Basic structure doctrine: what Parliament cannot change

Imagine a government with a large majority deciding to cancel elections, abolish the courts or delete the Fundamental Rights, and doing it simply by amending the Constitution. Could it? In India, the answer is no. The reason is the basic structure doctrine.

This idea, created by the Supreme Court, works quietly in the background, but it shields every citizen's freedom.

Parliament's power to amend

Art 368 gives Parliament the power to amend the Constitution. Most amendments need a special majority in both Houses: two-thirds of members present and voting, and more than half the total membership. Amendments touching the federal structure, such as the powers of states or the judiciary, also need ratification by at least half the state legislatures.

The Constitution has been amended more than a hundred times. The question is whether there is any limit on this power.

How the doctrine was born

In the 1950s and 1960s Parliament amended the Constitution to carry out land reforms, and the amendments were challenged for cutting down the right to property. In Shankari Prasad (1951) and Sajjan Singh (1965) the Supreme Court held that Parliament could amend Fundamental Rights. In I.C. Golaknath v. State of Punjab (1967) it reversed course and held that Parliament could not take away or abridge Fundamental Rights at all. Parliament replied with the 24th Amendment, 1971, declaring that it could amend any part of the Constitution.

The dispute reached a bench of 13 judges in Kesavananda Bharati v. State of Kerala, decided on 24 April 1973, the largest bench in the Court's history. By 7 to 6 the Court held that Parliament can amend any part of the Constitution, including Fundamental Rights, but cannot alter or destroy its basic structure. Parliament may renovate the house; it cannot demolish the foundations.

What forms the basic structure

The Constitution does not list the basic structure. The Supreme Court identifies its features case by case. Features recognised in different judgments include:

• the supremacy of the Constitution and the rule of law;
• democracy and free and fair elections;
• the republican and secular character of the State;
• separation of powers between legislature, executive and judiciary;
• federalism;
• judicial review, meaning the power of courts to examine whether laws and actions are constitutional;
• independence of the judiciary;
• the balance between Fundamental Rights and Directive Principles;
• Parliament's limited power to amend;
• the essence of Fundamental Rights, including equality and the dignity and liberty of the individual.

The doctrine in action

• Indira Nehru Gandhi v. Raj Narain (1975): the Court struck down a constitutional amendment that placed the Prime Minister's election beyond any court's review. Free and fair elections are part of the basic structure.
• Minerva Mills v. Union of India (1980): the Court struck down parts of the 42nd Amendment, 1976 that gave Parliament unlimited amending power and made all Directive Principles override Fundamental Rights.
• S.R. Bommai v. Union of India (1994): secularism and federalism are basic features; dismissals of state governments under Art 356 can be judicially reviewed.
• I.R. Coelho v. State of Tamil Nadu (2007): laws placed in the Ninth Schedule after 24 April 1973 can still be tested against the basic structure, so the Schedule is no longer a safe vault.
• Supreme Court Advocates-on-Record Association v. Union of India (2015): the 99th Amendment and the National Judicial Appointments Commission were struck down for undermining judicial independence.

The doctrine is debated. Critics say unelected judges should not limit elected representatives; supporters reply that a constitution exists precisely to bind power. Courts have applied it sparingly.

Step by step: challenging a law or amendment

You will probably never file a basic structure case yourself. But the route by which a citizen challenges an unconstitutional law is the same, and it is open to anyone affected.

1. Identify the harm to you. Courts normally hear a person whose rights are affected. Note exactly what the law or order does to you, with dates and documents. Public-spirited citizens can also file a public interest litigation (PIL) for a wider harm.
2. Use what the law provides. If the statute gives an appeal or a representation, use it and keep the acknowledgment, unless the challenge is to the law itself.
3. Get legal advice. Call 15100 or visit the District Legal Services Authority. Constitutional challenges usually need an experienced lawyer; legal aid can provide one, and the High Court Legal Services Committee handles High Court matters.
4. File a writ petition. In the High Court under Art 226, or the Supreme Court under Art 32 if a Fundamental Right is involved. The petition names the law or amendment, the article of the Constitution it violates, and the relief sought, usually a declaration that the provision is void and an interim stay.
5. Expect a long road. Constitutional cases can take years. Interim orders can protect you in the meantime.
6. Use the democratic route too. Write to your MP or MLA, give evidence to the parliamentary committee examining a bill, and respond to public consultations. Many bad provisions are changed before they ever reach a court.