Fifty Years (and Counting) of the Basic Structure Doctrine: Its Influence and Relevance

Document Type

Research Article

Abstract

This article examines the abiding influence of the Kesavananda Bharati decision (1973) and the gradual unfolding of what constitutes the founding spirit or essential features of the Constitution by the courts. The article argues that the mode of discovery of these core aspects of the Constitution is distinct from the manner in which common law principles have evolved. The article argues that the process of discovery of these features through viewing/reading the text afresh within the context of a constitutional amendment and the reality within which it should be viewed bears some resemblance to that of the Indian philosophical idea of 'darshan'. This iterative reading of the constitutional text has allowed the judges considerable leeway in the identification of these features. The article points out that while several liberal and democratic aspects have been identified by the courts so far, we await a 'thicker' reading of the core features of the Constitution, including the freedom from exploitation and discrimination. The article also examines how the basic structure doctrine has directly or indirectly influenced apex courts in the South Asian region. The article uses the example of constitutional developments in Pakistan and Bangladesh to explain how the use of the basic structure (and allied) doctrines has helped reclaim constitutions that have been diminished by emergency or martial law proclamations. Such versatile applications of the basic structure doctrine formulated over fifty years ago indicate the temporal as well as spatial influence of the Kesavananda Bharati decision.

DOI

https://4dbe3291-4e81-4eb7-a98a-194264378912.filesusr.com/ugd/34b609_a3117442c6b940df806fca9cda2b7914.pdf

Publication Date

5-2026

Journal

RGNUL Student Research Review

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