Basic Structure Doctrine and its evolving limits on Parliamentary Sovereignty

Abstract

India’s Basic Structure Doctrine protects Constitutional essence from parliamentary amendments – this acts as a vital safeguard born during the period of Emergency. Recent constitutional decisions, particularly in NJAC (2015) and the Article 370 judgment (2023), raise questions about whether the doctrine is being applied consistently across different institutional contexts. When the judges who are not elected by the people of the country uses this veto power to strike the 2/3 of the parliament, a legitimacy crisis emerge. This Doctrine lacks a textual definition, allowing courts to expand “Basic Structure” case – by – case, gradually amassing veto power over elected representatives. While the doctrine remains constitutionally necessary to prevent majoritarian abuse, its indeterminate application risks expanding judicial power beyond defensible limits. Through NJAC and Article 370 analysis, the article proposes narrowing the doctrine to explicit constitutional text, shifting focus to procedural integrity rather than substantive review, thereby restoring the judicial – democratic balance.

Introduction

The question is could Parliament legally amend the Constitution to declare India a monarchy? Under the traditional parliamentary sovereignty, the answer is – Yes, but the Basic Structure Doctrine decisively constrains this possibility. Enshrined in the landmark case of Kesavananda Bharti vs State of Kerala (1973), this judicial innovation holds that parliament’s power under Article 368 to amend the Constitution is not absolute. Certain core features of the Constitution which are termed as “Basic Structure” – cannot be abrogated (legally destroyed) even through the formal amendment process. These core features include Constitutional supremacy, rule of law, democracy, federalism, separation of powers, judicial review, and balance between fundamental rights and directive principles.

The Doctrine of Basic Structure arose from the fears of unchecked amendments which can erode the Constitutional identity, as seen in the early cases (Shankari Prasad 1951, Sajjan Singh 1965) which affirmed unlimited amending power, and the Emergency Era 42nd Amendment attempting to immunize amendments from judicial review. By imposing this Basic Structure Doctrine on parliamentary sovereignty, the Supreme Court positioned itself as the guardian of the Constitution. Unlike the United Kingdom’s absolute parliamentary sovereignty, where the parliament can “make or unmake any law” – India’s hybrid model qualifies legislative supremacy with judicial oversight, preventing the majorities from dismantling the democracy.

There is success, but there are also scenarios which breed tension. When courts strike amendments – as in National judicial Appointments Commission (NJAC) or uphold controversial changes (Article 370), debates erupt: protection or overreach.? This particular article argues that while the Basic Structure Doctrine rightly limits the parliamentary sovereignty to protect the Constitution’s essence, recent applications arguably reveal risks of judicial overreach. Through historical analysis about why the Basic Structure Doctrine came into effect, case studies and normative critique, and then proposes a narrower principled framework to restore balance. The discussion begins by tracing the doctrine’s origins before examining its recent application in NJAC and Article 370, then the suggestions and conclusion.

While the Basic Structure Doctrine rightly constrains the parliamentary sovereignty to safeguard the Constitution’s essence against the majoritarian excesses, its expanding judicial application which are evident in cases like NJAC (2015) and Article 370 (2023) – risks potentially fostering a form of judicial supremacy that may undermine democratic legitimacy, which demands a narrower, more principled framework.

• This article does not deny the necessity of the Basic Structure Doctrine as a constitutional safeguard. Rather, it offers a limited critique of its recent application, recognising the judiciary’s difficult role in balancing constitutional preservation with democratic legitimacy, and avoiding any claim that judicial review itself is inherently illegitimate.

Background / Legal framework

Parliament’s amending power was initially treated as absolute with the cases like Shankari Prasad (1951) and Sajjan Singh (1965), which handed the parliament unlimited amending power which even encompassed the fundamental rights under Article 368. But Golaknath (1967), fundamentally altered – courts said that amendments could not trash fundamental rights. This created a Constitutional uncertainty: could parliament amend anything or not?

Then came the period of emergency (1975-77), this period forced the court’s hand, as Indra Gandhi’s government rammed through the amendments which negated the rights and the judicial power. Then came the 42nd Amendment: Article 368(4)and 368(5), which declared the amendments untouchable, situation was that, the Directive Principles triumphed over the Fundamental Rights. The parliament was rewriting the Constitution the way it would suit itself. These developments posed serious challenges to constitutional supremacy and judicial review.

In the landmark judgement of Kesavananda Bharti vs State of Kerala(1973), the 13-judge bench, drew the line. Justice H.R. Khanna articulated the Basic Structure Doctrine: the parliament can amend anything except the Constitution’s essence (supremacy, democracy, federalism, judicial review). The doctrine rests on the logic that an unlimited amending power would permit Parliament to dismantle the Constitution itself.

Not everything in the Constitution is considered to be the Basic Structure, subsequent judgements  have identified the following features as constituting the basic structure of the Constitution: (1) Supremacy of Constitution over all laws; (2) Rule of law and due process; (3) Democratic form of government and free fair elections; (4) Federalism and state autonomy; (5) Separation of powers between executive, legislature, judiciary; (6) Judicial review powers; (7) Individual liberties and human rights; (8) Independence of courts and Election Commission.

Minerva Mills (1980), sealed the idea given in the case of Kesavananda Bharti vs State of Kerala (1973), striking the 42nd Amendment clauses, it declared the Doctrine itself as the Basic Structure – meaning the parliament cannot amend away the doctrine that limits its power. This effectively Constitutionalised the doctrine itself, insulating it from legislative abrogation. S.R. Bommai vs Union of India (1994), expanded Basic Structure to include federalism explicitly, recognising states as Constitutional partners and not as subordinates.

Why this judicial constrain on parliamentary sovereignty is labelled as judicial overreach? By exercising the power to invalidate constitutional amendments, the Supreme Court now occupies a role that is uncommon in comparative constitutional democracies. According to the critics NJAC (2015) proves it: despite Parliament’s near-unanimous support (99th Amendment passed 2/3 majority; 16 states ratified), a five-judge majority invalidated the amendment, claiming “judicial independence” as basic structure. Critics argue that such decisions risk appearing more protective of institutional autonomy than of democratic accountability. Yet, without the Basic Structure Doctrine, enshrined in the (Kesavananda Bharti vs State of Kerala case), the 42nd Amendment might have killed the Constitution. The doctrine walks a tightrope – vital safeguard or judicial overreach. The tension persists: how to limit majorities without empowering judges? This requires disciplined, narrow application – a lesson recent cases have not yet understood.

Key issues and Analysis

In Westminster systems, the principle of parliamentary sovereignty is usually the ultimate authority: the legislature is supreme, generally unbound by previous parliaments and subject to no higher authority. However, India’s Constitution creates a fundamental paradox that modifies this idea significantly.

• Initial Limit: Article 13(2) of the Constitution of India directly limits the Indian Parliament by stating that any law inconsistent with fundamental rights is void.
• Extended Limit: This limitation is further extended by the Basic Structure Doctrine. According to landmark judgements (most famously Kesavananda Bharti v. State of Kerala)

Therefore, while inspired by the Westminster model, the Indian system ultimately places the fundamental principles of its written Constitution above the absolute will of the Parliament.

This inversion troubles democratic theorists. Parliament represents the people directly through elections, whereas courts do not. But in the pertinent scenarios such as (Kesavananda Bharti vs State of Kerala and NJAC), a bench of 7 or even 5 judges can overrule 400+ elected legislators – this arguably creates a legitimacy gap between judicial authority and electoral representation. When courts strikes amendments, they substitute judicial vision for democratic choice. The long-term sustainability of such judicial authority therefore remains in question.

Argument for limiting legislative sovereignty: Majorities in the parliament are temporary whereas, the principles enshrined in the Constitution endures. A simple majority or even 2/3 of the majority could, if unchecked, transform the democracy into a dictatorship in a single session, and this was already proved  at the time of the emergency. The Doctrine preserves real sovereignty, the people’s long-term Constitutional will, not legislatures short-term political will. Absolute political power would paradoxically destroy sovereignty if remain unchecked.

Strictly speaking, this doctrine lacks a solid foundation in the text itself. The Constitution never explicitly limits what an amendment can do. Instead, the courts carved out this rule by interpreting the ‘spirit’ of the Preamble and the overall structure of the document. To critics, this is a bridge too far – it is seen as judges overstepping their bounds and legislating from the bench under the pretense of interpretation.

Problem regarding the consistency of the applicability of this Doctrine

Recent cases have revealed dangerous inconsistency. NJAC (2015): Parliament passes 99th Amendment with massive democratic support (2/3 majority + 16 State legislatures). NJAC would reform judicial appointments, reducing collegium opacity, adding transparency through Executive and eminent persons participation. Court strikes it down claiming “judicial independence” – basic structure is threatened. Justice Chelameswar dissented, arguing that his fellow judges mistakenly equated judicial independence (being free from external pressure) with ‘primacy’ (having sole control over the appointments). He contended that the (NJAC) proposal would not have harmed independence, rather it would have introduced accountability. However, the outcome was widely perceived as reinforcing judicial institutional autonomy.

Article 370 (2023): President abrogates Article 370 (J&K special status) under Article 370(3), dividing the state into two union territories. This destroys federalism’s asymmetrical structure – arguably violating basic structure doctrine established in S.R. Bommai vs Union of India (1994). Yet, the Supreme Court held it unanimously (7-0). Why? Reason: Article 370 was explicitly “temporary”, so its removal is Constitutionally permissible.

But this contradicts NJAC logic. If “temporary” amendments can be removed, why can’t parliament make judicial independence “temporary” via 2/3 majority? This divergence raises concerns that the doctrine’s application may be influenced by contextual and institutional considerations rather than a consistently articulated principle. Taken together, these outcomes risk creating an impression of heightened judicial assertiveness in institutional matters such as NJAC, alongside greater deference to executive authority in politically sensitive contexts like Article 370. This raises the concern that the doctrine may at times, reflect institutional self-preservation rather than a consistently articulated constitutional principle

The Vagueness of “Basic Structure”

The doctrine lacks a precise textual definition within the Constitution, Courts have never produced a closed list. In Kesavananda vs State of Kerala, Justice Khanna proposed a narrow list (democracy, supremacy), Justice Mathew and Chandrachud proposed broader categories. This ambiguity empowers judges to expand “basic structure” case – by – case. Is “environmental protection” basic? “Right to privacy”? “Secular Character”? Each expansion gives courts new veto power.

This lack of a clear definition for the doctrine allows judges to go too far. In National judicial Appointments Commission (NJAC) case, the court declared “judicial independence” a part of the basic structure – a classification that previous rulings hadn’t explicitly acknowledged. It is unclear if the original 13 – Judge bench in the landmark Kesavananda Bharti vs State of Kerala case ever meant for the doctrine to be used this broadly. Courts continue to stretch the doctrine’s boundaries, gradually gaining more power for themselves.

Compare this to the UK system: Parliament is the ultimate authority, and there is no list of “unamendable principles.” While this approach avoids giving judges veto power, it does run the risk of the government becoming tyrannical. India needs a balanced “middle path,” which requires discipline: the basic structure list should be kept narrow and firmly rooted in the actual text of the Constitution, not constantly expanded through judicial interpretation.

Case Analysis of NJAC and Article 370

NJAC (2015): Institutional Overreach

Facts:

Parliament passed 99th Amendment (2014), approved by 2/3 majority and ratified by 16 states. NJAC would replace collegium (opaque, judge controlled) with a commission: Chief Justice, two senior judges, Union Law Minister, and one eminent person. Goal: transparency and accountability in judicial appointments.

Argument for striking it down: 

• Judicial Independence (basic structure) requires judges final say on appointments.
• Non – Judges (especially executive) could manipulate appointments.
• Collegium, while imperfect, has maintained autonomy 30 years.

Arguments against striking down:

• Judicial independence does not mean judicial primacy. Independence means insulation from pressure, not exclusive control.
• NJAC added checks, not threats. Eminent person wasn’t executive agent.
• Collegium is opaque, unaccountable, undemocratic. NJAC was reform.
• Parliamentary approval shows democratic mandate.

Analysis:

Court voted (5 – 4) to strike. Narrow majority overruled supermajority democratic process. His suggests judicial overreach: judges substituted their institutional preference for democratic choice. No evidence NJAC threatened actual independence – only threatened judge’s monopoly on power.

Article 370 (2023): Doctrine Abandoned

Facts: August 2019, President abrogates Article 370, bifurcating J&K into two Union Territories. Constitutional challenge: violates federalism (basic structure). Article 370 was asymmetrical federalism – J&K’s special status enshrined post – independence. Unilateral removal (without state legislature consent) breaches federal compact.

Court’s reasoning:

• Article 370 explicitly (temporary) under Article 370(3).
• President has Constitutional power to remove it.
• Parliament has restructuring power, states not parliament.

Counter – argument (violated doctrine):

• If federalism is basic structure as enshrined in the case of S.R. Bommai vs Union of India (1994), unilateral downgrading violates it.
• Process matters: Article 3 (altering states) requires consideration’ Article 370 removal was unilateral.
• Asymmetrical federalism – core to federal compact – destroyed.

Analysis: (7 – 0) unanimous verdict abandoned doctrine where it should apply. Why did NJAC get (5 – 4) strike, but Article 370 got (7 – 0) approval? Inconsistency reveals doctrine’s true nature: flexible tool, not fixed principle. Courts protect their (NJAC) but defer to executive power (Article 370). Doctrine becomes political, not principled.

Suggestions and Way forward: 

To restore the balance between the judiciary and legislature in India, the current approach to the “basic structure” doctrine requires a few key changes:

1. Define Basic Structure more clearly: Instead of uncertain ideas like “fairness,” the core parts of the Constitution should be specifically defined based only on the text. This should include essential elements such as democratic governance and the rule of law.
2. Focus on the process: The Supreme Court should concentrate on ensuring amendments are passed correctly (following the procedure given in Article 368) rather than blocking them based on their content.
3. Require strong majorities for key changes: Amending the most fundamental parts of the Constitution should require more than a simple 2/3 majority in parliament. A 3/4 majority, plus approval from most of the state legislatures, might be able to ensure truly broad consensus, which will lead to the considerate use of the amending power.
4. Establish regular reviews: Instead of judges deciding what is “basic” case – by – case, a commission, of experts (including judges and lawmakers) could review these features every 10 years.
5. Adopt Judicial Restraint: The courts should only overrule an amendment only if it clearly violates the basic structure. The burden of proof should be on the courts to justify the intervention, not on the legislature to justify the amendment.

These adjustments aim to preserve the Constitution’s core protections while ensuring that the power to amend it remains largely democratic. 

Conclusion

The Basic Structure Doctrine was created to stop governments from using Constitutional amendments to gain too much power. While the 1973 Kesavananda Bharti vs State of Kerala case was a brave act of leadership, the doctrine has faced challenges over the last 50 years. Recent cases like the NJAC show that judicial decisions may at times, have the unintended effect of reinforcing institutional autonomy, while others like Article 370 suggest they might back away when the government is very strong. These inconsistencies can make the law feel unfair. To fix this, the doctrine should be clearly defined and focus more on following proper steps rather than just judging the content of a law. Balancing the power of elected leaders with the protection of constitutional values remains a central task for constitutional adjudication.