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Case Commentary on I.R. Coelho Case: An Analysis of the Evolution of Basic Structure Doctrine

Article by Jayanta Boruah

Research Scholar

North-Eastern Hill University, Shillong


The conflict between the Parliament and the Supreme Court became evident immediately after the enforcement of the Constitution of India. As a result of which there arose several inconsistencies in the functioning of both the organs of the government. The Doctrine of Basic Structure was therefore introduced as a remedy to such inconsistencies. But this doctrine appeared to be very vague which led to several conflicts in its interpretation by the Judiciary. However, it is assumed that in the case of I.R. Coelho, a significant amount of conformity was reached by the Judiciary in deciding the matters related to this doctrine. This Case Commentary will therefore attempt to understand how such assumed conformity was reached by the Court and how it has been applied in reality?


Judiciary; Judicial Review; Basic Structure; Separation of Powers and Constitutional Amendments


Initially, the Supreme Court adopted a conservative approach in interpreting the Constitution[i], and in the case of Golak Nath,[ii] it held that Parliament could not amend the Fundamental Rights. However, in the case of Kesavananda Bharati,[iii] the same Court held that the Parliament could amend even the Fundamental Rights but such amendments will have to conform with the Basic Structure Doctrine. Thus, in this case, on April 24, 1973, the doctrine of Basic Structure was originated in the legal history of India as a counter to Parliamentary Supremacy based on being a representative of citizens. This commentary will therefore analyze the evolution of the technicalities involved with Basic Structure Doctrine since its inception to the case of I.R. Coelho.[iv]


Since after the inception of the Doctrine of Basic Structure, the meaning of the concept became a valid question? We must acknowledge the fact that the Constitution of every democratic Nation is like a Grundnorm meaning a Basic Document. Thus, the basic structure of a Constitution is meant for the basic features of a basic document. The confusion related to the scope and extent of this doctrine appeared before the Court several times for which a close examination of it was made in cases like- Indira Gandhi v. Raj Narain;[v] Minerva Mills Case;[vi] Waman Rao Case;[vii] Bhim Singh Case;[viii] etc. But no concrete solutions had been drawn from such interpretations till the case of I.R. Coelho. It is assumed that the Judiciary was able to concretize this doctrine by removing its vagueness in the I.R. Coelho case[ix] but how it was done will be analyzed in this commentary.

During the formulation of the principle of basic structure in the Kesavananda Bharati case, several inconsistencies appeared amongst the 13 Judges that were deciding the case. First of all, the Judges were divided into two groups, - one that supported the notion of the basic structure of the Constitution with the view that the power of the Parliament is a limited one, while the other group rejected such a view. Both these groups were equally divided in six each out of 12 Judges while the 13th Judge being Khanna J. joined the group supporting the basic structure principle and thus the doctrine was originated with a slender majority of 7:6. But the conflict did not end here. In the same case regarding the question of the validity of the 29th Amendment Act of the Constitution,[x] the group supporting the basic structure doctrine upheld its validity with the condition that such amendments should conform with the basic structure of the Constitution while the other group who were against this doctrine upheld its validity unconditionally and this time Khanna J. supported the second group, which created severe confusions in interpreting this doctrine in subsequent cases.[xi]

However, later in Indira Gandhi's case, Ray CJI. held that the validity of the 29th Amendment Act in the Kesavananda Bharati case was declared unanimously but in the Minerva Mills case, Bhagwati J. held that such validity was not upheld unanimously rather it was upheld by a 7:6 majority. Thus, this amounted to serious controversy amongst the nine Judges Bench in the I.R. Coelho case. One another difficulty that appeared before the same Bench was regarding Article 31-B read with 9th Scheduled of the Constitution.[xii] This Article provided the Parliament with the power to pass laws even in violation of Part III and also limited the power of Judicial Review of the Court over such laws. In the Golaknath case, the Parliament’s power to amend the Fundamental Rights was curtailed and the decision of the Sajjan Singh Case[xiii] was reversed. But after that case, several amendments were passed whereby a new Clause was added to Article 13, and alterations were also made to Article 368. Further, Article 31 C was also added. All these amendments gave power to the Parliament to amend the Constitution unconditionally, while in Kesavananda Case such powers were made subject to the provision of basic structure. This led to a conflict between the principle of Basic Structure and Article 31B. Moreover, the question that whether the principle of basic structure would be applied only in cases of Constitutional Amendments or whether such principle will be applicable in the case of laws enlisted in the 9th Schedule that could affect the Fundamental Rights, led the Bench in I.R. Coelho Case to be extended to nine from five Judges for deciding the issue.

Such questions were attempted to be decided by analyzing the basic reasons behind initiating the basic structure doctrine. It was found that such a doctrine is essential to maintain checks and balances thereby ensuring separation of powers between the three organs of the government where the legislature cannot be entrusted with the power of determining the validity of the laws passed by them only which is the primary job of the Judiciary.[xiv] The second rationale for limiting the amending power of the Parliament under Article 368 was that such power cannot be a constituent power allowing the Parliament to make or remake the Constitution itself. Such power is only a derivative power subject to Judicial Review. Based on the same notions Clause 4 of Article 329-A and Clauses 4 & 5 of Article 368 were struck down by the Supreme Court in Indira Gandhi and Minerva Mills Cases respectively. While another rationale was ‘permissibility of the amendment of a pleading’ which was propounded in the Waman Rao case. By this, it meant to justify the analogy between the amendment with that of the original where by no means a pleading for amendment can be made which would result in the opposite of the original. The fourth rationale is that of Judicial Review which is the most important element of the basic structure and it is also essential to allow the custodian of the Constitution for taking adequate measures to prevent the Constitution from being destroyed by any acts of the other two organs.

By taking all these rationales together one can argue that basic structure doctrine is an inevitable part of the Constitution that needs to be protected for maintaining Constitutional supremacy. But if done so then the power of the Parliament that has been defined by Article 31B inserted through the Constitution 1st Amendment Act will be reduced and this Amendment has already been declared as Constitutionally valid. Thus, a re-reading of all these concepts become necessary which provides the following observation-

The Parliament has the power to make laws under Article 31B and thereby secure it under the 9th Schedule by conferring ‘fictional immunity’ but such inclusion in 9th Schedule requires an amendment to the Constitution under Article 368 and such amending power is also not unlimited and is subject to the basic structure of the Constitution.

After arriving at this conclusion, now the question was how to fix the criteria to apply this doctrine of the basic structure for determining the validity of laws passed by Parliament. While deciding this question, the Court viewed that Part III of the Constitution did not confer any Fundamental Rights rather it just recognized those rights that are necessary for all human beings to survive and also to protect the minorities in a democratic country where the majority is the Ruler. Thus, it was found by the Court that if the basic structure doctrine is to be applied for determining the validity of any laws then the role to be played by Part III cannot be ignored. However, Fundamental Rights are not only those rights that had been already recognized, yet several new rights that were inherent to such rights were given expression as such by the Indian Judiciary from time to time like- Right to Freedom of Press, Right to Clean Environment, etc. were also held as Fundamental Rights. Thus, these rights are recognized values that allow the citizens to live a dignified life and restricts the State from abridging such values. Therefore, they will be a part and parcel of the Basic Structure. So, any laws even if protected under the 9th Schedule under Article 31B of the Constitution will be struck down if such law infringes such values. The question of whether any law is violating any such value or not has now been subject to Judicial Review by this case, but again this raises an important question that did it shift the power of decision-making from the Parliament to the Supreme Court? And if yes then the question is whether the doctrine of separation of power is protected or not?


After having an analysis of this case one thing can be held clearly that the Judgement derived is more clear, precise, and understandable compared to those of previous cases. However, we must also acknowledge the fact that although the Doctrine of Basic Structure seemed to have granted liberty to the Parliament to even amend the Fundamental Rights, yet it also given the Court immense power to decide whether any law is violative of Basic Structure or not, deciding which is again dependent on the discretion of the Court as to what constitutes the Basic Structure, since the ambit of Fundamental Rights is always increasing. Although, there are so many conflicts and we had not been able to arrive at a concrete juncture in the last 70 years, yet we must appreciate the fact that our Constitution has survived till now which can be attributed to being a great success for us.

[i] Jayanta Boruah, Living Tree Doctrine: Role of Indian Judiciary against Constitutional Silence, 5(1), RGNULSLR, 50, 50-62. [ii] Golaknath v. State of Punjab, 1967 A.I.R. 1643. [iii] Kesavananda Bharati v. State of Kerala & Another, A.I.R. 1973 SC 1461 (1973) 4 SCC 225. [iv] I.R. Coelho (Dead) by LRs v.State of Tamil Nadu, A.I.R. 2007 SC 861. [v] A.I.R. 1975 SCC 2299. [vi] Minerva Mills Ltd & Others v. Union of India & Others, A.I.R 1980 SC 1789. [vii] Waman Rao and Others v. Union of India and Others, A.I.R 1981 SC 271. [viii] Maharao Sahib Shri Bhim Singh ji v. Union of India and Others, A.I.R 1981 SC 234. [ix] Supra, 4. [x] The Constitution (Amendment) Act 1972, Acts of Parliament (India). [xi] Supra, 3. [xii] Ind. Const. Art. 31B & 9th Schedule. [xiii] Sajjan Singh v. State of Rajasthan, 1965 A.I.R 845. [xiv] Special Reference No. 1/64, A.I.R 1965 SC 745.

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