Introduction

Democracies in the world are usually governed by a Constitution, which is their supreme
law. The Constitution lays down the principles and procedures of law making,
governance and rights of the people etc. It also creates the pillars of governance i.e.
Executive, Legislature and Judiciary. The Legislature makes the law, the Executive
implements the same and the Judiciary adjudicates the disputes arising out of that law.
Parliament is the body entrusted with the task of making laws, which invariably includes
the power to amend and/or repeal the laws. However often it is asked whether this power
to modify or repeal that law includes the Constitution as well, which created the
Parliament1. The common answer is in affirmative and the process is called amendment,
wherein a change by addition, deletion or correction is made in the Constitution2.

The Basic Structure Doctrine is a doctrine of Judicial Review that the Constitution of
India has certain Basic features that cannot be altered or destroyed through amendments
by Parliament. On April 24, 1973, a Special Constitutional bench comprising of 13
Judges of the Hon’ble Supreme Court of India, in the case of Kesavananda Bharati V/s
State of Kerala3” ruled by a majority of 7-6, that Article 368 of the Constitution Does
not enable Parliament to alter the Basic Structure or framework of the Constitution. The
Hon’ble Apex Court propounded what has come to be known as the Basic Structure
Doctrine. Any part of the Constitution may be amended by following the procedure
prescribed in Article 368 of the Constitution but no part can be so amended as to alter
the basic structure of the Constitution. The case of Kesavananda Bharati is unique for
the reason that it is the longest reported judgment in the history of the Supreme Court of
India, and was heard by the largest bench ever constituted i.e. 13 Judges with 11
opinions and had the longest hearing.

1
The Basic Structure Doctrine- Origins and Nature by Swapnil Tripathi.
2
Definition from Black’s Law Dictionary.
3
AIR 1973 SC 1461; (1973) 4 SCC 225.
 THE FOUNDATION OF DOCTRINE OF ‘BASIC STRUCTURE’

For the countries across the world, the bitter experiences of Germany played a pivotal
role in the evolution and subsistence of this doctrine. It is pertinent to mention here that
this doctrine has been borrowed by our Courts from Germany itself.

Germany was governed by the Constitution titled as ‘Weimar Constitution’ during the
Weimar Republic era which existed from 1919 till 1933 and the same declared Germany
as Democratic Parliamentary Republic, with a legislature elected under proportional
representation4.

Under the Weimar Constitution, the citizens enjoyed inviolable rights5. Citizens had the
right to be notified within a day of their arrest or detention as to the authority and
reasons for their detention and be given the opportunity to object. The privacy of
Correspondence, of mail, telegraph and telephone was made inviolable and the citizens
of Germany were entitled for free expression of opinion in word, writing, print and
image. They also have a right to assemble peacefully and unarmed without prior
permission. The citizens of Germany were entitled to form clubs and societies also6. In
other words, the Weimar Constitution was also described as “on paper, the most liberal
and democratic document of its kind, the twentieth century had ever seen7.

The ‘Weimar Constitution’ vested the legislature with the power to amend, with the
procedural restraint of requiring 2/3rd votes of the members of its Parliament8.

In the year 1933 Adolf Hitler was elected as Chancellor in Germany and within a month,
the Reichstag9, Fire Decree invoked Article 48 of the Weimar Constitution thereby
suspending several Constitutional protections on Civil rights. By virtue of the Decree as

4
Lessons from Germany for us’ by Faisal C.K (Published in National Herald on 01.03.2019)
5
English Translation of Weimar Constitution available in Carl Schmitt Constitutional theory, Duke University Press,
2008- 421
6
Ibid 4
7
Book: The Rise and fall of the Third Reich by William L. Shirer.
8
The Implications of Eternity Clauses by Professor Ulrich K. Preuss, Professor Emeritus, University of Berlin.
9
Federal Assembly/ Lower House of German National Legislature.
 mentioned above, the following Articles of Weimar Constitution were suspended:
Article 114 (Habeas Corpus), Article 115 (Inviolability of Residence), Article 117
(Correspondence privacy), Article 118 (Freedom of Expression/ Censorship), Article
123 (Assembly), Article 124 (Association) and Article 153 (Expropriation). With the
further rise of Hitler and Nazis, the said Decree was used as the Legal basis for the
incarceration of any person who was considered as an opponent of Nazis and also to
suppress the publications, gatherings which were not considered as Nazi- friendly10.

After the passing and implementation of the above said Decree, Nazis inflicted one more
blow on the Weimar Constitution by bringing in an amendment to the Weimar
Constitution in form of “The Enabling Act of 1933”, which gave the Chancellor Adolf
Hitler, the power to enact laws without the involvement of Reichstag.

In plain language, it can be concluded that by complying with the procedure of

amendment after requiring 2/3rd majority of the members of the Parliament, the German
Chancellor Adolf Hitler overhauled the entire Weimar Constitution and took away the
rights of the citizens and people of Germany.

After considering the agitation which took place in Germany, the German and French
Constitutional lawyers Carl Schmitt and Maurice Hauriou, developed the idea of implied
Constitutional limits on Constitutional amendments. Carl Schmitt distinguished between
the essential norms of the Constitution, which formed part of the material Constitution
and other provisions which did not have the value of Constitutional norms11. Schmitt’s
theory is significant in German Constitutional thought today. The Eternity Clause
contained in Article 79 of the current German Constitution enumerates in itself explicit
Constitutional limits on Constitutional amendments. The said provision has been
interpreted in a way that Article 79 of the German Constitution is understood as an
expression of the General idea that Constitutional amendments should not touch upon
the ‘ the basic choices of the constituent power, the identity and the core of the

10
Ibid 6
11
The Basic Structure doctrine and its German and French origins: a tale of migration by Monika Polzin (Indian Law
Review- Volume-5, 2021- Issue-1)
 Constitution’12.

Regarding the power to amend, Maurice Hauriou13 implied that due to special nature of
a Constitution as the highest law, an amendment should be made by a special procedure
that could be distinguished from ordinary legislation. He also provided a difference
between a partial and total revision of a Constitution and as per him a total revision of
the Constitution can only be done by national assembly specifically elected for the said
purpose. The scholar even argued that ideally even a Constitutional assembly should be
bound by the relevant constitutional limits during the amendment process and further
stated that certain principles were so essential that they had a higher legitimacy than the
written Constitution itself. He described them as ‘principles that have a higher
legitimacy than the text of the written Constitution and that do not have to be expressly
embodied in the Constitution. He also addressed the judicial oversight of Constitutional
amendments and argued that a Constitutional judge should have right and power to
annul unconstitutional amendments and that even the Constitutions should not be
deprived of Constitutional control.

INDIA AND THE DOCTRINE OF ‘BASIC STRUCTURE’

The aspect of having implied limits on the power to amend was advocated by German
lawyer and Scholar Dietrich Conrad who delivered a lecture at Law Faculty, Banaras
Hindu University in the year 1965. Professor Conrad was influenced by the disaster of
the Weimar Constitution in Germany and he strongly supported the fact that the
amending powers of the Parliament should impliedly be limited and that the basics of
the Constitution are beyond the amending powers of the Constitution.

Post the above mentioned lecture, the doctrine of Basic Structure was introduced in
India for the first time by Justice Mudholkar in his dissent judgment in the case of
Sajjan Singh14, when he used the phrase “basic features of the Constitution” to argue

12
Ibid 11
13
French lawyer and Professor of Administrative Law and Constitutional Law at University of Toulouse, France.
14
AIR 1965 SC 845
 that there are certain features of the Constitution that cannot be amended by the
Parliament through its amending powers under Article 368 of the Constitution of India15.
Justice Mudholkar while giving his dissenting judgment, drew upon the attention of the
Pakistan Supreme Court decision in Fazlul Quader Chowdhury versus Mohd. Abdul
Haque16 (The then Chief Justice of Pakistan, Justice Cornelius had held that the
President of Pakistan could not alter the ‘fundamental features of their Constitution) In
this case, the Hon’ble Supreme Court of India held by the majority of 3-2 that when
Article 368 confers on the Parliament, the power to amend the Constitution, the power in
question can be exercised over all the provisions of the Constitution.

The phrase ‘basic structure’ or ‘basic feature’ of the Indian Constitution has arisen in
some decisions before Justice Mudholkar pointed it out in the year 1964, but it is fair to
say that the introduction by Justice Mudholkar was the first important introduction of
this concept in the Indian Jurisprudence17.

In the year 1967, in the case of Golak Nath Versus State of Punjab18, an 11 judge bench
of the Hon’ble Supreme Court headed by Chief Justice KokaSubba Rao, put forth the
position that Article 368 did not confer upon the Parliament the power to amend the
Constitution, and reversed its earlier decision. It was held by the Hon’ble Supreme Court
that an amendment of the Constitution is a legislative process, and that an amendment
under Article 368 is law within the meaning of Article 13 of the Constitution and
therefore if an amendment takes away a Fundamental Rights conferred by part III, it is
void. The court also ruled that Fundamental Rights included in part III of the
Constitution are given transcendental position under the Constitution and are kept
beyond the reach of Parliament. The court also held that the scheme of the Constitution
and the nature of freedom it granted incapacitated Parliament from modifying,
restricting or impairing fundamental freedoms in part III. The then Chief Justice
KokaSubba Rao, while writing the majority judgment held that:-

15
KLE Law Journal- The Basic Structure Doctrine- Post Globalization- A Critique by Dr. Sandeep S. Desai.
16
1963 PLC 486.
17
The Genesis of India’s ‘basic structure’ doctrine by Pratik Datta, published on April 23, 2012.
18
AIR 1967 SC 1643
 1. A law to amend the Constitution is a law for the purpose of Article 13.
2. Article 13 prevents the passing of laws which take away the Fundamental
Rights.
3. Article 368 does not contain a power to amend the Constitution but only a
procedure.
4. The power to amend comes from the normal legislative power of the
Parliament.
5. Amendments which take away the Fundamental rights provisions cannot be
passed.

To get over the judgments of the Hon’ble Supreme Court in the Golak Nath Case
(1967), R.C Cooper case (1970) and Madhavrao Scindia case (1970), the then
government headed by Prime Minister Indira Gandhi enacted major amendments to the
Constitution namely the 24th, 25th, 26th and 29th Constitutional Amendments19. All
the four amendments brought by the then government were challenged in the case of
Kesavananda Bharati Versus State of Kerala20.

In the year 1973, the largest ever constituted bench of Hon’ble Supreme Court of India,
comprising of 13 judges heard the arguments in the case of Kesavananda Bharati case.
The Hon’ble Supreme Court reviewed the decision of Golaknath Versus State of Punjab
case and also considered the validity of Constitutional 24th, 25th, 26th and 29th
Amendment Acts.

Nine judges signed a statement of summary for the judgment that read:-

1. Golaknath case is overruled.

2. Article 368 does not enable Parliament to alter the basic structure or
framework of the Constitution.
3. The Constitution (24th Amendment, 25th Amendment) Act, 1971 are valid.

19
Article on Basic Structure of the Constitution by Drishti- IAS Coaching Institute
20
AIR 1973 SC 1461
 4. The Constitution (29th Amendment) Act, 1971 is valid.

The Hon’ble Supreme Court further held that Parliament could not use its power under
Article 368 to damage, emasculate, destroy, abrogate, change or alter the basic structure
or framework of the Constitution. The Basic features of the Constitution according to the
Kesavananda Bharati verdict were laid out separately by each judge based on what he
thought were the basic features of the Constitution.

● According to the then Chief Justice, 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 legislature, Executive and Judiciary.
● Federal Character of the Constitution.
●
● According to Shelat, J and Grover, J, the concept of Basic structure
includes:-
● The mandate to build a welfare state.
● Unity and Integrity of the nation.
● Sovereignty of the country.
●
● According to Hegde, J and Mukherjea, J, held the following as Basic
Structure:-
● 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.
●
● According to Justice Jagmohan Reddy, the following were the Basic
 structure:-
● Sovereign Democratic Republic.
● Justice- Social, Economic and Political.
● Liberty of thought, Expression, belief, faith and worship.
● Equality of status and opportunity.
●
● According to Justice Khanna, the following were the basic features:-
● Implied restrictions on amending powers.
● Supremacy of Fundamental Rights above all.

It is pertinent to mention here that NaniPalkhivala21, the Counsel for Kesavananda

Bharati argued that the Parliament having unfettered power to amend the Constitution
would render the document null and void22. There must be some restraints on the
amending powers of the Parliament. Certain features like Rule of Law and Fundamental
Rights could not be touched. The then Chief Justice Ray, convened a 13 judge bench to
review the Kesavananda Bharati verdict on the pretext of hearing a number of petitions
relating to land ceiling laws. The petitions contended that the application of land ceiling
laws violated the Basic Structure of the Constitution. Meanwhile, the then Prime
Minister Indira Gandhi refused to accept the doctrine of Basic Structure. N.N Palkhivala
who was appearing on behalf of Coal mining company, argued against the move to
review the Kesavananda Bharati decision23. Ultimately, the Chief Justice Ray dissolved
the bench after two days of hearing. The declaration of Emergency in June 1975 and
consequent suspension of Fundamental Rights and Right to move the Courts against
illegal detention diverted the attention of the Country from this issue. One certainty that
emerged out of this tussle between the Parliament and Judiciary is that all the laws and
Constitutional amendments are now subject to judicial review and the law that transgress
the Basic Structure are to be struck down by the Supreme Court.

21
Eminent Jurist and Constitutional Expert/ Indian Ambassador to USA- 1977/ Padma Vibhushan- 1998.
22
A study of Basic Structure Doctrine by S. Krishnaswamy (Oxford University Press- 2011); Constitution of India by V N
Shukla (Eastern Book Company, 1982)
23
Judicial Activism and Public Interest Litigation by P.N Bhagwati (Edition 1984)
CONCLUSION

It is true that the abrogation of Weimar Constitution in Germany taught the world to
provide themselves with the tools, so as to avoid the circumstances which Germany
faced and in furtherance of the same and with the able and efficient works of some great
Legal experts, eminent jurists, Scholars and thinkers, the theory of Basic Structure has
evolved only to develop and improve as a backbone and protector of Constitutions
across the globe.

The Basic Structure Doctrine, evolved by Hon’ble Supreme Court of India, through its
numerous landmark judgments over the years, brings in that required factor of
Constitutionalism, which is necessary for sustenance, protection, maintenance and
upkeep of Constitutional essence of Rule of law.

Although the concept of Basic Structure originated and evolved in its early years in form
of Constitutional Provisions as has been provided in the existing Constitution of
Germany, but In India the same is extra- Constitutional i.e. not expressly provided in the
Constitution but developed judicially through various judicial pronouncements over the
time. Moreover the power to change/ add the unamendable parts of the Constitution i.e.
the Basic Structure of the Constitution is vested with the Constitutional Courts having
tool of Judicial Review.

The Basic Structure Doctrine is a Judge made Doctrine where certain features of the
Constitution are beyond the limit of amending powers of the Parliament. In India, the
Doctrine of Basic Structure is a judicial innovation and it continues to evolve through
the judicial pronouncements of the Hon’ble Apex Court.

Lastly, it is pertinent to note here that in the largest democracy of the World, with
conflicting interests emerging constantly, the framers of our Constitution, works of
numerous eminent lawyers and jurists, Scholars and Hon’ble Supreme Court and its
judges deserves to be lauded for their ability to withstand the challenges so faced with
changing circumstances of the society and world and protect the essence of the
Constitution thereby protecting the great nation, we live in.

BIBLIOGRAPHY

● M.P. Jain, Indian Constitutional Law

● V.N. Shukla, Constitution of India
● Krishan Keshav, Singhal’s Constitutional Law – II
● Chandra pal, state Autonomy in Indian Federation
● D D Basu, Commentary on the Constitution of India