6.doctrine of Basic Structure
6.doctrine of Basic Structure
1
PLD 1963 SC 486
2
AIR 1965 SC 845
1
Constituent Assembly to give a permanency to the basic features of
the Constitution?”
3
AIR 1973 SC 1461
2
Article 79 lays down the procedure to amend the Basic Law by
supplementing a particular provision or expressly amending the
same. However, amendments to the Basic Law affecting the
principles laid down in Articles 1 and 20 or affecting the
division of federation i.e. participation of Centre and State in
the legislative process are inadmissible.
In the Kesavananda Bharati case (supra), Sikri, C.J. for laid down
the very first list of features - “discernible not only from the
Preamble but from the whole scheme of the Constitution” – that
would constitute the “basic foundation and structure” of the
Constitution:
1. Supremacy of the Constitution;
2. Republican and Democratic form of Government.
3. Secular character of the Constitution;
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4. Separation of powers between the Legislature, the
executive and the judiciary;
5. Federal character of the Constitution;
Other judges added the following to the list:
6. The dignity of the individual secured by the various
Fundamental Rights and the mandate to build a welfare
state contained in the directive principles;
7. The unity and the integrity of the nation;
8. Parliamentary System.
The Court also noted that the principle of free and fair elections is
an essential postulate of democracy, and which, in turn, is a part
of the basic structure of the Constitution. That democracy was an
4
AIR 1975 SC 2299
4
essential feature forming part of the basic structure. In this case
the Court struck down Clause (4) of Article 329A which provided
for special provision as to elections to Parliament in the case of
Prime Minister and Speaker, on the ground that it damaged the
democratic structure of the Constitution. That the said clause(4)
had taken away the power of judicial review of the courts as it
abolished the forum without providing for another forum for going
into the dispute relating to the validity of election of the Prime
Minister. It extinguished the right and the remedy to challenge the
validity of such an election. The complaints of improprieties,
malpractices and unfair means have to be dealt with as the
principle of free and fair elections in a democracy is a basic feature
of the Constitution, and thus, clause (4) was declared to be
impermissible piece of constitutional amendment.
However, the Court in this case also observed that “the concept of a
basic structure, as brooding omnipresence in the sky, apart from
specific provisions of the Constitution, is too vague and indefinite to
provide a yardstick to determine the validity of an ordinary law.”
In Minerva Mills Ltd. & Ors. v. Union of India & Ors.,5 discussing
the standard to be applied to what qualifies as the Basic Structure,
the Apex Court held that the “….The features or elements which
constitute the basic structure or framework of the
Constitution or which, if damaged or destroyed, would rob
the Constitution of its identity so that it would cease to be
the existing Constitution but would become a different
Constitution…. Therefore, in every case where the question arises
5
AIR 1980 SC 1789
5
as to whether a particular feature of the Constitution is a part of its
basic structure, it would have to be determined on consideration of
various factors such as the place of the particular feature in the
scheme of the Constitution, its object and purpose and the
consequence of its denial on the integrity of the Constitution as a
fundamental instrument of country's governance.” The Court further
held that the fundamental rights occupy a unique place in the lives
of civilised societies and have been variously described in our
Judgments as ‘transcendental’, ‘inalienable’ and ‘primordial’
6
AIR 1994 SC 1918
7
AIR 2007 SC 71
6
The framers of the Constitution have built a wall around the
fundamental rights, which has to remain forever, limiting the
ability of the majority to intrude upon them. That wall is a part of
basic structure.8
8 I.R. Coelho (dead) by L.R.s v. State of Tamil Nadu, AIR 2007 SC 861; See also
Kesavananda Bharati & Ors. v. State of Kerala & Anr., AIR 1973 SC 1461.
9 M. Nagaraj, Supra.
10 Ibid
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“They constitute the ark of the Constitution…… To destroy the
guarantees given by Part III in order purportedly to achieve the goals
of Part IV is plainly to subvert the Constitution by destroying its
basic structure”11.
11 M. Nagaraj, Supra.
12
AIR 2007 SC 861
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cannot abrogate all the lists as that would abrogate the federal
structure, which is one of the basic features of the Constitution.
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of the Constitution is sufficient to render the entire legislation ultra
vires the Constitution. The Court held that the basic structure of
the Constitution includes supremacy of the Constitution, the
republican and democratic form of Government, the federal
character of distribution of powers, secularism, separation of
powers between the Legislatures, Executive and the Judiciary, and
independence of the Judiciary13.
13 See also: Samsher Singh v. State of Punjab, AIR 1974 SC 2192; Union of India
v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193; and Naval Kishore Mishra v.
High Court of Judicature at Allahabad, AIR 2015 SC 1332.
14
AIR 2006 SC 3127
15
AIR 1993 SC 412
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unconstitutional, the Court reiterated that the Parliament was
empowered to provide that the Members are expected to act in
accordance with the ideologies of their respective political parties
and not against it.
16See also: Vaman Rao v. Union of India, AIR 1981 SC 271; Sub-Committee on
Judicial Accountability v. Union of India, AIR 1992 SC 320; Raghunath Rao v.
Union of India, AIR 1993 SC 1267; and Justice K S Puttaswamy v. Union of India,
AIR 2017 SC 4161.
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