Webinar for Adv.

Vasantrao Patil Lawyers Training

Center-The Sangli Advocates Bar Association

Basic Structure Doctrine Revisited & Reviewed.

Shreehari Aney

The Scope.

While the basic structure doctrine has been a part of our Constitution for almost half a
century, it functioning in today’s context ought to be a cause of alarm. What began its life as
a test to determine which portions of the Constitution were beyond the pale of the
amendment process has now become a tool for general interpretation of the Constitution,
and is on its way to becoming a test for ultra vires. It is this mutation that is discussed in this
paper.

Introductory Observations.

The popular assumption that the concept of basic structure was brought about by the
Supreme Court in the Kesavanand Bharati1 case is not entirely correct. Although perhaps not
in those terms, it was alluded to while explaining the doctrine of Separation of Powers by the
Supreme Court, in Re. Special Reference No.12 popularly referred to as the Legislative
Privileges Case. But basic structure, as we understand it today, became focus of the debate
in the true sense in Kesavanand Bharati.

The basic structure doctrine has been defined in various ways. Salman Khurshid labels it as
"…an attempt to identify the moral philosophy on which the Constitution is based."3

Y.V.Chandrachud, ex-Chief Justice of India, one of the 5 judges who rightly dissented from the
majority view on the basic structure doctrine when it was first propounded in Kesavanand
Bharati case, followed and applied the doctrine in the later judgments including Minerva
Mills4 in keeping with the law of precedent and the judicial discipline that requires its
observance. Minerva Mills stated with utmost clarity the realm of the operation of the basic
structure doctrine thus: “If by constitutional amendment, Parliament were granted unlimited
power of amendment, it would cease to be an authority under the Constitution, but would
become supreme over it, because it would have power to alter the entire Constitution
including its basic structure and even to put an end to it by totally changing its identity.”

On the occasion of the first Remembering S.P.Sathe Memorial lecture, former Solicitor
General late T.R.Andhyarujina, in an address5 on the basic structure doctrine, using a more
legal terminology, described it as a noble fiction of the Supreme Court. While asserting that

1
Kesavanand Bharati- (1973) 4 SCC 225
2
Re. Special Reference No.1- (1965) 1 SCR 413
3
Salman Khurshid - The Court, the Constitution and the People, in The Supreme Court Versus the Constitution:
A Challenge to Federalism 95, 98 (Pran Chopra ed., 2006)
4
Minerva Mills- (1980) 3 SCC 625
5
ILS Law Review Volume I, March 2008, pg 119
he did not agree with the doctrine, Andhyarujina felt that it was a necessary development
when he argued; “…it is a fiction because I firmly believe that there was never a juridical basis
for what is believed to be the basic structure theory… But at the same time, I tell you that it is
a fiction that we require, and we must have. If Kesavanand Bharati did not invent it, sooner or
later some limitation on the exercise of the amending power would have to be recognised
perhaps in a better juridical, more understanding way than the 13 judges of Kesavanand
Bharati did. Therefore, I say that a fiction it may be, but it is a noble fiction, and we have to
maintain that fiction.”

While I agree with the sentiment that this was a necessary fiction, I am constrained to observe
that the current application of the doctrine ought to be a matter of grave concern. I am also
of the view that the importance of this doctrine is sought to be extended beyond its intended
boundary. It is about this that I wish to speak.

A Brief History of Kesavananda Bharati.

Before entering into the facts and the controversy in the Kesavananda Bharati case, it is
necessary to understand its genesis. It all began with Golaknath case6. The Golak Nath
brothers owned 500 acres of land. Under the Punjab Security of Tenure Act 1953, a law which
was put in the Ninth Schedule of the Constitution by the 17th Constitutional Amendment
thereby making it immune to a challenge under Part III of the Constitution, Punjab
government permitted them to retain only 30 acres of land each, and the surplus was to be
distributed to their tenants. The Golak Nath brothers challenged this in the Supreme Court by
a petition under Article 32 arguing violation of their Fundamental Rights under Article 19(1)(f)
and (g). The Supreme Court allowed the Petition and the majority judgment held that
impugned law violated Article 14 and the petitioners’ fundamental rights under Article
19(1)(f) and (g). In a concurring judgment Hidayatullah J held the addition of the State Act to
the Ninth Schedule under Article 31 A would not give it protection if it offended the provisions
of the Constitution. The majority view was that that Parliament had no power to enact any
law that could take away a citizen’s rights guaranteed by Part III of the Constitution.

After the judgment in Golaknath, Parliament passed a series of Amendments in order to

overrule the judgment of the Golaknath case. In 1971, the 24th Constitutional Amendment
was passed affecting Articles 13 and 368, followed by the 25th Amendment in 1971 affecting
Articles 31 and 31-C and the 29th Amendment in 1972 affecting the Ninth Schedule.

The 24th Amendment (1971): In the Golaknath case, Supreme Court laid down that every
Amendment which is made under Article 368 would be taken as an exception under Article
13. In order to overcome this position, Parliament annexed Clause 4 to Article 13 so as to
provide nothing in Article 13 would apply to any amendment made to the Constitution under
Article 368. In order to remove any ambiguity, Parliament added clause 3 to Article 368 which
stated “Nothing in article 13 shall apply to any amendment made under this article.”
Similarly, in order to overcome the Supreme Court’s view in Golaknath that Article 368
contained the provision concerning the procedure of Amendment and not the power to
amend, Article 368 was amended and the word power was added in the Marginal Note.

6
Golak Nath –( 1967) 2 SCR 762
The 25th Amendment (1971): This amendment curtailed the right to property, and permitted
the acquisition of private property by the government for public use, on the payment of
compensation which would be determined by the Parliament and not the courts. The
amendment also exempted any law giving effect to the article 39(b) and (c) of Directive
Principles of State Policy from judicial review, even if it violated the Fundamental Rights.
In 1970, the Supreme Court, in its judgement on Rustom Cavasjee Cooper v. Union Of India7,
popularly known as the Bank Nationalization case, held that the Constitution guarantees the
right to compensation, that is, the equivalent money of the property compulsorily acquired.
The Court also held that a law which seeks to acquire or requisition property for public
purposes must satisfy the requirement of Article19(1)(f). The 25th Amendment sought to
overcome the restrictions imposed on the government by this ruling.
Parliament replaced the word ‘compensation’ with the word ‘amount’ in Article 32(2) making
it clear that they are not bound to adequately compensate the landlords in case their property
was taken by the State Government by delinking Article 19 (1) (f) and Article 31(2). Further,
article 31- C was added to ensure fulfilment of objectives contained under Part IV Directive
Principles of State Policy, and particularly Article 39(b) and (c), causing Articles 14, 19 & 31.
It also caused any law passed to make Article 39(b) and (c) effective, immune from the
Supreme Court’s scrutiny.
The 29th Amendment (1972): 29th Amendment inserted the Kerala Land Reforms Act into
the 9th Schedule, placing matters related to the Kerala Land Reforms Act beyond judicial
review by reason of being ultra-vires Part III of the Constitution.

The Edneer Mutt in Kasaragod district of Kerala under its pontiff Kesavananda Bharati was
affected by the Kerala Land Reforms Act, 1969 and its amendment by the Kerala Land reforms
(Amendment) Act, 1971, under which the state government was entitled to acquire some of
the Mutt’s land. Kesavananda Bharati moved to Supreme Court under Section 32 of the
Constitution for enforcement of his rights which guaranteed under Article 25 (Right to
practice and propagate religion), Article 26 (Right to manage religious affairs), Article 14
(Right to equality), Article 19(1)(f) (freedom to acquire property) and Article 31 (Compulsory
Acquisition of Property). Certain provisions of the Kerala Land Reforms Act along with the
aforesaid 24th 25th and 29th Amendments were challenged.

The Issues before the Court were whether the 24th & 25th Constitutional (Amendment), Acts
of 1971 were constitutionally valid or not. The legal debate was on a fundamental issue: the
limits on the exercise of Parliament’s power to amend the Constitution.

The Petitioner’s contentions, simply put, were that Parliament does not have absolute and
unfettered power to amend the Constitution. It cannot exercise its power to amend the
constitution by changing its basic structure as touched upon by Justice Mudhokar in the case
of Sajjan Singh versus State of Rajasthan8 when he posed the question “ Whether making a
change in the basic features of the Constitution can be regarded merely as an amendment or
would it be, in effect, rewriting a part of the Constitution, and if it is the latter, would it be

7
Cawasji Cooper/Bank Nationalisation Case- AIR 1970 SC 564
8
Sajjan Singh – AIR 1965 SC 845
within the purview of Art.368 ?” The petitioner pleaded for the protection of his property
under Article 19(1)(f) of the Indian Constitution. It was argued by him that the 24th and 25th
Constitutional Amendments violated the Fundamental Right which was provided under
Article 19(1)(f) of the Indian Constitution. Fundamental Rights are rights available to citizens
of India to ensure freedom and if any Constitutional amendment takes away such right then
the freedom which is ensured under the Constitution to its citizens will be deemed to be taken
away from them.

The Respondent State’s contention that supremacy of Parliament is the basic principle of the
India’s legislative system. Parliament therefore has unlimited, unfettered and plenary power
to amend the Constitution, in all its parts including the operation of fundamental rights in
Part III. According to the Respondent State when the socio-economic obligations contained
in Part IV, or as enshrined in the Preamble need to be implemented, Parliament may do so
by exercising its power to amend the constitution if necessary.

The Evolution of the Doctrine.

Indian constitutional law borrows extensively from English and American sources9, but the
doctrine of basic structure was brought to India from Germany. Dietrich Conrad, a German
professor and an expert on South Asian law, presented it in his lecture to the law faculty of
Banaras Hindu University in 1965. It came to the attention of M. K. Nambyar, who, while
arguing the Golak Nath10 case, presented it to Supreme Court, when he argued that there
existed implied limitations on the power to amend the Constitution. The Supreme Court saw
the considerable force of this argument, but did not go into it. It was in the Kesavananda
Bharati case that Justice Khanna cited with approval Conrad's remark that "any amending
body organized within the constitutional scheme, howsoever verbally unlimited its power,
cannot by its very structure change the fundamental pillars supporting its constitutional
authority."

Yaniv Rozani, in his study of the comparative amendment processed to be found in various
world constitutions said that as the doctrine was employed by courts in India in the times
that followed, Conrad wrote "there are, beyond the wording of particular provisions,
systematic principles underlying and connecting the provisions of the Constitution ... [which]
give coherence to the Constitution and make it an organic whole."11. Yaniv Rozani also quoted
the German Constitutional Court in the Southwest case to say "A Constitution has an inner
unity, and the meaning of any one part is linked to that of other provisions. Taken as a unit, a
Constitution reflects certain overarching principles and fundamental decisions to which
individual provisions of the Basic Law are subordinate12."

9
Rajeev Dhavan- Borrowed Ideas: On the Impact of American Scholarship on Indian Law, 33 AM. J. Comp. L.
505 (1985).
10
Golak Nath –(1967) 2 SCR 762
11
Unconstitutional Constitutional Amendments- The Migration of a Constitutional Idea by Yaniv Roznai - The
American Journal of Comparative Law 61 Am.J.Comp.L.657
12
1 BVerfGE 14, 32; see Kommers, at 54-55; (An English translation of the case is available in Comparative
Constitutional Law - Cases and Commentaries 659 (Walter F. Murphy & Joseph Tanenhaus eds., 1977).
The Full Court was constituted in Kesavanand Bharati to consider whether or not the earlier
view in Golak Nath case that Parliament had no power to amend the Constitution was correct.
It was held by the apex court by a majority of 7:6 that Parliament can amend any provision of
the Constitution to fulfill its socio-economic obligations guaranteed to the citizens under the
Preamble subject to the condition that such amendment won’t change the basic structure of
the Indian Constitution. The majority decision was delivered by S.M. Sikri CJI, K.S. Hegde, B.K.
Mukherjea, J.M. Shelat, A.N. Grover, P. Jagmohan Reddy JJ. & Khanna J. Whereas, the
minority opinions were written by A.N. Ray, D.G. Palekar, K.K. Mathew, M.H. Beg, S.N.
Dwivedi & Y.V. Chandrachudjj. The minority bench wrote different opinions but was still
reluctant to give unfettered authority to the Parliament. The landmark case was decided on
24th April 1973.
The Court upheld the 24th Constitutional Amendment entirely, but the 1st and 2nd part of
the 25th Constitutional Amendment Act was found to be intra vires and ultra vires
respectively.

The assertion that the majority view in Kesavanand Bharati concluded that Parliament did
not have the power to amend the basic structure of the Constitution, is open to criticism,
including the factual criticism that this was not the view of the majority. In Kesavanand
Bharati judgment, six judges13 concluded that Parliament’s power was limited because the
Constitution itself contained certain implied limiting restraints. On the other hand, the exact
same number of judges14 were of the view that there were no such limitations contained in
the Constitution. Justice Khanna stood outside the two camps. While maintaining that
Parliament had the full constitutional authority to amend the Constitution, he chose to place
a limitation of the meaning of the term ‘to amend’. According to him any amendment could
be a modification to something that already existed. By its very nature, an amendment could
not cause alterations in the fundamentals of what it was seeking to amend. It followed that
while Parliament could amend the Constitution, it could not amend something that was basic
to the Constitution. In other words, it could not amend the Basic Structure. Clearly, this was
a view which neither of the camps propounded. But in a paper prepared by Sikri CJ, called
‘View of the Majority’ one of the conclusions set out was ‘Parliament did not have the power
to amend the basic structure or framework of the Constitution’. This over-simplified
generalised conclusion of Justice Khanna’s view was signed by nine judges, with four refusing
to endorse it. If one were to identify the exact point at which the notion of basic structure
was ushered into our constitutional law, this would have to be the point. This conclusion, not
supported by any numerical majority, much less accepted in any common reasoning, became
part of our Constitutional law.

Had things been left at this nascent stage, perhaps the doctrine would have sunk into the
abyss of constitutional interpretation as just one of the many ideas of limited importance that
surface from time to time. But historical events overtook the course of life of this doctrine.
Events followed, starting with the Allahabad High Court invalidating Indira Gandhi’s election.
In order to overcome the effect of the Allahabad High Court’s judgment, Parliament effected
the 39th Constitutional Amendment introducing Article 329 A on August 1, 1975. On August
11, 1975, in Indira Gandhi15 case, a 5- judge bench of the Supreme Court headed by Chief

13
Sikri C.J., Shelat, Hegde, Reddi, Grover and Mukherjee.
14
Ray, Palekar, Mathews, Dwivedi, Beg and Chandrachud.
15
Indira Gandvhi v Raj Narain- (1975) Supp SCC 1
Justice Ray considered Indira Gandhi’s appeal against the Allahabad decision, and applying
the basic structure doctrine, concluded that the 39th Constitutional Amendment introducing
Article 329A was unconstitutional. Ray C.J. did try to distance himself from this application of
the basic structure doctrine by observing that he was proceeding to judge the validity of the
39th Amendment “…on the assumption that it was not necessary to challenge the majority
view of Kesavanand Bharati case…”. But he did, in fact, constitute a new bench of 13 judges
to review the Kesavanand Bharati judgment to reconsider, amongst other things, the basic
structure doctrine. But the attempt at review was abandoned when after a two-day hearing,
the bench was dissolved. With that the question mark hovering over the basic structure
doctrine was finally erased.

The Problem of Extension of the Basic Structure Doctrine.

It is worth remembering that the basic structure doctrine, as it was fashioned in the
Kesavanand Bharati case, was limited in its function. It was a test to decide which parts of the
Constitution could be subject to amendment by Parliament, and which could not be touched.
But in the decades that followed, through a series of judgments, the basic structure doctrine
was increasingly employed as a major plank whenever any ultra vires challenge to violation
of the rights imparted under the Constitution was raised. Thus followed the judgments in
Indira Gandhi (supra), Minerva Mills (supra), Waman Rao16, Kihotto Hollohon17, Indra
Sawhney18Bommai19, Faruqui20, Kunungo21, L.Chandra Kumar 22, Cohilo 23, M.Nagraj24,
National Legal Services Authority25, Madras Bar Association26, etc.

Such enlargement of the doctrine is open to several problems which may now be considered.

What needs to be kept in mind is that the concept of basic structure began its life in our
Constitutional law in the context of Parliament’s power to amend the Constitution. However,
over a period of time, it was elevated to the status as one of the principle tools of
interpretation of the Constitution.

It is necessary to understand the difference between a principle of statutory or Constitutional

interpretation, and a doctrine that has specific application, because the first and perhaps the
most fundamental objection to the current use of the basic structure doctrine is that it was
never designed as a principle of interpretation. There is in-built difference between a doctrine
that serves as a principle for interpretation of the Constitution, and a doctrine which was
intended to serve as a specific test.

16
Waman Rao v Union- (1981) 2 SCC 362
17
Kihotto Hollohon v Zachilhu- (1992) Supp 2 SCC 651
18
Indra Sawhney v Union -1992 Supp (#) SCC217
19
S.R.Bommai v Union- (1994) 3 SCC 1
20
Ismail Faruqui v Union- (1994) 6 SCC 360
21
G.C.Kanungo v Orissa- (1995) 5 SCC 96
22
L.Chandra Kumar v Union- (1997) 3 SCC 261
23
I.R.Cohilo v Tamil Nadu- (2007) 2. SCC 1
24
M.Nagraj v Union- (2006) 8 SCC 12
25
National Legal Services Authority v Union- (2014) 5 SCC 438
26
Madras Bar Association v Union- (2014) 10 SCC 1
Principles of Interpretation are aimed as tools to lead to comprehension of whichever
statutory or constitutional provisions were under scrutiny. Such principles are norms, or legal
ideas, similar to legal maxims, which help first and foremost in the understanding of the
concerned provisions. They also help as indicators to show how the concerned provisions
operate within a given framework. They have the quality of being sufficiently generalised so
as to be capable of wide, and almost universal applicability. They are also not confined to a
given provision or a given situation.

As against this in the function of a doctrine, such as the basic structure doctrine, is very
different. It related to the process of Constitutional Amendments alone, and nothing else. It
was created as a test: to find out if a particular Constitutional amendment was ultra-vires or
intra-vires. It had no existence beyond or outside this function. It was not intended either to
understand the language of the provisions under consideration. It was certainly not a means
to test whether any provision of a central or state law was ultra-vires any constitutional
provision. It lacked the necessary grounding in a wider philosophical base which is a
precondition for the very existence of a principle of interpretation. The basic structure
doctrine is therefore a term of art, comparable to a tool of limited function, as against a
principle of interpretation which relies for its sustenance on a larger jurisprudence.

Therefore, to import the basic structure doctrine, as is now often done, to test the validity of
a statutory provision, is to use tool not designed for the purpose. There are many problems
that arise with such a truncated use. First, much like unrestrained Equity, which varied with
the Chancellor’s foot, the basic structure doctrine becomes capable of ad-hoc use, which can
vary from case to case. It is capable of arbitrary use, not only because it would depend on the
intention of its user, but because it does not afford any intrinsic guidance to its user as to how
it is to be employed. Although it has been extensively used, the judgments resulting from its
use do not throw up a body of jurisprudence that would explain how the doctrine is to be
applied. Nor do the judgments disclose the principles that operate for invocation or
enforcement of basic structure doctrine.

The Current Area of Conflict.

Wisdom lies in understanding that the doctrine is not a tool for interpretation. But the law,
as Dickens was delighted to observe, is an ass. In less than a decade of its pronouncement,
the Supreme Court had extended the doctrine beyond its intended scope when it decided the
First Judges Case27 It was brought into play in one of the most fraught areas of constitutional
law – for addressing matters concerning the Right and Power of Judicial Review. This
application of the doctrine to the area concerning the power Judicial Review was only one
step away from taking it into another relatable area that has had serious effect in the
continuing conflict between the Legislature and the Judiciary, particularly in the matters of
appointment of Judges.

It all began with the law that has evolved from as far back as 1981 in the First Judges’ case
(S.P.Gupta – supra) and has continued as an inconclusive controversy into the National

27
S.P.Gupta v Union- 1981 Supp SCC 87
Judicial Commission appointment case28 (NJAC case). It may be argued that shift of focus from
the use of the basic structure doctrine for testing the validity of constitutional amendment to
testing the nature of a constitutional right such as in the NJAC case, was perhaps as logical as
it was inevitable. All said and done, after all the power to amend, as a facet of the right to
legislate; and the power of judicial review, as a facet of the right of an independent Judiciary;
are the foundational issues that are in conflict. It may also be argued that the resolution of
this conflict is possible by employing the doctrine of basic structure. But there lies the rub.

So long as the basic structure doctrine was used as a means to identify those parts of the
Constitution which could not be subject to the process of constitutional amendment, it served
as a test for the task of labeling portions of the Constitution that could be considered as
unalterable. Thus, the function of the basic structure was designed to achieve only one
objective – to find out whether any impugned amending legislation was of such nature as
would alter the very core of the Constitution in so fundamental a manner that would make
the Constitution cease to be itself. As explained above, apart from this test, the basic structure
doctrine had no further role to perform. In effect, the basic structure doctrine was only a
method of identification, and not a means of interpretation. But with the extension of the
doctrine to the challenge in the First (1982) and Third29 (1998) Judges’ cases, and by
converting the basic structure doctrine into a principle for interpretation of the Constitution,
the Supreme Court opened the doors to an area that would only lead to problems.

The Problem of the Doctrine’s Use as a General Principle of Interpretation.

Arghya Sengupta, in his paper on Judicial Primacy and the Basic Structure; A Legal Analysis of
the NJAC Judgment 30 sets out some interesting arguments as to why this generalised
application of the basic structure doctrine is fraught with problems. Although this aspect i.e.
the problems of generalized application of the basic structure doctrine was not its central
theme, the paper argues with considerable force that to apply the doctrine to interpret the
true meaning of Articles 124 and 217 is to employ it for a purpose that goes beyond
identification of something basic to the Constitution. It is one thing to say that the
establishment and constitution of the Supreme Court and the High Courts under Articles 124
and 217 respectively are a part of the Constitution’s basic structure. But it is quite a different
thing to urge that any law, such as the 99th Constitutional Amendment of 2014, or the
National Judicial Commissions Appointment Act, 2014, is violative of the basic structure if it
seeks to regulate the method of appointment of judges. Put in another way, the role of the
basic structure doctrine was useful so long as it was limited to identifying inalienable parts of
the Constitution immune from the amending process. But it would be stretching the doctrine
too far to make it a tool of interpretation and to apply it as a general means of interpretation
the Constitution in order to determine whether the regulation of the process of appointment
of judges was extraneous to the scope and extent of the provisions that related to
establishment and constitution of Courts under Articles 124 and 217.

It could perhaps be argued that the basic structure doctrine can be employed to determine
whether Judicial primacy is basic to the Constitution, and indeed, it has been so employed.

28
Supreme Court Advocates on Record Association v Union - 2016 5 SCC 1
29
In re. Special Reference 1 of 1998- 1998 7 SCC 739
30
See Economic & Political Weekly Vol.I No.48 dated Nov. 28, 2015
However, to extend the application of the doctrine to support the conclusion that it can be
further used to strike at a law that seeks to govern or regulate the process of appointment of
Judges is to stretch the doctrine into the realm of Interpretation of Statutes, to which it has
no application, and where it does not belong. While Judicial primacy may be seen as a basic
feature of the Constitution, laws such as the 99th Constitutional Amendment of 2014, or the
National Judicial Commissions Appointment Act, 2014, which seek to govern the process of
appointment of judges may be challenged on the ground of arbitrariness, but not on the
ground that they violate the basic structure doctrine.

Looked at in another way, the departure from the position in the original Constitution and
the subsequent evolution of the law concerning the process of appointment of Judges as has
happened through the First, Second and Third Judges’ cases, has resulted in the establishment
of a collegium and the creation of a machinery of recommendation of names for
appointments. There is no reason why such a process of appointment should be seen as being
violative of the basic structure doctrine. Even if it is argued that the process that results from
the 99th amendment to the Constitution, it does not detract or curtail any basic feature of
the Constitution. It follows that the basic structure doctrine cannot then be relied upon.

Assuming for the sake of argument that the basic structure doctrine can be employed to
safeguard the right of Judicial Primacy when it manifests itself in the consideration of
appointments by the Collegium; then equally must the doctrine be available for application
to the primacy of the Legislature or the Executive, which reposes all law-making power in
Parliament or State Legislatures, or all executive power in the Union or State government. It
may be noted in the passing that in the NJAC case, Justice Lokur expressed some reservation
about the concept of Judicial Primacy, and favoured the idea of ‘shared responsibility’
between the Judiciary and Executive. It would indeed be anomalous to urge that the basic
structure doctrine can be used to save Judicial Primacy when it cannot be employed to save
Legislative Primacy. The well entrenched doctrine of separation of powers cannot be exposed
to imbalance by employing the doctrine of basic structure. There can never be any resolution
of a conflict between two basic features viz. the Judiciary and the Legislature, by selectively
applying the basic structure doctrine for one but not to the other.

Conclusion.

The ongoing developments in Constitutional law lead to the conclusion that the basic
structure doctrine, a noble fiction that it may be, should be understood to be no more than a
test to determine whether any constitutional amendment is ultra-vires the Constitution. It
lacks the necessary definition and jurisprudence to elevate it to a principle for general
interpretation of the Constitution. Because it lacks an articulated body of jurisprudence to
sustain its existence, it is also seen to function in a defective manner when it is applied to
interpret provisions of the Constitution or statutes, where it betrays imbalanced and partial
applicability. When challenges are raised to the constitutional validity of any statute, and
sometimes even to executive acts, Courts are being increasingly persuaded to accept it as an
independent argument, and not as an aspect of the Equality principle under Article 14.
Unfortunately, at least today, there just does not exist sufficient jurisprudence or precedent
to justify this additional ground to the well known three grounds of ultra-vires challenge viz.
absence of Legislative competence, violation of Fundamental Rights, and violation of some
other part of the Constitution of another applicable governing statute.

P.P.Rao summed it best when he said “The ‘basic structure of the Constitution’ is an imprecise
and elastic concept. There is no unanimity among the Judges regarding the components of the
basic structure…The task of identifying the basic features is tough and time-consuming.
Neither is the court in a position to identify all the components of the basic framework of the
Constitution once and for all, nor has Parliament any clear idea of the scope of its amending
power as of now…”31

31
P.P.Rao – Basic Structure of the Constitution – The Alladi Memorial Trust Lectures 179 (1999)