Basic Structure Doctrine: The idea and the road to 1973

Statement 2 is correct: since Kesavananda Bharati (1973), every constitutional amendment is open to challenge on the ground that it damages the basic structure. Statement 1 is incorrect: judicial review has been declared a basic feature, so Parliament cannot abolish it even by a special majority. In Indira Nehru Gandhi (1975) the Court struck down clause (4) of Article 329A, which excluded judicial scrutiny of the PM's election, and in Minerva Mills (1980) it struck down Article 368(4), which tried to bar review of amendments.

In Kesavananda Bharati v. State of Kerala, decided on 24 April 1973 by a 13-judge Bench by a 7:6 majority, the Court upheld the 24th Amendment and so accepted that Parliament can amend Fundamental Rights. It overruled Golaknath (1967), but added the new limit that an amendment cannot alter the basic structure. The Court also held that the Preamble is part of the Constitution and can be amended, subject to the same limit. Part of Article 31C, added by the 25th Amendment, was struck down.

Statement 1 is correct: in Sajjan Singh v. State of Rajasthan (1965) the Supreme Court upheld the 17th Amendment (1964), which added more land laws to the Ninth Schedule, and reaffirmed that Article 368 includes the power to amend Fundamental Rights. Statement 2 is incorrect: the Court followed Shankari Prasad (1951), which had upheld the 1st Amendment on the same reasoning that an amendment is not 'law' under Article 13. Two judges voiced doubts, and the view was reversed only in Golaknath (1967).

Only two. Judicial review has been held a basic feature in several cases, including Minerva Mills (1980) and L. Chandra Kumar (1997), and free and fair elections were treated as part of democracy, a basic feature, in Indira Nehru Gandhi v. Raj Narain (1975). The right to property was removed from Part III by the 44th Amendment (1978) and is now only a constitutional right under Article 300A, so it is not a basic feature. A bicameral legislature is not required in every State; Article 168 provides for Councils in only some States.

Statement 1 is correct: the 25th Amendment Act, 1971 replaced the word 'compensation' with 'amount' in Article 31(2), so that the adequacy of payment for acquired property could not be questioned, and it also inserted Article 31C. Statement 2 is incorrect: Kesavananda upheld the Amendment and the first part of Article 31C, which protected laws giving effect to Article 39(b) and (c). It struck down only the second part, under which a declaration that a law gives effect to that policy could not be questioned in any court.

Both statements are correct. Golaknath v. State of Punjab (27 February 1967) was heard by an eleven-judge Bench, the largest till then, and decided by a 6:5 majority. Chief Justice K. Subba Rao wrote the leading majority opinion, holding that an amendment is 'law' under Article 13(2), so Parliament cannot take away or abridge Fundamental Rights. The Court applied this only prospectively, leaving earlier amendments intact. The 24th Amendment (1971) and Kesavananda (1973) later undid this view.

Neither statement is correct. The basic structure doctrine applies to an amendment of any Part of the Constitution, not only Part III; for example, in Minerva Mills (1980) the Court struck down clauses (4) and (5) of Article 368 itself, and in Kihoto Hollohan (1992) it tested the Tenth Schedule. Statement 2 is also wrong: State ratification is only a procedural requirement for federal provisions. Even an amendment passed by special majority and ratified by every State is void if it destroys a basic feature, because the limit is on substance.

S. M. Sikri was Chief Justice of India when the 13-judge Bench delivered Kesavananda Bharati on 24 April 1973, and he retired the next day. On 26 April 1973, A. N. Ray was appointed Chief Justice, superseding three senior judges (J. M. Shelat, K. S. Hegde and A. N. Grover) who had been in the majority. P. B. Gajendragadkar was CJI in 1964–66 and led Sajjan Singh (1965), while K. Subba Rao led the Golaknath majority in 1967.