Basic Structure Doctrine ALS on 11th Feb 2014 last updated on 11th Feb 2014.ppt

Power and Procedure of Constitutional
Amendments in India: The Struggle for more
Powers between Higher Judiciary and
Parliament
By Abdul Hafiz Gandhi
Lecturer, ALS
11th February, 2014 12 O’clock
Auditorium, Clock Tower
Organised by: Amity Law School

Forthcoming lectures/workshops/discussions/events
1 Legal Personality: Meaning and Evolution
2 Protection against Constitution: Article 31-A, 31-B, 31-C
3 Concept of Possession and Ownership: A Study of Jurisprudence
4 National Emergency under Article 352
5 Constitution vs. Personal Laws: Whether we need Uniform Civil Code or
not?
6 Article 12 of the Constitution: Expanding Scope and Ambit
7 Judicial Appointments in Higher Judiciary: Transparency and
Accountability in Indian Judiciary
8 A journey from ADM Jabalpur to Meneka Gandhi: Procedure of Law to
Due Process of Law
9 Discussion on Mohd Ahmad Khan vs. Shah Bano case
10 Concept of Marriage and Divorce under Hindu and Muslim Law
11 How to be an effective Speaker: Winning confidence and achieving success
12 Discussion of Freedom of Religion: Articles 25-28 of the Constitution
13 President’s Rule: What Article 356 provides and how Supreme Court
treated this provision
14 Right: Meaning and its various Avtaars; Jurisprudential theories of right

15 Death Penalty: Discussions on reasons why it should be abolished?
16 Mercy Jurisprudence: An Indian Experience
17 Freedom of Press: History and Law of the Freedom of Press in India
18 What is Confession: Sections 24 to 30, Indian Evidence Act, 1872
19 Harassment of Women at Workplace: Vishaka to Sexual Harassment of
Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013
20 Who is Justice H. R. Khanna : Why he is famous for?
21 Discussion by students on a book: 10 Judgments That Changed India
22 One Week Course on Transparency and Accountability Laws in Summer
vacations: Constitutional Provisions for Transparency and Accountability,
Prevention of Corruption Act, 1988, Central Vigilance Commission Act,
Right to Information Act, 2005, Lokpal and Lokayukta Act, 2013, The Right
of Citizen for Time bound Delivery of Goods and Services and Redresssal of
their Grievances Bill, 2011, Whistle-blowers Bill, International Covenants
and Documents providing for transparency and openess
23 A Discussion on Nani A. Palkivala: His work, achievements and contribution
24 Lets Draft a Law : Anti-Racial Discrimination Bill, 2014: We will send this
Bill to Central government for consideration: Teams- Prize- Rs. 5000, 3000
and 2000
25 H. M. Seervai: Lets know him through his work
26 Legal Eagles discussing Law under the Sky: A visit to some Monument/Park

India is a diverse Country
 Very populous: more
than 1 billion
 linguistic, ethnic,
religious, and cultural
diversity

Indian Constitution contains
certain compromises and
adjustments to keep this
diversity intact and
flourishing

Need of Amending the Constitution
Times & Life of Nation - Not Static
Constitution - Living and Organic document
Constitution- Drafted in one era, often
inadequate for another
Change in political, social and economic
conditions of a nation
Right of every generation to mould its future

 It is, therefore, quite possible that a
constitution drafted in one era, and in a particular
context, may be found inadequate/lacking in
another era and another context.
 It thus becomes necessary to have some
machinery, some process, by which the
constitution may be adapted/updated from time to
time in accordance with contemporary national
needs.

Broadly speaking Constitutions are of two
types:
1. Written Constitution
2. Unwritten Constitution
 Depending on above classification a
Constitution may be:
- Rigid Constitution
- Flexible Constitution
 Indian Constitution is a mixture of both Rigidity
and Flexibility

George Kousoulas said:
"The alternative to Constitutional change is
revolution. An unalterable Constitution is
the worst form of Tyranny.”
Sawer, Author of ‘Australian Federalism in
Courts’ observed that:
“Constitutionally speaking, Australia is a
frozen continent”

Whether the Indian
Constitution is a final word
or is there any provision for
its amendments?

 The founding fathers wanted the
Constitution to be an adaptable
document rather than a rigid framework
for governance.
 Wisdom of one generation cannot
be allowed to dominate/restrict the
right to decide about their future by
the coming generations.

• The framers of our constitution came
up with a written constitution in order
to ensure that there was some sort of
rigidity in the Constitution.
• Also the power to amend was given in
order to ensure that the Constitution
does not become repugnant in the
course of changing times.

Modes of Constitutional Change
 Informal & Formal
1. Informal – Through Judicial
Interpretation, Conventions
2. Formal – Through Amendments

Article 368 of Indian Constitution
 How the Indian Constitution can be
amended?

PART XX - AMENDMENT OF THE CONSTITUTION
Article 368. Power of Parliament to amend the Constitution and procedure
therefor.—
(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its
constituent power amend by way of addition, variation or repeal any provision of
this Constitution in accordance with the procedure laid down in this article.
(2) An amendment of this Constitution may be initiated only by the introduction of
a Bill for the purpose in either House of Parliament, and when the Bill is passed in
each House by a majority of the total membership of that House and by a
majority of not less than two-thirds of the members of that House present and
voting, it shall be presented to the President who shall give his assent to the Bill
and thereupon the Constitution shall stand amended in accordance with the terms of
the Bill:
Provided that if such amendment seeks to make any change in—
(a) article 54, article 55, article 73, article 162 or article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article,
the amendment shall also require to be ratified by the Legislatures of not
less than one-half of the States by resolutions to that effect passed by those
Legislatures before the Bill making provision for such amendment is presented to the
President for assent.

(3) Nothing in article 13 shall apply to any amendment made under this
article.
[(4) No amendment of this Constitution (including the provisions of Part III)
made or purporting to have been made under this article whether before or
after the commencement of section 55 of the Constitution (Forty-second
Amendment) Act, 1976 shall be called in question in any court on any
ground.
(5) For the removal of doubts, it is hereby declared that there shall be
no limitation whatever on the constituent power of Parliament to
amend by way of addition, variation or repeal the provisions of this
Constitution under this article.]
---------------------------------------------------------------------------------------------------------
 Note: Clause (3) was added in Art. 368 by 24th Amendment
Act,1971
Clauses (4) and (5) were inserted in Article 368 by Section 55
of the Constitution (42nd Amendment) Act, 1976. This section has
been declared invalid by the Supreme Court in Minerva Mills Ltd. and
Others Vs. Union of India and Others (1980 ) 2 S.C.C. 591.

Amendment in Indian Constitution
Article 368: Three methods
1. Amendment by Simple Legislative Procedure
Ex. Formation of New States, Citizenship, Parliamentary
privileges etc.
2. By Special Majority- by not less than 2/3rd members of
House present & voting + majority of its total membership
3. By Special Majority + Ratification by not less than 1/2 of
State Legislatures – Ex. manner of President’s election, VII
Schedule, jurisdiction of SC & HCs, Article 368 itself.

Whether there is any Limits on
amendment?
 What does Article 13(2) provide?
"The State shall not make any law
which takes away or abridges the rights
conferred by this Part and any law made in
contravention of this clause shall, to the
extent of the contravention, be void."
 Does this clause limit amendment?

Article 13. Laws inconsistent with or in derogation of the fundamental
rights.—
(1) All laws in force in the territory of India immediately before the commencement
of this Constitution, in so far as they are inconsistent with the provisions of this
Part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause shall,
to the extent of the contravention, be void.
(3) In this article, unless the context otherwise requires,—
(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom
or usage having in the territory of India the force of law; (b) “laws in force” includes
laws passed or made by a Legislature or other competent authority in the territory of
India before the commencement of this Constitution and not previously repealed,
notwithstanding that any such law or any part thereof may not be then in operation
either at all or in particular areas.
(4) Nothing in this article shall apply to any amendment of this Constitution
made under article 368.

Can Fundamental
Rights be amended ?

1950-1967 1967-1973 1973- onwards
Stages of Amendments and Position of
Supreme Court

Art 13(2)
 Now the question is whether a
Constitutional Amendment is a
law within the meaning of Article
13(2) of the Constitution?

Here can be two situations:
1. Constitutional Amendment = Law
Or
2. Constitutional Amendment # Law

Now if,
Constitutional Amendment = Law
Then, this position will lead us to the
conclusion that Article 13(2) prohibits
constitutional amendment also, if it
violates or abridges the fundamental
rights.

If,
Constitutional Amendment # Law
Then, this position will lead us to the
conclusion that Article 13(2) does not
prohibit constitutional amendment, even
if it violates or abridges the fundamental
rights.

 Supreme Court of India was
confronted with this question when
Constitution (First Amendment) Act,
1951 was passed affecting the right to
property, which was a fundamental
right at that point of time.
Article 31-A and Article 31-B including Schedule
IX were added by this First Constitutional
Amendment Act, 1951.

Constitution (First Amendment) Act, 1951
(For agrarian and Land Reforms Laws)
 Article 19(2), Article 31-A, 31-B, IX Schedule- 13
Acts were added
This amendment was challenged in
Shankari Prasad v Union of Indian,
AIR 1951 SC 458
Supreme Court Held in this case that: Patanjali Sastri, CJ
And therefore Article 13(2) does not provide
any restriction for amending the fundament
rights.

IXth Schedule inserted by First Constitutional
Amendment Act, 1951
is like a BOX
 Laws can be put in IXth Schedule (box) in
order to provide them immunity/protection from
challenge

IXth Schedule inserted by First Constitutional
Amendment Act, 1951
has increased over a period of time
 It started with 13 Acts
 Now it has around 284 Acts and Regulations
The effect of all this is that, these laws became immune
from being challenged on the basis of FRs,

Constitution (Fourth Amendment) Act, 1955
This amendment added more laws to IX Schedule providing immunity to these
laws- 7 Acts
Constitution (Seventeenth Amendment) Act, 1964
This amendment added more laws to IX Schedule- 44 Acts
This amendment also expanded the scope the word ‘Estate’ in Art. 31-A.
These amendments were challenged in
Sajjan Singh v State of Rajasthan, AIR 1965 SC 845
Supreme Court in this case held that:
And therefore, Article 13(2) does not provide any
restriction for amending the fundament rights.

Minority view in Sajjan Singh case
In Sajjan Singh v. Rajasthan AIR 1965 SC 845 two
dissenting Judges raised their doubts on whether
the rights of people should become a plaything in the
hands of the majority.
 Hidayatullah, J., observed, “the Constitution gives
so many assurances in Part III that it would be
difficult to think that they were play-things of a
special majority”
 Mudholkar, J.’s argument was set in a broader
frame and according to him, every constitution has
certain fundamental features which could not be
changed.

1950-1967
Constitional
Amendment is
not law within
the meaning of
Art. 13(2)
Fundamental
rights could be
amended.
1967-1973 1973- onwards
Supreme Court

Result of these two decisions of
the Supreme Court was that:
 Supreme Court upheld the power of
Parliament to amend any part of the
Constitution including the Fundamental
Rights and Article 13(2) does not prohibit
Parliament from amending these rights.

Constitution (17th Amendment) Act, 1964
 44 new Acts were added to IXth Schedule
through this amendment
 This amendment also expanded the scope
the word ‘Estate’ in Art. 31-A.

Golak Nath v. Punjab, AIR 1967 SC 1643
 Challenge to 1st, 4th and 17th Amendment Acts
 Chief Justice Subba Rao: 11 judges Bench
 6 : 5 majority prospectively overruled Shankari
Prasad and Sajjan Singh decisions and held that
Article 368 did not give Parliament the power to
amend (it only set out the procedure).
 An amendment was a law subject to Article 13(2)
and could not abrogate any Fundamental Right
 Doctrine of Prospective Overruling

Doctrine of Prospective Overruling
The court considered that it has a duty to
correct errors in the law.
It, therefore, adopted a doctrine of
prospective overruling under which the 3
constitutional amendments concerned (1st ,
4th and 17th ) would continue to be valid,
and the decision to the effect that Parliament
had no power to amend the provisions of Part
III would operate for the future only.

Chief Justice Subba Rao observed in Golak Nath case that
Article 368 merely laid down the amending procedure and
not the power to amendment.
The amending power (constituent power) of Parliament arose
from other provisions contained in the Constitution (Articles
245, 246, 248) which gave Parliament the power to make
ordinary laws (plenary legislative power).
 Constituent power = plenary law making power
Thus, the apex court held that the amending power and
legislative powers of Parliament were essentially the same.
Therefore, any amendment of the Constitution must
deemed to be law as understood in Article 13 (2).
Result of Golak Nath case:
Constitutional Amendment = Law

Observation of judges in Golak Nath case
The judges stated that the fundamental rights were so sacrosanct and
transcendental in importance that they could not be restricted even if
such a move were to receive unanimous approval of both houses of
Parliament.
Judges invoked the concept of implied limitations on the Power of
Parliament to amend the Constitution:- Article 13(2) expresses this
implied limitation on the powers of Parliament.
The judges observed that a Constituent Assembly might be
summoned by Parliament for the purpose of amending the fundamental
rights, if necessary.
Note:
The phrase 'basic structure' was introduced for the first time in India
by M.K. Nambiar and other counsels while arguing for the petitioners in the
Golak Nath case, but it was only in 1973 that the concept surfaced in the text
of the Supreme Court's verdict.

In nutshell:
The Supreme Court held in Golak Nath case
that some features of the Constitution lay at
its core and required much more than the usual
procedures to change them.

1950-1967
Constitional
Amendment is
not law within
the meaning of
Art. 13(2)
Fundamental
rights could be
amended.
1967-1973
Constitional
Amendment is
law within the
meaning of Art.
13(2)
Fundamental
rights could not
be amended.
1973- onwards
Supreme Court

Consequence of Golak Nath decision
of the Supreme Court was that:
 Fundamental Rights could not
be amended and Article 13(2)
prohibits Parliament to amend
these rights.

Now, till now we observed that
Shankari Prasad and Sajjan
Singh decisions allowed
amendment of Fundamental
Rights
………………………………………………………………………………………………………………...
Golak Nath decision put a
blanket ban on amendment of
Fundamental Rights ( But I, IV and XVII
amendments were held to be valid by Prospective
overruling)

Nationalisation of Banks and Abolition of Privy Purses
Within weeks of Golak Nath decision Congress party suffered
heavy losses in Parliamentary elections and lost power in
several states.
Barrister Nath Pai introduced Private Member’s Bill seeking
to restore the Supremacy of Parliament’s power to amend
the Constitution- this Bill was discussed in the house but could
not be passed.
 Attempts were made to:
a) Nationalise Banks
b) Abolition of Privy Purses
Supreme Court struck down these initiatives.
 Supreme Court and Parliament were at loggerheads.
 Mrs. Gandhi dissolved the Lok Sabha in 1971- for the first
time Constitution itself became the electoral issue. ( 8 of the
10 Manifestos in 1971 talked of restoring Supremacy of Parliament)

 A K Gopalan of CPI (M) went to the extent of saying that the
Constitution be done away with lock and barrel and be replaced
with one that enshrined the real sovereignty of the people.
 Congress party returned with two-thirds majority in 1971
elections.
Electorate seemed to have endorsed Mrs. Gandhi’s
socialist agenda, which among other things spoke of
making basic changes to the Constitution in order to
restore Parliament’s Supremacy.
Through various amendments from July, 1971 to June,
1972, Parliament sought to regain lost grounds.

The Constitution (24th Amendment) Act, 1971
It restored to Parliament the absolute power to amend any part of the
Constitution including Part III, dealing with fundamental rights.
 This amendment added Article 13(4) providing “Nothing in this
article shall apply to any amendment of this Constitution made under
article 368.”
This amendment also added Article 368 (3) which provided that
“Nothing in article 13 shall apply to any amendment made under this
article.”
 Marginal note of Article 368 was changed from ‘Procedure for
Amendment of the Constitution’ to ‘Power of Parliament to amend the
Constitution and procedure therefor.’
It was made obligatory through this amendment upon the President
to give his assent to the Constitutional amendment. This was done to
make it clear that there is difference between ordinary law making
power and constituent power of Parliament.

 This amendment added Article 31-C providing “Saving of laws giving
effect to certain directive principles.—
Notwithstanding anything contained in article 13, no law giving effect
to the policy of the State towards securing any of the principles laid
down in Article 39 (b) and (c), shall be deemed to be void on the ground
that it is inconsistent with, or takes away or abridges any of the rights
conferred by article 14 or article 19 or article 31;
and no law containing a declaration that it is for giving effect to such
policy shall be called in question in any court on the ground that it
does not give effect to such policy”
Note:
 So, through this amendment, certain directive principles
of state policies were given primacy over fundamental
rights contained in Article 14, 19 and 31.

 This amendment was in response to the Supreme Court’s
decision in Madhav Rao Scindia vs. Union of India, AIR 1971
SC 530 ( also known as Privy Purse case).
 This amendment abolished the right to privy purse and all
rights, liabilities and obligations in respect of privy purses.
 Article 291 providing for the payment of privy purses and
Article 362 guaranteeing personal rights, privileges and
dignities of the princes were omitted.
 Article 363A abolishing the institution of rulership was added
to the Constitution.

 This amendment added two Kerala Acts dealing with Land
Reforms in the IX Schedule.
These Acts were:
a. Kerala Land Reforms (Amendment) Act, 1969
b. Kerala Land Reforms (Amendment) Act, 1971

To get over the decision of the Supreme Court in Golak
Nath’s case the Constitution 24th Amendment Act was
passed in 1971.
The Constitution (Twenty-fourth
Amendment) Act, 1971 made changes to
Articles 13 and 368:
1. Amendment made in Article 13:
A new clause (4) was added to article 13:
“(4) Nothing in this article shall apply to
any amendment of this Constitution
made under Article 368.”

2. Amendments were made to Article 368:
a) The article was given a new marginal heading: "Power of
Parliament to amend the Constitution and procedure
therefore.”
b) A new clause was added as clause (I): "(I) Notwithstanding
anything in this Constitution, Parliament may in exercise of its
constituent power amend by way of addition, variation or repeal
any provision of this Constitution in accordance with the
procedure laid down in this article.”
c) Another clause was added as clause (3): "(3) Nothing in article 13
shall apply to any amendment under this article.”
d) Another amendment to the old article 368 (now article 368(2))
made it obligatory rather than discretionary for the President to
give his assent to any Bill duly passed under the article.

Other amendments were also passed after Golak Nath Case
These were:
1. 25th Amendment Act, 1971 adding Article 31-C giving
primacy to Article 39 (b) and (c) over fundamental rights
guaranteed by Articles 14 , 19 and 31 of the Constitution.
2. 26th Amendment Act, 1971 – this amendment was in
response to the SC decision in Madhav Rao Scindia vs.
Union of India, AIR 1971 SC 530 ( also known as Privy
Purse case).
This amendment abolished the right to privy purse and all
rights, liabilities and obligations in respect of privy purses.
3. 29th Amendment Act, 1972- This Amendment inserted two
Kerala Land Reforms Acts in the IXth Schedule to the
Constitution.

Consequence of 24th Amendment Act,
1971 and other amendments was:
 Parliament asserted its power to
amend any provision of the
Constitution including the fundamental
rights.

Kesavanand Bharati vs. State of Kerala,
AIR 1973 SC 1461 (Fundamental Rights case)
 In this case 24th, 25th, 26th and 29th Amendments
were challenged
 Overruled Golak Nath decision, which denied the
Parliament the power to amend fundamental
rights – Held Article 368 contained power (even
before 24th Amendment) to amend as well as
procedure for amendment
 SC held 24th Amendment valid
 Court enunciates Basic Structure Doctrine
 Special bench of 13 judges- 7 : 6 Decision
 Delivered on April 24, 1973

A summary statement was circulated by CJ Sikri
The nine of the thirteen judges in the
Kesavananda Bharati case, including Chief
Justice Sikri, who signed the summary
statement, declared that Parliament's constituent
power is subject to inherent limitations.
Parliament could not use its amending powers
under Article 368 to 'damage', 'emasculate',
'destroy', 'abrogate', 'change' or 'alter' the ‘basic
structure or framework of the Constitution’.

Origins of the Doctrine of Basic Structure
 The phrase 'basic structure' is not found in
the Constitution.
In Sajjan Singh v. Rajasthan AIR 1965 SC 845 two
dissenting Judges raised their doubts on whether the rights
of people should become a plaything in the hands of the
majority.
Hidayatullah, J., observed, “the constitution gives so many
assurances in Part III that it would be difficult to think that they
were play-things of a special majority”
Mudholkar, J.’s argument was set in a broader frame and
according to him, every constitution has certain fundamental
features which could not be changed.

Origins….
 Pakistan Supreme Court used this word in 1963. Then Chief
Justice of Pakistan Justice Cornelius had held in one case
that the President of Pakistan could not alter the “fundamental
features” of the Constitution.
Justice Mudolkar in Sajjan Singh case in 1965 made
reference to this decision of Pakistan Supreme Court.
 The phrase 'basic structure' was introduced for the first
time in India by M.K. Nambiar and other counsels while
arguing for the petitioners in the Golaknath case in 1967.
The Supreme Court of India recognised this concept for
the first time in the Kesavananda Bharati case in 1973.

Origin….
This doctrine also seems to have been borrowed from the
observation of US Supreme Court in 1919:
State of Rhode Island vs. A. Mitchel Palmer
“the decision of the Congress on this question as to whether a
particular amendment should be ratified by the State Legislatures
or by the State Conventions is final.
The constitution makers must have proceeded on the basis that
the Congress is likely to require the amendment of basic elements
or fundamental features of the Constitution to be ratified by State
conventions”.
In this observation the terms “basic elements or fundamental
features" purport to have been used to connote the set of
provisions, which may require ratification by states.

What is Basic Structure Doctrine ?
 Implied limit on amendment (held by 7:6
majority)
 Under Article 368, Parliament is not empowered
to amend the basic structure or framework of the
Constitution.
 Therefore, part of 25th Constitutiional
Amendment,1971 which says the following is
invalid:
“no such law, containing the declaration
that it is for giving effect to such policy shall be
called into question in any Court on the ground
that it does not give effect to such policy.”

Sikri, CJ in Kesavanand Bharati case
According to the learned Chief Justice, fundamental rights
conferred by Part III of the Constitution cannot be
abrogated, though a reasonable abridgement of those
rights could be effected in public interest.
There is a limitation on the power of amendment by
necessary implication which was apparent from a reading of
the preamble and therefore, the expression "amendment of
this Constitution" in Article 368 means any addition or
change in any of the provisions of the Constitution within
the broad contours of the preamble, made in order to carry
out the basic objectives of the Constitution.
Accordingly, every provision of the Constitution was open
to amendment provided the basic foundation or structure
of the Constitution was not damaged or destroyed.

Hegde and Mukherjea, JJ. in Kesavanand Bharati
Held that the Constitution of India which is
essentially a social rather than a political
document is founded on a social philosophy and
as such has two main features- basic and
circumstantial. The basic constituent remained
constant; the circumstantial was subject to
change.
The broad contours of the basic elements and
the fundamental features of the Constitution are
delineated in the preamble and the Parliament
has no power to abrogate or emasculate those
basic elements of fundamental features.

Jaganmohan Reddy, J.
Held that the word 'amendment' was used in the sense of permitting a change,
in contradistinction to destruction, which the repeal or abrogation brings
about. Therefore, the width of the power of amendment could not be enlarged
by amending the amending power itself. The learned Judge held that the
essential elements of the basic structure of the Constitution are reflected in its
preamble and that some of the important features of the Constitution are
justice, freedom of expression and equality of status and opportunity. The word
'amendment' could not possibly embrace the right to abrogate the pivotal
features and the fundamental freedoms and therefore, that part of the basic
structure could not be damaged or destroyed.
In conclusion, the learned Judge held that though the power of amendment
was wide, it did not comprehend the power to totally abrogate or emasculate or
damage any of the fundamental rights or the essential elements of the basic
structure of the Constitution or to destroy the identity of the Constitution.
Subject to these limitations, Parliament has the right to amend any and every
provision of the Constitution.

H. R. Khanna, J. in Kesavananda Bharati case
He broadly agreed with the views of the six learned Judges
and held that the word 'amendment' postulated that the
Constitution must survive without loss of its identity, which
meant that the basic structure or framework of the
Constitution must survive any amendment of the
Constitution.
He observed that it was permissible to the Parliament, in
exercise of its amending power, to effect changes so as to
meet the requirements of changing conditions, but it was
not permissible to touch the foundation or to alter the basic
institutional pattern.
Therefore, the words "amendment of the Constitution" in
spite of the width of their sweep and in spite of their
amplitude, could not have the effect of empowering the
Parliament to destroy or abrogate the basic structure or
framework of the Constitution.

Basic Structure?
The list is illustrative and not exhaustive!
Examples of Basic Structures given in Kesavanand
Bharati by Sikri CJ
 1. supremacy of the Constitution
 2. republican and democratic government
 3. secular character of the Constitution
 4. separation of powers
 4. federal character of the Constitution

Shelat, J. and Grover, J. added two more basic features
to this list:
• the mandate to build a welfare state contained in the
Directive Principles of State Policy
• unity and integrity of the nation
Hegde, J. and Mukherjea, J. identified a separate list of
basic features:
• sovereignty of India
• democratic character of the polity
• unity of the country
• essential features of the individual freedoms secured to
the citizens
• mandate to build a welfare state

Jaganmohan Reddy, J. stated that elements of the basic
features were to be found in the Preamble of the Constitution and the
provisions into which they translated such as:
• sovereign democratic republic
• parliamentary democracy
• three organs of the State
Note: Only six judges on the bench
(therefore a minority view) agreed that the
fundamental rights of the citizen belonged
to the basic structure and Parliament
could not amend it.

The minority view in Kesavanand Bharati case
The minority view delivered by Justice A.N. Ray (whose
appointment to the position of Chief Justice over and above the heads of three
senior judges, soon after the pronunciation of the Kesavananda verdict, was
widely considered to be politically motivated), Justice M.H. Beg, Justice
K.K. Mathew and Justice S.N. Dwivedi also agreed that
Golaknath had been decided wrongly.
They upheld the validity of amendments challenged before
the court.
Ray, J. held that all parts of the Constitution were essential
and no distinction could be made between its essential and
non-essential parts.
All of them agreed that Parliament could make fundamental
changes in the Constitution by exercising its power under
Article 368.

In summary the majority verdict in
Kesavananda Bharati recognised :
The power of Parliament to amend any or all
provisions of the Constitution provided such an
act did not destroy its basic structure. But there
was no unanimity of opinion about what
constitutes the basic structure.
Though the Supreme Court very nearly returned
to the position of Shankari Prasad (1951) by
restoring the supremacy of Parliament's
amending power, in effect it strengthened the
power of judicial review much more.

1950-1967
Constitional
Amendment is
not law within
the meaning of
Art. 13(2)
Fundamental
rights could be
amended.
1967-1973
Constitional
Amendment is
law within the
meaning of Art.
13(2)
Fundamental
rights could not
be amended.
1973- onwards
Parliament has all
powers to amend
Constitution but could
not amend the Basic
Structures or features
of the Constitution
Supreme Court

Constitution (39th Amendment) Act, 1975
Article 329-A was added by this amendment.
 Passed for validating the election of Mrs. Indira Gandhi, which was
declared invalid by the Allahabad High Court for indulging in corrupt
practices.
Article 329-A provided that the election of a person who holds the
office of a Prime Minister at the time of such election or is appointed
as Prime Minister after such election to the House of the People can
be challenged only before such a body or forum as may be
established by Parliament by law. The validity of any such law
creating a forum and the decision of any authority or body under
such law shall not be called in question in any Court.
 It also provided that where any person is appointed a Prime
Minister while election petition in respect of his election is pending,
such petition shall abate upon such person being appointed as Prime
Minister.
The provision of this Article shall have effect notwithstanding
anything contained in the Constitution.

Government was in too hurry to pass this 39th
Amendment
The mala fide intention of the government was proved by the
haste in which the Thirty-ninth amendment was passed.
The bill was introduced on August 7, 1975 and passed by the
Lok Sabha the same day. The Rajya Sabha (Upper House or
House of Elders) passed it the next day and the President gave
his assent two days later.
The amendment was ratified by the state legislatures in special
Saturday sessions. It was gazetted on August 10. When the
Supreme Court opened the case for hearing on 11th August,
1975, the Attorney General asked the Court to throw out the
case in the light of the new amendment.

Amendments were also made to the
Representation of Peoples Acts of 1951 and
1974 and placed in the Ninth Schedule along
with the Election Laws (Amendment) Act, 1975
in order to save the Prime Minister from
embarassment if the apex court delivered an
unfavourable verdict.

Indira Nehru Gandhi v. Raj Narain
AIR 1976 SC 2299 (popularly known as
Election case)
 39th Amendment Act
1975 was challenged in
this case
 Emergency was
declared by Mrs. Indira
Gandhi under Art. 352
 Supreme Court
avoided direct
confrontation with
government

In 1975, the Supreme Court again had the opportunity to
pronounce on the basic structure of the Constitution.
A challenge to Prime Minister Indira Gandhi's election
victory was upheld by the Allahabad High Court on
grounds of electoral malpractice in 1975.
Pending appeal, the vacation judge- Justice Krishna Iyer,
granted a stay that allowed Smt. Indira Gandhi to function
as Prime Minister on the condition that she should not
draw a salary and speak or vote in Parliament until the
case was decided.

 Counsel for Raj Narain who was the political opponent
challenging Mrs. Gandhi's election argued that the
amendment was against the basic structure of the
Constitution as it affected the conduct of free and fair elections
and the power of judicial review. Counsel also argued that
Parliament was not competent to use its constituent power for
validating an election that was declared void by the High Court.
 4 out 5 judges on the bench upheld the Thirty-ninth
amendment, but only after striking down that part which
sought to curb the power of the judiciary to adjudicate in the
current election dispute.
Justice M.M. Beg, J. upheld the amendment in its entirety.
Mrs. Gandhi's election was declared valid on the basis of
the amended election laws. The judges grudgingly accepted
Parliament's power to pass laws that have a retrospective
effect.

Basic Features of the Constitution according to the Indira
Nehru Gandhi (Election case) verdict
Justice H.R. Khanna, democracy is a basic feature of
the Constitution and includes free and fair elections.
Justice K.K. Thomas held that the power of judicial
review is an essential feature.
Justice Y.V. Chandrachud listed four basic features
which he considered unamendable:
• sovereign democratic republic status
• equality of status and opportunity of an individual
• secularism and freedom of conscience and religion
• 'government of laws and not of men' i.e. the rule of law

According to Chief Justice A.N. Ray, the constituent power
of Parliament was above the Constitution itself and
therefore not bound by the principle of separation of powers.
Parliament could therefore exclude laws relating to election
disputes from judicial review. He opined, strangely, that
democracy was a basic feature but not free and fair
elections.
Ray, C.J. held that ordinary legislation was not within the
scope of basic features.
Justice K.K. Mathew agreed with Ray, C.J. that ordinary
laws did not fall within the purview of basic structure. But
he held that democracy was an essential feature and that
election disputes must be decided on the basis of law and
facts by the judiciary.

Justice M.H. Beg disagreed with Ray, C.J. on the
grounds that it would be unnecessary to have a
Constitution if Parliament's constituent power were said to be
above it. Judicial powers were vested in the Supreme Court
and the High Courts and Parliament could not perform
them.
He contended that supremacy of the Constitution and
separation of powers were basic features as understood
by the majority in the Kesavananda Bharati case. Beg, J.
emphasised that the doctrine of basic structure included
within its scope ordinary legislation also.
………………………………………………………………………
Note: Despite the disagreement between the judges on
what constituted the basic structure of the Constitution,
the idea that the Constitution had a core content which
was sacrosanct was upheld by the majority view.

The Kesavananda Review Bench
 Within three days of the decision on the Election case Ray, C.J. convened a
thirteen judge bench to review the Kesavanada verdict on the pretext of hearing a
number of petitions relating to land ceiling laws which had been languishing in high
courts. The petitions contended that the application of land ceiling laws violated the
basic structure of the Constitution.
In effect the Review bench was to decide whether or not the basic structure
doctrine restricted Parliament's power to amend the Constitution. The decision
in the Bank Nationalisation case was also up for review.
 Meanwhile Prime Minister Indira Gandhi, in a speech in Parliament, refused to
accept the dogma of basic structure.
It must be remembered that no specific petition seeking a review of the
Kesavananda verdict was filed before the apex court- a fact noted with much chagrin
by several members of the bench. N.A. Palkhivala appearing for on behalf of a coal
mining company eloquently argued against the move to review the Kesavananda
decision. Ultimately, Ray, C.J. dissolved the bench after two days of hearings.
Many people have suspected the government's indirect involvement in this episode
seeking to undo an unfavourable judicial precedent set by the Kesavananda
decision.

Sardar Swaran Singh Committee and the
42nd Amendment
Soon after the declaration of National Emergency, the Congress party
constituted a committee under the Chairmanship of Sardar Swaran
Singh to study the question of amending the Constitution in the light
of past experiences. Based on its recommendations, the government
incorporated several changes to the Constitution:
Among other things the 42nd Amendment Act, 1976
a) gave all the Directive Principles of State Policy primacy over the
Fundamental Rights contained in Article 14, Article 19.
Article 31-C was amended to prohibit any challenge to laws made
under any of the Directive Principles of State Policy.

b) laid down that amendments to the Constitution
made in the past or those likely to be made in future
could not be questioned in any court on any
ground
c) provided immunity to all amendments to
fundamental rights from the scope of judicial review
d) removed all limits on Parliament's power to
amend the Constitution under Article 368

e) Amended Article 31-C stating that laws
passed to implement the Directive Principles of
State Policy could not be challenged in courts
on the ground that they violated any fundamental
right.
Note: Prior to the 42nd Amendment Act, 1976
Article 31-C was applicable only to Article 39 (b)
& (c) of the Directive Principles which dealt with
equitable distribution of wealth and resources
of production. ( 25th Amendment Act, 1971)

42nd Amendment Act, 1976
(Mini Constitution)
This amendment inserted two new Parts IV-A and XIV-A
and 14 Articles - 39-A, 43-A, 48-A, 51-A 131-A, 114-C, 226-
A, 228-A and 257-A and also amended 40 Articles of the
Constitution. It made amendment to the Preamble also.
This amendment also amended Article 31-C giving primacy
to all Directive Principles of State Policies over
fundamental rights.

42nd Amendment Act, 1976
(Mini Constitution)
This amendment also added new clauses (4) and (5) to the Article 368.
Article 368 (4) provided that: “ no constitutional amendment made
under Article 368 shall be called in question in any court on any
ground”.
Article 368 (5) provided that for the removal of doubts, it is declared
that there shall be no limitation whatever on the constitution power of
Parliament to amend by way of addition, variation or repeal the
provisions of the Constitution under this Article.
 This amendment, it was claimed, was made to establish the
supremacy of Parliament which represents the will of the people. It
removed all the limitations imposed on the amending power of
Parliament by Supreme Court in Kesavanand Bharati case.

Minerva Mills vs. Union of India
AIR 1980 SC 1789
 In this case constitutional validity of 42nd
Amendment Act , 1976 was challenged.
Amendment in Article 368 :
(4) “no amendment of the Constitution . . . shall be
called in question in any court on any ground.”
(5) “there shall be no limitation whatever on the
constituent power of Parliament to amend by way of
addition, variation or repeal the provisions of this
Constitution.”

Amendment in Article 31-C :
This 42nd Amendment of 1976 gave primacy to
all DPSPs over Fundamental Rights.
Note: Before this amendment the primacy was
only given to Article 39 (b) and (c) over
Fundamental Rights……….this was limited
primacy. ( By 25th Amendment Act, 1971)

Supreme Court in Minerva Mills
held:
 Struck down (4) and (5) to Artilce 368 as
contrary to power of amendment as interpreted in
Kesavanand Bharati
 The amended Article 31-C was struck down by
the Court- disturbing the balance b/w FRs &
DPSPs

The historical Judgment of Supreme Court in Minerva
Mills laid down that:
The amendment made to Article 31-C by the 42nd Amendment is invalid
because it damaged the essential features of the Constitution.
Clauses (4) and (5) are invalid on the ground that they violate two basic
features of the Constitution viz. limited nature of the power to amend
and judicial review.
The courts cannot be deprived of their power of judicial review. The
procedure prescribed by Cl.(2) is mandatory. If the amendment is
passed without complying with the procedure it would be invalid.
The Judgment of the Supreme Court thus makes it clear that the
Constitution is Supreme not the Parliament. Parliament cannot have
unlimited amending power so as to damage or destroy the Constitution to
which it owes its existence and also derives its power.

Some cases where Doctrine of
Basic Structure was reiterated

Waman Rao vs. Union of India, AIR 1981 SC 271
This case involves the dispute involving agricultural property.
The apex court, held that all constitutional amendments
made after the date of the Kesavananda Bharati judgement
(24th April, 1973) were open to judicial review.
All laws placed in the Ninth Schedule after the date of the
Kesavananda Bharati judgment were also open to review in
the courts. They can be challenged on the ground that they
are beyond Parliament's constituent power or that they
have damaged the basic structure of the Constitution.
 In essence, the Supreme Court struck a balance between
its authority to interpret the Constitution and Parliament's
power to amend it.

 S.P. Sampath Kumar vs. Union of India (1987) 1 SCC 124
and
 P. Sambamurthy vs. State of Andhra Pradesh (1987) SCC
362
The judges in these cases laid down that the rule of law and judicial
review were integral to the Basic Structure.
 Central Coal Fields Ltd. vs. Jaiswal Coal co. 1980 Supp
SCC 471
Effective access to Justice is part of the basic structure
 Kihoto Hollohon, AIR 1993 SC 412
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.”

L. Chandra Kumar v. Union of India AIR 1997 SC 1125:
Article 323-A and 323-B, both dealing with tribunals, were
inserted by the 42nd Amendment. Clause 2(d) of Art.323-A
and Clause 3(d) of 323-B provided for exclusion of the
jurisdiction of the High Court under Art.226 and 227 and the
Supreme Court under Art.32.
The Supreme Court in this case held these provisions as
unconstitutional because they deny judicial review which is
basic feature of the Constitution. It held that the power of
judicial review vested in the High court under Art.226 and
right to move the Supreme Court under Art.32 is an
integral and essential feature of the Constitution.

S.R. Bommai vs. India (1994)
 President’s Rule (art. 356) in four BJP ruled
states
 Supreme Court in this case held Secularism
as the basic structure of the Constitution
Criticism:
 The word ‘secular’ was added to Preamble by
1976 amendment, so how could it be part of
basic structure of Constitution?

State of Bihar v. Bal Mukund Sah and Ors.
AIR 2000 SC 1296
The Supreme Court observed that the concepts of
“Separation of Powers between the legislature, executive
and Judiciary” as well as “the fundamental concept of
independent judiciary have been now elevated to the level
of basic structure of the constitution and are the
very heart of the constitutional scheme.”

Subjectivity in the theory of basic structure
Doctrine of basic structure is a subjective one and largely relies upon
the values of the judges, who influenced by inherited instincts,
traditional beliefs, acquired convictions, and conceptions of social
need, formulate their own peculiar yardsticks and values and the same
vary from person to person and time to time.
The biggest shortcoming in the Basic Structure theory is the ambiguity
about what is basic and what is not.
There is an absence of a definite test to conclude whether a
constitutional right or a part thereof forms a part of the basic structure.
In other words, there is no hypothesis against which the theory could
be tested. The result was that instead of the Constitution drawing
authority from within itself, it became dependent upon judicial
interpretation i.e. the Judge made the Law. Thus the Judiciary which
was a creation of the Constitution became more powerful than its
creator.

Subjective nature of the doctrine
Supreme Court has held that the
list of Basic Structures is
illustrative and not exhaustive
This list will vary depending on the values of the judges,
who influenced by inherited instincts, traditional beliefs,
acquired convictions, and conceptions of social need,
formulate their own peculiar yardsticks and values and the
same vary from person to person and time to time.

Doctrine of Basic Structure
Basic Structure
Basic Structure
Whole Constitution

Subjective Theory
Basic Structure

Effect of Kesavanand Bharati case
Kesavanand overruled Golaknath but did not re-establish parliamentary supremacy.
It stated that fundamental rights may be amended by the parliament, but not all
of them. Those fundamental rights which constitute the basic structure of the
Constitution cannot be abridged. Golaknath gave primacy to all fundamental
rights.
Kesavanand recognizes that some other provisions in the Constitution may be
equally important. If they form the basic structure they are unamendable. Under Art.
368 the parliament cannot rewrite the entire Constitution and bring in a new
one.
By invalidating part of Art.31-C Kesavanand prevented the state legislature
from exercising power to virtually amend the constitution. Art.31-C lays down
that if a state legislature makes a law which contains a declaration that it is to giving
effect to the policy contained in Art.39(b)and(c) then no court may scrutinize it. Thus a
state legislature could make review proof law. Keshvanand denied them such power.
Power of judicial review shall remain with the court, legislative declaration cannot
destroy it.
Kesavavand is an example of judicial creativity of the first order. It protected the
nation from the attacks on the Constitution by a 2/3 majority which may be motivated
by narrow party or personal interests. The basic feature cannot be mauled.

The effects of the various decisions of the Supreme Court
may be thus summarized as:
 Parliament has limited powers to amend the constitution.
 Parliament cannot damage or destroy the basic features of
the Constitution.
 The Procedure prescribed for the amendment is mandatory.
Non-compliance with it will result in invalidity of the
amendment.
 Clauses (4) and (5) inserted in Art. 368 by the 42nd
Amendment Act,1976 are invalid because they take away the
power of judicial review.
 Parliament cannot increase its amending power by
amending Art. 368.

Adoption of this doctrine by Courts of
other Countries:
The Supreme Court of Bangladesh adopted the
doctrine of basic structure relying on Kesavanada
Bharati case.
In Pakistan the Lahore High Court and the
Baluchistan High Court took the same view.
The judgment also had an effect on the Nepal
Constitution.

Conclusion:
One certainty that emerged out of this tussle
between Parliament and the judiciary is that all
laws and constitutional amendments are now
subject to judicial review and laws that
transgress the basic structure are likely to be
struck down by the Supreme Court.
In essence, Parliament's power to amend the
Constitution is not absolute and the Supreme
Court is the final arbiter and interpreter of all
constitutional amendments.

The validity of the amendment is not
to be decided on the touchstone of
Article 13 but only on the basis of
violation of the basic features of the
constitution.

 The decision given in Kesavananda case
maintained balance between the rigidity and the
flexibility of the Constitution.
 The Doctrine of Basic Structure is of prime
importance as it prevents the parliament from
having unconditional power and becoming the
master of Law itself.
 It also makes sure that the primordial rights
necessary for the development of human
personality are not compromised with.

Final analysis
None is above the
Constitution; not even the
parliament and judiciary.
But judiciary has power of
judicial review.

The constitution places an embargo on the erosion of
basic features, but a Constitutional Amendment seeking to
promote, strengthen and enlarge a basic feature would be
most welcome.
The Constitution is not a party manifesto which can be
amended by the party at its will to suit political expediency,
but a national heritage which ought to be amended only
when there is broad national consensus favouring a
specific amendment.
Power to amend does not include power to destroy.
Therefore, Parliament has limited power of Amendment
under Article 368.
Controlled Constitution and not Uncontrolled Constitution
Constitution is the Supreme Law of the land and
executive, legislature and judiciary derive their powers and
authority from the Constitution.

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