• Lex Specialis

The Theory of Basic Structure

Ajay T.K.


The Constitution empowers the Parliament and the State Legislatures to make laws within their respective jurisdictions. Bills to amend the constitution can only be introduced in Parliament which is not an absolute right. The Supreme Court has the power to declare a law to be invalid if it is inconsistent with the Parliament. The basic structure doctrine was laid down to protect the ideals and philosophy of the Indian Constitution. According to the Basic Structure Doctrine, the Parliament cannot pass any laws that go against or alter the ideals of the Constitution. The concept of Basic Structure was not a part of the Constitution, it evolved as a result of the efforts made by the judiciary in the case of Kesavananda Bharati in 1973. According to Article 368, the Constitution gives the impression that the Parliament has absolute power to amend the constitution. But the Supreme Court has acted as a brake to the legislative enthusiasm of Parliament ever since independence.

History of Basic Structure Doctrine

In the Shankari Prasad v. Union of India case, the First Constitution Amendment Act, 1951 which gave the Parliament’s authority to amend the Constitution was challenged. The ability of the Parliament to amend the fundamental rights of citizens was challenged. Multiple laws had to be enacted for land reformation and tenancy structure because the partition caused immense state in the legislature. This was done to implement the promise of Socialism made by the Congress party. Article 39 (b) and (c) of the Directive Principle of State Policy aims at preventing the concentration of wealth in the hands of few. Courts struck down the Fundamental Right to property guaranteed by the Constitution. Parliament placed these laws in the Ninth Schedule of the Constitution through the First and Fourth Amendments, thus effectively removing it from the scope of judicial review. In Article 13 (2), the Constitution provides for the protection of the fundamental rights of all citizens. Parliament and the state legislatures are prohibited from making laws that take away or limit the fundamental rights guaranteed to the citizens. In 1952 (Sankari Prasad Singh Deo v. Union of India) and 1955 (Sajjan Singh v. Rajasthan), the Supreme Court rejected both arguments and upheld the power of Parliament to amend any part of the Constitution including that which affects the fundamental rights of citizens. Significantly though, two dissenting judges in the Sajjan Singh v. Rajasthan case raised doubts about whether the fundamental rights of citizens could become a plaything of the majority party in Parliament.

Important case laws that played a role in establishing the Basic Structure Doctrine

  • In Golaknath v. State of Punjab an eleven judge bench of the Supreme Court reversed its position about Article 386. Chief Justice Subba Rao stated the article merely has provisions with respect to the procedure to amend certain aspects of the Constitution. It does not confer any power to amend the Constitution but states the procedure to do so. The amending power (constituent power) of Parliament arose from other provisions contained in the Constitution (Articles 245, 246, 248) which gave it the power to make laws (plenary legislative power). Thus, the apex court held that the amending power and legislative powers of Parliament were essentially the same. Therefore, any amendment of the Constitution must be deemed law as understood in Article 13 (2). In the Judgement, the majority observed that Article 13 limits the power of the Parliament with respect to passing laws that limit the fundamental rights of a citizen. The judges stated that the fundamental rights were so “sacrosanct” and “transcendental” in importance that they could not be restricted even if such a move were to receive unanimous approval of both houses of Parliament. They observed that a Constituent Assembly might be summoned by Parliament for the purpose of amending the fundamental rights if necessary.

  • In 1973, Kesavananda Bharti v. State of Kerala case Supreme Court case, the Hon’ble Case upheld the validity of the 24th Constitution Amendment Act by reviewing its decision in Golaknath case. The judiciary held that Parliament is not powered to amend the Part III ( Fundamental Right ) of the constitution. The Court held that Constituent power is superior to the ordinary legislative power. According to Article 21 of the Constitution, no person in the country may be deprived of his life or personal liberty except according to the procedure established by law. Parliament could not use its amending powers under Article 368 to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or framework of the Constitution.

The following were established as basic features of the constitution in the Kesavananda verdict -

  • Supremacy of the constitution,

  • Republican and democratic form of government,

  • Secular character of the constitution,

  • Federal character of the constitution,

  • Separation of power,

  • Unity and Sovereignty of India,

  • Individual freedom.

In Indira Gandhi v. Raj Narain case, the Supreme Court reaffirmed its concept of the basic structure. The challenge was made with respect to Prime Minister Indira Gandhi’s election victory was upheld by the Allahabad High Court on the grounds of malpractice. A challenge to Prime Minister Indira Gandhi's election victory was upheld by the Allahabad High Court on grounds of electoral malpractice in 1975. Parliament passed the Thirty-ninth amendment to the Constitution which removed the authority of the Supreme Court to adjudicate petitions regarding elections of the President, Vice President, Prime Minister, and Speaker of the Lok Sabha. Instead, a body constituted by Parliament would be vested with the power to resolve such election disputes. Section 4 of the Amendment Bill effectively thwarted any attempt to challenge the election of an incumbent, occupying any of the above offices in a court of law.

The following were considered as the basic structure of the Constitution according to this case -

  • Sovereign democratic republic status

  • Equality of status and opportunity of an individual

  • Secularism and freedom of conscience and religion

  • Government of laws and not of men' i.e. the rule of law

In the Supreme Court case of Minerva Mills v. Union of India, Mr. N.A. Palhivala, counsel on behalf of the Petitioners, chose to challenge the government's action merely in terms of infringement of the fundamental right to property. He argued that Section 55 of the Amendment had placed unlimited amending power in the hands of the Parliament. He further contended that the amended Article 31C was constitutionally bad as it violated the Preamble of the Constitution and the Fundamental Rights of the citizens. It also took away the power of judicial review. It was held by the majority bench that Article 31C was unconstitutional because it destroyed the harmony and balance between fundamental rights and directive principles which is an essential or basic feature of the Constitution.


Basic Structure is not a term that can be found in the Indian Constitution, the judiciary i.e., the Supreme Court has throughout the years proven that there is a Basic Structure that needs to be observed when laws are made or amendments are made. The Doctrine portrays the Sovereign, Democratic and secular character of the polity rule of law, independence of the judiciary, fundamental rights of citizens etc. are some of the essential features of the Constitution that have appeared time and again in the apex court's pronouncements.


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