Basic Structure and Evolution of the Constitution

One development that has had a genuinely long-lasting effect on how the Constitution has evolved is the theory of the 'basic structure' of the Constitution, put forward by the judiciary in the landmark Kesavananda Bharati case, decided by the Supreme Court in 1973. This ruling shaped the Constitution's evolution in three specific ways: it set clear limits on Parliament's power to amend the Constitution, holding that no amendment may violate the Constitution's basic structure; at the same time, it confirmed that, within this one limitation, Parliament may amend any and every other part of the Constitution; and it placed the judiciary as the final authority for deciding both what counts as part of the basic structure and whether any given amendment violates it.

What makes this theory remarkable is that the Constitution itself does not mention a 'basic structure' anywhere in its text — the concept was entirely a product of judicial interpretation. In this sense, the basic structure doctrine is itself a striking example of how a living constitution can evolve: the judiciary effectively amended the practical working of the Constitution without any formal amendment being passed at all. In the four decades since 1973, this ruling has governed how every institution in the country interprets the Constitution, and the Supreme Court has, across many later cases, elaborated further on what the basic structure actually includes — for instance, holding that reservations in jobs and educational institutions generally cannot exceed fifty per cent of the total seats, and introducing the 'creamy layer' principle to exclude the better-off sections of Other Backward Classes from reservation benefits. The judiciary has, in a similar way, shaped an informal evolution of the Constitution's meaning through its rulings on the right to education, the right to life and liberty, and the right of minorities to establish and run their own educational institutions. …