This article is written by Kishita Gupta, a graduate of the Unitedworld School of Law, Karnavati University, Gandhinagar. This article deals with the doctrine of basic structure which is recognised by the Indian judiciary as a part of the Indian Constitution. 

It has been published by Rachit Garg.


Did you know that the makers of the Indian Constitution gave Parliament the power to amend the Constitution as per the needs and demands of “We the People”? Did you also know that Article 368, which gives Parliament the power to amend the Constitution, can also be amended? However, there exists a shield to protect the misuse of this power by Parliament, and that shield is commonly known as the “Doctrine of Basic Structure”. It restricts Parliament’s ability to amend the law so that it cannot use its constitutional jurisdiction to change the “basic structure of the basic law of the land.” 

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Therefore, another set of questions arise: Are Parliament’s amending powers not subject to any restrictions? If the answer is not “yes,” for whatever reason—for example, because the Constitution’s framers did not intend for such a restriction to exist, in which case they would have included it in the Constitution. Then the next question is: how far can Parliament change the fundamental law of the land? Is there any chance that Parliament’s ability to alter laws under the guise of “constituent authority” will be abused if there is no restriction on this power? These questions and the scope of the article are addressed further through judicial rulings and understanding of the Doctrine of Basic Structure. 

Doctrine of Basic Structure

The first step toward constitutional law wisdom is realising that the Constitution founded a self-governing republic. The Constitution is a natural law. As said by Edmund Burke (the Father of Conservatism), “A Constitution is an ever developing thing and is continuously ongoing as it embodies the spirit of the nation. The impact of the past enriches it now and makes the future richer than the present.”

Article 368 falls under Part XX of the Constitution. It provides for three kinds of amendments, i.e., amendment by simple majority; amendment by a special majority; and amendment by special majority along with ratification by the States. The Constitution must be amended on a regular basis based on the dynamic nature of society. A stagnant constitution puts a significant barrier in the way of the country’s advancement. A provision for amending the Constitution has been made in order to address any challenges “We the People” may face in the future as the Constitution functions, since time is not static; it is always changing, just as the political, economic, and social circumstances of the people do.

If there were no provision for the Constitution’s revision, citizens would have turned to extra-constitutional means, such as war, to alter it. Our Constitution’s authors were so concerned with preserving India’s integrity that they provided us with a system through which, if a citizen had a claim against the government (whether it be Central or State), even if it were only for 100 rupees, they would issue a decree against the government; this decree would then be charged to the Consolidated Fund of India and would be due and payable without any right of appeal on the part of any State Legislature or Parliament.

The judiciary, as well as Parliament, has not provided an exhaustive or exclusive definition of the fundamental structure. The doctrine of basic structure has been defined by the judiciary using a case-by-case approach.

The Constitution’s framers had a feeling of India’s integrity and honour before 73 years, but today Parliament is doing everything it can to avoid falling under the jurisdiction of the court, which serves as the Constitution’s custodian. This concept, as it was defined in Kesavananda Bharati v. State of Kerala and Another (1973), aims to address a legal issue that occurs in written constitutions as a result of the interaction between the sections that protect fundamental rights and those that give Parliament the authority to change the Constitution.

In Minerva Mills judgement (1980), the judiciary had very loosely defined the basic framework by stating that Parliament has the authority to amend the Constitution, which was made with the utmost care by the founding fathers, whenever societal needs call for it. But it is to be remembered that the Constitution is a cultural heritage and its integrity and identity should not fall under the purview of questions. 

Essential features of basic structure of Indian Constitution

Through a variety of cases over these years, the judiciary has expanded the meaning of what is included in the basic structure. Let’s have a look at some of these essential features below:

  1. In Kesavananda Bharati’s case, the following essentials were accepted as ‘basic structure’: 
  • The supremacy of the Constitution, republican and democratic forms of government, the secular nature of the Constitution, the division of powers between the legislative, executive, and judicial branches, and the federal nature of the Constitution are all part of the basic structure, according to Chief Justice Sikri.
  • The directive to create a welfare state found in the Directive Principles of State Policy as well as the unity and integrity of the country are two additional basic features that Shelat, J., and Grover, J., added to this list.
  • The sovereignty of India, the democratic nature of the polity, the nation’s unity, the core elements of the individual freedoms secured to its citizens, and the mandate to create a welfare state are among the basic characteristics that Hegde, J., and Mukherjea, J., separately and more succinctly listed.
  • According to Jaganmohan Reddy, J., the Preamble of the Constitution and the constitutional provisions into which they were translated, such as sovereign democratic republic, parliamentary democracy, and three organs of the state contained aspects of the basic features.
  1. In Indira Gandhi v. Raj Narain (1975) case, according to Justice K.K. Thomas, the ability for judicial review is a crucial component. Justice Y.V. Chandrachud also stated four fundamental principles that he believed could not be changed. These include:
  • The sovereign democratic republic status, 
  • Equality of status and opportunity for all people, 
  • Secularism and freedom of conscience and religion,
  • The rule of law (It was also held in an implied manner as a feature of the basic structure in the Golak Nath case (1967) by Justice Mudholkar.)
  1. In Minerva Mills judgement, the judges with the concurring opinion from the majority ruled that ‘limiting the amending power’ itself is a basic feature of the Constitution.
  2. According to the judgement in the Central Coal Fields case (1980), effective access to justice is a fundamental component of the basic structure.
  3. In Kihoto Hollohon v. Zachillhu (1992) case, the Court hinted toward democracy along with a fair electoral process as being a feature of the basic structure.
  4. Further in S. R. Bommai v. Union of India (1994), democracy and federalism, along with secularism were recognised as essential features of the basic structure.
  5. In M. Nagaraj v. Union of India (2006), the Court acknowledged the doctrine of equality as an essential feature of the basic structure.

Let us now discuss some of these essential features in detail:

Supremacy of law

According to the idea of constitutional supremacy, all state institutions, including the parliament and state legislatures, are bound by the Constitution as the highest law of the realm. They are required to act within the restrictions imposed by the Constitution. The Constitution is what gives them life and authority, so everything they do must be in accordance with it.

The basic structure of the Indian Constitution is federal, and it is distinguished by the traditional features of a federal system, including the supremacy of the Constitution, the division of powers between the Union and State governments, the existence of an independent judiciary, and a strict process for amending the Constitution. It creates a dual polity where the Union and the States have distinct spheres of authority that they can exert in the domains that are entrusted to them. There is an independent judicial system that can be used in the areas that have been delegated to it to decide disputes between the Union and the States. Only by using a distinctive parliamentary procedure and having a majority of the States ratify it, an amendment is made in the respective spheres of the Union and the States.

It was determined in K.T. Plantation Ltd. v. State of Karnataka (2011) that there is numerous legislation that, despite depriving a person of his property, is protected by Article 30(1-A), Articles 31-A, 31-B, and 31-C, and are therefore unchallengeable under Article 19 or Article 14. Aside from the ground of legislative competence, the grounds for challenging the deletion of Article 19(1)(f) include Article 14, the fundamental structure, and the rule of law. In other words, Article 14 simpliciter as a ground of challenge is accessible for statutes not covered by Articles 31-A, 31-B, or 31-C. A challenge under Article 14 wouldn’t be maintainable for statutes covered by Articles 31-A, 31-B, and 31-C unless it was viewed as a component of the fundamental framework of the Constitution.

The Constitution is a fundamental law. The Constitution gave rise to the governmental bodies, and it is within its bounds that they exercise their authority and carry out their duties. Both the State Legislature and the Union Parliament are not sovereign. Any law, whether from the Union or a state, is evaluated for legality in light of the Constitution’s definition of each jurisdiction. If any constitutional provision is determined to have been violated by a statute, the judiciary has the authority to declare the law unconstitutional.

Republican and democratic forms of government

In the years before its independence, India was divided up into numerous princely states. The Constitution is what made India into a republic. The qualifiers ‘sovereign’ and ‘democratic’ define ‘republic’ in the phrase “sovereign democratic republic.” Both the terms ‘democratic’ and ‘sovereign’ are equally important. If weight must be ascribed between ‘sovereign’ and ‘democratic,’ then ‘sovereign’ is deeper and more complex than ‘democratic.’  Sovereignty is therefore both a characteristic and a source of democracy.

The term ‘republic’ then needed to be defined as ‘democratic,’ therefore democratic should simply come before the republic. Because of this, the words “sovereign democratic republic” were arranged in that particular order. In order to provide justice, liberty, equality, and fraternity to all of its citizens, a sovereign democratic republic must include all citizens without exception. The phrase ‘to secure’ expresses security and confidence. Justice is necessary for liberty to exist, and liberty is necessary for justice to exist. Equality would be guaranteed by justice and liberty. Additionally, justice and liberty would present themselves as equality through their interaction. If justice, liberty, and equality didn’t exist, “fraternity” would only exist in people’s imaginations or in their idealised visions.

The four words, which are arranged in that manner, represent a philosophical journey through thought and ideology as well as a clear explanation of how the Constitution will operate. The most important of the four ideas is ‘justice.’

The Indian Constitution guarantees “rule of law” governance and calls for the country to be governed by its three main pillars: the legislature, the executive, and the judiciary. Therefore, upholding the “rule of law” is a must under our constitutional structure and is crucial to the survival of any democracy.


As a core principle for state policy and conduct, secularism is a fundamental element of the Constitution. A cornerstone of an egalitarian and progressive society that our Constitution seeks to construct is secularism in the positive sense. In a society that is multireligious and socially divided, it is the only basis for a consistent and long-lasting national identity. It is an effective method for resolving disputes and promoting harmony and peace. It guarantees full civil liberties, constitutional rights, and equal opportunities while giving followers of all religions a sense of security.

Secularism and socialism were added to the Preamble of the Constitution by the Constitution (Forty-second Amendment) Act in recognition of the fact that political democracy would not endure in a democracy unless all segments of society were given the means and opportunities to engage in it, regardless of caste, religion, or sex. India’s Constitution upholds a secular State. There is no recognised religion by the State. Its provisions, which fully permit everyone to profess, practise, and propagate the religion of their choice, are permeated with secularism. In addition to ensuring a person’s freedom of religion and conscience, the Constitution also provides freedom for those who do not practise any religion and scrupulously prohibits the state from engaging in any form of religious discrimination.

Federal character of the Constitution

The Indian Constitution is a tool for achieving a goal; it is not merely a political philosophy of democracy but rather a system of social justice. The federalism of India is distinct except that it is designed to meet the particular requirements of the nation. A fundamental aspect of the Indian Constitution is federalism, which establishes the Union of India as eternal and unconquerable. Both the Center and the States are cooperating and coordinating organisations with their own independence, and they should each execute their own authority with respect, understanding, and mutual adjustment.

In the strictest sense, the Indian Constitution is not viewed as federal or unitary. It’s frequently described as having a quasi-federal structure. India’s unity as a single country is emphasised often in the Constitution. India is a sovereign, socialist, secular, and democratic republic that is referred to as a union of states. The right of the states to draft their own constitutions and the inclusion of dual citizenship have both been considered to be requirements of federalism that the Indian Constitution does not meet making it quasi-federal.

Natural Law and basic structure of Indian Constitution

This segment of the article attempts to prove that there is a relationship between the two disparate theories of natural law and the basic structure of the Indian constitution. Thus, the foundation of natural law is the idea that there is a greater law that is permanent and therefore above the whims of the sovereign. Natural law is frequently used to explain the complete body of rights, making it the ultimate superset of rights. The concept of human rights emerged from natural law. All people were born with a distinctive identity that was distinct from their state. Grotius presented a non-theistic explanation of natural law after that. As a result, we may conclude that human rights are a part of the larger natural law system.

Part III of the Indian Constitution affirmatively transcribes human rights. Only a few human rights, though, were protected as Fundamental Rights. A quick comparison of the Universal Declaration of Human Rights (UDHR) and Part III of the Indian Constitution reveals that the rights to life and liberty under Article 3 of the UDHR have been transformed into Article 21 of the Indian Constitution, the right to a fair trial under Article 10 of the UDHR has become Article 22 of Part III, the right to property under Article 17 of the UDHR, which was formerly Article 31 of the Constitution, has been changed to become a constitutional right under Article 300, and the right to freedom of expression under Article 19 of the UDHR has been adopted as Article 19 in the Constitution of India. Thus, it is also shown that fundamental rights are a subset of more general human rights, which form the second link in the rights chain.

Now we turn to the question of whether the basic structure, which is a subset of fundamental rights, also includes additional natural law notions that fall outside the purview of fundamental rights. The answer to this has already been discussed above under the heading “Essential features of the basic structure”. We can infer that the basic structure was the result of the judiciary’s search for a more effective provision in the     Constitution to prevent an all-powerful executive.

As a result, we conclude that while many fundamental rights were fundamentally safeguarded, Part III as a whole never received such protection. As stated in Minerva, the Constitution’s identity is found in the equilibrium between Parts III and IV. The fundamental structure includes much more than just fundamental rights; it also includes the fundamental principles of natural law in the form of democratic institutions, the rule of law, and other similar concepts.

Scope of amending the basic structure of Indian Constitution

Without a doubt, fundamental rights are crucial and the foundation of civilisation. However, when the socioeconomic landscape shifts, society also does. The boundaries of these rights might need to be constantly redefined. Even the core of their ideas could change drastically. Generally, most constitutions include an amending power to allow for required changes to legal relationships and to bring them into compliance with social realities. A very good example of a flexible Constitution with an easy method for enacting any changes in law, including constitutional law, is the British Constitution. Broad amending authority and a simple amendment process do not devalue or call for the abolition of fundamental rights; rather, they provide a way of preserving them through required adjustments that are in keeping with shifting social realities. Fundamental rights are stable because of both political and societal backing, not because there is no legal authority to revoke them.

The power and process for amending the Constitution are outlined in Article 368 of the Constitution. There is no higher law that can be used to verify its legitimacy because it is a constituent power sui generis. As the fundamental standard, the Constitution is a valid starting point. The Constitution will be altered in conformity with the terms of the amending Bill if the prescribed procedure is followed while passing the Bill. Constitutional amendments must receive a special majority in order to be approved. A majority of the members present and voting in each House, as well as a majority of at least two-thirds of the members present and voting, are required to adopt an amendment bill in accordance with article 368. Before a bill can be brought to the President for assent if it pertains to state issues as specified in the proviso, it must be approved by the legislatures of at least half the states.

For a lot of years, Indian legal experts have been debating whether there are any express or implicit restrictions on Parliament’s ability to change basic rights beyond the need to follow the established method. This issue initially came up in the Shankari Prasad case of 1951, in which the constitutionality of the First Amendment was contested. Fundamental rights underwent several alterations as a result of this revision. The amendment in question is subject to a test under Article 13(2) and is unlawful because it breaches fundamental rights, according to the argument behind the challenge. The Supreme Court ruled unanimously in favour of the amendment’s legitimacy, concluding that Article 13 does not apply to constitutional amendments because the phrase ‘law’ included therein refers to common law rather than constituent law. It can be helpful to keep in mind that the Constituent Assembly was changed into the Provisional Parliament with the same membership, which approved the first amendment.

In the second instance, Sajjan Singh v. State of Punjab (1963), this issue came up. In this case, the 1964’s Seventeenth Amendment was contested on identical grounds. This time, the Court determined by a vote of 3 to 2 that the amending power granted by Article 368 is a broad power that includes the ability to take away the fundamental rights protected by Part III and cannot be regulated by Article 13. In the well-known Golak Nath case, where the Supreme Court disagreed with precedent, this issue was raised once more. By a vote of six to five, it was concluded that the term ‘law’ in Article 13(2) included Constitutional Law, which in turn limited and constrained the modifying power granted by Article 368. It prohibited Parliament from amending any of Part III’s clauses in a way that would eliminate or curtail the rights guaranteed therein. 

The recent Kesavananda case, which was determined by the Court in April 1973, has brought the entire debate to a head. The legitimacy of the Twenty-fourth, Twenty-fifth, and Twenty-ninth amendments, in this case, was contested primarily on the grounds that Parliament lacked the authority to enact amendments that curtailed or eliminated fundamental rights. Article 13 and Article 368 both undergo changes as a result of the 24th amendment. This makes it clear that constitutional amendments are not included in the definition of ‘law’ in Article 13(2). It makes it very clear that Article 368 provides the authority and the process for changing any provision of the Constitution by way of addition, modification, or repeal. Additionally, it makes the President’s approval of an amending Bill, which has been lawfully enacted by both Houses, when it is given to him for this reason, mandatory. The petitioners further argued that even if Parliament had the authority to amend fundamental rights, there were inherent and implied restrictions on that authority that prevented it from altering the Constitution’s fundamental design or core principles. In response to the first query, the Court determined that because Article 368 gave Parliament the authority to change basic rights and because Article 13’s definition of ‘law’ did not encompass constituent law, the amending power could not be restrained. The 24th Amendment was thus preserved by the Supreme Court. There were discrepancies about the scope of the amending authority and the associated limitations on this power. Although there was disagreement among the judges over the definition and content of the so-called basic structure, the ratio of 7:6 judges believed that the Constitution’s basic structure could not be changed under the amending power.

The entire Constitution is the basic law. Since there is no unbiased test to determine which portion is more basic than the other, it is difficult to make this distinction. There are therefore subjective preferences and choices in determining what makes up this so-called basic structure, as there are no objective criteria to differentiate between them. It is not possible to claim that essential features are necessarily eternal and unchangeable, even if it were possible to distinguish between essential and non-essential features.

Kesavananda Bharati case

On April 24, 1973, the landmark decision in the “Essential Features Case” was handed down. In the official law reports, the verdict filled more than 700 densely printed pages. Despite its length, Kesavananda is not regarded as a case that specifically addresses the issues raised by the parties; rather, it takes on the duty of extensively describing the constitutional jurisprudence surrounding amendments in the Indian legal system. The thirteen-judge Constitutional Bench responded with eleven judgements, only two of which were written jointly by Shelat J. and Mukerjea J. (first) and Hegde J. and Grover J. (second).

What is interesting to know about this case is that out of the 13 judges, 6 ruled in favour of the petitioners while the other 6 ruled against them, leaving the 13th judge, Justice Khanna, with a neutral position. He decided on a mid-away between the two conflicting opinions of the rest of the judges. The most interesting part is that the opinion of Justice Khanna, to which none of the other 12 judges fully agreed, has actually become the law of the land. He held that the power of amending is limited and that Parliament is not enabled to alter the basic structure of the Constitution. The substantive portion of Article 31-C, which repealed the fundamental rights, was constitutional since it did not change the Constitution’s fundamental framework, which is its basic structure. Whereas, the remaining part of the article which ousted the judicial jurisdiction was held to be invalid. Lastly, on the issue of amending power under Article 368, he held that parliament does not enjoy unlimited power in this situation either. 

Twenty-fourth Amendment issue

In order to determine whether the Twenty-fourth Amendment is constitutional, Kesavananda’s concept was immediately used. The arguments against a limitless amending power were founded on the concern that, if given, the Fundamental Rights and other important aspects of the Constitution may be in jeopardy. According to Seervai (the author), this argument was refuted in the same way it always has by stating that, despite the fact that actual abuse of power would be upheld, “the dread of abuse of power was not a justification against its existence.”

In Kesavananda, the government argued that even though it had unlimited authority to change the Constitution following the twenty-fourth Amendment and could eliminate human freedoms under Article 31-C, the legislature would not exercise the authority. The Bench itself expressed concern about this viewpoint because, if the argument of dread were to be followed to its logical conclusion, many other significant parts of the Constitution would also have to be deemed unamendable. Looking back, it appears that the Court reached the logical conclusion of the debate but ultimately favoured Privy Council’s position over the poet’s reflections. The Twenty-fourth Amendment as a whole was upheld as legal. However, there was a condition that applied to the use of the amending power under the revised Article 368: Parliament could only change fundamental rights subject to the general constraint of the Constitution’s “basic structure” not being amendable. Additionally, it was believed that the Golak Nath decision’s overturning restored the pre-Golak Nath status quo, rendering the Twenty-fourth Amendment superfluous. In this way, Kesavananda had accomplished for the government what the state had hoped to do through the 24th Amendment.

Twenty-fifth Amendment

The following was upheld regarding the twenty-fifth Amendment, subject to some qualifications:

  1. The courts could not address the issue of the sufficiency of the ‘amount’ payable for property acquired or requisitioned, notwithstanding the fact that ‘amount’ was not the same idea as ‘compensation.’ However, the ‘amount’ must, have some reasonable relation to the original worth of the subject property and cannot be illusory or arbitrary.
  2. The Amendment had brought things back to how they were before the Supreme Court’s Golak Nath ruling when it was decided that Article 19(1) (f) and Article 31(2) were mutually exclusive, hence Article 19(1) (f) was not applied to a statute that was passed under Article 31(2).
  3. The first part of Article 31-C, which sought to shield laws from liability for violating Articles 14, 19, and 31, was upheld because it defined a specific category of legislation intended to secure the obligation under Articles 39(b) and (c). As a result, no amendment authority delegation was necessary.
  4. Article 31-C’s second clause was declared unlawful. This decision was made with the intention that while a law passed to implement Articles 39(b) and (c) would not have been subject to a challenge under Articles 14, 19, and 31, the courts still had the authority to determine whether the contested law actually accomplished the goals set forth in those Articles or whether this privilege was being abused for a different reason. If the second portion of Article 31-C had remained in effect, this would not have been possible. The Court overturned it and declared that no legislature can, by its own proclamation, establish a statute immune to legal challenges.

Twenty-ninth Amendment

The petitioners’ primary defence of the Twenty-ninth Amendment’s legality focused only on the connection between Articles 31A and 31B. It was argued that Article 31B was closely related to Article 31A and that only laws that fell under Article 31A could be listed in the Ninth Schedule in accordance with Article 31B. 

The State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga (1952), Visweshwar Rao v. The State of Madhya Pradesh (1952), and N.B. Jeejeebhoy v. Assistant Collector, Thana Prant, Thana (1964) were among the cases that the Court considered had already resolved the same concerns raised in the present case. It was determined in each of these situations that Article 31B stood alone from Article 31A. It was difficult to reopen a case that had been closed for so long. However, the question of whether the Acts incorporated into the Ninth Schedule by the Twenty-ninth Amendment or any of their provisions nullified any fundamental tenets of the constitutional framework or stripped the Constitution of its distinctive character remained open for the Court to resolve. A Constitution Bench was given the authority to rule on the Twenty-sixth Amendment‘s constitutionality and determine if it is consistent with Kesavananda’s ruling.

Significance of the case

Kesavananda’s ruling was most significant in the following ways:

  1. In the earlier judgements, the judiciary opined that there are several other provisions of the Constitution that are equally significant, if not more, then in the same manner as the fundamental rights. However, Golak Nath had restricted such comprehension to solely fundamental rights. Kesavananda identified some more elements as constituting the “basic structure” of the Constitution, which cannot be altered by a constitutional amendment.
  2. All of the fundamental rights were rendered non-amendable by Golak Nath, which many people, including the government, viewed as an overly rigorous formulation. In this regard, Kesavananda introduced some flexibility and asserted that not all FR’s en bloc are a part of the Constitution’s fundamental design. Only those FRs that are considered to be a component of the ‘basic structure’ are non-amendable.

The IR Coelho’s judgement 

The Supreme Court’s judgement in the case of  IR Coelho v. Union of India (2007) is very significant. The case was decided by a nine-judge bench and resulted from a constitution bench’s 1999 order of reference.

Facts of the case

The Supreme Court overturned the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969, in Balmadies Plantations Ltd. & Anr. v. State of Tamil Nadu (1972) because it was determined to fall outside the protections afforded to agrarian reforms under Article 31-A of the Constitution. The Constitution (Thirty-fourth Amendment) Act allowed the insertion of the Janmam Act into the Ninth Schedule, which was challenged. 

The Constitution bench noted in its referral order that, in accordance with Waman Rao & Ors. v. Union of India & Ors (1981), amendments to the Constitution made on or after 24.4.1973 (the date of the Kesavananda Bharati judgement), inserting various laws in the Ninth Schedule, were subject to challenge on the grounds that such amendments are outside of Parliament’s constituent power because they weaken the basic structure of the Constitution.

Issue of the case

The issue, in this case, was how much judicial scrutiny should be applied to a constitutional amendment that, as a result of Article 31-B, places a statute in the Ninth Schedule and how much immunity, if any, such an amendment, and implicitly the law it immunises, should have.

In simple words, the issue was, whether a law or regulation that violates one or more of the fundamental rights guaranteed by Articles 14, 19, or 31 can be included in the Ninth Schedule, or whether only a constitutional amendment that amends the ninth schedule and endangers or undermines the foundation of the Constitution can be declared void.

Judgement of the case

Absolute immunity is not available

In the IR Coelho case, the Court declared that Kesavananda Bharati had not decided whether or not Article 31-B is legal, but it continued, “Be that as it may, we will regard Article 31-B as lawful. We are not debating the constitutionality of the First Amendment’s insertion of Article 31-B into the Constitution.” This is so because the constitutionality of Article 31-B was not raised as a question to be resolved in the referral order to establish a nine-judge bench. 

In any case, the Court determined that the ability to give absolute immunity at whim is incompatible with the basic structure theory, and as a result, the laws included in the Ninth Schedule would no longer have absolute immunity as of 24.4.1973 (the date of the Kesavananda Bharati verdict). According to the IR Coelho court, laws introduced into the Ninth Schedule after 24.4.1973 were unable to avoid judicial review based on the rights outlined in Part III of the Constitution, and as a result, they are “consequently susceptible to the review of fundamental rights as they stand in Part III.” 

The Court has also stated that the elements of the fundamental structure that cross over with fundamental rights will serve as a higher bar for the validity tests of such laws. Since some of the fundamental rights are part of the Constitution’s basic structure, the Court stated that any law receiving Ninth Schedule protection deserves to be put to the test using these principles. Any law that violates a fundamental right’s core or an essential feature will be declared void. Each situation requires an examination of the scope of the abrogation and the limit of the abridgement.

What constitutes the basic structure? 

The most recent turning point in the legal definition of the Constitution’s basic structure is the IR Coelho case. The five-judge bench judgement in the M. Nagaraj case, which was rendered a few months earlier, has been expanded upon by the IR Coelho court. The Court had taken into consideration the conflict between the necessity to interpret the Constitution textually based on the original meaning on the one hand, and the ambiguous nature of the constitutional text that allows for the interpretation of diverse values in the Constitution on the other. The Court in Nagaraj stated that the fundamental framework need not be contained in the language of the Constitution.

The Nagaraj Court reaffirmed that the secularism, federalism, socialism, and reasonableness elements that provide the Constitution’s coherence were part of the constitutional law even if they were not explicitly stated in the text of the Constitution. The IR Coelho Court elaborates on this issue by pointing out that the basic structure may include both textual provisions and such underlying principles. The Court defined the contrast between the ‘essence of the rights test’ and the ‘rights test,’ which in this context corresponds to the difference between the fundamental principle supporting an express right and the express right stated in the constitutional text.

The Kesavananda Bharati case, according to the IR Coelho Court, could not be interpreted to mean that fundamental rights are not a part of the basic structure. The Court could then continue to develop its theme as a result of this. The IR Coelho Court wisely relies on Nagaraj to support its conclusion that people’s fundamental rights are not gifts from the government but rather their own. Part III only just confirms their core existence and grants people protection through it. Therefore, every fundamental right in part III has “foundational value,” as per the Court.

The Court then identified Article 32 as part of the basic structure. It cited Minerva Mills and then reiterated that Articles 14, 19, and 21,  which were identified by the Court as the ‘golden triangle’ are also a part of the basic structure of the Constitution.

The ‘rights test’ and ‘essence of rights’

In IR Coelho, the Court needed to define and differentiate between the “rights test” and the “essence of rights” in order to understand these in the context of part III rights and those that participate in the quality of the basic structure. While laws may be added to the Ninth Schedule, in the Court’s opinion, once Article 32 is implemented, these laws must pass the full test of fundamental rights. Part III may be entirely excluded at will from the Ninth Schedule with no restrictions on how often it will be reviewed.  Because of this, every change to the Ninth Schedule affects Article 32, which is an element of the basic structure and is therefore subject to Part III’s analysis of the fundamental rights as they currently exist.

The Court has held in this case that the constitutional validity of the legislation under the Ninth Schedule could be adjudged by applying the direct impact and effect test, i.e., the rights test. The rights test requires that, though not a form of law, its effect would be the determinative factor. It is the court that is to decide if this interference is justified and if it does or does not amount to a violation of the basic structure. The Court has ruled that the direct impact and effect test, often known as the rights test, can be used to determine whether or not the ninth schedule provisions are constitutional. This test stipulates that the impact of a law, not its form, should be the deciding element. The Court will determine whether or not this interference is appropriate and whether it constitutes a violation of the fundamental framework.

This position then serves to transfer the decision of whether a law is necessary from Parliament to the courts. Additionally, it gives the courts the freedom to address the admissibility of such instances using both the rights test and the rights test’s core components. In either scenario, it would be up to the courts to decide how the infringement affected things. In the end, this might be the decisive factor in the verdict.

The Ninety-Ninth Constitutional Amendment and the doctrine of basic structure

The National Judicial Appointment Commission Act (hereinafter referred to as the NJAC Act) and the Ninety-Ninth Constitutional Amendment were proposed as a constitutional body to replace the current system of judicial appointments, whereby the three senior-most judges of the Supreme Court (the Collegium) decide upon the appointments to the Supreme Court with the Executive acting in a nominally consultative capacity.

The constitutionality of the Ninety-Ninth Amendment was challenged in the Supreme Court Advocates-on-Record Assn. v. Union of India (2015). The issue in the case was whether the impugned amendment was void on grounds that it altered or damaged the basic structure.

The petitioners argued that the Constitution’s basic feature of the judiciary’s supremacy in judicial appointments and the Executive’s absence from those processes is essential to the judiciary’s independence and its separation from the Executive. 

The respondents contend that the judiciary’s independence is not affected by its preeminence in the appointment of judges. The independence of the judiciary is not compromised even when executive appointments are made. Alternately, in the revised system, the judiciary’s supremacy and independence are both preserved. Without changing the basic structure of the Constitution, the amendment supports accountability and transparency while also contributing to necessary reform.

The Court rejected the arguments and ruled, 4:1, that the new system violates the Constitution’s basic structure, which requires that the judiciary be given priority in the selection of justices. Such predominance has been abolished in the current plan. The contested modification cannot, therefore, be upheld. The proposed core provisions of the 99th Amendment, Articles 124A, B, and C, have been criticised for undermining the separation of powers, the independence of the judiciary, and the rule of law.


It can be concluded that the basic structure of the Constitution has changed over time since it was first established in the 1970s, with more and more rights being incorporated into it with each passing year. Thus, the underlying basic structure that is visible today is the result of years of court supervision of fundamental rights and the associated constitutional framework. The doctrine of basic structure’s restriction on the dynamic nature of societal concerns is wise and well-advised. It cannot be used to contest regular legislation. Otherwise, Pandora’s box would be unsealed. It would undermine the structure of the Constitution. In fact, it might not be incorrect to state that applying the basic structure theory to determine whether ordinary legislation is constitutional would equate to undermining and destroying the Constitution’s basic structure.

Frequently Asked Questions (FAQs)

Is equality a part of the basic structure doctrine?

The case of M. Nagaraj v Union of India (2006) recognised that ‘formal equality’ is not a part of the basic structure but ‘proportional equality’ is.

What is the significance of the doctrine of basic structure in the Constitution of India?

The doctrine of basic structure is very significant to the Constitution of India as it protects the Constitution from the misuse by the Parliament of its power to make amendments to the Constitution. Due to this doctrine, Parliament cannot amend the Constitution as per their whims and fancies. 

Which case dealt with the doctrine of basic structure in depth for the first time in India?

The case of Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr. (Writ Petition (Civil) 135 of 1970) is a landmark judgement that for the first time dealt with the Doctrine of Basic Structure and ruled that the basic structure of the Constitution is unamendable.


  1. The Basic Structure of the Indian Constitution | ConstitutionNet 
  2. H.M. Seervai, Constitutional Law of India 3113 (2006).
  3. From Brooding Omnipresence to Concrete Textual Provisions: IR Coelho Judgment and Basic Structure Doctrine 49 JILI (2007) 240
  4. Basic Structure of the Indian Constitution: Doctrine of Constitutionally Controlled Governance : [From Kesavananda Bharati to I.R. Coelho] 49 JILI (2007) 365
  5. Today’s Promise, Tomorrow’s Constitution: ‘Basic Structure’, Constitutional Transformations and the Future of Political Progress in India (2008) 1 NUJS L Rev 417

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