Constitutional Basis For Basic Structure Doctrine in India: Effects and Applicability
Constitutional Basis For Basic Structure Doctrine in India: Effects and Applicability
Constitutional Basis For Basic Structure Doctrine in India: Effects and Applicability
1. Introduction
The framers of the Constitution, with due diligent have taken lot of care
and concern to provide a best Constitution to the citizen. But, they did not add
express clause under Article 368 to impose limitations upon the amendment
power exercised by the Parliament. Consequently, Parliament by exercising
its constituent power added tricky Ninth Schedule1 to accommodate agrarian
reforms by excluding judicial review. Gradually, Ninth Schedule made controlled
Constitution into uncontrolled one. As a result, in Keshavanada Bharathi’s2
case in 1973, the Supreme Court made uncontrolled Constitution into controlled
one through inventing the new doctrine called “Basic Structure” which imposes
implied limitations upon the amendment power of the Parliament. But, Supreme
Assistant Professor (Grade-II), P.G. Department of Studies and Research in Law and University Law College,
Bangalore University, Jnanabharathi Campus, Bangalore, Karnataka.
Ninth Schedule was inserted in the 1st Amendment of Indian Constitution.
2
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Court has failed to lay down the yardstick for what constitutes basic structure.
Power to make an implied amendment to Indian Constitution was given even to
individual judge, which is really unfair under the scheme of theory of separation
of power which is also one of the basic structure of the Indian Constitution. The
Judiciary even did not say the subject matters of basic structure should be decided
by the Constitutional Bench.
In this context, an attempt has been made in this paper to examine the reasons
for evolving this doctrine by the Apex Court and to know what constitutes the
basic structure of the Constitution. Further, paper addresses, whether this doctrine
violates the theory of separation of power which is also one of the basic features
of Indian Constitution? Do we need to add this doctrine expressly by bringing an
amendment to Article 368? If single judge says some subject matters are basic
structure, would it not curtail the power of Parliament?
Generally academicians always argue that the basic structure theory is the
SURGXFWRIORQJVWUXJJOHDQGFRQÀLFWEHWZHHQWKH3DUOLDPHQWDQG-XGLFLDU\%XW
the author opines that this doctrine came into existence not because of confront
between Judiciary and Parliament, but, because of framers passive approach, where
they did not give any scope and place for agrarian reforms under the provisions of
the original Constitution. Further, incorporating the right to property under the list
3
7KHGRFWULQHRI³EDVLFVWUXFWXUH´LVLQWURGXFHGLQWR,QGLDE\D*HUPDQVFKRODU'LHWULFK&RQUDGSee Dietrich
Conrad, Limitation of Amendment Procedures and the Constituent Power, 15-16 Indian Year book of International
$IIDULV)RUWKH'&RQUDG¶VLQÀXHQFHRQWKH,QGLDQ6XSUHPH&RXUWsee A. G. Noorani, “Behind the
Basic Structure Doctrine: On India’s Debt to a German Jurist, Professor Dietrich Conrad”, 18 FRONTLINE (April
28 - May 11, 2001), available at KWWSZZZKLQGXRQQHWFRPÀLQHÀKWP
of fundamental rights was also one of the factors responsible for giving birth to this
doctrine by the Apex Court in 1973.
Thereafter, Supreme Court in Golak Nath’s9 case said that amendment will also
FRPHXQGHUWKHGH¿QLWLRQRIµ/DZ¶:KHQµODZ¶KDVOLPLWDWLRQVXQGHU$UWLFOH
of the Constitution (subject to the Provisions of the Constitution), ‘amendment’
will also have limitations. Till date, there is no single express provision under
the Indian Constitution to limit the amendment power of the Parliament. But, for
WKH ¿UVW WLPH 6XSUHPH &RXUW LQ WKLV FDVH LPSRVHG LPSOLHG OLPLWDWLRQ XSRQ WKH
amending power of the Parliament by adding the word ‘amendment’ under the
GH¿QLWLRQRIµODZ¶DFFRUGLQJWR$UWLFOHD7KHSHWLWLRQHU*RODN1DWKVSHQW
money in this case for no relief but for evolving the ‘doctrine of prospective over
ruling.’
4
AIR 1951 Pat.91, SB.
Ninth Schedule was introduced in the Constitution by the Constitution First Amendment Act 1951.
6
$UWLFOH%9DOLGDWLRQRIFHUWDLQ$FWVDQG5HJXODWLRQVWithout prejudice to the generality of the provisions
contained in Article 31-A QRQH RI WKH $FWV DQG 5HJXODWLRQV VSHFL¿HG LQ WKH 1LQWK 6FKHGXOH nor any of the
provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation
or provision is inconsistent with, or takes away or abridges any of the rights conferred by any provisions of this
Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said
Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in
force.
Sankari Prasad Singh v. Union of India, AIR 1951SC 458.
8
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.
9
Golak Nath v. State of Punjab, (1967) 2 SCR 762; AIR 1967 SC.
Therefore, the author strongly observes that because of the framers of the
Constitution attempt to include right to property in the list of fundamental rights
in the original Constitution. The doctrine of basic structure came into existence in
the Keshavananda Bahrathi’s case. Hence, right to property is the main cause and
responsible right for evolving this doctrine.
People in India seem to have accepted, the basic structure doctrine in the same
manner as the Americans accepted judicial review of legislation claimed by the
Supreme Courts of the United States in Marbury v. Madison.13 In determining
what basic structure is, the Court will have to keep national consensus about such
basic structure in mind. It is impossible to articulate exhaustively the elements
which would constitute the basic structure of the Constitution. It will have to
be articulated from case to case. During last few years the Supreme Court has
10
$UWLFOHDQGZHUHLQVHUWHGWKURXJKth Amendment. [13 (4) Nothing in this article shall apply to
any amendment of this Constitution made under article 368.]
11
Supra Note 2.
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12
and Khanna. The minority consisting of Justices Ray, Mathew, Beg, Dwivedi, Palekar and Chandrachud held that
Parliament had unlimited power of constitutional amendment. See S.P.Sathe, “Judicial Review in India: Limits
and Policy”. H.M. Seervai, in his analysis of the case in his magnum opus, “Constitution of India” states that six
out of the seven majority judges held that there were implied and inherent limitations on the amending power
of the Parliament, which precluded Parliament from amending the Basic Structure of the Constitution. However
Khanna J. rejected this theory of implied limitations but held that the Basic Structure could not be amended away.
All Seven judges gave illustrations of what they considered Basic Structure comprised of.
I. Cranch 137 : 2 L.Ed. 60.
Kesavananda Bharti v. Kerala, AIR 1973, SC 1461; Indira Gandhi v. Raj Narain, AIR 1975 SC 2299; Minerva
Mills v.Union of India, AIR 1980 SC 1789; S.P. Sampat Kumar v. India, AIR 1987 SC 386; Sambamurthy v.
A.P, AIR 1987 SC 663.
Anuranjan Sethi, %DVLF6WUXFWXUH'RFWULQH6RPH5HÀHFWLRQV, http://ssrn.com/abstract=835165, p. 6-8, 26-27
Similarly, S. P. Sathe concluded that “the Court has clearly transcended the limits of the judicial function and
has undertaken functions which really belong to… the legislature” (S. P. Sathe, Judicial Activism: The Indian
Experience,6WASH. U. J. L. AND POL’Y 29-108, at 88 (2001)
Available at http://law.wustl.edu/journal/6/p_29_Sathe.pdf. Likewise, T. R. Andhyarujina said that the “exercise
of such power by the judiciary is not only anti-majoritarian but inconsistent with constitutional democracy”
(T. R. Andhyarujina, ‘Judicial Activism and Constitutional Democracy in India’10 (1992), quoted in Sathe, at 70.
16
Keshavananda Bahrathi Case Sikri, C.J. explained the concept of basic structure.
¾Unity and integrity of the nation18 -Equality of status and the opportunity
-Sovereign democratic republic-Justice - social, economic and political-
Liberty of thought, expression, belief, faith and worship. Democratic
character of the polity-Unity of the country- Essential features of the
individual freedoms secured to the citizens-Mandate to build a welfare
state.
Indira Gandhi v. Rajnarain AIR 1975 SC, 2299 (1975) 3 SCC 34; Kihoto Hollohon AIR, 1993, SC 412
19
Nachane, Ashwini Shivram v. State of Maharashtra, AIR 1998 Bom 1; Raghunath Rao v. Union of India, AIR
20
1993 SC 1267
21
%KDJZDWL-Union of India v. Sankal Chand, Himmatlal Sheth, AIR 1977 SC 2328 : (1977) 4 SCC 193. and
The Gupta Case, AIR 1982 SC 149 at 197, 198, Kumar Padma Prasad v. Union of India, AIR 1992 SC 1213 :
(2000) 4 SC 640, State of Bihar v. Bal Mukund Shah, AIR 2000 SC 1296, Supreme Court Advocates-records-
Association v. Union of India, (1993) 4 SCC 441; AIR 1994 SC 268.
22
S.R. Bommai v. Union of India, AIR 1994 SC 1918, at 1976; Poudyal v. Union of India, (1994) Supp.1 SCC
324.
Articles in the Constitution, such as Arts.32, 136, 226 and 227, guarantee
judicial review of legislation and administrative action23
Adding many subject matters to the Basic structure box, Judiciary has
completely tightened the hands of Parliament. As a general rule, Judiciary has
been adding many aspects as basic structure and directed the parliamentarian not
to change or alter above mentioned subject matters.
23
L.Chandrakumar v. Union of India, AIR 1997 SC 1125; Waman Rao v. Union of India, AIR 1981 SC 271
24
Raghunath Rao v. Union of India, AIR 1993 SC 1267
25
In Raghunath Rao v. Union of India case, AIR 1973 SC at 1535, 1603, 1628 and 1860.
Article on “Basic Structure Doctrine and its Widening Horizons” by V.R. Jayadevan, published in CULR, Vol.
27, March 2003 p.333
See article on ‘Amendment of the Constitution in Constitutional Law of India,’ VOL.II, (Bar Council of India
Trust).
After the decisions of the Supreme Court in Keshavnand Bharati and Indira
Gandhi28 cases, the Constitution (42nd Amendment) Act, 1976, was passed which
added two new clauses of 4 and 5 to Article 36829 of the Constitution expressly
prohibiting the review of the Constitutional amendments. The 42nd Amendment
tried to overreach the implication of Kesavananda Bharathi’s case.
But in Minerva Mills Ltd. v. Union of India,30 question arose that, whether the
amendments introduced by Sections 4 and 55 of the Constitution (42nd Amendment)
Act, 1976 damage the basic structure of the Constitution by destroying any of its
basic features or essential elements? The Supreme Court in its answer considered
clause (4) and (5) of Art. 368 that were inserted by the 42nd Amendment and held
them to be unconstitutional since they damage and destroy the basic structure of the
Constitution. On the whole, Minerva Mills31 is a comprehensive decision bringing
clarity to the doctrine of basic structure. The holding enables the Indian Constitution
and the Indian legal system to retain their identity even when attempts have been
made to alter them for bringing about social revolution through legislation.32
After this case, Supreme Court in Waman Rao v. Union of India33 once
again reiterated and applied the doctrine of basic features of the Constitution. In
I.R.Coelho case,34 the Constitution Bench observed that, according to Waman Rao
28
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29
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purporting to have been made under Art.368 whether before or after the commencement of the Constitution
(42nd Amendment) Act, 1976 shall be called in any court on any ground.” Therefore in India, as of 1976, the
Supreme Court was precluded from reviewing constitutionality of Constitutional amendments. There is no doubt
on this issue because clause (4) of Art.368 explicitly prohibits the judicial review of constitutional amendments.
Moreover, clause 5 of the same Article states that “there shall be no limitation whatever on the constituent power
of Parliament to amend by way of addition, variation or repeal of the provisions of the Constitution under this
Article.” This clause also provides that constitutional amendments cannot be judicially reviewed because Indian
Constitution does not impose any limitations on the power of Indian Parliament to amend the Constitution.
30
6&5$,56&
Ibid
32
95-D\DGHYDQ¶Vµ%DVLFStructure Doctrine and its Widening Horizons, published in CULR (2003) p.349.
33
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34
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and Ors. v. Union of India and Ors35 amendments to the Constitution made on or
after 24th April, 1973 by which the Ninth Schedule was amended from time to
time by inclusion of various Acts, regulations therein were open to challenge on
the ground that they, or any one or more of them, are beyond the constituent power
of Parliament since they damage the basic or essential features of the Constitution
or its basic structure.
&% LV WKH DEEUHYLDWLRQ XVHG LQ WKH WH[W IRU WKH &RQVWLWXWLRQ )RUW\)LIWK $PHQGPHQW %LOO ZKLFK ODWHU
36
The basic structure doctrine has been legitimated due to gross abuse of
constituent power by the ruling elite and subsequent acceptance of it by all major
political participants.39 Unfortunately, the Rajya Sabha where the Congress Party
had a majority did not approve these proposals although the Lok Sabha had passed
the same by the requisite majority.40
7KH 6XSUHPH &RXUW IRU WKH ¿UVW WLPH KDV LPSRVHG LPSOLHG OLPLWDWLRQV RQ
amendment power (which was considered as law making power) in Golaknath’s
case. Later, Supreme Court by inventing the doctrine of basic structure, they
completely curtail the amendment power of the Parliament. Many academicians
argue that Golaknath’s case decision was overruled by the Court in Keshavanada
Bahrathi’s case. But, the author strongly opines that the decisions in both the cases
are similar when it comes to the matter of imposing limitations upon the amending
power of the Parliament. But, the Supreme Court in Keshavananda’s case has
overruled the part of the decision of Golaknath with respect to the non acceptance
38
8SHQGUD%D[L³6RPH5HÀHFWLRQVRQWKH1DWXUHRI&RQVWLWXHQW3RZHU´LQ7UHQGVDQG,VVXHV, p. 142 (Indian
Law Institute, 1978).
39
636DWKH³Limitation on Constitutional Amendment: Basic Structure Principle Reexamined” in Trends and
Issues, p. 179 (Indian Law Institute, 1978).
M.P.Jain ‘Indian Constitution Law” Fifth Edition, 2003 p.1926.
R Dhavan and A Shourie have observed that the Court is accused of widening
the scope of judicial review beyond the constitutional boundaries,41 usurping the
powers of the executive and legislature.42 One of the important critique is that, if
the basic structure theory was upheld, “every amendment made by the Parliament
would be subject to judicial approval on the question whether it damages the core
of an essential feature or not… and it is up to the Supreme Court and High Courts
either to validate or invalidate the amendment. It is a step towards the ‘Government
RI-XGJHV¶DVWKH¿QDOVD\UHVWVZLWKWKHMXGJHVRIWKH6XSUHPH&RXUWQRWZLWKWKH
Parliament.43
The criticism of P.K.Tripathi was also in the same view when he wrote “the
people and the Parliament will never have to worry about what the Constitution
ought to be. The Court will do it for them… The Court will not only play the role of
the opposition in criticizing all proposed legislations concerning socio-economic
policies, but it will be above to wipe out legislation which does not favour. In fact
it will govern the country in regard to routine matters which might be left to the
Parliament and the Cabinet.44
R. Dhavan, Supreme Court and Parliamentary Sovereignty’ New Delhi Sterling Publisher, 1976 cited in Sudhir
Krishnaswamy ‘Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine, Oxford
University Press, p. xvi.
$6KRXULH&RXUWVDQGWKHLUMXGJPHQWV3URPLVHV3UHUHTXLVLWHV&RQVHTXHQFHV1HZ'HOKL5XSD &R
42
pp 399-421 cited in Sudhir Krishnaswamy ‘Democracy and Constitutionalism in India: A Study of the Basic
Structure Doctrine, Oxford University Press, p. xvi .
Idid at 440.
43
&LWHG E\ 3UDVDG $QLUXGK ³Dynamic of the Basic Structure Theory”, Law 1978, Vol.10, No.10. 199
44
(October, 1978).
of humiliation and while appointing as chief justice of India after Justice S.M.
Sikri’s retirement (Former CJ of Supreme Court). Justices J.M. Shelat, K.S.Hegde,
A.N. Grover, though they posses seniority, government was not appointing any
one among the three as chief justice of India, because these three judges were also
responsible for upholding the doctrine of basic structure. The three superseded
judges were a party to the majority opinion of the historic Keshavananda Bharti
case which held that the Parliament’s right to amend the Constitution did not include
the right to amend, abrogate or destroy the basic structure of the Constitution.
This judgement was delivered on the eve of superseding of judges. Needless to
say, Justice A.N. Ray agreed with the minority view which upheld Parliament’s
supremacy to amend the Constitution. Finally, Executive appointed A.N Ray
as Chief Justice of India in 1973, violating the Constitutional conventions i.e.,
seniority in case of appointing CJI was considered as darkest day in the history of
the Constitution.
45
&KLHI-XVWLFH$15D\VDLG³7KHUHLVQRUHFRUGRIDQ\OLIHRIDQLQGLYLGXDOEHLQJWDNHQDZD\HLWKHULQRXU
country during Emergency or in England or America during the emergency in their countries. It can never be
reasonably assumed that such a thing will happen. Some instances from different countries were referred to
by some counsel for the respondents as to what happened there when people were murdered in gas chambers
or people were otherwise murdered. Such instances are intended to produce a kind of terror and horror and are
abortive in character. People who have faith in themselves and in their country will not paint pictures of diabolic
distortion and mendacious malignment of the governance of the country.”
Justice Y.V. Chandrachud expressed his optimism by writing that “counsel after counsel expressed the fear that
during the Emergency, the executive may whip and strip and starve the detainee and if this be one’s judgement
even shoot him down. Such misdeeds have not tarnished the record of free India and I have a diamond bright,
diamond hard hope that such things will never come to pass.”
Justice M.H.Beg said in his judgement. “I do not think that it is either responsible advocacy or the performance
of any patriotic or public duty to suggest that powers of detention are being misused in the current emergency”.
other judges of various high courts who displayed courage were punished for their
independent views. Fourteen judges of high courts who were party to various
judgements, who were against the government, were transferred from one high
court to another without their consent. Executive prepared a list of 52 inconvenient
judges. Proposals were mooted for the establishment of a superior council over
the judges. Upon the retirement of Justice A.N. Ray, the next senior most judge,
Justice H.R. Khanna, was denied his right to become the Chief Justice of India.
Justice R.N. Aggarwal and Justice U.R. Lalit, who were additional judges of the
'HOKLDQG%RPED\+LJK&RXUWVUHVSHFWLYHO\ZHUHQRWFRQ¿UPHG46
Justice Chandrachud expressed his optimism by writing that “counsel after counsel expressed the fear that during
the Emergency, the executive may whip and strip and starve the detainee and if this be one’s judgement even
shoot him down. Such misdeeds have not tarnished the record of free India and I have a diamond bright, diamond
hard hope that such things will never come to pass.”
Justice P.N. Bhagwati agreed with the majority and said, “The apprehensions and fears voiced on behalf of the
detainees may not altogether be ruled out. It is possible that when vast powers are vested in the executive, the
exercise of which is immune from judicial scrutiny, they may sometimes be abused and innocent persons may
be consigned to temporary detentions. But merely because a power may sometimes be abused is no ground for
denying the existence of the power. All power is likely to be abused I have always leaned in favour of upholding
personal liberty, for I believe it is one of the most cherished values of mankind. Without it life would not be worth
living. It is one of the pillars of free democratic society. Men have laid down their lives at it’s altar in order to
secure it, protect it and preserve it. But I do not think that it would be right for me to allow my love for personal
liberty to cloud my vision or to persuade me to place on relevant provision of the Constitution a construction
which its language cannot reasonably bear.”
46
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$,56&WKH¿UVWMXGJH¶VFDVHS.P.Gupta v. Union of India AIR 1982 SC 149) gave the primacy to
the executive in appointments to the higher judiciary, declaring that the advice of the CJI’s recommendation on
judicial appointments and transfers can be refused for “cogent reasons.”
$,5 6& WKH PDMRULW\YHUGLFW JDYH EDFN &-,¶V SRZHU RYHU MXGLFLDODSSRLQWPHQWVDQG WUDQVIHUV ,W
48
says the CJI only need to consult two senior-most judges. Court held that the role of the CJI is primal in nature
because this being a topic within the judicial family, the Executive cannot have an equal say in the matter, the
verdict reasoned. However, confusion prevails as the CJIs start taking unilateral decisions without consulting two
colleagues. The President is reduced to only an approver.
49
6SHFLDO5HIHUHQFH1RRI$,56&7RFODULI\WKHSRVLWLRQWKHWKHQ3UHVLGHQW.51DUD\DQDQ
sought a reference from the SC in the third judge’s case (Special Reference No.1 of 1998 AIR 1999 SC 1), the
Supreme Court laid down that the CJI should consult with a plurality of four senior-most Supreme Court judges
to form his opinion on judicial appointments and transfers. The crux of the second and third judges’ case, is that
the Judiciary should have primacy.
50
6upreme Court Advocates-on-Record Association v. Union of India (Writ Petition (C) No.83 of 2015).
their respective judgments it can be said that the 2014 amendment is being struck
down as it is against the principles of ‘separation of powers’ and ‘independence of
judiciary’ and thus violative of the basic structure of the Constitution.
Let us examine the role of legislature, executive and judiciary with respect
to appointment of judges of the Supreme Court. Because, Constitution gave the
primacy to the executive in appointments to the higher judiciary, they violated
constitutional conventions in appointing chief justice of India twice in 1973 and
1977. As a result, after 1993, Judiciary adopted the method of Collegium system
which does not have any constitutional basis or mandate from 1993 to 2014;
even the Parliament did not make any attempt to constitutionalise the Collegium
system. Finally, in 2014, the NDA government introduced the Constitutional
(121st Amendment) Bill, which was subsequently passed by both houses of the
3DUOLDPHQWUDWL¿HGE\VWDWHOHJLVODWXUHVDQGDVVHQWHGE\WKH3UHVLGHQW1-$&
Act 2014 and the Constitutional Amendment Act came into force from 13 April
2015. By this NJAC case The Constitution (Ninety-ninth Amendment) Act,
2014 and The National Judicial Appointments Commission Act, 2014 have been
declared null and void by the court which is the issue in hand.51
-XGLFLDU\QXOOL¿HGWKH$FWRI1-$&ZKLFKLVDJDLQVWWKHSULQFLSOHVRIµVHSDUDWLRQ
of powers’ and violative of the basic structure of the constitution. But, Judiciary
instead of declaring the serious attempt of the Parliament as unconstitutional,
they could have amended in the composition of NJAC itself while pronouncing
judgement. Further, If NDA government had incorporated the recommendations
of Venkatachaliah Commission,52 judiciary might not have declared NJAC Act, is
XQFRQVWLWXWLRQDO$WSUHVHQWWKH([HFXWLYHLVQRWVKRZLQJWKHLULQWHUHVWLQ¿OOLQJ
vacancies of post in higher judiciary which is really a great threat to the democracy.
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http://www.legallyindia.com/views/entry/njac-or-collegium-the-need-of-an-ideal-system-for-appointments-to-
the-higher-judiciary.
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52
constitution. In its report the commission recommended the formulation of a judicial commission comprising of:
(1) The Chief Justice of India: Chairman
(2) Two senior most judges of the Supreme Court: Member
(3) The Union Minister for Law and Justice: Member
(4) One eminent person nominated by the President after consulting the Chief Justice of India: Member.
has made democracy in danger. In action of the Executive with respect to Non-
appointment of judges in lower and higher judiciary within stipulated time leads,
not only to violation of basic rights of an individual but it also affects to ensure
Centre- State relations.
10. Conclusion
Finally, the author opines that if framers had inserted express clause under
Constitution of India regarding limitation of amending power of the Parliament
under Art.368 itself and provisions for agrarian reforms and had not incorporated
right to property in the list of fundamental right in the original constitution itself ,
there would not have been a situation of introducing this basic structure doctrine
and very importantly, if the Parliament had exercised its amending power without
disturbing the Supremacy of the Constitution in the case of Ninth Schedule,
judiciary would not have made any attempt to propound the doctrine of basic
structure. Violating constitutional conventions regarding appointment of the
chief justice of India by the Executive and applying application of basic structure
doctrine for all cases as a general rule including appointment of judges by judges
are against the theory of separation of power. Therefore, author suggests that:
All three organs of the government should work within the frameworks of
the Constitution to uphold constitutional supremacy.