“The basic structure doctrine is implicit in the Indian Constitution; the Supreme Court has only given it an explicit for.” Comment. (2019, 20 Marks)
The statement takes the discovery view of the basic structure: the limit on amendment was always in the Constitution, and Kesavananda Bharati (1973) merely named it. Critics take the invention view: a court read into Article 368 a restraint the framers chose not to write. The better answer is that the principle is implicit while its content and custodian were judicial constructions.
The Case for Implicitness
- The logic of amendment. Dietrich Conrad, in a February 1965 lecture at Banaras Hindu University on the implied limitations of the amending power, argued that a body created by a constitution cannot use its delegated power to demolish that constitution’s foundations, the lesson of Weimar. To amend is to change a document that continues; replacement belongs to the people.
- Seeds before 1973. In Sajjan Singh (1965) Justice J. R. Mudholkar asked whether changing a basic feature is amendment or rewriting, reading the Preamble as the Constitution’s epitome and citing Pakistan’s Fazlul Quader Chowdhry (1963); Justice M. Hidayatullah doubted that fundamental rights were a plaything of special majorities. Golaknath (1967) found implied-limits reasoning of considerable force.
- The design itself. The Constitution is supreme and made by “We, the People”; Parliament is its creature. Article 13 voids inconsistent law, and Article 32, which B. R. Ambedkar called the Constitution’s very soul, makes the Supreme Court guardian of rights. Article 368’s graded procedure, requiring state ratification for federal provisions, already ranks some features above others.
- Comparative thought. Germany’s Article 79(3) (1949) placed dignity, democracy and federalism beyond amendment; India’s framers left the same idea unwritten, and the Court reasoned from it.
The Case That It Was Constructed
- Text and intention. Article 368 prescribes only procedure; after the 24th Amendment it allows “addition, variation or repeal” of any provision. Eternity clauses were available to copy and were not copied. Ambedkar held that critics unable to muster two-thirds of an elected Parliament could not claim the public’s backing; Jawaharlal Nehru resisted a Parliament subordinate to courts.
- The Court found nothing for twenty-two years. Shankari Prasad (1951) unanimously held the power unlimited, and Sajjan Singh‘s majority agreed.
- A fractured birth. The doctrine rests on a 7:6 bench of eleven opinions; T. R. Andhyarujina‘s The Kesavananda Bharati Case (2011) reconstructs how contingent that majority was.
- Expanding content. Judicial review, judicial independence and, in NJAC (2015), judicial primacy in appointments were added by judges, several of them enlarging judicial power. Raju Ramachandran criticised the doctrine’s lack of textual anchorage and certainty. Jagdeep Dhankhar, as Vice-President (he resigned in July 2025), called the 1973 ruling a wrong precedent in January 2023.
Weighing the Two
The critique is strongest on content: no text implied collegium primacy. It is weakest on principle. An unlimited amending power would include the power to abolish democracy by constitutional means, and Minerva Mills (1980) showed that the 42nd Amendment’s Articles 368(4)–(5) attempted just that. The Court has also disciplined itself: I. R. Coelho (2007) requires each feature to be traced to the text and scheme, and Janhit Abhiyan (2022) and Dr. Balram Singh (2024) upheld contested amendments. The doctrine’s defence was historical as much as logical: in 1975–77 it was the only limit left on a compliant Parliament.
Conclusion
The statement is right about the principle: a constitution that can be amended presupposes an identity to be preserved. It overstates the process: the Court did not merely transcribe that identity but defined and extended it. The basic structure is best seen as implicit in logic, explicit by judicial choice, and legitimate only while it stays tethered to the text.