The Kesavananda Bharati judgment held that Parliament cannot use its constituent power to alter the basic structure or the essential features of the Constitution. The Parliament, as senior advocate Nani Palkhivala said (at whose memorial lecture Chief Justice Chandrachud gave his reply) cannot cease to be a creature of the Constitution and become its master.

The basic structure or framework of the Constitution is its living spirit, holding up the body of its text. Its existence cannot be pin-pointed to any particular provision of the text. It is the “soul” of the Constitution, inextricably linked to the values enshrined in the Preamble, without which the document and the ideas that make it sacred would collapse. “A Constitution is a living system. But just as in a living, organic system, such as the human body, [where] various organs develop and decay, yet the basic structure or pattern remains the same with each of the organs having its proper function, so also in a Constitutional system the basic institutional pattern remains even though the different component parts may undergo significant alterations. For it is the characteristic of a system that it perishes when one of its essential component parts is destroyed,” the Supreme Court explained in the 703-page Kesavananda Bharati verdict of April 24, 1973.

Granville Austin’s Working of a Democratic Constitution said the basic structure doctrine “is fairly said to have become the bedrock of constitutional interpretation in India”. The Constitution Bench in the NJAC judgment encapsulated the principle behind the basic structure theory when it said “a change in a thing does not involve its destruction”.

Different judges on the Kesavananda Bharati Bench gave different examples of what constituted the ‘basic structure’ of the Constitution, including supremacy; the federal and secular character of the Constitution; separation of powers among the legislature, executive and judiciary; dignity of the individual; unity and integrity of the nation; sovereignty of India; democratic character of our policy; welfare state and egalitarian society; liberty of thought, expression, belief, faith and worship and equality of status and opportunity among other essential features.

Laws in the Ninth Schedule

• Keshavananda Bharati v. State of Kerala (1973):The court upheld the judgement in Golaknath and introduced a new concept of “Basic structure of the Indian Constitution” and stated that, “all provisions of the constitution can be amended but those amendments which will abrogate or take away the essence or basic structure of constitution which included Fundamental Rights are fit to be struck down by the court”.
• Waman Rao v. Union of India (1981):In this important judgement, the SC ruled that, “those amendments which were made in the constitution before 24th April 1973 (date on which judgement in Keshavananda Bharati was delivered) are valid and constitutional but those which were made after the stated date are open to being challenged on the ground of constitutionality.
• I R Coelho v. State of Tamil Nadu (2007):It was held that every law must be tested under Article 14, 19 and 21 if it came into force after 24th April 1973.
  • In addition, the court upheld its previous rulings and declared that any act can be challenged and is open to scrutiny by the judiciary if it is not in consonance with the basic structure of the constitution.
  • In addition, it was held that if the constitutional validity of any law under the ninth schedule has been upheld before, in future it cannot be challenged again.