On Basic Structure Doctrine, Rulings of the SC's First Five Judges Inspire Hope

While their reliance on the doctrine to interpret laws and constitutional provisions might have been limited, they do offer sufficient guidance for the future. 

This is the fifth article in a six-part series on the basic structure doctrine – which the Supreme Court of India propounded in 1973 when it said that there are features of the constitution which are unamendable under any circumstances. The Wire is revisiting the doctrine as various aspects of it figure in several important cases currently before the apex court.

Also read: Part I / Part II / Part III / Part IV / Part VI


The Indian Supreme Court currently has 30 judges and four vacancies. As the Supreme Court is set to hear several momentous cases of constitutional significance, The Wire takes a look at the judicial statistics of the 14 judges who have dealt with cases impinging on the basic structure doctrine (BSD) during their terms as judges of the apex court so far. This part discusses the cases heard by the first five judges of the Supreme Court. Part VI will discuss the cases decided by the remaining nine judges who, according to our search, dealt with the basic structure doctrine in their judgments. The data for this and the next part is drawn from the Advance Judge Analytics of the website manupatrafast.com.

1. Chief Justice of India S.A.Bobde: 

Date of appointment (DoA): 12-04-2013
Date of retirement (DoR): 23-04-2021
Number of judgments authored as SC judge so far:  65
Number of judgments in which he was cited: 57
Basic Structure cases heard as a Supreme Court judge: 3

In Justice K.S.Puttaswamy and Others v Union of India, the nine-judge bench, which Justice Bobde was part of, declared the right to privacy as a fundamental right. The case resulted in the overruling of four previous decisions of the court.

In his separate concurring opinion, Justice Bobde held that privacy constitutes the basic, irreducible condition necessary for the exercise of ‘personal liberty’ and freedoms guaranteed by the constitution. It is the inarticulate major premise in Part III of the constitution, he observed.

According to Indira Jaising, the phrase “inarticulate major premise”, first referred to by Justice Oliver Wendell Holmes in 1881 in his book, The Common Law, before he was appointed to the US Supreme Court in 1902, means that every judgment endorses and strengthens certain values, and undermines and delegitimises others. Even though the judges may not spell it out, one reads between the lines of every judgment, she explains. Although she explains it with reference to Justice Nariman’s judgment in the Triple Talaq case, it is useful to understand Justice Bobde’s reliance on it to emphasise the right to privacy.

By elevating right to privacy as an “inarticulate major premise” in Part III of the constitution, CJI Bobde could be said to have made a nuanced contribution to the understanding of the right and its relevance for the BSD.

CJI S.A. Bobde. Photo: PTI/File

In Jindal Stainless Limited and Others v State of Haryana and Others, he was again part of nine-judge bench which overruled three previous decisions of the court. In this case, separation of powers and federalism, apart from free trade commerce and intercourse guaranteed under Article 301 of the constitution were considered basic features of the constitution.

Justice Bobde, in his separate and concurring judgment, held that the premise on which tax can be imposed on supply of goods from other states (which are not manufactured within the taxing states) is the actual production or manufacture of similar goods, that are subject to like or similar tax. Absent this condition, he held that the levy would fall foul of Article 304(a) since it would constitute an additional burden (the goods already having suffered some form of taxation in the producing state). This interpretation, he reasoned, would also further economic progress and the unhindered availability of goods in states which do not have manufacturing capacities and may not be able to develop it, having regard to lack of natural resources or other geographical limitations. It also furthers the aims underlying Article 301 of the constitution, he observed.

Along with the other majority judges, Justice Bobde held that only such taxes as are discriminatory in nature are prohibited by Article 304(a), and therefore, levy of a non-discriminatory tax would not constitute an infraction of Article 301. The compensatory tax theory evolved in the Automobile Transport case and subsequently modified in the Jindal case was rejected.

In Abhiram Singh v C.D.Commachen, Justice Bobde was part of a seven-judge bench. He sided with the majority which relied on secularism as the basic feature of the constitution to hold that Section 123(3) of the Representation of the People Act, 1951 must be given a broad and purposive interpretation.

The majority judges brought within the sweep of ‘corrupt practice’ any appeal made to an elector by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate on the ground of religion, race, caste, community, or language of anyone, whether of the candidate or the voter. Justice Bobde, in his judgment, considered it an unreasonable shrinkage to hold that only an appeal referring to the religion of the candidate who made the appeal is prohibited and not an appeal which refers to the religion of the voter.

2. Justice N.V.Ramana: 

DoA: 17-02-2014
DoR: 26-08-2022
Number of judgments authored: 147
Number of judgments cited in: 120
Number of basic structure cases: 3

In Shrimanth Balasaheb Patil and Others v Hon’ble Speaker, Karnataka Legislative Assembly, the Justice Ramana-led three-judge bench held that the speaker is not empowered to disqualify any member till the end of the term of the assembly. Justice Ramana considered writ jurisdiction of the Supreme Court under Article 32 as part of the basic structure of the constitution, and he found no explicit or implicit bar to adjudicate the issue, when the counsel for the respondents challenged the jurisdiction of the court to hear the case, relying on the court’s previous decision in Kihoto Hollohan v Zachillhu.

In Central Public Information Officer, Supreme Court of India v Subhash Chandra Agarwal, Justice Ramana as part of the five-judge bench, held that the right to information and the right to privacy are at an equal footing, and there is no requirement to take an a priori view that one right trumps the other.   While agreeing that public interest justifies disclosure of information, Justice Ramana distinguished “interest of the public” from “something in the public interest”: the former includes material, moral and material welfare of the public while the latter refers to public entertainment, curiosity or amusement.

He made it clear that the right to information should not be allowed to be used as a tool of surveillance to scuttle the effective functioning of the judiciary.

In Jindal Stainless Limited, Justice Ramana held that the resolution of constitutional litigation ultimately rests upon the plain language of the text. In the event of vagueness in the language or when the language is capable of two different meanings, it is not a bar to analyse the context, he suggested. In interpreting the constitutional text, the court may not feel shy of using all the tools and employing all the aids of construction, he said. The freedom of trade, guaranteed under Article 301 is not absolute freedom, and therefore, subject to regulations, he held. Article 304(a), he held in his concurring judgment, does not bar levy of tax if the goods are not manufactured or produced within the state.

Justice N.V. Ramana. Photo: Supreme Court of India

3. Justice Rohinton Fali Nariman

DoA: 07-07-2014
Number of judgments authored: 277
Number of judgments cited in: 214
Number of basic structure cases adjudicated: 5

In Madras Bar Association v Union of India, Justice Nariman, in his concurring judgment, held that the National Tax Tribunals Act, 2005 was unconstitutional, being the ultimate encroachment on the exclusive domain of the superior Courts of Record in India. It was because the high court’s power of judicial review, recognised as a basic feature of the constitution, had been supplanted by the NTT. In all tax matters, the state is invariably a party and the high court is ideally situated to decide substantial questions of law which arise between the state and private persons, being constitutionally completely independent of executive control. Tribunals will have to be under a nodal ministry as they are not under the supervisory jurisdiction of the high courts, he pointed out. NTTs was interposed between the appellate tribunal and the Supreme Court. Justice Nariman, therefore, questioned its relevance if only the Supreme Court can declare the law to be followed.

Although the main judgment, authored by Justice J.S. Khehar on behalf of himself and three other Judges (the then CJI, R.M.Lodha and Justices J. Chelameswar and A.K. Sikri) had applied the basic structure test and found the NTT Act unconstitutional, Justice Nariman refrained from going into the basic structure reasoning, as he found it unnecessary.

Justice Khehar held that the basic structure will stand violated, if while enacting legislation pertaining to the transfer of judicial power, parliament does not ensure that the newly created court/tribunal, conforms with the salient characteristics and standards, of the court sought to be substituted.

The judgment in this case would indicate that the basic structure doctrine is applicable to test the validity of ordinary laws. Strangely, the bench in this case did not see any inconsistency with the previous rulings which were against such application.

Justice Nariman. Credit: Youtube

Justice Rohinton F. Nariman. Photo: Youtube

In Justice K.S.Puttaswamy and Others v Union of India and Others, Justice Nariman relied on the basic structure doctrine in his concurring judgment to hold that the constitution is a living document. “The constitutional provisions have to be construed having regard to the march of time and the development of law. It is, therefore, necessary that while construing the doctrine of basic structure due regard be had to various decisions which led to expansion and development of the law,” he cited the court as observing in I.R. Coelho v State of Tamil Nadu (2007).

Put in this context, he held that any true interpretation of fundamental rights must be expansive, like the universe in which we live and that the content of fundamental rights should keep expanding to keep pace with human activity. He was categorical that even if the framers had rejected the right to privacy as a fundamental right, nothing prevented the Supreme Court from interpreting the constitution to accord it the status of fundamental right.

In Asian Resurfacing of Road Agency Pvt Ltd v CBI, a bench of Justices A.K. Goel and Nariman, while agreeing that judicial review is a basic feature, underlined that the intention of the legislature to expeditiously conclude trial in the corruption cases on a day-to-day basis without any impediment through the stay of proceedings must be respected. Interpreting Section 19(3) of the Prevention of Corruption Act, 1988, Justice Nariman, in his concurring judgment, held that the Act, read as a whole, makes it clear that cases under the Act have to be decided with utmost despatch and without any glitches on the way in the form of interlocutory stay orders.

The bench overruled the previous judgment in Satya Narayan Sharma v State of Rajasthan which had held that there could not be any stay of trials under the PCA. Justice Nariman, along with Justice Goel, agreed with the view that the high courts can exercise their inherent power sparingly, and that too only in rare and appropriate cases in extreme circumstances. Therefore, the bench held there can’t be an absolute bar on stay of trials.

In Shayara Bano v Union of India, Justice Nariman, who wrote the majority opinion, referred to in passing the use of basic structure doctrine by the previous constitution bench in Indira Gandhi v Raj Narain to strike down Article 329-A sub-clauses (4) and (5), inserted through a constitution amendment. The reasoning in that case was that the validation of Indira Gandhi’s election through these sub-clauses was not by applying any law, and therefore, it offended the rule of law, a facet of basic structure doctrine.

Justice Nariman explained that the rule of law has an obvious reference to Article 14 of the constitution, in that it would be wholly arbitrary to decide the case without applying any law. The law would be discriminatory in that certain high personages would be put above the law in the absence of a differentia reasonably related to the object of the law. The unstated inference in Justice Nariman’s formulation is that Article 329-A was liable to be struck down even in the absence of the BSD.

It is not surprising, therefore, that Justice Nariman struck down the Muslim Personal Law (Shariat Application) Act, 1937 to the extent that it recognised and enforced Triple Talaq, on the ground of it being manifestly arbitrary, and therefore, violative of Article 14. In other words, he did not require the BSD to strike it down. Triple Talaq was held to be manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it.

In Jarnail Singh v Lachhmi Narain Gupta, Justice Nariman held that the previous bench in M. Nagaraj correctly applied the basic structure doctrine to uphold constitutional amendments under challenge in that case on certain conditions, which are based upon the equality principle. Justice Nariman, however, made it clear that the conclusion that the state should collect quantifiable data on the parameters stipulated in M. Nagaraj on the inadequacy of representation of SCs and STs, is contrary to the nine-judge bench’s decision in Indra Sawhney, and therefore, invalid.

4. Uday Umesh Lalit

DoA: 13-08-2014
DoR: 8-11-2022
Number of judgments authored: 249
Number of judgments cited in: 160
Number of basic structure judgments: 1

In Union of India v V.Sriharan @Murugan and Others, Justice Lalit authored a notable dissent in which he held that courts cannot and ought not deny to a prisoner the benefit to be considered for remission of sentence. “By doing so, the prisoner would be condemned to live in the prison till the last breath without there being even a ray of hope to come out. This stark reality will not be conducive to reformation of the person and will in fact push him into a dark hole without there being semblance of the light at the end of the tunnel,” he observed. The majority judges had justified imposition of fixed-term imprisonment beyond remission in lieu of death sentence in certain cases. Although he did not mention it, Article 14 was clearly attracted in this case, as in his view the one who deserved death sentence can get the benefit of remission, but the one whose case fell short to meet the criteria of rarest of rare, and the court was hesitant to grant death sentence, would languish in jail for entirety of his life, without any remission.

The majority judgment in the case, authored by Justice Fakkir Mohamed Ibrahim Kalifulla, had relied on the basic structure doctrine to hold that judicial action forms part of the basic structure of the constitution, and therefore, there is a vast difference between an executive action for the grant of commutation, remission etc., as against a judicial decision. It will be for the courts to decide what should be the number of years of imprisonment, in lieu of death sentence, that would be more appropriate to keep the person under incarceration, by taking into account the crime committed, the interest of the society at large or all other relevant factors which cannot be put in any straitjacket formulae, the majority judges held.

Justice U.U. Lalit. Photo: LiveLaw

5. Justice A.M. Khanwilkar

DoA: 13-05-2016
DoR: 29-07-2022
Judgments authored: 200
Judgments cited in: 138
Basic structure cases: 3

In Justice K.S. Puttaswamy and Others v UOI, Justice Khanwilkar joined the majority opinion authored by Justice A.K. Sikri, to decide the validity of the Aadhaar Act in favour of the government. One of the grounds of challenge in this case was that the Act was passed under the guise of a money Bill to circumvent the approval of the Rajya Sabha, where the ruling coalition was in a minority. The creation and composition of the Rajya Sabha is an indicator of, and is essential to, constitutional federalism, which is a part of the basic structure of the constitution, the bench was told.

The majority judgment, while agreeing that the Rajya Sabha is part of the basic structure of the constitution, however, disagreed that the Aadhaar Act was fraudulently introduced as a money Bill to circumvent seeking the support of the Rajya Sabha. The expenditure incurred in respect of subsidy, benefit or service as contemplated in Section 7 of the Act would be from the Consolidated Fund of India.  The majority saw a substantial nexus between the appropriation of funds from the Consolidated Fund of India and Article 110 of the Constitution, dealing with money Bills.

Justice D.Y. Chandrachud, in his dissent, struck down the Act, since many of its provisions such as Section 57 have no relation to the nature of a money Bill and bear no nexus to the Consolidated Fund of India. By declaring an ordinary Bill to be a money Bill, the speaker of the Lok Sabha limits the role of the Rajya Sabha, he held.

A decision of the speaker of the Lok Sabha to declare an ordinary Bill to be a money Bill limits the role of the Rajya Sabha. The power of the speaker cannot be exercised arbitrarily in violation of constitutional norms and values, as it damages the essence of federal bicameralism, which is a part of the basic structure of the constitution.

Justice A.M. Khanwilkar. Photo: Supreme Court of India

In Government of NCT of Delhi v Union of India, Justice Khanwilkar joined then CJI Dipak Misra’s opinion in which he interpreted Article 239AA(4) to mean that the Lieutenant Governor is bound by the ‘aid and advice’ of the council of ministers on all those subjects where the Delhi assembly has the power to make laws. Among other things, CJI Misra relied on the proposition that democracy, republican form of government, and federalism are parts of the basic structure of the constitution.

In Kalpana Mehta v Union of India, Justice Khanwilkar joined the then CJI Dipak Misra’s opinion to hold that there can be limited reliance on parliamentary standing committee reports in judicial proceedings for purposes of interpretation of statutes, even though their judicial review can be ruled out. While agreeing that separation of powers is a facet of the basic structure of the constitution, Justice  Dipak Misra held that there cannot be a strait-jacket approach that can be followed in issues such as democracy and constitutional morality.