Basic Structure Doctrine vs Parliamentary Sovereignty: The Constitutional Equilibrium in Indian Democracy

Introduction

The Indian Constitution represents a delicate balance between flexibility and rigidity, between the need for evolutionary change and the preservation of fundamental values. At the heart of this constitutional framework lies an enduring tension between two competing principles the Basic Structure Doctrine and parliamentary sovereignty in India. This constitutional tension has shaped the relationship between the legislature and the judiciary for over five decades, defining the limits of Parliament’s amending power under Article 368 while safeguarding the foundational principles of Indian democracy. The Basic Structure Doctrine, developed through judicial interpretation, holds that certain fundamental features of the Constitution cannot be altered even by constitutional amendment, whereas parliamentary sovereignty emphasizes the authority of elected representatives to effect constitutional change. Understanding how these principles interact is essential to appreciating how Indian constitutional law balances democratic governance with constitutional continuity, allowing the Constitution to evolve without losing its core identity.

Historical Evolution and Constitutional Foundations

The Amendment Power under Article 368

The framers of the Indian Constitution deliberately adopted a middle path between the rigid American model and the flexible British parliamentary system. Article 368 of the Indian Constitution provides Parliament with the power to amend the Constitution by way of addition, variation, or repeal of any provision.[1] This article establishes a special procedure requiring a bill to be passed in each House by a majority of the total membership and by a majority of not less than two-thirds of the members present and voting. For certain amendments affecting the federal structure, distribution of powers, or the judiciary, ratification by at least half of the state legislatures is also required before the President gives assent.

The procedure outlined in Article 368 reflects the founding fathers’ intention to create a Constitution that could adapt to changing social, economic, and political circumstances. During debates in the Constituent Assembly, Jawaharlal Nehru emphasized the importance of maintaining flexibility in the Constitution to meet future challenges. However, the extent of this amending power and whether it was absolute or subject to inherent limitations became a matter of intense constitutional debate in the decades following independence.

Early Judicial Interpretations

In the initial years after independence, the Supreme Court of India took a liberal view of Parliament’s amending power. In Shankari Prasad Singh Deo v. Union of India (1951), the Court upheld the First Amendment Act which curtailed the right to property, ruling that Article 368 conferred upon Parliament the power to amend any part of the Constitution, including fundamental rights.[2] The Court held that constitutional amendments were not “laws” within the meaning of Article 13, and therefore could not be challenged for violating fundamental rights. This position was reiterated in Sajjan Singh v. State of Rajasthan (1965), where the Court confirmed Parliament’s authority to amend fundamental rights.

However, the judicial perspective began to shift with the landmark case of I.C. Golaknath v. State of Punjab (1967). In this case, an eleven-judge bench held that Parliament could not curtail or take away fundamental rights through constitutional amendments. The Court reasoned that constitutional amendments were “laws” under Article 13 and therefore subject to judicial review. This decision marked a significant departure from earlier precedents and set the stage for a confrontation between Parliament and the judiciary over the scope of amending power.

The Kesavananda Bharati Case: Birth of the Basic Structure Doctrine

Background and Context

The most significant turning point in Indian constitutional history came with the case of His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala (1973).[3] The case originated from a challenge by Swami Kesavananda Bharati, head of the Edneer Mutt in Kerala, against the Kerala Land Reforms Act which imposed restrictions on the management of religious property. However, the case evolved into a broader constitutional challenge against the Twenty-Fourth, Twenty-Fifth, and Twenty-Ninth Constitutional Amendments, which Parliament had enacted to overcome the Golaknath judgment and expand its amending powers.

The case was heard by the largest Constitutional Bench in Indian history, comprising thirteen judges. Arguments continued for sixty-eight days, from October 1972 to March 1973, with eminent jurists including Nani Palkhivala and H.M. Seervai presenting their cases. The voluminous judgment, running into over seven hundred pages, was delivered on April 24, 1973.

The Landmark Judgment

By a narrow majority of seven to six, the Supreme Court propounded the Basic Structure Doctrine, fundamentally altering the constitutional landscape of India. The majority held that while Parliament possesses wide powers to amend the Constitution under Article 368, it cannot alter or destroy the basic structure or essential features of the Constitution. Chief Justice S.M. Sikri articulated several features that constitute the basic structure, including the supremacy of the Constitution, republican and democratic form of government, secular character, separation of powers between the legislature, executive, and judiciary, and the federal character of the Constitution.

Justice Hans Raj Khanna, whose opinion proved crucial to the majority, emphasized that the Constitution has certain basic features representing constitutional principles and values that cannot be destroyed through amendments. Justice Hegde and Justice Mukherjea identified a shorter list of basic features including the sovereignty of India, democratic character, unity and integrity of the nation, and essential features of individual freedoms. The judgment effectively overruled the Golaknath decision regarding the source of amending power but accepted its underlying premise that there are inherent limitations on Parliament’s constituent power.

Application and Evolution of the Basic Structure Doctrine

Indira Nehru Gandhi v. Raj Narain (1975)

The first significant application of the Basic Structure Doctrine came in Indira Nehru Gandhi v. Raj Narain (1975).[4] This case arose from an election petition challenging the election of Prime Minister Indira Gandhi on grounds of electoral malpractice. After the Allahabad High Court declared her election void, Parliament enacted the Thirty-Ninth Constitutional Amendment, which introduced Article 329A. This provision placed the elections of the President, Vice-President, Prime Minister, and Speaker of the Lok Sabha beyond judicial scrutiny.

The Supreme Court struck down Article 329A(4) as violating the basic structure of the Constitution. The Court held that free and fair elections are an essential feature of democracy and constitute part of the basic structure. The judgment affirmed that judicial review is integral to the Constitution’s basic structure and cannot be excluded through constitutional amendments. This decision demonstrated that the Basic Structure Doctrine was not merely theoretical but would be actively applied to invalidate constitutional amendments that violated fundamental constitutional principles.

Minerva Mills Ltd. v. Union of India (1980)

The Basic Structure Doctrine was further strengthened and refined in Minerva Mills Ltd. v. Union of India (1980).[5] This case challenged provisions of the Forty-Second Constitutional Amendment Act of 1976, enacted during the Emergency period. The amendment had attempted to give unlimited power to Parliament to amend the Constitution and had sought to give primacy to Directive Principles of State Policy over Fundamental Rights under Articles 14 and 19.

Chief Justice Y.V. Chandrachud, writing for the majority, struck down clauses (4) and (5) of Article 368 which had been inserted by the Forty-Second Amendment. The Court held that since the Constitution had conferred a limited amending power on Parliament, Parliament could not use that limited power to grant itself unlimited power. The judgment emphasized that the limited amending power itself is a basic feature of the Constitution. The Court also held that the balance between Fundamental Rights and Directive Principles is an essential feature of the basic structure, and this harmony cannot be disturbed by giving absolute primacy to either part over the other.

Parliamentary Sovereignty in the Indian Context

Conceptual Framework

Parliamentary sovereignty, as conceived in British constitutional law, holds that Parliament has the right to make or unmake any law, and no other body can override or set aside parliamentary legislation. A.V. Dicey, the eminent constitutional scholar, described parliamentary sovereignty as one of the defining characteristics of the British constitution. In the United Kingdom, Parliament is supreme, and there exists no written constitution that limits its legislative authority.

However, the Indian constitutional system does not recognize absolute parliamentary sovereignty. India follows constitutional supremacy rather than parliamentary supremacy. The Constitution is the supreme law of the land, and all organs of government, including Parliament, derive their powers from it and must function within its limitations. The preamble to the Constitution states that “We, the People of India” gave to ourselves this Constitution, indicating that sovereignty resides in the people and not in any organ of government.

Limitations on Parliamentary Power

The Indian Constitution imposes several limitations on parliamentary sovereignty. First, the federal structure of the Constitution divides legislative powers between the Union and the States through the Seventh Schedule. Parliament cannot legislate on subjects in the State List except under specific circumstances. Second, Part III of the Constitution guarantees Fundamental Rights to citizens, and Article 13 declares that any law inconsistent with or in derogation of these rights is void. This provision establishes judicial review as a check on legislative power.

Third, the separation of powers between the legislature, executive, and judiciary, though not absolute in India, creates a system of checks and balances. The judiciary has the power to review legislative and executive actions for constitutional validity. Fourth, and most significantly, the Basic Structure Doctrine limits Parliament’s amending power by prohibiting amendments that alter or destroy the essential features of the Constitution. These limitations ensure that while Parliament has wide legislative and constituent powers, these powers are not unlimited or absolute.

The Constitutional Balance: Harmony Between Competing Principles

The Complementary Nature of Basic Structure Doctrine and Parliamentary Sovereignty Power

Rather than viewing the Basic Structure Doctrine and Parliamentary Sovereignty as inherently conflicting principles, they can be understood as complementary elements that together maintain constitutional equilibrium. The doctrine does not deny Parliament’s amending power but defines its legitimate boundaries. Parliament retains the authority to amend any provision of the Constitution, including fundamental rights, as long as such amendments do not violate the basic structure. This allows for necessary constitutional evolution while protecting core constitutional values.

The Supreme Court has clarified that the basic structure doctrine aims to preserve the rule of law, which is essential for maintaining a democratic system. It prevents the concentration of unlimited power in any single organ of government, including Parliament, and reinforces the principle of constitutional supremacy. By establishing certain constitutional features as non-amendable, the doctrine ensures that temporary political majorities cannot fundamentally alter the character of the Indian polity. In this sense, the balance between the Basic Structure Doctrine and parliamentary sovereignty operates as a structural safeguard for constitutional democracy itself.

Judicial Review as a Democratic Check

Critics of the Basic Structure Doctrine argue that it undermines democratic principles by allowing unelected judges to override the will of elected representatives. However, supporters contend that judicial review, including review of constitutional amendments, is itself a basic feature of Indian constitutional democracy. The doctrine protects minority rights and constitutional values from erosion by majoritarian impulses. It ensures that constitutional amendments reflect genuine constitutional transformation rather than partisan political objectives.

The doctrine also compels Parliament to engage in more careful deliberation when proposing constitutional amendments. Knowing that amendments violating basic features will be struck down encourages thorough debate and broader consensus-building. This arguably strengthens rather than weakens democratic decision-making by ensuring that fundamental constitutional changes have wide support and do not merely reflect temporary political considerations.

Regulatory Framework and Constitutional Provisions

Article 368: The Amendment Procedure

Article 368 establishes the procedure for constitutional amendments in India. Clause (1) explicitly states that Parliament may, in exercise of its constituent power, amend by way of addition, variation, or repeal any provision of the Constitution in accordance with the procedure laid down in the article. Clause (2) provides that an amendment bill must be passed in each House by a special majority—a majority of the total membership and not less than two-thirds of members present and voting.

The proviso to Clause (2) identifies certain provisions that require additional ratification by at least half of the State legislatures. These include provisions relating to the election of the President, the extent of executive power of the Union and States, the Supreme Court and High Courts, distribution of legislative powers between the Union and States, and the amendment procedure itself. This requirement ensures that changes affecting the federal structure have the consent of the States, maintaining the balance between Union and State powers.

Judicial Interpretation and Evolution

While Article 368 provides the formal mechanism for amendments, judicial interpretation through landmark cases has given it substantive content. The Twenty-Fourth Amendment (1971) amended Article 368 to clarify that Parliament has the power to amend any provision of the Constitution and made it obligatory for the President to give assent to constitutional amendment bills. However, the Kesavananda Bharati judgment established that this power, though wide, is not unlimited.

The interplay between Article 368 and Article 13 has been crucial in defining the scope of amendment power. Article 13 declares laws inconsistent with fundamental rights to be void, but Clause (4) of Article 13, added by the Twenty-Fourth Amendment, states that nothing in Article 13 shall apply to amendments made under Article 368. Nevertheless, the Supreme Court held in Kesavananda Bharati that while constitutional amendments are not “laws” under Article 13, they remain subject to the basic structure limitation derived from the Constitution’s overall scheme and purpose.

Contemporary Relevance and Ongoing Debates

Recent Challenges and Applications

The Basic Structure Doctrine continues to play a vital role in contemporary constitutional adjudication. In 2015, the Supreme Court struck down the Ninety-Ninth Constitutional Amendment Act and the National Judicial Appointments Commission Act, holding that they violated the independence of the judiciary, which is part of the basic structure. This decision sparked significant debate about the appropriate balance between judicial independence and democratic accountability in judicial appointments.

The doctrine has also been invoked in cases involving reservations, electoral reforms, and fundamental rights. Each application of the doctrine requires careful judicial reasoning to determine whether a particular amendment violates an essential feature of the Constitution. The Supreme Court has emphasized that not every constitutional provision is part of the basic structure, and the determination must be made on a case-by-case basis through rigorous constitutional analysis.

Criticisms and Responses

The Basic Structure Doctrine faces several criticisms. Some argue that it is inherently vague because the Constitution does not explicitly enumerate the basic features, leaving it to judicial discretion. Different judges in Kesavananda Bharati identified different elements as part of the basic structure, creating uncertainty about what exactly constitutes these inviolable features. Critics contend this vagueness allows judges to impose their personal views under the guise of constitutional interpretation.

Others argue that the doctrine lacks constitutional basis since it is a judge-made principle not found in the text of the Constitution. They question the legitimacy of judges creating such a fundamental limitation on parliamentary power without explicit constitutional authorization. However, supporters respond that the doctrine flows from the nature of the Constitution as a supreme law and from fundamental principles of constitutionalism. They argue that implied limitations on amending power are necessary to prevent the destruction of constitutional democracy itself.

Comparative Perspectives and Global Context

International Adoption of Basic Structure Concept

India’s Basic Structure Doctrine has influenced constitutional jurisprudence in other countries facing similar tensions between amendment power and constitutional preservation. Bangladesh adopted the doctrine in 1989 in Anwar Hossain Chowdhury v. Bangladesh, explicitly relying on the reasoning in Kesavananda Bharati. The Bangladeshi Supreme Court held that certain fundamental features of their Constitution, including democracy, socialism, secularism, and independence of the judiciary, cannot be amended.

Several other countries have developed similar concepts, though using different terminology. Germany’s constitution contains an “eternity clause” that prohibits amendments affecting human dignity, the democratic and federal structure, or basic principles of the constitutional order. This provides textual support for limitations on amendment power that India’s Basic Structure Doctrine achieves through judicial interpretation. The concept reflects a broader global recognition that constitutions must balance changeability with preservation of fundamental values.

The Indian Model’s Unique Contribution

India’s approach remains distinctive in deriving comprehensive limitations on amendment power entirely through judicial interpretation rather than explicit constitutional text. This demonstrates the creative capacity of constitutional courts to evolve constitutional principles that serve fundamental democratic values even when not expressly articulated in the constitutional document. The doctrine exemplifies how judicial review can serve as a guardian of constitutional democracy by preventing the subversion of fundamental constitutional principles through formal amendment procedures.

Conclusion

The relationship between the Basic Structure Doctrine and Parliamentary Sovereignty in India represents a sophisticated constitutional arrangement that balances competing values essential to democratic governance. Rather than absolute parliamentary supremacy or complete judicial supremacy, the Indian system creates a partnership between the legislature and judiciary in constitutional interpretation and evolution. Parliament retains wide powers to amend the Constitution to address changing societal needs, while the judiciary ensures that such amendments do not destroy the fundamental character of the constitutional order.

The Basic Structure Doctrine has proven to be one of the most significant contributions of Indian constitutional jurisprudence to global legal thought. It addresses a fundamental question faced by all constitutional democracies: how to allow necessary constitutional change while preventing the erosion of essential democratic values and institutions. By establishing that certain constitutional features are inviolable even through amendment, the doctrine protects constitutional democracy itself from temporary political majorities that might seek to fundamentally alter the nature of the polity.

As India continues its democratic journey, the balance between constitutional continuity and democratic change will remain central to constitutional development. The ongoing interaction between the Basic Structure Doctrine and parliamentary sovereignty requires sustained judicial wisdom to identify genuine violations of foundational constitutional principles while respecting Parliament’s legitimate authority to adapt the Constitution to evolving social, political, and economic circumstances. This dynamic equilibrium, born out of constitutional conflict and refined through decades of judicial reasoning, has become an integral part of India’s constitutional identity and a model for protecting fundamental constitutional values in democratic systems worldwide.

References

[1] Constitution of India, Article 368, https://legislative.gov.in/constitution-of-india 

[2] Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458, https://indiankanoon.org/doc/1926219/ 

[3] Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461, https://indiankanoon.org/doc/257876/ 

[4] Indira Nehru Gandhi v. Shri Raj Narain, AIR 1975 SC 2299, https://indiankanoon.org/doc/936707/ 

[5] Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, https://indiankanoon.org/doc/1939993/ 

[6] I.C. Golaknath v. State of Punjab, AIR 1967 SC 1643, https://indiankanoon.org/doc/120358/ 

[7] Supreme Court of India, Kesavananda Bharati Judgment Portal, https://judgments.ecourts.gov.in/KBJ/ 

[8] ConstitutionNet, “The Basic Structure of the Indian Constitution,” https://constitutionnet.org/vl/item/basic-structure-indian-constitution 

[9] India Corporate Law Blog, “Kesavananda Bharati v. State of Kerala and The Basic Structure Doctrine,” https://corporate.cyrilamarchandblogs.com/2017/09/kesavananda-bharati-v-state-kerala-basic-structure-doctrine/