KIRIT P.

MEHTA SCHOOL OF LAW

EVOLUTION OF THE BASIC STRUCTURE THEORY

In compliance to partial fulfilment of the marking scheme,

for semester V of 2019-2020, in the subject of

Constitution

Submitted to faculty

PROFESSOR

MS. ANU MISHRA

Submitted By- SAUMYA MOTWANI

CLASS- TY BA.LLB
ROLL NO. - A035
ABSTRACT
The framers of Indian Constitution concocted a written Constitution so as to guarantee that
there was a type of rigidity in the Constitution. Likewise, the ability to amend was given to
the Parliament under Article 368 so as to defeat the troubles which may experience in future
in the working of the Constitution. In any case, the degree of flexibility grasped by a
Constitution must be adjusted by a need to protect its normative character as a higher law that
limits temporary parliamentary majority of the country. Article 368 of the Constitution does
not recommend any express restriction upon the parliament's altering power, however the
Supreme Court in Keshav Ananda Bharati v. State of Kerala (1973) announced that Article
368 did not empower parliament to modify the 'Essential Structure or System' of the
Constitution. Vigorously debated since its commencement, the doctrine keeps on being a
focal element of recent institutional challenges over Constitutional identity and change. This
paper examines the development and the extent of the doctrine of fundamental structure as a
Constitutional safeguard and its appearance in the statute of some different nations.
The Parliament in exercise of its constituent power under Article 368 of the Indian
Constitution can amend any of the provisions of the Constitution and this power empowers
the Parliament to amend even Article 368 itself. The ‘Doctrine of Basic Structure’ is a judge-
made doctrine to put a limitation on the amending powers of the Parliament so that the ‘basic
structure of the basic law of the land cannot be amended in exercise of its ‘constituent power’
under the Constitution.
Moreover, it is accepted that the tenet of fundamental structure is relevant to constitutional
amendments solely, nonetheless, different judges of the Supreme Court have seen this
viewpoint differently and there have been contrasting opinions regarding this matter. Since
this does not seem, by all accounts, to be a straightforward concept any longer with the
doctrines applicability in contest, this article will endeavour to follow what various judges of
the Supreme Court have expressed in their decisions with respect to the pertinence of the
doctrine of basic structure to ordinary legislations and lastly finish up with certain a few
observations and suggestions.
INTRODUCTION
The Constitution of a country represents the basic norm-comprising of fundamental
principles, laying down the foundation of a civil society. While on the face of it, it appears
that the Constitution of India 1950 is neither too flexible nor too rigid in practice; it has been
amended almost 100 times in 62 years. The flexibility of the Indian Constitution has often
been criticized as being the bane of our Constitutional system. Academic and political
commentators often lament the incapacity of the government and the political class to govern
in accordance with the Constitution as being the primary motive for the frequency of
amendment. The attachment to an unchanging Constitution appears to be a romantic, but
essentially unfounded, aspiration that no enduring Constitution is likely to satisfy. Moreover,
the Indian experience suggests that political struggles find expression in the formal
Constitution amending process more readily than in the informal modes through which a
Constitution may be changed. However, the extent of flexibility embraced by a Constitution
has to be balanced by a need to preserve its normative character as a higher law that restrains
temporary parliamentary majorities of the nation. The evolution and practice of the basic
structure doctrine in India responds to this normative concern to preserve the sanctity of the
Constitution as a higher law. The Supreme Court with intentions to protect the basic and
original ideals of the makers has acted as a check over the legislative enthusiasm of
Parliament ever since independence. The apex court has pronounced that Parliament could
not distort damage or alter the basic features of the Constitution under the pretext of
amending it. The phrase 'basic structure' itself cannot be found in the Constitution. The
Supreme Court recognized this concept for the first time in the historic Keshavanad Bharti v.
State of Kerala in 1973.
A Constitution should be a living Constitution,1 to persevere through the tides of time and
adjust to the changing necessities of ages. In any case, simultaneously, there are a few
intrinsic values, a fundamental structure on which the entire substance of the constitution
rests. This structure is the very substance of the legitimate framework which the constitution
archive exemplifies and which the courts attempt to ensure through their different doctrines
and proclamations. It would be a totally isolated issue if the volksgeist requests another
structure by crushing the former one and would require a different methodology for that.
Until at that point, certain fundamental qualities which hold up a country together in a
decided structure, need to shielded from any infringement that is untimely and does not
mirror the genuine will of the system. Basic structure doctrine, developed by the Indian
Supreme Court, through its various landmark decisions throughout the years, gets that
required factor of constitutionalism, which is critical to the upkeep of the soul of the
constitution document, to preserve, protect and maintain the thicker concept of rule of law,
without which the constitution is nevertheless a dead
letter law. The adventure of the advancement of this teaching from the hypothesis of inferred
limitations to its present structure today has been completely wild, with endeavours to save it
and much more noteworthy endeavours to destroy it because this doctrine singlehandedly
empowers the judiciary to keep a check on the legislature and restrain it from stepping into
the treacherous realm of arbitrariness by misusing article 368 of the Indian Constitution. This
paper will attempt to highlight the origins, vicissitudes that the doctrine of basic structure
hadto endure, and discuss about its limitations.
 Article 368 of the Constitution gives the impression that Parliament's amending powers are
absolute and encompass all parts of the document. But the Supreme Court has acted as a
brake to the legislative enthusiasm of Parliament ever since independence. With the intention
of preserving the original ideals envisioned by the constitution-makers, the apex court
pronounced that Parliament could not distort, damage or alter the basic features of the
Constitution under the pretext of amending it. The phrase 'basic structure' itself cannot be
found in the Constitution. The Supreme Court recognised this concept for the first time in the
historic Kesavananda Bharati case in 1973. Ever since the Supreme Court has been the
interpreter of the Constitution and the arbiter of all amendments made by Parliament.

RESEARCH QUESTIONS
1. Is there any limitation to the amending power of the parliament?
2. If yes, to what extent can the parliament amend the basic law of the land?
3. If no, are there not chances that this amendment power can be abused?

HISTORICAL BACKGROUND
There were many competing visions for the future of India in the lead-up to independence.
Subhash Chandra Bose, a leader in the pre-independence Congress Party, favoured a stronger,
more authoritarian state and modelled on the fascist governments of the 1930s and 1940s. On
the other extreme, Mahatma Gandhi advocated a more decentralized and self-sufficient
society. Neither Bose’s nor Gandhi’s vision would gain much traction during the
Constitution’s drafting. Instead, one of the most entrenched debates at the Constituent
Assembly and one that would provide the historical seeds of the basic structure doctrine was
between the similar, but competing ideologies of Jawaharlal Nehru and Sardar Vallabhbhai
Patel. Nehru and Patel were the two most powerful political leaders of the Congress Party at
the end of British rule. Indeed, Nehru became the country’s first Prime Minister only upon
Gandhi’s request that Patel step aside (Patel had been supported by more members of
Congress to lead the party at independence) Patel was a proponent of many of the principles
of laissez faire economics. Nehru, on the other hand, believed in large-scale property
redistribution and nationalization to correct past social injustices and lay the groundwork for
a prosperous economy. This position was popular among the poverty-stricken electorate, and
even today polls indicate that the overwhelming majority of Indians believe that there should
be a limit on possessing a certain amount of land and property. According to Dr. Ambedkar
this difference in economic perspective came to a head in the drafters’ debates over property
rights. Nehru wanted no compensation for property seized by the government, while Patel
demanded full compensation. The right to property in the final version of the Constitution
was a compromise between the two, with ambiguity surrounding both when property could
be taken and what compensation would be paid. Patel’s early death in 1950 ensured not only
that Nehru would never again be seriously challenged for the post of Prime Minister, but also
that he could more easily push his
original vision of the right to property. When early judicial decisions signalled that the courts
would limit the government’s ability to expropriate property, Nehru’s government acted
swiftly. In 1951, it passed the first amendment to the Constitution which created articles 31A
and 31B. These articles would provide the origin of the dispute that would ultimately create
the basic structure doctrine. Article 31A stated that any acquisition of property by the state
through law could not be called into question under the rights to property, equality, freedom
of speech, or freedom to practice one’s profession. Article 31B created the Ninth Schedule, a
list of laws inserted in the back of the Constitution. Laws that were placed into this
schedule through Constitutional amendment could not be found invalid by the judiciary on
the basis of any of the fundamental rights. In the First Amendment, thirteen land reform laws
were placed into this protected schedule. Although the First Amendment only protected land
reform laws, the Ninth Schedule could, on its face, be used to protect any law placed into it
from fundamental rights review.
After the passage of these two Articles, a standoff among Parliament and the legal judiciary
turned out to be nearly unavoidable. Parliament had altered the Constitution to shield
expropriation laws, yet conceivably any law from essential rights review. With the general
concept of significant judicial review under attack, the Court's potential reactions were
constrained. It could submit to the change, conceding that it could be deprived of its capacity
of judicial review, and hope a later Parliament would expel the offending articles, or, on the
other hand, it could look for an approach to defend judicial review. Property proprietors
tested the Constitutional alterations which put land reform laws in the Ninth Schedule under
the watchful eye of the Supreme Court, saying that they abused Article 13 (2) of the
Constitution. Article 13 (2) provides for the protection of fundamental rights of the citizen.
Parliament and the state legislatures are prohibited from making laws that may remove or
abridge the fundamental rights ensured to the resident. They contended that any change to the
Constitution had the status of a law as comprehended by Article 13 (2). In 1952 (Sankari
Prasad case) and 1955 (Sajjan Singh's case) the Supreme Court rejected the two contentions
and maintained the power of Parliament to alter any part of the Constitution including what
influences the fundamental rights of citizens. Essentially however, two contradicting judges
made a decision in Sajjan Singh's case raised questions whether the key privileges of
residents could become a toy of the greater party in Parliament. The first attempt by the Court
to salvage its review power came in 1967 in Golak Nath v. State of Punjab which challenged
articles 31A and 31B. An eleven-judge bench of the Supreme Court reversed it position.
Delivering its 6:5 majority judgement Chief Justice Subba Rao put forth the curious position
that Article 368, that contained provisions related to the amendment of the Constitution,
merely laid down the amending procedure. Article 368 did not confer upon Parliament the
power to amend the Constitution. The amending power (constituent power) of Parliament
arose from other provisions contained in the Constitution (Articles 245, 246, 248) which gave
it the power to make laws (plenary legislative power). Thus, the apex court held that the
amending power and legislative powers of Parliament were essentially the same. Therefore,
any amendment of the Constitution must be deemed law as understood in Article 13 (2). The
majority judgment invoked the concept of implied limitations on Parliament's power to
amend the Constitution. This view held that the Constitution gives a place of permanence to
the fundamental freedoms of the citizen. In giving the Constitution to themselves, the people
had reserved the fundamental rights for themselves. Article 13, according to the majority
view, expressed this limitation on the powers of Parliament. Parliament could not modify,
restrict or impair fundamental freedoms due to this very scheme of the Constitution and the
nature of the freedoms granted under it. The judges stated that the fundamental rights were so
sacrosanct and transcendental in importance that they could not be restricted even if such a
move were to receive unanimous approval of both houses of Parliament. They observed that a
Constituent Assembly might be summoned by Parliament for the purpose of amending the
fundamental rights if necessary. In other words, the apex court held that some features of the
Constitution lay at its core and required much more than the usual procedures to change
them. The verdict in Golaknath’s case led to direct conflict of power between the parliament
and judiciary. The ruling government suffered heavy losses of votes in parliamentary
elections as it failed to fulfil its promises. The power conflict led the government to introduce
a bill seeking to restore supremacy of parliament which was later not pressed because of
some political compulsions.13 But hungry to prove it supreme, parliament again, under the
pretext of ensuring equitable distribution of wealth and resources, introduced two major lines
of laws, one related to nationalization of banks and other related to derecognition of Privy
Purses. The Supreme Court struck down both the moves of the parliament. Now the basic
question had shifted as to the relative position of directive principles and the fundamental
rights. This led to a political situation which the Indian history had never witnessed. Judiciary
and Parliament were at loggerhead in proving their supremacy. For the first time, the
Constitution itself became the electoral issue in India. In 1971 and 1972 many amendments
were carried on that directly challenged the Court’s declaration that the fundamental rights
could not be amended and further shielded laws from fundamental rights review. These
amendments being over-ambitious were inevitably challenged in Keshavanand’s case.

DOCTRINE OF THE BASIC STRUCTURE CONCEPT

There is no such exhaustive or exclusive definition of basic structure given by the judiciary.
Judicial approach has been on case to case basis to define what basically includes in the
doctrine of basic structure.

In the Minerva Mills case, the Supreme Court provided key clarifications on the
interpretation of the basic structure doctrine. Under the limited power of parliament to amend
the constitution, two important factors were added-

 To keep harmony and balance between the rights and directive principles.

 Judicial review

Chandrachud, C.J., in Minerva Mills case observed thus, the Indian Constitution is founded
on the bedrock of the balance between Parts III and IV. To give absolute primacy to one to
one over the other is to disturb the harmony of the Constitution. This harmony and balance
between fundamental rights and directive principles is an essential feature of the basic
structure of the Constitution. The rule of law and judicial review was held as basic structure
in Waman Rao, Sampath Kumar and Sambamurthy cases. Effective access to Justice is part of
the basic Structure, according to the ruling in Central Coal Fields case. InKihoto Hollohon
the Supreme Court has declared:
Democracy is a basic feature of the Constitution and election conducted at regular prescribed
intervals is essential to the democratic system envisaged in the Constitution. So is the need of
protect and sustain the purity of the electoral process that may take within it the quality,
efficiency and adequacy of the machinery for resolution of electoral disputes.
In Bommai case Sawant and Kuldip Singh, JJ., have observed: Democracy and Federalism
are essential features of our Constitution and are part of its basic structure. In the same case,
the Supreme Court has ruled that secularism is a basic or an essential feature of the
Constitution.
In M. Nagraj v. Union of India the court observed that the amendment should not destroy
Constitutional identity and it is the theory of Basic Structure only to judge the validity of
Constitutional amendment. Doctrine of equality is the essence of democracy accordingly it
was held as a Basic Structure of the Constitution. In a recent judgment I. R. Coelho v. State of
Tamil Nadu, the Supreme Court applied this doctrine and held that:
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
touchstone of the basic or essential features of the Constitution as reflected in 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 provision
would be open to attack on the ground that they destroy or damage the Basic Structure if the
fundamental right or rights taken away or abrogated pertains or pertain to the Basic Structure.
John Marshall, the American Chief Justice on the life of the Constitution has said. A
Constitution is framed for ages to come, but its course cannot always be tranquil. The
amending power could not be exercised in such a manner as to destroy or emasculate the
basic or essential features of the Constitution, including the sovereign, democratic and secular
character of the polity, rule of law, independence of the judiciary, fundamental rights of
citizens etc. As Justice Chandrachudhad exquisitely laid down: Amend as you may even the
solemn document which the founding fathers have committed to your care, for you know best
the needs of your generation. But the Constitution is a precious heritage; therefore, you
cannot destroy its identity.
Till date, the judiciary has neither given any exhaustive definition of the basic structure nor
has it given an exhaustive list which constitutes the basic structure of the Indian Constitution.
Justice Mathew in Indira Gandhi case had perceptively stated the concept of basic structure as
a brooding omnipresence in the sky apart from specific provisions of the constitution is too
vague and indefinite to provide a yardstick for the validity an ordinary law.

JUDICIAL JOURNEY OF BASIC STRUCTURE

The constitution empowers the Parliament and the State Legislatures to make laws within
their respective jurisdiction. Bills to amend the constitution can only be introduced in the
Parliament, but this power is not absolute. If the Supreme Court finds any law made by the
Parliament inconsistent with the constitution, it has the power to declare that law to be
invalid. Thus, to preserve the ideals and philosophy of the original constitution, the Supreme
Court has laid down the basic structure doctrine. According to the doctrine, the Parliament
cannot destroy or alter the basic structure of the doctrine. The word "Basic Structure" is not
mentioned in the constitution of India. The concept developed gradually with the interference
of the judiciary from time to time to protect the basic rights of the people and the ideals and
the philosophy of the constitution.
The First Constitution Amendment Act, 1951 was challenged in the Shankari Prasad vs.
Union of India case. The amendment was challenged on the ground that it violates the Part-
III of the constitution and therefore, should be considered invalid. The Supreme Court held
that the Parliament, under Article 368, has the power to amend any part of the constitution
including fundamental rights. The Court gave the same ruling in Sajjan Singh Vs State of
Rajasthan case in 1965.
In Golak Nath vs State of Punjab case in 1967, the Supreme Court overruled its earlier
decision. The Supreme Court held that the Parliament has no power to amend Part III of the
constitution as the fundamental rights are transcendental and immutable. According to the
Supreme Court ruling, Article 368 only lays down the procedure to amend the constitution
and does not give absolute powers to the parliament to amend any part of the constitution.
The Parliament, in 1971, passed the 24th Constitution Amendment Act. The act gave the
absolute power to the parliament to make any changes in the constitution including the
fundamental rights. It also made it obligatory for the President to give his assent on all the
Constitution Amendment bills sent to him.
In 1973, in Kesavananda Bharti vs. State of Kerala case, the Supreme Court upheld the
validity of the 24th Constitution Amendment Act by reviewing its decision in Golaknath case.
The Supreme Court held that the Parliament has power to amend any provision of the
constitution, but doing so, the basic structure of the constitution is to be maintained. But the
Apex Court did not any clear definition of the basic structure. It held that the "basic structure
of the Constitution could not be abrogated even by a constitutional amendment". In the
judgement, some of the basic features of the Constitution, which were listed by the judges.
Keshavanad’s case proved that the Parliament is not sovereign in Indian context and its power
is not absolute but channelized and controlled.
The basic structure doctrine was defined and it was held that the power to amend is
channelized and limited. Khanna J. along with other six judges agreed with this theory. Rest
of the six judges held that it is an absolute power in hands of the parliament. So Supreme
Court with a majority of 7:6 decided that some parts of the Constitution which gives it a
meaning cannot be changed or amended. However, only six out of the seven majority judges,
with Khanna J. dissenting, held that fundamental rights form the basic structure of the
Constitution and hence are un-amendable. So, again Supreme Court with a majority of 7:6
held that in the fundamental rights per se are amendable.

POST KESAVANANDA VERDICT

Although the doctrine of basic structure was given in Keshavanand case but it got
widespread acceptance and legitimacy due subsequent cases and judgments. The main
evolution of this doctrine started at the emergency period imposed by then powerful PM
Indira Gandhi. 39th amendment was passed by the government in order to suppress her
prosecution which also extracted the elections of Prime Minister from the purview of judicial
review. However, in the case of Indira Nehru Gandhi v. Raj Narain, popularly known as
Election Case the 39th amendment act was quashed down with the help of doctrine of basic
structure. In this case for the 1st time a Constitutional amendment was challenged not in
respect of rights of property or social welfare but with reference to an electoral law designed
to ensure free and fair elections which lie at the basis of a democratic
parliamentary form of government. The Constitutional (39th amendment) Act, 1975 inserted
Article 329A. According to clause (4) of the amendment election of a candidate cannot be
challenged in court of law. This amendment was passed when an appeal against Allahabad
High Court’s judgment dismissing the election of Mrs. Indira Gandhi as Prime minister was
pending in the Supreme Court. In this case the 39th Constitutional Amendment was
challenged. Counsel for Raj Narain, the political opponent challenging Mrs. Gandhi's
election, argued that the amendment was against the basic structure of the Constitution as it
affected the conduct of free and fair elections and the power of judicial review. Counsel also
argued that Parliament was not competent to use its constituent power for validating an
election that was declared void by the High Court. This case introduced new dimensions to
the judgment given in Keshavanad’s case. Although the amendment was upheld but the
provision curbing judiciary’s right to keep a check on elections was struck down as violating
the separation of powers and judicial review, both core principles of the Indian Constitution.
The doctrine of basic structure was widened and it was held that free and fair election being a
part of basic structure cannot be amended. However, in a politically pragmatic manoeuvre
that also followed an existing line of precedent, the Court found Indira Gandhi’s election
valid by upholding legislation that had retroactively removed the legal basis for her original
conviction.
The fact that the judiciary has a say in the matter of amendment of the Constitution is the
most notable aspect of the doctrine of Basic Structure. In M. Nagraj v. Union of India the
court observed that the amendment should not destroy Constitutional identity and it is the
theory of Basic Structure only to judge the validity of Constitutional amendment. Doctrine of
equality is the essence of democracy accordingly it was held as a Basic Structure of the
Constitution. In I.R. Coelho v. State of Tamil Nadu further developed its interpretation of
article 31B, which created the Ninth Schedule to protect particular laws from fundamental
rights review. Although originally only thirteen land reform laws were placed in the Ninth
Schedule, more than 280 laws have now been added to it through Constitutional amendment.
Most of these laws concern land reform, but many do not, including some laws that relate to
caste-based reservations and security laws from Indira Gandhi’s era. In a unanimous decision
(a signal of the current health of the basic structure doctrine) the Court reasserted in Coelho
that many, if not all, of the current fundamental rights were part of the basic structure of the
Constitution, and that the laws in the Ninth Schedule would have to be tested by them. The
above pronouncements of the Indian judiciary have given a firm establishment to the doctrine
of Basic Structure in our Constitutional law.
REFLECTION IN THE JURISPRUDENCE OF OTHER
COUNTRIES
In India, the basic structure doctrine serves a purpose similar to unamendable provisions or
principles in a Constitution. After World War II, several Constitutions were created with un-
amendable provisions. Germany is the most prominent example, but there are others as well.
These countries adopted varying approaches.
The Constitutions of Greece and Portugal provide a relatively long list of unamendable
provisions. Others protect only one or two key principles. The Constitutions of Italy and
France, for example, simply safeguard their republican form of government against
amendment.
Perhaps not surprisingly, Pakistan is the country that has most closely flirted with an
approach that looks most similar to the Indian basic structure doctrine. Even after the
Kesavananda Bharati decision in India, the judiciary in Pakistan rejected the idea of there
being any substantive limits on amendments to the Constitution. However, in 1997, the
Pakistani Supreme Court reopened this question when deciding whether an amendment that
allowed the President to dissolve the National Assembly was valid. Although it did not strike
down the amendment, the seven-justice bench, speaking through Chief Justice Ali Shah,
found that the salient features of the preamble of the Constitution (which had been the
preamble of all four of Pakistan’s Constitutions) must be retained and not altered. These
unchangeable features were “federalism; parliamentary democracy and Islamic provisions
including independence of judiciary. Suddenly, Pakistan seemed to have a basic structure
doctrine as well. Yet, the very next year, another seven-justice bench found that there was no
basic structure doctrine, apparently overruling this new precedent. Since then, the Court has
leaned both ways, at times professing a basic structure doctrine while at other times
eschewing it. It has yet to be seen whether the Court will ultimately solidify or discard this
doctrine. Through a judge-made basic structure doctrine or un-amendable Constitutional
provisions, courts are being given a new structural role, acting as a review body, not only for
laws, but also Constitutional amendments. This role is part of a larger trend of creating new
structural checks on representative bodies through courts more generally.
In Thailand, the 2007 Constitution, which was drafted by a military junta and passed by
democratic referendum, prohibits amendments that “change the democratic regime of
government with the King as Head of State or change the form of State.” This passage is a
typical unamendable Constitutional provision, but the Constitution goes even further by
giving the judiciary new powers to control representative bodies. The upper judiciary has an
almost controlling hand in appointing half of the Senate. The Senate, along with the King, in
turn approves the heads of quasi-independent bodies, such as the ombudsman, public
prosecutor, and state audit commission. The Senate and these quasi-independent bodies all act
to check the power of the House of Representatives and executive.
In Iran, the Constitution makes both its Islamic and democratic character un-amendable, as
well as the objectives of the Republic (which include many social and economic goals), but
here, too, the Constitution goes even further. The Guardian Council in Iran must approve all
laws passed by Parliament and can veto them if they violate either Islamic law or the
Constitution. The Council also supervises elections and has the power to ban candidates from
running. In this way, the Council acts like a mixture of a Constitutional court, an upper
chamber or Parliament, and an election commission. The latter two are new roles that this
judicial institution was given to check Iran’s representative institutions. This judicial setup
helps maintain the power of the Supreme Leader, as half of the Council is appointed by the
Supreme Leader, while the other half is appointed by the head of the judiciary (who is also
appointed by the Supreme Leader).
In Bangladesh, where the two principal political parties are viciously distrustful of each other,
the Constitution directs a retired Chief Justice or another retired member of the higher
judiciary to head a caretaker government during elections. This function marks a new
institutional role for the judiciary, or more accurately the retired judiciary, to check the
representative branches. These new institutional arrangements in Thailand, Iran and
Bangladesh vividly illustrate how courts have risen in power, often out of an anxiety
surrounding, or distrust of, representative institutions. Iran and arguably Thailand are also
clear examples of how the broad role judiciaries now play can be used by elites to maintain
power, or at least to ensure that representative institutions do not run too far afoul of their
interests. At the same time the basic structure doctrine in India, and its fledgling arrival in
Pakistan, can more easily be seen as cases of courts interfering to ensure the survival and
operation of democratic institutions.
CONCLUSION
Subsequently, we find that basic structure as an idea has developed over years since its origin
in the 1970s, with each passing year there has been to an ever-increasing extent right being
incorporated into the basic structure of the Constitution. Basic structure as we see today is
consequently a finish of long periods of legal supervision of Rights and related constitutional
structure. Through the ‘rights chain’ we have substantiated that basic structure is a summit of
judicial decision to pick the simple best in the rights buffet and secure them despite
seemingly insurmountable opposition. In this way, an essential structure is the distillate of
centre natural rights, human rights and Fundamental Directly under the Indian situation. Be
that as it may, as we have seen the judiciary never gave a solid test to discover what basic
structure is leaving the definition so dubious that legal have abundant moving space. Be that
as it may, from dubious words like constitutional identity’, ‘basic value of constitution’, we
have discovered that dependent on the rights chain fundamental structure would be restricted
to natural rights and to those zones of lawful structure that straightforwardly influences those.
As a conclusion it may be said that the doctrine of basic structure of the Constitution is a
great Constitutional concept that has been formally engrafted upon the Constitution by the
judiciary s through the interpretative processes. The doctrine is well formulated and it has
maintained a balance between the rigidity and the flexibility of the Constitution. The basic
structure doctrine is the single most important factor that has made the survival of our
Constitution possible in its pristine form. It has served us well by effectively foreclosing the
possibilities of uncalled for tampering of the Constitution, abrogation of the primordial rights
necessary for the development of human personality, weakening the hold of Rule of
Law and maintaining balance between different organs of the State. It prevents the parliament
from having unconditional power and becoming the master of law itself. It has till date
proved to be a very effective tool in deciding the validity of the Constitutional amendments.
But whether this doctrine is sufficient to accommodate the change that may be required in
future needs to be further debated.
Nevertheless, there is no scope in denying the fact that this doctrine has served the country
very well during turbulent times when parliament was in a mood to resort to Article 368
recklessly. The Supreme Court has done a great service to the nation by declaring that there
are certain basic features of the Constitution which cannot be amended. It has necessarily
pointed out to the parliament that Constitution is not any party’s manifesto which can be
changed at their own will but is a national heritage which can be amended only when a
national consensus demands for it. Thus, the doctrine of basic structure may be allowed to
operate as the very watchdog of Constitutional governance. There can still be debates about
what constitutes basic structure. There is nothing wrong in such debates. We must remember
that politics in a democracy is necessarily full of debates and differences. That is a sign of
diversity, liveliness and openness.
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