Basic Structure of the Constitution
MERGENCE OF THE BASIC STRUCTURE
The question whether Fundamental Rights can be amended by the Parliament under Article 368
came for consideration of the Supreme Court within a year of the Constitution coming into
force. In the Shankari Prasad case1 (1951), the constitutional validity of the First Amendment
Act (1951), which curtailed the right to property, was challenged. The Supreme Court ruled that the
power of the Parliament to amend the Constitution under Article 368 also includes the power to
amend Fundamental Rights. The word ‘law’ in Article 13 includes only ordinary laws and not the
constitutional amendment acts (constituent laws). Therefore, the Parliament can abridge or take away
any of the Fundamental Rights by enacting a constitutional amendment act and such a law will not be
void under Article 13.
But in the Golak Nath case2 (1967), the Supreme Court reversed its earlier stand. In that case, the
constitutional validity of the Seventeenth Amendment Act (1964), which inserted certain state acts in
the Ninth Schedule, was challenged. The Supreme Court ruled that the Fundamental Rights are given a
‘transcendental and immutable’ position and hence, the Parliament cannot abridge or take away any of
these rights. A constitutional amendment act is also a law within the meaning of Article 13 and hence,
would be void for violating any of the Fundamental Rights.
The Parliament reacted to the Supreme Court’s judgement in the Golak Nath case (1967) by enacting
the 24th Amendment Act (1971). This Act amended Articles 13 and 368. It declared that the
Parliament has the power to abridge or take away any of the Fundamental Rights under Article 368
and such an act will not be a law under the meaning of Article 13.
However, in the Kesavananda Bharati case3 (1973), the Supreme Court overruled its judgement in the
Golak Nath case (1967). It upheld the validity of the 24th Amendment Act (1971) and stated that
Parliament is empowered to abridge or take away any of the Fundamental Rights. At the same time, it
laid down a new doctrine of the ‘basic structure’ (or ‘basic features’) of the Constitution. It ruled that
the constituent power of Parliament under Article 368 does not enable it to alter the ‘basic structure’ of the Constitution.
This means that the Parliament cannot abridge or take away a Fundamental Right
that forms a part of the ‘basic structure’ of the Constitution.
Again, the Parliament reacted to this judicially innovated doctrine of ‘basic structure’ by enacting the
42nd Amendment Act (1976). This Act amended Article 368 and declared that there is no limitation
on the constituent power of Parliament and no amendment can be questioned in any court on any
ground including that of the contravention of any of the Fundamental Rights.
However, the Supreme Court in the Minerva Mills case4 (1980) invalidated this provision as it
excluded judicial review which is a ‘basic feature’ of the Constitution. Applying the doctrine of
‘basic structure’ with respect to Article 368, the court held that:
“Since the Constitution had conferred a limited amending power on the Parliament, the Parliament
cannot under the exercise of that limited power enlarge that very power into an absolute power.
Indeed, a limited amending power is one of the basic features of the Constitution and, therefore, the
limitations on that power cannot be destroyed. In other words, Parliament cannot, under article 368,
expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution
or to destroy its basic features. The donee of a limited power cannot by the exercise of that power
convert the limited power into an unlimited one”.
Again in the Waman Rao case5 (1981), the Supreme Court adhered to the doctrine of the ‘basic
structure’ and further clarified that it would apply to constitutional amendments enacted after April
24, 1973 (i.e., the date of the judgement in the Kesavananda Bharati case).
ELEMENTS OF THE BASIC STRUCTURE
The present position is that the Parliament under Article 368 can amend any part of the Constitution
including the Fundamental Rights but without affecting the ‘basic structure’ of the Constitution.
However, the Supreme Court is yet to define or clarify as to what constitutes the ‘basic structure’ of
the Constitution. From the various judgements, the following have emerged as ‘basic features’ of the
Constitution or elements / components / ingredients of the ‘basic structure’ of the constitution:
1. Supremacy of the Constitution
2. Sovereign, democratic and republican nature of the Indian polity
3. Secular character of the Constitution
4. Separation of powers between the legislature, the executive and the judiciary
5. Federal character of the Constitution
6. Unity and integrity of the nation
7. Welfare state (socio-economic justice)
8. Judicial review
9. Freedom and dignity of the individual
10. Parliamentary system
11. Rule of law
12. Harmony and balance between Fundamental Rights and Directive Principles
13. Principle of equality
14. Free and fair elections
15. Independence of Judiciary
16. Limited power of Parliament to amend the Constitution
17. Effective access to justice
18. Principle of reasonableness
19. Powers of the Supreme Court under Articles 32, 136, 141 and 1426.
1. Shankari Prasad v. Union of India, (1951)
2. Golak Nath v. State of Punjab, (1967)
3. Kesavananda Bharati v. State of Kerala, (1973)
4. Minerva Mills v. Union of India, (1980)
5. Waman Rao v. Union of India, (1981)
6. For the subject-matter of these Articles, see Appendix-1.