Explained | Understanding the ‘basic structure’ of the Constitution and Jagdeep Dhankar’s criticism of it

A look at the features and evolution of the “basic structure” doctrine propounded in the landmark Kesavananda Bharati case.

The story so far: Vice-President and Rajya Sabha Chairman Jagdeep Dhankar’s recent public criticism of the judiciary and remark that courts cannot dilute “parliamentary sovereignty” sparked a debate on the separation of powers, bringing the focus back to the “basic structure” doctrine of the Constitution.

In the backdrop of the ongoing tussle between the executive and the judiciary over the collegium system of appointing judges, the Vice-President once again raked up the Supreme Court verdict which struck down the National Judicial Appointments Commission (NJAC) and the 99th Amendment in 2015.

During his inaugural address at the 83rd All India Presiding Officers Conference, Mr. Dhankar questioned the landmark Kesavananda Bharati case verdict, voicing his disagreement with the top court ruling that Parliament can amend the Constitution but not its basic structure. He said that he does not subscribe to the idea that the judiciary can strike down amendments passed by the legislature on the ground that they violate the ‘basic structure’ of the Constitution.

What is the basic structure doctrine? 

In 1973, a 13-judge Constitution Bench ruled in Kesavananda Bharati v. State of Kerala that Article 368 of the Constitution does not enable Parliament to amend the basic framework of the document. The historic ruling came to be known as the “basic structure” doctrine — a judicial principle that the Constitution has certain basic features that cannot be altered or destroyed by amendments by Parliament. Over the years, various facets of the basic structure doctrine have evolved, forming the basis for judicial review of Constitutional amendments.

How did it evolve?

The Kesavananda Bharati case was the culmination of a conflict between the judiciary and the then-Indira Gandhi-led government. In I.C. Golak Nath v. State of Punjab (1967), the Supreme Court held that Parliament could not curtail fundamental rights guaranteed under the Constitution.