Sibal explained that even though the Basic Structure Doctrine, laid down in the historic Kesavananda Bharati case, is still in place, it can be weakened through normal laws passed by the legislature.
On Monday, Senior Advocate and President of the Supreme Court Bar Association (SCBA), Kapil Sibal, made a serious statement regarding the Indian Constitution. He said that the basic structure of the Constitution is being violated every single day, not by amending it directly but by passing new laws that go against its fundamental principles.
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Sibal was speaking at the book launch of Justice Rohinton Nariman’s book titled ‘The Basic Structure Doctrine’.
He said clearly, “What Rohinton has said, the Basic Structure doctrine is here to stay. Nobody can change it … But the real challenge is that you don’t need to violate basic structure by changing the principles of basic structure. You can violate basic structure by bringing in ordinary law which is contrary to the basic structure of the Constitution.”
Sibal explained that even though the Basic Structure Doctrine, laid down in the historic Kesavananda Bharati case, is still in place, it can be weakened through normal laws passed by the legislature.
He further added, “And the principle laid down in Kesavananda Bharati is that basic structure is only a concept which is applicable to the Constituent power of Parliament. But if we have laws which are contrary to the basic structure, you can’t challenge them on grounds of basic structure. But you can violate basic structure on a daily basis, and that is what’s happening in this country.”
The Supreme Court of India, in a historic 7:6 majority verdict, laid down the Basic Structure Doctrine in the Kesavananda Bharati case. This important legal principle says that certain core elements of the Constitution—like democracy, secularism, federalism, and the rule of law—cannot be changed or removed by Parliament, even through a constitutional amendment.
The Court also ruled that judicial review, which allows the judiciary to review and strike down unconstitutional laws, is a key feature of the basic structure and cannot be taken away by Parliament.
The Kesavananda Bharati judgment is considered one of the most important decisions in Indian constitutional history. It firmly established that there are limits to Parliament’s power to amend the Constitution. Key features such as:
- Supremacy of the Constitution
- Rule of Law
- Independence of the Judiciary
are part of the Constitution’s basic structure and cannot be amended or destroyed.
This doctrine acts as a safeguard against excessive or arbitrary changes by Parliament and ensures that the spirit of the Constitution remains intact. While the Constitution can evolve with the times, its core values and foundational principles must remain protected.
This means that while a constitutional amendment can be tested against the Basic Structure Doctrine, ordinary laws cannot be challenged on that ground. As a result, lawmakers can bypass the doctrine by simply enacting ordinary laws that go against the spirit of the Constitution.
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Sibal raised concerns about the judiciary’s silence on such issues. He pointed out that many laws which hurt the core ideas of federalism and secularism are being passed and courts are not striking them down.
He said, “Now you can’t challenge those legislations on the ground that it violates the basic structure. You have to have them struck down by virtue of Article 13, because they violate Part III of the Constitution. That the courts are not willing to do.”
Article 13 of the Constitution says that any law that violates Fundamental Rights is invalid. But Sibal believes that courts are not using this Article enough to stop harmful laws.
Sibal also shared a personal memory from the time when the Kesavananda Bharati case was being argued in the Supreme Court. It was a landmark case in Indian constitutional history.
He recalled, “I was a briefless lawyer, so I would normally go from court to court, watching judges. And when I heard that this matter was on, I went to court 1, and there I saw Nani Palkhivala arguing.”
His comment shows how significant the case was for young lawyers like him and how much respect he had for senior advocates like Nani Palkhivala, who played a key role in defending the Constitution back then.
Kapil Sibal ended with a strong warning: “Courts are not willing to strike down laws violating basic structure.”
He urged that people must stay alert, as the core values of the Constitution — like democracy, secularism, and federalism — are being slowly weakened through ordinary laws which are not being challenged or struck down by the courts.
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