← The hardest concepts in Indian law
In one breath
Parliament may amend the Indian Constitution under Article 368, but it may not amend away its basic structure, and the Supreme Court decides what that structure contains. The doctrine limits constitutional amendments, not ordinary laws.
The picture
The load-bearing wall
An owner who has bought a house may knock through a partition, add a floor or replace the kitchen. What the owner may not do is remove the wall that holds the roof up, because then there is no house left to own. Which walls are structural is not written on any plan the owner can read in advance; an engineer tells the owner when the owner proposes a change.
That is how the doctrine works. Article 368 gives Parliament a wide power to amend, and Parliament has used it many times. In Kesavananda Bharati the Supreme Court held that the power is an amending power and not a power to destroy or replace the identity of the Constitution. Features such as the supremacy of the Constitution, the republican and democratic form of government, secularism, the separation of powers, federalism, judicial review and the free and fair election are among those the Court has treated as structural. The list is built case by case and is not exhaustive.
Where the picture stops working
A house has an engineer’s drawing, and the Constitution has no list approved in advance, so the same court that decides what is structural also decides whether a given amendment crosses the line. Critics call this a judicial veto over Parliament, and defenders call it the price of a written constitution. The metaphor also hides that the test is applied to amendments, not to statutes passed in the ordinary way.
How it really works
- 1Identify what is being challenged: a constitutional amendment passed under Article 368, or an ordinary statute. The doctrine applies to the first.
- 2Ask whether the amendment takes away or damages a feature the Court has already held to be part of the basic structure, such as judicial review, the rule of law or free and fair elections.
- 3If the feature is new, argue that it is essential to the identity of the Constitution and not just an important rule, by looking at the text, the history and earlier decisions.
- 4Apply the test to the effect of the amendment, not its label. An amendment that removes a feature in substance fails even if it uses careful wording.
- 5If the amendment fails, the Court strikes down the offending part. Laws placed in the Ninth Schedule after the date of Kesavananda can also be tested on this ground.
Why people get it wrong
- Thinking the basic structure is a fixed list in the Constitution. It is a judicial construction and it has grown with cases.
- Thinking Parliament cannot amend fundamental rights at all. It can; the limit is that the amendment must not destroy the structure.
- Using the doctrine against ordinary legislation. An ordinary law is tested against the text of the Constitution, not against the basic structure as a separate ground.
- Treating Golak Nath as still the law. It held that fundamental rights could not be amended, and Kesavananda overruled it.
A worked example
The facts are invented
Suppose Parliament passes a constitutional amendment saying that no court may examine the validity of any election to the office of Prime Minister, and that disputes will be decided by a body chosen by Parliament itself. A voter challenges the amendment in the Supreme Court.
The Court asks whether free and fair elections and judicial review are part of the basic structure. Both are. An amendment that removes the courts from election disputes and puts the decision in the hands of the persons who benefit from it strikes at both, so the Court would strike down the amendment, as it did with a clause of this kind in Indira Gandhi v Raj Narain. The rest of the Constitution continues, and Parliament remains free to amend other things.
Try it
A constitutional amendment is challenged because it takes away judicial review of a class of laws. Which statement best describes the position under the basic structure doctrine?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Golak Nath v State of Punjab, AIR 1967 SC 1643
- Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225
- Indira Gandhi v Raj Narain, 1975 Supp SCC 1
- Minerva Mills v Union of India, (1980) 3 SCC 625
- I R Coelho v State of Tamil Nadu, (2007) 2 SCC 1
Where to go next
Courses
Case briefs
Dictionary
More hard concepts in India law
- Equality and arbitrariness under Article 14 (Constitutional law)
- The golden triangle of Articles 14, 19 and 21 (Constitutional law)
- Pith and substance and the three lists (Constitutional law)
- Eclipse, severability and Article 13 (Constitutional law)
- Reasonable restrictions on free speech (Constitutional law)
- Public interest litigation and standing (Constitutional law)
- Essential religious practices under Articles 25 and 26 (Constitutional law)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. India has a written Constitution, central and State legislation, and a unified court system under the Supreme Court. Each page states the usual formulation of the rule and names landmark decisions, with the citations as they are usually given in the Supreme Court Cases and All India Reporter series. The criminal codes and the law of evidence were replaced by new statutes, so the pages on criminal law state the doctrine and the decisions and mostly leave out section numbers; check the current text of any statute you rely on. Personal laws differ by community. This is a study aid, not legal advice, and an Indian advocate should check anything you need to rely on.