Introduction: The power to amend the Constitution is only with the Parliament and not the state legislative assemblies. However, this power of the Parliament is not absolute. The Supreme Court has the power to declare any law that it finds unconstitutional void. As per the Basic Structure Doctrine of the Indian Constitution, any amendment that tries to change the basic structure of the Constitution is invalid.

Kesavananda Bharati Vs. State of Kerala (SC) (1973) has again overruled the Golaknath Judgement and held that even Prior to the 24th constitutional Amendments in A-368 in the year 1971,  Parliament was empowered to make amendments adopting Procedure under A-368. It was also held that there is a limitation on amending Power also and any amendment which destroys the Basic structure of the Constitution shall be void. in this Judgment Illustrative list of basic structures given such as the supremacy of the constitution, democratic form of Government, Secularism, Separation of Power, federal character, a welfare state, maintenance of unity and integrity of India, Sovereignty of country, individual freedom, equality of status & opportunity, liberty of thought, expression, belief, faith and worship, Justice ( Social economic and political) and time to time supreme court Shall decide basic structure.

What is the Basic Structure Doctrine of the Indian Constitution?

There is no mention of the term “Basic Structure” anywhere in the Constitution of India. The idea that the Parliament cannot introduce laws that would amend the basic structure of the Constitution evolved gradually over time and in many cases. The idea is to preserve the nature of Indian democracy and protect the rights and liberties of people. This Basic Structure doctrine of the Indian Constitution helps to protect and preserve the spirit of the constitution document.

It was the Kesavananda Bharati Vs. State of Kerala (1973)(SC) case that brought this doctrine into the limelight. It held that the “basic structure of the Indian Constitution could not be abrogated even by a constitutional amendment”. The judgment listed some of the basic structures of the constitution as:

• Supremacy of the Constitution
• Unity and Sovereignty of India
• The democratic and republican form of government
• Federal character of the Constitution
• Secular Character of the Constitution
• Separation of power
• Individual freedom

Over the time, many other features have also been added to this list of basic structural features. Some of them are:

• Rule of law – Indra Sawhney and Union of India (1992)(SC)
• Judicial review (Indira Gandhi  Vs Raj Narayan (SC)(1975) where court invalidated A-329A(4) where under  the election of President, vice president, Prime minister, speaker of Lok sabha beyond Judicial review, but Court declared Such provision void. Also Minerva mills Ltd Vs. UOI (SC) (1980)
• Parliamentary system 
• Rule of equality
• Harmony and balance between the Fundamental Rights and DPSP (Minerva Mills ltd Vs. UOI (1980)(SC)
• Free and fair elections 
• Limited power of the parliament to amend the Constitution- Kesavananda Bharati Case
• Power of the Supreme Court of India under Articles 32, 136, 142 and 147
• Power of the High Court under Articles 226 and 227

Any law or amendment that violates these principles can be struck down by the SC on the grounds that they distort the basic structure of the Constitution.

Evolution of the Basic Structure Concept : The concept of the basic structure of the constitution evolved over time. 

Shankari Prasad Vs. UOI (SC) (1951)  Case: In this case, Petitioner has challenged the validity of first Constitutional Amendment inserting A-31A ( Laws providing for acquisition of estates, etc) & 31B ( Validation of certain Acts and Regulations listed in schedule 9) arguing that Such amendment violated fundamental right to hold property under A-19 (1) (f), but  the SC contended that the Parliament’s power of amending the Constitution under Article 368 include the power to amend the Fundamental Rights guaranteed in Part III as well and therefore amendment is valid. 

Sajjan Singh Vs. the State of Raj (1965) (SC): several state legislative  measures giving effect to policy of agrarian reform faced Serious challenge in Court. the constitutional validity of the 17th Amendment to include various state laws related to land acquisition were Put in schedule 9 of the constitution So as to exclude from Judicial review  was challenged . In this case also, the SC by 3:2  held that when A-368 confers on parliament the right to Amend Constitution, the Parliament can amend any part of the Constitution including the Fundamental Rights. 

It is noteworthy to point out that two dissenting judges, in this case, remarked whether the fundamental rights of citizens could become a plaything of the majority party in Parliament.

I .C. Golaknath & ors. Vs State of Punjab (1967)(SC) case:

facts: family of Henry & William Golalknath held over 500 acres of farmland in Jalandhar, Punjab. Referring to the Punjab Security  and Land Tenures Act,  the State government held that brothers could keep only 3 acres each , few acres to tenants and rest was declared Surplus and this was challenged by Petitioners & his family members in SC. In this case, the court reversed its earlier stance that Fundamental Rights can be amended. It said that Fundamental Rights are not amenable by the Parliament and there is restriction as stated in Article 13 and  to amend the Fundamental rights a new Constituent Assembly would be required.

Argument: it was stated that Article 368 gives the “procedure to amend the Constitution” but does not confer on Parliament the “power to amend the Constitution”. This case conferred upon Fundamental Rights a ‘transcendental position’. 

The majority judgment called upon the concept of implied limitations on the power of the Parliament to amend the Constitution. As per this view, the Constitution gives a place of permanence to the fundamental freedoms of the citizens. In giving to themselves the Constitution, the people had reserved these rights for themselves.

Kesavananda Bharati  Vs. State of Kerala (1973)(SC): This was a landmark case in defining the concept of the basic structure doctrine. The SC held that although no part of the Constitution, including Fundamental Rights, was beyond the Parliament’s amending power, the “basic structure of the Constitution could not be abrogated even by a constitutional amendment.” 

The judgment implied that the parliament can only amend the constitution and not rewrite it. The power to amend is not a power to destroy.

This is the basis in Indian law in which the judiciary can strike down any amendment passed by Parliament that conflicts with the basic structure of the Constitution.

Indira Nehru Gandhi v. Raj Narain case (SC) (1975): Here, the SC applied the theory of basic structure and struck down Clause(4) of Article 329-A, which was inserted by the 39th Amendment in 1975 on the grounds that it was beyond the Parliament’s amending power as it destroyed the Constitution’s basic features. The 39th Amendment Act was passed by the Parliament during the Emergency Period. This amendment placed the election of the President, the Vice President, the Prime Minister and the Speaker of the Lok Sabha beyond the scrutiny of the judiciary.

This was done by the government in order to suppress Indira Gandhi’s prosecution by the Allahabad High Court for corrupt electoral practices.

Minerva Mills vs. Union of India (SC) (1980): This case again strengthens the Basic Structure doctrine. The judgment struck down 2 changes made to the Constitution by the 42nd Amendment Act 1976, declaring them to be violative of the basic structure. 

The judgment makes it clear that the Constitution, and not the Parliament is supreme.

In this case, the Court added two features to the list of basic structure features. They were: judicial review and balance between Fundamental Rights and DPSP.

The judges ruled that a limited amending power itself is a basic feature of the Constitution.

Waman Rao and ors. Vs. Union of India (1981) (SC) case :Petitioner has challenged the validity of first Constitutional Amendment inserting A-31A ( Laws providing for acquisition of estates, etc) & 31B ( Validation of certain Acts and Regulations listed in schedule 9). judicial Review of Schedule IX Act after Kesavananda Bharati order date possible.SC again reiterated the Basic Structure doctrine.  It also drew a line of demarcation as April 24th, 1973 i.e., the date of the Kesavananda Bharati judgment, and held that it should not be applied retrospectively to reopen the validity of any amendment to the Constitution which took place prior to that date.

In the Kesavananda Bharati case, the petitioner had challenged the Constitution (29th Amendment) Act, 1972, which placed the Kerala Land Reforms Act, 1963 and its amending Act into the 9th Schedule of the Constitution. The 9th Schedule was added to the Constitution by the First Amendment in 1951 along with Article 31-B to provide a “protective umbrella” to land reforms laws.This was done in order to prevent them from being challenged in court.

Article 13(2) says that the state shall not make any law inconsistent with fundamental rights and any law made in contravention of fundamental rights shall be void.

Now, Article 31-B protects laws from the above Judicial scrutiny. Laws enacted under it and placed in the 9th Schedule are immune to challenge in a court, even if they go against fundamental rights.

The Waman Rao case held that amendments made to the 9th Schedule until the Kesavananda judgment closed April 24th, 1973 are valid, and those passed after that date can be subject to Judicial scrutiny.

Indra Sawhney and Union of India (1992)(SC)

SC examined the scope and extent of Article 16(4), which provides for the reservation in jobs in favour of backward classes. It upheld the constitutional validity of 27% reservation for the OBCs with certain conditions (like creamy layer exclusion, no reservation in promotion, the total reserved quota should not exceed 50%, etc.) Here, ‘Rule of Law’ was added to the list of basic features of the constitution.

S.R. Bommai  Vs. UOI (1994)(SC)case

In this judgment, the SC tried to curb the blatant misuse of Article 356 (regarding the imposition of the President’s Rule on states).

In this case, there was no question of constitutional amendment but even so, the concept of basic doctrine was applied.

The Supreme Court held that policies of a state government directed against an element of the basic structure of the Constitution would be a valid ground for the exercise of central power under Article 356.

CONCLUSION: The doctrine of the basic structure helps to prevent legislative excesses, as was evident in the Emergency Era. This is required as a shield against all-powerful parliament, which can resort to overuse of Article 368. There is another school of thought, however, that says that if amendments help a constitution to survive, they must include changes in the allegedly basic part of the Constitution.