THE EVOLUTION OF BASIC STRUCTURE DOCTRINE (“BSD”)

❖ The Constitutional amendment, much like the plank in the Ship of Theseus, poses a similar
philosophical question: when does a constitution change to such an extent that it becomes a new
constitution? The Supreme Court seemed to have arrived at the answer by postulating the basic
structure doctrine, the constitutional identity that need not be changed. The Flow chart maps the
evolution of Basic Structure Doctrine a touchstone on which the validity of amendments rests.1

❖ The Flow chart starts with the First Amendment to the Constitution, which introduced 31-A, 31-B
and the Ninth Schedule.2 The Constitutional validity of the 9th schedule is not answered here since
the map only shows the trajectory of the evolution of the basic structure doctrine. The first
amendment was proceed of agrarian reform undertaken by the government, which was challenged
in Shankari Prasad v. union of India3. The observation of the court was unanimous as follows-

● On the competence of the Provisional Parliament: Held that Parliament possessed the
requisite authority to amend.
● On the status of Constitutional Amendments under Article 13: Held that an amendment
enacted under the authority of Article 368 is not 'law' under Article 13.
● On the issue of whether constituent power under 368 - Held that Constituent power, extra-
legal primary power, rest with the Parliament.

❖ The second case in line is Sajjan Singh, challenging the 17th amendment, which, in the majority,
held the view taken by the court in Shakari Prasad to be correct. Hidayatullah and J.R. Mudholkar
concurred with the opinion of Gajendra Gadkar, C.J., upholding the amendment but, at the same
time, expressed reservations about the effect of possible future amendments on fundamental rights
and basic structure of the Constitution. Mudholkar, J., questioned that:

"58. …whether making a change in a basic feature of the Constitution can be regarded
merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and
if the latter, would it be within the purview of Article 368?'

❖ The Next case in line was I.C. Golak Nath4, Matters took a decisive turn when a narrow 6:5
majority of the Supreme Court departed from Shankari Prasad and Sajjan Singh and placed
substantive limitations upon Parliament's power to amend the Constitution. Article 368 was now
understood as merely describing the procedure for amendment. The central reasoning of Subba
Rao C.J could be summarised as:

1
Pruthvirajsinh Zala, From Being to Becoming: 53 Years of Basic Structure Doctrine, Life of the Law (Apr. 24,
2026), [Link]
2
Constitution (First Amendment) Act, 1951, Acts of Parliament, 1951 (India).
3
Shankari Prasad Singh Deo v. Union of India, A.I.R. 1951 S.C. 458 (India).
4
I.C. Golak Nath v. State of Punjab, A.I.R. 1967 S.C. 1643 (India).
 ● The power of the Parliament to amend the Constitution is derived from Articles 245, 246,
and 248 of the Constitution and not from Article 368. A constitutional amendment was
simply a legislative act like any other, hence amenable to Part III of the Constitution.

❖ Golak Nath resulted in the 24th constitutional amendment. The flow chart maps the challenge to
the Twenty-fourth, along with the Twenty-fifth Amendment, which diluted the right to property,
in the Kesavananda Bharati case.5 The case was heard by a thirteen-judge bench with a narrow
majority of 7:6, with HR Khanna J's opinion making the difference. The judgment overruled
Golak Nath.

● Justice Khanna emphasised the amendment and identity. Distinct from the six judges, he
focused upon the internal character of an amendment.
● Parliament exercises constituent power, which is a constituted constituent power. This
means it is a creature of the Constitution and is therefore inherently limited by its identity
and the basic structure of the Constitution.

The Constitution (Twenty-fourth Amendment) Act, 1971, was held to be valid. Further, the first
part of Article 31-C was also held to be valid. However, the second part of Article 31-C was
invalidated.

APPLICATION OF BASIC STRUCTURE DOCTRINE

After Kesavananda Bharati, the flow chart traces the application of the Basic Structure doctrine.
Basic Structure doctrine can’t be applied to state action, only towards the constitutional
amendment as per the Kuldip Nayar case.6 The following are examples of applications by the
Supreme Court.

❖ Democracy-Based challenge

The first case to apply the basic structure doctrine is Indira Nehru Gandhi v. Raj Narain,7 to
invalidate the 39th amendment. The Court held that this violated free and fair elections and the
separation of powers, since Parliament cannot act as both law-maker and judge, or remove judicial
oversight, which is essential to democracy.

5
Kesavananda Bharati v. State of Kerala, A.I.R. 1973 S.C. 1461 (India).
6
Kuldip Nayar v Union of India (2006) 7 SCC (India).
7
Indira Nehru Gandhi v. Raj Narain, A.I.R. 1975 S.C. 1590 (India).
The Supreme Court Advocates-on-Record Association v Union of India8 serves as another case
where the executive wanted democratic control; however, the court held that independence of the
judiciary is part of the basic structure and primacy of the judges in appointment is essential for the
independence of the judiciary; hence, it invalidated the 99th amendment.

❖ Right-Based Challenge

The Second application of the basic structure was related to the extent to which the executive can
infringe upon the rights of individuals. The Minerva Mills9 is where the court not only protected
the judiciary by invalidating clauses 4 and 5 inserted after the 42nd Amendment10 but also
highlighted how citizen rights were abridged by not giving them valuable modes of redressal,
which is guaranteed by Article 32. Further, in Waman Rao11, the court established the time period
within which judicial review exists for any amendment inserted in the 9th schedule, i.e. after 24th
April 1973. In the IR Coelho court, further accepted the timeline and drew a distinction between
the essence of right test and the right test, where the former is more concerned with the spirit of
right rather than the text of right and the latter is concerned with only the violation of the textual
guarantee.

❖ Interpretative Aid

In SR Bommai,12 secularism was held to be part of the basic structure of the Constitution, any
violation of which would be a valid ground for the imposition of a regional emergency under
Article 356. In the Supreme Court Advocates-on-Record Association (1993),13 Judicial
independence was regarded as part of the basic structure, and the judicial appointments process
was thereby interpreted as granting primacy to judges.

8
Supreme Court Advocates-on-Record Ass’n v. Union of India, (2016) 5 S.C.C. 1 (India).
9
Minerva Mills Ltd. v. Union of India, A.I.R. 1980 S.C. 1789 (India).
10
Constitution (Forty-second Amendment) Act, 1976, Acts of Parliament, 1976 (India).
11
Waman Rao v. Union of India, (1981) 2 S.C.C. 362 (India).
12
S.R. Bommai v. Union of India, (1994) 3 S.C.C. 1 (India).
13
Supreme Court Advocates-on-Record Ass’n v. Union of India, (1993) 4 S.C.C. 441 (India).