DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

SABBAVARAM, VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE
M. NAGARAJ v. UNION OF INDIA

SUBJECT- CONSTITUTIONAL LAW - II

NAME OF THE FACULTY

Prof. Nageswara Rao

Name of the Candidate-Priyanka Singh

Roll No.-2017068
Semester-4th

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ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Prof. Nageswara Rao who
gave me the golden opportunity to do this wonderful project on the topic ‘M. NAGARAJ v.
UNION OF INDIA’ which also helped me in doing a lot of Research and I came to know about
so many new things I am really thankful to them.

Secondly I would also like to thank my parents and friends who helped me a lot in finalizing this
project within the limited time frame.

Signature of Teacher

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Certificate

This is to certify that the project entitled “M. NAGARAJ v. UNION OF INDIA” submitted by
Priyanka Singh (17LLB068) is her bonafide work and to the best of my knowledge, the matter
embodied in the project has not been submitted to any other university. This project is the own
research work done by the student and there is no plagiarism.

Date:

Signature of Teacher

(Prof. Nageswara Rao)

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Chapterization

1. Introduction
2. Evolution of reservation system in India
3. Summary of Nagaraj Case
4. Vision of Nagaraj & Coelho
5. Power to amend the Constitution
6. Three kinds of amendment to the Constitution
7. Kesavananda Bharti v. State of Kerela
8. Basic Structure Doctrine
9. Limitation on Amending powers of Parliament
10. Conclusion
11. Bibliography

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Introduction:

“The reservation has always been an uncertain and unpredictable issue in Indian democracy. One
gathering contends that it has confronted various hardships since days of yore and merits certain
alleviation as compensation for that. Then again, another gathering claims that India is a
common and democratic nation, and its Constitution recommends that everybody is equivalent.
They call it separation if a specific gathering appreciates any extra advantages. In any case, a
similar Constitution likewise sets down arrangements for reserving seats in various everyday
issues, for example, education, government jobs, judiciary, and so on. Consequently, for a
layman, this is clashing. Reservation Policy is one of the constitutional methods embraced by
India to address the issues of hundreds of years of oppression dispensed on specific castes
bringing about a wide range of disparities. The present arrangement of reservation benefits
individuals of certain haphazardly listed castes and places them on a superior level irrespective
of their present social, educational and economic status.

The Hon’ble Supreme Court of India has, through various judgments, given its opinion on this
matter. These decisions reflect the behavior of judiciary in such matters. One of such important
decisions, which have been a landmark in the field of reservation, is the case of M. Nagaraj v.
Union of India1, where the idea of reservation in promotion in the government departments was
challenged on the basis of the policies on which it was based claiming such policies to be
discriminatory and illegal in nature.

This case is also very important in respect of amendment provisions of the Constitution which
are provided under Article 368 of the Indian Constitution. No Written Constitution is complete
without amending provisions, in some respects, the amending provision is the most important
part of the Constitution. “An unamendable Constitution is the worst tyranny of time or rather the
very tyranny of time.2” A Constitution is a system of fundamental laws or principles for the
governance of a nation. This Constitution usually states the general principles and framework of
the law and government.3 Framers of a Constitution can't foresee conditions which may in this
manner emerge in the advancement of a country or build up all laws which might be important

1
M. Nagaraj v. Union of India, (2006) 8 SCC 212.
2
Mulford, the nation p.155 quoted by Dr.Ashok Dhamija’s ‘ Need to Amend a Constitution ‘(2007),p 12.
3
American Jurisprudence Page 602-603.

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every once in a while to do equity to the changing states of a network. It isn't practicable for a
composed Constitution to indicate, in detail, all its items and purposes or the methods by which
they are to be conveyed into impact, nor is such an activity thought about vital or alluring
Constitution Framers were completely mindful that, an unamendable Constitution has no esteem,
in Written Constitutions, the revising arrangements having incredible significance and these
arrangements guarantee smooth and adaptable on rendition. So as to maintain a strategic distance
from the issues which existed in unbending and flexibility arrangements in amendment, Framers
formed Art.368 as fine blend of rigidity and flexibility. That implies the amendment of Indian
Constitution isn't inflexible and in the meantime it is likewise not adaptable. The flexibility and
rigidity relies on the nature and significance of the arrangements of the Constitution.”

While referring to the need to amend the Constitution to the changing socio economic and
political conditions, Pandit Jawaharlal Nehru said, “It is the one of the utmost importance that
the people should realize that this great Constitution of ours, over which we labored so long, is
not a final and rigid thing. A Constitution which is responsive to the people’s will, which is
responsive to their idea, in that it can be varied here and there, they will respect it all the more
and they will not fight against, when we want to change it.4”

Dr. B.R.Ambedkar said, “It is the right and privilege of the highest Court of the land to interpret
the Constitutional law, however, at the same time; it is also the duty of the Parliament to see that
objects aimed at in the Constitution are fulfilled or not by the judgement based on such
interpretation. If the object is not achieved because judgement comes in the way, it is the
provisions of the Constitution here and there.5”

4
Parliamentary debates, vols. XII-XIII, part II, 1951, pp9616-17.
5
“Working of Indian Constitution reflections of a Parliamentarian” by D K Naikar, p74 society for human rights
law Dharwad 2000.

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Evolution of Reservation System in India

The Constitutional itself in various Articles provides for positive discrimination. Article 15(3)
says that special provisions can be made for welfare of women and children. 6 Article 15(4)
provides that special provisions may be made for the advancement of any socially and
educationally backward class and for the Scheduled Castes and the Scheduled Tribes. 7 Article
16(4) permits the state to make any provision for the reservation of appointments or posts in
public services. 8 Article 46 directs the state to promote with special care educational and
economic interests of the weaker sections, in particular Scheduled Castes and Scheduled Tribes.9
Article 335 asks state to take into consideration claims of SCs and STs in the making of
appointments to services and posts.10 These articles provided for reservation for SCs/STs.

Initially, there was no provision of reservation for ‘Other Backward Classes’. It was on January
1, 1979 that the former Prime Minister of India Morarji Desai appointed a Backward
Commission popularly called ‘Mandal Commission’ under Article 340. 11 The commission
submitted its report in December, 1980. They identified 3743 backward classes and
recommended for 27% reservation for backward classes in government jobs. On 13 August
1990, Prime Minister V P Singh’s government issued a memorandum accepting the proposal and
announced 27% reservation for educationally and socially backward classes. Later, a few
changes were made to the memorandum by P V Narasimha Rao government. 12 There was
turmoil in the country regarding 27% reservation for the backward classes. A larger bench of 9
judges was setup for this purpose in the case of Indira Sawhney v. Union of India13 also known
as Mandal’s Case. With a ratio of 6:3, they upheld the reservation policy for the backward
classes with certain guidelines.

Dr. Ambedkar says that the hurdle of inequality must be removed for the survival of democracy
and the inequality which he refers to is of two kinds, first being social inequality and the other
economic inequality. In order to remove social inequality steps has already been taken by the
6
INDIA CONST. art. 15, cl. 3.
7
INDIA CONST. art. 15, cl. 4.
8
INDIA CONST. art. 16, cl. 4.
9
INDIA CONST. art. 46.
10
INDIA CONST. art. 335.
11
INDIA CONST. art. 340.
12
M P JAIN, INDIAN CONSTITUTIONAL LAW 1033-1034 (8th ed. 2018).
13
Indira Sawhney v. Union of India, AIR 1993 SC 477.

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government by introducing ‘positive discrimination’ as a means. And that has been there for
socially and educationally backward classes for 70 odd years. But no such big step has been
taken to include economically backward and thus we will continue to live a life of contradiction
until and unless steps are taken to include them in the mainstream. But then the question comes
that is reservation the only way? Maybe it is not the only way but since its benefit is being
availed by one class, it is obvious for the other class to demand for the same.

Prima facie it appears that the ides of reservation is an exception to equality under Article 14 but
when we dig deeper we will understand that in fact identical treatment for all will lead to
inequality because from the very nature of society everybody is placed in different circumstances
and applying same law to people differently circumstanced will be injustice.14 So the state needs
to enact laws in the best interest of the safety and security of the people. So a reasonable
classification is not just permitted but is necessary if society is to progress.15

Summary of Nagaraj Case16

Background

To put this in setting, it ought to be recollected that in Indra Sawhney case17, it had been held
that Article 16(4), on the grounds that it at that point stood, wasn't sufficiently wide to bring
inside its overlap reservation in issues of advancement. Be that as it may, the Court announced
this probably won't affect advancements that had just been made and, truth be told, conceded the
additional insurance that wherever reservations have just been accommodated in Central or State
Services, a comparative position may proceed for an extra measure of 5 years. From that point
onward, Article 16(4A) was embedded vide the Constitution (Seventy-seventh) Amendment Act,
1995, that offered for reservations in advancements. To reiterate, this arrangement by and by
peruses:

“(4A) Nothing in this article will keep the State from making any arrangement for reservation in
issues of advancement, with important position, to any class or classes of posts in the

14
Atyant Pichhara Barg Chhatra Sangh v. Jharkhand State Vaishya Federation, AIR 2006 SC 2814.
15
E P Rayappa v. State of Tamilnadu, AIR 1974 SC 555.
16
M. Nagaraj v. Union of India, (2006) 8 SCC 212.
17
Indra Sawhney v. Union of India, AIR 1993 SC 477.

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administrations under the State for the Scheduled Castes and the Scheduled Tribes which, in the
assessment of the State, are not satisfactorily spoken to in the administrations under the State.”

“It was later said in Supreme Court's judgment M. Nagaraj, where the Court, while maintaining
the constitutional legitimacy of the enhancements and changes purchased up in Article 16,
additionally set out specific conditions and standard for the State to execute restorative measures
under Articles 16(4A), as likewise 16(4B) (that manages conveying forward of opportunities
held for in reverse classes, for example, OBC/SCs/STs).18”

Outline

Broad issue raised was –

 Validity

 Interpretation

 Implementation of – firstly 77th amendment act 1995, 81st Amendment act 2000, 82nd
amendment act 2000, 85th amendment act 2001 and secondly action was taken in
pursuance there from which obtain to reverse choices or decisions of Supreme Court in
matters concerning promotion and their application with retrospective impact.
 Petitioners also challenged 82nd amendment act with Article 16(4A) and (4B) which had
essentially deprived article 335.
 Another issue was all these amendments destroy the basic structure of constitution about
article 14, 15, 16.

Description

77th amendment act 1995 – through the 77th Amendment, Article 16(4A) had been embedded
into the Constitution, which read, in applicable part: “[The State can] make any arrangement for
reservation in issues of advancement to any class or classes of posts for the Scheduled Castes or
Scheduled Tribes.”

81st Amendment Act 2000 - additionally, through the 81st Amendment, the government had
likewise embedded Article 16(4B) into the Constitution, which read, in pertinent part:

18
http://www.legallyindia.com/blogs/guest-post-article-16-and-the-concept-of-a-power-plus-duty-ii.

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“[The State may consider] any unfilled opportunities of a year which are saved for being topped
off in that year as a different class of opening to be topped off in any succeeding year or years
and such class of opening will not be viewed as together with the opening of the year in which
they are being topped off for deciding the roof of 50% reservation on complete number of
opportunities of that year.19”

82nd amendment act 2000 - additionally added a proviso to Article 335 – “nothing in this article
will avoid in creation of any arrangement in favor of the individuals from the Scheduled Castes
and the Scheduled Tribes for unwinding in qualifying marks in any examination or bringing
down the standards of assessment, for reservation in issues of advancement to any class or
classes of administrations or posts.”

85th amendment Act 2001 – “In article 16 of the Constitution, in provision (4A), for the words
"in issues of advancement to any class", the words "in issues of advancement, with consequential
seniority, to any class" will be substituted.”

Held

Amendments were held as constitutionally valid. Article 16(4A and B) are inserted into the flow
of article 16, and they do not alter the structure of Article 16(4).

In M Nagraj & Ors. v. Union of India & Ors.20 the Constitution Bench of the Supreme Court
dealing with the issue of basic structure observed that “axioms like secularism, democracy,
reasonableness, social justice, etc. are overarching principles which provide linking factor for
principles of fundamental rights like Articles 14, 19 and 21. These principles are beyond the
amending power of Parliament. They pervade all enacted laws and they stand at the pinnacle of
the hierarchy of constitutional values”. Such rights have to be respected and cannot be taken
away.

19
https://indconlawphil.wordpress.com/2014/03/27/reservations-equality-and-the-constitution-vii-exploring-the-
boundaries-in-m-nagaraj/.
20
M Nagraj v. Union of India, AIR 2007 SC 71.

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The framers of the Constitution have built a wall around the fundamental rights, which has to
remain forever, limiting the ability of the majority to intrude upon them. That wall is a part of
basic structure.21

Thus, “for a constitutional principle to qualify as an essential feature, it must be established that
the said principle is a part of the constitutional law binding on the legislature. Only thereafter,
the second step is to be taken, namely, whether the principle is so fundamental as to bind even
the amending power of Parliament i.e. to form a part of the basic structure.22” When an issue is
raised regarding the basic structure, the question does arise as to whether the amendment alters
the structure of the constitutional provisions. “The criterion for determining the validity of a law
is the competence of the law-making authority. The competence of the law-making authority
would depend on the ambit of the legislative power, and the limitations imposed thereon as also
the limitations on the mode of exercise of the power.23”

The previously mentioned structure is based on the basic establishment, i.e., the pride and
opportunity of the person. This is of incomparable significance. This can't be crushed by any
type of change. Parliament can't grow its capacity of revision under Article 368 to give on itself
the ability to rescind, revoke the Constitution or harm, undermine or crush any of the major
rights or basic components of the basic structure of the Constitution or of decimating the
character of the Constitution.

In this case, the Court, while thinking about the discussion between the need to translate the
Constitution literarily, in view of unique expectation from one viewpoint, and the vague idea of
the Constitutional content that grants diverse qualities to be perused into the Constitution, held
that the Basic Structure of the Constitution need not be found in the Constitutional message
alone.

A five-judge seat of the Supreme Court in M. Nagaraj v. Association of India maintained the
constitutionality of Article 16(4A) and Article 16(4B). Nonetheless, the reasons in view of which
the constitutionality of the Articles were maintained are lawfully unsound on different angles.

21
I.R. Coelho (dead) by L.R.s v. State of Tamil Nadu, AIR 2007 SC 861.
22
M. Nagaraj, Supra.
23
Ibid.

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The avocation for reservation for this situation was commenced on adjusting the interests of the
general classification candidates against reserved class candidates. None of the conditions in
Article 15 or Article 16 of the Constitution demonstrate a necessity of adjusting. By making such
a contention, the point of convergence of reservation moves from social segregation, the issue
that was tried to be tended to through Article 16. The core interest changes rather to open work
which, according to the judge, is to be disseminated among general and reserved candidates by
keeping up balance. The Court notes,

“We are worried about the privilege of a person to square with opportunity on one hand and
special treatment to an individual having a place to Backward Class so as to realize an
equivalent dimension playing field in the matter of open business.Public work is a rare product
in financial terms. As the supply is rare, request is pursuing that ware. This is truth of life. The
idea of “open business” not at all like the privilege to property is socialistic.24”

In M. Nagaraj, the Court set up an association between the thoughts of value, equity and
legitimacy out of the blue. Prior to this case, the essential focal point of arbitration on
reservations was on the fundamental right of equivalent open door for abused networks.

Despite the fact that proficiency in organization additionally got the consideration of the Court, it
was not given the equivalent weightage as the fundamental right of equivalent chance of
minimized communities. For the first run through, the Court opined that in open business, these
standards assume their jobs as “quantifiable information in each case.” When translating Article
16(4), it is the fairness of certainties as against the equity of law which assumes the prevailing
job.

Once more, turning to adjusting, the Court opined that “Backward classes look for equity.
General class out in the open business look for value. The trouble comes in when the third factor
comes in, to be specific; effectiveness in administration. However, on the off chance that you add
productivity to value and equity, the issue emerges with regards to the reservation.”

The Court additionally held that Article 16(4) is an empowering arrangement not at all like
Article 16(1) and in this manner, plays in totally extraordinary fields. The task of Article 16(4) is
24
Id.

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endless supply of portrayal and backwardness of the Scheduled Castes and Booked Tribes which
triggers activity from the State government. Further, Article 16(4) must be understood in the
light of Article 335 of the Constitution. Therefore, separating the standard of law from the
standard of certainties, the Court recognized that while the vesting of intensity on the State
government empowering it to reserve spot plans is constitutionally substantial, the exercise of
such power in a given case by the State government can be subjective and in this way, must be
resolved on case by case basis. Therefore, Article 16(4) was perused by the Court as an issue of
fairness of certainties. It was additionally held that “it is the correspondence 'indeed' which must
be chosen taking a gander at the ground reality. Anti-segregation enactment has a propensity of
pushing towards true reservation. In this way, a numerical benchmark is the surest
invulnerability against charges of segregation.”

The Meaning of Nagaraj's Enquiry – Constitutional Form Vs Constitutional Principle

I start with the principal enquiry to comprehend the sense in which 'basic structure doctrine'
communicates with fundamental rights under the Indian Constitution. Part III of the Indian
Constitution holds a few rights which have been comprehended as fundamental to the significant
presence of its subjects. 25 These rights incorporate among others Right to Equality under the
watchful eye of law, Right to Equality of Opportunity in matters of open work, Right to
Protection of life and individual freedom, Right against Exploitation, Right to Freedom of
Religion and so forth. The primary inquiry is actually an endeavor to measure if these rights
which are available in Part III comprise the 'basic structure' in the rationale that infringement of
any of these arrangements additionally prompts the infringement of 'basic structure' of the Indian
Constitution. At the point when digging further in this enquiry, we should perceive that the
Constitution is submitted to standards, and the state is focused on standardizing acknowledgment
of these standards. These standards may show themselves in the Constitution in different
structures in or on the other hand over different articles. Explicit arrangements are available in
the Constitution to uphold the contrasting orders rising out of a similar standard like let us state
uniformity. The varying orders have a consistent theme going through all of them as they are

25
In fact, Part III extends from Article 12 to Article 35 of the Indian Constitution and between these, only provisions
from Article 14 to Article 32 guarantee FRs. Part III is considered synonymous with FRs as a result of this broad
presence.

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joined by their regular pledge to a larger guideline which comprises the personality of these
related arrangements and which is the 'basic include' of the Constitution. An essential guideline
may be reflected in the constitutional content at different focuses, in its different parts, its
aftermaths may be experienced through different timetables to the Constitution. The assignment
before those who investigate cases of break is then to find the regular character of interrelated
constitutional arrangements. This fundamentally conveys us to the structure and substance
worldview – where the Constitution-creators submitted us to a rule in substance and its interest,
its training could be affected through different channels of which articles in the Constitution are
simple parts. Content of the different articles of the Constitution speak to in them the distinctive
structures through which the substance (constitutional rule like uniformity) could be figured it
out.

On the off chance that this be valid, it is very conceivable that the state may change its
supposition on how best to accomplish these principled finishes or how best to seek after a
constitutional rule. Certain ways may be legitimized through fruitful practice while the others
may offer approach to better choices in face of their not really fruitful practice. Furthermore, the
manners in which state utilizes to understand these standards may change with time, dissimilar
popular supposition and the attending shift in state strategy. The state is surely the best judge to
choose for itself the most ideal approach to understand any constitutional end. This is because of
its characteristic better ability than evaluate and utilize its assets in accomplishing the state
intrigues which are thus, reflected in the Indian Constitution. What Nagaraj implied was in
reality this – That, the state is best put to discover a route for following a constitutional plan. It
unquestionably does not have the decision to choose in the event that it would tail it or not;
however once it concedes to a constitutional guideline, it is the state's right, its very own
judgment and watchfulness which ought to conclusively include in finding a path for its training.
In the prompt setting of Nagaraj, what it implies is that the 'basic structure doctrine' averts just
the infringement of the center rule (character) at the core of these between related articles. The
doctrine, no place, in any capacity, limits a move from one route to the other in understanding a
constitutional rule. These arrangements are empowering in nature in as much as they encourage
acknowledgment of that center constitutional rule. In any case, the empowering idea of the these
arrangements don't make such arrangements fundamental in themselves since a move does not

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imply that the standard can't be operationalised or empowered any longer. It can surely be
empowered, however through a diverse course. Individuals will keep on having an enforceable
Right to Equality even without a FR to get up to speed rule or weighty rank since getting up to
speed isn't the fundamental proposal of Indian Constitution. It is truth be told, the standard of
balance which is a fundamental component here. The state, in structuring its approaches, ought
to guarantee that this essential guideline of equity isn't trampled upon. Down here, I investigate
in some detail what my perusing of Nagaraj means and how it functions for constitutional
administration.

The state is just restricted to the degree that its decision of one path over the other ought not
abuse the focal responsibility of equity. This is the sensible end in the discussion.

Vision of Nagaraj & Coelho

The decisions in Nagaraj and Coelho came in 2006 and 2007 individually. Them two are banner
bearers of an old custom of challenge revolved around the 'basic structure doctrine'. This
challenge is all around recorded in our political story and has altogether controlled the
administering viewpoint towards the real open approach issues of our occasions, for example,
reservations, land changes, religion and so on. In any case, what appears to be missing from this
all around loved account is a comprehension of how intently the 'doctrine of basic highlights' is
powerless to plotting use by the political procedure. The wide assortment of condition and
reasons under which 'basic structure' has purportedly come to guard the Indian Constitution truly
makes one marvel if there really is so much we should be on edge of and make preparations for.
While this is a general dread I have, I comprehend it to be shared by numerous others molded in
extraordinary measure by the aimless utilize the doctrine has been placed to throughout the last
two decades. In the event that we look carefully, we would understand that the

'basic structure doctrine' has had a nonstop nearness in about all noteworthy banters over
government strategy through this period and the discount way of its conjuring at each key
advance of day by day governmental issues is to be sure a matter of examination, if not
premonition.

“Power to Amend the Constitution

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Article 368, as originally stood was titled as “Procedure for amendment of the Constitution” it
conferred power on the Union Parliament to amend the Constitution. The Constitution (24th
Amendment) Act, 1971 substituted the original Art.368. The title is replaced by new title,
“power to amend the Constitution and procedure therefore”;

The Constitution (42nd Amendment) Act, 1976 further amended Art.368 to the effect declaring
“the constituent power of Parliament as unlimited and absolute” and excluding interference by
the courts in exercise of the power, on any ground.

Need and Importance of Amending Provisions in the Constitution

The Constitution was designed to be a means to achieve the welfare of the common man and
must respond to the popular needs. In order to fulfill the aspirations of the people, we need
changes in the Constitution whenever necessary. In a democracy neither the Constitution nor the
government is supreme: it is the people who are supreme and they have the right to change the
Constitution partially or completely. Unamendability of a Constitution is the worst tyranny that
can be imposed on any generation and a democratic Constitution without a provision to amend it
would be a contradiction in terms. Therefore, in accordance with liberal-democratic tradition, the
power to amend the Constitution of India has been vested in the Parliament. When this power is
conferred to the Parliament, the very next questions comes in our mind is that, what, if certain
provisions were faulty, unreasonable or inadequate? What, if the future requirements of a State
were not reasonably foreseen by the makers of the Constitution? What, if the future generations
require some readjustments in the working of the Constitution or want to make some changes? Is
it possible to amend a Constitution if there be a need to do so?

The need of an amendment to the Constitution comes into the picture when there is a change in
the society. This happened with in a year from the date of commencement of the Constitution. In
1951, when Bihar Government passed a law Called Bihar Land Reforms Act, 1950, the same
was challenged in the Patna High Court and declared unconstitutional,26 since it was violating
some of the Fundamental Rights of the Constitution. But the Allahabad High Court upheld the

26
Kameshwar Singh v State of Bihar, AIR, 1951, Pat.91, SB.

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relevant agrarian legislations passed in Uttar Pradesh.27 The persons aggrieved by these decisions
filed appeals in the Supreme Court. At this point, the Union Government, anxious to put an end
to such litigation and for facilitating the implementation of agrarian laws, Prime Minister Nehru
introduced the Constitution (First Amendment) Bill in the Loka Sabha (Provisional Parliament)
and was passed and received the assent of the President on 18th June 1951 by which Arts.31-A
and 31-B were introduced and Ninth Schedule was also inserted in the Constitution reducing the
power of the Court in the matter of judicial review of legislative Acts.28 The Ninth Schedule was
born with the purpose of providing super protection to agrarian and economic reform
legislation.29 The main object was to insert provisions fully securing the Constitutional validity
of Zamindari Abolition Laws in general and specified Act in particular. This was done to
establish an egalitarian society in a country.

Three Kinds of Amendment of the Constitution

The Constitution of India provides for the amendment through Amendment Acts in a formal
manner. For the purpose of amendment, the various Articles of the Constitution are divided into
three categories. The first category is out of the purview of Art.368 whereas the other two are a
part and parcel of the said Article. It enables Indian Parliament to amend any provisions of
Constitution without disturbing its Basic Structure. The amendments described in Art.368 are of
three types30

1) Amendment by simple majority vote of the Parliament

As the name suggests, an Article can be amended in the same way by the Parliament as
an ordinary law is passed which requires simple majority. Such amendment may be
moved i) At the instance of Union Government ii) At the instance of a State Government

2) Amendment by special majority vote of the Parliament

27
Surya Prakash v UP Government, AIR, 1951, All.674, FB.
28
Baldev Singh, “Ninth Schedule to Constitution of India:A Study”, Vol.37(4), Journal of Indian Law
Institutte:1995, p.460.
29
P. Ishwara Bhat, “Limits of the ninth schedule’s openness”, C.U.L.R.1995, p.242.
30
D.J. De, ‘Constitution of India’ 3rd Edn. in 3 Vols. 3rd edition, 2008.

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 Articles which can be amended by special majority are laid down in Art.368. All
amendments, except those referred to above come within this category and must be
affected by a majority of total membership of each House of the Parliament as well as
2/3rd of the members present and voting.

3) Amendment by special majority vote with half number of States' legislative

Assemblies ratification.

Amendment to certain Articles requires special majority as well as ratification by States.

Proviso to Art.368 lays down the said rule. Ratification by States means that there has to
be a resolution to that effect by one-half of the State legislatures.

Limitations on Amending Power of the Parliament

Constitution of India did not expressly provide any limitation on the power of amendment under
Art.368. The Constitution makers did not think it necessary to provide for any alternative
procedure such as referendum or a new Constituent Assembly for amending the provisions of the
Constitution. Another noteworthy feature of the Constitution of India is that, unlike some
Constitutions which prohibit an amendment of certain provisions in them in express and
unmistakable terms, it mentions no limit on the amending power other than the procedural one
and enables the amending body to reach its each and every part. Therefore, under the
Constitution of India, a Constitutional amendment should be considered valid provided the
prescribed procedure is followed. So in order to determine the questions whether the power of
amendment is absolute and unrestricted, it is pertinent to discuss the different kinds of limitations
on the power of amendment. There are two kinds of limitation imposed against amendment
power.

A. Express limitations
B. Implied Limitations

Express limitations

Express limitations are those limitations which are expressly mentioned in the provisions of the
Constitution. The Constitutions of various countries place certain express limitations on the

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amending powers in their Constitutions, many countries Constitutions treat certain provisions
therein as sacred provisions and put absolute restrictions on the amendment of such provisions,
these provisions thus place express limitations on the amending powers; such limitations may or
may not be absolute.

Implied Limitations

Implied limitations have been described as of two types (1) Inherent limitations and (2) Implied
limitations. The first type of limitations are those which inhere in any authority from its very
nature, character and composition, where as the second type of limitations are those which are
not expressed but implicit in the scheme of the Constitution. The concept of implied and
inherent limitations on amending power has been evolved on the following basis.

1) Supremacy of Constitution is touch stone in controlled and rigid Constitution to determine

the criteria and extent of amending power.
2) The Parliament is the creature of the Constitution, no doubt Parliament can amend the
Constitution under Art.368 but that does not mean that Parliament could so amend Art.368
so as to change its own constituent power beyond recognition.
3) The Constitution had conferred a limited amending power on the Parliament. The Parliament
under the exercise of that limited power enlarges the very power into absolute power.
4) The very meaning of the word ‘amendment’ suggests that there are certain inherent and
implied limitations because in the process of amendment the whole Constitution cannot be
repealed or abrogated.
5) The Parliament, a functionary created under the Constitution has no competence to amend
the Constitution in such a way as to make it subservient to it.

Kesavananda Bharti v. State of Kerela31

The Constitution (29th Amendment) Act, 1972 amended the Ninth Schedule to insert therein two
Kerala Amendment Acts in furtherance of land reforms after Entry 64, namely, Entry 65 Kerala
Land Reforms Amendment Act, 1969 120 and Entry 66 Kerala Land Reforms Amendment Act,
1971121. The validity of 24th, 25th and 29th, amendments were challenged in Kesavananda

31
Keshavanand Bharti v. State of Kerala AIR 1973 SC 1461.

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Bharathi’s case. 32 The main question involved was the extent of amending power of the
Parliament under Art.368 of the Constitution. This case popularly known as the ‘Fundamental
Right’ case. In this case the petitioners had challenged the validity of the Kerala Land Reforms
Act, 1963. But during the pendency of the petition, the Kerala Act was amended in 1971 and
same was placed in the Ninth Schedule by the 29th Amendment Act. The petitioners were
permitted to challenge the validity of 29th Amendment to the Constitution.
Constitutional Bench comprising of 13 Judges unanimously upheld the constitutional validity of
the Constitution 24th Amendment Act, 1971 and in doing so, overruled the prior decision of the
Supreme Court in Golak Nath's case33 and cleared the way for upholding the validity of the
other Constitution Amendment Acts which were questioned before the Special Bench in the writ
petitions.
Further the Supreme Court observed that the Power to amend the Constitution cannot reasonably
be located in Entry 97 of List I of Schedule VII read with Art.248 of the Constitution. The idea
of a provision for amending the Constitution was indisputably present in the minds of the
Constitution-makers. If they had considered that the power to amend the Constitution was in its
nature legislative, they would have surely included in express words this power in a specific
entry in List I. Art.248 and Entry 97 of List I confer residuary power on Parliament. Art.246 and
List I confer certain specific powers on Parliament. Residuary power is intended to comprehend
matters which could not be foreseen by the Constitution-makers at the time of the framing of the
Constitution. As the topic of amending the Constitution was foreseen by them, it could not have
been put in the residuary power.
The majority decided to adopt the position that amending power of Parliament is distinct from
legislative power and has a wide reach to cover every provision of the Constitution; however, it
qualified the above proposition by laying down that the basic structure of the Constitution was
unamendable. While formulating the notion of the basic structure, however, it was clarified that
what features would become the part of the basic structure would be an open question and its
answer would be contingent upon the particular circumstances of the actual cases. On the other
hand, the minority, by and large approved the views of minority in Golak Nath’s case. Of course,

32
Id.
33
I.C. Golaknath v. State of Punjab AIR, 1967 SC 1643.

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it also categorically held that the amending body does not have the authority to effect complete
abrogation of the Constitution in one stroke.

“Basic Structure theory

It is a direct manifestation of inherent and implied limitations on the power of amendment. The
question of determining Inherent and Implied limitations on the amending power arises
particularly when there are no express limitations and the power is otherwise unlimited. Art.368
of Indian Constitution provides plenary power of amendment but this plenary power can be
turned into limited power under compelling logical, sociological, economic or historical reasons.
Even court can consider these extrinsic aids while making Constitutional interpretation98
From Keshavananda Bharathi case to I.R.Coelho case, Supreme Court repeatedly said that,
Parliament has no power to bring an amendment to the basic structure of the Constitution.
Thereby it imposes implied limitations upon the power of Parliament. But Parliament in 42nd
Amendment, inserted clause (4) and (5) of Art.368 to wash those limitations imposed upon
amending power of the Constitution by the judiciary. But this amendment has been declared null
and void by the Supreme Court.102
Different views
If one goes through the opinions of Hegde, Ray, Jaganmohan Reddy, Palekar, Khanna, Mathew,
Beg, Dwivedi, Mukherjea and Chandrachud, JJ., cannot fail to realise that they base their
decision on the proposition that the word "law" in Art.13 (2) does not include amendments to the
Constitution. A proposition enunciated, by a majority consisting of Sikri, C.J., and Shelat,
Hegde, Grover, Jaganmohan Reddy, Khanna, and Mukherjea, JJ., is that the power to amend
does not include the power to alter the basic structure or framework of the Constitution to the
extent of changing its identity.

Further Development after Fundamental Rights Case

The Supreme Court framed the broader question to be decided by nine judges:-“The fundamental
question is whether on and after 24th April 1973 when basic structure doctrine was propounded,
it is permissible for the Parliament under Art.31-B to immunise legislations from fundamental
rights by inserting them to the Ninth Schedule,

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The Constitution Bench observed that, according to Waman Rao and Ors. v. Union of India34
and Ors. Amendments to the Constitution made on or after 24th April, 1973, inclusion of various
Acts, regulations therein are open to challenge on the ground that they, or any one or more of
them, are beyond the Constituent Power of Parliament since they damage the basic or essential
features of the Constitution or its basic structure. But, subsequently in the decisions of Minerva
Mills Ltd. & Ors. v. Union of India35 & Ors. And Maharao Sahib Shri Bhim Singhji v. Union
of India36 & Ors. it was observed that the judgment in Waman Rao needs to be reconsidered by a
larger Bench, and that if any Act, rules or regulations inserted in the Ninth Schedule is found to
be violative of Articles 14, 19 and 31 can be included in the Ninth Schedule or whether it is only
constitutional amendment amending the Ninth Schedule which damages or destroys the basic
structure of the Constitution that can be struck down.

Finally in I R Coelho by LRs v. State of Tamil Nadu37 and Others133 Nine Judge Constitutional
Bench of the Supreme Court held that all amendments to the Constitution made on or after 24th
April 1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall
have to be tested on the touchstone of the basic or essential features of the Constitution as
reflected in Art.21 read with Arts.14, 19, and the principle underlying them. To put it differently
even though an Act is put in the Ninth Schedule by a Constitutional Amendment, its provision
would be open to attack on the ground that they destroy or damage the basic structure if the
fundamental right or rights is/are taken away or abrogated pertains or pertain to the basic
structure. The Supreme Court further stated that if the validity of any Ninth Schedule law has
already been upheld by this Court, it would not be open to challenge such law again on the
principles declared by this judgment. However, if a law held to be violative of any rights in Part
III of the Constitution is subsequently incorporated in the Ninth Schedule after 24th April 1973,
such a violation / infraction shall be open to challenge on the ground that it destroys or damages
the basic structure as indicated in Art.21 read with Arts.14, and19 of the Constitution.”

34
Waman Rao and Ors. v. Union of India, (1981) 2 SCC 362.
35
Minerva Mills Ltd. & Ors. v. Union of India, AIR 1980 SC 1789.
36
Maharao Sahib Shri Bhim Singhji v. Union of India, AIR 1985 SC 1650 .
37
I.R. Coelho (dead) by L.R.s v. State of Tamil Nadu, AIR 2007 SC 861.

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Conclusion

The framers of the Constitution were keen to bring about socio-economic revolution in free India
through constitutional means, and Constitution was to serve as a vehicle for social change. To
provide security for the tiller of soil and assure equality of status and opportunity to all sections
of the rural population, host of the laws passed in different States in the matter of land reforms
have led to a lot of litigation. Firstly, the Constitutional validity of the abolition of intermediaries
has been questioned. Subsequently, the issue of compensation, its quantum and its justiciablity,
has been tested on the constitutional anvil. A good deal of litigation has also arisen out of laws
which authorised States to take over property either as a part of land – reforms measures or in
other situations, laws amending existing land tenures, law relating to the security of tenants,
consolidation of land holdings and fixation of ceilings on individual holdings. As a result, in
order to overcome form the above problems, Parliament passed First Amendment in 1951,
whereby Arts.31-A and 31-B were inserted to avoid the multiplicity of petitions filed by the
Zamindars and to supersede the judicial decisions. This action of Parliament by bringing above
mentioned Articles along with Ninth Schedule is really justiciable and commendable. In respect
of compensation concerned, Art.31 was amended substantially by the Fourth Amendment Act in
1955 and the Twenty Fifth Amendment Act in 1972. These amendments were necessary because
of the judgments of the Supreme Court.

Likewise Parliament in its constituent power brought many amendments to the Constitution in
respect of the subject matters of right to property as well as agrarian reform.

As a final point, the researcher submits that, the power of Parliament bringing many amendments
to the Constitution with respect to Ninth Schedule was justiciable except in 4th, 39th 40th 42nd
and 76th amendments where the Parliament placed some controversial laws (Non-Agrarian
Laws) in to the Schedule and tried to misuse and abuse its power in order to show its supremacy
by making the Constitution text very feeble one.

We all must comprehend and I surmise we as of now do, without being hard-squeezed against
our distinctive perspectives on the world that vote based system isn't cooked medium-term with a
'mix to taste' remedy of fixings as principle of law, rights, freedoms and guarantees. Nor is it
devoured the extremely following day; it requires a culture of liberal constitutionalism to protect

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it, and to keep it from getting spoilt in the sun. The language of rights and the talk of vote based
system without a thought of why or how such rights associate with our political presence, in
what ways they improve its importance and what might happen to each without the other,
establishes an unfilled guarantee. Such uneducated guarantees foreshadow well for a decent
political discourse however we are probably going to perplex the chaos once the adulation kicks
the bucket down. Majority rule government without liberal constitutionalism is a legend -
actually, a 'fill in the spaces' snapshot of political development. Any true exertion at averting
such shame needs to comprehend the inquiries that represent these spaces and includes, in
addition to other things, a grip of history and the bearing it has set us onto. We should understand
that these inquiries have matured and advanced after some time yet their fundamental life
structures continue as before. They are nevertheless unique methods for inquiring a similar
inquiry concerning the most ideal approach to consummate our political association. A
reasonable answer, accordingly, does not lie in surrendering the past but rather just in clarifying
it, in valuing the linkages which it has produced with the present, in examining how we have
reacted to this call till now and in developing systems that esteem what political experience
shows us – that there are no otherworldly replies. No exertion is true and no answer supportable
till we start to comprehend that there are no push-catch answers for inquiries of political
improvement. Each answer we find is profoundly associated with the other and this fortune chase
is to a great extent dependent on our capacity to perceive and interface up the different pieces of
information keeping inside the breaking points of political system.

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BIBLIOGRAPHY:

Books:

1. H.M. Seervai, Constitutional law of India (4th ed. 2010).

2. J. N. Pandey, Constitutional Law of India (55th ed. 2018).

3. M P Jain, Indian Constitutional Law (8th ed. Lexis Nexis Publications, 2018).

4. V.N. Shukla, Constitution of India (8th ed. 2018).

Cases:

1. Atyant Pichhara Barg Chhatra Sangh v. Jharkhand State Vaishya Federation, AIR 2006
SC 2814.
2. E P Rayappa v. State of Tamilnadu, AIR 1974 SC 555.
3. I.R. Coelho (dead) by L.R.s v. State of Tamil Nadu, AIR 2007 SC 861.

4. Indra Sawhney v. Union of India, AIR 1993 SC 477.

5. Kameshwar Singh v State of Bihar, AIR, 1951, Pat.91, SB.
6. Keshavanand Bharti v. State of Kerala AIR 1973 SC 1461.

7. M. Nagaraj v. Union of India, (2006) 8 SCC 212.

8. Maharao Sahib Shri Bhim Singhji v. Union of India, AIR 1985 SC 1650 .
9. Minerva Mills Ltd. & Ors. v. Union of India, AIR 1980 SC 1789.
10. Surya Prakash v UP Government, AIR, 1951, All.674, FB.

11. Waman Rao and Ors. v. Union of India, (1981) 2 SCC 362.

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