Much before Kesavananda Bharati, the ‘North Star’ of the basic structure rose with the Constituent Assembly

The genesis of the basic structure doctrine of the Constitution lies in the legislative intent of the Constituent Assembly and Supreme Court judge Justice J.R. Mudholkar's 1964 judgment, writes S.N. Sahu.

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THE historic 1974 judgment of the Supreme Court of India in the Kesavananda Bharati case is already part of legal folklore. Through that judgment, the court established that the Parliament of India cannot alter the basic structure of the Constitution by employing Article 368 of the Constitution, providing for its amendment. So, in the public consciousness, it is firmly imprinted that the idea of basic structure originated in that 1974 judgment.

But a peep into history illuminates our understanding that the idea of the basic structure of the Constitution can be traced to the legislative intent of the Constituent Assembly and, more importantly, Supreme Court judge Justice J.R. Mudholkar's interrogation, in his judgment of 1964 in Sajjan Singh versus State of Rajasthan, to ascertain if it would be within the purview of Article 368, mandating amendment of the Constitution, to change its basic structure.

Legislative intent of the Constituent Assembly

Let us first explore the legislative intent of the Constituent Assembly concerning the basic structure. Dr B.R. Ambedkar while participating in the discussion on September 17, 1949 in the Constituent Assembly on Article 304 of the draft Constitution dealing with the Parliament's power to amend the Constitution, used phrases such as "fundamentals of the Constitution" and "principles of the Constitution", and indicated that those fundamentals and principles should not be altered.