KLE Law Journal 33

THE BASIC STRUCTURE DOTRINE

POST-GLOBALIZATION: A CRITIQUE

Dr. Sandeep S. Desai*

1. Introduction

The “Basic Structure Doctrine” is a judge-made doctrine where certain features

of the Constitution of India are beyond the limit of the amending powers of the
Parliament of India. On Feb 27, 1967, a Special Bench of 11 Judges had held in
the case of Golaknath v. State of Punjab1, that “Parliament has no power to amend
Part III of the Constitution so as to take away or abridge the fundamental rights”.
On April 24, 1973, a Special Bench comprising 13 Judges of the Supreme Court of
India held that Article 368 of the Constitution “does not enable Parliament to alter
the basic structure or framework of the Constitution”. Though the court overruled
the decision in Golaknath and held that even fundamental rights may be amended,
it also held that certain elements of the constitution cannot be amended. It then
propounded what has come to be known as “the basic structure doctrine”. The
GRFWULQHZDVLQWURGXFHGLQ,QGLDIRUWKH¿UVWWLPHE\-XVWLFH0XGKRONDULQWKHFDVH
of Sajjan Singh,2 when he used the phrase, “basic feature of the Constitution” to
argue that there are certain features of the Constitution that cannot be amended by
the Parliament through its amending powers under Art. 368 of the Constitution.
Justice Mudholkar drew upon the Pakistan Supreme Court’s decision in Fazlul
Quader Chowdhry v. Mohd Abdul Haque,3 which had used the basic structure
doctrine previously. The political context for the rise of the basic structure was
an attempt by the government to shield certain land laws from judicial scrutiny.
After the death of Pt. Jawaharlal Nehru, the Congress party, under the guidance of
Mrs. Indira Nehru Gandhi, was committed to bring about land reforms in the country
which caused widespread social inequities in the country. The government through

*Associate Professor, School of Law, Christ University, Bengaluru.

௘6&5
1

௘$,56&
2

௘Fazlul Quader Chowdhry v. Mohd Abdul Haque, 1963 PLC 486.

3
 KLE Law Journal 34

Art. 31, placed these laws in the Ninth Schedule which could not be challenged in
a court of law on the ground that they violated the fundamental rights of citizens.4
The most aggrieved among various classes were the propertied class who felt that
the Parliament is acting ultra virus Indian constitution and subsequently, property
owners challenged the constitutional amendments which placed land reform laws
in the Ninth Schedule before the Supreme Court, saying that they violated Article
13(2) of the Constitution

2. Golaknath and Keshawananda Bharati verdict

In 1967, an eleven-judge bench of the Supreme Court headed by Chief Justice

Koka Subba Rao, put forth the curious position that, Art.368 did not confer upon
the Parliament the power to amend the Constitution. Thus, the apex court held
that the amending power and legislative powers of the Parliament were essentially
the same. Therefore, any amendment of the Constitution must be deemed law as
understood in Article 13 (2). In 1973, the largest Constitutional Bench of 13 Judges,
heard arguments in Kesavananda Bharati v. State of Kerala.5 The Supreme Court
reviewed the decision in Golaknath v. State of Punjab6, and considered the validity
of the 24th, 25th, 26th and 29th Amendments. The Court held that although no part
of the constitution, including fundamental rights, was beyond the amending power
of Parliament, the “basic structure of the Constitution could not be abrogated even
by a constitutional amendment”.7

Nine judges signed a statement of summary for the judgment that reads:

1) Golaknath’s case is over-ruled.

2) Article 368 does not enable Parliament to alter the basic structure or
framework of the Constitution.

 7KH &RQVWLWXWLRQ 7ZHQW\IRXUWK $PHQGPHQW $FW 7ZHQW\¿IWK

Amendment) Act, 1971 is valid.

௘
Ibid
5
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
6
௘Supra Note 1.
7
௘ Ibid, Bhandari, M.K., Basic Structure of the Indian Constitution: A critical reconsideration (Deep and Deep
Publications 1993); Bhagwati, P.N., “Judicial activism and public interest litigation,” 23 Colum. J. Transnat’l L
561 (1984).
 KLE Law Journal 35

4) The Constitution (Twenty-ninth Amendment) Act, 1971 is valid.

The court held that Parliament could not use its amending powers under Article
368 to ‘damage’, ‘emasculate’, ‘destroy’, ‘abrogate’, ‘change’ or ‘alter’ the ‘basic
structure’ or framework of the Constitution. Basic Features of the Constitution
according to the Keshavanada verdict were laid out separately by each judge based
on what he thought were the basic or essential features of the Constitution.

Sikri, C.J. explained that the concept of basic structure included:

1. Supremacy of the Constitution.

2. Republican and democratic form of government.

3. Secular character of the Constitution.

4. Separation of powers between the legislature, executive and the judiciary.

5. Federal character of the Constitution.

Shelat, J. and Grover, J. added three more basic features to this list:

1. The mandate to build a welfare state contained in the Directive Principles

of State Policy.

2. Unity and integrity of the nation.

3. Sovereignty of the country.

+HJGH - DQG 0XNKHUMHD - LGHQWL¿HG D VHSDUDWH DQG VKRUWHU OLVW RI EDVLF
features:

1. Sovereignty of India.

2. Democratic character of the polity.

3. Unity of the country.

4. Essential features of the individual freedoms secured to the citizens.

5. Mandate to build a welfare state.

 KLE Law Journal 36

Jaganmohan Reddy, J. stated that elements of the basic features were to be

found in the Preamble of the Constitution and the provisions into which they
translated such as:

1. Sovereign democratic republic.

2. Justice - social, economic and political.

3. Liberty of thought, expression, belief, faith and worship.

4. Equality of status and the opportunity.

5. Basic Features of the Constitution according to the Keshavanada, case

verdict of each judge laid out separately, what he thought were the basic
or essential features of the Constitution.

Khanna J. whose decision was the deciding factor as far as the existence of the
basic structure and amendability of the constitution was concerned, saw the
following as parts of the basic structure.

1. Implied restrictions on amending power.

2. Supremacy of fundamental rights above all.

3. Justice Khanna, held that the word “amendment’ meant to change or alter.

4. Amendment could not mean completely defacing or abrogating a particular

document.

5. This rationale in turn became the backbone on which the basic structure
doctrine was formulated.

Nani Palkhivala, the counsel for the mutt (Keshavananda Bharti) argued that,
the Parliament having unfettered power to amend the constitution would render the
document null and void.8 There must be some restraint on the amending power of the
parliament. Certain principles of the constitution like rule of law and fundamental
rights were sacrosanct and could not be touched. Ray, C.J. convened a 13-judge
bench to review the Kesavanada verdict on the pretext of hearing a number of

8
௘6KXNOD91DQG6LQJK'.V.N. Shukla’s Constitution of India (Eastern Book Company 1982); Krishnaswamy,
S., Democracy and constitutionalism in India: a study of the basic structure doctrine (Oxford University Press
2011); Bhandari, M.K., Basic Structure of the Indian Constitution: A critical reconsideration (Deep and Deep
Publications 1993); Neuborne, B., “The Supreme Court of India”, 1 Int’l J. Const. L., 476 (2003).
 KLE Law Journal 37

petitions relating to land ceiling laws. The petitions contended that the application
of land ceiling laws violated the basic structure of the Constitution. Meanwhile,
Prime Minister Indira Gandhi refused to accept the dogma of basic structure, N.N.
Palkhivala, appearing on behalf of a coal mining company, argued against the
move to review the Kesavananda decision.9 Ultimately, Ray, C.J. dissolved the
bench after 2 days of hearing. The declaration of a National Emergency in June
1975 and the consequent suspension of fundamental freedoms, including the right
to move courts against preventive detention, diverted the attention of the country
from this issue. One certainty that emerged out of this tussle between the parliament
and the judiciary is that all laws and constitutional amendments are now subject to
judicial review and laws that transgress, the basic structure are to be struck down
by the Supreme Court.

3. Economic libralization and effect of the New Economic Policy of 1991

The process of economic liberalization in India includes the ongoing economic

reforms in the country that began in the year 1991. This process can be traced back
WRWKHODWHVFRQWLQXHGLQWKHVWKURXJKIUHVKLGHRORJLFDOLQÀXHQFHVDQG
partly through the observation of faster growth in many East Asian economies.
Such observations prompted India’s economic policy makers began to seriously
attempt, some changes in the overall approach to the role of government in the
country’s economic development, introducing some liberalization in the trade
regime, loosening of domestic industrial controls, and promotion of investment
in modern technologies for areas such as telecommunications and information
technology, automobiles etc., In 1991, India faced a severe balance of payments
crisis, and this circumstance became the occasion for a substantial advance in the
pace and nature of economic reforms that were being attempted. In particular,
the major steps taken was further trade liberalization, in the form of reductions
in tariffs and conversion of quantitative restrictions to tariffs, and sweeping away
a large segment of restrictions on domestic industrial investment. These two
changes in the early 1990s have come to symbolize or coin the term ‘economic
reform’ in India. It was only in 1991, the Government signalled a systemic shift

௘0HKWD3%³,QGLD¶VMXGLFLDU\7KHSURPLVHRIXQFHUWDLQW\´The Supreme Court Versus the Constitution: A

9

Challenge to Federalism, 155-177(2006); Bhagwati, P.N., “Judicial activism and public interest litigation” 23
Colum. J. Transnat’l L., 561(1984).
 KLE Law Journal 38

WRDPRUHRSHQHFRQRP\E\FKDQJLQJLWVHFRQRPLFSROLFLHVGXHWR¿QDQFLDOFULVLV
and pressure from international organizations, like the World Bank and IMF.
There was greater reliance upon market forces, a larger role for the private sector
including foreign investment, and a restructuring of the role of Government.10
'XULQJ WKLV SHULRG ZKLOH JURZWK DFFHOHUDWHG SDVW ¿YH SHU FHQW  LW FDPH DW
the cost of macroeconomic imbalances which worsened at the beginning of the
V 7KH SROLF\ FKDQJHV FDQ EH UHYLHZHG LQ ¿YH PDMRU DUHDV FRYHUHG E\ WKH
UHIRUPSURJUDPPH¿VFDOGH¿FLWUHGXFWLRQLQGXVWULDODQGWUDGHSROLF\DJULFXOWXUDO
policy, infrastructure development and social sector development. It is however,
pertinent to note that since the economic reforms of 1991, the liberalisation of
the Indian economy has continued in the same manner, barring a few questions
that have been constantly raised regarding the control over exercise of power
by the government. These questions however become extremely relevant when
considering the balance that must be maintained between government control and
rights of the citizens. Thus, the economic reforms initiated in 1991 introduced far-
reaching measures, which changed the working and machinery of the economy.
These changes were pertinent to the following:

‡ Dominance of the public sector in the industrial activity.

‡ Discretionary controls on industrial investment and capacity expansion.

‡ Trade and exchange controls.

‡ Limited access to foreign investment.

‡ 3XEOLFRZQHUVKLSDQGUHJXODWLRQRIWKH¿QDQFLDOVHFWRU

One could say that these reforms have unlocked India’s enormous growth
potential and unleashed powerful entrepreneurial forces. Since 1991, successive
governments, across political parties, have successfully carried forward the
country’s economic reform agenda.

The most visible and important component of the reforms so far has been the
relaxation of various internal and external controls on private economic activity,
WKH³OLFHQVHSHUPLWTXRWDUDM´$VLJQL¿FDQWREMHFWLYHRIWKLVOLEHUDOL]DWLRQKDVEHHQ

௘$JKLRQ3%XUJHVV55HGGLQJ6-DQG=LOLERWWL)³7KHXQHTXDOHIIHFWVRIOLEHUDOL]DWLRQ(YLGHQFHIURP
10

dismantling the License Raj in India”, 98(4) The American Economic Review, 1397-1412(2008).
 KLE Law Journal 39

DFKLHYLQJ JUHDWHU HI¿FLHQF\ LQ UHVRXUFH DOORFDWLRQ DQG UHLQWHJUDWLRQ RI ,QGLD¶V
economy with that of the rest of the world. The economic reforms introduced in
India in the year 1991 focused on trade policy/external sector; industrial policy;
LQIUDVWUXFWXUDO VHFWRU SROLFLHV GLYHVWPHQWSULYDWL]DWLRQ SROLFLHV WKH ¿QDQFLDO
sector; and on policies for attracting foreign direct investment. However, due to the
political economic dimensions of the reforms, there was less percolation of reforms
to the state level. After the adoption of the new economic policy in 1991, there were
problems faced by the importers in the country mainly due to the Liberalization of
trade and foreign investment. It is interesting to note the approach of the Supreme
Court of India while interpreting the economic policy of the Government of India.
The most celebrated case in this context is Balco Employees Union v. Union of
India and others11 the relevant extract is quoted hereafter:

“Process of disinvestment is a policy decision involving complex economic

factors. The Courts have consistently refrained from interfering with economic
decisions as it has been recognised that economic expediencies lack adjudicative
disposition and unless the economic decision, based on economic expediencies,
is demonstrated to be so violative of constitutional or legal limits on power or so
abhorrent to reason, that the courts would decline to interfere. In matters relating
to economic issues, the Government has, while taking a decision, right to “trial and
HUURU´DVORQJDVERWKWULDODQGHUURUDUHERQD¿GHDQGZLWKLQOLPLWVRIDXWKRULW\
There is no case made out by the petitioner that the decision to disinvest in BALCO
is in any way capricious, arbitrary, illegal or uninformed.” This in turn indicates
that the judiciary’s adherence to elements likes socialist economy and welfare state
both elements of the basic structure.

4. Collective Interest – Power and right relationship

The courts observed, that in order for the policy to be adopted and enacted
successfully, it should be designed in a way such that, it results in the collective
good of the citizens rather than focusing on the individual interests of a particular
section of people in the country, for example, decreasing the custom duty such

௘Balco Employees Union v. Union of India and others 2002 (2) SCC 333, Cassels, J., “Judicial Activism and
11

Public Interest Litigation in India: Attempting the Impossible?”, 37(3) The American Journal of Comparative
Law, 495-519 (1989) ; Baxi, U., “Taking suffering seriously: Social action litigation in the Supreme Court of
India”. Third World Legal Stud 107 (1985).
 KLE Law Journal 40

WKDWLWEHQH¿WVWKHFRPSDQLHVZKRODUJHO\LPSRUWWKHLUSURGXFWV7KHUHVXOWRIVXFK
legislation would be such that people would prefer to buy the imported products
and the local companies would start incurring losses. This would eventually result
in the local companies accusing the government of restricting their right to carry
on trade. Therefore, it is necessary that the legislations are passed keeping the
rights and collective good of the people in mind. The courts also criticised the
purported change in the economic policy which provided short term advantages
to the indigenous industry/business, as well as globalised the Indian economy.
It was against the policy of the Government especially in the context of the
then economic reforms. It was a contradiction that Government was succumbing to
the pressure of vested interests. In the case of Shri Hari Exports v. Director General
of Foreign Trade,12 WKHSHWLWLRQHUFKDOOHQJHGWKHYDOLGLW\RIWKHWZRQRWL¿FDWLRQV
dated 25-1-1994 and 29-1-1994, effect of which was to transform Polypropylene
Moulding powder/granules as goods in the sensitive test for the purpose of its
importation, though, when the value based license issued to the petitioner, no such
restriction was imposed. Petitioner was issued with the value based license on 6-7-
1993. As per this license, if the petitioner exports the particular goods (cassettes),
he was entitled to import the goods described in the license without any restriction
as to their quantity. It was contended that the change in import policy had affected
the public interest. Prior to change in the policy, the exporter was issued with value
based license to import the goods, mentioned in the license, with no restriction
in respect of the quantity to be exported but due to change in policy, the goods
LQ TXHVWLRQ ZHUH VKLIWHG WR VHQVLWLYH OLVW ,W ZDV KHOG WKDW WKH WZR QRWL¿FDWLRQV
are invalid to the extent they operate as an unreasonable restriction on the rights
of a citizen and that the courts cannot at all exercise judicial control over it. It
was further observed that the source for the exercise of power requires that it has
to be exercised in the public interest by itself does not confer any immunity to
the said exercise; the power shall have to be exercised in a reasonable way. The
reasonableness has to be tested in the light of the Constitutional provisions. Further,
reasonableness of any particular action could be gathered only by considering the
circumstances under which it is exercised, the evil sought to be eradicated by the
action in question or the public purpose sought to be projected by it. Thus, the

௘Shri Hari Exports v. Director General of Foreign Trade, (1994 (73) ELT 794).
12
 KLE Law Journal 41

exercise of power is considered to be reasonable when it does not infringe upon

the legal rights of any citizen. Legal rights are essentially interests recognized
and administered by law and belong to science of law rather than to law and are
DFRPSOHWHLGHD,WPD\PHDQWKHOHJDOO\UHFRJQL]HGDQGGH¿QHGKXPDQZDQWV
demands, or some conceptions by which the recognized interests are given form in
order to be secured by a legal order. If the power is exercised in such a way that the
legal rights of citizens are being violated, then the government is held to be acting
out of the collective interest. Therefore, it can be said that the economic policies
of the government are valid till the time they do not infringe upon the rights of
the citizens. Rights correspond to attaining four goals of legislation; subsistence,
abundance, equality and security for the citizen. By security, it is meant that a
man’s person, his honour, his property and his status must be protected, and his
expectations in so far the law has produced them, be maintained. With reference
to the economic policies of the country, they should be adopted in such a manner
that the basic rights of the citizens such as the right to freedom to carry on trade
should not be restricted upon. The restriction on the right should be reasonable in
all aspects even when the policy seems to infringe upon the right. For example,
putting restrictions on trade through waterways can be considered a reasonable one
since smuggling is most common through the sea ports. This cannot be considered
an infringement of right as the government had taken such an action by keeping
in consideration the collective good of the people. This judgement is therefore a
clear indication of adherence to the basic structure in terms of prioritization of
fundamental rights over economic policy.

In Shri Sitaram Sugar Company Ltd v. Union of India13, the petitioners were
RZQHUVRIVXJDUPLOOVRSHUDWLQJLQWKH6WDWHRI8WWDU3UDGHVKLQDUHDVFODVVL¿HG
for the purpose of determining the price of levy sugar as West and East Zones.
7KH\FKDOOHQJHGWKHYDOLGLW\RIQRWL¿FDWLRQVGDWHGWK1RYHPEHUDQGth
July, 1975 issued by the Central Government in exercise of its power under Sub-
section (3-C) of Section 3 of the Essential Commodities Act, 1955. The Apex
Court considered the nature, extent and scope of judicial review of administrative
DFWLRQVIRUPXODWLQJWKHHFRQRPLFSROLFLHVUHJDUGLQJ¿[LQJWKHSULFHRIVXJDU,W
observed that the Court in exercise of judicial review is not concerned with the
13
Shri Sitaram Sugar Company Ltd v. Union of India, 1991 SCR (1) 909.
 KLE Law Journal 42

FRUUHFWQHVVRIWKH¿QGLQJRIIDFWRQWKHEDVLVRIZKLFKWKHRUGHUVDUHPDGHDQG
held: “Judicial review is not concerned with the matters of economic policy. The
Court does not substitute its judgment format of the Legislature or its agent as the
matters within the province of either.”

This judgment shows the judiciary balancing two elements of the basic
structure against each other i.e. judicial review and separation of powers. The case
of Commissioner of Income Tax, Udaipur v. Hindustan Zinc Limited14 discussed
the jurisdiction of Court to interfere in economic matters under Articles 226 and
14 of the Constitution of India. In the present case, the petitioners are exporters,
registered with respondents No. 2, M/s. Apparel Export Promotion Council,
(in short “AEPC”) and are engaged in the manufacture and export of garments
and claim to have turnover of Rs. 300 crores. Petitioners had impugned the above
notice, as not being in public interest. The notice is also assailed as imposing
unreasonable restriction on the right to carry on business of exports which is an
infringement of Article 19(1)(g) of the Constitution of India. Here, while the court
reiterated that arbitrariness was a ground to invalidate economic policy decision
it upheld fundamental rights and in essence adhered to the basic structure and
prioritised the above anything else.15

5. Constitutional developments post 1991

Kihoto Hollohan v. U.O.I.16

Kihoto Hollohan v. Zachillhu And Others is commonly referred as the case

where the constitution bench of the Supreme Court analyzed in detail the various
provisions of the 52nd amendment of the constitution. The 52nd Amendment inserted a
new schedule (Tenth schedule) elaborating various provisions to protect the parties
from defection. The amendment happened in the year 1985 and followed by much
XSURDUZKLFKXOWLPDWHO\OHGWR¿OLQJD3,/DQGUHVXOWLQJLQWRWKHGHFLVLRQLQWKH
year 1993 declaring the amendment completely legal with certain interpretation
regarding judicial review. In the process the court declared that democracy was a

14
Ibid
15
Ibid
௘$,56&
16
 KLE Law Journal 43

core element of the basic structure and held that the 52nd Amendment furthered that
objective and was hence deemed legal.

S.R.Bommai v. U.O.I.17

On April 21, 1989, Karnataka Chief Minister S.R. Bommai presented Governor
P. Venkatasubbaiah, a copy of the resolution passed by the Janata Dal Legislature
Party requesting the Governor to give Bommai an opportunity to test his majority
LQWKH$VVHPEO\$OWKRXJKÀRRUWHVWVFRQWLQXHWREHWKHVROHSUDFWLFDOPHDQVRI
establishing majorities, incumbency is clearly a key factor in the outcome of such
tests. The majority decision of the Supreme Court in S.R. Bommai v. U.O.I, in
essence has overturned a long held belief that the use of Article 356 was not really
subject to review by courts, a doctrine articulated in a landmark case, State of
Rajasthan v. U.O.I.18 S.R. Bommai, laid down the conditions under which State
governments may be dismissed, and mechanisms for that process. These were
expressed through six opinions, with the judgments of Justices A.M. Ahmadi,
K. Ramaswamy, and J.S. Verma for himself and Yogeshwar Dayal dissenting
from the majority opinion of Justices P.B. Sawant for himself and Kuldip Singh,
%3-HHYDQ5HGG\IRUKLPVHOIDQG6&$JDUZDODQG¿QDOO\65DWQDYHO3DQGLDQ
Although this seeming maze of judgments created some confusion among lay
people about precisely what portions in the Supreme Court decision were the law,
the debate has now been largely resolved. Jurist Soli Sorabjee wrote in a critique
of the case:

“The judgments of Sawant and Kuldip Singh, JJ, to the extent they are not
directly or by necessary implication inconsistent with judgments of Justices Jeevan
Reddy and Agarwal, are part of the majority judgment and constitute the law of
the land” The language of S.R. Bommai is plain. “In all cases where the support
of the Ministry is claimed to have been withdrawn by some legislators,” Justices
Sawant and Kuldip Singh held, “the proper course for testing the strength of the
0LQLVWU\ LV KROGLQJ WKH WHVW RQ WKH ÀRRU RI WKH +RXVH´ ³7KH DVVHVVPHQW RI WKH
strength of the Ministry is not a matter of private opinion of any individual be
he the Governor or the President” (emphasis added). Justices Jeevan Reddy and

௘$,56&
17

18
(1977)3 SC 592.
 KLE Law Journal 44

$JDUZDOXQGHUOLQHGWKHÀRRUWHVWSURFHGXUH³:KHQHYHUDGRXEWDULVHVZKHWKHU
WKH &RXQFLO RI 0LQLVWHUV KDV ORVW WKH FRQ¿GHQFH RI WKH +RXVH WKH RQO\ ZD\ RI
WHVWLQJ LW LV RQ WKH ÀRRU RI WKH +RXVH´ HPSKDVLV DV LQ WKH RULJLQDO 7KH VROH
exception to this will be a situation of “all-pervasive violence where the Governor
comes to the conclusion - and records the same in his report - that for the reasons
mentioned by him, a free vote is not possible.”

7KHVHVLPSOHOHJDOPDQGDWHVZHUHEHIRUH3UHVLGHQW1DUD\DQDQZKHQKH¿UVW
ordered a brief on S.R.Bommai as BJP-BSP relations deteriorated in the State.
3ULPH0LQLVWHU,.*XMUDOSURYHGUHFHSWLYHWRWKHQHHGIRUDÀRRUWHVWEXW'HIHQFH
Minister Mulayam Singh Yadav, backed by the Congress (I), insisted that the BJP
Government be dismissed. Although legally in was wrong, Mulayam Singh was
in a political sense entitled to suggest the course of action he did. In June 1995,
KLV0LQLVWU\LQ8WWDU3UDGHVKGHVHUWHGE\WKHVOLSSHU\%63EHFDPHWKH¿UVWWREH
dismissed after S.R. Bommai was delivered. The Chief Minister was summoned
to the Raj Bhavan at 4 p.m., on June 3rd and told to resign. Despite his explicit
protest against the unconstitutionality of the action since S.R. Bommai made a
ÀRRUWHVWWRKLVULJKW*RYHUQRU0RWLODO9RUDDVVHUWHGWKDWOHJDORSLQLRQVWUHVVHGKLV
discretionary powers in such situations (Frontline, June 30, 1995). The Supreme
Court’s verdict in the S.R. Bommai case sharply limited the constitutional power
vested in the Central Government to dismiss a State government, but upheld the
dismissal of four BJP Governments for going against the constitutional philosophy
and provisions that were secular. Further, the Supreme Court, through its verdict in
the S.R. Bommai case added federalism, democracy and secularism as components
of the basic structure whilst upholding the pre-existing elements of democracy and
sovereignty.

L.Chandra Kumar v. U.O.I.19

A 3-Judge Bench of the Supreme Court referred the matter to a larger Bench
on the issues relating to:

1. It is pertinent to mention validity of Section 5(6) of the Administrative

Tribunals Act, 1985, whereby a Single Member Bench of an Administrative
Tribunal (such as CAT) was empowered to exercise powers of the Tribunal.

௘L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.

19
 KLE Law Journal 45

2. The second issue being whether the power of judicial review need not
always be exercised by regular courts and the same can be exercised by
DQHTXDOO\HI¿FDFLRXVDOWHUQDWLYHPHFKDQLVPVXFKDVDQ$GPLQLVWUDWLYH
Tribunal), as held by a 5-Judge Constitution Bench in the case of
P. Sampath Kumar v. Union of India.20

3. Lastly, whether the Administrative Tribunals (such as CAT) established

under the Administrative Tribunals Act, 1985, were equal in status to the
High Courts, as held in the aforesaid case of P. Sampath Kumar v. Union
of India.21

That in the said S.P. Sampath Kumar case, the Supreme Court had upheld
the validity of Section 28 of the Administrative Tribunals Act, 1985, under which
the jurisdiction of all courts except that of the Supreme Court under Article 136
with respect to matters falling within the jurisdiction of the tribunals concerned,
was excluded. The power of judicial review over legislative action vested in the
High Court under Article 226 and in Supreme Court under Article 32 is an integral
and essential feature of the Constitution, constituting part of its basic structure.
Ordinarily, therefore, the power of High Courts and the Supreme Court to test the
constitutional validity of legislations can never be ousted or excluded. The power
vested in the High Courts to exercise judicial superintendence over the decisions
of all Courts and Tribunals within their respective jurisdictions is also part of the
basic structure of the Constitution. Thus, through this decision not only did the
Supreme Court adhere to the basic structure of the constitution by prioritizing
judicial review whilst expanding its scope at the same time.

I.R.Coelho v. State of T.N.22

In this case the court was required to determine whether on and after 24th
April, 1973 when Basic Structures Doctrine was propounded, it is permissible
for the Parliament under Article 31B to immunize legislations from fundamental
rights by inserting them in the Ninth Schedule and, if so, what is its effect on
the power of judicial review of the court. A law that abrogates or abridges rights

௘P. Sampath Kumar v. Union of India, (1987) 1 SCC 124.

20

௘Ibid
21

௘$,56&
22
 KLE Law Journal 46

guaranteed by Part III of the Constitution may violate the basic structure doctrine
or it may not. If former is the consequence of law, whether by amendment of any
Article of Part III or by an insertion in the Ninth Schedule, such law will have
to be invalidated in exercise of judicial review power of the Court. The majority
judgment in Kesavananda Bharti’s case read with Indira Gandhi’s case, requires
the validity of each new constitutional amendment to be judged on its own merits.
The actual effect and impact of the law on the rights guaranteed under Part III has
to be taken into account for determining whether or not it destroys basic structure.
The impact test would determine the validity of the challenge. All amendments to
the Constitution made on or after 24th April, 1973 by which the Ninth Schedule
is amended by inclusion of various laws therein shall have to be tested on the
WRXFKVWRQH RI WKH EDVLF RU HVVHQWLDO IHDWXUHV RI WKH &RQVWLWXWLRQ DV UHÀHFWHG LQ
Article 21 read with Article 14, Article 19 and the principles underlying them. To
put it differently, even though an Act is put in the Ninth Schedule by a constitutional
amendment, its provisions would be open to attack on the ground that they destroy
or damage the basic structure, if the fundamental right are taken away or abrogated,
SHUWDLQV WR WKH EDVLF VWUXFWXUH -XVWL¿FDWLRQ IRU FRQIHUULQJ SURWHFWLRQ LV QRW WKH
blanket protection on the laws included in the Ninth Schedule. The Constitutional
Amendments shall be a matter of Constitutional adjudication by examining the
nature and the extent of infraction of a Fundamental Right by a statute, sought to
be Constitutionally protected, and on the touchstone of the basic structure doctrine
DV UHÀHFWHG LQ $UWLFOH  UHDG ZLWK $UWLFOH  DQG $UWLFOH  E\ DSSOLFDWLRQ RI
the ‘rights test’ and the ‘essence of the right’ test. Applying the above tests to the
Ninth Schedule laws, if the infraction affects the basic structure then such a law(s)
will not get the protection of the Ninth Schedule. Hence through this decision the
Supreme Court expanded the scope of judicial review and in essence expanded the
scope of the basic structure.

M. Nagaraj v. U.O.I.23

In M. Nagaraj v. Union of India, the Supreme Court held that the State
must demonstrate backwardness, inadequacy of representation and maintenance
RI HI¿FLHQF\ EHIRUH SURYLGLQJ UHVHUYDWLRQ LQ SURPRWLRQV :KLOH XSKROGLQJ WKH
constitutional validity of the amendments, the Supreme Court in Nagaraj case, made

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23
 KLE Law Journal 47

it very clear that Article 16 (4A), which was inserted through these amendments, was
only an enabling provision. In essence, every time a government or the legislature
sought to provide reservation in promotions under Article 16(4A), it would have
to pass constitutional muster. While justifying each attempt to provide reservation
in promotions, the state would have to demonstrate backwardness, inadequacy of
UHSUHVHQWDWLRQDQGPDLQWHQDQFHRIHI¿FLHQF\7KHFRXUWDOVRQRWHGLQWKLVLQVWDQFH
that the amendment did not affect the basic structure of the Constitution.

6. Digression from Basic Structure

Supreme Court Advocates on- Record association v. Union of India24

This case dealt with the constitutionality of the National Judicial Appointments
Commission Act. The court had to deal with the question of Judicial Independence
under Article 124. The issue that arose was whether the Act infringed on the basic
structure of the constitution. The court decided the case based on the decisions in:

1. S. P. Gupta v. Union of India - 1981 (also known as the Judges’ Transfer

case).

2. Supreme Court Advocates-on Record Association v. Union of India –

1993.

3. In re Special Reference 1 of 1998.

The Court held that the Act was unconstitutional as it affected judicial
independence which was a component of the basic structure of the constitution.
The case was widely criticised by the government as not conforming to the basic
structure. The issue is twofold Firstly, whether judicial autonomy is a part of basic
structure despite no such indication being given in the constituent assembly debates
or in the text of Article 124. More importantly did the judiciary create a component
of the basic structure by itself. The second issue is whether the court in giving
its decision disregarded other elements of the basic structure like parliamentary
sovereignty and representative democracy.

௘Supreme Court Advocates-on-Record Association v. Union of India, WP (Civil) No.13 of 2015.

24
 KLE Law Journal 48

Jagdambika Pal v. U.O.I.25

7KH6XSUHPH&RXUWRUGHUHGWKDWDÀRRUWHVWEHFDUULHGRXWLQFDVHRIJagdambika
Pal v. State of U.P. This decision was criticised as a violative of the doctrine
of separation of powers. While the Constitution prohibits judiciary to look into
matters of violation of Constitution when it is concerned with legislative act instead
it is vice versa as in Keshav Singh v. Speaker, Legislative Assembly. The court in
WKLVFDVHZKLOHFRQGXFWLQJÀRRUWHVWLQWKHOHJLVODWLYHDVVHPEO\KDGLQWHUSUHWHGWKH
Constitution as: “Article 212(1) seems to make it possible for a citizen to call in
question in the appropriate court of law, the validity of any proceeding inside the
legislative chamber, if his case is that the said proceeding suffer not from mere
irregularity of procedure, but from an illegality. If the impugned procedure is
illegal and unconstitutional, it would be open to be scrutinized in a court of law.”

This was seen as an express violation of the doctrine of separation of powers

which was already seen as a component of the basic structure. P.U.C.L. v. U.O.I. 26

The Supreme Court in June asked the Centre to create a disaster mitigation
fund to tackle drought- like situation and directed the Agriculture Ministry to hold
a meeting within a week with affected states like Bihar, Gujarat and Haryana to
assess the conditions. A bench headed by Justice M B Lokur, directed the Centre to
DOVRLPSOHPHQWWKHSURYLVLRQVRI'LVDVWHU0DQDJHPHQW$FWDQG¿[DWLPHOLPLWIRU
GHFODUDWLRQRIGURXJKWRQVFLHQWL¿FJURXQGV,WDOVRDVNHGWKH&HQWUHWRUHYLVHWKH
drought management manual to provide effective relief to calamity-hit farmers and
prepare a national plan to tackle the crisis. Angry about the judiciary’s repeated
lunges into executive and legislative terrain, Arun Jaitley said it all in one sentence:
³6WHSE\VWHSEULFNE\EULFNWKHHGL¿FHRI,QGLD¶VOHJLVODWXUHLVEHLQJGHVWUR\HG´
He stated further that “We have the National Disaster Response Fund and the State
Disaster Response Fund and now we are being asked to create a third fund. The
appropriation bill is being passed. Now outside this appropriation bill, we are
being told to create this fund. How will I do that? India’s budget-making is being
subject to judicial review?” This is a clear instance of the court violating the basic
structure in terms of separation of powers.

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25

௘KWWSZZZ¿UVWSRVWFRPSROLWLFVVXSUHPHFRXUWDUXQMDLWOH\DUWLFOHEFFLLSOUELGDQFHEDUVKWPO
26
 KLE Law Journal 49

7. Judicial interference in recent times - Vaunted or Un-vaunted

In Subramanian Swamy v. A Raja276&&D3,/ZDV¿OHGLQWKH

Supreme court with respect to the issue of corruption surrounding the matter of
2G spectrum allocations in 2002 by the government. The court went beyond mere
MXGLFLDOUHVWUDLQWDQGFODVVL¿HG*VSHFWUXPDVDQDWXUDOUHVRXUFH7KHFRXUWLQLWV
GHFLVLRQZHQWRQWRKROGSXEOLFRI¿FLDOVPXVWEHOLDEOHIRUWKHPLVPDQDJHPHQW
of resources despite there being no clear law on the matter owing to the “public
trust” doctrine. This again is an instance of the Supreme Court formulating its own
UXOHV DQG H[SDQGLQJ LWV SRZHU QRW RQO\ WR GHFLGHG PDWWHUV EXW DOVR UHGH¿QLQJ
what constitutes natural resources. While the decision may be well reasoned,
and perhaps was required considering the issues of corruption surrounding the
case the digression from separation of powers in making purely policy based
determinations is still a digression from the basic structure. In Common Cause v.
Union of India28DSHWLWLRQZDV¿OHGLQWKH6XSUHPH&RXUWZLWKUHVSHFWWRWKHLVVXH
of corruption surrounding the matter of coal block allocations worth several lakhs
of crores. The court in this instance found impropriety in the coal block allocations
and cancelled the allocation. This again is an instance of the Supreme Court
prioritising social welfare a key component of the basic structure over economic
outcomes.29 Despite the court being told that cancellation of coal block allocations
would result in damage to the companies involved, the court held that allowing
the current allocation to perpetuate would have harmful effects on the economy in
the long run. Thus the court prioritised general welfare of the nation and its people
RYHUDQGDERYHWKHSULYDWHSUR¿WVDQGORVVHVRILQGLYLGXDOV7KLVFDQEHVHHQDVD
form of strict adherence to the basic structure.

8. Conclusion

Thus the following issues become extremely important when considering the
importance of the basic structure and its evolution as well as possible digression
from the same.
 ௘
Ibid Mate, M., “Two Paths to Judicial Power: The Basic Structure Doctrine and Public Interest Litigation
in Comparative Perspective” 12 San Diego Int’l LJ.175 (2010); Baxi, U., “Justice of Human Rights in Indian
Constitutionalism: Preliminary Notes”, Modern Indian Political Thought 263-284 (Delhi, Sage Publications
2006); Jayasurya, G., Indian Judiciary: From Activism to Restraint (Burlington Gower Publishers 2010).
28
௘Common Cause v. Union of India, WP (C) NO.463/2012.
29
௘Ibid
 KLE Law Journal 50

‡ Is the will of people undermined by Basic Structure Theory?

‡ Why the doctrine of “Political Questions’’ is not applied in India?

‡ Can the judiciary regulate the amending power and process?

‡ Is the Basic Structure doctrine a myth?