Basic structure doctrine

Also called: Basic features doctrine · Topic: Amendment of the Constitution and the Basic Structure · NCERT: Class 9, Ch 6 "Democracy"; Class 11, Ch 2 "Rights in the Indian Constitution"; Class 11, Ch 6 "Judiciary"; Class 11, Ch 9 "Constitution as a Living Document"; Class 12, Ch 6 "The Crisis of Democratic Order"

Meaning

The basic structure doctrine says that Parliament can amend any part of the Constitution under Art. 368, including the fundamental rights, but it cannot change or destroy the Constitution's core features. These core features are the basic structure. The Supreme Court laid down the doctrine in Kesavananda Bharati v. State of Kerala (24 April 1973).

It matters because it puts a limit on even a Parliament with a very large majority. It makes the Constitution supreme, not Parliament. It also makes the judiciary the final judge of which features are "basic".

Explanation

How the doctrine works

• Art. 368 lets Parliament amend the Constitution. It does this using its constituent power (the power to make or change the Constitution itself, which is different from ordinary law-making).
• Two parts of the rule:
• Parliament can amend every part of the Constitution "by way of addition, variation or repeal", including Part III (fundamental rights).

• Parliament cannot use this power to change or destroy the basic structure.

• The test for judges: the court does not ask "Did this amendment change a right?" It asks "Did this amendment destroy a core feature of the Constitution?"

• An amendment is not "law" under Art. 13:
• So an amendment cannot be struck down just because it cuts down a fundamental right.
• It can be struck down only if it harms the basic structure.

What counts as basic structure

• There is no single list. In Kesavananda, each judge gave his own examples.

• CJI S.M. Sikri's list: 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, executive and judiciary 5. federal character of the Constitution

• Later additions by the courts:

• Judicial review (the courts' power to check whether a law or action follows the Constitution). In Kesavananda, Khanna J held that shutting out even limited judicial review "strikes at the basic structure" [6].

• The balance between fundamental rights and DPSPs (Directive Principles of State Policy: the guidelines for government in Part IV, which courts cannot enforce). This came from Minerva Mills (1980) [5][6].

• What is NOT basic structure: the right to property. This was held in Kesavananda itself.

Spirit over letter: a "living constitution"

• The words "basic structure" do not appear anywhere in the Constitution's text.
• The Court read the spirit of the Constitution (its purpose and values) over its letter (the bare words). It looked at what the framers meant and at the conditions in which they wrote the Constitution.

• NCERT (Class 11) says the doctrine: 1. set specific limits on the amending power; 2. allowed Parliament to amend every part of the Constitution within those limits; 3. made the judiciary the final judge of what the basic structure includes. Each new case adds to its meaning.

• NCERT calls the doctrine "itself an example of a living constitution". A living constitution is one that grows through amendments and court judgments without losing its core.

Where the limit applies in the amending process

Step under Art. 368	What is needed
1. Bill introduced	In either House. The President's prior permission is not needed
2. Passed in each House separately	Special majority: a majority of the House's total membership and two-thirds of the members present and voting
3. Deadlock between Houses	There is no joint sitting. Each House must pass the bill on its own
4. Federal provisions	Must also be ratified by at least half the state legislatures, each by simple majority
5. President's assent	Obligatory since the 24th Amendment (1971)
After this: judicial review	Even an amendment passed correctly can be struck down if it destroys the basic structure

In the Constitution and practice

Background: the fight between Parliament and the courts

• Golaknath (1967): held that an amendment is "law" under Art. 13(2). So Parliament could not amend the Constitution to cut down fundamental rights.
• R.C. Cooper (1970), the Bank Nationalisation case: struck down parts of the 1969 law that nationalised 14 banks, because the compensation was too low [3].
• After its large win in the 1971 election, the government passed amendments to reverse these judgments:
• 24th Amendment (1971): inserted Art. 13(4) and Art. 368(3), which say Art. 13 does not apply to amendments [2]. It also made the President's assent obligatory for amendment bills.
• 25th Amendment (1971): changed "compensation" to "amount" in Art. 31(2) and inserted Art. 31C [3]. The original Art. 31C protected laws under Art. 39(b) and (c) from challenge under Arts. 14, 19 and 31.
• 29th Amendment (1972): put the Kerala Land Reforms (Amendment) Acts of 1969 and 1971 into the Ninth Schedule (entries 65 and 66) [4]. The Ninth Schedule lists laws protected by Art. 31B.

Kesavananda Bharati v. State of Kerala (24 April 1973)

• 13 judges, the largest bench in the Supreme Court's history, led by CJI S.M. Sikri. The decision was 7:6.
• What it held:
• It overruled Golaknath. An amendment is not "law" under Art. 13.
• It upheld the 24th Amendment and the 29th Amendment.
• Parliament can amend any part of the Constitution, but not the basic structure.

• The right to property is not basic structure, so the change to Art. 31(2) was valid.

• On Art. 31C:

• The first part was upheld by seven judges: the six "no-limits" judges plus Khanna J [6].

• The second part was struck down. This was the part saying a law's declaration that it served Art. 39(b)–(c) could not be questioned in court. Khanna J said it "contains the seed of national disintegration" [6].

• The deciding vote: Justice H.R. Khanna.

• He agreed with the six judges that an amendment is not "law" and that property is not a basic feature.
• He agreed with Sikri's group that the amending power has limits.
• His vote made the 7:6 majority. Nine judges signed a short "view by the majority".

Later use of the doctrine

• 42nd Amendment (1976): widened Art. 31C to protect laws giving effect to any DPSP [5][6].
• Minerva Mills (1980): struck down this widening because it destroyed the balance between fundamental rights and DPSPs, which is a basic feature [5][6].
• Waman Rao (1980): held that the original Art. 31C is valid to the extent Kesavananda upheld it [5][6].
• Property Owners Association v. State of Maharashtra (5 November 2024): a nine-judge bench led by CJI D.Y. Chandrachud held that Art. 31C, as upheld in Kesavananda, is still in force. Such a law is protected only from challenges under Arts. 14 and 19. It can still be challenged under Art. 300A [6].

The political reaction

• Supersession (26 April 1973): two days after the judgment, A.N. Ray, one of the six judges who said the amending power had no limits, was made CJI [6].
• Three senior judges from the majority were passed over: J.M. Shelat, K.S. Hegde and A.N. Grover.

• Supersession means making a junior judge CJI over senior judges. It was seen as an attack on judicial independence.

• November 1975: during the Emergency, CJI Ray set up a 13-judge bench to review Kesavananda. It was dissolved after two days.

Don't confuse with

• Golaknath (1967) position: Golaknath said Parliament cannot amend fundamental rights at all. The basic structure doctrine says Parliament can amend them, as long as the core features survive.
• Ninth Schedule / Art. 31B protection: this protects particular laws from challenge for breaking fundamental rights. The basic structure doctrine limits constitutional amendments themselves.
• Fundamental rights: not every fundamental right is basic structure. The right to property was held not to be part of it in Kesavananda.
• Parliamentary sovereignty: this means Parliament's power has no limits, which is what the 24th and 25th Amendments claimed. The basic structure doctrine stands for constitutional supremacy, with the judiciary as its guardian.

Prelims Hooks

• Kesavananda Bharati (24 April 1973): 13 judges, decided 7:6, led by CJI S.M. Sikri. It overruled Golaknath (1967). The deciding opinion was Justice H.R. Khanna's.
• Trap: the words "basic structure" appear nowhere in the Constitution, and there is no exhaustive list of basic features. The courts decide case by case.
• Trap: the right to property is not basic structure. Kesavananda upheld the first part of Art. 31C and struck down only the clause that blocked court review of the legislature's declaration [6].
• 24th Amendment (1971): inserted Art. 13(4) and Art. 368(3), so an amendment is not "law" [2]. It also made the President's assent to amendment bills obligatory.
• Minerva Mills (1980): struck down the 42nd Amendment's widening of Art. 31C to all DPSPs. The balance between Part III and Part IV is basic structure [5][6].
• Supersession (26 April 1973): A.N. Ray became CJI over Shelat, Hegde and Grover [6].

Mains Points

• Parliamentary sovereignty vs constitutional supremacy:
• The 24th and 25th Amendments claimed unlimited amending power for a Parliament with a large majority.
• Kesavananda answered that even the people's representatives cannot destroy the Constitution's core.

• The Emergency (1975–77) and the 42nd Amendment later showed why temporary majorities need such a check.

• Counter-majoritarian debate:

• Critics: unelected judges "invented" a limit that is not in the text, and kept for themselves the power to define it.

• Defenders: the doctrine reads the spirit over the letter and shields democracy, federalism and judicial review. It still lets Parliament amend every part of the Constitution, so the Constitution remains a "living document".

• Fundamental rights vs DPSPs, and judicial independence:

• The Court let Art. 39(b)–(c) goals override Arts. 14 and 19 (Kesavananda, Waman Rao). But it did not allow judicial review to be shut out completely, and it treated the balance between Parts III and IV as a basic feature (Minerva Mills, 1980). The 2024 nine-judge ruling keeps this balance [6].
• The 1973 supersession and the 1975 review bench show the government putting pressure on the courts after a verdict it did not like. This history fed the later push for collegium-based appointments.

Related concepts

• 24th Constitutional Amendment Act 1971
• 25th Constitutional Amendment Act 1971
• Kesavananda Bharati case
• Letter and spirit of the Constitution

Read more

• Parliament vs the judiciary II: the 24th and 25th Amendments and Kesavananda Bharati