Authored By: Priyanshi Sikhwal
Jai Narain Vyas University
Introduction
Every written Constitution faces a constitutional paradox that cannot be ignored: can the authority created by the Constitution acquire the power to destroy the Constitution itself? The answer to this question determines whether a Constitution remains the supreme law of the land or merely becomes a political document capable of being reshaped according to the preferences of temporary parliamentary majorities. The Indian constitutional experience illustrates this dilemma more vividly than perhaps any other constitutional democracy.
The framers of the Constitution deliberately avoided creating either an entirely rigid or an entirely flexible constitutional framework. They recognised that constitutional permanence without adaptability would eventually render the Constitution obsolete, while unlimited flexibility could permit the gradual dismantling of democratic institutions. Accordingly, Article 368 confers upon Parliament the power to amend the Constitution through a special constitutional procedure. The provision reflects the understanding that social transformation, economic development and institutional reforms often require constitutional modification. Nevertheless, Article 368 remains silent on an equally fundamental question: does the power to amend necessarily include the power to alter the very identity of the Constitution?
This constitutional silence generated decades of judicial disagreement regarding the relationship between parliamentary sovereignty and constitutional supremacy. While Parliament asserted that the constituent power extended to every provision of the Constitution, the judiciary increasingly questioned whether democratic legitimacy alone could justify amendments capable of abolishing constitutional guarantees such as judicial review, federalism, secularism or the protection of Fundamental Rights. The conflict reached its constitutional climax in Kesavananda Bharati v. State of Kerala (1973),[1] where the Supreme Court evolved the Doctrine of Basic Structure.
This article argues that the Doctrine of Basic Structure constitutes a constitutionally legitimate limitation upon Parliament’s constituent power. Although the doctrine is not expressly mentioned in the constitutional text, it derives its legitimacy from the constitutional philosophy underlying the Constitution itself. Far from weakening democracy, it preserves the constitutional conditions that make democratic governance possible. The discussion proceeds by examining the constitutional framework governing amendment powers, tracing the judicial evolution of the doctrine, critically evaluating the competing arguments surrounding its legitimacy, and assessing its continuing significance in contemporary constitutional governance.
Constitutional Framework: Amendment Power under Article 368
A Constitution derives its authority not merely from the institutions it establishes but from the principles it protects. Consequently, every constitutional system must determine the extent to which its foundational principles may be altered through constitutional amendment. The Indian Constitution addresses this issue through Article 368, which prescribes the procedure by which Parliament may exercise its constituent power to amend the Constitution.[2]
The constituent power exercised under Article 368 differs fundamentally from Parliament’s ordinary legislative authority. Ordinary legislation is enacted within the framework established by the Constitution, whereas constitutional amendments possess the capacity to alter that framework itself. This distinction demonstrates that constitutional amendments are not ordinary political acts but exercises of exceptional constitutional authority. By requiring special majorities, and in certain cases ratification by one-half of the State Legislatures, Article 368 reflects the framers’ intention that constitutional amendments should command a higher degree of democratic consensus than ordinary legislation.
However, while Article 368 clearly prescribes the procedure for amendment, it does not expressly define the substantive limits of Parliament’s constituent power. This omission gave rise to one of the most important constitutional controversies in independent India. Two competing constitutional philosophies emerged.
The first philosophy emphasised parliamentary supremacy. According to this approach, Parliament, being directly accountable to the electorate, should possess unrestricted authority to amend any constitutional provision. Constitutional rigidity, it was argued, would hinder democratic governance by preventing elected representatives from responding to changing social and economic realities. Supporters of this view maintained that constitutional evolution must ultimately remain under democratic control rather than judicial supervision.[3]
The second philosophy was founded upon constitutional supremacy. It recognised that although Parliament represents the will of the people, its authority itself originates from the Constitution. Consequently, the constituent power cannot logically extend to destroying the constitutional order from which it derives its legitimacy. If Parliament possessed unlimited amending power, it could theoretically abolish free elections, suspend judicial review, eliminate federalism, curtail Fundamental Rights or convert India into an authoritarian State through constitutional amendments alone. Such a possibility would undermine the very purpose of a written Constitution, namely, the limitation of governmental power through higher constitutional norms.[4]
This conflict reflects a deeper philosophical question concerning the nature of constitutional democracy. Democracy is frequently understood as government by the majority. However, modern constitutional democracies reject the proposition that majority rule alone constitutes democratic legitimacy. Instead, democratic governance operates within constitutional boundaries designed to protect individual liberty, institutional independence and the rule of law. The Constitution therefore functions not merely as a political charter but as a legal restraint upon all public authorities, including Parliament itself.
Dr. B. R. Ambedkar himself envisioned the Constitution as a dynamic document capable of responding to future developments. At the same time, he repeatedly emphasised the importance of constitutional morality, institutional responsibility and respect for constitutional limitations.[5] Although the Constituent Assembly did not expressly incorporate the Doctrine of Basic Structure, its debates reveal an underlying concern that constitutional governance must remain subject to principles transcending immediate political interests. The absence of explicit textual limitations within Article 368 therefore did not necessarily imply the existence of unlimited constituent power.
The constitutional uncertainty surrounding Article 368 was not resolved through legislative action but through judicial interpretation. Over the course of two decades, the Supreme Court repeatedly reconsidered the scope of Parliament’s amendment power, gradually moving from complete deference towards Parliament to the recognition that constitutional identity itself required judicial protection. The evolution of this constitutional dialogue eventually culminated in one of the most significant judicial pronouncements in Indian constitutional history—the Doctrine of Basic Structure.
III. Judicial Evolution: From Parliamentary Supremacy to Constitutional Supremacy
The Doctrine of Basic Structure did not emerge suddenly through a single judicial decision. Rather, it was the culmination of an evolving constitutional conversation between Parliament and the Supreme Court concerning the nature of constituent power. Each major constitutional case reflected a different judicial understanding of democratic governance and gradually shaped the doctrine that now defines Indian constitutionalism.
The first constitutional phase was characterised by judicial deference towards Parliament. In Shankari Prasad v. Union of India (1951),[6] the Supreme Court considered whether the First Constitutional Amendment, which affected the right to property, violated Article 13. The Court held that constitutional amendments enacted under Article 368 did not constitute “law” within the meaning of Article 13. Consequently, Parliament possessed the authority to amend any part of the Constitution, including Fundamental Rights. The judgment reflected an institutional preference for parliamentary autonomy and assumed that constitutional amendments, being expressions of constituent power, occupied a distinct position from ordinary legislation.
A similar approach was adopted in Sajjan Singh v. State of Rajasthan (1965).[7] Although the majority reaffirmed Parliament’s extensive amending power, the decision marked an important constitutional transition. For the first time, members of the Court expressed concern regarding the implications of unlimited constituent authority. Justice Mudholkar, in particular, questioned whether the Constitution possessed certain fundamental features that could not legitimately be destroyed through amendment. Although this observation did not determine the outcome of the case, it planted the intellectual foundations upon which the Basic Structure Doctrine would later develop.
The constitutional debate took a decisive turn in I.C. Golaknath v. State of Punjab (1967).[8] Departing from its earlier decisions, the Supreme Court held by a narrow majority that Parliament could not amend Fundamental Rights. The Court reasoned that constitutional amendments fell within the ambit of the term “law” under Article 13 and, therefore, any amendment abridging or taking away Fundamental Rights would be unconstitutional. The judgment reflected an attempt to provide greater protection to individual liberties by placing Fundamental Rights beyond the reach of Parliament. However, the decision also generated significant constitutional difficulties. If Parliament lacked the authority to amend Fundamental Rights under any circumstance, the Constitution would become incapable of responding to changing socio-economic realities. The judgment therefore protected constitutional rights but did so at the cost of substantially limiting democratic constitutional evolution.
The constitutional conflict created by Golaknath prompted Parliament to enact the Twenty-fourth Constitutional Amendment[9], which expressly affirmed Parliament’s power to amend any provision of the Constitution under Article 368. The amendment reignited the debate regarding the true nature and scope of constituent power, ultimately leading to the most significant constitutional case in Indian legal history—Kesavananda Bharati v. State of Kerala (1973).[10]
Decided by a Bench of thirteen judges, the largest ever constituted by the Supreme Court of India, Kesavananda Bharati represented far more than a dispute concerning property rights or land reforms. At its core, the case sought to answer a profound constitutional question: Can Parliament, while exercising its constituent power, alter the very identity of the Constitution from which that power originates? The Court rejected both constitutional extremes. It refused to accept the position adopted in Golaknath, which virtually prohibited Parliament from amending Fundamental Rights. Equally, it rejected Parliament’s claim that its amending power was legally unlimited. Instead, by a narrow majority, the Court evolved the Doctrine of Basic Structure, holding that while Parliament may amend every provision of the Constitution, it cannot alter or destroy its essential features.
The significance of Kesavananda Bharati lies not merely in the conclusion reached by the Court but in the constitutional philosophy that informed its reasoning. The judgment recognised that the Constitution is more than a collection of legal provisions; it embodies certain foundational principles that define the character of the Republic. Parliament undoubtedly possesses extensive powers to amend constitutional provisions, yet those powers derive their legitimacy from the Constitution itself. Consequently, the authority created by the Constitution cannot logically extend to destroying the constitutional framework from which it derives its existence. To permit otherwise would transform the amendment power into a power of constitutional replacement, a result fundamentally inconsistent with the idea of constitutional supremacy.[11]
An equally important aspect of the judgment was the Court’s refusal to prepare an exhaustive list of basic features. Instead, it identified certain principles—including the supremacy of the Constitution, republican and democratic government, secularism, federalism, separation of powers, judicial review and the rule of law—as integral to the constitutional identity of India, while leaving the doctrine sufficiently flexible to evolve through future constitutional adjudication.[12] Although this approach has often been criticised for introducing uncertainty, it also enabled the doctrine to respond to new constitutional challenges without requiring repeated constitutional reinterpretation.
The practical significance of the Doctrine of Basic Structure became evident during the constitutional developments that followed the declaration of the National Emergency in 1975. In Indira Nehru Gandhi v. Raj Narain (1975),[13] the Supreme Court examined the validity of the Thirty-ninth Constitutional Amendment, which sought to exclude the election of the Prime Minister from judicial scrutiny. The Court invalidated the amendment on the ground that free and fair elections, judicial review and the rule of law constitute essential features of the Constitution. The judgment demonstrated that the Doctrine of Basic Structure was not merely a theoretical limitation on Parliament but a practical constitutional safeguard capable of preventing the concentration of political power.
The doctrine received further judicial reinforcement in Minerva Mills Ltd. v. Union of India (1980),[14] where the Supreme Court considered the constitutional validity of provisions inserted by the Forty-second Constitutional Amendment. Parliament had attempted to enlarge its constituent power by declaring that no constitutional amendment could be questioned before any court and that there would be no limitation upon Parliament’s authority to amend the Constitution. Rejecting this assertion, the Court held that limited amending power itself forms part of the Basic Structure. This conclusion represented a significant constitutional development. Rather than merely identifying additional basic features, the Court recognised that the limitation upon Parliament’s constituent power is itself indispensable to constitutional governance. In effect, the judgment ensured that Parliament could not utilise Article 368 to abolish the very constitutional limitations imposed upon its authority.
Subsequent constitutional decisions further expanded and clarified the scope of the doctrine. In Waman Rao v. Union of India (1981),[15] the Supreme Court clarified the prospective operation of the Basic Structure Doctrine by holding that constitutional amendments enacted after Kesavananda Bharati would remain subject to judicial review on the ground of violating the Constitution’s basic structure. This decision sought to balance constitutional certainty with the need to preserve the authority of the doctrine in future constitutional disputes.
The doctrine acquired an even broader constitutional dimension in S.R. Bommai v. Union of India (1994).[16] Although the case primarily concerned the misuse of Article 356 relating to President’s Rule, the Supreme Court reaffirmed that secularism and federalism are indispensable features of the Constitution. The judgment demonstrated that the Basic Structure Doctrine extends beyond constitutional amendments and serves as an interpretative principle governing the exercise of constitutional powers. It reinforced the proposition that constitutional governance must remain faithful to the foundational values upon which the Republic is established.
A similar approach was adopted in I.R. Coelho v. State of Tamil Nadu (2007).[17] The principal issue before the Court concerned laws placed in the Ninth Schedule of the Constitution. Parliament had frequently utilised the Ninth Schedule to protect legislation from judicial review. The Supreme Court, however, held that even laws included within the Ninth Schedule after 24 April 1973 remain subject to judicial review if they violate the Basic Structure of the Constitution. The judgment reaffirmed that constitutional amendments cannot be employed as mechanisms for circumventing constitutional limitations or insulating legislative action from judicial scrutiny.
Collectively, these decisions demonstrate that the Doctrine of Basic Structure did not emerge as a sudden act of judicial innovation. Rather, it evolved gradually through constitutional adjudication as the Supreme Court sought to reconcile two competing constitutional imperatives: the necessity of democratic constitutional amendment and the preservation of constitutional identity. Each judgment contributed to refining the doctrine, transforming it from a judicial principle into the constitutional foundation upon which contemporary Indian constitutionalism rests.[18]
Critical Evaluation: Constitutional Necessity or Judicial Overreach?
The Doctrine of Basic Structure has generated one of the most enduring debates in Indian constitutional scholarship. While its supporters regard it as the ultimate guardian of constitutional democracy, its critics argue that it represents an unwarranted expansion of judicial authority. The constitutional legitimacy of the doctrine therefore depends upon whether it is viewed as an essential limitation upon governmental power or as an instance of judicial law-making beyond the constitutional text.
Supporters of the doctrine argue that its greatest contribution lies in preserving constitutional supremacy. A written Constitution derives its authority from the principle that governmental institutions remain subject to constitutional limitations rather than political expediency. If Parliament possessed unrestricted authority to amend every constitutional provision, it could legally abolish judicial review, suspend elections, eliminate federalism or curtail Fundamental Rights through constitutional amendments alone. Such a possibility would effectively transform the Constitution into an ordinary political instrument, undermining the distinction between constitutional government and legislative absolutism.
The doctrine also reinforces the principle of separation of powers. Constitutional democracy does not permit the concentration of unlimited authority within a single institution. Parliament undoubtedly represents the democratic will of the people; however, democratic legitimacy itself is strengthened when governmental institutions remain accountable to constitutional principles rather than transient political majorities. Judicial review, therefore, should not be understood as an obstacle to democracy but as an institutional mechanism that preserves the constitutional conditions necessary for democracy to survive.
However, the constitutional legitimacy of the Doctrine of Basic Structure cannot be evaluated solely by examining its advantages. The doctrine has also attracted sustained criticism from constitutional scholars, political theorists and even members of the judiciary. The most significant criticism concerns its apparent absence from the constitutional text. Article 368 prescribes the procedure for constitutional amendment but nowhere expressly states that Parliament’s constituent power is subject to substantive limitations. Critics therefore contend that the Supreme Court, through Kesavananda Bharati, effectively inserted restrictions into the Constitution that the framers themselves did not include. From this perspective, the doctrine represents an instance of judicial creativity that extends beyond the legitimate function of constitutional interpretation.[19]
A related criticism concerns the doctrine’s indeterminate nature. The Supreme Court deliberately refrained from providing an exhaustive catalogue of the features constituting the Basic Structure, preferring instead to identify them gradually through constitutional adjudication. Although this approach provides flexibility, it has also generated uncertainty. The absence of a definitive list enables the judiciary to recognise new basic features over time, raising concerns that constitutional limitations may expand according to judicial preference rather than constitutional text. Such uncertainty, critics argue, weakens the principle of legal certainty, which itself is an essential component of the rule of law.[20]
The doctrine has also been criticised on democratic grounds. Parliament consists of representatives elected by the people, whereas judges are appointed rather than elected. Consequently, allowing the judiciary to invalidate constitutional amendments enacted by Parliament appears, at first glance, inconsistent with democratic accountability. Critics therefore argue that constitutional policy should ultimately be determined by elected institutions rather than judicial interpretation. According to this view, disagreements regarding constitutional amendments ought to be resolved through democratic processes instead of judicial intervention.[21]
While these criticisms raise legitimate constitutional concerns, they do not necessarily invalidate the doctrine itself. Constitutional interpretation has never been confined to literal textual analysis. Fundamental constitutional concepts such as equality, liberty, due process and reasonableness have acquired substantive meaning through judicial interpretation over several decades. The Constitution contains broad principles rather than exhaustive definitions, and it is the function of constitutional adjudication to give practical content to those principles when disputes arise. The Doctrine of Basic Structure may therefore be understood not as judicial legislation but as an interpretative principle derived from the constitutional commitment to limited government and constitutional supremacy.
Furthermore, the doctrine does not prevent Parliament from amending the Constitution. India has witnessed more than one hundred constitutional amendments since the Constitution came into force, many of which have survived judicial scrutiny. The doctrine merely prevents amendments that fundamentally alter the constitutional identity of the Republic. Consequently, it limits the abuse of constituent power rather than the exercise of constitutional amendment itself. The distinction is significant because it demonstrates that the doctrine seeks to preserve constitutional continuity rather than constitutional rigidity.
Perhaps the greatest contribution of the doctrine lies in its ability to reconcile two seemingly conflicting constitutional ideals. Democracy requires constitutional adaptability so that future generations may respond to changing political and social conditions. Simultaneously, constitutionalism requires certain enduring principles that remain insulated from temporary political majorities. The Basic Structure Doctrine attempts to preserve this equilibrium by recognising Parliament’s extensive amending power while ensuring that constitutional evolution does not become constitutional destruction. Rather than privileging either Parliament or the judiciary, the doctrine establishes a constitutional dialogue in which democratic governance remains subject to constitutional discipline.
Comparative Perspective
A comparative examination of constitutional systems demonstrates that India’s approach to constitutional amendment is neither unique nor unprecedented. Different constitutional democracies have adopted distinct mechanisms to ensure that constitutional change does not undermine constitutional identity.
The United Kingdom traditionally follows the doctrine of parliamentary sovereignty. Since the British Constitution is largely unwritten and Parliament is considered legally supreme, no judicial doctrine comparable to the Basic Structure Doctrine has developed. Constitutional change occurs primarily through legislation enacted by Parliament. While this model provides considerable constitutional flexibility, it depends heavily upon constitutional conventions and political accountability rather than judicially enforceable constitutional limitations.[22]
Germany adopts a markedly different constitutional approach. Article 79(3) of the German Basic Law,[23] commonly referred to as the “Eternity Clause,” expressly prohibits constitutional amendments affecting certain foundational principles, including federalism, democracy, the rule of law and the protection of human dignity. Unlike India, where substantive constitutional limitations have been developed judicially, Germany incorporates such limitations directly within the constitutional text. Both systems, however, share a common constitutional objective: preserving the fundamental identity of the Constitution against the possibility of democratic self-destruction.
The United States Constitution adopts yet another model. It does not recognise a judicial doctrine equivalent to India’s Basic Structure Doctrine. Instead, constitutional stability is ensured through an exceptionally rigorous amendment procedure requiring broad political consensus. Amendments must secure approval from two-thirds of both Houses of Congress and ratification by three-fourths of the States.[24] Consequently, constitutional change remains possible but politically difficult, reducing the likelihood of frequent or impulsive constitutional alteration.
India’s constitutional model occupies a distinctive middle position. It combines a relatively flexible amendment procedure with judicially enforceable substantive limitations. This hybrid approach reflects India’s unique constitutional history, social diversity and commitment to constitutional supremacy. Rather than replicating either parliamentary sovereignty or absolute constitutional rigidity, the Indian constitutional framework attempts to preserve democratic adaptability without sacrificing the Constitution’s essential identity.
Conclusion
The Doctrine of Basic Structure remains one of the defining features of Indian constitutional jurisprudence because it addresses a question that lies at the heart of every constitutional democracy: can constitutional amendment extend to constitutional destruction? Through a gradual process of constitutional adjudication, the Supreme Court answered this question in the negative by recognising that Parliament’s constituent power, although extensive, cannot extend to altering the Constitution’s fundamental identity.
This article has demonstrated that the doctrine evolved neither as an arbitrary judicial innovation nor as an attempt to undermine democratic governance. Rather, it emerged from the necessity of reconciling two equally important constitutional values—the democratic legitimacy of Parliament and the supremacy of the Constitution. The judicial decisions from Shankari Prasad to I.R. Coelho reveal a progressive constitutional dialogue in which the Supreme Court sought to preserve both constitutional flexibility and constitutional continuity. While criticisms concerning judicial overreach and textual legitimacy deserve serious consideration, they do not outweigh the constitutional dangers associated with unrestricted constituent power.
The continuing relevance of the Doctrine of Basic Structure lies in its recognition that constitutional democracy is sustained not merely by electoral majorities but by enduring constitutional principles. Democracy, federalism, judicial review, secularism, the rule of law and the protection of Fundamental Rights constitute the constitutional foundations upon which the legitimacy of every public institution ultimately depends. By ensuring that these foundational principles remain beyond the reach of transient political majorities, the doctrine strengthens rather than weakens India’s constitutional democracy. It therefore continues to serve as the constitutional conscience of the Republic, preserving the identity of the Constitution while allowing its orderly evolution in response to the needs of future generations.
Reference(S):
Primary Sources
Constitution of India, 1950.
Shankari Prasad v. Union of India, AIR 1951 SC 458.
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.
I.C. Golaknath v. State of Punjab, AIR 1967 SC 1643.
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1.
Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625.
Waman Rao v. Union of India, (1981) 2 SCC 362.
S.R. Bommai v. Union of India, (1994) 3 SCC 1.
I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1.
Secondary Sources
Books
M.P. Jain, Indian Constitutional Law (LexisNexis).
J.N. Pandey, The Constitutional law, 59th edition
H.M. Seervai, Constitutional Law of India.
Granville Austin, Working a Democratic Constitution: The Indian Experience (Oxford University Press).
[1] Kesavananda Bharati v State of Kerala (1973) 4 SCC 225
[2] The Constituion of India, Article 368.
[3] H.M. Seervi, Constitutional law of India: A Critical Commentary.
[4] Kesavananda Bharati v State of Kerala (n 1): Doctrine of basic structure
[5] Constituent Assembly Debate
[6] Sri Shankari Prasad Singh Deo v Union of India [1951] AIR 458 (SC).
[7] Sajjan Singh v State of Rajasthan AIR 1965 SC 845
[8] I.C. Golaknath v State of Punjab [1967] AIR 1643
[9] The Constitution (Twenty-Fourth Amendment) Act 1971.
[10] Kesavananda Bharati (n 1)
[11] Seervi (n 3)
[12] J.N. Pandey, The Constitutional law, 59th edition
[13] Indira Nehru Gandhi v Shri Raj Narain (1975) 2 SCC 159.
[14] Minerva Mills Ltd v Union of India (1980) 3 SCC 625
[15] Waman Rao v Union of India (1981) 2 SCC 362
[16] S.R. Bommai v. Union of India (1994) 3 SCC 1
[17] I.R. Coelho (Dead) by LRs v State of Tamil Nadu (2007) 2 SCC 1
[18] Kesavananda Bharati (n 1) and Minerva Mills (n 14)
[19] Devika Saini, Indian journal of law and legal research
[20] M.P. JAIN, Indian Constitutional law, 9th edition.
[21] Upendra Baxi, The Avatars of Indian Judicial Activism
[22] A.V. DICEY, Introduction to the study of the Law of the Constitution
[23] Basic Law for the Federal Republic of Germany, Article 79(3).
[24] Constitution of the United States, Article V
