Basic structure and a living document

The basic structure theory came from the Kesavananda Bharati case (1973) and shaped how the Constitution evolved:

• It sets a limit on Parliament's power: no amendment can violate the basic structure.
• Within that limit, Parliament may amend any part of the Constitution.
• The judiciary is the final authority on whether an amendment violates the basic structure, and on what the basic structure is.
• The theory is not written in the Constitution: it grew from judicial interpretation, and is itself an example of a living constitution. It balances rigidity (some parts cannot be changed) and flexibility (everything else can).

Other judicial interpretations have also changed our understanding: reservations in jobs and education should not exceed 50 per cent; the creamy layer among other backward classes is not entitled to reservation; and rulings on the right to education, the right to life and liberty, and minority educational institutions.

Review of the Constitution. In 2000, the government appointed a commission chaired by Justice Venkatachaliah, a retired Chief Justice. Opposition parties boycotted it, but the commission stayed within the basic structure, showing how firmly the doctrine had been accepted.

Living document. Like a living being, the Constitution responds to experience. The recurring question since 1950 was the supremacy of Parliament: Parliament represents the people, but must work within the Constitution, and democracy is also about the rule of law and checks on arbitrary power.

• The Court turned to the spirit rather than only the letter of the Constitution: the basic structure is what the Constitution cannot be imagined without.
• After Kesavananda, attempts to get the ruling reconsidered failed; the 42nd Amendment asserted parliamentary supremacy, but the Court repeated its stand in Minerva Mills (1980). Parties, governments and Parliament came to accept the basic structure: a sign of political maturity.
• The shared vision from the time of Independence, dignity and freedom of the individual, social and economic equality, the well-being of all and national unity, still holds.

Conclusion. Debates over the basic structure are healthy in a democracy, but leaders have shown maturity in setting limits to them and finding common ground. Organs of government will compete, but final authority lies with the people.

Example (new): if Parliament passed an amendment saying general elections would be held only every twenty years, courts could test it against the basic structure, since free and regular elections are central to democracy.