THE AMENDMENT OF

THE CONSTITUTION OF
INDIA

TABLE OF CONTENTS
Sr. No

TITLE/DESCRIPTION

PAGE NO.

INTRODUCTION

ARTICLE 368

THE ANALYSIS OF ARTICLE 368

SCOPE OF THE AMENDING POWER OF THE PARLIAMENT

THE PRE-KESAVANANDA POSITION

THE POST-KESAVANANDA POSITION

BASIC FEATURES OF THE CONSTITUTION

10

KESAVANANDA VERDICT
BASIC FEATURES OF THE CONSTITUTION

13

THE ELECTION CASE VERDICT

SARDAR SWARAN SINGH COMMITTEE AND

14

10

THE FORTY-SECOND AMENDMENT

ARTICLE 368 AS IT STANDS TODAY

17

11

DOCTRINE OF BASIC FEATURES AS IT STANDS TODAY

19

12

VARIOUS FEATURES HELD TO BE PART OF BASIC STRUCTURE

20

13

INFLUENCE

22

14

CONCLUSION

23

15

IMPORTANT TERMS

24

16

BIBLIOGRAPHY

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INTRODUCTION
The amendment of the Constitution at times becomes necessary to adapt to the changing
needs of national development and strength; to overcome the difficulties which may
encounter in future in working of the Constitution; and to realize any popular demand for
changing the political system e.g. State reorganization, provisions for SC/STs, lowering the
age for voting, etc.
Pundit Nehru observed that there was no permanence in Constitution, as it would stop the
nations growth. The amendment of Constitution should only be resorted to in cases of
serious repercussions or emergent circumstances or a special contingency.
However, the amendment of Constitution often been used to achieve political purposes or to
override judicial verdicts. Moreover, multiple and multifarious amendments undermines the
sanctity of Constitution as an organic instrument and creates confusion. For example, the
42nd Amendment (Act of Revision) effected vital changes e.g. fundamental rights devalued
vis-a-vis directive principles. The 43rd and 44th Amendments wiped out many of the
provisions of 42nd Amendment. The procedure for amendment, instead of being rigid has
rather proved too flexible. There is no separate constituent body for amendment and the
Parliament, the ordinary legislative organ of Union, performs the function.
The Constitution can be amended under Art. 368 as well as by ordinary legislations of the
Parliament under Articles 2, 3 and 4. Besides these formal procedures, the constitution gets
amended through constitutional practices, conventions and by judicial interpretations.

Figure 1: Depicts Methods of Amendment of Constitution of India

Informal method of Amendment: The letter of the law does not change. But, its meaning
and its import changes.

By changing a well-established convention;

Amendment by change in the interpretation of the provisions of the Constitution.

Formal Method of amendment: It is the text of law, i.e. the written provision of the
constitution is amended by way of addition, variation or repeal.

ARTICLE 368
POWER OF PARLIAMENT TO AMEND THE CONSTITUTION AND PROCEDURE
THEREFORE:
(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its
constituent power amend by way of addition, variation or repeal any provision of this
Constitution in accordance with the procedure laid down in this article.
(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for
the purpose in either House of Parliament, and when the Bill is passed in each House by a
majority of the total membership of that House and by a majority of not less than two-thirds
of the members of that
House present and voting, it shall be presented to the President who shall give his assent to
the Bill and thereupon the Constitution shall stand amended in accordance with the terms of
the Bill:
Provided that if such amendment seeks to make any change in:
(a) article 54, article 55, article 73, article 162 or article 241, or (b) Chapter IV of Part V,
Chapter V of Part VI, or Chapter I of Part XI, or (c) any of the lists in the Seventh Schedule,
or (d) The representation of States in Parliament, or (e) the provisions of this article,the
amendment shall also require to be ratified by the Legislatures of not less than one-half of
the States.
(3) Nothing in article 13 shall apply to amendment made under this article.
(4)* No amendment of this Constitution (including the provisions of Part III) made or
purporting to have been made under this article [whether before or after the commencement

of section 55 of the Constitution (Forty-second Amendment) Act, 1976] shall be called in

question in any court on any ground.
(5)* For the removal of doubts, it is hereby declared that there shall be no limitation whatever
on the constituent power of Parliament to amend by way of addition, variation or repeal the
provisions of this Constitution under this article.
NOTE: Clauses (4) and (5) were inserted in the article by the Constitution (Fortysecond Amendment) Act, 1976 vide section 55. This section has since been declared
invalid by the Supreme Court in Minerva Mills Ltd. and others vs. Union of India and
other (1980) 2 S.C.C. 591.

THE ANALYSIS OF ARTICLE 368

There are 3 categories of amendments:
(1) Amendment by simple majority:
Amendments contemplated in Articles 5, 169, and 239-A, can be made by simple majority.
These Articles are specifically excluded from the purview of the procedure prescribed in
Article 368.
(2) Amendment by special majority:
Articles which can be amended by special majority are laid down in Article 368. All
constitutional amendments, other than those referred to as above, come within this category
and must be effected by a majority of the total membership of each House of the Parliament,
as well as by a majority of not less than two-thirds of the members of that House present and
voting.
(3) By special majority and Ratification by States:
Articles which require in addition to the special majority and ratification by not less than onehalf of the State Legislatures come under this category. These are fundamental matters
where States have important power under the Constitution and any unilateral amendment by
Parliament may vitally affect the fundamental basis of the system built up by the
Constitution. This class of articles consists of amendments which seek to make any change
in the provisions mentioned in Article 368. The following provisions require such ratification
by States:

i.
ii.
iii.

Election of PresidentArticles 54 and 55.

Extent of Executive power of the Union and StatesArticles 73 and 162.
Articles dealing with JudiciarySupreme Court and the High CourtsArticles 124 to

iv.
v.
vi.
vii.

147 and 214 to 231, and 241.

Distribution of legislative powers between the Centre and the States.
Any of the Lists of VII Schedule.
Representation of States in Parliament IV Schedule.
Article 368 itself.

SCOPE OF THE AMENDING POWER OF THE PARLIAMENT

Are Fundamental Rights Amendable?
According to the Constitution, Parliament and the state legislatures in India have the power
to make laws within their respective jurisdictions. This power is not absolute in nature. The
Constitution vests in the judiciary, the power to adjudicate upon the constitutional validity of
all laws. If a law made by Parliament or the state legislatures violates any provision of the
Constitution, the Supreme Court has the power to declare such a law invalid or ultra vires.
This check notwithstanding, the founding fathers wanted the Constitution to be an adaptable
document rather than a rigid framework for governance. Hence Parliament was invested with
the power to amend the Constitution. Article 368 of the Constitution gives the impression
that Parliament's amending powers are absolute and encompass all parts of the document.
But the Supreme Court has acted as a brake to the legislative enthusiasm of Parliament ever
since independence. With the intention of preserving the original ideals envisioned by the
constitution-makers, the apex court pronounced that Parliament could not distort, damage or
alter the basic features of the Constitution under the pretext of amending it. The phrase
'basic structure' itself cannot be found in the Constitution. The Supreme Court recognised
this concept for the first time in the historic Kesavananda Bharati case in 1973. Ever since
the Supreme Court has been the interpreter of the Constitution and the arbiter of all
amendments made by Parliament.

THE PRE-KESAVANANDA POSITION

Parliament's authority to amend the Constitution, particularly the chapter on the fundamental
rights of citizens, was challenged as early as in 1951. After independence, several laws
were enacted in the states with the aim of reforming land ownership and tenancy structures.
This was in keeping with the ruling Congress party's electoral promise of implementing the
socialistic goals of the Constitution [contained in Article 39 (b) and (c) of the Directive
Principles of State Policy] that required equitable distribution of resources of
production among all citizens and prevention of concentration of wealth in the hands
5

of a few.
Soon after the commencement of the Constitution in 1950,some State Government initiated
proposals for incorporation of laws relating to Agrarian reforms .These laws contained
provisions for the abolition of zamindari system, as well ,for the compulsory acquisition of
property for public purpose .One such measure was The Bihar lad Reforms
Act,1950,enacted by the Bihar Legislature. The Act provided for the Acquisition by the State
of the estates and tenures of three leading Zamindars of Bihar Province .The Act was
challenged in Kameshwar Singh v State of Bihar(AIR 1951SC pat 91) before Patna High
Court. The High Court struck down the Act, as unconstitutional and void as it contravened
the provisions of Article 14. The courts struck down the land reforms laws saying that they
transgressed the fundamental right to property guaranteed by the Constitution. Piqued by
the unfavourable judgements, a new provision, Article 31A was added by the Constitution
(1st Amendment) Act, 1951. Parliament placed these laws in the Ninth Schedule of the
Constitution through the First and Fourth amendments (1951 and 1952 respectively),
thereby effectively removing them from the scope of judicial review.
Parliament added the Ninth Schedule to the Constitution through the very first amendment
in 1951 as a means of immunising certain laws against judicial review. Under the provisions
of Article 31, which themselves were amended several times later, laws placed in the Ninth
Schedule -- pertaining to acquisition of private property and compensation payable for such
acquisition -- cannot be challenged in a court of law on the ground that they violated the
fundamental rights of citizens. This protective umbrella covers more than 250 laws passed
by state legislatures with the aim of regulating the size of land holdings and abolishing
various tenancy systems. The Ninth Schedule was created with the primary objective of
preventing the judiciary - which upheld the citizens' right to property on several occasions from derailing the Congress party led government's agenda for a social revolution.
Property owners again challenged the constitutional amendments which placed land reforms
laws in the Ninth Schedule before the Supreme Court, saying that they violated Article 13
(2) of the Constitution.
Article 13 (2) provides for the protection of the fundamental rights of the citizen. Parliament
and the state legislatures are clearly prohibited from making laws that may take away or
abridge the fundamental rights guaranteed to the citizen. They argued that any amendment
to the Constitution had the status of a law as understood by Article 13 (2).

i.

Shankari Prasad v.Union of India (AIR 1951 SC455) :The Supreme Court held that
the power to amend the Constitution including the fundamental rights is contained in
the article 368 and that the word Law,in Art. 13 includes only an ordinary law and
does not include constitutional amendment which is made in exercise of constituent
power. The Court thus distinguished between the ordinary legislative power and
constituent power.
In Sajjan Singh v.State of Rajasthan (AIR 1965 SC845), it held that the words
amendment of Constitution means amendment of all the provisions of the constitution.
ii. Golak Nath v. State of Punjab( Air 1967 SC 1643) : In 1967 an eleven-judge bench
of the Supreme Court reversed its position. Delivering its 6:5 majority judgement in the
Golak Nath v. State of Punjab case, Chief Justice Subba Rao put forth the curious
position that Article 368, that contained provisions related to the amendment of the
Constitution, merely laid down the amending procedure. Article 368 did not confer
upon Parliament the power to amend the Constitution. The amending power
(constituent power) of Parliament arose from other provisions contained in the
Constitution (Articles 245, 246, 248) which gave it the power to make laws (plenary
legislative power). Thus, the apex court held that the amending power and legislative
powers of Parliament were essentially the same. Therefore, any amendment of the
Constitution must be deemed law as understood in Article 13 (2).
The majority judgement invoked the concept of implied limitations on Parliament's
power to amend the Constitution. This view held that the Constitution gives a place of
permanence to the fundamental freedoms of the citizen. In giving the Constitution to
themselves, the people had reserved the fundamental rights for themselves. Article 13,
according to the majority view, expressed this limitation on the powers of Parliament.
Parliament could not modify, restrict or impair fundamental freedoms due to this very
scheme of the Constitution and the nature of the freedoms granted under it. The
judges stated that the fundamental rights were so sacrosanct and transcendental in
importance that they could not be restricted even if such a move were to receive
unanimous approval of both houses of Parliament. They observed that a Constituent
Assembly might be summoned by Parliament for the purpose of amending the
fundamental rights if necessary.
The majority were, however, faced with the problem that, if the Ist, 4th and 17 th
Amendments were at a late stage to be invalidated, the impact on social and economic
affairs would be chaotic. On the other hand, the court considered that it had a duty to
correct errors in the law. It, therefore, adopted a doctrine of prospective overruling
7

under which the three constitutional amendments concerned would continue to be

valid, and the decision to the effect that Parliament had no power to amend the
provisions of Part III would operate for the future only.
(iii) 24th Amendment, 1971:ln order to remove difficulties created by the decision in
Golak Naths case, Parliament enacted this Act. It not only restored the amending
power of Parliament but also extended its scope by adding the words in Art. 368, to
amend by way of the addition or variation or repeal any provision of this Constitution in
accordance with the procedure laid down in this Article. A new clause added to Art. 13
which provides that nothing in this Article shall apply to any amendment of this
Constitution made under Art. 368.
Through a spate of amendments made between July 1971 and June 1972 Parliament
sought to regain lost ground. It restored for itself the absolute power to amend any part
of the Constitution including Part III, dealing with fundamental rights. Even the
President was made duty bound to give his assent to any amendment bill passed by
both houses of Parliament. Several curbs on the right property were passed into law.
The right to equality before the law and equal protection of the laws (Article 14)
and the fundamental freedoms guaranteed under Article 19 were made subordinate to
Article 39 (b) & (c) in the Directive Principles of State Policy. Privy purses of
erstwhile princes were abolished and an entire category of legislation dealing with land
reforms was placed in the Ninth Schedule beyond the scope of judicial review.

THE POST -KESAVANANDA POSITION

The validity of a Constitution Amendment Act shall not be open to question on the
ground that it takes away or affects a fundamental right. The 24th Amendment has
been held to be valid in Keshavanand case (though subject to some qualifications).
(iv) His Holiness Kesavananda Bharati Sripadagalavaru v State of Kerala and
Another (AIR 1973 SCI461): Also known as Fundamental Rights case, Inevitably,
the constitutional validity of these amendments was challenged before a full bench of
the Supreme Court (thirteen judges). Their verdict can be found in eleven separate
judgements. Nine judges signed a summary statement which records the most
important conclusions reached by them in this case. Granville Austin notes that there
are several discrepancies between the points contained in the summary signed by
the judges and the opinions expressed by them in their separate judgements.
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Nevertheless, the seminal concept of 'basic structure' of the Constitution gained

recognition in the majority verdict.
All judges upheld the validity of 24th amendment saying that Parliament had the
power to amend any or all provisions of the Constitution. All signatories to the
summary held that the Golaknath case had been decided wrongly and that Article
368 contained both the power and the procedure for amending the Constitution.
However they were clear that an amendment to the Constitution was not the same
as a law as understood by Article 13 (2).
It is necessary to point out the subtle difference that exists between two kinds of
functions performed by the Indian Parliament:
a) it can make laws for the country by exercising its legislative power and
b) it can amend the Constitution by exercising its constituent power.
Constituent power is superior to ordinary legislative power: Unlike the British
Parliament which is a sovereign body (in the absence of a written constitution), the
powers and functions of the Indian Parliament and State legislatures are subject to
limitations laid down in the Constitution. The Constitution does not contain all the
laws that govern the country. Parliament and the state legislatures make laws from
time to time on various subjects, within their respective jurisdictions. The general
framework for making these laws is provided by the Constitution. Parliament alone is
given the power to make changes to this framework under Article 368. Unlike
ordinary laws, amendments to constitutional provisions require a special majority
vote in Parliament.
Another illustration is useful to demonstrate the difference between Parliament's
constituent power and law making powers. According to Article 21 of the
Constitution, no person in the country may be deprived of his life or personal
liberty except according to procedure established by law. The Constitution does
not lay down the details of the procedure as that responsibility is vested with the
legislatures and the executive. Parliament and the state legislatures make the
necessary laws identifying offensive activities for which a person may be imprisoned
or sentenced to death. The executive lays down the procedure of implementing these
laws and the accused person is tried in a court of law. Changes to these laws may be
incorporated by a simple majority vote in the concerned state legislature. There is no
need to amend the Constitution in order to incorporate changes to these laws.
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However, if there is a demand to convert Article 21 into the fundamental right to life
by abolishing death penalty, the Constitution may have to be suitably amended by
Parliament using its constituent power.
Most importantly seven of the thirteen judges in the Kesavananda Bharati case,
including Chief Justice Sikri who signed the summary statement, declared that
Parliament's constituent power was subject to inherent limitations. Parliament
could not use its amending powers under Article 368 to 'damage', 'emasculate',
'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or framework of the
Constitution.

BASIC FEATURES OF THE CONSTITUTION

KESAVANANDA VERDICT
Each judge laid out separately, what he thought were the basic or essential features
of the Constitution. There was no unanimity of opinion within the majority view either.
Sikri, C.J. explained that the concept of basic structure included:

supremacy of the Constitution

republican and democratic form of government

secular character of the Constitution

separation of powers between the legislature, executive and the judiciary

federal character of the Constitution

Shelat, J. and Grover, J. added two more basic features to this list:
the mandate to build a welfare state contained in the Directive Principles of
State Policy

unity and integrity of the nation

Hegde, J. and Mukherjea, J. identified a separate and shorter list of basic features:

sovereignty of India

democratic character of the polity

unity of the country

essential features of the individual freedoms secured to the citizens

10

mandate to build a welfare state

Jaganmohan Reddy, J. stated that elements of the basic features were to be found
in the Preamble of the Constitution and the provisions into which they translated
such as:

sovereign democratic republic

parliamentary democracy

three organs of the State

He said that the Constitution would not be itself without the fundamental
freedoms and the directive principles.
Only six judges on the bench (therefore a minority view) agreed that the
fundamental rights of the citizen belonged to the basic structure and
Parliament could not amend it.
The minority view
The minority view delivered by Justice A.N. Ray (whose appointment to the position
of Chief Justice over and above the heads of three senior judges, soon after the
pronunciation of the Kesavananda verdict, was widely considered to be politically
motivated), Justice M.H. Beg, Justice K.K. Mathew and Justice S.N. Dwivedi also
agreed that Golaknath had been decided wrongly. They upheld the validity of all
three amendments challenged before the court. Ray, J. held that all parts of the
Constitution were essential and no distinction could be made between its essential
and non-essential parts. All of them agreed that Parliament could make fundamental
changes in the Constitution by exercising its power under Article 368.
In summary the majority verdict in Kesavananda Bharati recognised the power of
Parliament to amend any or all provisions of the Constitution provided such an act
did not destroy its basic structure. But there was no unanimity of opinion about
what appoints to that basic structure. Though the Supreme Court very nearly
returned to the position of Sankari Prasad (1952) by restoring the supremacy of
Parliament's amending power, in effect it strengthened the power of judicial
review much more.

11

(v) Indira Gandhi v Raj Narain (AIR 1975 SC 2299: Popularly known as Election
Case)
Basic Structure concept reaffirmed- the Indira Gandhi Election case
In 1975, The Supreme Court again had the opportunity to pronounce on the basic
structure of the Constitution. A challenge to Prime Minister Indira Gandhi's election
victory was upheld by the Allahabad High Court on grounds of electoral malpractice
in 1975. Pending appeal, the vacation judge- Justice Krishna Iyer, granted a stay that
allowed Smt. Indira Gandhi to function as Prime Minister on the condition that she
should not draw a salary and speak or vote in Parliament until the case was decided.
Meanwhile, Parliament passed the 39th amendment to the Constitution which
removed the authority of the Supreme Court to adjudicate petitions regarding
elections of the President, Vice President, Prime Minister and Speaker of the Lok
Sabha. Instead, a body constituted by Parliament would be vested with the power to
resolve such election disputes. Section 4 of the Amendment Bill effectively thwarted
any attempt to challenge the election of an incumbent, occupying any of the above
offices in a court of law. This was clearly a pre-emptive action designed to benefit
Smt. Indira Gandhi whose election was the object of the on-going dispute.
Amendments were also made to the Representation of Peoples Acts of 1951 and
1974 and placed in the Ninth Schedule along with the Election Laws Amendment
Act, 1975 in order to save the Prime Minister from embarrassment if the apex court
delivered an unfavourable verdict. The mala fide intention of the government was
proved by the haste in which the Thirty-ninth amendment was passed. The bill was
introduced on August 7, 1975 and passed by the Lok Sabha the same day. The
Rajya Sabha (Upper House or House of Elders) passed it the next day and the
President gave his assent two days later. The amendment was ratified by the state
legislatures in special Saturday sessions. It was gazetted on August 10. When the
Supreme Court opened the case for hearing the next day, the Attorney General
asked the Court to throw out the case in the light of the new amendment. Counsel for
Raj Narain who was the political opponent challenging Mrs. Gandhi's election argued
that the amendment was against the basic structure of the Constitution as it affected
the conduct of free and fair elections and the power of judicial review. Counsel also
argued that Parliament was not competent to use its constituent power for validating
an election that was declared void by the High Court.
The 39th Amendment attempted, among other provisions, to legitimize the election of
Indira Gandhi in 1971. Article 329A put the elections of the Prime Minister and Lok
12

Sabha Speaker outside the purview of the judiciary and provided for determination of
disputes concerning their elections by an authority to be set up by a Parliamentary
law. The Supreme Court struck down clauses (4) and (5) of the article 329A, which
made the existing election law inapplicable to the Prime Minister's and Speaker's
election, and declared the pending proceedings in respect of such elections null and
void. Four out of five judges on the bench upheld the Thirty-ninth amendment, but
only after striking down that part which sought to curb the power of the judiciary to
adjudicate in the current election dispute. One judge, Beg, J. upheld the amendment
in its entirety.

BASIC FEATURES OF THE CONSTITUTION

THE ELECTION CASE VERDICT
Again, each judge expressed views about what amounts to the basic structure of the
Constitution:
According to Justice H.R. Khanna, democracy is a basic feature of the
Constitution and includes free and fair elections.
Justice K.K. Thomas held that the power of judicial review is an essential
feature.
Justice Y.V. Chandrachud listed four basic features which he considered
unamendable:

sovereign democratic republic status

equality of status and opportunity of an individual

secularism and freedom of conscience and religion

'government of laws and not of men' i.e. the rule of law

According to Chief Justice A.N. Ray, the constituent power of Parliament was above
the Constitution itself and therefore not bound by the principle of separation of
powers. Parliament could therefore exclude laws relating election disputes from
judicial review. He opined, strangely, that democracy was a basic feature but not
free and fair elections. Ray, C.J. held that ordinary legislation was not within the
scope of basic features.
13

Justice K.K. Mathew agreed with Ray, C.J. that ordinary laws did not fall within the
purview of basic structure. But he held that democracy was an essential feature
and that election disputes must be decided on the basis of law and facts by the
judiciary.
Justice M.H. Beg disagreed with Ray, C.J. on the grounds that it would be
unnecessary to have a Constitution if Parliament's constituent power were said to be
above it. Judicial powers were vested in the Supreme Court and the High Courts and
Parliament could not perform them. He contended that supremacy of the
Constitution and separation of powers were basic features as understood by the
majority in the Kesavananda Bharati case. Beg, J. emphasised that the doctrine of
basic structure included within its scope ordinary legislation also.
Despite the disagreement between the judges on what constituted the basic
structure of the Constitution, the idea that the Constitution had a core content
which was sacrosanct was upheld by the majority view.

SARDAR SWARAN SINGH COMMITTEE AND

THE FORTY-SECOND AMENDMENT
Soon after the declaration of National Emergency, the Congress party constituted a
committee under the Chairmanship of Sardar Swaran Singh to study the question of
amending the Constitution in the light of past experiences. Based on its
recommendations, the government incorporated several changes to the Constitution
including the Preamble, through the Forty-second amendment (passed in 1976
and came into effect on January 3, 1977). Among other things the amendment:
a) gave the Directive Principles of State Policy precedence over the
Fundamental Rights contained in Article 14 (right to equality before the law
and equal protection of the laws), Article 19 (various freedoms like freedom
of speech and expression, right to assemble peacefully, right to form
associations and unions, right to move about and reside freely in any part
of the country and the right to pursue any trade or profession) and Article
21 (right to life and personal liberty). Article 31C was amended to prohibit
any challenge to laws made under any of the Directive Principles of State

14

Policy;
b) laid down that amendments to the Constitution made in the past or those
likely to be made in future could not be questioned in any court on any ground;
c) removed all amendments to fundamental rights from the scope of judicial
review and
d) removed all limits on Parliament's power to amend the Constitution under
Article 368.
(vi) Minerva Mills Ltd v Union of India (AIR 1980 SC 1789) : Basic structure
doctrine reaffirmed- the Minerva Mills and Waman Rao cases
Within less than two years of the restoration of Parliament's amending powers to
near absolute terms, the Forty-second amendment was challenged before the
Supreme Court by the owners of Minerva Mills (Bangalore) a sick industrial firm
which was nationalised by the government in 1974.
Mr. N.A. Palkhivala, renowned constitutional lawyer and counsel for the petitioners,
chose not to challenge the government's action merely in terms of an infringement of
the fundamental right to property. Instead, he framed the challenge in terms of
Parliament's power to amend the Constitution.
Mr. Palkhivala argued that Section 55 of the amendment had placed unlimited
amending power in the hands of Parliament. The attempt to immunise constitutional
amendments against judicial review violated the doctrine of basic structure which had
been recognised by the Supreme Court in the Kesavananda Bharati and Indira
Gandhi Election Cases. He further contended that the amended Article 31C was
constitutionally bad as it violated the Preamble of the Constitution and the
fundamental rights of citizens. It also took away the power of judicial review.
Chief Justice Y.V. Chandrachud, delivering the majority judgement (4:1), upheld
both contentions. The majority view upheld the power of judicial review of
constitutional amendments. They maintained that clauses (4) and (5) of Article 368
conferred unlimited power on Parliament to amend the Constitution. They said that
this deprived courts of the ability to question the amendment even if it damaged or
destroyed the Constitution's basic structure.
The judges, who concurred with Chandrachud, C.J. ruled that a limited
15

amending power itself is a basic feature of the Constitution.

(vii) Art. 31-C and Sanjeev Coke Mfg. Co. v Bharat Coking Coal Ltd (AIR 1983
SC 239): Article 31-C is meant for saving of certain laws for giving effect to certain
directive principles. This Article was amended by 25th Amendment, 1971, which gave
primacy to directive principles in Art. 39 (b) and (c) over fundamental rights under
Arts. 14 and 19.
ln Keshavanandas case, the court held the first part of clause valid, but held that
court has the power of judicial review.
(Viii) Waman Rao v Union of India 1981 2 SCC 362: In this case relating to a
similar dispute involving agricultural property the apex court, held that all
constitutional amendments made after the date of the Kesavananda Bharati
judgement were open to judicial review. All laws placed in the Ninth Schedule after
the date of the Kesavananda Bharati judgement were also open to review in the
courts. They can be challenged on the ground that they are beyond Parliament's
constituent power or that they have damaged the basic structure of the Constitution.
In essence, the Supreme Court struck a balance between its authority to interpret the
Constitution and Parliament's power to amend it.
However, in Sanjeev Coke Mfg. Co. case, the Court held that where Art. 31 -C comes
in, Art. 14 goes out. A 5-judge bench held that Art. 31 -C with its extended protection
(made by 42nd Amendment) is constitutionally valid. lt is submitted that views taken
this case does not appear to be correct. Sec. 4 of 42nd Amendment will continue to
be unconstitutional despite doubts expressed in Sanjeev Cokes case.
ln S.R Sampa Kumar v Union of INDIA (AIR 1987 SC 386), the court without taking
note of the observations in Sanjeev Cakes case relied exclusively on Minerva Mills
case.

ARTICLE 368 AS IT STANDS TODAY

The Constitution, though expressly confers amending power on the Parliament, but it
is the Supreme Court, which is to finally interpret the scope of such power and to
spell out the limitations, if any, on such amending power. At present, any part of the
16

Constitution can be amended under Art. 368, the only limitations being the procedural
limitations (as in Art. 368 itself) and the substantive limitations (basic features).
(i) Procedural Limitation - The power conferred by Art. 368 is subject to the
procedure laid down in the Article [Art 368(1)]. The court would be competent to
strike down an Amendment Act which did not comply with the procedural
requirements of Art. 368.
ln Kihota Hollohon v Zachillu (AIR 1993 SC 412), Para 7 of the Tenth Schedule to
the Constitution inserted by the Constitution (52nd Amendment) Act, 1985, excluding
the jurisdiction of all courts on the question of disqualification on the ground of
defection, was struck down as unconstitutional since it was not enacted complying
requirement of Proviso to Art. 368 (2), which required ratification of the amendment
by at least half of the State Legislatures.
lt may be noted that while exercising the power under Art. 368, parliament would not
be subject to the limitations which curb its legislative power to make laws under Arts
245-246, because the amending power conferred by Art. 368 is constituent power .
(ii)Substantive Limitation - In Keshavanands case, the Supreme Court, for the first
time, exercised the power of judicial review on the following substantive grounds:
a)
b)

Basic structure or fundamental features of the Constitution.

The power to amend is vested by Art. 368 in Parliament (except where
ratification by State Legislatures is required). Hence, Parliament cannot,
directly or indirectly, abdicate or delegate that power to some other body; if it
does, the court would strike down that Constitution Amendment Act as invalid.

In a landmark judgement in I.R. Coelho (Dead) by LRs v State of Tamil Nadu (AIR 2007
SC 861), a 9-Judge Constitution Bench headed by Chief Justice Y K Sabharwal, held that
any law placed in the Ninth Schedule of the Constitution after April 24, 1973 (when
Keshavanand Bhartis judgment was delivered) will be open to challenge. The court
observed that even though an Act is put in the Ninth Schedule by a constitutional
amendment, its provisions would be open to challenge on the ground that they destroy or
damage the basic feature or structure of the Constitution, for instance, if the fundamental
rights are taken away or abrogated. The constitutional validity of the Ninth Schedule Laws
on the touchstone of basic structure doctrine can be adjudged by applying the direct impact
and effect test, i.e., rights test, which means the form of an amendment is not the relevant
factor, but the consequence thereof would be determinative factor. Further, the power of
judicial review which forms integral part of basic structure cannot be abrogated by any Act.
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The Ninth Schedule, which was introduced through Art. 31-B by the First Constitution
(Amendment) Act, 1951, aimed to save land reform laws enacted by various States from
being challenged in the court. Later on, however, it became an omnibus and every kind of
law whether it related to elections, mines and minerals, industrial relations, requisition of
property, monopolies, etc. were included in it. No principle underlies this selection of laws
under the Ninth Schedule. In the present case, the petitioners had challenged the validity of
various Central and State laws put in the Ninth Schedule including the Tamil Nadu
Reservation Act. The T.N. Act provided for the reservation of 69% of seats in government
jobs for the OBCs. The said Act was added in the Ninth Schedule because of the Supreme
Courts ruling in the Mandal case that overall reservation cannot exceed 50%.
The Apex Court said that the validity of any Ninth Schedule law has been upheld by this
court and it would not be open to challenge it again. But if a law is held to be violative of
fundamental rights, incorporated in Ninth Schedule after the date of judgment in
Keshavanand Bharti case, such a violation would be open to challenge on the ground that it
destroys or damages the basic structure of Constitution. The court further said that this court
is duty bound to uphold constitutional values and enforce constitutional limitation. A
constitutional amendment is permissible subject to the limitation of the doctrine of basic
structure.

DOCTRINE OF BASIC FEATURES AS IT STANDS TODAY

So long as the decision in Kesavanands case is not overturned by another Full Bench of the
Supreme Court (which may come only as an extraordinary event), any amendment of the
Constitution is liable to be interfered with by the court on the ground that it affects one or
other of the basic features of the Constitution. Further, since the doctrine dates from the
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decision in Keshvananda on 24-4-1973, it is only Amendment Acts passed subsequent to

that date which would be liable to attack on the basis of this doctrine. The Constitution
Bench in Waman v UOI (AIR 1981 SC 271) refused to give retrospective effect to the
doctrine of basic features.
ln Rajnarains case, it has been observed that the claim of any particular feature of the
Constitution to be a basic feature would be determined by the court in each case that
comes before it. Sometimes, an amendment may indirectly affect a basic feature of the
Constitution while promoting or protecting another basic feature of the Constitution. The
following such amendments have been held not to destroy or damage the basic structure of
the Constitution:
(i) The insertion of Art. 31A by the Constitution (Ist Amendment) Act, 1951 (relating to
agrarian reforms).
(ii) Even though Parliamentary democracy is a basic feature of the Constitution, the rights
and immunities provided to the members of Parliament under Art. 105 (2) cannot be
elevated into the status of fundamental rights or basic features so as to invalidate a
Constitutional Amendment (by inserting the Xth Sch.) for the purpose of condemning
defection (Kihota v Zachilhu).
(iii) The insertion of Art. 323A (by the 42nd Amendment Act, 1976) which takes away the
jurisdiction of the High Courts and the Civil Courts to decide service matters, because that
jurisdiction of the Courts is replaced by that of an Administrative Tribunal (Sampat v UOI)
It may be noted that every integral part of the Constitution is not necessarily an essential
feature of the Constitution. Both are totally distinct and qualitatively different concepts.
Therefore, destroying an integral part of the Constitution did not amount to destroying the
basic structure or framework of the Constitution (Madhav Rao Scindia v UOI AIR 1971 SC
530; Raghunathrao Ganpathrao case).

VARIOUS FEATURES HELD TO BE PART OF BASIC STRUCTURE

(1) Supremacy of the Constitution (K. Bharati case). Again, in B.R. Kapoor v State of
TN (AIR 2001 SC 3435), the Supremacy of the Constitution has been reiterated to

19

be a basic feature. The court ruled that the mandate of the people could not overrule
the provisions of the Constitution.
(2) Republican, and Democratic form of government (free and fair elections) (K.
Bharati case, Indira Gandhi v Raj Narain). Also, Parliamentary system of
Government.
In Peoples Union for Civil Liberties v UOI (AIR 2003 SC 2363), the Republican and
democratic form of Government has been reiterated to be a basic feature. Similarly, held in
T.N. Seshan v UOI (1995) 4 SCC 611. The court ruled that the right of a voter to know the
bio-data and antecedents of a candidate is the foundation of democracy, a facet of the right
to freedom of speech and expression guaranteed under Art. 19(1)(g). It would be the basis
for free and fair election which was a basic structure of the Constitution.
In Special Reference No. 1 of 2002 (AIR 2003 SC 87), the apex court held that
democrarcy is a part of the basic structure of the Constitution and periodical, free and fair
election is the substratum of democracy.
(3) Sovereignty (unity and integrity) of country (K. Bharati case, R.C. Poudyal v
UOI).
(4) Federalism and Secularism (SR. Bommai case).
(5) Separation of Powers between Legislature, Executive and Judiciary (K. Bharati
case).
In State of Bihar v Bal Mukund Sah (AIR 2000 SC 1296), it was held that the concepts of
Separation of powers between the legislature, the executive and the judiciary and
Independent Judiciary are now elevated to the level of basic structure of the Constitution.
In this case, the issue related to recruitment to District Judiciary and to subordinate judiciary.
It was held that the High Court could get consulted by the Governor for forming appropriate
rules governing recruitment, etc. under Arts. 233-234 of the Constitution. But so long as it is
not done, the Legislature cannot, by an indirect method, completely bypassing the High
Court and exercising its legislative power, circumvent and cut across the very scheme of
recruitment and appointment as envisaged by the makers of the Constitution.
(6) Rule of law and Judicial Review [Indira Gandhi v Raj Narain, S.R. Bommai case, P
Sambhamurthy v State of A.P. AIR 1987 SC 663, L. Chandra Kumar v UOI AIR 1997
SC 1125].
(7) Independence of judiciary (Supreme Courts Advocates-on-Record Asscn. V UOI
case AIR 1994 SC 268); Judicial Superintendence - Power of High Courts over
decisions of all courts/tribunals within their respective jurisdictions (L. Chandra

20

Kumar v UOI); Powers of the Supreme Court under Arts. 32, 136, 141, 142 (Delhi
J.S.A. v State of Gujarat AIR 1991 SC 2176).
(8) Jurisdiction of Supreme Court under Art. 32 (Indira Gandhis case).
(9) Harmony and balance between Fundamental Rights and Directive Principles
(Minerva Mills case); The essence of Fundamental Rights (Waman v UOI AIR 1981
SC 271).
(10) Fundamental Rights in certain cases (Minerva Mill is case); Right to equality
(Indira Gandhi v Raj Narain); Not every feature of equality, but the quintessence of
equal justice (Raghunathraaiv case).
In Indra Sawhney v UOI (AIR 2000 SC 498), Principle of equality was reiterated to be a
basic structure of the Constitution. It was held that Parliament and State Legislatures cannot
transgress the feature of the Constitution, namely, the principle of equality enshrined in Art.
14 of which Art. (16) is a facet. Whether creamy layer is not excluded or whether forward
castes get included in the list of backward classes, the position will be the same, namely,
that there will be a breach not only of Art. 14 but of the basic structure of the Constitution.
(11) The concept of Social and Economic Justice - to built a welfare State, Part IV in
toto (Bhim v UOI AIR 1981 SC 234).
(12) Limited power of Parliament to amend the Constitution (Minerva Mills case).
(13) Un-amendability of basic structure (Minerva Mills case, R.C. Poudyals case).
(14) Objectives mentioned in the Preamble to the Constitution ( Indira Gandhis case).
(15) Freedom and dignity of the individual ( Keshavanandas case, Bommai case).
(16) Effective access to justice (Central Coal Fields v Jaiswal Coal Co. AIR 1980 SC
2125).
It may be noted that Right to Property under Art. 300-A is not a basic feature of the
Constitution [Jilubhai Nanbhai v State of Gujarat (1995) Supp. (1) SCC 596].
The doctrine of basic structure is criticized on various grounds, for instance that it lays down
a vague and uncertain test. The questions may arise, like, whether a basic feature such as
the Parliamentary system of Government may be replaced by the Presidential system?
Further, what would happen if two or more basic features come in conflict? Recently in
Turkey, secularism and democracy came in conflict. The conflict was resolved by banning
a fundamentalist party even though that enjoyed the support of more than 3/4th of the
population.
ln Keshvananda case, the court observed that there are many concepts of law which cannot
be defined precisely, for example, natural justice and negligence. The Chief Justice Sikri said
that the argument that because something cannot be cut and dried or nicely weighed or
measured and therefore does not exist is fallacious. The doctrine of basic structure will act
as a safety-valve against the arbitrary use of amending power.
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INFLUENCE
The influence extends to Commonwealth Countries sharing the judicial system with India.
The basic structure doctrine was adopted by the Supreme Court of Bangladesh in 1989,
by expressly relying on the reasoning in the Kesavananda case, in its ruling on Anwar
Hossain Chowdhary v. Bangladesh (41 DLR 1989 App. Div. 165, 1989 BLD (Spl.) 1).
The High Court of Singapore denied the application of the basic features doctrine in
Singapore in Teo Soh Lung v. Minister for Home Affairs. Justice Frederick Arthur Chua
held that the doctrine was not applicable to the Singapore Constitution: "Considering the
differences in the making of the Indian and our Constitution, it cannot be said that our
Parliament's power to amend our Constitution is limited in the same way as the Indian
Parliament's power to amend the Indian Constitution."
In Malaysia, the basic features doctrine was also found to be inapplicable by the Federal
Court in Phang Chin Hock v. Public Prosecutor.The Court remarked that the Indian
Constitution was not drafted by "mere mortals", while the same could not be said for the
Malaysian Constitution.The Indian Constitution was drafted by a constituent assembly
representative of the Indian people in territorial, racial and community terms, while both the
Malaysian and Singapore Constitutions were enacted by ordinary legislatures. Reliance on
the drawing of distinctions between the Indian Constitution on the one hand and the
Malaysian and Singapore Constitutions on the other on the basis of the history of their
framing has been criticized as weak and inadequate.

CONCLUSION
It may be said that the final word on the issue of the basic structure of the Constitution,
there is no hard and fast rule for basic feature of the Constitution. Different judge keep
different views regarding to theory of basis structure. But at one point they have similar view
that parliament has no power to destroy, alter, or emasculate the basic structure or
framework of the constitution. Nevertheless the sovereign, democratic and secular
character of the polity, rule of law, independence of the judiciary, fundamental rights
of citizens etc. are some of the essential features of the Constitution that have
appeared time and again in the Apex Court's pronouncements. One certainty that
22

emerged out of this tussle between Parliament and the judiciary is that all laws and
constitutional amendments are now subject to judicial review and laws that transgress the
basic structure are likely to be struck down by the Supreme Court. In essence Parliament's
power to amend the Constitution is not absolute and the Supreme Court is the final arbiter
over and interpreter of all constitutional amendments.In I.R.Coelho (Dead) By Lrs vs State
Of Tamil Nadu & Ors delivered on January 11, 2007, by nine judges of the Court on the
Ninth Schedule to the Constitution, the basic structure limitation has been stated to be "an
axiom of our constitutional law." An axiom means a self-evident truth. So be it. Whatever its
origins, the basic structure theory plays a useful part in our constitutional jurisprudence.
Parliament does not and should not have an unlimited power to amend the Constitution.
However, in the glorification of the basic structure theory, it is important to bear in mind its
infirm roots and how predilections and prejudices of judges, chance, and accidental
circumstances have played a greater part rather than any logic or conscious formulation of it.

IMPORTANT TERMS
Axiom:
An axiom or postulate is a premise or starting point of reasoning. As classically
conceived, an axiom is a premise so evident as to be accepted as true without
controversy. The word comes from the Greek axma () 'that which is thought
worthy or fit' or 'that which commends itself as evident.
Prospective Over ruling: The basic objective of prospective overruling is to overrule
a precedent without having a retrospective effect.
According to Cardozo J. if this doctrine is not given effect it will wash away the whole
dynamic nature of law, it will be against the concept of judicial activism. Cardozo J.
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was of the view that the law should keep up with the changes occurring in the
society, the law has to be dynamic and not static. If in a new and changed society,
the citizens are bound by an old law it will lead to grave injustice. The citizens whose
lives are bound by the law of land should be given laws according to changed needs.
Therefore the doctrine of Prospective Overruling is an important tool in the hand of
judiciary to give fair and timely justice to its citizens.
Overruling is an authoritative declaration that the decision overruled is not a good
law. In general, the decision overruled would be regarded as not good law for all
purposes so that all arrangements already made on the basis of the decision would
fall to the ground. To avoid this hardship, higher courts restrict the operation of the
overruled decision to future cases only and not to previous decided cases
(retrospective). This is called Doctrine of Prospective Overruling.
Recent Cases / Case Law: K Madhava Reddy and Others v Government of Andhra
Pradesh and Others, Civil Appeal

Jurisdiction, Civil Appeal No 4947-4951 OF

2014, Supreme Court of India judgement dated April 29, 2014 .

Constituent Power:
The limited power of Parliament to amend the Constitution conferred by Article 368
prior to the Twenty-fourth Amendment is hereinafter referred to as "the constituent
power".
A creature of the Constitution, as the Parliament is, can have only such constituent
power as is conferred by the Constitution which is given by the people unto
themselves. While purporting to exercise that constituent power, Parliament cannot
increase that very power. No doubt, Parliament had the power to amend Article 368
itself, but that does not mean that Parliament could so amend Article 368 as to
change its own constituent power beyond recognition. A creature of the Constitution
cannot enlarge its own power over the Constitution, while purporting to act under it,
any more than the creature of an ordinary law can enlarge its own power while
purporting to act under that law. The power of amendment cannot possibly embrace
the power to enlarge that very power of amendment, or to abrogate the limitation,
inherent or implied, in the terms on which the power was conferred. The contrary
view would reduce the whole principle of inherent and implied limitations to an
absurdity.
Expressum facit cessare tacitum:
Expressum facit cessare tacitum is a legal maxim that means what is expressed
makes what is implied silent. This form of construction is used while interpreting
statutes, contracts and deeds. When a matter is clearly provided in a document, the
clear and precise meaning is to be adopted. The implied meaning need not be
adopted when a clear meaning is provided.
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 Ut Res Magis Valeat Quam Pereat:

It is better for a thing to have effect than to be made void.
Salus Populi Est Suprema Lex:
The welfare of an individual yields to that of the community.

BIBLIOGRAPHY
Books:
i.

Jain, M.P. , Indian Constitutional Law Vol- 1, 2

ii.

Bakshi, P.M., The Constitution of India- Delhi: Universal Law Publishing Co.,
2013

iii.

Pandey, J.N., The Constitutional Law of India ,Central Law Agency,2013

iv.

Prof.Narender

Kumar,

Constitutional

Law

of

India

Allahabad

Law

Agency,2014
v.

Durga Das Basus Commentary on the Constitution of India, 2014, Vol. 2.

Websites: Following web references for the completion of this assignment has been
used:
i.

http://www.legalserviceindia.com/article/l70-Article368.html
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ii.

http://www.ebc-india.com/lawyer/articles/73v4a1.htm

iii.

http://www.humanrightsinitiative.org/publications/const/the_basic_structure_of
_the_indian_constitution.pdf

iv.

http://www.lawteacher.net/administrative-law/essays/jurisprudenceprospective-overruling-in-reference-administrative-law-essay.php

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