Redefining Article 368: Golaknath, Kesavananda Bharati, and the Emergence of the Basic Structure Doctrine in Indian Constitutional Jurisprudence
The Indian Constitution is remarkable for its carefully balanced architecture that guarantees Fundamental Rights, while allowing flexibility through a structured amendment process under Article 368. However, the legal and philosophical tensions between constitutional supremacy and parliamentary sovereignty came to a head in two landmark Supreme Court decisions: Golaknath v. State of Punjab (1967) and Kesavananda Bharati v. State of Kerala (1973). These verdicts critically redefined the amendability of Fundamental Rights, reinterpreted the scope of Article 368, and led to the emergence of the basic structure doctrine, which today remains a cornerstone of Indian constitutionalism.
This essay critically examines the extent to which Golaknath and Kesavananda Bharati redefined the constitutional limits of Article 368, focusing on the amendability of Fundamental Rights, and evaluates how these rulings shaped the theory and practice of constitutional sovereignty in India.
I. Article 368: Original Design and Constitutional Intention
Article 368 of the Constitution of India empowers Parliament to amend the Constitution. It initially conferred wide authority to alter any provision, including those relating to Fundamental Rights, provided the procedural requirements—such as special majority and, in some cases, ratification by half of the states—were satisfied.
The early judicial approach, particularly in Shankari Prasad v. Union of India (1951) and Sajjan Singh v. State of Rajasthan (1965), upheld this expansive view, maintaining that amendments under Article 368 were not ‘law’ under Article 13, and thus could override or curtail Fundamental Rights. These judgments reinforced the parliament-centric model of constitutional change.
II. Golaknath v. State of Punjab (1967): Judicial Assertion of Fundamental Rights
In Golaknath, the Supreme Court by a narrow 6:5 majority overturned the precedent, holding that:
- Amendments under Article 368 are ‘law’ within the meaning of Article 13(2), which prohibits the state from making laws that abridge or take away Fundamental Rights.
- Therefore, Parliament cannot amend Part III of the Constitution to abridge Fundamental Rights.
- Article 368 merely lays down the procedure, not the power, to amend the Constitution; the amending power is derived from legislative authority under Article 245 and is limited by Article 13.
This judgment marked a doctrinal rupture in Indian constitutional law. By asserting that Fundamental Rights are inviolable, Golaknath placed individual liberty above legislative supremacy, thereby imposing substantial limitations on constitutional amendments.
However, the judgment attracted criticism for being inconsistent with constituent power theory, overly rigid, and doctrinally strained, especially in equating constitutional amendments with ordinary legislation. It also precipitated political confrontation, prompting Parliament to pass constitutional amendments (24th, 25th, 29th) that reaffirmed its authority to amend any part of the Constitution, including Fundamental Rights.
III. Kesavananda Bharati v. State of Kerala (1973): Balancing Supremacy and Structure
The stage was set for judicial reconsideration in Kesavananda Bharati, a case challenging the validity of several constitutional amendments, including those aimed at overturning Golaknath. In a 13-judge bench—the largest ever in Indian history—the Supreme Court delivered a deeply divided but historic verdict:
- By a 7:6 majority, the Court held that Parliament can amend any part of the Constitution, including Fundamental Rights.
- However, it cannot alter the ‘basic structure’ or essential features of the Constitution.
This formulation introduced the Basic Structure Doctrine, which has since become a foundational principle in Indian constitutional jurisprudence. While the judgment allowed the reversal of Golaknath’s literal reading of Article 13, it institutionalized judicial oversight over constitutional amendments.
Basic Structure: Components and Contours
The Court did not provide an exhaustive list, but subsequent jurisprudence has identified the following as part of the basic structure:
- Supremacy of the Constitution
- Republican and democratic form of government
- Secularism
- Separation of powers
- Judicial review
- Fundamental Rights
- Federalism
Thus, Kesavananda Bharati reconciled two competing imperatives:
- Preserving the flexibility and supremacy of Parliament to meet the changing needs of society.
- Safeguarding the core identity and liberal-democratic foundations of the Constitution from majoritarian excesses.
IV. Impact and Legacy
A. Constitutionalism and Judicial Review
Kesavananda Bharati empowered the judiciary to act as the ultimate guardian of the Constitution. Judicial review was no longer confined to legislative acts; even constitutional amendments were now subject to substantive scrutiny. This reshaped the theory of constituent power in India—linking it to popular sovereignty mediated through constitutional morality, not merely parliamentary action.
B. Reinforcement through Later Rulings
The basic structure doctrine has been repeatedly invoked to check parliamentary overreach:
- Indira Nehru Gandhi v. Raj Narain (1975): Struck down provisions immunizing election disputes from judicial review.
- Minerva Mills v. Union of India (1980): Asserted balance between Fundamental Rights and Directive Principles as part of the basic structure.
- I.R. Coelho v. State of Tamil Nadu (2007): Extended the doctrine to the Ninth Schedule, ensuring that no law—even if immunized—could violate core constitutional values.
This line of jurisprudence affirms that constitutional amendments are not above the Constitution itself.
C. Political-Institutional Implications
- Parliament’s amending power is supreme but not absolute.
- Executive-legislative coalitions must now consider judicial standards of constitutional legitimacy.
- Constitutional design is treated as normatively fixed, with procedural change allowed only within a substantive framework.
V. Normative and Theoretical Reflections
A. Constitutional Supremacy vs. Parliamentary Sovereignty
The Indian model, post-Kesavananda, rejects the Westminster notion of absolute parliamentary sovereignty. Instead, it endorses constitutional supremacy grounded in democratic values and rule of law. This model places ultimate sovereignty in the Constitution, not in any organ of the state.
B. Counter-Majoritarian Safeguard
By asserting that even elected majorities cannot override foundational principles, the doctrine serves as a counter-majoritarian mechanism, essential in a diverse, pluralistic democracy.
Critics argue that it allows judicial overreach and risks substituting judicial will for constituent authority, especially since the doctrine is not textually rooted. However, its defenders argue that it is a necessary constitutional bulwark against transient populist or authoritarian tendencies.
Conclusion
The Supreme Court’s rulings in Golaknath and Kesavananda Bharati fundamentally restructured the constitutional logic of Article 368, marking a transition from legislative supremacy to constitutional supremacy. Golaknath asserted the inviolability of Fundamental Rights, albeit in a flawed doctrinal manner, while Kesavananda Bharati refined this position by introducing the basic structure doctrine—a jurisprudential innovation that preserves the normative core of the Constitution while allowing for pragmatic change.
Today, the doctrine stands as a unique Indian contribution to comparative constitutional theory, blending liberal constitutionalism, judicial accountability, and democratic resilience. It affirms that the Constitution is not merely a legal document, but a living social contract, whose integrity must be preserved against both executive overreach and legislative absolutism.
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