Comment on Doctrine of Basic Structure of the Indian Constitution. (150 words) (2012, 12 Marks)
The doctrine of basic structure holds that Parliament’s power under Article 368 extends to every provision but not to destroying the Constitution’s essential identity. Foreshadowed by Dietrich Conrad‘s 1965 lecture on implied limits and by Justice J. R. Mudholkar in Sajjan Singh (1965), it was laid down in Kesavananda Bharati (1973) by 7:6.
What It Protects
The list is deliberately open: supremacy of the Constitution, democracy and free and fair elections, secularism, federalism, separation of powers, judicial review, rule of law, judicial independence, the balance between Parts III and IV, and the limited amending power itself. I. R. Coelho (2007) required each feature to be rooted in the text and scheme, not in judicial preference.
How It Has Been Applied
| Case | Outcome |
|---|---|
| Indira Gandhi v. Raj Narain (1975) | 39th Amendment’s clause placing the PM’s election beyond courts struck |
| Minerva Mills (1980) | Articles 368(4)–(5) struck: the limit cannot be repealed |
| Waman Rao (1981) | Ninth Schedule laws after 24 April 1973 open to review |
| Kihoto Hollohan (1992) | Tenth Schedule upheld; ouster clause voided for want of ratification |
| S. R. Bommai (1994) | Federalism and secularism basic; Article 356 reviewable |
| L. Chandra Kumar (1997) | High Court review over tribunals basic |
| NJAC (2015) | 99th Amendment struck for judicial independence |
The doctrine has thus guarded democratic process and judicial power more than property or policy.
Critique
- No textual basis: Article 368 imposes only procedure, and the framers wrote no eternity clause like Germany’s Article 79(3).
- Counter-majoritarian: Alexander Bickel‘s difficulty is sharpest when judges override a two-thirds majority ratified by states.
- Indeterminacy and self-interest: in NJAC the Court struck a near-unanimous amendment on its own appointments; Justice Jasti Chelameswar‘s dissent called the collegium opaque. Jagdeep Dhankhar, as Vice-President (he resigned in July 2025), called Kesavananda a wrong precedent in January 2023.
Defence
It was the only check left on a compliant Parliament in 1975–77, the lesson of Weimar’s lawful self-destruction that Conrad had drawn, and it has been used sparingly: no amendment has fallen on this ground since 2015. Janhit Abhiyan (2022) upheld the 103rd Amendment, and Dr. Balram Singh (2024) the 42nd Amendment’s “socialist” and “secular”. Bangladesh adopted the doctrine in Anwar Hossain Chowdhury (1989).
Conclusion
The doctrine is judge-made but not arbitrary: a delegated power cannot abolish its source. Its legitimacy rests on restraint, confining itself to amendments that would change what the Constitution is rather than what Parliament prefers.