What is Doctrine of Basic Structure of the Constitution?

January 13, 2023

Recently, Vice President Jagdeep Dhankhar sparked a debate on the separation of powers between the executive and the judiciary. He criticized the Supreme Court for using the doctrine of basic structure to strike down the constitutional amendment that introduced the National Judicial Appointments Commission Act. In his maiden speech in the Rajya Sabha, Dhankhar had referred to the striking down of the NJAC Act as a “severe compromise” of parliamentary sovereignty and disregard of the “mandate of the people”. This article will examine the basic structure doctrine and its impact on the powers of the legislature.

What is the Basic Structure Doctrine?

The Doctrine of Basic Structure is a form of judicial review that is used to test the legality of any legislation by the courts. It was evolved by the Supreme Court in the 1973 landmark ruling in Kesavananda Bharati v State of Kerala. In a 7-6 verdict, a 13-judge Constitution Bench ruled that the ‘basic structure’ of the Constitution is inviolable and cannot be amended by Parliament. If a law is found to “damage or destroy” the “basic features of the Constitution”, the Court declares it unconstitutional. The test is applied to constitutional amendments to ensure that the amendment does not dilute the fundamentals of the Constitution itself.

The test is widely regarded as a check on majoritarian impulses of the Parliament since it places substantive limits on the power to amend the Constitution. The Court had to examine the scope of the Parliament’s power to amend the Constitution and the legality of land reforms. The 13-judge bench gave 11 separate judgments and the doctrine was culled out as the majority opinion in the case. The Court ruled that while Parliament has vast powers to amend the Constitution, it cannot amend certain “basic features”. On land reforms, the Court upheld the amendment that removed the fundamental right to property and ruled that in spirit, the amendment would not violate the “basic structure” of the Constitution.

Origins of the Basic Structure Doctrine

The origins of the basic structure doctrine are found in the post-war German Constitution law which, after the Nazi regime, was amended to protect some basic laws. Jurist Nanbhoy Palkhivala who appeared against the government relied on the writings of Professor Dietrich Conrad in support of the basic structure doctrine.

What are the Basic Features of the Indian Constitution?

In the Kesavananda ruling, the Supreme Court cited several aspects of the Constitution that could be identified as “basic features” of the document but added that it was not an exhaustive list. For example, judicial review, rule of law, federalism, and democratic republic structure are identified as basic features. In the 2015 ruling where the Supreme Court struck down the National Judicial Appointments Commission Act and the related Constitutional Amendment, “judicial independence” was identified as a basic feature of the Constitution.

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