May 28, 2023

The Origin and Journey of Doctrine of Basic Structure

Since there are no signposts signalling basic features of the Constitution, every attempt to discover a basic feature becomes a ‘voyage of discovery’.

-O Chinnappa Reddy

The amendment procedure is given under Article 368 of Indian Constitution. The power to amend the Constitution availing under Article 368 has been a significant area of the development of Constitutional Law in our country. This power, recognised as a constituent power, is subject to various safeguards which are intrinsic to Article 368, including the procedural safeguards.

The political process from time to time that resulted in various constitutional amendments, some of them radical in nature, gave rise to several debates in top Court as regards the width and amplitude as also the limitations of this amending power of the Parliament.

Thus, Article 368 and the power of the Parliament had been the subject-matter of various decisions, some of which being of far-reaching consequences.

Article 368 and the doctrine of basic structure

The doctrine of basic structure was not as such discussed in the Constituent Assembly while formulating the enabling provisions for amending the Constitution. Then, at the initial stages of Constitutional Law development, the proposition of challenging an amendment to the Constitution, as mooted in the case of Sri Shankari Prasad Singh Deo v. Union of India and Anr.: 1952 SCR 89 as also in Sajjan Singh v. State of Rajasthan: (1965) 1 SCR 933 did not meet with approval of Supreme Court.

However, first reference to the idea of ‘basic feature’ was made by Justice Mudholkar in Sajjan Singh (supra). The learned Judge referred to the facts that the Constituent Assembly, consciously enacted a written Constitution; created three organs of State; enacted a federal structure; recognised certain rights as fundamental and provided for their enforcement; and prescribed forms of oath of Office which would require the Members of the Union Judiciary and of the higher judiciary in the State, to uphold the Constitution; and above all, formulated a solemn and dignified Preamble which, ‘appears to be an epitome of the basic features of the Constitution’.

The learned Judge, thereafter, posed the points to ponder over thus:

“…..Can it not be said that these are indicia of the intention of the Constituent Assembly to give a permanency to the basic features of the Constitution? It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of Article 368?”

Then, the idea that certain Parts of the Constitution were unamendable was accepted by the 11 Judge Bench in I.C. Golak Nath and Ors. v. State of Punjab and Anr.: (1967) 2 SCR 762.

However, in Kesavananda, the 13-Judge Bench of Supreme Court, while partially overruling Golak Nath by a majority of 7-6, held that though any part of the Constitution could be amended by the Parliament, its basic structure could not be damaged.

Contribution of Prof. Conrad in Origination and Development of doctrine of basic structure

A precursor to the developments aforesaid could be traced to the year 1965 when a German jurist, Prof. Dietrich Conrad (1932- 2001), gave a lecture on ‘Implied Limitations of the Amending Power’ at the Banaras Hindu University wherein he, inter alia, asked:

Could the amending power be used to abolish the Constitution, and reintroduce, let’s say, the rule of a Moghul emperor or the Crown of England?”

The contribution of Prof. Conrad in Origination and Development of doctrine of basic structure has been pertinently underscored in A.G. Noorani’s, ‘Constitutional Questions and Citizens’ Rights, Oxford University Press (2006) in the first chapter titled as “Sanctity of the Constitution: Dieter Conrad- The man behind the ‘basic structure’ doctrine”, inter alia, in the following words: –

“There is, sadly, little acknowledgment in India of that debt we owe to a distinguished German jurist and scholar steeped in other disciplines beyond the confines of law–Professor Dietrich Conrad, formerly Head of the Law Department, South Asia Institute of the University of Heidelberg, Germany.”

Later, In Golak Nath’s case, the doctrine of any implied limitations on Parliament’s power to amend the Constitution was not accepted. The majority felt that ‘there is considerable force in this argument’ but thought it unnecessary to pronounce on it. ‘This question may arise for consideration only if Parliament seeks to destroy the structure of the Constitution embodied in provisions other than in Part III of the Constitution.’

The argument of implied limitations had been advanced at the Bar by M.K. Nambyar, one of India’s leading constitutional lawyers. Few people knew then that he owed the argument to Professor Conrad. In February 1965, while on a visit to India, Conrad delivered a lecture on ‘Implied Limitations of the Amending Power’ to the Law Faculty of the Banaras Hindu University.

A paper based on the subject was sent to Professor T.S. Rama Rao in Madras for his comments. Nambyar’s attention was drawn to this paper which he read before the Supreme Court, though with little result. Professor Conrad’s lecture, delivered in February 1965, showed remarkable perceptiveness besides deep learning. He observed:

‘Perhaps the position of the Supreme Court is influenced by the fact that it has not so far been confronted with any extreme type of constitutional amendments. It is the duty of the jurist, though, to anticipate extreme cases of conflict, and sometimes only extreme tests reveal the true nature of a legal concept. So, if for the purpose of legal discussion I may propose some fictive he wrote an article titled ‘Limitations of Amendment Procedures and the Constituent Power’ published in the Indian Year Book of International Affairs wherein he described the limits on the amending power as follows:-

“The functional limitations implied in the grant of amending power to Parliament may then be summarized thus:

No amendment may abrogate the constitution. No amendment may effect changes which amount to a practical abrogation or total revision of the constitution. Even partial alterations are beyond the scope of amendment if their repercussions on the organic context of the whole are so deep and far reaching that the fundamental identity of the constitution is no longer apparent……”

The Kesavananda Case

In Kesavananda Bharthi v. Union of India (1973), Apex Court outlined the basic structure doctrine of the Constitution. In fact, in Kesavananda, the Court, by a 7-6 majority, went several steps ahead in asserting its power of judicial review so as to scrutinize any amendment to see if it violated the basic structure of the Constitution; and asserted its right to strike down amendments to the Constitution that were in violation of the fundamental architecture of the Constitution.

Factually, the case was a challenge to the Kerala Land. Reforms Act, 1963 which interfered with petitioner’s rights to manage property under Article 26. Furthermore, the Twenty-fourth, Twenty-fifth and Twenty-ninth constitutional amendments were also challenged. By Twenty-fourth Amendment, Articles 13 and 368 were amended to exclude constitutional amendments from the definition of law under Article 13; the Twenty-fifth Amendment excluded judicial review by providing that the law giving effect to principles specified in clause (b) or clause (c) of Article 39 could not be questioned by the Court; and the Twenty-ninth Amendment put certain land reform enactments in the Ninth Schedule. The present discussion need not be over-expanded with reference to the variety of opinions expressed therein.

The acclaimed and honourable jurist O. Chinnappa Reddy would define this journey in these words: “Since there are no signposts signalling basic features of the Constitution, every attempt to discover a basic feature becomes a ‘voyage of discovery’.”[1]

Indira Nehru Gandhi Case

In Indira Nehru Gandhi v. Raj Narain, [1976] 2 SCR 347, using the doctrine of basic structure, the Thirty-ninth Constitutional Amendment Act was struck down whereby the election of the President, the Vice President, the Prime Minister and the Speaker of the Lok Sabha were put beyond the judicial scrutiny. Such an amendment was held to be destroying the basic feature of the Constitution.

Minerva Mills Case

In Minerva Mills v. Union of India (1980), again, using the doctrine of basic structure, clauses (4) and (5) of the Constitution (Forty-second Amendment) Act, 1976 were struck down with the following, amongst other, observations: –

Chandrachud, C.J.

“56. The significance of the perception that Parts III and IV together constitute the core of commitment to social revolution and they, together, are the conscience of the Constitution is to be traced to a deep understanding of the scheme of the Indian Constitution. Granville Austin’s observation brings out the true position that Parts III and IV are like two wheels of a chariot, one no less important than the other. You snap one and the other will lose its efficacy. They are like a twin formula for achieving the social revolution, which is the ideal which the visionary founders of the Constitution set before themselves.

In other words, the Indian Constitution is founded on the bedrock of the balance between Parts III and IV. To give absolute primacy to one over the other is to disturb the harmony of the Constitution. This harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution.

57. ….. The goals set out in Part IV have, therefore, to be achieved without the abrogation of the means provided for by Part III. It is in this sense that Parts III and IV together constitute the core of our Constitution and combine to form its conscience. Anything that destroys the balance between the two parts will ipso facto destroy an essential element of the basic structure of our Constitution.”

Waman Rao Case

In Waman Rao v. Union of India (1981), it was held that the First Constitution Amendment Act, that introduced Articles 31-A and 31-B, as well as the Twenty-fifth Amendment Act that introduced Article 31-C were constitutional, and did not damage any basic or essential features or the basic structure of the Constitution.

Herein, this Court examined the validity of Article 31-A and Article 31-B of the Constitution of India with respect to the doctrine of basic structure introduced in Kesavananda and observed that all the decisions made prior to the introduction of the doctrine shall remain valid.

The impact of this decision had been that all the acts and regulations that were included under Ninth Schedule to the Constitution prior to the Kesavananda decision were to remain valid while further amendments to the Schedule could be challenged on the grounds of violation of the doctrine of basic structure. The relevant observations in this case read as under: –

Chandrachud, C.J.

“14. … We would like to add that every case in which the protection of a fundamental right is withdrawn will not necessarily result in damaging or destroying the basic structure of the Constitution. The question as to whether the basic structure is damaged or destroyed in any given case would depend upon which particular Article of Part III is in issue and whether what is withdrawn is quintessential to the basic structure of the Constitution.

29. The First Amendment is aimed at removing social and economic disparities in the agricultural sector. It may happen that while existing inequalities are being removed, new inequalities may arise marginally and incidentally. Such marginal and incidental inequalities cannot damage or destroy the basic structure of the Constitution. It is impossible for any government, howsoever expertly advised, socially oriented and prudently managed, to remove every economic disparity without causing some hardship or injustice to a class of persons who also are entitled to equal treatment under the law.

Thus, the adoption of ‘family unit’ as the unit of application for the revised ceilings may cause incidental hardship to minor children and to unmarried daughters. That cannot, in our opinion, furnish an argument for assailing the impugned laws on the ground that they violate the guarantee of equality. It seems to us ironical indeed that the laws providing for agricultural ceilings should be stigmatised as destroying the guarantee of equality when their true object and intendment is to remove inequalities in the matter of agricultural holdings.

49. We propose to draw a line, treating the decision in Kesavananda Bharati as the landmark. Several Acts were put in the Ninth Schedule prior to that decision on the supposition that the power of the Parliament to amend the Constitution was wide and untrammelled. The theory that the Parliament cannot exercise its amending power so as to damage or destroy the basic structure of the Constitution, was propounded and accepted for the first time in Kesavananda Bharati. This is one reason for upholding the laws incorporated into the Ninth Schedule before April 24, 1973, on which date the judgment in Kesavananda Bharati was rendered.

A large number of properties must have changed hands and several new titles must have come into existence on the faith and belief that the laws included in the Ninth Schedule were not open to challenge on the ground that they were violative of Articles 14, 19 and 31. We will not be justified in upsetting settled claims and titles and in introducing chaos and confusion into the lawful affairs of a fairly orderly society.

51. Thus, insofar as the validity of Article 31-B read with the Ninth Schedule is concerned, we hold that all Acts and Regulations included in the Ninth Schedule prior to April 24, 1973 will receive the full protection of Article 31-B. Those laws and regulations will not be open to challenge on the ground that they are inconsistent with or take away or abridge any of the rights conferred by any of the provisions of Part III of the Constitution.

Acts and Regulations, which are or will be included in the Ninth Schedule on or after April 24, 1973 will not receive the protection of Article 31-B for the plain reason that in the face of the judgment in Kesavananda Bharati, there was no justification for making additions to the Ninth Schedule with a view to conferring a blanket protection on the laws included therein. The various constitutional amendments, by which additions were made to the Ninth Schedule on or after April 24, 1973, will be valid only if they do not damage or destroy the basic structure of the Constitution.

P. Sambhamurthy Case

In P. Sambhamurthy and Ors. v. State of Andhra Pradesh and Anr.: (1987) 1 SCC 36231 this Court examined Article 371-D inserted by the Constitution (Thirty-second Amendment) Act, 1973 and struck down its clause (5) with proviso, as being violative of the basic structure since it conferred power on the State Government to modify or annul the final order of the Administrative Tribunal, which was against the concept of justice and principle of rule of law.

Kihoto Hollohan Case

In Kihoto Hollohan v. Zachillhu and Ors: 1992 Supp (2) SCC 651, the constitutional validity of the Tenth Schedule to the Constitution introduced by the Constitution (Fifty-second Amendment) Act, 1985, was assailed. Though, the majority opinion did not find the entire amendment unconstitutional but the Court declared invalid Paragraph 7 of the Tenth Schedule to the Constitution, which excluded judicial review of any matter connected with the disqualification of a member of a House in terms of the provisions contained in that Schedule, essentially for want of ratification in accordance with the proviso to clause (2) of Article 368.

Raghunath rao case

In Raghunathrao Ganpatrao Etc. v. Union of India (1993), the validity of the Constitution (Twenty-sixth Amendment) Act, 1971 which removed privy purses was brought into question, inter alia, on the ground that it violated the basic structure and essential features of the Constitution of India and was, therefore, outside the scope and ambit of the powers of the Parliament to amend the Constitution. This Court denied interference while observing, inter alia, as under: –

“96. Permanent retention of the privy purse and the privileges of rights would be incompatible with the sovereign and republican form of Government. Such a retention will also be incompatible with the egalitarian form of our Constitution. That is the opinion of the Parliament which acted to repeal the aforesaid provisions in exercise of its constituent power.”

L. Chandra Kumar Case

A 7-Judge Bench of this Court in L. Chandra Kumar v. Union of India and Ors.: (1997) 3 SCC 26132 had the occasion to examine the nature and extent of jurisdiction of the High Court under Articles 226/227; and it was held that power of judicial review under Articles 226/227 and Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting its basic structure.

The Constitution Bench held invalid the provisions of clause 2(d) of Article 323-A and clause 3(d) of Article 323-B, inserted by the Constitution (Forty-second Amendment) Act, which excluded the jurisdiction of the High Court while observing as under: –

“99. In view of the reasoning adopted by us, we hold that clause 2(d) of Article 323-A and clause 3(d) of Article 323-B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the “exclusion of jurisdiction” clauses in all other legislations enacted under the aegis of Articles 323-A and 323-B would, to the same extent, be unconstitutional.

The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution…….”

M. Nagaraj case

In M. Nagraj v. Union of India (2007), the Constitution Bench validated-

  • the Constitution (Seventy-seventh Amendment) Act, 1995 which inserted Article 16(4-A);
  • the Constitution (Eighty-first Amendment) Act, 2000 which inserted Article 16(4-B);
  • the Constitution (Eighty-second Amendment) Act, 2000 which inserted a proviso to Article 335; and
  • the Constitution (Eighty-fifth Amendment) Act, 2001 which added “consequential seniority” for SC/STs under Article 16(4-B).

The said amendments were introduced essentially to nullify the effect of the decision in Indra Sawhney wherein a 9-Judge Bench had ruled that reservation in appointments did not apply to promotions.

  • Article 16(4-A) enables the State to make any law regarding reservation in promotion for SC/STs.
  • Article 16(4-B) provides that reserved promotion posts for SC/STs that remain unfilled, can be carried forward to the subsequent year.
  • Article 16(4-B) also ensures that the ceiling on the reservation quota for these carried forward posts does not apply to subsequent years.

Article 335 mandates that reservations have to be balanced with the ‘maintenance of efficiency’. The amendment to Article 335 clarified that the Article will not apply to the State relaxing evaluation standards ‘in matters of promotion’. The Court held as under: –

“104. Applying the above tests to the present case, there is no violation of the basic structure by any of the impugned amendments, including the Constitution (Eighty-second) Amendment Act, 2000. The constitutional limitation under Article 335 is relaxed and not obliterated. As stated above, be it reservation or evaluation, excessiveness in either would result in violation of the constitutional mandate. This exercise, however, will depend on the facts of each case.

In our view, the field of exercise of the amending power is retained by the impugned amendments, as the impugned amendments have introduced merely enabling provisions because, as stated above, merit, efficiency, backwardness and inadequacy cannot be identified and measured in vacuum. Moreover, Article 16(4-A) and Article 16(4-B) fall in the pattern of Article 16(4) and as long as the parameters mentioned in those articles are complied with by the States, the provision of reservation cannot be faulted.”

Ashoka Kumar Thakur Case

In Ashoka Kumar Thakur vs Union of India and Ors on 10 April, 2008, the provisions of Constitution (Ninety-third Amendment) Act, 2005 were under challenge, which inserted clause (5) to Article 15 of the Constitution. This Court rejected the contention of violation of the basic structure while holding, inter alia, as under: –

“118. Equality is a multi-coloured concept incapable of a single definition as is also the fundamental right under Article 19(1)(g). The principle of equality is a delicate, vulnerable and supremely precious concept for our society. It is true that it has embraced a critical and essential component of constitutional identity. The larger principles of equality as stated in Articles 14, 15 and 16 may be understood as an element of the “basic structure” of the Constitution and may not be subject to amendment, although, these provisions, intended to configure these rights in a particular way, may be changed within the constraints of the broader principle.

The variability of changing conditions may necessitate the modifications in the structure and design of these rights, but the transient characters of formal arrangements must reflect the larger purpose and principles that are the continuous and unalterable thread of constitutional identity. It is not the introduction of significant and far-reaching change that is objectionable, rather it is the content of this change insofar as it implicates the question of constitutional identity.

120. If any constitutional amendment is made which moderately abridges or alters the equality principle or the principles under Article 19(1)(g), it cannot be said that it violates the basic structure of the Constitution. If such a principle is (sic not) accepted, our Constitution would not be able to adapt itself to the changing conditions of a dynamic human society.”

K. Krishna Murthy Case

In K. Krishna Murthy (Dr.) and Ors. v. Union of India and Anr.: (2010) 7 SCC 202, the Constitution (Seventy-third Amendment) Act, 1992 and the Constitution (Seventy-fourth Amendment) Act, 1992 which had inserted Part IX and Part IX-A to the Constitution thereby contemplating the powers, composition and functions of local self-government institutions i.e., the Panchayats (for rural areas) and Municipalities (for urban areas) were in challenge. This Court rejected the challenge while holding that there was no damage to the basic structure.

Supreme Court Advocates-on-Record Association Case

In Supreme Court Advocates-on-Record Association and Anr. v. Union of India: (2016) 5 SCC 133, the questions were pertaining to the constitutional validity of the Constitution (Ninety-ninth Amendment) Act, 2014 and that of the National Judicial Appointments Commission Act, 2014.

Supreme Court held that the amendment violated the basic structure inasmuch as by altering the process of appointment of Judges to the Supreme Court and the High Court, the amendment was striking at the very basis of the independence of the judiciary, an essential feature of the Constitution.

Janhit Abhiyan Case

In ‘Janhit Abhiyan v. Union of India, (2022)’, 103rd amendment was challenged before the court, this amendment gave 10% reservation to EWS category. The amendment was challenged on the ground that this is in violation of basic structure of the constitution, the court while discussing Basic structure doctrine said that,

“It is that there is no, and there cannot be any, cut-and-dried formula or a theorem which could supply a ready-made answer to the question as to whether a particular amendment to the Constitution violates or affects the basic structure. The nature of amendment and the feature/s of the Constitution sought to be touched, altered, modulated, or changed by the amendment would be the material factors for an appropriate determination of the question.

The doctrine of basic structure is not so open-ended that it would be readily applied to every constitutional amendment. Quite to the opposite, as exemplified by the decisions, the Court has applied the same only against such hostile constitutional amendments which were found to be striking at the very identity of the Constitution.

The reason for minimal interference by this Court in the constitutional amendments is not far to seek. In our constitutional set-up of parliamentary democracy, even when the power of judicial review is an essential feature and thereby an immutable part of the basic structure of the Constitution, the power to amend the Constitution, vested in the Parliament in terms of Article 368, is equally an inherent part of the basic structure of the Constitution.

Both these powers, of amending the Constitution (by Parliament) and of judicial review (by Constitutional Court) are subject to their own limitations. The interplay of amending powers of the Parliament and judicial review by the Constitutional Court over such exercise of amending powers may appear a little bit complex but ultimately leads towards strengthening the constitutional value of separation of powers. This synergy of separation is the strength of our Constitution.”

A conclusion

A few material aspects related with this interlacing of the amending powers of the Parliament and operation of the doctrine of basic structure could be usefully condensed as follows:

1. The power to amend the Constitution essentially vests with the Parliament and when a high threshold and other procedural safeguards are provided in Article 368, it would not be correct to assume that every amendment to the Constitution could be challenged by theoretical reference to the basic structure doctrine.

2. As exposited in Kesavananda, the amending power can even be used by the Parliament to reshape the Constitution in order to fulfil the obligation imposed on the State, subject, of course, to the defined limits of not damaging the basic structure of the Constitution.

3. Again, as put in Kesavananda, judicial review of constitutional amendment is a matter of great circumspection for the judiciary where the Courts cannot be oblivious of the practical needs of the Government and door has to be left open even for ‘trial and error’, subject, again, to the limitations of not damaging the identity of the Constitution.

4. The expressions “basic features” and “basic structure” convey different meaning, even though many times they have been used interchangeably. It could reasonably be said that basic structure of the Constitution is the sum total of its essential features.

5. As to when abrogation of any particular essential feature would lead to damaging the basic structure of Constitution would depend upon the nature of that feature as also the nature of amendment.

6. As regards Part-III of the Constitution, every case of amendment of Fundamental Rights may not necessarily result in damaging or destroying the basic structure. The issue would always be as to whether what is sought to be withdrawn or altered is an inviolable part of the basic structure.

7. Mere violation of the rule of equality does not violate the basic structure of the Constitution unless the violation is shocking, unconscionable or unscrupulous travesty of the quintessence of equal justice, as exposited in Bhim Singhji.

8. If any constitutional amendment moderately abridges or alters the equality principles, it cannot be said to be a violation of the basic structure.


Janhit Abhiyan v. Union of India (2023)

[1] The Court and the Constitution of India: Summits and Shallows; Oxford University Press 2008 – at p.54