The ICFAI University, Dehradun

ICFAI LAW SCHOOL

COMPARATIVE CONSTITUTION (Hons. - II)

TOPIC: POST KESAVNANDA CASE DEVELOPMENT: WITH SPECIAL

REFERENCE TO BASIC STRUCTURE

SUBMITTED BY: SUBMITTED TO:

ASHISH RANJAN GARG Ms. Prachi Mishra

16FLICDDN01022 Assistant Professor

BBA.LLB(HONS.) ICFAI Law School

4th Year, Batch: 2016-21

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Table of Contents
 Introduction………………………………………………………………………………………………………………… 03

 Basic Structure Doctrine Evolution………………………………………………………………………… 04

 Post Kesavnanda development……………………………………………………………………………………… 06-16

• Indira Nehru Gandhi v. Raj Narain……………………………………………………………………… 07-08

• 42nd Amendment………………………………………………………………………………………………………… 08

• Minerva Mills v. Union of India…………………………………………………………………………… 09

• Waman Rao v. Union of India………………………………………………………………………………… 10

• I.R. Coelho vs State of Tamil Nadu……………………………………………………………………… 11

• SP Sampat v. Union of India…………………………………………………………………………………… 12

• L Chandra Kumar v. Union of India……………………...………………………………… 12

• Kihoto Hollohon v. Zachillhu…………………………………………………………………………………… 13

• S.R Bommai v. Union of India……………………………………………………………………………… 13

• State of Bihar v. Bal Mukund Shah………………………………………………………………………… 14

• M. Nagraj v. Union of India………………………………………………………………………………… 14

• Shri Raghunathrao Ganpatrao v. Union of India………………………………. 15
• National Judicial Appointment Commission…………………………………………………………… 15
 Basic Features……………………………………………………………………………………………………………… 16-17

 Conclusion…………………………………………………………………………………………………………………… 18

INTRODUCTION

The following projects throws light on Basic structure Doctirne, which is indeed a remarkable

evolution in the Indian constitution which emerged from the judgement of largest bench case of

India and one of the landmark cases of India i.e. Kesavananda Bharati vs State of Kerala1 .

1 (1973) 4 SCC 225)

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The above mentioned doctrine is set of systematic rules, underlying principles and connecting

provisions of the Constitution which give coherence, stability and durability to Constitution. The

principles which came up from this doctrine are in clear sense part of constitutional law even

though not expressly stated. The "Basic Structure" doctrine is the judge-made doctrine whereby

certain features of the Constitution of India are beyond the limit of the powers of amendment of

the Parliament of India. These certain “basic features” are immune from the power of

Amendment as ensured in Article 368 of Indian Constitution, which according to Supreme Court

was subject to “Implied limitations”.

In the following years of it development there have been process and attempts 2 to thwart this
doctrine by bringing out successive amendments (24th amendment, 19713 and 42nd amendment,
19763) to abrogate these features. But the court has adhered to it view of not withstanding any of
these amendments.

BASIC STRUCTURE DOCTRINE EVOLUTION

The "Basic Structure" doctrine is the judge-made doctrine whereby certain features of the

Constitution of India are beyond the limit of the powers of amendment of the Parliament of

India. If we look into proper definition, then we cannot find a particularly precise one. A jurist

has to draw light on the Preamble to look into core aspects which constitutes basic structure and

what a particular amendment seeks to achieve, these principles connect the spirit of constitution

providing coherence and durability to constitution.

2 At time of Janta party there were efforts to enshrine Basic Structure theory, by requesting a referendum to
3
amend Four basic features, which were failed owing to Congress opposition. Eastern Book Company - Practical
Lawyer' (Ebc-india.com, 2017) http://www.ebc-india.com/lawyer/articles/71v2a3.htm accessed 14 October
2017.
3 'THE CONSTITUTION (AMENDMENT)' (Indiacode.nic.in, 2017)
http://indiacode.nic.in/coiweb/amend/amend24.htm accessed 14 October 2017.

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The doctrine of Basic Structure helped in maintaining the supremacy of the Constitution and to

prevent its destruction by a temporary majority in Parliament. It acts as a limitation upon the

constituent power and has helped in arresting the forces which may destabilize the democracy.

Parliament does not and should not have an unlimited power to amend the Constitution.

This basic structure doctrine, as future events showed, saved Indian democracy. It helps to retain

the basic ideals of the Constitution which was meticulously constituted by the founding fathers

our Constitution

The following word basic structure is not expressly mentioned in any provision of constitution of

India. It has gradually developed with involvement of Judiciary from time to time. The First

Amendment Act, 1951 was challenged in Shankari Prasad v. Union of India4 case. It was

challenged on ground that the particular amendment violated the Part III of Constitution and

should be held unconstitutional. But the court held that Parliament under Article 368 has power

to amend any provision of Indian constitution. The following ruling was also observed in Sajjan

Singh v. State of Rajasthan.6

But later in Golaknath v. State of Punjab7 case, the Supreme Court overruled its previous

decision. It held that parliament has no power to amend Part III of constitution as Fundamental

Rights are transcendental and immutable8. Art 368 only gives procedure to amend not absolute

power to amend the constitution.

4 AIR 1951 SC 455

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The parliament to overcome this ruling passed 24 th constitutional amendment in 971 which gave

parliament absolute power to make any changes in the constitution including part III and it even

made president bound to sign on the bills seeking for the same.

Then in 1973 in Kesavnanda Bharti vs State of Kerala9 the Supreme court upheld the

constitutionality of following amendment by reviewing its decision in Golak nath Case. It said

Parliament has power to amend any part of constitution, but in doing that the Basic Structure

should be maintained. There was no proper definition provided by supreme court but with later

development following features discuss ahead were discussed by judges as basic Feature which

can never be annulled or abrogated.

6
1965 AIR 845 7 1967 AIR 1643 8 Josh J, 'Basic Structure (Doctrine) Of The Constitution' (Jagranjosh.com, 2017)
<http://www.jagranjosh.com/general-knowledge/basic-structure-doctrine-of-the-constitution-1437127016-1 >
accessed 18 October 2017
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(1973) 4 SCC 225

POST KESAVANANDA DEVELOPMENT

 Indira Nehru Gandhi v. Raj Narain5

In the following case Supreme Court had an occasion to refer to Kesavnanda Bharti and accept

the majority opinion on doctrine of Basic Structure. The appellant in this case filed an appeal

against the decision of Allahabad high court which had invalidated her election on ground of

corrupt practices.

5 AIR 1975 SC 2299

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But meanwhile Parliament enacted thirty-ninth amendment6(39th) to override the effect of

judgement of court by withdrawing the jurisdiction of all courts over election disputes involving

Prime minister.7

But looking into insight of Kesavananda Bharti case it was argued that this amendment affected

the free and fair election and Judicial Review, which were part of Basic structure and thus this

amendment was unconstitutional and Ultra Vires. It was further held that Parliament having

constituent power was not competent to validate an election declared void by High Court. The

following challenge was even upheld by Supreme court. It was observed that democracy is an

essential part of constitution and exclusion of Judicial review in election disputes in such

disputes damaged Basic Structure.

Justice Y.V. Chandrachud listed four basic features8 which he considered unamendable:

• Sovereign democratic republic status.

• Equality of status and opportunity of an individual.

• Secularism and freedom of conscience and religion.

• ‘Government of laws and not of men’ i.e. the rule of law.

However all the judges seemed to rely in varying degrees, either expressly or impliedly,

upon basic Structure theory to hold that under the guise of exercising a legislative power

Parliament could not abjudicate on merits of election dispute.

6 The Thirty-ninth Amendment of the Constitution of India, enacted on 10 August 1975, placed the election of the
President, the Vice President, the Prime Minister and the Speaker of the Lok Sabha beyond the scrutiny of the
Indian courts.'THE CONSTITUTION (AMENDMENT)' (Indiacode.nic.in, 2017)
http://indiacode.nic.in/coiweb/amend/amend39.htm accessed 15 October 2017.
7 V.N. Shukla, VN Shukla's Constituion Of India (10th edn, EASTERN BOOK COMPANY 1950).
8 V.N. Shukla, VN Shukla's Constituion Of India (10th edn, EASTERN BOOK COMPANY 1950).

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 42ND AMENDMENT

THE Government could not reconcile to any limitation, whatsoever, be read to the constituent

power of the Parliament. It held that the impediments in the growth of the Constitution must be

removed, for the Constitution, to be living and must be growing. With these considerations the

Parliament enacted the Constitutional (forty-second amendment act) 1976. This amendment,

inter alia, made the following changes--- a) It inserted a new clause (4)9 and clause (5)10 in

Article 368. The changes made to the Constitution by this amendment are so widespread that it

is sometimes called as a “mini constitution”.

Among other things the amendment:11

 gave the Directive Principles of State Policy precedence over the Fundamental Rights

contained in Article 14, Article 19 and Article 21.

 laid down that amendments to the Constitution made in the past or those likely to be

made in future could not be questioned in any court on any ground;

 expelled all amendments to fundamental rights from the scope of judicial review

 eliminated all limits on Parliament’s power to amend the Constitution under Article 368

9 Article 368 (4), “ No Constitutional amendment to have been made under article 368 whether before or after the
commencement of 42nd amendment act 1976 shall be called in question in any court on any ground
10 Article 368 (5) declares that there shall be no limitations whatever on the constituent power of Parliament to
amend by way of addition, variation, or repeal the provisions of Constitution under this Article
11 'Basic Structure Doctrine- General Knowledge Today' (Gktoday.in, 2017) <
https://www.gktoday.in/basicstructure-
doctrine/#Minerva_Mills_v_Union_of_India1980_and_Waman_Rao_v_Union_of_India1981 > accessed 15
October 2017.

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  MINERVA MILLS V. UNION OF INDIA

In Minerva Mills Ltd. v. Union of India12 the above amendment was challenged. In this

particular case Minerva Mills Ltd. was nationalized and was taken over by Central Government

under the

Silk Textile Undertaking (Nationalization) Act 1974 which was added to the 9th Schedule by the

Constitutional (39th amendment act) 1975. With the result, the petitioner, challenged the

constitutionality of Clauses (4) and (5) of Article 368, along with Section 55 of the 42nd

amendment. The Supreme Court by 4: 1 majority unanimously held that Clauses (4) and (5) of

Article 368 inserted by Section 55 of the 42nd amendment act were unconstitutional, as beyond

the amending power of the Parliament, as they destroyed the basic structure of the Indian

Constitution. It was ruled by the Court that a limited amending power itself is a basic feature of

the Constitution. The apex Court also held the following are the basic features of the

Constitution.

a) Harmony and balance between fundamental rights and Directive Principles in certain cases b)

Power of judicial review.

Chandrachud, CJ, observed thus, “The Indian Constitution is founded on the bedrock of the
balance between Parts III and IV. To give absolute primacy to one 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. The
validity of the amendment is not to be decided on the touchstone of Art. 13 but only on the basis
of violation of the basic features of the constitution.13” Hence once again it was held that the
elements of the basic structure cannot be amended.
12 AIR 1980 SC 1789
13 Satya Prakash, 'Directive Principles Of State Policy: Conscience Of The Constitution'
(http://www.hindustantimes.com/, 2017) < http://www.hindustantimes.com/india/directive-principles-of-statepolicy-
conscience-of-the-constitution/story-lB67mrmVaSSJhV5NSC1WbO.html > accessed 15 October 2017.

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  WAMAN RAO AND ORS VS UNION OF INDIA AND OR

In Waman Rao v. Union of India14 Supreme Court once again reiterated and applied the doctrine

of basic features of the Constitution. In this case, implications of the basic structure doctrine for

Art.31-B15 were reexamined by a five-judge bench of the Supreme Court.

Insofar as Art.31-B was concerned, the Court drew a line of demarcation at April 24th, 1973 i.e.

the date of Kesavananda Bharti’s decision and held it should not be applied retrospectively to

reopen the validity of any amendment to the Constitution which took place prior to 24-04-1973,

that means all the amendments which added to the Ninth Schedule before that date were valid.

All future amendments were held to be challengeable on the grounds that the Acts and

Regulations which they inserted to the Ninth Schedule damaged the basic structure. Amendments

made after decision of Kesavnanda Bharati in 9th schedule were open for scrutiny.

 I .R COELHO VS STATE OF TAMIL NADU

In this. In I.R. Coelho v. State of Tamil Nadu16, the Court added Art.s 14 (right to equality), Art.

19 (fundamental freedoms) and Art. 21 (right to life) to the list of basic features.

In I.R. Coelho v. State of Tamil Nadu it was held that any law placed in the Ninth Schedule after

April 24,1974 will be open to challenge. The court said that even though an act is put in the

14 (1981) 2 SCC 362

15 ARTICLE 31B- Validation of certain Acts and Regulations Without prejudice to the generality of the provisions
contained in Article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the
provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation
or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this
Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said
Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in
force. 'Article 31B In The Constitution Of India 1949' (Indiankanoon.org, 2017) <
https://indiankanoon.org/doc/282612/ > accessed 15 October 2017.
16 AIR 2007 SC 861

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Ninth Schedule by a constitutional amendment its provisions would be open to challenge on the

ground that they destroy or damage the basic feature, if the fundamental rights are taken away or

abrogated pertaining to the basic feature of the Constitution.

The ninth Schedule was introduced to the Constitution through Article 31(b) by the First

Constitutional amendment 195117. The object of the Ninth Schedule was to save the Land reform

Laws enacted by the various State Governments from being challenged in the Court.

The Court said that the validity of the Ninth Schedule law has been upheld by the Apex Court

and would not be open to challenge again, nut if a law is held to be violative of fundamental

rights incorporated in the ninth Schedule after the date of the of the judgment of Kesavnanda

Bharti’s case, such a violation shall be open to challenge on the ground that it destroys or

damages the basic 18structure of the Indian Constitution.

 SP SAMPAT v. UNION OF INDIA

In S.P Sampat v. Union of India23 the constitutional validity of Art 323-A and the provisions of

Administrative Tribunal Act, 1985 were challenged. The ground on which it was challenges was

that the above act by excluding the jurisdiction of High Court in service matters under Article

226 and Art 227 had abridged the power of Judicial Review which is an essential basic Feature

of constitution. But the Supreme Court upheld the validity of Article 323-A19. it said that though

17 The First Amendment of the Constitution of India, enacted in 1951, made several changes to the
Fundamental Rights provisions of the constitution. It provided against abuse of freedom of speech and
expression, validation of zamindari abolition laws,
18 SCR (1) 435
19 Article 323-A of the constitution provides for the establishment of administrative tribunals by a parliament law
for the adjudication or trial of disputes and complaints relating to the recruitment and conditions of service of
government servants under the central government and the state government.

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act has excluded judicial review of high courts, it has not excluded judicial review under Article

32 and 136. Hence the following act is valid and does not affect basic structure as it has vested

Judicial review in alternative institutional mechanism.

L CHANDRA KUMAR v. UNION OF INDIA20

In following case seven member constitutional bench of Supreme Court while reconsidering SP

Sampat case struck down clause 2(d) of Article 323-A and 3(d) of 323-B which provided for the

exclusion of jurisdiction of high court and Supreme Court. It was held unconstitutional and

invalid as it damages the power of Judicial Review. The court held that legislative action under

jurisdiction of High Courts(Art 226&227) and Supreme Courts(32) is an essential feature of

constitution and forms the basic structure of Indian Constitution.

 KIHOTO HOLLOHON VS ZACHILLHU AND OTHERS

The Judgement in Kihoto Hollohon vs Zachillhu 26 and Others in the year1992 answers several of

the questions and concerns regarding Anti-Defection law which was added by 52nd amendment

in 1985. While upholding the constitutional validity of this amendment, the court observed that

the anti-defection law seeks to recognize the practical need to place the proprieties of political

and personal conduct above certain theoretical assumptions. The court finally held that the law

does not violate any rights of free speech or basic structure of the parliamentary democracy.

In Kihoto Hollohan, court recognized Democracy, “Free and Fair Election” as basic features of

constitution.

20 AIR 1997 SC 1125

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  S. R. BOMMAI V. UNION OF INDIA

In S. R. Bommai v. Union of India27, Secularism has been recognized as one of Basic Features.

Judge Sawant and Kuldip Singh observed Democracy and Federalism as essential feature of

constitution and remarked that secularism is a basic structure and an essential feature of our

constitution.

26
1992 SCR (1) 686 27 AIR 1994 SC 1918

 STATE OF BIHAR V. BAL MUKUND SAH AND ORS28

In the following case the court observed that the concepts of separation of powers between

legislature, executive and Judiciary as well the fundamental concept of independent Judiciary

elevates to the level of Basic structure of constitution and are the very heart of constitution.

 M. NAGARAJ V. UNION OF INDIA

In M. Nagaraj v. Union of India29, the Constitutional amendment introducing Articles 16(4A)

and 16(4B), was impugned. These Articles dealt with certain specifics of affirmative action.

Rejecting the contention that these provisions damaged equality, the Court observed that they

only enunciated certain specific rules of “service jurisprudence”, not affecting the basic feature of

equality under Articles 14, 15 and 16 of the Constitution.

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  SHRI RAGHUNATHRAO FANPATRAO V. UNION OF INDIA

In Shri Raghunathrao Ganpatrao v. Union of India, the Supreme Court upheld the 26th

Amendment act, 1971 which derecognized the former Indian rulers and abolished their Privy

purses and other priviliges by repealing artiles Article 291 and 362 and inserting Article 363-A.

the court conceded that the repealed provisions were an integral part of constitution but did not

28
1995 (1) BLJR 469 29 Writ Petition (civil) 61 of 2002
agree that every integral provision constituted a basic structure of constitution 21. Rather found it

in consonance with Republicanism, human dignity and ran through the constitutional provisions.

 NJAC: NATIONAL JUDICIAL APPOINTMENT COMMISSION

The five-member bench that struck down the NJAC and constitutional amendment has also

referred to the "insularity and independence of judiciary" as an intrinsic feature of the “basic
structure” of the Constitution. In the court's view, judicial independence would be

compromised if the executive gains an influence in the appointment of judges. Unquestionably

independence of the judiciary is a part of the basic structure of the Constitution. The judgment

has upheld the primacy of one basic structure — independence of judiciary — but diminished
five other basic structures of the Constitution, namely, parliamentary democracy, an elected
government, the Council of Ministers, an elected Prime Minister and the elected Leader of the
Opposition.

21 V.N. Shukla, VN Shukla's Constituion Of India (10th edn, EASTERN BOOK COMPANY 1950).

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Indian democracy cannot be a tyranny of the unelected and if the elected are undermined,
democracy itself would be in danger.

BASIC FEATURES

The basic features have not been clearly defined by the Judiciary. At least, 20 features have

been described as "basic" or "essential" by the Courts in numerous cases, and have been

incorporated in the basic structure.: The following are the basic or essential features of the

Constitution according to the observations of Judges of Supreme Court in different cases. There

is no exact list of as to what these basic features are. Some of the features of the Constitution

termed as

"basic" are listed below

1. Supremacy of the Constitution

2. Rule of law

3. The principle of Separation of Powers

4. The objectives specified in the Preamble to the Constitution

5. Judicial Review

6. Articles 32 and 226

7. Federalism

8. Secularism

9. The Sovereign, Democratic, Republican structure

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10. Freedom and dignity of the individual

11. Unity and integrity of the Nation

12. The principle of equality, not every feature of equality, but the quintessence of equal

justice;

13. The "essence" of other Fundamental Rights in Part III

14. The concept of social and economic justice — to build a Welfare State:

15. The balance between Fundamental Rights and Directive Principles

16. The Parliamentary system of government

17. The principle of free and fair elections

18. Limitations upon the amending power conferred by Article 368

19. Independence of the Judiciary

20. Effective access to justice

21. Powers of the Supreme Court under Articles 32, 136, 141, 142

22. Legislation seeking to nullify the awards made in exercise of the judicial power of the

State by Arbitration Tribunals constituted under an Act

23. Welfare state

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 CONCLUSION

To conclude the basic structure doctrine of the Constitution propounded by the Supreme Court in

1973 in Kesavananda Bharati v. State of Kerala and Another was indeed a historic decision,

because through their basic structure principle the Supreme Court changed the course of

constitutional history by denying the assertion of supremacy of Parliament in matters of

amending the Constitution at will solely on the basis of requisite voting strength, quite unmindful

of the basic or fundamental rights of the citizens. This principle lays down that henceforth, that is

after April 24, 1973, the validity of all constitutional amendments shall be tested on the

touchstone of basic structure of the Constitution.

Nevertheless the sovereign, democratic and secular character of the polity, rule of law,

independence of the judiciary, fundamental rights of citizens etc. are some of the essential

features of the Constitution that have appeared time and again in the apex court's

pronouncements. One certainty that emerged out of this tussle between Parliament and the

judiciary is that all laws and constitutional amendments are now subject to judicial review and

laws that transgress the basic structure are likely to be struck down by the Supreme Court. In

essence Parliament's power to amend the Constitution is not absolute and the Supreme Court is

the final arbiter over and interpreter of all constitutional amendments.

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 BIBLIOGRAPHY

BOOK SOURCES:

1. V.N. Shukla, VN Shukla's Constituion Of India (10th edn, EASTERN BOOK

COMPANY 1950).

2. Basu D, Introduction To The Constitution Of India (22nd edn, Lexis Nexis 1960)

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1. http://www.ebc-india.com/lawyer/articles/71v2a3.htm

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ofthe-constitution/story-lB67mrmVaSSJhV5NSC1WbO.html

4. https://www.gktoday.in/basic-

structuredoctrine/#Minerva_Mills_v_Union_of_India1980_and_Waman_Rao_v_Union_o

f_India1

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theconstitution-1437127016-1

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