By

Suchismita Barua
214124
Constitutional Law I Monsoon Semester Project

Ordinary
Legislations
and the Basic
Structure
Analyzing the
Relationship

TABLE OF CONTENTS
Introduction

Applicability Of Doctrine Of Basic Structure to Ordinary

Legislations
2
Bibliography

INTRODUCTION

On 24th of April 1973, a landmark judgement was given by a 13 judge bench which became of
considerable significance in the history of Indian constitution. Keshavananda Bharti v. State of
Kerala1 is not just noted for being the longest judgement (709 pages) or having the highest
number of judges on bench, but for determining the fabric of the Indian constitution and
recognizing the Basic Structure concept for the first time. The judgement basically laid down
that provisions of the constitution including fundamental rights could be amended though it did
not concede an unlimited amending power on the parliament. Its amending power was now
subjected to one very significant qualification and that was that the power could not be exercised
in such a manner as to destroy or emasculate the basic structure or the fundamental features of
the Constitution. The Supreme Court could not exactly pin point the subject of the Basic
Structure, though some of the judges provided for the basic features of the Constitution which
were Sovereignty and territorial integrity of India, the federal system, judicial review,
Parliamentary system of Government. The list is not exhaustive and finally is left to the Court to
interpret whether a feature of the Constitution is basic or not.
The Supreme Court extended the applicability of this doctrine to the laws in the Ninth Schedule
in I.R. Coelho v. State of Tamil Nadu2 which debated on whether under basic structure, was it
permissible for the parliament under Article 31-B 3 to immunize legislations by inserting them
into the ninth schedule and thus outside the purview of the courts and, if so, what was its effect
on the power of judicial review of the court. In addition to this, the Supreme Court in Kuldip
Nayar v. Union of India4 discussed the applicability of the doctrine of Basic Structure to ordinary
laws. This has reopened the debate, which existed from the landmark decision of the Court in

1 (1973) 4 SCC 225)

2 AIR 2007 SC 861.
3 The Indian Constitution, Article 31-B talks about validation of certain Acts and
Regulations without prejudice to the generality of the provisions contained in Article
31A.
4 AIR 2006 SC 3127

Indira Gandhi v. Raj Narain5. The researcher will analyze the relationship between ordinary
legislations and basic structure in the light of the Elections case. The scope of the paper will be
limited to discussing the applicability of basic structure to ordinary legislations.
APPLICABILITY OF DOCTRINE OF BASIC STRUCTURE TO ORDINARY LEGISLATIONS

To discuss the applicability of basic structure to ordinary legislations, it is pre-requisite that a

distinction be made between an ordinary law enacted by the Parliament exercising its legislative
powers under Article 245 and amendments made by the Parliament under Article 368 of the
Indian Constitution. Unlike ordinary laws, amendments to constitutional provisions require a
special majority vote in the Parliament6. Also according to Prof. P.K Tripathi7 there lay a criterion
of validity which distinguished between an ordinary law and a constitutional amendment. An
ordinary law depended upon a higher law for its validity whereas the Constitution generated its
own validity. This raises a question as to what could be the impact of basic structure on the
criterion of validity. To substantiate these views, it is important to examine the Elections case.
The issue regarding applicability of the doctrine of basic structure to ordinary legislations came
up for the first time in the Elections case. The issues in this case were whether clause 4 of Article
2398 destroyed the basic structure and was thus constitutionally invalid and the constitutional

5 AIR 1975 SC 2299

6 THE DOCTRINE OF BASIC STRUCTURE IN PRE AND POST
KESHAVANANDAS CASE
7 Prof. P.K.Tripathi, Keshavananda Bharathi v. State of Kerala, Who Wins? (1974)1
SCC.1
8 Constitution of India, Clause 4 of Section 239 A - There shall be a Council of Ministers consisting of not more
than ten percent, of the total number of members in the Legislative Assembly, with the Chief Minister at the head to
aid and advise the Lieutenant Governor in the exercise to his functions in relation to matters with respect to which
the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in
his discretion. Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers
on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision
given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any
case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such
action or to give such direction in the matter as he deems necessary.

validity of the Representation of the People (Amendment) Act, 1974 and the Election Laws
(Amendment) Act, 1975. The court in a majority of 3:6 laid down that ordinary legislations are
not subject to the test of basic structure and that it only applied to constitutional amendments
with majority opinion being of Ray C.J., Mathew J. and Chandrachud J. The dissenting opinion
was given by Justice Beg who held the contrary saying ordinary legislations were indeed subject
to the test of doctrine of basic structure. Khanna J. refrained from deciding on the issue.9
Chandrachud J. based his rationale on the Fundamental Rights case saying that constitutional
amendments were subject to the test of basic structure doctrine but it cannot be in anyway
logically inferred that ordinary legislations are to be put to the same test as constitutional
amendments. He also justifies this by saying that constitutional amendments are subject to the
test of basic structure because it is a constituent power of the Parliament. This essentially
highlights the distinction between constituent powers and legislative powers of the Constitution.
Chandrachud J. says that since the two are not the same a higher power should be subject to a
limitation (read as Basic Structure doctrine) which will not operate upon a lower power and
there would be no paradox same genus, they operate at different fields and are therefore
subject to different limitations.
According to Chief Justice A.N. Ray, the constituent power of Parliament was above the
Constitution itself and therefore not bound by the principle of separation of powers. 10 He said
that that the Parliament could exclude disputes related to elections from judicial review. He made
this very strange remark that democracy is a basic feature but free and fair elections was not. Ray

9 The Election Case, AIR 1975 SC 2299, 239: Argument has also been advanced that
validity of Act 40 of 1975 cannot be assailed on the ground that it strikes at the basis
structure of the Constitution. Such a limitation it is submitted, operates upon an
amendment of the Constitution under Article 368 but it does not hold good when
Parliament enacts a statute in exercise of powers under Article 245 of the Constitution.
In view of my finding that the provisions of Act 40 of 1975 with which we are concerned
have not been shown to impinge upon the process of free and fair elections and thereby to
strike at the basic structure of the Constitution, it is not necessary to deal with the above
argument. I would, therefore, hold that the provisions of Act 40 of 1975 with which we
are concerned are valid and do not suffer from any constitutional infirmity.
10 Iftikar Hussain Bhatt, Doctrine of Basic Structure as a Constitutional Safeguard in
India: Reflection in the Jurisprudence of Other Countries (

C.J. held that ordinary legislations did not come in the ambit of basic features. Justice Mathew
too agreed with Justice Rays opinion and held that ordinary legislations did not come in the
purview of basic structure. Justice M.H. Beg disagreed with Ray, C.J. on the grounds that it
would be unnecessary to have a Constitution if Parliament's constituent power were said to be
above it. He says that ordinary legislation in itself cannot go beyond the range of constituent
power.
In the Kuldip Nayar v. Union of India case, petitioner challenges amendments made in the
Representation of People Act, 1951 (for short, `the RP Act', 1951') through Representation of
People (Amendment) Act 40 of 2003 which came into force from 28th August, 2003 on the
grounds of it violating the principle of Federalism which is a basic feature of the Constitution.
There

is a further challenge to the amendments in Sections 59, 94 and 128 of the RP Act, 1951

by which Open Ballet System is introduced which, according to the petitioner, violates the
principle of 'secrecy' which, according to the petitioner, is the essence of free and fair elections as
also the voter's freedom of expression which is the basic feature of the Constitution and the
subject matter of the fundamental right under Article 19 (1) (a) of the Constitution. 11 In this case
too, the same dicta was applied which was laid down in the Elections case, that is, ordinary
legislations are not subject to the test of basic structure doctrine.
Thus, the researcher concludes that the basic structure doctrine test is not applicable to ordinary
legislations.
BIBLIOGRAPHY

The Constitution of India

DR. D.D. BASU, Introduction to the Constitution of India
M.P. Singh, Constitution of India
Indira Gandhi v. Raj Narain
Kuldip Nayar v. Union of India

11 Kuldip Nayar v. Union of India