Question From A Law Student: Has The Basic Structure Doctrine Made The Judiciary The Final Author Of The Constitution?

The Guardian Who Became the Author

The interpretation of Article 368 was perhaps the single most transformative moment in Indian constitutional history, a legal masterstroke that permanently altered how the Constitution was understood. Nobody saw it coming.

The tension between the legislature and the judiciary is not new. From Shankari Prasad (1951) to I.C. Golaknath (1967), one question kept returning: who holds ultimate constitutional authority? The judiciary, as the declared defender of the Constitution, had both the obligation and the institutional interest to protect the document that itself conferred upon it that very responsibility.

Then came 1973. The Supreme Court's reading of Article 368, that Parliament's power is to amend "of" the Constitution, not over it, drew a distinction that changed everything. The reasoning followed that an amendment, being a product of the Constitution, cannot be greater than the Constitution itself. Certain provisions forming its core identity, therefore, fall beyond Parliament's amending reach. These became what we know as the Basic Features. With the Basic Structure Doctrine emerging from Kesavananda Bharati v. State of Kerala, the Supreme Court assumed the role of permanent guardian of these features, with judicial review under Article 368 as its instrument.

The doctrine has undeniably served a purpose. It has protected constitutional values from majoritarian excess and unchecked legislative power for over fifty years. But the question that deserves serious engagement, particularly among legal scholars, is whether the Court has remained a guardian of the Constitution or has gradually taken on the role of its author.

India's constitutional framework does not envisage a watertight separation of powers. The three organs of the state are designed to check and balance one another, and a degree of functional overlap is both expected and necessary.

But, has the doctrine struck the right balance to avoid the prejudices and conflict of interests of the legislature, executive and judiciary in light of evolving constitutional governance?

The Basic Structure Doctrine, as it stands, has no textual foundation in the Constitution. It is absent from every provision and finds no trace in the Constituent Assembly debates. Yet, on the basis of this judicially constructed doctrine, the Supreme Court has struck down constitutional amendments, specifically on the ground that they compromised judicial independence or judicial review, features the Court itself identified and continues to define.

The most pointed illustration is Supreme Court Advocates-on-Record Association v. Union of India (2015), where the 99th Constitutional Amendment establishing the National Judicial Appointments Commission was struck down as unconstitutional. The Court held that the NJAC violated the basic feature of judicial independence, and in doing so, used a self-determined doctrine to protect its own appointment process from legislative intervention.

This raises a question that legal scholarship cannot indefinitely defer: does the assumption of such wide-ranging authority amount to a de facto supremacy over the Constitution, one the framers never envisioned and the text never sanctions? When a single institution holds the exclusive power to identify, expand, and enforce what is constitutionally fundamental, the separation of powers is not merely strained, it is structurally altered.

Constitutional governance rests on the principle that no institution stands above the law. The Basic Structure Doctrine was conceived to uphold that principle. Whether its continued application serves or quietly contradicts that very purpose remains an open and legitimate question, one that the legal community must engage with honestly.

The rule of law cannot exist without the judiciary, yet institutions, however noble, must reflect on whether they have ever quietly crossed their own limits. When the sovereign people, through their elected representatives, struggle to bring about desired change, questions naturally arise. Is the process of protecting judicial authority inadvertently slowing constitutional governance?

As Pandit Nehru once warned, "if you make anything rigid and permanent, you stop a nation's growth, the growth of a living, vital, organic people."

Does "complete justice" within "jurisdiction" risk becoming the rewriting of constitutional provisions? These are not new questions. What would be unprecedented, however, is receiving honest answers from judges, legal academics, constitutional scholars, and legislators; answers owed not to critics or politicians, but to the ultimate sovereigns: the people of India.

'Question From A Law Student' Vertical, steered by Himanshi Hans