors and curtails the excesses of the
legislature and executive. An independent judiciary is indispensable for upholding the rule of law
and ensuring that constitutional amendments do not transgress the boundaries set by the basic
structure.

The doctrine mandates that judicial independence must be preserved at all costs, as seen in the
NJAC judgement, which reinforced the separation of the judiciary from executive interference.

Free and Fair Elections

The assurance of free and fair elections is a hallmark of any democratic polity. The doctrine
recognises that the electoral process is a fundamental pillar of the Constitution, and any attempt to
undermine this process is viewed as an infringement of the basic structure.

The emphasis on electoral integrity ensures that the government remains representative and
accountable to the people.

Evolution of the Doctrine of Basic Structure

Shankari Prasad Case, 1951

• In this case, the Supreme Court ruled that the term ‘law’ in Article 13 includes only ordinary
laws and not Constitutional Amendment Acts. Thus, Parliament can take away or abridge
any of the Fundamental Rights by enacting a Constitutional Amendment Act.

Golak Nath Case, 1967

• In this case, the Supreme Court reversed its earlier stand and held that the term ‘law’ in
Article 13 also includes Constitutional Amendment Acts. Hence, the Parliament cannot take
away or abridge a Fundamental Right through a Constitutional Amendment Act.

24th Constitutional Amendment Act, 1971

• To counter the Supreme Court verdict in the Golak Nath Case, the Parliament passed
the 24th Constitutional Amendment Act, 1971, which amended Article 13 and Article 368.

• It declared that the Parliament can take away or abridge any of the Fundamental Rights
through a Constitutional Amendment Act under Article 368 and such an act will not be
considered a law under the meaning of Article 13.

Kesavananda Bharati Case, 1973

• In this case, the Supreme Court upheld the validity of the 24th Constitutional Amendment
Act and stated that the Parliament can take away or abridge any of the Fundamental Rights.

• However, it laid down a new Doctrine of the Basic Structure of the Constitution, according
to which, the constituent power of Parliament under Article 368 does not enable it to alter
the ‘basic structure’ of the Constitution.

• Thus, the overall position after the pronouncement of this judgment is that the Parliament
cannot take away or abridge a Fundamental Right that forms a part of the ‘basic structure’
of the Constitution.

42nd Constitutional Amendment Act, 1976

• As a reaction to the new Doctrine of Basic Structure, the Parliament enacted the 42nd
Constitutional Amendment Act, 1976.
 • It amended Article 368 to declare that there is no limitation on the constituent power of
Parliament. Accordingly, no amendment can be questioned in the court of law on any
ground, including that of the contravention of the Fundamental Rights.

Minerva Mills Case, 1980

• In this case, the Supreme Court invalidated the above provision of the 42nd Constitutional
Amendment Act of 1976 on the ground that it excluded Judicial Review which is a ‘basic
feature’ of the Constitution.

Waman Rao Case, 1981

• In this case, the Supreme Court adhered to the Doctrine of Basic Structure and clarified that
it would apply to all the Constitutional Amendment Acts enacted after the date of
the Kesavananda Bharati Case Judgment i.e. April 24, 1973.

o Present Position

▪ Thus, the present position is that the Parliament under Article 368 can
amend any part of the Constitution, including Fundamental Rights, but
without affecting the Basic Structure of the Constitution.

Kesavananda Bharati v. State of Kerala and Anr.

(1973)
The Kesavananda Bharati case turned out to be the longest judgement in the history of the
Indian legal system and also laid the foundation of one of the most imperative doctrines, i.e.,
the basic structure doctrine. Here, the petitioner was the leader of Edneer Mutt, a religious sect
in the state of Kerala. He held some of the land of the sect under his own name. Government
sought to acquire a part of such land. Immediately after the Golaknath case,
the 24th Constitutional Amendment Act was passed to nullify the effect of the judgement. The
Amendment provided that the Parliament had the power to amend or modify any provision of
the Indian Constitution without being hit by Article 13. Thereafter, a series of amendments basis
the 24th Constitutional Amendment were also passed to nullify the Golaknath verdict. Hence,
petitioner approached the Hon’ble Supreme Court contending violation of Article 25 and Article
26 which deal with right to practice and propagate religion and right to manage religious affairs
respectively. While the petition was still pending, the Kerala Land Reforms (Amendment) Act,
1971 was passed making amendments in the Kerala Land Reforms Act, 1963 and brought within
Ninth Schedule. Thus, the said law was also challenged.

The case saw the largest Constitutional Bench of thirteen judges to decide upon the matter.
Pursuant to 68 days of hearing, the verdict of the case was passed with a ratio of 7:6. The Court
opined that the wide powers of the Parliament under Article 368 of the Indian Constitution
were subjected to the basic structure doctrine. Any component forming part of the basic
structure was not open to amendment by the legislature. Justice S.M. Sikri states as follows:
“The true position is that every provision of the Constitution can be amended provided in the
result the basic foundation and structure of the Constitution remains the same. The basic
structure may be said to consist of the following features:

(1) Supremacy of the Constitution;

(2) Republican and Democratic form of Government.

(3) Secular character of the Constitution;

(4) Separation of powers between the Legislature, the executive and the judiciary;

(5) Federal character of the Constitution.

The above structure is built on the basic foundation, i.e., the dignity and freedom of the
individual. This is of supreme importance. This cannot by any form of amendment be destroyed.”

The Court also said that Preamble was an intrinsic part of the basic structure as it is the basis
of the Indian Constitution and envisages the fundamental rights for all the people. The Court
also established the golden triangle consisting of Article 14, Article 19 and Article 21 of the
Indian Constitution and held that the same bounds the Indian legal system.

The judgement acted as a cornerstone of the Indian Constitution which secured the rights of
the people and ensured that the amending powers could not be usurped by the Parliament
to get political gains. It reserved the essence of Indian democracy and ensured that
constitutionalism continues to exist in the country.

Background:

In India, judges of the Supreme Court and High Courts are selected through a system called the
collegium system. This system allows senior judges themselves to choose new judges, without much
role of the government.

But in 2014, Parliament wanted to change this. So they passed the 99th Constitutional Amendment
and a law called the NJAC Act to replace the collegium system with a new body called the National
Judicial Appointments Commission (NJAC).

What was NJAC?

NJAC was supposed to be a 6-member body:

• Chief Justice of India

• Two senior-most Supreme Court judges

 • Union Law Minister

• Two 'eminent persons' (nominated by a committee)

This meant that now, the executive (government) would also have a say in the appointment of
judges.

Why was it challenged?

Many people felt that giving the government power in judge appointments would hurt the
independence of the judiciary, which is a basic feature of the Constitution that cannot be changed
— this idea is known as the Basic Structure Doctrine (from the famous Kesavananda Bharati case).

What did the Court say?

In a 4:1 majority decision, the Supreme Court:

• Struck down the NJAC and the 99th Amendment.

• Said it violated the basic structure of the Constitution because it threatened the
independence of the judiciary.

• The Court felt that letting the government influence who becomes a judge could lead to
biased or politically motivated appointments.

Dissenting opinion (Justice Chelameswar):

Justice Chelameswar disagreed. He said:

• The current collegium system is flawed—it’s not transparent and may involve favoritism.

• The NJAC could have improved the process by adding some checks and balances.

• In his words: NJAC could have prevented "unwholesome trade-offs" and "incestuous
accommodations" — meaning secret deals and favoritism — that may happen within the
collegium system.

Basic Structure Doctrine Criticism

Although the Basic Structure Doctrine has been widely accepted and upheld by subsequent
court decisions, its application and interpretation have been criticized on the following
grounds:
Inconsistent with the principle of separation of powers: A system of checks and balances is
healthy only when the duties of one branch are not usurped by another. A court may have
the power to review but not rewrite a constitutional amendment.

Vagueness and elusiveness of the Basic Features of the Constitution: There is no definite
elucidation on what exactly constitutes Basic Structure, thereby making the doctrine
ambiguous.

Translates judiciary into the third decisive chamber of parliament: By invoking the Basic
Structure doctrine, the Judiciary acts as the third house and thereby renders the work done
by the Parliament meaningless.

Judicial Overreach: Recently, the doctrine has been invoked in cases regarded as examples
of judicial overreach. Ex: National Judicial Appointment Commission Act, 2014 was declared
null and void by the Supreme Court by relying on this doctrine....

Significance of the Basic Structure Doctrine.

Promotes Constitutional Ideals: Basic Structure Seeks to preserve constitutional principles

and Basic ideals envisioned by the founding fathers.

Maintains Supremacy of the Constitution: The doctrine has helped to maintain the
supremacy of the Constitution and has prevented its destruction by a temporary majority in
Parliament.

Separation of powers: Basic Structure strengthens our democracy by delineating a true

separation of power where the Judiciary is independent of the other two organs.

Granville Austin argues that with Basic Structure Doctrine, a balance has been reached
between the responsibilities of Parliament and the Supreme Court for protecting the
seamless web of the Indian Constitution.

Protects Fundamental Rights: Basic Structure protects the citizens’ fundamental rights
against the legislature’s arbitrariness and authoritarianism.

Constitution as a living document: Being dynamic in nature, it is more progressive and open
to changes in time, making the Constitution a living document.

Judicial Activism: It has encouraged judicial activism in India, enabling the judiciary to strike
down amendments that go against the Constitution’s core and act as a check on the
legislature and executive.