The basic-structure doctrine, fifty years on: an instrument that outgrew its purpose

Kesavananda was conceived to defend the Constitution against a Parliament that had begun to amend it at will. Fifty years later, the doctrine has done its job — and a good deal more.

The basic-structure doctrine is the constitutional achievement most cherished by the legal profession in India. It was conceived in 1973 to defend the Constitution from a Parliament that had begun to amend it at will. Fifty years later, the doctrine has done its job. It has also done a good deal more. The Court that delivered Kesavananda Bharati created a tool to check Parliament; the Court that holds it today uses the same tool to check itself, the executive, and large parts of the constitutional order that the Constitution itself drew. We do not talk enough about what that expansion has cost.

What Kesavananda actually decided

The 1973 judgment, in its narrowest reading, did one thing: it held that Article 368 does not give Parliament a power to abrogate the basic structure of the Constitution. That holding had a specific target. The 24th, 25th and 29th Constitutional Amendments had been passed in response to Golak Nath, and they sought to place certain laws beyond judicial review. The seven-judge majority in Kesavananda said: Parliament can amend the Constitution; it cannot replace it.

What the basic-structure doctrine became after 1973 is a different matter. It travelled from Article 368 (where it lived in the original judgment) into challenges to ordinary legislation, into challenges to executive action, into challenges to constitutional amendments that had nothing to do with the structure of the Constitution as Granville Austin or B.N. Rau would have understood the term. Each of these expansions was justified, in turn, by the previous one. Today, almost any contested constitutional question can be reframed as a basic-structure question if the litigant has a competent enough counsel.

The expansion in three moves

The first move was vertical. Indira Nehru Gandhi v. Raj Narain (1975) extended the doctrine to strike down the 39th Amendment, which sought to validate the Prime Minister's election. This was uncontroversial — the amendment was a self-serving piece of partisan legislation — but it established that the Court would use the doctrine on amendments not directly aimed at the structure of the Constitution at all.

The second move was horizontal. Minerva Mills (1980) struck down provisions of the 42nd Amendment, including the clause that had purported to exclude the basic-structure review itself. The Court read into the doctrine a principle of judicial review and held that judicial review is itself basic structure. The reasoning has the elegance of a snake eating its tail. It is also the moment at which the doctrine became unfalsifiable.

The third move was the most consequential, and the least examined. By the late 1990s, the basic-structure doctrine had begun to migrate from cases involving constitutional amendments into cases involving ordinary statutes. L. Chandra Kumar v. Union of India (1997), striking down clauses of the Administrative Tribunals Act, was the watershed. The Court had moved from "Parliament cannot abrogate the basic structure through Article 368" to "Parliament cannot abrogate the basic structure through any law," with the latter now serving as a freestanding ground of unconstitutionality. The shift was justified on the grounds that any other rule would let Parliament do indirectly what it could not do directly. This is true, but it is also a shift in kind, not in degree.

The cost: judicial supremacy without the discipline of text

The standard defence of the doctrine is that the Constitution is a transformative document and that a flexible reading is necessary to protect it. I find this defence uncompelling, for two reasons.

The first is that the doctrine has no textual foundation. Article 368 says nothing about a basic structure. The structure-versus-amendment distinction is judicial creation. This is not, in itself, a fatal objection — most live constitutional doctrine in India is judicial creation — but it means that the doctrine's content is whatever the Court of the day says it is. Indira Sawhney declared the rule-of-law to be basic structure; I.R. Coelho added the Ninth Schedule treatment; Kihoto Hollohan added free elections. Each addition was sensible in isolation; each addition was also a transfer of decision-making power from Parliament to the Court.

The second is that the doctrine has no internal limits. There is no test for what counts as basic structure other than what five judges, on a particular day, decide counts as basic structure. This is not a hidden flaw in the doctrine; it is the doctrine's design. The doctrine was built to give the Court the last word on what the Constitution means at a structural level, and it has done so. The problem is that "the last word at the structural level" is now being asked to do work it was not built for. Tribunal autonomy, electoral freedom, the secularism of a particular government policy, the relationship between Centre and State on a particular fiscal question — all of these are now basic-structure questions. Each of them was, in the Constitution as drafted, a question for Parliament.

The counter-argument, addressed honestly

The strongest defence of the doctrine's expansion is institutional. India does not have a strong second chamber. It does not have a culture of executive self-restraint. It does not have the kind of deeply embedded political checks that allow other constitutional orders to manage with a thinner judicial review. In this environment, the argument runs, an expansive basic-structure doctrine is not a luxury — it is the structural reality that prevents constitutional decay.

There is real force to this. The 39th Amendment shows what an unrestrained Parliament can do in a moment of crisis. The Emergency itself shows what an unrestrained Executive can do. A Court that lacks the doctrinal tools to push back on those moments is a Court that has surrendered its function.

But the institutional defence proves too much. If the basic-structure doctrine exists because no other check works, then we have not designed a constitutional order — we have appointed a guardian. And a guardian, however wise, is not a structure. The Constitution as drafted contemplated a series of mutual checks: Parliament checking the Executive through confidence votes and budgetary control; the Executive checking Parliament through the President's assent and reserve powers; the judiciary checking both through judicial review of statutes and executive action. The basic-structure doctrine has gradually substituted itself for the first two. We have a constitutional system in which Parliament is checked by the Court, the Executive is checked by the Court, and the Court is checked by — itself.

What an honest reading would look like

An honest reading of the basic-structure doctrine would do three things. It would limit the doctrine to constitutional amendments, where its founders meant it to live. It would require the Court to articulate, in advance, what specific elements of the Constitution count as basic structure — not the open-ended list that has accumulated through case-by-case accretion. It would acknowledge that some questions the Court currently answers under the doctrine are simply political questions on which the Constitution has assigned the answer to Parliament, and let Parliament answer them.

None of this is a programme for reform. The Court will not adopt it; the political class has no interest in challenging it. The question I want to leave the reader with is a quieter one: when we celebrate the basic-structure doctrine, are we celebrating a constitutional achievement, or are we celebrating a particular judicial culture's mastery of the Constitution? The two are not the same thing.

What survives

What survives Kesavananda, properly read, is the holding that Parliament cannot use Article 368 to abrogate the Constitution. That holding is necessary, defensible, and limited. The doctrine that has grown around it is something else: an instrument of judicial supremacy without the discipline of text or the limits of structure. The first is constitutional law. The second is judicial culture. We should be willing to say so.