The Birth of the Basic Structure Doctrine

The story of the birth of the basic structure doctrine is a familiar one. Yet, it is worth recalling some aspects of that story to frame the discussion that will follow. The Indian Constitution occupies the ‘middle ground’ in terms of amendment diffi­culty.^[613] Although many provisions of the constitution can be amended based on a two-thirds majority of both Houses of Parliament, amendments to some constitu­tional provisions concerning federal matters require ratification by the legislatures of at least half of the states.

The Constitution, including the chapter on fundamental rights, was amended on close to 25 occasions in the first two decades of its existence. Frequent constitu­tional amendments by Congress governments gave rise to one of the most politi­cally loaded questions of Indian constitutional law, as courts began considering whether there were any limitations at all on Parliament’s power to amend the Constitution. Article 13(2) of the Constitution proscribes the state from making ‘any law which takes away or abridges the rights conferred’ by Part III of the Constitution. The debate over the scope of the amending power was framed in the context of whether the term ‘law’ in Article 13 also included constitutional amendments. If it did, then that would mean that Parliament lacked the constitu­tional authority to amend fundamental rights, as it had been doing soon after the Constitution was enacted.^[614]

When the Supreme Court was first confronted with this question, it decided that ‘law’ did not include constitutional amendments, paving the way for Parliament to amend any part of the Constitution, including the chapter on fundamental rights.^[615] Thirteen years later, while the Court arrived at the same conclusion, two judges expressed skepticism about its correctness.

A few years later, the question was referred to a bench of 11 judges of the Supreme Court in Golak Nath.^[618] Aggrieved by the impact of land reform legisla­tion, several litigants led writ petitions in the Supreme Court. They claimed that such legislation, along with certain constitutional amendments that protected the legislation, should be struck down for breaching their fundamental rights.

On this occasion, by a thin majority of 6 to 5, the Supreme Court held that con­stitutional amendments were ‘law’ within the purview of Article 13(2), effectively rendering the fundamental rights chapter of the Constitution inviolate. However, the Court applied the doctrine of ‘prospective overruling’ to soften the blow, and avoid the disruption that they expected would follow the invalidation of existing con­stitutional amendments and the statutes on which they were based.

In 1973, Golak Nath was reconsidered by an unprecedented 13-judge bench of the Supreme Court in Kesavananda Bharati v State of Kerala}⁵ This case arose out of six writ petitions challenging land redistribution legislation and the constitutional amendments that protected it. Eleven separate opinions were delivered in the case. While there was some controversy about whether any majority opinion is deducible from the case,^{[619] [620] subsequent judgments of the Supreme Court interpret the judgment in this way: although the term ‘law’ in Article 13(2) does not include constitutional amendments and that Parliament can amend any part of the Constitution (including Part III), the power of amendment under Article 368 of the Constitution does not include the power to alter, abrogate, or destroy the basic structure of the Constitution.}

Thus, the ‘basic structure’ doctrine (also referred to as the ‘basic features’ doctrine and the ‘essential features’ doctrine) postulates that although Parliament may amend any part of the Constitution, an amendment that destroys, alters, or abrogates its basic structure can be struck down as an unconstitutional constitu­tional amendment.

Kesavananda attracted immediate attention not only for its novel doctrine, but also as an act of astute political craftsmanship. The Court conceded the battle to Indira Gandhi’s government by overturning Golak Nath and upholding the validity of almost every amendment that was challenged (barring an ouster of judicial review in Article 31C), while also arrogating to itself the power to test the validity of any constitutional amendment enacted going forward.^[622] The decision was largely driven by textualist underpinnings, as many of the judges in the majority and minority based their reasoning on the language of the amendment clause.^[623] Justice Khanna’s influential judgment noted that the word ‘amendment’ necessarily implied that the Constitution, post-amendment, would continue to subsist without a loss of identity. In the minority, Justices Ray and Chandrachud relied on the very same language in the amendment clause to argue that no change was beyond the reach of Parliament.

In Minerva Mills v Union of India,^[624] the Supreme Court decisively shifted to a structuralist interpretation of the Constitution. In a sweeping constitutional amendment, Indira Gandhi’s government attempted to overturn the basic structure doctrine by adding a provision to the amendment clause categorically stating that ‘no amendment of this Constitution... made or purporting to have been made under this article... shall be called in question in any court on any ground’. To make the position even clearer, the amendment clause also ‘declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article’.^[625]

If the Court persisted with a purely textualist understanding of the basic structure doctrine, this amendment would have been decisive.

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