Wow Wednesday : Evolution of Basic Structure Doctrine

Constitution provided a mechanism for parliament to amend the constitution in the form of article 368 but the nature and scope of this amending power was questioned in supreme court on multiple occasions. Supreme court gave a series of judgement which ultimately culminated in probably the most landmark judgement – Basic structure doctrine judgement.

They are very important for exam purposes (both prelims and mains) and in this article, we cover the most important supreme court judgment related with powers of parliament to amend the constitution-

  1. Shankari Prasad Case
  2. Sajjan Singh Case
  3. Golakh Nath Case
  4. Kesvananda Bharati Case
  5. Minerva Mills case
  6. I.R. Koelhi

Constitutional Provisions

  1. 1st amendment and 9th schedule
  2. 24th amendment
  3. 42nd amendment


His holiness, Kesavananda bharati, challenged before the supreme court, the validity of 29th CAA which inserted some laws in 9th schedule and affected property of his Hindu Mutt.

What else was at stake?

  1. Supreme court (R. C. Cooper case ) had struck down bank nationalization act of 1969 which had nationalized 14 major banks for illusory compensation though it conceded parliament’s right to nationalise banks in national interest.
  2. Supreme court had struck down abolition of privy purses which was a betrayal of solemn promise to erstwhile kings by Sardar Patel.

Supreme court could do all this as it had held in 1967 in Golaknath case that fundamental rights could not be abridged.

Before returning back to Kesavananda, Let’s take a look at the relevant provisions of the constitution and supreme court interpretation of the same.

  • Art 13(2) – Any LAW abridging fundamental rights mentioned in part 3 shall be null and void to the extent of contravention
  • Art 368 -Procedure to amend the constitution.
  • Art 19(f) – freedom to acquire hold on and dispose off property.
  • Art 31 – right to property

Both the rights were subject to reasonable restriction in public interest and restriction were subject to judicial review.

Soon after the coming into force of the constitution, states enacted land reform acts #Zamindars challenged them. #Patna high court declared Bihar act as unconstitutional for violating right to property #interim parliament passed 1st CAA.

  1. ART 31B created 9th schedule. Laws inserted under it by constitutional amendment were immune to judicial review.

Other provisions not imp for this article but imp for exams –

  1. Reasonable restrictions against  freedom of expression under art 19.
  2. To nullify judgment in State of Madras v. Champakam Dorairajan and giving effect to art 46 (promoting educational and economic interests of weaker sections) amplified article 15 (3)

Zamindars didn’t like it, not one bit. And here comes the 1st salvo

1. Shankari Prasad v Union of India

Challenged 1st CAA. What was the court’s judgment?

  1. Difference b/w constituent power and ordinary legislative power i.e. amendment not law for the purpose of article 13
  2. art 13 and 368 in conflict # apply DOCTRINE OF HARMONIOUS CONSTRUCTION # ART 13 not applicable to art 368

Govt 1-0 Zamindars

Govt passed 17th amendment and inserted more laws under 9th schedule ‘

Zamindars fired another salvo-

2. Sajjan Singh vs state of rajasthan

Supreme court sang Shankari prasad song again 

Govt 2-0 jamindars

But Justice Mudholkar was of the view that the every Constitution has certain features which are basic in nature and those features cannot be changed.

2 minority judgements ..utter confusion. And you can see seeds of basic structure were sown here.

Zamindars fired 3rd salvo

3. Golaknath v. State of Punjab

11 judge bench overturned earlier 2 verdicts by a slender majority of 6-5

Really? What was the logic given here?

  1. Nothing to suggest constituent power to be separate from legislative power and even if distinct, amending power not same as constituent power which is given only to constituent assembly i.e. amendment is law and subject to article 13
  2. Fundamental rights so sacrosanct and transcendental that they can not be abridged even if whole parliament unanimously decided to abridge them.

But it validated all previous land reform acts as nullifying them would create utter confusion

Govt angry – Zamindars angry

New landlords happy.

Loss – loss to defendants as well as petitioner.

Madam Indira was in power and she did not like  this . Not one bit.

Along came 24th amendment to neutralize GOLAKNATH JUDGEMENT

  1. Art 13 inapplicable to art 368
  2. Art 368 provided powers as well as procedure to amend the constitution
  3. Parliament by way of addition, variation or repeal can amend any provision of constitution
  4. President shall give assent to CA bills ( VERY VERY IMP FOR PRELIMS )

But madam Indira wouldn’t just stop here as Cooper judgment (Bank nationalization ) also had to be neutralized.

Smarting from this setback, Madam Indira ( the parliament, herself) passed 24th CAA to neutralise GOLAKNATH judgement. But there was also a small matter of reversing Copper judgment in bank nationalisation case so parliament passed 25th CAA.

  1. Art 19f delinked from 31, in effect parliament deciding compensation amount payable instead of courts.
  2. Art 31c  -inserted under which – art 39b and c, most socialist of DPSPs (equitable distribution and prevention of concentration of wealth respectively) precede over 7 freedoms (art 19 ), equality (14), property (31)
  3. Parliament’s power to determine if policy is to give effect to 39b and c not subject to judicial review.

29th CAA had put Kerala land reform act under 9th schedule and his holiness challenged the provisions and all hell broke loose.


Now the 4th salvo

4.  Kesvanada Bharati Case

A 13 judge bench is constituted and what does it do!

  1. Overturned Golaknath i.e. amendment not law, fundamental rights amendable, no implied limit under art 368 i.e. CAA 24 constitutional
  2. Art 25 invalid to the extent it takes away judicial review i.e. 39 b and c above 14, 19 and 31 but subject to judicial review

Most imp decision of all by slimmest of all 7-6 majority stated Parliament can amend any provision of the Constitution but the basic structure should not be destroyed, damaged or abrogated.

What’s the logic?

  1. Expression amendment did not encompass defacing the constitution such that it lost its identity.
  2. In the garb of amendment parliament can not rewrite the constitution.

Court gave relief to govt but reserved for itself power to review all amendment not just those that violate fundamental rights.


Indira Gandhi didn’t like the judgement one  bit. She (via the president) superseded 3 judges to appoint justice A.N. Ray as CJI.

Knives had been drawn and the battle was gonna be very bloody –

  • Navnirman movement of JP (Jayprakash) had gathered steam, Indira was on the back foot and along came the judgement of Allahabad High Court convicting Indira of corrupt electoral practices. Election was declared null and void and  6 years ban to contest election was imposed on her.
  • Supreme Court stayed it and allowed her to remain PM but not to draw salary or speak or vote in parliament.
  • Darkest chapter in democracy’ 21 month emergency was declared on 25th June 1975 without even consulting cabinet (44th amendment mande it mandatory for the president to have written advice of cabinet to declare emergency)

Indira Gandhi wasn’t to sit quiet.

CAA 39th – election of president, VP, PM and speaker beyond judicial review

Clownish Rajnarayan challenged the CAA 39.

5. Indira Gandhi v/s Raj Narain Case

For the 1st time supreme court applied basic structure doctrine and considered free and fair election and rule of law to be part of basic structure . #amending act invalidated.

Note here that 4 of the 5 judges on the bench had given dissenting judgment in Bharati case but still applied the same doctrine for supreme court judgment becomes law until overruled by bigger bench ( art 141 ).

Then how did Indira continue to be prime  minister and contest election again and not get banned for 6 years?

Supreme court accepted retrospective amendment to electoral law i.e. electoral malpractice of Indira was no longer a corrupt practice .

Find out for fun the charges against Mrs. Gandhi for which she was convicted and what a popular British magazine had to say about the judgement.

Along came the mini constitution i.e 42nd amendment act TO ELIMINATE IMPEDIMENTS TO THE GROWTH OF THE CONSTITUTION – 

  1. PART 4a fundamental duties
  2. Socialist,secular and integrity word to preamble
  3. New DPSPs were added

And for the purpose of this article  amendment to article 368 nullifying basic structure doctrine by adding amendments can’t be challenged in courts and parliament possessing unlimited power of amendment

4. All DPSPs to take precedence over all fundamental rights not just 39b and 39c.

And Minerva Textile mills of Karnataka fired the 5th and the last salvo

6. Minerva Mills v Union of India

SC unanimously struck down amendment to article 368 holding limited amending power and judicial review to be part of basic structure.

Court held that constitution is founded on the bedrock of balance b/w FRs and DPSPs. Goals set out by DPSPs have to be achieved without abrogation of means provided by FRs.

What’s the logic?

If a donee was vested with limited power, it could not be exercised to control that very power power and convert into unlimited one.


If a genie grants u 3 wishes, it is understood u can not, as one of the wish, ask for unlimited number of wishes !


Janta govt comes to power and 44th CAA  deletes art 31 (b)  right to property and 19 (f) freedom to acquire, hold and dispose of property as they were not considered part of basic structure

Right to property now a constitutional right under art 300A.

9th schedule and judicial review

7. I.R.Coelho vs state of TN

Supreme court held that acts placed under 9th schedule after basic structure subject would be subject to judicial review to the extent of those acts violating basic structure of constitution.

Impact of basic structure doctrine.

It certainly saved Indian democracy from degenerating into authoritarian regime during those testing times but it has also given immense untold unbridled power to supreme court and made it the most powerful court in the world .

As we would later see in the NJAC Verdict (let’s call it 4th judges case), Supreme court applied this doctrine, many would say for wrong reasons to strike down the act and kept for itself the power to appoint brother judges. In the original constitution only fetters on the power of parliament was art 13.

Relevance –  It was delivered at the time of single party rule both at the centre and most of the states. In the era of coalition politics no govt is going to wield so much power to destroy the constitution and then there is ever present danger of tyranny of unelected .

But only legitimate way to overturn the verdict would be a 15 judge bench so don’t hold your breath for that .

Now is the time for some thought  questions 

#1. Consider these 2 statements –

  1. Any LAW ie ordinary law violating  provisions  of constitution  would be declared null and void to to the extent of contravention.
  2. Any LAW violating art 13 would be declared null and void

Both statements are  true ..if amendments were not law, what was the purpose of art 13 (2) other laws would anyway be declared unconstitutional !

#2. Is basic structure doctrine relevant in the present political scenario where no single party is unlikely to enjoy majority in both the houses ?

#3. What should be the limits to amending power of parliament? Do u think for very substantial amendments instead of courts, people by way of referendum should determine whether amendment should go.through or not ?

#4. Whatever happens to original intent theory that constitutional courts have to interpret constitution in accordance with the implied intentions of founding fathers and there is enough evidence to suggest founding fathers thoughtfully kept FRs sacrosanct to prevent their abrogation or as we would see in a later article how supreme court by creative interpretation virtually changed procedure established by law in art 21 to due process of law while founding fathers deliberately kept expression as procedure established by law.



1. Shankari Prasad Case
  1. Constitutional amendment not law
  2. Art 13 not applicable to article 368
  3. Parliament can amend fundamental rights
2. Sajjan Singh Case Same story
3. Golak Nath case
  1. Constitutional amendment is law and subject to article 13
  2. Fundamental Rights transcendental and inviolable and the Parliament of had no power to take away FRs
4. Kesavananda Bharati Case
  1. Constitutional amendment not law
  2. No implied limits on power of parliament to amend the constitution including FRs
  3. Can’t amend basic structure
5. Minerva Mills case
  1. Limited amending power of parliament and judicial review part of basic structure
  2. Constitution founded on the bedrock of balance b/w FRs and DPSPs
6. I.R. Coelho case Acts placed under 9th schedule after basic structure doctrine are subject to judicial review


1st amendment
  1. Inserted 9th schedule to protect acts from judicial review
  2. Added restrictions on freedom of speech
42nd amendment (Mini Constitution)
  1. Socialist, Secular and Integrity words added to preamble
  2. New DPSPs – Equal justice and free legal aid; Participation of workers in management; protection of environment
  3. Part 4A – Fundamental duties
44th constitution
  1. Right to property removed from the list of FRs
  2. New DPSP- state to secure social order for welfare of people
  3. For emergency, internal disturbance word replaced by armed rebellion
  4. Written notice from cabinet to proclaim emergency by president

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By Dr V

Doctor by Training | AIIMSONIAN | Factually correct, Politically not so much | Opinionated? Yes!


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