Doctrine of Basic Structure: A Critique

Abstract

It is generally claimed that the doctrine of basic structure (hereinafter, doctrine) was ‘invented’ by the Supreme Court of India in Keshavananda Bharati Sripadagalvaru Case on April 24, 1973. The Paper argues that this claim is unfounded as worst and misinformed at best. Genesis of this doctrine is traceable to the US Supreme Court in Mitchell v. Palmer (1919) and the lecture of a German Professor, Dietrich Conrad at Faculty of Law, Banaras Hindu University, Varanasi in February 1965. Pakistan Supreme Court in Fazlul Quader Chowdhry v. Mohd. Abdul Haque (1963) has also talked about this doctrine. This paper seeks to trace the historical development of the doctrine of basic structure through academic writings and case law. Further, an attempt will be made to answer three questions. First, whether the amending power of Parliament is absolute. Second, whether there is a clarity as to the basic constituents of the basic structure of the Constitution. Third, whether the basic constituents are static or dynamic. For the sake of convenience, this paper has been divided into IV Parts. Part I gives an outline of the paper. Part II makes an attempt to trace the development of doctrine by discussing Shankari Prasad v. Union of India (1951); Sajjan Singh v. State of Rajasthan (1964), I. C. Golakhnath v. State of Punjab (1967), and Keshavananda Bharati (1973). Part III discusses the aftermath of Keshavananda Bharati by covering I. R. Coelho v. State of Tamil Nadu (2007), Pramati Educational and Cultural Trust v. Union of India (2014) and Supreme Court Advocates-on-Record Association v. Union of India [NJAC judgment] (2015); and ends with the answer of the above questions and conclusion in Part IV.