Every constitution has to answer a question it cannot avoid: who guards the guardians? India’s answer was not written in 1950. It was worked out over twenty-two years of quarrel between Parliament and the Supreme Court, and it arrived on 24 April 1973 in a judgment that ran to eleven separate opinions and settled almost nothing except the one thing that mattered — that the amending power under Article 368 is wide, but it is not unlimited.[1]
The question before 1973#
The dispute was narrow and technical, and it was about a single word. Article 368 lets Parliament amend “this Constitution”. Does an amendment count as “law” under Article 13(2), which forbids the State from making any law that takes away a fundamental right?
- Shankari Prasad, 1951 No. A constitutional amendment is made under constituent power, not legislative power, so Article 13 does not touch it. The First Amendment survived.
- Sajjan Singh, 1965 The same answer, but two judges recorded doubts. That doubt is the seed of everything which follows.
- Golaknath, 1967 Reversed, by 6:5. An amendment is law for the purposes of Article 13, so Parliament cannot abridge fundamental rights at all. The Court gave the ruling prospective effect, sparing the amendments already made.
Golaknath was a fortress, and fortresses invite siege. Parliament replied with the 24th Amendment (1971), which stated in terms that Article 13 shall not apply to amendments and that Parliament may amend any provision. Along with the 25th and 29th Amendments, it set up the collision that became Kesavananda.
Kesavananda Bharati, 1973#
Thirteen judges, the largest bench ever assembled in India, heard the matter for sixty-eight days. The majority was 7:6 — and the “majority” agreed on a proposition rather than on an opinion.
| Case | Year | What it held |
|---|---|---|
| Shankari Prasad | 1951 | Amendment is not “law” under Art. 13 |
| Sajjan Singh | 1965 | Same, with two dissenting doubts |
| Golaknath | 1967 | Amendment is law; FRs unamendable |
| Kesavananda Bharati | 1973 | Parliament may amend any part, but not the basic structure |
| Indira Nehru Gandhi | 1975 | Free and fair elections is basic structure |
| Minerva Mills | 1980 | Limited amending power; FR–DPSP balance |
| Waman Rao | 1981 | Doctrine applies to laws after 24 April 1973 |
| S. R. Bommai | 1994 | Federalism and secularism are basic structure |
| I. R. Coelho | 2007 | Post-1973 Ninth Schedule laws face review |
The doctrine’s defence is not textual — the words “basic structure” appear nowhere in the Constitution. It is structural: a power to amend cannot include a power to abrogate, because a body created by the Constitution cannot use a power granted by that Constitution to destroy it.
However good a Constitution may be, if those who are implementing it are not good, it will prove to be bad. However bad a Constitution may be, if those implementing it are good, it will prove to be good.
B. R. Ambedkar, Constituent Assembly, 25 November 1949
What the Court has counted as basic structure#
No exhaustive list exists, and the Court has repeatedly refused to make one. What follows is the accumulated holding of several benches, not a statutory catalogue.
| Feature | Affirmed in |
|---|---|
| Sovereign, democratic, republican structure | Kesavananda Bharati, 1973 |
| Rule of law; judicial review under Articles 32 and 226 | Kesavananda Bharati, 1973 |
| Free and fair elections | Indira Nehru Gandhi, 1975 |
| Balance between Fundamental Rights and Directive Principles | Minerva Mills, 1980 |
| Federalism and secularism | S. R. Bommai, 1994 |
| Independence of the judiciary | NJAC judgment, 2015 |
The doctrine at work#
The 42nd Amendment (1976) inserted clauses 4 and 5 into Article 368, declaring that no amendment shall be called in question in any court and that there shall be no limitation on the constituent power. In Minerva Mills (1980) the Court struck both down: a limited amending power is itself part of the basic structure, and Parliament cannot enlarge its own power into an absolute one by using that very power.
Writing it in the exam#
- Define in one line, without hedging — the amending power is plenary but cannot damage essential features.
- Locate the conflict: Article 368 against Article 13, resolved in 1973.
- Evidence with two or three cases, each doing different work — one for origin, one for expansion, one for a live application.
- Counter-view: the doctrine is judicially invented, its content is uncertain, and it hands unelected judges a veto over an elected Parliament. Say it, then answer it.
- Close on the balance, not on a verdict.
A skeleton that fits a 15-mark answer in about 250 words:
Answer skeleton — 15 marks, about 250 words
- Intro One line on what the doctrine holds. No history yet, no throat-clearing.
- Origin Article 13 against Article 368, then Golaknath, then the 24th Amendment, then Kesavananda.
- Content Four accepted features, one case attached to each.
- Application Minerva Mills: clauses 4 and 5 of the 42nd Amendment struck down.
- Critique Counter-majoritarian; content undefined; a judicial veto over an elected House.
- Conclusion One or two lines: the limit on the power is what guarantees the power.
A longer skeleton, for a 250-mark paper's 20-marker
Add a fifth body paragraph on the doctrine’s export — Bangladesh and Pakistan have engaged with it, and Singapore’s courts have declined it — and a line on I. R. Coelho bringing the Ninth Schedule inside judicial review. Keep the critique; a 20-marker without a counter-view reads as a summary, not an argument.
Directive words matter more than content. Examine asks you to test a claim; critically examine requires a verdict; discuss wants both sides held in balance. Practice stems, framed rather than quoted from past papers:
| Stem | Directive | What the answer must do |
|---|---|---|
| The basic structure doctrine is a judicial innovation without textual warrant. Examine. | Examine | Test the claim; concede the text, defend the structure |
| Basic structure protects democracy from majoritarianism. Critically examine. | Critically examine | Take a side and defend it |
| Trace the evolution of Parliament’s amending power. Discuss. | Discuss | Chronology, but argued |
The doctrine’s real achievement is quieter than the drama around it. It did not make the Constitution rigid; the Constitution has been amended more than a hundred times since. It made the Constitution hard to destroy, which is a different and more useful thing. Whether an unelected court should be the one holding that line is a question every serious answer should raise — and, having raised it, should answer.[2]
- ↑
Kesavananda Bharati Sripadagalvaru v. State of Kerala, decided 24 April 1973. Thirteen judges, eleven opinions, a majority of 7:6.
- ↑
The standard critique is counter-majoritarian: judges who face no electorate may strike down an amendment passed by a two-thirds majority of an elected legislature. The standard reply is that the amendment power is itself a delegated power, and no delegate may destroy the instrument that created it.