'Basic structure' doctrine has changed the course of jurisprudence in Indian Constitutional Law

The case of Kesavananda Bharati (1973) was a landmark case for defining the concept of the doctrine of basic structure. This was no ordinary case. It essentially was a power struggle – a struggle for deciding whether the interpretative power of the Supreme Court would prevail over the legislative power of Parliament.  A 13-Judge Bench set up by the Supreme Court heard the case over 68 working days spread over 6 months. The Bench gave 11 separate judgments spanning 2,264 numbered paragraphs that agreed and disagreed on many issues but a majority judgment of seven judges was stitched together by then CJI, S M Sikri just before his retirement. However, the basic structure doctrine, for which the case has become famous in Indian legal annals, was evolved in the majority judgment, but mentioned and laid down in so many words in the decisive judgment of one judge — Justice H R Khanna.

Kesavananda Bharati’s case was a landmark 1973 SC ruling that laid down the Basic Structure doctrine – the idea that the power to legislate does not mean that the core principles underlying the Constitution can be tampered with or altered. The Constitution can be amended, but not re-written.

The majority decision of the SC was that although no part of the Constitution, including Fundamental Rights, was beyond the power of Parliament to amend, the "basic structure of the Constitution could not be abrogated even by a constitutional amendment." The judgment implied that the constitution can only be amended and not re-written by Parliament. The authority to alter is not the power to destroy. In Indian law, this is the basis on which the judiciary can strike down any amendment adopted by Parliament that conflicts with the Constitution's basic structure.

The Parliament and the State Legislatures, according to the Indian Constitution, can make laws within their jurisdictions. Only the parliament have the power to amend the Constitution. As per the Doctrine of the Basic Structure, any amendment that seeks to change the constitution's basic structure is invalid. The idea is to preserve the nature of Indian democracy and protect people's rights and freedoms. This doctrine helps protect the spirit of the constitution document and preserve it. 

Six years earlier, in the case of Golaknath (1967), the foundation for the doctrine was laid. The SC reversed its earlier position that it was possible to amend Fundamental Rights. It stated that fundamental rights are not subject to the parliamentary restrictions set out in Article 13, and that a new Constituent Assembly would be required to amend fundamental rights. It also stated that Article 368 gives the procedure for amending the Constitution, but does not grant power to Parliament to amend the Constitution. This case conferred a 'transcendental position' upon Fundamental Rights. The majority judgment called for the notion of implied limitations on Parliament's power to amend the Constitution.

The SC applied the theory of basic structure in Indira Nehru Gandhi v. Raj Narain (1975) and struck down Clause(4) of Article 329-A, which was inserted in 1975 by the 39th Amendment on the ground that it was beyond the amending power of the Parliament as it destroyed the basic features of the Constitution.

In the S.R. Bommai case (1994), the SC attempted to curb the misapplication of Article 356 (with regard to imposition of President's Rule on States). It held that there was no question of constitutional amendment, but the notion of basic structure doctrine was still applied. 

This doctrine is bound to be applied or reviewed soon, if the Delhi Government decides to approach the SC and contest the validity of provisions of the Delhi (National Capital Territory) Amendment Act, 2021 that was recently signed into law by the President of India.

Tanmay Gujarathi
Tanmay Gujarathi

Final Year Law Student at University of Mumbai

A law aspirant who is fond of blogging and public speaking. Likes to learn new things and unlearn outdated stuff

Rajesh Haldipur
Rajesh Haldipur

Founder, Law Gyani

Rajesh is a qualified CA & CWA. He has served as a Director of PricewaterhouseCoopers, a Director of a large urban co-operative bank and Dean of a B-School over the years. He has taught Finance for over 20 years & trained participants from several Companies and B-Schools. He is an educator and a learner (he believes both are inextricably intertwined), and a knowledge product developer. Law Gyani, which he has founded to help Law Students with their exam preparations, and to understand nuances of the law.


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