Introduction

THIRTY-FOUR years ago, on April 24, 1973,1 thirteen judges of the Supreme
Court assembled in the Chief Justice's court packed to its capacity with lawyers
and laypersons. They delivered eleven judgments in India's most celebrated case
in constitutional law the Kesavananda Bharati case. 2For over three decades we
have believed that in that case a majority of judges decided that Parliament has
no power to amend the basic structure of the Constitution.
Revelations of how the Kesavananda case was decided have been disclosed in
later interviews with those who were involved in the case, writings of scholars,
and by a revealing autobiography of Justice Jaganmohan Reddy, one of the
judges in that case. This writer, a counsel in the case, kept detailed notes of the
proceedings of the case. We can now piece together a collated account of how
the case was decided. At the end of it, the question arises was there truly a
judicial formulation of the theory of basic structure in that case, as it has come
to mean today; and was the case decided in an atmosphere conducive to a
detached determination of a highly contentious matter with political overtones?
To reverse the Golak Nath case (1967),3 which had held that Parliament had no
power to amend fundamental rights, and in anticipation of a major constitutional
battle, we now know that the government carefully selected some judges who
would not be obstructive to its reversal. The case became a contest not only
between the rival parties but apparently among some of the judges who were
committed to their own strong views on Parliament's power to amend the
Constitution. Justice Jaganmohan Reddy records this about some his colleagues:
"I got the impression [from the first day] that minds were closed and views were
determined."
The case was essentially a political fight in a court of law with a political
background. It was conducted under continuous and intense pressure the likes of
which it is hoped will never be seen again. One author has described the
atmosphere of the court as "poisonous." A judge on the bench later spoke about
the "unusual happenings" in the case. If the several "unusual happenings" in the
case are related in detail, they will make one doubt if the decision in the case
was truly a judicial one expected from judges with detachment from the results
of the controversy before them.
1 http://www.thehindu.com/todays-paper/tp-opinion/basic-structure-of-theconstitution-revisited/article1845048.ece by T.R. Andhyarujina
2 1 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225: AIR 1973 SC 1461.
3 I.C. Golaknath v. State of Punjab, AIR 1967 SC 1643

On April 24, 1973, the eleven separate judgments were delivered by nine
judges; collectively these ran into more than 1000 printed pages. Six judges
Chief Justice S.M. Sikri and Justices J.M. Shelat, K.S. Hegde, P. Jaganmohan
Reddy, A.N. Grover, and S. Mukherjea were of the opinion that Parliament's
power was limited because of implied and inherent limitations in the
Constitution, including those in fundamental rights. Six other judges Justices
A.N. Ray, D.G. Palekar, K.K. Mathew, S.N. Dwivedi, M.H. Beg, and Y.V.
Chandrachud were of the opinion that there were no limitations at all on
Parliament's power to amend the Constitution. But one judge Justice H.R.
Khanna took neither side. He held that Parliament had the full power of
amending the Constitution; but because it had the power only "to amend," it
must leave "the basic structure or framework of the Constitution" intact. It was a
hopelessly divided verdict after all the labour and contest of five months. No
majority, no minority, nobody could say what was the verdict.
How was it then said that the Court by a majority held that Parliament had no
power to amend the basic structure of the Constitution? Thereby hangs a tale not
generally known. Immediately after the eleven judges finished reading their
judgments, Chief Justice Sikri, in whose opinion Parliament's power was
limited by inherent and implied limitations, passed on a hastily prepared paper
called a "View of the Majority" for signatures by the thirteen judges on the
bench. One of the conclusions in the "View of the Majority" was that
"Parliament did not have the power to amend the basic structure or framework
of the Constitution." This was lifted from one of the conclusions in the
judgment of Justice H.R. Khanna. Nine judges signed the statement in court.
Four others refused to sign it.
The verdict would have remained in this uncertain state but for accidental
events following the decision. On August 1, 1975, with lightning speed and by
an outrageous abuse of the amending power during the Emergency, Parliament
made the 39th Amendment to the Constitution. This introduced Article 329 A of
the Constitution which sought to validate Indira Gandhi's election set aside by a
judge of the Allahabad High Court without any contest, including her pending
appeal in the Supreme Court.

On August 11, 1975, Indira Gandhi's election appeal against her disqualification
was heard by five judges presided over by Chief Justice A.N. Ray. He had been
appointed Chief Justice of India by the government the day after the judgments
in the Kesavanada case superseding three other judges who had decided against
the unlimited power of Parliament to amend the Constitution. The government
believed that with the amendment to Article 329A of the Constitution, her

appeal would simply be allowed. But so outrageous was the amendment that all
five judges declared it bad as it violated "the basic structure." Nevertheless,
Indira Gandhi's appeal was allowed by an amendment made to the
Representation of the People Act, 1951, which cured all illegalities in her
election. The court could strike down constitutional law but not an ordinary law
that carried out the same purpose. To many this seemed perplexing.
The problem could not be avoided. In 1980, in the Minerva Mills case, the
question was raised whether there was indeed a majority view on the limitation
of the basic structure. Justice Bhagwati said that the statement signed by nine
judges had no legal effect at all and could not be regarded as the law declared
by the Supreme Court. He said the so-called majority view was an unusual
exercise that could not have been done by judges who had ceased to have any
function after delivering their judgments and who had no time to read the
judgments. However Justice Bhagwati relieved himself from deciding what he
called "a troublesome question" by saying that Indira Gandhi's case had
accepted the majority view that Parliament's power of amendment was limited.
This was not correct as that case was decided on the assumption that it was not
necessary to challenge the majority view.
But in Indira Gandhi's election case4 two years later, Justice Khanna "clarified"
his judgment in the Kesavananda case. He now said that he had given clear
indications in his judgment that fundamental rights were part of the basic
structure. By so clarifying his judgment, Justice Khanna did not realise that this
clarification rendered his judgment in the Kesavananda case hopelessly selfcontradictory, as he had held unconditionally valid two constitutional
amendments that nullified vital fundamental rights. With that dubious exercise,
Justice Khanna's "clarification" is now a vital part of the basic structure.
Fundamental rights are now immune to an amendment if it violates the basic
structure of the Constitution.
In the latest judgment, delivered on January 11, 2007, by nine judges of the
Court on the Ninth Schedule to the Constitution, the basic structure limitation
has been stated to be "an axiom of our constitutional law." An axiom means a
self-evident truth. So be it. Whatever its origins, the basic structure theory plays
a useful part in our constitutional jurisprudence. Parliament does not and should
not have an unlimited power to amend the Constitution. However, in the
glorification of the basic structure theory, it is important to bear in mind its
infirm roots and how predilections and prejudices of judges, chance, and
accidental circumstances have played a greater part rather than any logic or
conscious formulation of it.
4 Indira Nehru Gandhi v. Raj Narain, AIR 1975 SCC 2299

This basic structure doctrine may be called an invention as it was inspired by

an exceptional display of art, courage and craft that the Supreme Court
exhibited while evolving this doctrine which counts as one of the greatest
contribution of Indian judiciary to theory of institutionalism. Though the
judgment of the case is more popular for its lengthy disposition and
incomprehensible ratio decidendi,5 yet its showcase of a desperate attempt to
strike balance of various contesting claims to the guardianship of the
constitution is remarkable.
2. Historical Background
A careful look at Indian history shows that there were many competing visions
for the future of India in the lead-up to independence. Subhash Chandra Bose, a
leader in the pre-independence Congress Party, favoured a stronger, more
authoritarian state and modelled on the fascist governments of the 1930s and
1940s. On the other extreme, Mahatma Gandhi advocated a more decentralized
and self-sufficient society. Neither Boses nor Gandhis vision would gain much
traction during the Constitutions drafting. Instead, one of the most entrenched
debates at the Constituent Assembly and one that would provide the historical
seeds of the basic structure doctrine was between the similar, but competing
ideologies of Jawaharlal Nehru and Sardar Vallabhbhai Patel. Nehru and Patel
were the two most powerful political leaders of the Congress Party at the end of
British rule. Indeed, Nehru became the countrys first Prime Minister only upon
Gandhis request that Patel step aside (Patel had been supported by more
members of Congress to lead the party at independence). Patel was a proponent
of many of the principles of laissez- faire economics. Nehru, on the other hand,
believed in large-scale property redistribution and nationalization to correct past
social injustices and lay the groundwork for a prosperous economy. This
position was popular amongst the poverty-stricken electorate, and even today
polls indicate that the overwhelming majority of Indians believe that there
should be a limit on possessing a certain amount of land and property.
According to Dr. Ambedkar this difference in economic perspective came to a
head in the drafters debates over property rights. Nehru wanted no
compensation for property seized by the government, while Patel demanded full
compensation. The right to property in the final version of the Constitution was
a compromise between the two, with ambiguity surrounding both when property
5 There has been a considerable debate between the legal scholars and jurists
about the true ratio of the case for a multiplicity of the judgments and a
summary judgment signed by 9 out of 13 judges in the bench.

could be taken and what compensation would be paid. Patels early death in
1950 ensured not only that Nehru would never again be seriously challenged for
the post of Prime Minister, but also that he could more easily push his original
vision of the right to property. When early judicial decisions signalled that the
courts would limit the governments ability to expropriate property, Nehrus
government acted swiftly. In 1951, it passed the first amendment to the
Constitution which created articles 31A and 31B. These articles would provide
the origin of the dispute that would ultimately create the basic structure
doctrine. Article 31A stated that any acquisition of property by the state through
law could not be called into question under the rights to property, equality,
freedom of speech, or freedom to practice ones profession. Article 31B created
the Ninth Schedule, a list of laws inserted in the back of the Constitution. Laws
that were placed into this schedule through Constitutional amendment could not
be found invalid by the judiciary on the basis of any of the fundamental rights.
In the First Amendment, thirteen land reform laws were placed into this
protected schedule. Although the First Amendment only protected land reform
laws, the Ninth Schedule could, on its face, be used to protect any law placed
into it from fundamental rights review.
Property owners challenged the Constitutional amendments which placed land
reforms laws in the Ninth Schedule before the Supreme Court, saying that they
violated Article 13 (2) of the Constitution. Article 13 (2) provides for the
protection of the fundamental rights of the citizen. Parliament and the state
legislatures are clearly prohibited from making laws that may take away or
abridge the fundamental rights guaranteed to the citizen. They argued that any
amendment to the Constitution had the status of a law as understood by Article
13 (2). In 1952 (Sankari Prasad case)6 and 1955 (Sajjan Singhs case)7 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 Sajjan Singhs
case raised doubts whether the fundamental rights of citizens could become a
plaything of the majority party in Parliament.
The verdict in Golaknaths case8 led to direct conflict of power between the
parliament and judiciary. The ruling government suffered heavy losses of votes
in parliamentary elections as it failed to fulfil its promises. The power conflict
6 Sankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458.
7 Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845
8 I.C. Golak Nath v. State of Punjab, (1967) 2 S.C.R. 762, 819

led the government to introduce a bill seeking to restore supremacy of

parliament which was later not pressed because of some political
compulsions.13 But hungry to prove it supreme, parliament again, under the
pretext of ensuring equitable distribution of wealth and resources, introduced
two major lines of laws, one related to nationalization of banks and other related
to de- recognition of Privy Purses. The Supreme Court struck down both the
moves of the parliament. Now the basic question had shifted as to the relative
position of directive principles and the fundamental rights. This led to a political
situation which the Indian history had never witnessed. Judiciary and
Parliament were at loggerhead in proving their supremacy. For the first time, the
Constitution itself became the electoral issue in India. In 1971 and 1972 many
amendments were carried on that directly challenged the Courts declaration
that the fundamental rights could not be amended and further shielded laws
from fundamental rights review. These amendments being over-ambitious were
inevitably challenged in Keshavanands case.

3. Keshavananda Bharti Case: The emergence of Basic Structure

Doctrine
The Supreme Court declared in Kesavananda Bharati v. State of Kerala that
Article 368 did not enable the Parliament to alter the basic structure of
framework of the constitution. The judgment was ground shattering. It was a
revolutionary step in the history of Constitutional Law. Subsequently, the
Supreme Court of Bangladesh adopted the doctrine of basic structure relying on
Kesavanada Bharati case. In Pakistan the Lahore High Court and the
Baluchistan High Court took the same view but not the Supreme Court. The
judgment also had an effect on the Nepal Constitution. For the first time, the
Doctrine of Basic Structure was specifically mentioned in this case. The validity
of the 24th and the 25th amendment was challenged in this case and the matter
was heard by a bench of 13 judges.
The Court held that the power to amend the constitution was under the ambit of
Article 368 and thus overruled the judgment in Golaknath case. Although the
parliament had the amending power, it was not absolute and was subject to the
condition that the amending power could not be exercised so as to harm or
destroy or abrogate the basic features of the Constitution. A constitutional
amendment transgressing the basic structure would be held unconstitutional.
This decision of the bench was almost similar to the decision in Golaknath case,
but it differed in a major point. Golaknath had made all fundamental rights as
non-amendable. However in Kesavananda this rigidity was made a bit more
flexible by making only the fundamental rights enshrined under the basic

structure to be non-amendable. The reason for this was that making all rights
non amendable would make the constitution static and hamper the progress of
the country. Thus only the fundamental rights that were a part of the basic
structure were immune from amendment. It was left for the courts to decide
which right was considered as a part of the basic feature.
The minority view delivered by Justice A.N. Ray, Justice M.H. Beg, Justice
K.K. Mathew and Justice S.N. Dwivedi also agreed that Golaknath had been
decided wrongly. They upheld the validity of all three amendments challenged
before the court. Ray, J. held that all parts of the Constitution were essential and
no distinction could be made between its essential and non-essential parts. All
of them agreed that Parliament could make fundamental changes in the
Constitution by exercising its power under Article 368.
The basic philosophy underlying the doctrine of non-amenability of the basic
features of the constitution, evolved by the majority in Kesavananda has been
beautifully explained by Hedge and Mukherjee, JJ., as follows: Our
Constitution is not a mere political document. It is essentially a social
document. It is based on a social philosophy and every social philosophy like
every religion has two main features, namely, basic and circumstantial. The
former remains constant but the latter is subject to change. The core of a
religion always remains constant but the practices associated with it may
change. Likewise, a constitution like ours contains certain features which are so
essential that they cannot be changed or destroyed.

Post Kesavananda verdict: Parliament's authority to amend the Constitution,

particularly the chapter on the fundamental rights of citizens, was challenged as
early as in 1951. After independence, several laws were enacted in the states
with the aim of reforming land ownership and tenancy structures. This was in
keeping with the ruling Congress party's electoral promise of implementing the
socialistic goals of the Constitution [contained in Article 39 (b) and (c) of the
Directive Principles of State Policy] that required equitable distribution of
resources of production among all citizens and prevention of concentration of
wealth in the hands of a few. Property owners -- adversely affected by these
laws -- petitioned the courts. The courts struck down the land reforms laws
saying that they transgressed the fundamental right to property guaranteed by
the Constitution. Piqued by the unfavourable judgements, Parliament placed

these laws in the Ninth Schedule of9 the Constitution through the First and
Fourth amendments (1951 and 1952 respectively), thereby effectively removing
them from the scope of judicial review.
[Parliament added the Ninth Schedule to the Constitution through the very first
amendment in 1951 as a means of immunising certain laws against judicial
review. Under the provisions of Article 31, which themselves were amended
several times later, laws placed in the Ninth Schedule -- pertaining to
acquisition of private property and compensation payable for such acquisition -cannot be challenged in a court of law on the ground that they violated the
fundamental rights of citizens. This protective umbrella covers more than 250
laws passed by state legislatures with the aim of regulating the size of land
holdings and abolishing various tenancy systems. The Ninth Schedule was
created with the primary objective of preventing the judiciary - which upheld
the citizens' right to property on several occasions - from derailing the Congress
party led government's agenda for a social revolution.
Property owners again challenged the constitutional amendments which placed
land reforms laws in the Ninth Schedule before the Supreme Court, saying that
they violated Article 13 (2) of the Constitution.
Article 13 (2) provides for the protection of the fundamental rights of the
citizen.10 Parliament and the state legislatures are clearly prohibited from
making laws that may take away or abridge the fundamental rights guaranteed
to the citizen. They argued that any amendment to the Constitution had the
status of a law as understood by Article 13 (2). In 1952 (Sankari Prasad Singh
Deo v. Union of India11) and 1955 (Sajjan Singh v. Rajasthan12), 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 Sajjan Singh v.
9 Originally, the Constitution guaranteed a citizen, the fundamental right to
acquire hold and dispose of property under Article 19f.
10 Article 13 (2) states- "The State shall not make any law which takes away or
abridges the rights conferred by this Part and any law made in contravention of
this clause shall, to the extent of the contravention, be void." The term Part
refers to Part III of the Constitution which lists the fundamental rights of the
citizen.
11 Sankari Prasad Singh Deo v. Union of India, AIR 1951 SC 45
12 Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845

Rajasthan case raised doubts whether the fundamental rights of citizens could
become a plaything of the majority party in Parliament.

The Golaknath verdict:

In 1967 an eleven-judge bench of the Supreme Court reversed its position.
Delivering its 6:5 majority judgement in the Golaknath v. State of Punjab case7,
Chief Justice Subba Rao put forth the curious position that Article 368, that
contained provisions related to the amendment of the Constitution, merely laid
down the amending procedure. Article 368 did not confer upon Parliament the
power to amend the Constitution. 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).
The majority judgement invoked the concept of implied limitations on
Parliament's power to amend the Constitution. This view held that the
Constitution gives a place of permanence to the fundamental freedoms of the
citizen. In giving the Constitution to themselves, the people had reserved the
fundamental rights for themselves. Article 13, according to the majority view,
expressed this limitation on the powers of Parliament. Parliament could not
modify, restrict or impair fundamental freedoms due to this very scheme of the
Constitution and the nature of the freedoms granted under it. 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 other words, the apex court held that some features of the Constitution lay at
its core and required much more than the usual procedures to change them.

Basic Features of the Constitution according to the Kesavanada

verdict
Each judge laid out separately, what he thought were the basic or essential
features of the Constitution. There was no unanimity of opinion within the
majority view either.
Sikri, C.J. explained that the concept of basic structure included:
Supremacy of the Constitution republican and democratic form of
government secular character of the Constitution separation of powers
between the legislature, executive and the judiciary federal character of the
Constitution
Shelat, J. and Grover, J. added two more basic features to this list:
The mandate to build a welfare state contained in the Directive Principles of
State Policy unity and integrity of the nation
Hegde, J. and Mukherjea, J. identified a separate and shorter list of basic
features:
Sovereignty of India democratic character of the polity unity of the country
essential features of the individual freedoms secured to the citizens mandate
to build a welfare state
Jaganmohan Reddy, J. stated that elements of the basic features were to be
found in the Preamble of the Constitution and the provisions into which they
translated such as:
Sovereign democratic republic
Parliamentary democracy three organs of the State
He said that the Constitution would not be itself without the fundamental
freedoms and the directive principles.13
Only six judges on the bench (therefore a minority view) agreed that the
fundamental rights of the citizen belonged to the basic structure and Parliament
could not amend it.

Basic Structure concept reaffirmed- the Indira Gandhi Election case:

13 Kesavananda Bharati Sripadagalavaru v State of Kerala and Another 1973 (4)
SCC pp. 637-38.

In 1975, The Supreme Court again had the opportunity to pronounce on the
basic structure of the Constitution. A challenge to Prime Minister Indira
Gandhi's election victory was upheld by the Allahabad High Court on grounds
of electoral malpractice in 1975. Pending appeal, the vacation judge- Justice
Krishna Iyer, granted a stay that allowed Smt. Indira Gandhi to function as
Prime Minister on the condition that she should not draw a salary and speak or
vote in Parliament until the case was decided. Meanwhile, 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. This was clearly a pre-emptive action designed to
benefit Smt. Indira Gandhi whose election was the object of the ongoing
dispute.
Amendments were also made to the Representation of Peoples Acts of 1951 and
1974 and placed in the Ninth Schedule along with the Election Laws
Amendment Act, 1975 in order to save the Prime Minister from embarrassment
if the apex court delivered an unfavourable verdict. The mala fide intention of
the government was proved by the haste in which the Thirty-ninth amendment
was passed. The bill was introduced on August 7, 1975 and passed by the Lok
Sabha the same day. The Rajya Sabha (Upper House or House of Elders) passed
it the next day and the President gave his assent two days later. The amendment
was ratified by the state legislatures in special Saturday sessions. It was
gazetted on August 10. When the Supreme Court opened the case for hearing
the next day, the Attorney General asked the Court to throw out the case in the
light of the new amendment.
Within three days of the decision on the Election case Ray, C.J. convened a
thirteen judge bench to review the Kesavanada verdict on the pretext of hearing
a number of petitions relating to land ceiling laws which had been languishing
in high courts. The petitions contended that the application of land ceiling laws
violated the basic structure of the Constitution. In effect the Review bench was
to decide whether or not the basic structure doctrine restricted Parliament's
power to amend the Constitution. The decision in the Bank Nationalisation case
was also up for review.
Meanwhile Prime Minister Indira Gandhi, in a speech in Parliament, refused to
accept the dogma of basic structure.21

It must be remembered that no specific petition seeking a review of the

Kesavananda verdict filed before the apex court- a fact noted with much chagrin
by several members of the bench. N.N. Palkhivala appearing for on behalf of a
coal mining company eloquently argued against the move to review the
Kesavananda decision. Ultimately, Ray, C.J. dissolved the bench after two days
of hearings. Many people have suspected the government's indirect
involvement in this episode seeking to undo an unfavourable judicial precedent
set by the Kesavananda decision. However no concerted efforts were made to
pursue the case.
The declaration of a National Emergency in June 1975 and the consequent
suspension of fundamental freedoms, including the right to move courts against
preventive detention, diverted the attention of the country from this issue.

Reaffirmation of Doctrine- the Minerva Mills and Waman Rao cases

Within less than two years of the restoration of Parliament's amending powers
to near absolute terms, the Forty-second amendment was challenged before the
Supreme Court by the owners of Minerva Mills (Bangalore) a sick industrial
firm which was nationalised by the government in 1974.14
Mr. N.A. Palkhivala, renowned constitutional lawyer and counsel for the
petitioners, chose not to challenge the government's action merely in terms of an
infringement of the fundamental right to property. Instead, he framed the
challenge in terms of Parliament's power to amend the Constitution.
Mr. Palkhivala argued that Section 55 of the amendment15 had placed unlimited
amending power in the hands of Parliament. The attempt to immunise
constitutional amendments against judicial review violated the doctrine of basic
structure which had been recognised by the Supreme Court in the Kesavananda
Bharati and Indira Gandhi Election Cases. He further contended that the
amended Article 31C was constitutionally bad as it violated the Preamble of the
Constitution and the fundamental rights of citizens. It also took away the power
of judicial review.
Chief Justice Y.V. Chandrachud, delivering the majority judgement (4:1), upheld
both contentions. The majority view upheld the power of judicial review of
constitutional amendments. They maintained that clauses (4) and (5) of Article
14 Minerva Mills Ltd. v Union of India (1980) 3 SCC 625.
15 The Constitution (Forty-second amendment) Act 1976 [corresponding to
Article 368 (4) & (5)]

368 conferred unlimited power on Parliament to amend the Constitution. They

said that this deprived courts of the ability to question the amendment even if it
damaged or destroyed the Constitution's basic structure.
The judges, who concurred with Chandrachud, C.J. ruled that a limited
amending power itself is a basic feature of the Constitution.
Bhagwati, J. the dissenting judge also agreed with this view stating that no
authority howsoever lofty, could claim to be the sole judge of its power and
actions under the Constitution.
The majority held the amendment to Article 31C unconstitutional as it destroyed
the harmony and balance between fundamental rights and directive principles
which is an essential or basic feature of the Constitution.16 The amendment to
Article 31C remains a dead letter as it has not been repealed or deleted by
Parliament. Nevertheless cases under it are decided as it existed prior to the
Forty-second amendment.
In another case relating to a similar dispute involving agricultural property the
apex court, held that all constitutional amendments made after the date of the
Kesavananda Bharati judgement were open to judicial review.27 All laws placed
in the Ninth Schedule after the date of the Kesavananda Bharati judgement were
also open to review in the courts. They can be challenged on the ground that
they are beyond Parliament's constituent power or that they have damaged the
basic structure of the Constitution. In essence, the Supreme Court struck a
balance between its authority to interpret the Constitution and Parliament's
power to amend it.

Conclusion
As a conclusion it may be said that the doctrine of basic structure of the
Constitution is a great Constitutional concept that has been formally engrafted
upon the Constitution by the judiciary s through the interpretative processes.
The doctrine is well formulated and it has maintained a balance between the
rigidity and the flexibility of the Constitution. The basic structure doctrine is the
16 Waman Rao v Union of India 1981 2 SCC 362. The Supreme Court decided
this case along with that of Minerva Mills. Bhagwati, J. who was in the minority
again incorporated his opinions on both cases in a single judgment.

single most important factor that has made the survival of our Constitution
possible in its pristine form. It has served us well by effectively foreclosing the
possibilities of uncalled for tampering of the Constitution, abrogation of the
primordial rights necessary for the development of human personality,
weakening the hold of Rule of Law and maintaining balance between different
organs of the State. It prevents the parliament from having unconditional power
and becoming the master of law itself. It has till date proved to be a very
effective tool in deciding the validity of the Constitutional amendments. But
whether this doctrine is sufficient to accommodate the change that may be
required in future needs to be further debated. Nevertheless, there is no scope in
denying the fact that this doctrine has served the country very well during
turbulent times when parliament was in a mood to resort to Article 368
recklessly. The Supreme Court has done a great service to the nation by
declaring that there are certain basic features of the Constitution which cannot
be amended. It has necessarily pointed out to the parliament that Constitution is
not any partys manifesto which can be changed at their own will but is a
national heritage which can be amended only when a national consensus
demands for it. Thus, the doctrine of basic structure may be allowed to operate
as the very watchdog of Constitutional governance. There can still be debates
about what constitutes basic structure. There is nothing wrong in such debates.
We must remember that politics in a democracy is necessarily full of debates
and differences. That is a sign of diversity, liveliness and openness.

Table of Cases
I.C. Golak Nath & Ors. vs. The State of Punjab & Ors.: AIR 1967 S.C. 1643,
(1967) 2 SCJ 486
Kesavananda Bharati vs. The State of Kerala; AIR 1973 S.C. 1461, (1973) 4
SCC 225
Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625.
Sankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.

Bibliography

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