The basic structure doctrine: limits on constitutional amendment

1. The road to Kesavananda

• Shankari Prasad v. Union of India (1951) and Sajjan Singh v. State of Rajasthan (1965): an amendment under Article 368 is not “law” under Article 13(2), so it can abridge fundamental rights. In Sajjan Singh Hidayatullah and Mudholkar JJ doubted this, Mudholkar J asking whether the Constitution had basic features beyond the reach of amendment.
• I.C. Golaknath v. State of Punjab (1967): by 6:5, an amendment is law, and Parliament has no power to take away fundamental rights; prospective overruling was applied.
• The 24th Amendment (1971) amended Articles 13 and 368 to say that Article 13 does not apply to an amendment and that Article 368 contains the power, not merely the procedure, to amend.
• Kesavananda Bharati v. State of Kerala, 1973 INSC 91, (1973) 4 SCC 225: thirteen judges upheld the 24th Amendment and overruled Golaknath, but by 7:6 held that the power to amend does not include a power to destroy or alter the basic structure or framework of the Constitution. Khanna J’s opinion, that “amendment” implies the survival of the old constitution in an altered form, carried the majority on this point.

The German scholar Dietrich Conrad, lecturing in India in 1965, argued that implied limits on amendment follow from the identity of a constitution; his argument reached the Bench through counsel and is usually credited as an intellectual source of the doctrine.

2. Consolidation

• Indira Nehru Gandhi v. Raj Narain, 1975 INSC 272: clause 4 of Article 329A, inserted by the 39th Amendment to validate the Prime Minister’s election and exclude judicial scrutiny, was struck down as destroying free and fair elections and the rule of law. The doctrine was applied for the first time.
• Minerva Mills v. Union of India, 1980 INSC 142, (1980) 3 SCC 625: sections 4 and 55 of the 42nd Amendment were struck down. Limited amending power is itself a basic feature, and so is the harmony between Parts III and IV.
• L. Chandra Kumar v. Union of India, 1997 INSC 288: judicial review by the High Courts under Article 226 and the Supreme Court under Article 32 is part of the basic structure; tribunals can supplement but not supplant it.
• I.R. Coelho v. State of Tamil Nadu, 2007 INSC 28, (2007) 2 SCC 1: laws placed in the Ninth Schedule after 24 April 1973 are open to challenge if they abrogate rights that form part of the basic structure. The test is the effect on rights (the “rights test”), not merely the form of the amendment.

3. Recent applications

Supreme Court Advocates-on-Record Association v. Union of India (16 October 2015, the NJAC case): by 4:1, the 99th Amendment creating the National Judicial Appointments Commission was struck down, as giving the executive and lay members a role that could defeat the primacy of the judiciary in appointments, an aspect of judicial independence. Chelameswar J dissented, defending the Commission and criticising the opacity of the collegium. This is the most debated use of the doctrine, because it protected a system the judges themselves had created by interpretation.

Janhit Abhiyan v. Union of India, 2022 INSC 1175: by 3:2 the 103rd Amendment (EWS reservation) was upheld. The majority held that reservation on economic criteria alone does not violate the basic structure, and that excluding SC, ST and OBC persons from the EWS quota is not a violation either. The minority (Lalit CJ and Bhat J) held that the exclusion offended the equality code, itself a basic feature. The case shows the doctrine as a standard of review that a court may apply and still uphold an amendment.

In re: Article 370, 2023 INSC 1058 did not turn on basic structure but is cited for the view that federalism, while basic, accommodates asymmetry and its removal.

4. What is in the basic structure?

The Court has never given a closed list, and has said that a basic feature must be traced to the provisions of the Constitution rather than to abstract ideals. Features recognised in judgments include supremacy of the Constitution, republican and democratic government, secularism, separation of powers, federalism, judicial review, free and fair elections, rule of law, the essence of equality, limited amending power, the harmony of Parts III and IV, and judicial independence.

5. The justification debate

The objection. Alexander Bickel’s “counter-majoritarian difficulty” (The Least Dangerous Branch, 1962) applies with greater force here: a court is overriding not a statute but the constituent will expressed through the special procedure of Article 368. H.M. Seervai, who argued for the State in Kesavananda, criticised the doctrine as resting on a majority that did not truly exist on the point (the “view by the majority” statement having been signed by nine judges).

The defences.

• Constituent and constituted power. Following Carl Schmitt and later Yaniv Roznai (Unconstitutional Constitutional Amendments, 2017), the amending body is a creature of the constitution and cannot destroy the identity that created it; only the people acting as constituent power can.
• Democratic self-binding. A majority may bind itself against short-term temptation, as Ulysses did. The 1975–77 amendments show the danger the doctrine guards against.
• Process-based review. John Hart Ely’s Democracy and Distrust (1980) suggests that courts are most legitimate when protecting the democratic process itself; the electoral cases (Raj Narain) fit that model better than NJAC.

6. Comparative reception

• Germany: an express eternity clause, Article 79(3) of the Basic Law, protects human dignity, the federal division and the democratic and social State.
• Bangladesh: Anwar Hossain Chowdhury v. Bangladesh (1989) adopted the doctrine to strike down an amendment decentralising the High Court Division.
• Pakistan: the Supreme Court has oscillated, and the 26th Amendment (2024) reshaped its constitutional jurisdiction.
• Kenya: lower courts used the doctrine in the 2021 Building Bridges Initiative litigation; the Supreme Court in 2022 declined to adopt it as such while affirming the outcome on other grounds.
• Israel: in January 2024 the Supreme Court annulled an amendment to a Basic Law that had removed reasonableness review, the first time it struck down a Basic Law provision.

The doctrine is therefore one of India’s most exported constitutional ideas, and comparative material helps answer the legitimacy objection: it is not an Indian idiosyncrasy but a response to a problem every amendable constitution faces.

How this is examined

Typical questions: “Critically evaluate the basic structure doctrine”, “Is the basic structure doctrine anti-democratic?”, or a short note on I.R. Coelho or NJAC. Build the answer as history (briefly), the doctrine stated, recent applications, the legitimacy debate, comparative reception and your own conclusion.