Article 368 – Boon Or Bane

Introduction- A Frame Work for Debating Basic Structure

It is tricky to fangle about the old themes, especially so when such ideas still continue as the staple feed of the contemporary world. The legal system is a hierarchical normative order.[1] Each norm in such an order derives authority from a higher norm.[2] It is important that the legal system must have uniformity, unity and coherence. In legal system the Constitution[3] written or unwritten is of the highest importance since it contains the norm of high authority. It is the basis from which individual norms develop. The constitution draws its nature, character and content from the basic norm of the legal system, as it lives closest to the basic norm. It is far less tricky to be persuaded about the usefulness of debating such popular themes in the manner of their importance. “Basic Structure” is one such recurring theme in the dynamics of the Indian Constitution. The doctrine speaks on behalf of constitutionalism essentialism and suggests that constitutional amendment cannot embrace repeal of such essentials which define the constitutional identity.

Any such developments, under the doctrine, are seen as a fundamental breach of the Constitution’s basic structure and are struck down as unconstitutional. Time and again, the Supreme Court of India has deliberated upon the stability of these amendments on the self-styled benchmarks of structural essentialism and much of the debate on the doctrine is all about the limits of the craft. Vigorously debated since its inception in Keshvananda Bharati[4], the doctrine continues to be a central feature of recent institutional development over constitutional identity and change. The story of how the “Basic Structure “has reshaped post-emergency constitutional thought in India has been often told and conclusions are drawn about the institutional harvests in the process. Elapse of time and changes in the social, economic and political sphere causes change in the legal system.

Though legal system has to adjust to the needs of the society, at times such changes may go the extent of destroying the identity of the legal system. It is not desirable that the essential feature of the legal system is swept away by such changes. Hence the major problem which legal system face is one of the balancing itself between the demands of continuity and stability on the one hand and change and flexibility on the other hand.[5] Though fundamental to legal system, Constitution is also the subject to changes. In the case of an unwritten Constitution, such changes occur involuntary, while in written Constitution are subject to changes through deliberations known as amendments. The dependability of the Constitution is “Sine qua non” for the absence of the possibility to make changes through extra-constitutional methods including revolutions.[6] Moreover, non-Admendability of the fundamental rights implies monopoly of a generation over the future which is an unacceptable proposition.[7]

Basic Structure Genesis

A Constitutional bench of the Supreme Court, consisting of thirteen judges held in Kesavananda Bharati v. State of Kerala[8] popularly called the fundamental Right case, that the power to amend the constitution emanates from Article 368 of the Constitution. It means that unlike the power to make the constitution, the power to amend it, is derivative in nature. The court further held that the expression “to amend” was one of the wide imports and included the power to repeal or abrogate the law; the expression in Article 368 was used in the narrow and constricted sense. Though not explicitly restricted over and above that, there are certain features of the Constitution which cannot be altered in exercise of amending power. The judges named them as basic structure, basic elements, and fundamental features, or the essential feature or the basic principle of the constitution.

Basic Structure Ingrendients

Though the court held that the power of Parliament to amend the Constitution was impliedly limited by the doctrine of basic structure but it did not clearly define or explain what constituted the basic structure. Chief justice Sikri suggested that supremacy of the Constitution, republican and democratic form of Government, secular characteristics of the Constitution, separation of powers and federal character of the Constitution were its ingredients[9]. He opined that the structure was built upon the dignity and freedom of the individuals. Justice Shelat and Justice Grover were of the view that in addition to the above-mentioned principles, the mandate to build a welfare state contained in Part IV of the Indian Constitution also formed the part of basic structure.[10] Justice Khanna identified the democratic and parliamentary form of government and secularism as constituting the basic structure of the Indian Constitution.[11] Justice Jagmohan Reddy catalogued the Sovereign Democratic Republic; Justice, Social, Economic, Political; Liberty of thought, expression, belief, faith and worship and equality of status and opportunities as to the contents of “Basic Structure”.[12]


Therefore debating over the concept of whether “Article 368 is Boon or Bane” is deeply connected with the treasure hunt and is largely reliant on our ability to recognize and link up the various clues while keeping within the limits of the political and legal framework.

Prominent among ideas, the philosophical strength of the “Basic Structure” doctrine is of higher nature of constituent politics and thereby the higher pedigree of constituent power, over and above limits cast by the constitution. In short the doctrine of the basic structure has gained an incontrovertible status in the Indian Constitution. It is true that the judiciary has invented the doctrine of basic structure to tide over the scuffle between the ‘judiciary and legislature’ in an era of parliamentary supremacy. However with the change over time when the legislative supremacy is lost, instead of throwing the doctrine to desuetude, the judiciary has dovetailed the doctrine to the modern requirements of the present legal system.  It is unlikely that in the future the doctrine would be abrogated rolling back the constitutional position to the pre-Kesavananda days. Nor it is desirable also. Was not the statement[13] that “Kesavananda” is the constitution itself – a Pr

[1] Hans Kelsen, General Theory of Law and State, Harvard University Press, Cambridge, (1945), p.110.

[2] Norm’ is the meaning of an act by which a certain behaviour is commanded permitted, or authorised.” Kelsen, Pure Theory of Law, University of California, Berkeley (1970), p.5.

[3] Constitution may be defined as the “organic and fundamental law of a nation or state, which may be written or unwritten establishing the character and conception of its government laying down the basic principles to which its internal life is to be conformed…” See Black’s Law Dictionary (1990).

[4] Kesavananda Bharati v. State of Kerala and Another, AIR 1973 SC 1461. Basically, the idea that a few features of the constitutional structure are so fundamental that the Constitution cannot survive without them and together they constitute an inviolable core called the Basic Structure of the Indian Constitution.

[5] Paras Diwan and Piyush Diwan, Amending Power and the Constitutional Amendments, Deep and Deep, New Delhi (1997), p. 10

[6] H.R. Khanna, “Power to Amend the Constitution”, (1983) 2 S.C.C. (Jour.) 1.At the time of framing our Constitution M.V. Thyagi observed that in the absence of an amendment procedure the Constitution would be a brittle one. IX C.A.D. 1657.

[7] An unamendable constitution therefore is characterised as the worst tyranny of time or rather the very tyranny of time’. Per Subba Rao, C.J., in Golaknath v. State of Punjab, A.I.R. 1967 S.C. 1643 at p. 1662.

[8] (1973) 4 S.C.C. 225: A.I.R. 1973 S.C. 1461. The petitioner approached the Supreme Court under Article 32 for enforcement of his fundamental rights under Articles 25,26,14,19(1)(f) and 31 of the Constitution. He challenged the validity of the Kerala Land Reforms Act, 1963 as amended by the Kerala Land Reforms (Amendment) Act 1969. During the pendency of the petition the Constitution (Twenty fourth Amendment) Act 1971, the Constitution (Twenty fifth Amendment )Act 1972 and the Constitution (Twenty ninth Amendment) Act 1972 came into force, As a result of the 29′ amendment act the Kerala Land Reforms Act as amended was inserted in Schedule IX to the Constitution. Incorporation of statutes in Schedule IX immunizes them from being challenged as unconstitutional. The petitioner therefore challenged also the validity of those amendments to the Constitution.

[9] Sankari Prasad v. Union of India, A.I.R 1951 S.C. 458; Sajjan Singh v. State of Punjab, A.I.R 1965 S.C. 745 and Golaknath v. State of Punjab, A.I.R 1967 S.C. 1463.

[10] Madhav Rao Scindia v. Union of India (1971) 3 S.C.R. 9

[11] Bijay Cotton Mills v. State of Ajmir, A.I.R. 1955 S.C. 33 and Mumbai Kamgar Sabha v. Abdulbahi, A.I.R. 1976 S.C. 1455

[12] I.P. Massey, “Theory of Basic Features-A Dogma or Doctrine”, 7 J.B.C.I. 38. 43(1977). Also Ramesh D.Garg, “Phantom of Basic Structure of the Constitution : A Critical Appraisal of the Kesavananda Case”, 16 J.I.L.I. 243 (1974).

[13] Upendra Baxi, Courage, Craft and Contention—The Supreme Court in the 80’s, N.M.Tripathi, Bombay (1985), p. 66.

Pranav Kaushal

Pranav Kumar Kaushal, Content Writter, Law Corner, Student B.A., LLB 7th Semester, School of Law, Bahra University, Shimla, Himachal Pradesh.

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