LEGAL AND CONSTITUTIONAL

HISTORY
PROJECT ON

AMENDMENT TO
FUNDAMENTAL RIGHTS

Submitted to: Submitted by:-

Mr. Yasir Abbas Zoha Aslam
B.A. LLB (H)
Semester III
 AMENDMENTS TO THE FUNDAMENTAL RIGHTS

Acknowledgement

I would like to thank my legal and constitutional history teacher Mr

Yasir Abbas for his guidance, support and constant encouragement
throughout the course of this thesis.and I would also like to thank my friends
and staff of library for their support in this project.

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 AMENDMENTS TO THE FUNDAMENTAL RIGHTS

Table of Contents

1. Introduction
2. Fundamental Rights and Amendments
3. Phase I
a. Views expressed by Supreme Court in Shankari Prasad’s case
b. Doubts expressed in Sajjan Singh’s case
4. Phase II
a. Decision in Golak Nath’s case
b. Constitution (24th Amendment) Act, 1971
c. Doctrine of Prospective Overruling
5. Phase III
a. Kesavananda Bharti’s case
b. Basic Structure- meaning of
c. Basic Structure- illustrative examples
d. Indira Gandhi Election case
e. 42nd Amendment and Article 368
6. Phase IV
a. Minerva Mills v. Union of India
b. Waman Rao v. Union of India
c. Raghunath Rao v. Union of India
d. A.K. Roy v. Union of India
e. M. Nagraj v. Union of India
f. I.R. Coelho v. State of Tamil Nadu
7. Conclusion
8. Bibliography

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 AMENDMENTS TO THE FUNDAMENTAL RIGHTS

Introduction

The nature of the amending process envisaged by the makers of our Constitution can be best explained
by referring to the observation of Pandit Nehru1 that the Constitution should not be so rigid that it
cannot be adapted to the changing needs of national development and strength.

There was also a political significance in adopting a ‘facile procedure’ for amendment, namely, that
any popular demand for changing the political system should be capable of realization, if it assumed a
considerable volume. In the words of Dr. Ambedkar, explaining the proposals for amendment
introduced by him in the Constituent Assembly.2

“Those who are dissatisfied with the Constitution have only to obtain in two-thirds majority, and if they
cannot obtain even a two-thirds majority in the Parliament elected on adult franchise in their favour,
their dissatisfaction with the Constitution cannot be deemed to be shared by the general public.”

Elements of flexibility were therefore imported into a Federal Constitution which is inherently rigid in
its nature. According to the traditional theory of federalism, either the process of amendment of the
Constitution is entrusted to a body other than the ordinary Legislature or a special procedure is
prescribed for such amendment in order to ensure that the federal compact may not be disturbed at the
will of one of the parties of the federation, viz. the federal legislature.

But, as has been explained at the outset, the framers of our Constitution were also inspired by the need
for the sovereignty of the Parliament elected by universal suffrage to enable it to achieve a dynamic
national progress. They, therefore, prescribed an easier mode of changing those provisions of the
Constitution which did not primarily affect the federal system. This was done in two ways-

(a) By providing that the alteration of certain provisions of the Constitution were ‘not to be deemed
to be amendment of the Constitution’. The result is that such provisions can be altered by the
Union Parliament in the ordinary process of legislation i.e. by a simple majority.

1
Quoted under “Reconciliation of a written Constitution with Parliamentary Sovereignty” ante
2
C.A.D., dated 25-11-1949, pp. 225-26
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 AMENDMENTS TO THE FUNDAMENTAL RIGHTS

(b) Other provisions of the Constitution can be changed only by the process of ‘amendment’ which
is prescribed in Article 368. But a differentiation has been again made in the procedure for
amendment, according to the nature of the provisions sought to be amended.

While in all cases of amendment of the Constitution, a bill has to be passed by the Union
Parliament by a special majority, in the case of certain provisions which affect the federal structure,
a further step is required, viz. a ratification by the legislature of at least half of the States, before the
Bill is presented to the President for his assent. But even in these latter groups of cases, the law
which eventually effects the amendment is a law made by Parliament, which is the ordinary
legislative organ of the Union. There is thus, no separate constituent body provided for by our
Constitution for the amending process. The procedure for amendment is-

I. An amendment of the 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 (i.e. more than 50%) 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 for his assent and upon such assent being given to the Bill, the
Constitution shall stand amended in accordance with the terms of the Bill.
II. If, however, such amendment seeks to make any change in the following provisions,
namely,-
a. The manner of election of the President (art. 54,55)
b. Extent of the executive power of the Union and the States (art. 73, 162)
c. The Supreme Courts and the High Courts (art. 241, chap. IV of part V, chap V of part
VI)
d. Distribution of legislative power between the Union and the States (chap I of part XI)
e. Any of the lists in the 7th Schedule
f. Representation of the States in Parliament (art. 80-81, 4th Schedule)
g. Provisions of Article 368 itself-
The amendment shall also require to be ratified by the Legislatures of not less than one-
half of the States by resolutions to that effect passed by those Legislatures before the
Bill making provision for such amendment is presented to the President for assent
(Article 368(2))

It is clear from the above that the amending process prescribed by our Constitution has certain
distinctive features as compared with the corresponding provisions in the leading Constitutions of the
world. The procedure for amendment must be classed as ‘rigid’ in so far as it requires a special
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 AMENDMENTS TO THE FUNDAMENTAL RIGHTS

procedure for amendment as compared with the procedure prescribed for ordinary legislation. But the
procedure is not as complicated or difficult as in the U.S.A. or in any other rigid Constitution:

a. Subject to the special procedure laid down in Article 368, our Constitution vests constituent
powers upon the ordinary legislature of the Union i.e. the Parliament and there is no separate
body for amending the Constitution, as exists in some other Constitutions.
b. The State legislature cannot initiate any Bill or proposal for amendment of the Constitution. The
only mode of initiating a proposal for amendment is to introduce a Bill in either House of the
Union Parliament.
c. Subject to the provisions of Article368, Constitution Amendment Bills are to be passed by the
Parliament in the same way as ordinary Bills3. In other words, they may be initiated in either
House, and may be amended like other Bills, subject to the majority required by Article 368.
But for the special majority prescribed, they must be passed by both the Houses, like any other
Bill.

Fundamental Rights and Amendment

Part III of the Constitution contains a long list of fundament rights. This chapter of the Constitution of
India has very well been described as the Magna Carta of India 4. As early as 1214 the English people
exacted as assurance from King John for respect of the then ancient liberties. The Magna Carta is the
evidence of their success which is a written document. This is the first written document relating to the
fundamental rights of the citizens. Thereafter from time to time the King had to accede to many rights
to his subjects. In 1689 the Bill of Rights was written consolidating all important rights and liberties of
the English people.

Fundamental Rights were deemed essential to protect the rights and liberties of the people against the
encroachment of the powers delegated by them to their Government. They are limitations upon all the
powers of the Government, legislative as well as executive and they are essential for the preservation of
public and private rights, notwithstanding the representative character of political instruments5.

These Rights are regarded as fundamental because they are most essential for the attainment by the
individual or his full intellectual, moral and spiritual status. The negation of these rights will keep the
moral and spiritual life stunted and his potentialities undeveloped. The declaration of fundamental
rights in the Constitution serves as reminder to the Government in power that certain liberties, assured

3
Shankari Prasad v. UOI, A. 1951 S.C. 458; Sajjan v. State of Rajasthan, A. 1965 S.C. 845
4
V.G. Ramchandran- Fundamental Rights and Constitutional Remedies., Vol. 1 (1964), p.1.
5
Hartado v. People of California, 28 LED 232, per Mathew,J
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 AMENDMENTS TO THE FUNDAMENTAL RIGHTS

to the people by the Constitution are to be respected. The danger of encroachment on citizen’s liberties
is particularly great in parliamentary system in which those who form the Government are leaders of
the majority party in the Legislature and can get laws made according to their wishes. The advocates of
inclusion of these rights in the Indian Constitution emphasise that their incorporation in the
Constitution vests them with a sanctity which the legislators dare not to violate so easily.

Since 1951, questions have been raised about the scope of the Constitutional amending process
contained in Article 368.

The basic question raised has been whether the Fundamental Rights were amendable so as to dilute or
take away any Fundamental Right through a Constitutional amendment? Since 1951, a number of
amendments have been effectuated in the Fundamental Rights. The Cumulative effect of these
amendments has been to curtail, to some extent, the scope of some of these rights.

The worst affected Fundamental Right has been the right to property contained in Article 31 which has
been amended several times. The basic trend of these amendments has been to immunize, to some
extent, state interference with property rights from challenge under Articles 14, 19 and 31 as well as to
seek to exclude the question of compensation for acquisition or requisitioning of property by the state
from judicial purview. The Constitutional validity of these amendments has been challenged a number
of times before the Supreme Court.

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 AMENDMENTS TO THE FUNDAMENTAL RIGHTS

Phase I

Views expressed by the Supreme Court in Shankari Prasad’s case-

Soon after the first amendment was made, a controversy arose as to whether fundamental rights could
be amended by procedure prescribed in Article 368. The validity of the First Amendment was
considered by the Supreme Court in Shankari Prasad v. Union of India6. The main ground of attack was
based on the construction of Articles 13(2) and 368 of the Constitution. It was contended that the word
“law” in Article 13(2) refers to law made by Parliament in exercise of constituent powers under Article
368. The Court reached this conclusion by applying the rule of harmonious construction which requires
that when two Articles conflict in their operation with each other, one should be read as controlled and
qualified by the other. The question whether Fundamental Rights can be amended under Article 368
came for consideration of the Supreme Court in Shankari Prasad v. Union of India. In that case, the
validity of the Constitution (1st Amendment) Act, 1951, which inserted inter alia, Articles 31-A and 31-
B of the Constitution was challenged. The Amendment was challenged on the ground that it purported
to take away or abridge the rights conferred by Part III which fell +

-within the prohibition of Article 13(2) and hence was void. It was argued that the ‘State’ in Article 12
included Parliament and the word ‘law’ in Article 13(2), therefore, must include constitutional
amendment. The Supreme Court however, rejected the above argument and held that the power to
amend the Constitution including the Fundamental Rights is contained in Article 368, and that the word
‘Law’ in Article 13(8) includes only an ordinary law made in exercise of the Legislative powers and
does not include constitutional amendment which is made in exercise of constituent power. Therefore,
a constitutional amendment will be valid even if it abridges or takes away any of the fundamental
rights.

Doubts expressed in Sajjan Singh’s case-

For more than a decade, controversy seemed to have been settled but in Sajjan Singh v. State of
Rajasthan7, certain doubts were expressed by Hidayatullah and Madholkar, JJ. Hidayatullah,J said:

“But I make it clear that I must not be understood to have subscribed to the view that the word ‘law’ in
Article 13(2) does not control Constitutional amendments. I reserve my opinion on that case for I
apprehend that it depends on how wide is the word ‘law’ in that Article8.”
6
A.I.R. 1951 S.C. 458.
7
A.I.R. 1965 S.C. 845.
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 AMENDMENTS TO THE FUNDAMENTAL RIGHTS

Madholkar, J. also made the following observations:

“In view of these considerations and those mentioned by my learned brother Hidayatullah I feel
reluctant to express a definite opinion on the question whether the word ‘law’ in Article 13(2) of the
Constitution excludes an Act of Parliament amending the Constitution and also whether it is competent
to parliament to make any amendment at all to Part III of the Constitution9.”

In Sajjan Singh v. State of Rajasthan, the validity of the Constitution (17th Amendment) Act, 1964 was
challenged. The Supreme Court approved the majority judgement given in Shankari Prasad’s case and
held that the words “amendment of the constitution” means amendment of all the provisions of the
Constitution. Gajendragadkar, CJ, said that if the constitution makers intended to exclude the
fundamental rights from the scope of the amending power they would have made a clear provision in
that behalf.

8
Ibid., at page 861
9
Ibid., at page 865
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 AMENDMENTS TO THE FUNDAMENTAL RIGHTS

Phase II

Decision in Golak Nath’s case-

Ultimately in 1967 in Golak Nath v. State of Punjab10, the Supreme Court held that fundamental rights
cannot be amended so as to take away or abridge them. The restriction on amending power is only
against taking away or abridging fundamental rights and not against adding or broadening. In this case
three Writ Petitions (one against State of Punjab and two against State of Mysore) were filed to
challenge the validity of certain land reforms as well as of the Constitution (First Amendment) Act,
1964 on the ground of violation of fundamental rights under Articles 14, 19 and 31.

The main ground in favour of unamendability of fundamental rights was based on the construction of
Articles 13(2) and 368 of the Constitution. The Court held that it is true that the Constitution does not
directly prohibit amendment of fundamental rights but the word ‘law’ in Article 13(2) includes
Constitutional law and Constitutional amendments being law cannot take away or abridge fundamental
rights in the face of express prohibition in Article 13(2). The Court based this conclusion on the
following grounds:

1. The rule of law under the Constitution has a glorious content. It embodies the modern concept
of law evolved over the centuries. It empowers the legislatures to make laws in respect of
matters enumerated in the 3 lists annexed to Schedule VII. In part IV of the Constitution,
Directive Principles of State Policy are laid down. It directs to bring about a social order in
which justice, social, economic and political shall inform all the institutions of national life. It
directs to work for egalitarian society where there is no concentration of wealth, where there is
plenty, where there is equal opportunity for all to education, to work, to livelihood, and where
there is social justice. But having regard to the history of our country, it could not implicitly
believe the representatives of the people, for uncontrolled and unrestricted power might lead to
an authoritarian State. It, therefore, reserves the material rights against the State encroachment
and constitutes the higher judiciary of the State as the sentinel of the said rights and the
balancing wheel between the rights subject to social control;
2. The word amendment is not equivalent to repeal, re-enactment, abrogation or destruction. It has
a limited meaning and, therefore, power given under Article 368 enables the parliament only to
modify the Articles within the framework of the Constitution and not to destroy the essence of
those rights;

10
A.I.R. 1967 S.C. 1643
9
 AMENDMENTS TO THE FUNDAMENTAL RIGHTS

3. Omission of part III, especially Article 32, in the proviso to Article 368 indicates that the
framers intended to keep these provisions beyond the reach of the amendment process in Article
368 and therefore only another constituent assembly, not the parliament, which is constituted
body under the Constitution, can take away these rights;
4. If the fundamental rights are amendable and ‘law’ in Article 13(2) does not include
Constitutional amendments, the provisions of Articles 13(2), 32(1) and (4) are rendered useless
since in the absence of these provisions, the result would have been the same;
5. Article 368 does not contain power to amend the Constitution. It only prescribes the procedure
of amendment. The power to amend the Constitution should be found in the plenary legislative
power of Parliament under Article 248 and Entry 97 of the List I of Seventh Schedule;
6. The amendments of the Constitution either under Article 368 or ordinary legislative process.
The mere fact that there are certain other conditions, such as larger majority or ratification of
States, does not make the amendment any the less law;
7. If fundamental rights are too abridged or taken away by amendment, this could be possible only
by a Constituent Assembly, which maybe convoked by Parliament by enacting a law under
residuary powers.

All the three amendments challenged in the Writ Petitions were upheld by the Court on the ground that
they were made on the basis of earlier decisions of the Supreme Court and holding them invalid after
such a long time would create chaos and would unsettle the conditions in the country. Since the land
reform legislations challenged were protected by the Constitution (17th Amendment) Act and the
amendment was held valid, the Court held that the legislation in question could not be challenged and
dismissed the petitions. However, the Court applied the doctrine of prospective overruling and held that
in future Parliament could not abridge fundamental rights by Constitutional amendments or legislation.

Golak Nath’s case was severely criticized and was in fact contrary to the intentions of the makers of the
Constitution as is evident from debates in the Constituent Assembly.

Constitution (Twenty- Fourth Amendment) Act, 1971-

By Twenty- fourth Amendment, four changes were made in Article 368:-

1. Clauses (1) and (3) were inserted to avoid clash with other provisions of the Constitution and
particularly Article 13. Clause (1) says that notwithstanding anything in this Constitution,
Parliament may in exercise of its constituent power amend by way of addition, variation, or
repeal any provisions of this Constitution in accordance with the procedure laid down in Article
368.
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 AMENDMENTS TO THE FUNDAMENTAL RIGHTS

2. As an abundant caution, Clause (3) again provides that nothing in Article 13 shall apply to any
amendment made under Article 368.
3. Before Constitution (Twenty fourth Amendment) Act, marginal heading to Article 368 was
“Procedure for the Amendment of the Constitution”. It was amended and the new heading
substituted in its place is “Power of Parliament to amend the Constitution and the Procedure
therefor”. This change was necessitated but the opinion in Golak Nath’s case that Article 368
merely prescribed procedure for amendment and power to amend could not be found in Article
368.
4. The main provisions of Article 368 were placed in Clause (2) of the amended Article 368 and
for the words “it shall be presented to the President for his assent and upon such assent being
given to the Bill”;the words “it shall be presented to the President who shall give his assent to
the Bill thereupon” were substituted. This made it clear that when amendment is passed by
requisite majority in both Houses of Parliament, President will have to give his assent to the
amendment. He cannot withhold his assent.

Doctrine of Prospective Overruling

The immediate consequence of the view taken in Golaknath’s case would be that several amendments
made from 1950 onwards would be rendered invalid. These amendments had been made from 1950
onwards would be rendered invalid. These amendments had been made on the basis of the decisions in
Shankari Prasad and Sajjan Singh. If these decisions were overruled, it would result in chaos and
unsettle several steps taken on the basis of the above judgements. Accordingly, the Supreme Court
applied the doctrine of prospective overruling from American jurisprudence. It held that its decisions
would have only prospective operation and would not affect the 1st, 4th and 17th amendments which had
abridged the scope of fundamental rights11.

Phase III

Kesavananda Bharti Case-

His Holiness Swami Kesavananda Bharti Sri Padagalwaru was the head of a Math in Kerela. Land
reform legislation in Kerela had affected the property of his religious institution. Subsequently, these
changes in the Land Reform Law were placed in the Ninth Schedule by the 29th Amendment. The land
reform were initially challenged in 1970 and after the 29th Amendment, a fresh petition was filed to
challenge the 24th, 25th and 29th Amendments. A five Judge Bench initially heard the matter in August

11
Golaknath I.C. v. State of Punjab, AIR 1967 SC 16432
11
 AMENDMENTS TO THE FUNDAMENTAL RIGHTS

1972 and since the decision in Golaknath’s case consisted of 11 judges, the case was posted before a
bench of 13 judges. The decision in this case would completely alter the constitutional landscape of
India for generations to come.

This decision continues the longest reported judgement and covers 594 pages of All India Reporter.
The 13 Judges gave elaborate reasons and analysing them critically is extremely strenuous. Several
propositions have been repeated again and again. The decision could have been substantially shorter
without loss of substance. As far as Article 368 is concerned the Supreme Court held that Parliament
could amend the Constitution but it could not alter its basic structure or framework. It also upheld the
validity of the 24th, 25th and 29th Amendments. The 26th Amendment, regarding privy purses, was
directed to be posted before the Constitutional Bench. The Supreme Court issued a summary of its
views which was signed by nine of the thirteen judges.

Basic structure- meaning of

The theory of basic structure is based on the principal that a change in a thing does not involve its
destruction and destruction of a thing is a matter of substance and not of form. The concept of a basic
structure giving coherence and durability to a Constitution has a certain intrinsic force. This doctrine
has essentially developed from the German Constitution. This development is the emergence of
constitutional principles in their own right. It is not based on literal wordings12.

The basic structure doctrine can be traced to a distinguished German jurist Professor Dieter Conrad. A
paper based on a lecture delivered by him on “Implied Limitations of the Amending Power” to the Law
Faculty of the Banaras Hindu University in 1965, observed that the position of the Supreme Court in
India was perhaps influenced by the fact that it had not, at that point of time, been confronted with any
extreme type of constitutional amendments. Professor Conrad’s view that such extreme cases of
conflict were much more than a mere hypothesis for an academic debate could perhaps be attributed to
the experience with constitutional amendments in Germany in the Weimar period.

The final result of Kesavananda Bharati’s case was that the constitution could be amended without
altering its basic structure. The Court did not precisely define this term; indeed, it would have been
impossible to do so. Thus, there is no uniform indication of the scope of this expression even in the
majority verdict. Mr N.A. Palkhivala, arguing for the petitioners, submitted that the Constitution had
twelve essential features and these have been reproduced in the judgement of Justice A. N. Ray:-

1. The supremacy of the Constitution;

12
Nagraj M v. Union of India 2006 (9) JT 191
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 AMENDMENTS TO THE FUNDAMENTAL RIGHTS

2. The sovereignty of India;

3. The integrity of the country;
4. The democratic way of life;
5. The republican form of Government;
6. The guarantee of basic human rights elaborated in Part III of the Constitution;
7. A secular State;
8. A free and independent judiciary;
9. The dual structure of the Union and the States;
10. The balance between the Legislature, executive and the Judiciary;
11. A Parliamentary form of Government as distinct from the presidential form of
Government;
12. Article 368 can be amended but cannot be amended to empower Parliament to alter or
destroy any of the essential features of the Constitution.

In the majority Judgements, different views have been taken on the scope of what constitutes basic
structure with some points overlapping. For example, the views taken by different judges are as
follows:-

I. Views of Sikri C.J.

a. Supremacy of the Constitution
b. Republican and Democratic Forms of Government
c. Secular Character of the Constitution
d. Separation of powers between the legislature, the executive and the judiciary
e. Federal character of the Constitution
II. Views taken by Shelat and Grover JJ.- these are only illustrative:-
a. The supremacy of the Constitution
b. The Republican and Democratic form of Government and sovereignty of Constitution
c. Secular and Federal character of the Constitution
d. Demarcation of power between the legislature, the executive and the judiciary
e. The dignity of the individual secured by the various freedoms and basic rights in Part III
and the mandate to build welfare State contained in Part IV
f. The unity and integrity of the nation
III. Views taken by Hegde and Mukherjea JJ.
a. Sovereignty of India
b. The democratic character of our policy

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 AMENDMENTS TO THE FUNDAMENTAL RIGHTS

c. The unity of the country

d. The essential features of the individual freedoms secured to the citizens
e. Welfare state and egalitarian society
IV. Views taken by Jaganmohan Reddy J.
a. Sovereign Democratic Republic
b. Justice social, economic, political;
c. Liberty of thought, expression, belief, faith and worship;
d. Equality of status and of opportunity.

Basic structure- illustrative examples

Over the years, the scope of this expression has been considered in numerous cases. The expression has
now become a shop worn, hackneyed phrase and like a galaxy, it keeps expanding day by day.

In order to qualify as an essential feature, a principle is to be first established as part of the

constitutional law and, as such as, binding on the legislature. Only then, can it be examined whether it
is so fundamental as to bind even the amending power of the parliament i.e. to form part of the basic
structure of the constitution13. A working test evolved by Chandrachud J. in the Election case14, in
which the learned judge has rightly initiated that for determining whether a particular feature of the
constitution is a part of its basic structure, one has to examine, in each individual case, the place of the
particular feature in the scheme of the Constitution, its object and purpose and the consequences of its
denial on the integrity of the Constitution as a fundamental instrument of the country’s governance.
With regard to testing a constitutional amendment on the anvil of the basic structure, the Supreme
Court recently held that twin tests had to be satisfied, namely, the “width test” and the test of
“identity”15. It is submitted that there is no explanation as to what these two tests are and how they are
to be applied in testing the validity of these or any other amendments.

Independence of the judiciary (within the limits of the Constitution)16, judicial review under Articles
226/227 and 32 of the Constitution17, Preamble18, secularism19, federalism20, separation of powers and
independence of judiciary21, free fair and periodic elections are all part of the basic structure.

13
Nagraj M. v. Union of India 2006 (9) JT 191
14
Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299
15
Nagraj M. v Union of India 2006 (9) JT 191
16
Registrar High Court of Orissa v. SizirKantraSatpathy (1999) 7 SCC 725
17
Chandrakumar L. v. Union of India AIR 1997 SC 1125
18
State of Uttar Pradesh v. Dina Nath Shukla AIR 1997 SC 1095
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 AMENDMENTS TO THE FUNDAMENTAL RIGHTS

The power of the High Court to examine the judicial superintendence over the decision of all courts
within their respective jurisdiction is also part of the basic structure22.

In the Mandal case, the need for excluding “creamy layer” has been emphasised. The failure to exclude
the creamy layer or the inclusion of forward castes in the list of backward class is totally illegal and
would violate the principle of equality enshrined in Articles 14 and 16 which are part of the basic
features of the Constitution23. The equality clauses contained in Articles 14, 15 and 16 may in certain
circumstances have to be considered as part of basic structure of the Constitution. But if a law is
patently arbitrary infringing the equality clause of Article 14, such illegality would have to be violative
of the basic structure doctrine24.

Indira Gandhi Election Case-

The Decision in Kesavananda Bharati was followed in the famous Indira Gandhi case25. The election of
Mrs Indira Gandhi was set aside by the Allahbad High Court on grounds of corrupt practices. Instead of
gracefully waiting for the outcome of her appeal before the Supreme Court, Parliament passed the 39th
Amendment Act, 1975 on 10th August 1975, taking the election of President, Vice President, and Prime
Minister outside the pale of Judicial Review. The amendment was tailor made to nullify the decision of
the Allahbad High Court. The constitutional validity of this amendment came up for consideration in
the afore said Indira Gandhi’s case. Article 329A(4) was held to be constitutionally invalid. Several
observations regarding the law relating to elections are not relevant here. As regards to basic structure,
Chandrachud J. who was part of the majority, referred to the five aspects that would constitute the basic
structure:

(i) Sovereign democratic republic status

(ii) Equality of status in opportunity of an individual
(iii) Rule of law
(iv) Secularism and freedom of conscience and religion
(v) Judicial review

19
Valsamma Paul v. Cochin University (1996) 3 SCC 545
20
Bommai S.R. v. Union of India (1994) 3SCC 1
21
State of Bihar v. BalmukundSah (2000) 4 SCC 640
22
Chandrakumar L. v. Union of India AIR 1997 SC 1125
23
IndraSawhney II v. Union of India (2000) 1 SCC 168
24
Garg R.S. v. State of U.P. AIR 2006 SC 2912
25
Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299
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 AMENDMENTS TO THE FUNDAMENTAL RIGHTS

This judgement has an extensive discussion on the basic structure theory and to what extent it would
apply to the ordinary law making powers of Parliament.

42nd Amendment and Article 368

After the decisions of the Supreme Court in Kesavananda and Indira Gandhi cases the Constitution
(42nd Amendment) Act, 1976, was passed which added two new clauses, namely, clause (4) and (5) to
Article 368 of the Constitution. Clause (4) provided that “no constitutional amendment (including the
provision of Part III) or purporting to have been made under Article 368 whether before or after the
commencement of the Constitution (42nd Amendment) Act, 1976 shall be called in any court on any
ground. Clause (5) removed any doubts about the scope of the amending power. It declared that there
shall be no limitation whatever on the constituent power of the parliament to amend by way of addition,
variation or repeal of the provisions of the Constitution under this Article. Thus, by inserting Clause (5)
it made it clear that even the ‘basic structure’ of the Constitution could be amended.

This amendment would, according to MrSwarna Singh, the chairman. Congress Committee on
Constitutional Amendments put an end to any controversy as to which is Supreme, Parliament or the
Supreme Court. Clause (4) asserted that the supremacy of the Parliament. It was urged that the
Parliament represents the will of the people and if people desire to amend the Constitution through
Parliament there can be no limitation whatever on the exercise of this power.

This amendment removed the limitation imposed on the amending power of Parliament by the ruling of
the Supreme Court in Kesavananda’s case. It was said that the theory of ‘basic structure’ as invented by
the Supreme Court is vague and will create difficulties. The amendment was made to rectify the
situation. It was, however, not pointed out clearly as to what the difficulties werefaced by Parliament
due to the basic structure theory.

A question may be asked here, can we say that an amendment made by Parliament is an amendment
made by people? The 42nd amendment was intended to achieve this object. It was argued that the
amending body under Article 368 has the full constituent power. In other words, the Parliament acts in
the same capacity as the Constituent Assembly when exercising the power of amendment under Article
368. It is submitted that this proposition is totally wrong. The reasons are:-

First, an amendment made by Parliament cannot be said to be an amendment made by the people.
There is a distinction between the power of the people to amend a Constitution and the power of the
legislature to amend it. It is true that Parliament represents the will of the people. But it is not equally
true that whatever Parliament does is usually approved by the people. The LokSabha election held in

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 AMENDMENTS TO THE FUNDAMENTAL RIGHTS

1977 is a good example to show that the representatives of the people in Parliament do not always
reflect the people’s will. Whatever was done during the emergency was done in the name of the people.
But from the election result it was clear that they had rejected all what had been in their name by the
representatives. Therefore it is not possible to derive support for an unfettered amending power from
the theory that their representatives of the people always reflect the people’s will. The theory of basic
structure propounded by the Supreme Court in Kesavananda’s case is correct and will act as a safety
valve against arbitrary use of amending powers. In Australia out of 30 amendments proposed by the
absolute majority of Australian Parliament only four were accepted and 26 were rejected by the people.

Secondly, the assertion of parliamentary supremacy is based on wrong nations. The supremacy of the
parliament is the main characteristic of the British Constitution, Parliamentary supremacy means that
the Parliament has unlimited law making power. It includes both the constituent powers and ordinary
law making powers. Parliamemt can change the Constitution by passing an ordinary law. It means that
there is no distinction in England between constitutional law and ordinary law. Thirdly, no law passed
by the Parliament can be declared unconstitutional by the courts. In India, Parliament is not supreme
but the Constitution is supreme. Parliament is the creature of the Constitution and derives its powers
from the provisions of the Constitution including the power to amend the constitution under Article
368. Laws passed by Parliament can be declared ultra vires the Constitution. There is distinction
between constituent powers of Parliament and its ordinary law making powers. The amending power
under Article 368, therefore, cannot be exercised in such a way so as to subvert or abrogate the
Constitution.

Thus the Constitutional amendments made under Article 368 can still be challenged on the ground that
they are destructive of the basic features of the Constitution.

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Phase IV

Minerva Mills v. Union of India26

In this case, the Supreme Court by 4 to 1 majority struck down clauses (4) and (5) of Article 368
inserted by the 42nd Amendment, on the ground that these clauses destroyed the essential features of the
basic structure of the Constitution. Limited amending power is a basic structure of the Constitution.
Since these clauses removed all limitations on the amending power and thereby conferred an unlimited
amending power, it was destructive of the basic feature of the Constitution.

The judgement of the Supreme Court thus makes it clear that the Constitution- not the Parliament- is
supreme in India. This is in accordance with the intention of the framers who adopted the written
Constitution for the country. Under the written Constitution there is a clear distinction between the
ordinary legislative power and the constituent power (amending power) of the Parliament. Parliament
cannot have unlimited amending power so as to damage or destroy the Constitution to which if owes its
existence and also derives its powers. The Parliament elected for a fixed period of five years is meant
for certain specific purposes and cannot be vested with unlimited amending power. The Court,
however, held that the doctrine of basic structure is to be applied only in judging the validity of
amendments to the Constitution and it does not apply for judging the validity of ordinary laws made by
legislatures. The decision of the Court on the point is correct. It has put to rest the long drawn
controversy between the Courts and the Executive. The Government should not take the decision of the
Court as a challenge against it but in the spirit of the compromise and co-operation between the two
organs of the Government.

Waman Rao v. Union of India27

In this case, the Supreme Court held that all amendment to the Constitution which were made before
April 24, 1973 (i.e. the date on which the judgement of Kesavananda Bharti was delivered) including
those by which the Ninth Schedule to the Constitution was amended from time to time were valid and
constitutional. But Amendments to the Constitution made on or after that date by which the Ninth
Schedule was amended were left open to challenge on the ground that they were beyond the constituent
power of Parliament because they damaged the basic structure of the Constitution.

The Supreme Court considered the validity of the Maharashtra Agricultural Lands (Ceiling on
Holdings) Act, 1961. The Act imposed ceiling on agricultural holdings in the State. As the Act had

26
AIR 1980 SC 1789
27
AIR 1981 SC 271
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been placed in the IX Schedule, the constitutional validity of Articles 31A, 31B and the unamended
Article 31C (as it existed before the 42nd Amendment) was also challenged on the ground of damaging
the basic structure of the Constitution.

Article 31C as it stood prior to the 42nd Amendment made in 1976 is valid to the extent its
constitutionality has been upheld in the Kesavanda case. Laws passed truly and bona fide for giving
effect to the Directive Principles in Clause (b) and (c) of Article 39 “will fortify that structure”. The
Court expressed a hope that Parliament would utilize to the maximum its potential to pass laws
genuinely and truly related to the principles contained in Clauses (b) and (c) of Article 39.

However in Sanjeev28, the Supreme Court has dissented from Minerva as regards the validity of Article
31C as amended by the 42nd Amendment. But the Sanjeev ruling is more in the nature of an obiter
dictum as the Act in question pertained to Articles 39(b) and (c) and could be held valid under the
original Article 31C as held valid in Kesavananda.

Raghunath Rao v. Union of India29

In this case, the Supreme Court has reiterated the proposition that the basic features of the Constitution
cannot be amended by following the procedure laid down in Article 368. The Court has observed that
the Constitution is the supreme law of the land and all organs of government- executive, legislature and
judiciary derive their powers and authority from the Constitution.

The Courts are entrusted with the important constitutional responsibilities of upholding the supremacy
of the constitution. The amendment of the Constitution is only for the purpose of making the
Constitution “more perfect, effective and meaningful”. An amendment should not result in “abrogation
or destruction” of its basic structure or loss of its original identity and character and render the
Constitution unworkable”

If an amendment trespasses its limits and impairs and alters the basic structure or essential features of
the Constitution then the Court has power to undo that amendment. “an amendment of the Constitution
becomes ultra vires if the same contravenes or transgresses the limitations put on the amending power
because there is no touchstone outside the Constitution by which the validity of the exercise of the said
powers conferred by it can be tested.”

The Supreme Court has stated that “unity and integrity of India” and the principle of equality contained
in Article 14 constitute the basic structure of the Constitution.
28
Sanjeev Coke Mfg. Ltd. Co. v. Bharat Coking Coal Ltd. AIR 1983 SC 239
29
AIR 1993 SC 1267
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A.K. Roy v. Union of India30

A question of great importance regarding the amending power was considered by the Supreme Court in
this case. S.1(2) of the 44th Amendment says: “it shall come into force on such date as the Central
government may, by notification in the Official Gazette appoint and different dates maybe appointed
for different provisions of this Act.”

The 44th Amendment Act has made several modifications in Article 22 liberalising its provisions but
the same have not yet been effectuated because the Government has not issued any notification under
S. 1(2). In Roy, S.1(2) was challenged on the ground that by conferring an unreasonable, arbitrary and
unguided power on the executive, it violated Articles 14 and 21 which are integral part of the basic
structure of the Constitution. The failure of the government to issue notification was also challenged as
mala fide. It was also argued that the Government was obliged to bring the whole of the 44th
Amendment into force within a reasonable time since the executive cannot veto or nullify or negate a
constitutional amendment. It was argued that, “the executive cannot defer or postpone giving effect to a
constitutional amendment for policy reasons of its own which are opposed to the policy of the
constituent body as reflected in the constitutional amendment.”

By majority of 3 to 2, the Court rejected these arguments and sustained the validity of S. 1(2) of the
44th Amendment arguing that the powers to issue a notification for bringing into force the provisions of
a constitutional amendment “is not the constituent power of the Parliament because it does not carry
with it the power to amend the constitution in any manner.” Parlaiment can therefore vest in an outside
agency the power to bring a constitutional amendment into force. The Supreme Court cannot compel
the Government to do that which lies in its discretion to do when it considers it opportune to do. If the
Parliament considers that the executive has betrayed its trust by not bringing the amendments into
force, it can censure the executive.

M. Nagraj v. Union of India31

In this case, the petitioners challenged the constitutional validity of the Constitution (77th Amendment)
Act, introducing Article 164-A nullifying number of decisions, the 81st Amendment Act, 2000
introducing Article 164-B, introducing promotion in reservation also which was stopped in
IndraSawhney’s case, and 82nd Amendment Act, 2000 introducing proviso to Article 355 which
emphasises the importance of maintaining efficiency in administration and the 85th Amendment Act,
2001 adding words- with consequential seniority in Article 16 (4A) nullifying decisions in Ajit Singh’s
30
AIR 1982 SC 710
31
AIR 2007 SC 71
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 AMENDMENTS TO THE FUNDAMENTAL RIGHTS

case on the ground that they violate basic features of the Constitution. However, a Five Judge Bench of
the Supreme Court headed by CJI Shabarwal unanimously held that these amendments do not violate
the basic feature of the Constitution. They are enabling provisions and only apply to SC and ST. they
do not obliterate constitutional requirements, such as- 50% ceiling limit in reservation, Creamy Layer
Rule and post based roster sub-classification between O.B.C. on one hand, and Second STs on the other
hand, as held in IndraSawhney’s case. They do not alter structure of equality codes, therefore, they are
not beyond amending power of the Parliament.

I.R. Coelho v. State of Tamil Nadu32

This case, headed by Chief Justice Y.K. Sabharwal (comprising Ashok Bhan, ArijitPasayat, B.P. Singh,
S.H. Kapadia, C.P. Thakker, P.K. Balasubramanyam, AltamanKabil and D.K. Jain, JJ.) held that any
law placed in the Ninth Schedule after April 24, 1974 when Kesavananda judgement was delivered will
be open to challenge. The Court said that even though an Act is put in Ninth Schedule by a
constitutional amendment its provisions would be open to challenge on the ground that they destroy or
damage the basic feature, if the fundamental rights are taken away or abrogated pertaining to the basic
feature of the Constitution. The Ninth Schedule was introduced to the Constitution through Article 31
(b) by the First Constitutional amendment Act, 1951. The object of the Ninth Schedule was to save
Land Reform laws enacted by various states from being challenged in the court. Later on, it became an
omnibus and every kind of law whether it related to election, mines and minerals, industrial relations,
requisition of property, monopolies, coal or copper nationalization, general insurance, sick industries
acquiring the Altcock Ashdown Company, Kerela Chillies Act, Tamil nadu reservation of 69% and so
on were inserted in it. No principle under lies this section. Today the total number of Acts, inserted in it
is 284. The Tamil Nadu law in it was included because of the Supreme Court’s rulings in the Mandal
case that overall reservation cannot exceed 50%. In the instant case, the politicians had challenged the
validity of the various central and State laws put in the Ninth Schedule including the Tamil Nadu
Reservation Act. The Court said that the validity of any Ninth Schedule law has been upheld by the
Apex Court and would not be open to challenge it again, but if a law is held to be violative of
Fundamental Rights incorporated in the Ninth Schedule after the Kesavananda case, such a violation
shall be open to challenge on the ground that it destroys or damages the basic structure of the
Constitution.

32
AIR 2007 SC 8617
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Conclusion

The problem of the nature and scope of constituent and amending power raised ever since, Golak Nath
still remains unresolved. As a matter of strict law, it remains possible to argue even now that
Kesavananda did not decide that basic structural limitations contained the amending power; that the
decision in Indira Nehru Gandhi was based on the concessions; that there is no warrant either to accept
the Kesvananda summary as binding or to warrant either or to accept the gloss placed by Justice
Khanna in Indira Nehru Gandhi as being elucidative of Kesavananda rationes; and the Minerva Mills
and Waman Rao err in so far as they regard either Kesavananda or Indira Nehru Gandhi as binding.
This strategy of argument remains open to the government in future and it is idle to say that it exists
only by way of “flutter in ivory towers”. Indeed, the very arguments used by the Court for rejecting
stare decisis may well apply to this strategy.

But even if the present holdings that Kesvananda imposes basic structural limitations on amending
power is accepted as representing the Constitutional consensus, the decisions so far do not fully
elucidate what these limitations precisely are. It appears however that certain limitations are emergent.
First, a total repeal of the Constitution would be violative of basic structure. Second, any expansion of
Article 368 powers to achieve this consequence would also be similarly violative. Third, any attempt to
deprive the court of the power of judicial review over Constitutional amendments would also be
transgressive of basic structure. Fourth, the power to amend may not be used to adjudicate specific
disputes. Fifth, freedoms guaranteed by Article 14, 19 and 21 constitute limits to power of amendment.
Sixth, any attempt to abrogate Part IV of the Constitution any violate the basic structure. Seventh, the
‘democratic’ nature of the Constitution may not be validly transformed by the use of Article 368 power.

The scope of basic structure limitations on the amending power above and beyond these seven
categories remains indeterminate. It would appear that the Supreme Court is inclined to delineate these
limitations case by case, rather than abstractly.

This position has the consequence that while the amending power is thus limited, both actually and
potentially, the judicial review power tends to become unlimited and illimitable, both potentially and
actually. This consequence is perhaps unavoidable until and unless there emerges a new political
consensus one can only here suggest the outlines of such a consensus. There should be an attempt to
identify certain textual provisions of the Constitution which embody essential features of the basic
structure of the Constitution (e.g. Articles 14, 15, 19, 21, 30, 32, 38, 39, 50, 51, 325, and 358). These
should specifically be placed beyond the reach of Article 368 power. The task of identifying provisions
which embody basic structure is delicate and difficult, but not impossible. An advisory opinion of Full

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Supreme Court Bench should then be obtained; the newly amended Article368 will then provide the
nation with a viable consensus.

Since Kesavananda, the matter has been considered by the Supreme Court in several cases and the
Court has had occasion to declare several features of the Constitution as fundamental features or basic
structures of the Constitution.

It is generally agreed that all fundamental Rights do not constitute basic features. For example, in
Kesavananda itself it has been held that the right to property does not pertain to the basic structure of
the Constitution33. Now that Article 31 has been repealed, and Article 300A included in the
Constitution, right to property has ceased to be a Fundamental Right, as well as basic feature of the
Constitution. It is merely a constitutional right34.

In Kihoto Hollohon35, the Supreme Court has declared: “Democracy is a basic feature of the
Constitution” and Election conducted at regular prescribed intervals is essential to the democratic
system envisaged in the Constitution. So is the need to protect and sustain the purity of the electoral
process. That may take within it the quality, efficiency and adequacy of the machinery for resolution of
electoral disputes”

In Bommai36, the Supreme Court ruled that secularism is a basic or an essential feature of the
Constitution. The concept of secularism is embedded in the Constitution. The concept means that the
State is to accord equal treatment to all religions and religious sects and denominations.

In Indira Gandhi v. Rajnarain37 the Supreme Court has unequivocally ruled that the Preamble to the
Indian Constitution guarantees equality of status and of opportunity and that the Rule of Law is the
basic structure of the Constitution.

33
JilubhaiNanbhaiKhachar v. State of Gujrat, AIR 1995 SC 142
34
J.N. Khachar v. State of Gujrat AIR 1995 SC 154
35
AIR 1993 SC 412
36
(1994) 3 SCC (Jour) 1
37
AIR 1975 SC 2299
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Bibliography

BOOKS REFERED:
1. Arvind Datar, COMMENTARY ON THE CONSTITUTION OF INDIA

2. J.N Pandey, CONSTITUTION OF INDIA

3. M.P Jain, CONSTITUTIONAL LAW OF INDIA

4. Shukla V. N.; THE CONSTITUTION OF INDIA, Eastern Book Company, Lucknow, 2004

WEBSITES REFERED:
1. http://www.indiankanoon.org

2. http://www.legalsutra.org

3. http://www.supremecourtofindia.nic.in

4. http://www.delhihighcourt.nic.in

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