A hundred years scarce serve to form a state; an hour may lay it in the
The Constitution makers gave the power to amend the Constitution in the hands of
the Parliament by making it neither too rigid nor too flexible with a purpose
that the Parliament will amend it as to cope up with the changing needs and
demandsof‘WE THE PEOPLE OF INDIA’. The Parliament in exercise of
its constituent power under Article 368 of the Indian Constitution can amend any
of the provisions of the Constitution and this power empowers the Parliament to
amend even Article 368 itself. The ‘Doctrine of Basic Structure’ is a judge-
made doctrineto put a limitation on the amending powers of the Parliament so
that the ‘basic structure of the basic law of the land’cannot be amended in
exercise of its ‘constituent power’ under the Constitution. So, the question
arises, is not there any limitation on the amending powers of the Parliament? If
the answer of this question is not in affirmative with a reason that the
Constitution makers did not intended for such limitation otherwise they would
have provided for such limitation in the Constitution, then another question
arises, to what extent can the Parliament amend the basic law of the land? And,
if there will be no limitation on the amending power of the Parliament, are
there not chances that this power of amendment in the name of ‘constituent
power’ can be abused?This paper seeks to answer these questions and its
scope through judicial pronouncements.
‘Doctrine of Basic Structure’- The Concept
The Constitution is organic. What Edmund Burkehas said about it, that a
Constitution is an ever-growing thing and is perpetually continuous as it
embodies the spirit of the nation. It is enriched at present by the past
influence and it makes the future richer than the present. Part XX of the
Constitution under Article 368deals with the amendment of the Constitution.
It provides for three kinds of amendment i.e., amendment by simple
majority;amendment by special majority; and amendment by special majority
and ratification by the States. The Constitution has to be amended at every
interval of time. A Constitution which is a static constitution becomes a big
hurdle in the path of the progress of the nation. As the time is not static; it
goes on changing in the same way the political, economic and social conditions
of the people also goes on changing so for that reason provision of amendment of
the Constitution is made with a view to overcome the difficulties of ‘we the
people’which may encounter in future in the working of the Constitution. If
there were no provision made for the amendment of the Constitution, people would
have recourse to extra-Constitutional methods like revolution to change the
same. Our Constitution-makers were so vigilant about the integrity of India that
they gave us a scheme in the Constitution that if a citizen have a claim of even
100 rupees against the government (whether Central or State) one would get a
decree against the Government and that decree will be charged on the
Consolidated Fund of India and the same shall be payable as a matter of right
and no State Legislature or the Parliament has right to vote on that that it
will not be paid.What the sense of national integrity and honour of India
the Constitution makers had before 66 years ago but today the Parliament is
making its every possible effort to keep itself out from the purview of the
judiciary which is the shield giver to the Constitution.This doctrine as
evolved in the Keshavananda Bhartiseeks to resolve a legal conundrum which
arises in written Constitutions out of the interplay between those provisions of
the Constitution which guarantees the fundamental rights and those which enable
the Parliament to amend the Constitution.
There is no such exhaustive or exclusive definition of basic structure given by
the judiciary. Judicial approach has been on case to case basis to define what
basically includes in the doctrine of basic structure.
Chandrachud, C.J., in
Minerva Mills case
observed thus,the Indian
Constitution is founded on the bedrock of the balance between Parts III and IV.
To give absolute primacy to one to one over the other is to disturb the harmony
of the Constitution. This harmony and balance between fundamental rights and
directive principles is an essential feature of the basic structure of the
Constitution.The rule of lawand judicial review was held as basic
structure in Waman Rao,Sampath KumarandSambamurthycases.
Effective access to Justice is part of the basic Structure, according to the
ruling inCentral Coal Fields case.InKihoto Hollohon,the Supreme
Court has declared:
Democracy is a basic feature of the Constitution and election conducted at
regular prescribed intervals is essential to the democratic system envisaged in
the Constitution. So is the need of protect and sustain the purity of the
electoral process that may take within it the quality, efficiency and adequacy
of the machinery for resolution of electoral disputes.
Sawant and Kuldip Singh, JJ.,have observed:Democracy and
Federalism are essential features of our Constitution and are part of its basic
structure.In the same case, the Supreme Court has ruled that secularism is a
basic or an essential featureof the Constitution.
In M. Nagraj v. Union of India
the court observed that the amendment should
not destroy Constitutional identity and it is the theory of Basic Structure only
to judge the validity of Constitutional amendment. Doctrine of equality is the
essence of democracy accordingly it was held as a Basic Structure of the
Constitution.In a recent judgmentI. R. Coelho v. State of Tamil
Naduthe Supreme Court applied this doctrine and 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 Article 21 read with Article 14, Article 19 and the
principles 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 taken away or abrogated pertains or pertain to the
John Marshall, the American Chief Justice on the life of the Constitution has
said. A Constitution is framed for ages to come, but its course cannot always be
tranquil.The amending power could not be exercised in such a manner as to
destroy or emasculate the basic or essential featuresof the Constitution,
including the sovereign, democratic and secular character of the polity, rule of
law, independence of the judiciary, fundamental rights of citizens etc.
AsJustice Chandrachudhad exquisitely laid down: Amend as you may even the
solemn document which the founding fathers have committed to your care, for you
know best the needs of your generation. But, the Constitution is a precious
heritage; therefore, you cannot destroy its identity.
Till date, the judiciary has neither given any exhaustive definition of the
basic structure nor has it given an exhaustive list which constitutes the basic
structure of the Indian Constitution.Justice MathewinIndira
Gandhicasehad perceptively stated The concept of basic structure as a
brooding omnipresence in the sky apart from specific provisions of the
constitution is too vague and indefinite to provide a yardstick for the validity
an ordinary law.
The Judicial Journey of‘Basic Structure’
Shankari Prasad Case
After coming into force the Constitution of India, the problem of validity of
the Constitutional amendments arose early essentially on the issue of ‘right to
property’.The originally enacted Constitution included such provisions
relating to property under Article 19 (1) (f).The Constitution further
provided for the protection of right to property under Article 31.The Bihar
Land Reform Act, 1950 was declared unconstitutional by the Patna High Court. In
Prasad Singh v. State of Bihar
,the unconstitutionality of the Bihar Land
Reforms Act, 1950 was related to the law being the subject to Article 13(2).
The decision of the Court was lamented by Nehru, that ‘somehow, we have found
that the magnificent Constitution that we have framed was kidnapped and
purloined by the lawyers’. Different interpretations were made by some other
High Courts.Such conflicting views of the Courts led the Parliament to
bring the Constitution (First Amendment) Act, 1951 which introduced new Articles
in the Constitution by the saving clause i.e., Articles 31-Aand 31-B.
It was broadly declared in Article 31-A that any law providing for compulsory
acquisition of property aimed at development of the state will not be
unconstitutional merely because it is in conflict with Articles 14 and 19.
Whereas Article 31-B introduced a new Schedule in the Constitution; the Ninth
Schedule which laid down that any law included in this schedule would be immune
from challenge in any court.
The First Constitutional Amendment was challenged before the Supreme Court inShankari
Prasad v. Union of Indiawith the main issue whether the Constitution (First
Amendment) Act, 1951 passed by the provisional Parliament is valid? The
amendments were challenged on the ground that the word ‘law’ under article 13(2)
also includes the ‘law of the amendment of the Constitution’ and so the Articles
31-A and 31-B are invalid because they abridge the fundamental rights. To the
issue that the definition of the word contained under Article 13 (3) (a)did
not expressly refer to the ‘Constitutional amendments’, the Court held that
although amendment is superior to an ordinary legislation and hence it will not
be hit by article 13(2). As the word ‘law’ under article 13(2) ordinarily
includes Constitutional amendment but it must be taken to mean the exercise of
ordinary legislative power. Thus amendments made in exercise of the constituent
power of the Parliament are not subject to Article 13(2) and such power includes
the amendment of the fundamental rights as well. On this point the Court also
We are of the opinion that in the context of Article 13 law must be taken to
mean rules and regulations made in the exercise of ordinary legislative power
and not amendments to the Constitution made in the exercise of constituent power
with the result that Article 13(2) does not affect amendments made under Article
The Court using the literal interpretation resolved the conflict and upheld the
validity of the First Amendment and also held that Article 368 empowers the
Parliament to amend the Constitution without any exception that Fundamental
Rights cannot be amended being the exception to Article 368. The Court also
disagreed with the view that Fundamental Rights are inviolable. Thus, in this
case the Supreme Court kept the ‘law of amendment’ beyond the scope of Article
13(2) and thereby enabled the process of progress of the nation through the
process of acquisition of property.
The Sajjan Singh Case
After theShankari Prasadcase, the Constitution (Fourth Amendment) Act, 1955
was passed amending some Articles in Fundamental Rights Part, but its validity
was never challenged. The Constitution (Seventeenth Amendment) Act,
1964introduced a major change and put a number of laws in the Ninth
Schedule, so as to keep them away from the judicial review and was challenged
before the Court. The majority of the judges in this (Sajjan Singh) case on the
same logic as held in theShankari Prasadcase held that the law of amendment is
superior law and is not subject to Article 13(2). It also held that theShankari
Prasadcase was rightly decided and affirmed that the Parliament under Article
368 can amend any of the provision of the Constitution including the Fundamental
Rights and make a suggestion to the Parliament that Fundamental rights should be
included in the Proviso of the Article 368.
Justice Hidayatullah and Mudholkar dissented from the majority view and Hidayatullah
J. expressed his concern as:
The Constitution gives so many assurances in Part III that it would be
difficult to think that they were the plaything of a special majority. To hold
this would mean prima facie that the most solemn parts of our Constitution stand
on the same footing as any other part and even on a less firm ground than one on
which the articles mentioned in the proviso stand. As at present advised, I can
only say that the power to make amendment ought not ordinarily to be a means of
escape from absolute Constitutional restrictions.
One of the arguments in this case was the scope of judicial review which was
reduced to a great extent, so the amendment should be struck down. The Court
rejected this argument and held by majority that the pith and substance of the
amendment was to amend the Fundamental Rights and not to restrict the scope of
Article 226.They minority view on this point was very different, Justice
I would require stronger reasons than those given in Shankari Prasad to make me
accept the view that Fundamental Rights were not really fundamental but were
intended to be within the powers of amendment in common with the other parts of
the Constitution and without concurrence of the states.
Justice Mudholkarobserved that Constitutional amendment be excluded from the
definition of law under Article 13 and he also gave an argument that every
Constitution has certain basic principles which could not be changed.
The Court said that the decision in Shankari Prasad needs reconsideration and
…if the arguments urged by the petitioners were to prevail, it would lead to
the inevitable consequence that the amendment made in Constitution both in 1951
and 1955 would be rendered invalid and a large number of decisions dealing with
the validity of the Acts included in the Ninth Schedule which has been
pronounced by the different High Courts ever since the decision of this Court in
Shankari Prasad’s case was declared, would also be exposed to serious jeopardy.
These are considerations which are both relevant and material in dealing with
the plea urged by the petitioners before us in the present proceeding that
Shankari Prasad’s case should be reconsidered.
Justice Mudholkarconcurred with the opinion of theChief Justice Gajendragadkarand
questionedit is also a matter for consideration whether making a change in the
basic feature of the Constitution can be regarded merely as an amendment or
would it be, in effect, rewriting a part of the Constitution; and if the latter,
would it be within the purview of the Article 368?
The I. C. Golakhnath Case
The strong reservations of the minority inSajjan Singhcase promptedChief
Justice Subba Raoto constitute a larger Bench (eleven judges) to reconsider the
Constitutional validity of First, Fourth and Seventeenth Constitutional
Amendments in view of the doubts expressed byHidayatullahandMudholkar JJ.The
Seventeenth Constitutional Amendment was challenged in theI. C. Golakhnath
case. By a majority of 6:5 it was held that the‘Parliament had no power to
amend the fundamental rights’.Subbarao C.J.,delivered the leading majority
judgement (For himself,Sikri, Shelat, Shah and Vaidyalingam JJ.) whereasHidayatullah
J.delivering a concurring judgement. The two judgements reached the same
conclusion although they took the opposite views as to the source of the
amending power.Subbarao, C.J.held that Article 368 contained only procedure
for amendment, the power to amend being located in the residuary power of
legislation. As legislative power was subject to the provisions of this
Constitution, Article 13(2) constituted a bar to an amendment abridging or
taking away fundamental rights. The majority judgement overruled Shankari Prasad
Case, and held that there was no distinction between legislative and constituent
Justice Hidayatullah held that the power of amendment was not located in the
residuary power of legislation. Article 368 provided a procedure which, when
complied with, resulted in an amendment of the Constitution. If it could be
called a power at all, it was a legislative power, but it wassui generis. Since
a Constitutional amendment was a law, Article 13(2) barred any amendment which
abridged or took away fundamental rights. It is not surprising that the majority
shrank from the practical consequences of the judgement. The judgment of the
Court in this case probably gave more rise to the already going controversy
between the Judiciary and Legislature. The judges in their majority overruled
Sajjan Singh case
. As there were numerous attacks on the Fundamental Rights
since 1950 and because of that the Court was worried if the Parliament would be
given an absolute power then a time may come when there will be no fundamental
rights and India may lead towards totalitarian regime.
The court came forward
with some propositions:
(i) the substantive power to amend is not to be found in
(ii) Article 368 contains only the procedure to amend the
(iii) a law made under Article 368 would be subject to Article
13(2) like other laws;
(iv) The word ‘amend’ envisaged only minor modifications
in the existing provisions but not any major alterations therein; (v) to amend
the Fundamental Rights, a Constituent Assembly ought to be convened by the
Chief Justice Subba Raoput forth the curious position that Article 368 merely
lay down the amending procedure. It does not confer upon the Parliament the
power to amend the Constitution as the constituent power of the Parliament arose
from other provisions contained in the Constitution like Arts. 245,
246and 248which gives Parliament, the power to make laws. And the
Court also held the ‘amending power’ and the ‘legislative power’ of the
Parliament were essentially the same. Therefore the amendment of the
Constitution must be deemed law as used under Article 13.Now the biggest
question before the Court was what to do now with the First, Fourth and the
Seventeenth Amendments as they dealt with the critical land reforms and if they
will be nullified then it may lead to civil unrest. The Court tried to strike
down the balance between the need to prevent future erosion of fundamental
rights with the need to protect the amendments which has already been done. The
Court while struck down the three amendments and evolved the doctrine
ofProspective Overruling under which the decisions would only have
prospective operation and not retrospective and also held that from the date of
judgment of this case, the Parliament shall have no power to take away or
abridge the fundamental rights. While some dissenting judges like Justice
Wanchooexpressed his view that no limitation should be implied on the
amending power of the Parliament under Article 368. He gave the argument
thatbasic feature would lead to the position that any amendment made to any
Article of the Constitution would be subject to the challenge before the Courts
on the ground that it amounts to the amendment of the basic structure.
Justice Ramaswami, held that the Constitution makers had not expressly provided
any such limitation on the amending power of Parliament and hence there was no
inviolability attached to the fundamental rights through the amending process.
The majority of judges who overruled Golakh Nath Case did so on one or more of
the following grounds:
(a) Because of the history of the residuary powers;
because residuary power belongs exclusively to the Parliament; whereas the power
of amendment does not exclusively belong to Parliament in view of the proviso to
(c) because draft Article 304 conferred a limited power of amendment
on state legislature which had no residuary power;
(d) because Article 368
distributes constituent power and the power to amend the Constitution is not
mentioned in the distribution of legislative power, for, in a rigid
Constitution, there is a vital distinction between legislative and constituent
(e) because Article 368 is not merely procedural but confers substantive
power, for, on the procedure being followed, the product is the substantive
amendment of the Constitution;
(f) because draft Article 305 showed that when
the framers intended to limit the power of amendment, they expressly did so;
because there is a fundamental distinction between a rigid and a flexible
Constitution. In a flexible Constitution no law can be ultra vires, in a rigid
Constitution any law violating the Constitution is void. McCawley's Caseand Ranasinghe's
Case far from supporting the view that rigid Constitutions can be amended by
ordinary legislation, negative such a proposition;
(h) because if the express
declaration of invalidity contained in Article 13(2) prevents an amendment of
fundamental rights, any amend of the other parts of the Constitution would be
equally impossible, because of the opening words of Article 245 Subject to the
provisions of this Constitution, since an amendment of the Constitution would
contravene the Article to be amended. Either all Articles are amendable or no
Article is amendable, which would be absurd in the face of Article 368;
because if the amending power was a legislative power, it would not be legally
possible to convene a Constituent Assembly for abrogation or abridging
The Keshavananda Bharati Sripadagalvaru Case
The tussle between the Judiciary and the Legislature took totally a different
shape after the decision in theGolakh Nath case. The Constitution
(Twenty-fourth Amendment) Act was passed to nullify the
Golakh Nath decision
clauses were added in the Article to blanket the Parliament with an omnibus
constituent power. The Constitution (Twenty-fifth Amendment) introduced a new
provision Article 31Cin the Constitution under which law giving effect to
the Directive Principles of the State Policy enumerated under Part IV of the
Constitution were deemed automatically be valid despite any inconsistency with
the fundamental rights granted under Articles 14, 19and 31.In this
case, His Holiness Kesavananda Bharati Sripadagalavaru of Kerala filed a
petition under Article 32 of the Constitution for the enforcement of his
Fundamental Rights under Articles 14, 19(1)(f), 25, 26, 31(1) and 31(2) of the
Constitution. He prayed that the provisions of the Kerala Land Reforms Act, 1963
as amended in 1969 and later in 1971Twenty-fourth Amendment and Twenty-fifth
Amendment be declared ultra vires to the Constitution. The matter was heard by
the largest ever constituted Bench consisting of 13 judgesto review the
decision of the Court in the
Eleven issues were raised in this case before the Honourable Supreme Court.
The first issue
before the Court was what should be the rule of
interpretation? To this issue, the Supreme Court held that if there is any
ambiguity, the ‘Hyden’s Rule’have to be followed.
To the second issue
is meant by the word ‘amend’ or ‘amendment’ the Court held that any amendment to
the Constitution has to be within the limits of the essence of the Constitution.
Indian Constitution is first and foremost a‘Social Document
’ and is based upon
the socio-economic ideals of the freedom struggle. It was in the course of the
freedom struggle that the various promises were made for bringing about a social
revolution in the society and these principles are indispensable for the Indian
society and accordingly the Constitution also has to be essentially based upon
these principles. It is these principles and values, which provide the organic
entity and vitality to the Constitution. The Parliament which is a creation of
the Constitution cannot rob the Constitution of its vitality. The Constitution
has its own identity. The identity relates to the essential principles on which
the Constitution is based. The identity of the Constitution cannot be taken away
by any process of amendment, in fact, the Constitution does not provide for any
mechanism by which the very identity of the Constitution can be taken away.
The third issue
was ‘what is the source of amending power?’ The Court on this
issue held that even in earlier cases, Article 368 was the only source and even
after the Constitution (Twenty-fourth Amendment) Act, Article 368 is the only
source of the amending power.
The fourth issue
was, can it be said that the
amendment is done by the people of India directly and therefore being a
sovereign, the people of India can amend anything in the Constitution? The
Court held that India is a representative democracy and once people have elected
their representatives, the amendment has to be done by the Parliament and not by
the people directly. There is no system ofreferendumin India and therefore, it
is not the people of India who directly amend the Constitution or make any law.
The Parliament has to act within the domain of the Constitution. Sovereignty is
no doubt vested in the people of India but it is only the political sovereignty.
Legal sovereignty is vested in the Constitution of Indiai.e.,the Constitution
ids the supreme and not the people of India. Once the people have given the
Constitution to themselves, they have declared their promise to adhere to the
Constitution and therefore, even the people cannot rise above the Constitution
to alter the essence of the Constitution by any constitutional means.
The fifth issue
was by declaring the constituent power, has the Parliament
acquired for itself, the power to rise above the Constitution and bring about
any alteration in the Constitution? The Court held that the constituent power
of the Parliament cannot be equated to the constituent power of the Constituent
Assembly. The Constituent Assembly had the original constituent power under
which it created the Constitution itself. It was not limited by any
pre-existing Constitution as such. On the other hand, the Parliament’s
constituent power is a derivative power as derived from the Constitution itself.
In fact, the Parliament itself is the creation of the Constitution and therefore
in the garb of having the constituent power, the Parliament cannot rise above
the Constitution so as to acquire those powers for itself which was actually
with the Constituent Assembly. Hence, the Parliament in its constituent power of
amendment has to act within the limits of the Constitution.
The sixth issue
was does Article 13(2) controls Article 368?Sikri, J. did not
get into this issue as he observed that otherwise also the effect is same. Hedge
and Mukherjea, JJ. Held that there is a need for harmonization between Article
13(2) and Article 368. Article 13(2) refers to the ordinary legislative power of
the Parliament and the State legislature whereas, Article 368 refers to the
constituent power of the Parliament to amend the Constitution and is above the
limitation of Article 13(2) though it subject to the ‘Doctrine of Basic
Structure’. The Court did not read any conflict between the two, rather it just
held that the field of application of the two are just distinct and hence they
do not control each other.
The seventh issue
was are the Fundamental Rights amendable? The Court held
that Fundamental Rights are amendable but the Basic Structure is not. The
wordings used in the various Fundamental Rights in themselves may not be the
essence of the Constitution rather the principles behind those
words i.e., Articles are the elements of the Basic Structure. An amendment of
the word used in the Articles on Fundamental Rights is permissible only to the
extent that the basic structure of the Constitution does not adversely get
The eight issue
was does the ‘doctrine of implied limitation’ apply upon the
Indian Constitution? The Court answered to this issue in affirmative. The ninth
issue was what is the scope of ‘judicial review’ in reference to Article 368?
The Court held that, it can interfere in any amendment of the Constitution from
the perspective of the ‘Substantive limitations- basic structure’ and the
‘Procedural limitation- Article 268(2) etc.’ The tenth issue was what is the
scope and extent of the amending power with respect to Article 368? It was held
that Article 368 cannot be amended but the spirit of midway amendment process
cannot be taken away. The Constitution neither be made too rigid nor can it be
made too flexible. Similarly, on the substantive part, Article 368 cannot be
amended to an extent so as to acquire to itself the power to take away or
abridge even the basic structure.
The last and the eleventh issue
was is not
the ‘Doctrine of Basic Structure’
is a vague doctrine? The Court held that the
doctrine of basic structure cannot be said to be vague merely because it cannot
be rigidly defined or all the elements of basic structure have not been
enumerated. Firstly, the Court is bound to decide only those issues which are
actually before it. A decision upon any other issue will amount to anobiter
will not be binding. Moreover, it is not possible to enumerate all
the elements in one-go and it is not needed as well. The Court also held that
merely because a particular concept of law cannot be rigidly defined, it does
not cease to be a concept of law. Principles of natural justice and negligence
also cannot be rigidly defined still they are effective concept of law. The
Court also laid down the test in this regard-the ultimate purpose of the
Constitution is the conservation of utility and integrity of the nation as also
the dignity of the individual. This can be assured only by promoting fraternity.
Any principle of law which if taken away from the Constitution would result into
a loss of fraternity and unity and integrity of the nation and the dignity of
the individual would be considered to be an essential feature of the Basic
On the point that the Constituent Assembly would hide the power to amend the
Constitution in its residuary power was refused by Hedge and Mukherjea, JJ. The
view expressed on this point in theGolakh Nathwas overruled. The Court found a
distinction between the term ‘Constitutional Law’ and ‘law’ used under Article
13 of the Constitution and held that the term ‘Constitutional law’ does fall in
the purview of ‘law’ in Article 13. And also held that the amending power of the
legislature shall be subject to a doctrine called the doctrine of ‘basic
structure’ and therefore the parliament cannot use its constituent power under
Article 368 so as to' damage', 'emasculate ', 'destroy', 'abrogate', 'change' or
'alter' the 'basic structure ' or framework of the Constitution.This
decision is a turning point in Constitutional history.
Nani Palkhivala who was leading the arguments on behalf of the petitioners
developed an alternative argument changing the emphasis from the concept of
‘law’ in Article 13 to the concept of ‘amendment’ in Article 368. Even if you
could amend the Constitution, it would surely mean that you could only ‘change’
but not ‘destroy’ it. This was a shift from the technical meaning of the word
‘law’ to a political theory attached to the concept of ‘amendment’. Palkhivala
raised a point before the Court in support of his argument that a Constitution
given by a people to themselves reserving to themselves certain fundamental
rights cannot possibly be radically altered by a Parliament created under that
very Constitution. He also argued that even if the Article 368 were construed
broadly, the preamble was not amendable and Article 368 could not be read
as' expressing the death wish of the Constitution or as a provision for its
On behalf of the respondent,H. M. Seervaiargued that the amending power of the
Parliament was unlimited and has been so recognized until Golakh Nath. In his
view, the fundamental rights guaranteed by Part III were not ‘human rights’ but
‘social rights’ conferred on citizens by civilized society at a given time and
were, therefore, susceptible to change from time to time.
The most important proposition stated in view of the majority (though it was a
razor thin majority of 7:6) on the 24thof April, 1973 that the Parliament
cannot amend the basic structure. The common answer of the judges in this case
on what constitutes the basic structure was the ‘judicial review’. There were
dissenting observations of the minority, that there is no such limitation on the
amending powers of the Parliament.
Chief Justice Sikri observed:
The expression amendment of this Constitution does not enable Parliament to
abrogate or take away fundamental rights or to completely change the fundamental
features of the Constitution so as to destroy its identity. Within these limits
Parliament can amend every article.
He also relied on the Supremacy of the Constitution, republican and democratic
structure, Secular character, Separation of power between the Legislature,
Executive and Judiciary, Federal character of the Constitution, Preamble and the
basic inalienable rights guaranteed under Part III of the Constitution.Mukherjea
and Hedge JJ. observed if the ‘basic features’ are taken away to that extent the
Constitution is abrogated or repealed, the amending power is subject to the
implied limitations and Parliament has no power to emasculate or abrogate the
‘basic elements’ of the Constitution.They considered Sovereignty of India,
Democratic character of the polity, unity of the country, essential freedoms of
the individual freedoms secured to the citizens and mandate to build a welfare
state as the basic structure. Grover and Shelat JJ.Held that there were implied
limitations on the amending power of the Parliament and there were also certain
‘basic elements’of the Constitution.They included supremacy of the
Constitution, Republican and democratic form of government, Secular character of
the Constitution of India, separation of power between the three organs, federal
character of the Constitution, the mandate to build a welfare state contained in
the Directive principles of state Policy and unity and integrity of the nation
in the list of their basic structure. Justice Ray observed that ‘there are no
express or implied limitations to the power of amendment’ and said ‘the power to
amend is wide and unlimited’.Justice Jagmohan Reddy observed that
‘essential elements constituting the basic structure cannot be
amended’.Justice Palekarwas of the view that an amendment of the
Constitution abridging and taking away a fundamental right conferred by part III
of the Constitution is not void and there were no implied or inherent
limitations on the Amending power under the unamended Article 368 in its
operation over the fundamental rights. There can be none after its
amendment.Justice Khannaheld that the limitation on the amending power
only arose from the word ‘amendment’. He also observed that there is no such
inherent or implied limitation on the amending power.
He rejected the contention
that the fundamental rights and the Preamble of the Constitution could not be
amended at all. He also observed:
I am further of the opinion that amendment of the Constitution necessarily
contemplates that the Constitution has not to be abrogated but only changes have
to be made in it. The word amendment postulates that the old Constitution
survives without loss of its identity despite the change and continues even
though it has been subjected to alterations. As a result of the amendment, the
old Constitution cannot be destroyed and done away with; it is retained though
in the amended form... Although it is permissible under the power of amendment to
effect changes, howsoever important, and to adapt the system to the requirements
of the changing conditions, it is not permissible to touch the foundation or to
alter the basic institutional pattern. The words amendment of the
Constitution with all their wide sweep and amplitude cannot have the effect of
destroying or abrogating the basic structure or framework of the
Whereas Justice Mathew also observed that ‘the power to amend under Article 368
is plenary in character and extended to all the provisions of the Constitution.
And he also on other hand similar to Justice Ray affirmed that ‘the only
limitation is that the Constitution cannot be repealed or abrogated in the
exercise of the power of amendment without substituting a mechanism by which the
State is constituted and organized. That limitation flows from the language of
the article itself.’Justice Dwivedi observed the phrase amendment of this
Constitution is the nerve-center of Article 368.The words this
Constitution in the phrase embrace the entire Constitution. Further, the
denial of power to make radical changes in the Constitution to the future
generation would invite the danger of extra Constitutional changes of the
Justice Begwas of the view that there is no such limitation on the amending
power of the parliament and went on saying:
in such a Constitution as ours, we must strongly lean against a construction
which may enable us to hold that any part of the Constitution is exempt from the
scope of Article 368 as originally framed.
Justice Chandrachud in his judgment observed that, the word amendment in
Article 368 has a clear and definite import and it connotes a power of the
widest amplitude to make additions, alterations or variations… No express
restraint having been imposed on the power to amend the amending power, it is
unnecessary to seek better evidence of the width of the power of amendment under
our Constitution.Further, Article 368, manifestly, does not impose any
express limitations.…The power of amendment is a safety valve and having regard
to its true nature and purpose, it must be construed as being equal to the need
for amendment. The power must rise to the occasion.
The term ‘basic structure’ was used only byJustice Khanna, which was lifted
byChief Justice Sikriand adopted in his view of the majority. T. R.
Andhyarujina in his book wrote that the ‘view of the majority’ cannot be the
ratio of the
That is why in
Indira Gandhi Case
Chief Justice Ray observed, It should be
stated here that the hearing has proceeded on the assumption that it is not
necessary to challenge the majority view in Kesavananda Bharati case.
It was held in this case that the amendments that violate the basic structure of
the Constitution are unconstitutional despite the fact that the formal
conditions for amendment of the Constitution (laid down in article 368 of the
Constitution) had in fact been fulfilled.
But Justice Khanna on the other handheld that limitation on the amending power
only arose from the word ‘amendment’. He observed:
We may not deal with the question as to what is the scope of the power of
amendment under Article 368. This would depend upon the connotation of the word
‘amendment’. Questions has been posed during arguments as to whether the power
to amend under the above article includes the power to completely abrogate the
Constitution and replace it by an entirely new Constitution, the answer to the
above question, in my opinion, should be in the negative. I am further of the
opinion that amendment of the Constitution necessarily contemplates that the
Constitution has not to be abrogated but only the chances has to be made in it.
The word ‘amendment’ postulates that the old Constitution survives without loss
of its identity despite the changes and continues even though it has been
subjected to alterations. As a result of the amendment, the old Constitution
cannot be destroyed and done away with; it is retained though in the amendment
form. What then is meant by the retention of the old Constitution? A mere
retention of some provisions of the old Constitution even through the basic
structure of framework of the Constitution has been destroyed would not amount
to the retention of the old Constitution although, it is permissible under the
power of amendment to effect changes, howsoever important, and to adopt the
system to the requirements of the changing conditions, it is not permissible or
to alter the basic institutional pattern. The words ‘amendment of the
Constitution’ with all their sweep and amplitude cannot have the effect of
destroying or abrogating the basic structure or framework of the
It is interesting to know that the Court by a majority of 7:6 held the judicial
review as the basic feature of the Constitution.
Amending Power of the Parliament and theNinth Scheduleof the Constitution
One of the reasons of tussle between the Judiciary and the two other organs
together has always been the Ninth Schedule.The question is whether a law
declared as unconstitutional by the Court can be made Constitutional just by
putting that Law or Act in the Ninth Schedule of the Constitution so as to keep
that Act away from the judicial scrutiny? If it is so, then what will be the
status of the Act, will it not be anunconstitutional constitutional amendment?
One of the members of the Constituent Assembly,Prof. K.T. Shahopposed the
creation of Ninth Schedule in order to uphold the sanctity of the Supreme Court.
This concept of Ninth Schedule came from Ireland, where land had been unevenly
distributed. The judicial attitude as there was no unanimity on the point
between the Courts, led to the creation of this Schedule. The Ninth Schedule
worked as shield as it given no scope to the judicial intervention.
The substantial question before the Honourable Court inI. R. Coelho
casewas,whether on and after the date ofKeshavanandajudgement, it is
permissible for the Parliament under Article 31B to immunize legislations from
fundamental rights by inserting them into the Ninth Schedule and, if so, are the
courts having any power to review these legislations?
The judgment was delivered by a bench of nine judges.
The then Chief Justice of
India,Y. K. Sabharwalobserved:
When entire Part III (dealing with Fundamental Rights) is sought to be taken by
a Constitutional amendment by the exercise of constituent power under Article
368 by adding the legislations in the Ninth Schedule, the question arises as to
the judicial scrutiny available to determine whether it alters the fundamentals
of the Constitution.
The Court held that a law that abrogatesor abridges rights guaranteed by Part
III of the Constitution may or may not violate the basic structure doctrine. If
former is the consequence of law, such law will have to be invalidated in
exercise of judicial review power of the Court. The majority judgment inKesavananda
Bharti's caseread withIndira Gandhi caserequires that to judge the validity
of each new Constitutional amendment, its effects and impacts on the rights
guaranteed under Part III has to be taken into account and then it should be
decided whether or not it destroys the basic structure of the Constitution. All
amendments to the Constitution made on or after 24th April, shall have to be
tested on the touchstone of the basic or essential features of the Constitution
as reflected in Article 21 read with Article 14, Article 19, and the principles
underlying them. Therefore, even though an Act is put in the Ninth Schedule by a
Constitutional amendment, its provisions would be open to attack on the ground
that they destroy or damage the basic structure.It was held that every such
amendment shall have to be tested on the touchstone of essential features of the
Constitution which included those reflected in Articles 14, 19 and 21 and
principles underlying them. Such amendments are not immune from the attack on
the ground they destroy or damage the basic structure. The Court will apply the
‘rights test’ and the ‘essence of the rights’ test taking synoptic view of
Articles in Part III of the Constitution. It was further observed that the Court
has to be guided by the ‘impact test’ in determining whether a basic feature was
violated. The Court will first determine if there is violation of rights in Part
III by impugned Amendment, its impact on the basic structure of the Constitution
and the consequence of invalidation of such Amendment.
In respect of the
constituent power, the Bench went further saying that:
If constituent power under Article 368, the other name of amending power cannot
be made unlimited, it follows that Article 31B cannot be used so as to confer
unlimited power. Article 31B cannot go beyond the limited amending power
contained in Article 368. The power to amend Ninth Schedule flows from Article
368. This power of amendment has to be compatible with limits on the power of
the amendment. The limit came with the Kesavananda Bharati case. Therefore,
Article 31B after April 24, 1973, despite its wide language, cannot confer
unregulated or unlimited immunity.
Soli Sorabjee, the former Attorney General of India in a Lecture in the Oslo
University in October 2008, pointed out that The judgment clearly imposes
further limitations on the constituent power of Parliament with respect to the
principles underlying certain fundamental rights. With the utmost respect the
judgment is not conducive to clarity. It has introduced nebulous concepts like
the essence of the rights test. Besides apart from the express terms of Articles
21, 14 and 19, what are the principles underlying there under? One does not have
to be a prophet to visualize further litigation to explain the Coelho judgment
which is sure to add to the prevailing confusion. Thus, there is no certainty
or unanimity about what constitutes the essential or basic features of the
ThePramati Educational and Cultural Trust Case
A Five JudgesBench inPramaticase was called upon to rule on the validity
of Articles 15(5)and 21Aof the Constitution. The two substantial
question of law before the Bench were: whether by inserting Clause (5) in
Article 15of the Constitution by the Constitution (Ninety-third Amendment)
Act, 2005, Parliament has altered the basic structure or framework of the
Constitution?; and whether by inserting Article 21Aof the Constitution by
the Constitution (Eighty-sixth Amendment) Act, 2002, Parliament has altered the
basic structure or framework of the Constitution?
The Court upheld the Constitutional validity and exempted minority administered
institutions from the ambit of the Right of Children to Free and Compulsory
Education Act, 2009 (hereinafter referred to as RTE Act) in its entirety. The
Court referred theSociety for Unaided Private Schools of Rajasthan v. Union of
India & Anr.,and held that clause (5) of Article 15 of the Constitution is
valid and does not violate the ‘basic structure’ of the Constitution so far as
it relates to the State-maintained institutions and aided educational
institutions.But however, the Constitution Bench inAshoka Kumarcase left
open the question whether clause (5) of Article 15 was Constitutionally valid or
not so far as private unaided educational institutions are concerned. The
Court held that object of Article 15(5) is to enable the state to give equal
opportunity to socially and educationally backward classes of citizens or to
Scheduled Castes and Scheduled Tribes to study in all educational institutions
other than minority educational institutions. It is to amplify the provisions of
Article 15 of the Constitution as that clause (5) has been inserted in Article
15 by the Constitution (Ninety-third Amendment) Act, 2009.As the object of
clause (5) of article (15) is to provide equal opportunity to a large number of
students belonging to SEBCs/SCs/STs to study in educational institutions and
equality of opportunity is also the object of Clauses (1) and (2) of Article 15
of the Constitution. It cannot be said that clause (5) of Article 15 is an
exception or a proviso overriding Article 15 of the Constitution, but is an
enabling provision to make equality of opportunity promised in the Preamble to
the Constitution a reality. And Article 15(5) is not violative of the basic
structure or the framework of the Constitution. The Court went on to saying that
power under Article 15(5) is aguided powerand its use in furtherance of its
object and purpose is subject to judicial review and element of voluntariness
under Article 19(1)(g) is not affected.Mr. Narimanargued that clause (5) of
Article 15 of the Constitution is violative of Article 14of the
Constitution inasmuch as it treatsunequals as equals.The Court on this
point held that the law made to effectuate Article 15(5) must provide for
compensation to the unaided institutions so as not to violate Article 14.The
Court on the issue of exclusion of minority educational institutions (aided and
unaided) held that they are outside the purview of Article 15(5) and Article
15(5) does not destroys the secular character of the India set out in the
Preamble. Mr. Nariman next submitted that inMohini Jain (Miss) v. State of
Karnataka & Ors.,this Court has held that theright to lifeis a
compendious expression with all those rights which the Courts must enforce
because they are basic to the dignified enjoyment of life and that the dignity
of an individual cannot be assured unless it is accompanied by the right to
education. He submitted that under Article 51-A(j) of the Constitution, it is a
duty of every citizen of India to strive towards excellence in all spheres of
individual and collective activity so that the nation constantly rises to higher
levels of endeavor and achievement. He argued that every citizen can strive
towards excellence through education by studying in educational institutions of
excellence. He submitted that clause (5) of Article 15 of the Constitution in
so far as it enables the State to make special provisions relating to admission
to private educational institutions for socially and educationally backward
classes of citizens or for the Scheduled Castes and the Scheduled Tribes will
affect also this right under Article 21 read with Article 51-A(j) of the
Constitution. On this point raised by Mr. Nariman, the Court held that it is not
borne out by the experience of institutions which similarly has reserved seats.
Besides Article 15(5) promotes fraternity and unit and integrity of the nation
contained in the Preamble.
The Court on the validity of Article 21A held that it did not find anything in
Article 21A which conflicts with either the right of private unaided schools
under Article 19(1)(g) or the right of minority schools under Article 30(1) of
the Constitution, but the law made under Article 21A may affect these rights
under Articles 19(1)(g) and 30(1). The law made by the State to provide free
and compulsory education to the children of the age of 6 to 14 years should not,
therefore, be such as to abrogate the right of unaided private educational
schools under Article 19(1)(g) of the Constitution or the right of the minority
schools, aided or unaided, under Article 30(1) of the Constitution. Article 21A,
however, states that the State shall by law determine the manner in which it
will discharge its Constitutional obligation under Article 21A. Thus, a new
power was vested in the State to enable the State to discharge this
Constitutional obligation by making a law. However, Article 21A has to be
harmoniously construed with Article 19(1)(g) and Article 30(1) of the
Constitution. Constitution (Eighty-Sixth Amendment) Act, 2002 inserting Article
21A of the Constitution do not alter the basic structure or framework of the
Constitution and are Constitutionally valid. The Court held that the 2009 Act
is not ultra vires Article 19(1)(g) of the Constitution and declared that the
2009 Act insofar as it applies to minority schools, aided or unaided, covered
under clause (1) of Article 30 of the Constitution is ultra vires the
Constitution. It clearly keep out the minority institution (whether aided or
un-aided) from the purview of the Act of 2009. The issue, whether the balance
between Part III and Part IV of the Constitution has been destroyed by Article
15(5) was raised in thePramaticase but was not touched by the judges and left
The Ninety-Ninth Constitutional Amendment and theDoctrine of Basic Structure
The Ninety-Ninth Constitutional Amendment and the National Judicial Appointment
Commission Act(hereinafter referred to asNJAC Act)was proposed to be a
constitutional body to replace the existing system of judicial appointments,
whereby the three senior-most judges of the Supreme Court (the Collegium)
decide upon the appointments to the Supreme Court, with a nominally consultative
role played by the Executive. Through a new Article 124A of the Constitution,
they seek to bring into existence a National Judicial Commission, comprising of
six membersi.e.,the Chief Justice of India and two senior-most judges of the
Supreme Court, two eminent persons (who would be nominated by a committee
consisting of the CJI, Prime Minister of India and Leader of opposition or
leader of single largest party) and the Union Minister of Law and Justice Law.
Under a new Article 124B, the NJAC will recommend appointments to the higher
The Constitution Ninety-Ninth Amendment was challenged in theSupreme Court
Advocates on Record v. Union of India
.The issue in the case waswhether the
impugned amendment alters or damages the said basic structure and is void on
that ground? The petitioners contended that the primacy of judiciary in
appointment of judges and absence of interference by the Executive therein is by
itself a part of basic feature of the Constitution being integral part of
independence of judiciary and separation of judiciary from the Executive.
According to the respondents, primacy of judiciary in appointment of judges is
not part of independence of judiciary. Even when appointments are made by
Executive, independence of judiciary is not affected. Alternatively, in the
amended scheme, primacy of judiciary is retained and independence of judiciary
is strengthened. The amendment promotes transparency and accountability and is a
part of needed reform without affecting the basic structure of the Constitution.
The Court rejected the contentions and by a majority of 4:1 held that the new
schemedamages the basic structure of the Constitutionunder which primacy in
appointment of judges has to be with the judiciary. Under the new scheme such
primacy has been given a go-bye. Thus, the impugned amendment cannot be
sustained.Articles 124A, B and C form the backbone of the 99thAmendment, and
have been impugned as violating the basic structure by destroying the
independence of the judiciary, the separation of powers, and the rule of law.
The Test of‘Basic Structure’
The Doctrine of Basic Structure is vague in the sense that there is no clear cut
list given by the Judiciary that such provisions of the Constitution forms the
basic structure rather it has been left open before the judiciary to decide the
same on the case to case basis. Though the first attempt was made to laid down
the test of Basic structure in theMinerva Mills case.H. M. Seervai has
lamented that,[A] precise formulation of the basic features would be a task of
greatest difficulty and would add to the uncertainty of interpreting the scope
of Article 368.In the case ofM. Nagraj v. Union of Indiathe Court
has tried to formulate a general test to decide if an amendment is against the
basic structure of the Constitution. The Court held that in the matter of
application of the principle of basic structure, twin tests have to be
satisfied, namely, the‘width test’and the‘test of identity’.The
Court referred to the judgment inKeshavanadacase which clarified that not
an amendment of a particular article but an amendment that adversely affects or
destroys the wider principles of the Constitution such as democracy, secularism,
equality or republicanism or one that changes the identity of the Constitution
R. Coelho case
held in respect of the amendments of the fundamental
rights not a change in the particular article but the change in the essence of
the right must be the test for the change in the identity. It was further held
by the Court that if the triangle of Article 21 read with Article 14 and
Article 19 is sought to be eliminated not only theessence of right testbut
also the‘rights test’has to apply. The Court also observed that‘rights
test’and the‘essence of right’test both forms part of the application of the
doctrine of basic structure.
Finally, theimpact testcan be used to determine whether any law destroys the
basic structure. If the impact of such a law has an effect on any of the rights
guaranteed under Part III of the Constitution, then by applying this test, the
answer will be in affirmative that such law is in violation of the basic
The doctrine of‘basic structure’has been subject to intense debate in the
Constitutional field with regard to its genesis. A notion or doctrine in
Constitutional sense can only be said Constitutional when it has a
Constitutional genesis. But this point raises a questioni.e.,is the doctrine
of basic structure really basic? Various academicians answer this question in
negative. Subhash Kashyapcriticizes the basic structure doctrine in the
words:if the sovereign people through their representatives cannot bring about
their desired change, who will?But of what use thisdesired changewill be
to the ‘we the people’if it will be at the cost of the Constitution itself.
This doctrine has an anti-majoritarian flavor and is of prime importance as it
prevents the Parliament from abusing its majoritarian power. It can also be said
that it has extra Constitutional origin as there islack of basic in the basic
structure doctrineand what the Supreme Court has done is to assume to itself a
power of veto on all Constitutional amendments. But if such limitations on the
amending power of the Parliament will not be there, then, a day may come, when
it will be made a criminal offence to criticize the government in power and the
citizens may not be left with their basic inalienable rights what the
Constitution guarantees to them under Part III. Criticizing this doctrine with
the argument that the constituent power gets transferred from the elected
representatives of the people to the judges of the Supreme Court one should not
forget the majoritarian power of which the Parliament is in possession of. The
judiciary is the protector and final interpreter of the Constitution and it is
also below the Constitution. But it also appeared from the few judicial
pronouncements that the Supreme Court has assumed much power in the name of
basic structure what may be termed as power of veto to every Constitutional
amendment. This doctrine was meant for special use in times when Constitutional
amendments threatened the basic framework of the Constitution. This doctrine is
subjective and vague. As there is no clear cut list laid down by the judiciary
that this constitutes the ‘basic structure’ and has said that it will be decided
on the case to case basis. Probably, the reason may be, the Judiciary is afraid
of the Legislature that if they will give a clear cut list of basic structure,
then the Parliament may come forward with some other alternatives. Thanks
toProfessor Dietrich Conradwho on his visit to India make us aware that there
is some implied inherent limitation on the amending power of the Parliament
which Palkhivala successfully pleaded in theKeshavanandacase and thatMr. M.
K. Nambyartried in Golakh Nath but because of judicial hesitation it took about
half a decade time afterGolakh Nathto get it approved.
This doctrine protects our basic rights and every acts of the Parliament is now
subject to this doctrine, and puts a full stop on theunconstitutional
Constitutional amendments gameof the Parliament,e.g.,theI. R. Coelhocase,
where the Ninth Schedule was enacted with the purpose to give effect to laws
relating to land reforms. The purpose failed and the history clearly shows for
what purpose, the Schedule was used. Various enactments were put down in the
Ninth Schedule to provide them a shield that they will be beyond judicial review
though many of them were not related to the agrarian reforms.
Basic structure doctrine is the reply to the dubious steps adopted to misuse the
Ninth Schedule and the judgment as a whole is laudable.Mr. K. R.
Narayanan(the former President of India) once said,we have destroyed the
Constitution, and Constitution has not destroyed usappears true as the
Parliament has on many occasions proved this in order to show their power.Nani
A. Palkhivalawhile delivering his speech on Twenty-Fourth Constitutional
Amendment concluded with the words…let the Constitution of India be
sovereign.This doctrine is not the result of an extra judicial effort but
what actually led was the attempts which were made by the Parliament many times
to bring changes in the Constitution in exercise of itsconstituent power,
then only judiciary came forward with this theory of ‘implied limitation’ in the
form of basic structure that the Parliament can amend whatever it wants to, but
cannot amend the basic structure of the Constitution. Why it cannot amend the
basic structure of the Constitution owes from the language of Article 368 itself
that …the Constitution‘shall stand amended’in accordance with the Bill. So,
the argument of Mr. Pandit Kanahiyya Lal Mishra seems quite strong that amend
the Constitution in the light of the provisions contained in the Constitution
but in such a way so that the basic structure of the Constitution should remain
the same and the Constitution shall stand amended, and not sit amended
because if the basic structure of the Constitution will be amended then the
Constitution will no longer remainstand amendedrather, it will be opposite
of thestand amended. But, since passing of the Constitution in 1949, we are
witnessing, how the Parliament is making our Constitution ‘stand amended’ while
attempts has been made to abrogate and restrict the basic inalienable rights of
the subjects and because of this, there is a tussle between the Judiciary and
Legislature on one hand and with the Executive on other. It is just like when
the Parliament is in doubt it has no other option than to amend.After all,
a Constitution like a machine is a lifeless thing. It acquires life because of
the men who control it and operate it and India needs today nothing more than a
set of honest men who will have the interest of the country before
them.The basic structure doctrine is a mean to give a momentum to the
living principles of the ‘Rule of Law’ and connotes that none is above the
Constitution and the Constitution is supreme.
A Constitution is the basic law of the land. In other words, it is the
fundamental law of the country which set to reflect the GENERAL WILL OF THE
NATION. The requirement of reflecting the general will of the Constitution is
very clearly evident from the Preamble of the Constitution itself which reads
asWE THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its
citizens…As the time is not static, in the same way, the general will of the
nation cannot remain a static thing. As the nation and civilization evolve, the
will of the nation change and evolve as a response to the changing social
economic and political conditions of the nation. Which means that the
Constitution of a country has also to be responsive to the changing situations
of the nation, which are social, economic and political. Because a Constitution
which is a static constitution becomes a big hurdle in the path of the progress
of the nation.
Because of these reasons, the framers of the Constitution evidently and clearly
understood the requirement and inserted Article 368 dealing with the procedure
to amend the Constitution by making it neither too rigid or too flexible so that
the Constitution may come up with the changing needs and demands of WE THE
PEOPLE. The reason being, the Constitution makers understood that neither the
Constitution cannot be very flexibly amended according to the whims of the
parties but nor the procedure too rigid so that no amendment is actually
possible. If you go through the Constitution of India, you will find that there
are hardy few provisions of the constitution which remain untouched. It clearly
shows that the amendment provisions as provided under the Constitution of India
is indeed a unique blend of rigidity and flexibility. In fact, his requirement
of Constitution being a dynamic document has been beautifully elaborated by our
former Prime Minister Mr. Nehru in his words, I quote:
While we want this Constitution to be as solid as permanent a structure as we
can make it. Nevertheless, there is no permanence in the Constitution. There
should be certain flexibility. If you make anything rigid and permanent, you
stop a nation’s growth, the growth of living, vital and organic people.
This is what our Constitution makers specifically elaborated and made the part
of our Constitution.
Some writers have called this doctrine asan ‘invention’ of the Indian
Judiciaryrather it is better to call it as a mere‘announcement’andnot
evenevolutionof the Indian Judiciary. The genesis of the announcement of this
doctrine in India goes toProfessor Dietrich Conrad, formerly Head of the
Department of Law, South Asia Institute of the University of Heidelberg who
delivered his lecture onImplied Limitation of the Amending Powerin the
Faculty of Law, Banaras Hindu University, Varanasi, Republic of India in
February, 1965, where he elucidated that any amending body organized within the
statutory scheme, howsoever verbally unlimited its power, cannot by its very
structure change the fundamental pillars of supporting its Constitutional
authority.M. K. Nambyarinspired by Professor Conrad brought this issueof
necessary implied restraintto the amendment of the Constitution inI. C. Golakh
Nath v. State of Punjab[(1967) 2 SCR 762] but the Judiciary hesitated to
pronounced this notion. Later on it wasNani Palkhivalawho inKeshavananda
Bharati Sripadagalvaru v. State of KeralaAIR 1973 SC 1461(popularly known as
the ‘Fundamental Rights Case’which was a consolidated case name of the cases,
namely:Raghunath Rao Ganpati Rao, N. H. Nawab Mohammed Iftekhar Ali Khan v.
Union of India, Shethia Mining and Manufacturing Corporation Limited v. Union of
IndiaandOriental Coal Co. Ltd. v. Union of India)brough this issue
ofnecessary implied restraintand was able to get it approved successfully from
the judiciary and the Supreme Court of India announced the doctrine of Basic
Structure of the Constitution on 24thApril, 1973.TheBasic Structure
wasinspired by an exceptional display ofart, courage and craft (used byUpendra
Baxi inCourage, Craft and Contention―The Supreme Court in Eighties) that the
Supreme Court exhibited while evolving this doctrine which counts as one of the
greatest contribution of Indian judiciary to theory of institutionalism;Also
See;A. G. Noorani, Behind the ‘Basic Structure’ Doctrine―On India’s Debt to a
German Jurist, Professor Dietrich Conrad, Frontline, Volume 18, Issue 09, April
28-May 11, 2001.
The Germans call their Constitution not by the name ‘Constitution’ rather
they call it as the‘basic law’.This shows how much respect they owe to their
constitution. They not only treat this as a law but they treat it as a basic law
which not only establishes the organs of the government on one hand and
demarcates their power on the other hand but it is more than that. Just for the
better understanding of the concept of doctrine of basic structure, the
term‘basic law of the land’has been used hereunder this paper so as to easily
elaborate the concept of the doctrine.
The best example is of former Prime Minister of India, Mrs. Indira Gandhi
when she imposed emergency and during that time various amendments were
introduced in the Constitution by the Forty-Second Constitutional (Amendment)
Act, 1976 which was an attempt to change the Constitution. EvenNani A.
Palkhivalamade this point while arguing in theKeshavananda Case, which later
on proved true.
Article 368 of the Constitution of India reads as: Power of the 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
(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 for his assent and upon such
assent being given to the Bill, the Constitutionshall stand amendedin
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 resolution 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
Amendment by simple majority of each house of Parliament- it is like an
ordinary bill. Formation of new States, creation or abolition of Legislative
Councils (Articles 4, 169 and 239-A) is made by such procedure. Thus, amendment
at the instance of the States, or amendment by State Legislatures, is included
in such category. Amendments under this category are expressly excluded from the
purview of Article 368.
Means majority of‘total members of each House’ and by a majority of at
least two-third ‘present and voting’. All amendments, other than those referred
in amendment by simple majority, come within this category,e.g.,powers of
The States are given an important voice in the amendment of these matters
which are required to be ratified by the legislature of not less than one-half
of the States.
Even the Privy Purse was charged on the Consolidated Fund of India but now
it has been abrogated.
Madras High Court Judge,Justice T. Mathivananon November 27, 2010 while
speaking at the Law Day at Kumbakonam Bar Association said that basic structure
of the Constitution can be defined as those parts without which the Constitution
may loose its fundamental character. If these are violated, the person can
approach Supreme Court. The Constitution authorizes Parliament to impose new
restrictions upon law. Restrictions imposed by Parliament are subject to
judicial review. The amending power of Parliament is limited to the limit of not
violating the basic structure of the Constitution. The basic structure of the
Constitution can be amended but not be destroyed. Fundamental rights conferred
must be safeguarded, protected and shall not be violated or infringed by any
means and the people shall not be discriminated. The basic structure of the
Constitution can be amended, not destroyed.
It seems that idea of the doctrine is borrowed from the observation of
Supreme Court of theUnited States of Americamade as early as in the year 1919
inState of Rhode Island v. A. Mitchel Palmerwhich runs as follows:
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 termbasic elements or fundamental
featurespurport to have been used to connote the set of provisions, which may
require ratification by states.
Whether a feature isbasicor not is to be determined from time to time
by the court as and when the question arises.See generally,M. P. Jain,Indian
Constitutional Law(Haryana: LexisNexis, 2012).
(1980) 3 SCC 625.
Rule of Lawwas also held impliedly as basic structure in theGolakh Nath
Waman Rao v. Union of India,(1981) 2 SCC 362.
S. P. Sampath Kumar v. Union of India(1987) 1 SCC 124.
P. Sambamurthy v. State of Andhra Pradesh(1987) SCC 362.
Central Coal Fields Ltd. v. Jaiswal Coal co.1980 Supp SCC 471.
AIR 1993 SC 412.
S. R. Bommai v. Union of IndiaAIR 1994 SC 1918.
InState 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; inBhim
Singhji v. Union of India(AIR 1981 SC 234),Krishna Iyer and Sen, JJ.,asserted
that the concept of social and economic justice―to build a welfare state forms
a part of the of Basic Structure. Article 32, 136, 141 and 142 of the
Constitution conferring power on the Supreme Court were held as a Basic
Structure inDelhi Judicial Service Assn. v. State of Gujarat[(1991) 4 SCC
406]. The independence of judiciary within the limits of the Constitution
[seeSupreme Court Advocates on Record Association v. Union of India, (1993) 4
SCC 441;Gupta S. P. v. Union of India, AIR 1982 SC 149.,State of Bihar v. Bal
Mukund Sah(2000) 4 SCC 640), judicial review under Article 32, 226 and 227of
the Constitution (inChandrakumar L. v. Union of India, AIR 1997 SC 1125),
Preamble of the Constitution (inState of U. P. v. Dina Nath Shukla, AIR 1997 SC
1095), Independence of Judiciary (Kumar Padma Prasad v. Union of India, AIR 1992
SC 1213;State of Bihar v. Bal Mukund Sah, AIR 2000 SC 1296.), Secularism (see,Valsamma
Paul v. Cochin University, AIR 1996 SC 1011;Aruna Roy v. Union of India, AIR
2002 SC 3176.); The Constitution of in its Preamble clearly states that India is
a secular state but the insertion of Article 290A by the Constitution (Seventh
Amendment) Act 1956, Section 19 raises a question whether it is really a secular
state. The Article 290A reads as:Annual payment to certain Devaswom Funds.-A
sum of forty-six lakhs and fifty thousand rupees shall be charged on, and paid
out of, the Consolidated Fund of the State of Kerala every year to the
Tranvancore Devaswom Fund; and a sum of thirteen lakhs and fifty thousand rupees
shall be charged on, and paid out of the Consolidated Fund of the State of Tamil
Nadu, every year to the Devaswom Fund established in that State for the
maintenance of Hindu temples and shrines in the terroteries transferred to that
State on the 1stday of November, 1956, from the State of Travancore-Cochin.,[emphasis
added];Federalism (Bommai S.R. v. Union of India, AIR 1994 SC 1918), Separation
of Power (State of Bihar v. Balmukund Sah, AIR 2000 SC 1296.), free, fair and
periodic election (Kihoto Hollohan v. Zachilhu, AIR 1993 SC 412.) are all
declared to be the Basic Structure of the Constitution.
(2006) 8 SCC 212.
AIR 2007 SC 71.
AIR 2007 SC 861.
See,Indian Constitution: Sixty Years of Our faith, Indian Express; 2
See generally,M. P. Singh,Constitution of India(Lucknow: Eastern Book
Kesavananda Bharati v. State of Kerala(1973) 4 SCC 225.
AIR 1975 SC 2299.
Shankari Prasad v. Union of IndiaA.I.R. 1951 S.C. 2193.
Where several State legislatures carried out certain agrarian reforms in
Bihar, Uttar Pradesh and Madhya Pradesh by enacting legislation which may
compendiously be referred to as Zamindari Abolition Acts.
Right to acquire, hold and dispose of property which was deleted by the
Constitution Forty-Fourth Amendment Act in 1978 and a reasonable restriction was
imposed in the interest of the general public.
No person shall be deprived of his property save by the authority of law.
Kameshwar Singh v. StateAIR 1951 Pat. 91.
Article 13 (2) reads as: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.
The Patna High Court held that the Act passed in Bihar was unconstitutional
while the High Courts at Allahabad and Nagpur upheld the validity of the
corresponding legislations in Uttar Pradesh and Madhya Pradesh respectively.
Article 31Areads as:Saving of laws providing for acquisition of estates,
etc.-[(1) Notwithstanding anything contained in article 13, no law providing
(a) the acquisition by the State of any estate or of any rights therein or the
extinguishment or modification of any such rights, or
(b) the taking over of the management of any property by the State for a limited
period either in the public interest or in order to secure the proper management
of the property, or
(c) the amalgamation of two or more corporations either in the public interest
or in order to secure the proper management of any of the corporations, or
(d) the extinguishment or modification of any rights of managing agents,
secretaries and treasurers, managing directors, directors or managers of
corporations, or of any voting rights of shareholders thereof, or
(e) the extinguishment or modification of any rights accruing by virtue of any
agreement, lease or licence for the purpose of searching for, or winning, any
mineral or mineral oil, or the premature termination or cancellation of any such
agreement, lease or licence, 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]:
Providedthat where such law is a law made by the Legislature of a State, the
provisions of this article shall not apply thereto unless such law, having been
reserved for the consideration of the President, has received his assent:
Providedfurther that where any law makes any provision for the acquisition by
the State of any estate and where any land comprised therein is held by a person
under his personal cultivation, it shall not be lawful for the State to acquire
any portion of such land as is within the ceiling limit applicable to him under
any law for the time being in force or any building or structure standing
thereon or appurtenant thereto, unless the law relating to the acquisition of
such land, building or structure, provides for payment of compensation at a rate
which shall not be less than the market value thereof.
(2) In this article—(a) the expression ''estate'' shall, in relation to any
local area, have the same meaning as that expression or its local equivalent has
in the existing law relating to land tenures in force in that area and shall
(i) anyjagir, inamormuafior other similar grant and in the States of [Tamil
Nadu] and Kerala, anyjanmamright; (ii) any land held under ryotwari
(iii) any land held or let for purposes of agriculture or for purposes ancillary
thereto, including waste land, forest land, land for pasture or sites of
buildings and other structures occupied by cultivators of land, agricultural
labourers and village artisans;
(b) the expression ''rights'', in relation to an estate, shall include any
rights vesting in a proprietor, sub proprietor, under-proprietor,
tenure-holder,raiyat,under-raiyator other intermediary and any rights or
privileges in respect of land revenue.
Article 31Breads as:Validation of certain Acts and Regulations.-Without
prejudice to the generality of the provisions contained in article 31A, none of
the Acts and Regulations specified in the Ninth Schedule nor any of the
provisions thereof shall be deemed to be void, or ever to have become void, on
the ground that such Act, Regulation or provision is inconsistent with, or takes
away or abridges any of the rights conferred by, any provisions of this Part,
and notwithstanding any judgment, decree or order of any court or Tribunal to
the contrary, each of the said Acts and Regulations shall, subject to the power
of any competent Legislature to repeal or amend it, continue in force.
AIR 1951 SC 2193.
Article 13 (3)(a)reads as―law includes any ordinance, order, bye-law,
rule, regulation, notification, custom or usage having in the territory of India
the force of law;
Sajjan Singh v. State of Rajasthan 1 SCR 933.
The amendment inserted 44 Acts in the Schedule. It was noted that Articles
31A and 31B were added to the Constitution realizing the State Legislative
measures adopted by certain States giving effect to the policy of agrarian
reforms have to face serious challenge in the in the Courts of law on the ground
that they contravene the Fundamental Rights guaranteed under the Constitution.
Supran.39 at 962.
Article 226 reads as:Power of High Courts to issue certain writs.―(1)
Notwithstanding anything in article 32 every High Court shall have power,
throughout the territories in relation to which it exercises jurisdiction, to
issue to any person or authority, including in appropriate cases, any
Government, within those territories directions, orders or writs, including
writs in the nature ofhabeas corpus, mandamus,prohibition,quo warrantoandcertiorari,
or any of them, for the enforcement of any of the rights conferred by Part III
and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to
any Government, authority or person may also be exercised by any High Court
exercising jurisdiction in relation to the territories within which the cause of
action, wholly or in part, arises for the exercise of such power,
notwithstanding that the seat of such Government or authority or the residence
of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction
or stay or in any other manner, is made on, or in any proceedings relating to, a
petition under clause (1), without—
(a) furnishing to such party copies of such petition and all documents in
support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the
High Court for the vacation of such order and furnishes a copy of such
application to the party in whose favour such order has been made or the counsel
of such party, the High Court shall dispose of the application within a period
of two weeks from the date on which it is received or from the date on which the
copy of such application is so furnished, whichever is later, or where the High
Court is closed on the last day of that period, before the expiry of the next
day afterwards on which the High Court is open; and if the application is not so
disposed of, the interim order shall, on the expiry of that period, or, as the
case may be, the expiry of the said next day, stand vacated.
(4) The power conferred on a High Court by this article shall not be in
derogation of the power conferred on the Supreme Court by clause (2) of article
I. C. Golakh Nath and Ors. v. State of Punjab 2 SCR 762.
 2 SCR 762.
See,H. M. Seervai,Constitutional Law of India, 3111 (New Delhi: Universal
Law Publishing Company Pvt. Ltd., 2001) (2014).
Article 245 reads as:Extent of laws made by Parliament and by the
Legislatures of States.―(1) Subject to the provisions of this Constitution,
Parliament may make laws for the whole or any part of the territory of India,
and the Legislature of a State may make laws for the whole or any part of the
(2) No law made by Parliament shall be deemed to be invalid on the ground that
it would have extra-territorial operation.
Article 246 reads as:Subject-matter of laws made by Parliament and by the
Legislatures of States.―(1) Notwithstanding anything in clauses (2) and (3),
Parliament has exclusive power to make laws with respect to any of the matters
enumerated in List I in the Seventh Schedule (in this Constitution referred to
as the Union List).
(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause
(1), the Legislature of any State also, have power to make laws with respect to
any of the matters enumerated in List III in the Seventh Schedule (in this
Constitution referred to as the Concurrent List).
(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive
power to make laws for such State or any part thereof with respect to any of the
matters enumerated in List II in the Seventh Schedule (in this Constitution
referred to as the State List).
(4) Parliament has power to make laws with respect to any matter for any part of
the territory of India not included [in a State] notwithstanding that such
matter is a matter enumerated in the State List.
Article 248 reads as:Residuary powers of legislation.―(1) Parliament has
exclusive power to make any law with respect to any matter not enumerated in the
Concurrent List or State List.
(2) Such power shall include the power of making any law imposing a tax not
mentioned in either of those Lists.
He had been the part of majority inSajjan SinghCase.
See,H. M. Seervai,Constitutional Law of India, 3113-3114 (New Delhi:
Universal Law Publishing Company Pvt. Ltd., 2001).
Keshavananda Bharati Sripadagalvaru v. State of Kerala[A.I.R. 1973 S.C.
1461] was a consolidated case name of the following cases-Raghunath Rao Ganpati
Rao N. H. Nawab Mohammed Iftekhar Ali Khan v. Union of India, Shethia Mining and
Manufacturing Corporation Limited v. Union of IndiaandOriental Coal Co. Ltd.
v. Union of India.
The marginal note of the Article 368 was amended to read:‘Power of
Parliament to amend the Constitution and Procedure Therefor’. The procedure for
amendment contained in the original Article 368 was incorporated as Article
368(2). Article 368(3) provides- ‘Nothing in article 13 shall apply to any
amendment made under this article. For that very purpose, as a matter of
caution similar provision was added in Article 13 (4) which provide- Nothing in
this article shall apply to any amendment of this Constitution made under
Article 31C of the Constitution of India reads as: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 all
or any of the principles laid down in Part IV 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 19and 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.:
Provided that where such law is made by the Legislature of a State, the
provisions of this article shall not apply thereto unless such law, having been
reserved for the consideration of the President, has received his assent.
no law giving effect to the policy of the State towards securing all or any of
the principles laid down in Part IV 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;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:
Provided that where such law is made by the Legislature of a State, the
provisions of this article shall not apply thereto unless such law, having been
reserved for the consideration of the President, has received his assent.
Article 14 reads as:Equality before law.―The State shall not deny to any
person equality before the law or the equal protection of the laws within the
territory of India.
Article 1914 reads as:Protection of certain rights regarding freedom of
speech, etc.- (1) All citizens shall have the right—
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; [and]
(f) Sub-clause (f) omitted by s. 2, (Forty-fourth Amendment) Act, 1978, s. 2 (w.e.f.
(g) to practise any profession, or to carry on any occupation, trade or
Compulsory acquisition of property. Rep. by the Constitution (Forty-fourth
Amendment) Act,1978,S.6 (w.e.f.20.6.1979).
The Bench was consisted ofSikri, C.J., Shelat, Grover, Hegde, Mukherjea,
Jagannathan Reddy,JJ.(they formed the majority opinion withJustice Khanna);
whileA.N. Ray, Palekar, Mathew, Dwivedi, Beg,andChandrachud, JJ.were of the
minority view. The term basic structure‟ was used only by Justice Khanna, which
was lifted byChief Justice Sikriand adopted in his view of the
majority.;See,T. R. Andhyarujina,The Keshavananda Baharti Case: The Untold
Story of Struggle for Supremacy by Supreme Court and Parliament, 56 (New Delhi:
Universal Law Publishing Co. Pvt. Ltd., 2011).
(1584) 76 ER 637. which implies to examine what is the mischief that has
been aimed at by the provisions and the Constitution, a purposive interpretation
has to be followed and the purpose of that provision in light of the overall
purpose of the Constitution shall be examined and that interpretation has to be
applied which serves that purpose the best. The Constituent Assembly Debates,
the examination of all the provisions of the Constitution and the larger purpose
of the society shall be examined for that purpose.
According to the court in this case the word amend enjoys a very
restrictive connation and the court can look into the validity if it threatens
to nullify or destroy any fundamental feature of the Constitution. Kesavanandaalso
answered an important question which was left open byGolak Nath, as to whether
Parliament has the power to rewrite the entire Constitution and bring in a new
Constitution. The court answered this by saying that Parliament can only do that
which does not modify the basic features of the Constitution.
Palkhivala’s propositions submitted to the Court are reproduced in the
91973) 4 SCC 1.
(1973) 4 SCC 225, 405.
See, (1973) 4 SCC 225, 346-349.
(1973) 4 SCC 225, 462, Para 608.
(1973) 4 SCC 225, 512, Para 744(3).
Though the power to amend cannot be narrowly construed and extends to all
the Articles it is not unlimited so as to include the power to abrogate or
change the identity of the Constitution or its basic features; even if the
amending power includes the power to amend Article 13(2), a question not decided
in Golak Nath case, the power is not so wide so as to include the power to
abrogate or take away the fundamental freedoms; See(1973) 4 SCC 225, 462, Para
608 (b) and (c).
(1973) 4 SCC 225, 593, Para 1064.
Ibid., at 637, Para 1159.
Ibid., at 726, Para 1333.
Ibid., at 767, Para 1426.
Ibid., at 897, para 1784.
Ibid., at 930, para 1890; His Lordship went to an extent to put on record
that, it may be that Parliament may not be able to annihilate the entire
Constitution by one stroke of pen.But it can surely repeal or abrogate all
provisions in Part III.Article 368 permits Parliament to apply not only the
physician’s needle but also the surgeon’s saw.It may amputate any part of the
Constitution if and when it becomes necessary so to do for the good health and
survival of the other parts of the Constitution.; see (1973) 4 SCC 225, 933,
Ibid., at 910.
(1973) 4 SCC 225, 981.
T. R. Andhyarujina,The Keshavananda Baharti Case: The Untold Story of
Struggle for Supremacy by Supreme Court and Parliament, 56 (New Delhi: Universal
Law Publishing Co. Pvt. Ltd., 2011). He wrote, If a ratio had to be extracted
from the eleven judgments in the Kesavananda case it could not have been done in
the manner of asking judges to merely subscribe toThe View of Majoritypaper
on the day of pronouncement of the judgments in Court.Deriving a ratio from the
11 judgments could have been done only after a full hearing by a later
Constitution Bench to which the Petitions were remanded for disposal according
to the unanimous Order of the Court.No later Constitution Bench to dispose of
the petitions was convened to dispose-off the petitions.Alternatively, the
ratio could have been extracted by any later bench from the differing judgments
as had been done in other cases. He further remarks, Look whatever way, there
was no majority view, no decision and no ratio in Kesavananda case that
Parliament could not amend the basic structure or framework of the
Constitution.This was only the conclusion of Justice Khanna.By a strategic
roping in of his view in with six other judgesThe View of the Majoritya
majority of 7 Judges to 6 was created and approved by nine judges.
Indira Gandhi v.Raj Narain;(1975) Suppl. SCC 1.
See,AharonBarak,Unconstitutional Constitutional Amendments, Israel Law
Review, 326 [Vol. 44: 321].
(1973) 4 SCC 225,See also,para 1445.
This probably owes it roots from the Constitution (First Amendment) inShankari
Prasad,Dhirubha Devisingh Gohil v. State of Bombay, A.I.R. 1955 S.C.47,Sajjan
Singh v. State of RajasthanA.I.R. 1965 S.C.845,Golakh Nath and Ors. v. State
of PunjabA.I.R. 1967 S.C. 1643,Indira Nehru Gandhi v. Raj Narain,A.I.R. 1975
SC 2299, andWaman Rao v. Union of India,A.I.R. 1981 S.C. 271 cases.
AIR 2007 SC 861.The case arose out of an order of reference made by a
five-judges constitution bench in 1999. The Gudalur Janmam Estates (Abolition
and Conversion into Ryotwari) Act, 1969, that vested forest lands in the Janmam
estates in the State of Tamil Nadu, was struck down by the Supreme Court inBalmadies
Plantations Ltd. & Anr.v.StateofTamil Nadu(1972)2 SCC 133,as it was found
to be outside the scope of protection provided to agrarian reforms under article
31-A of the Constitution. By the Constitution (Thirty-fourth Amendment) Act, the
Janmam Act was inserted in the ninth schedule, which was challenged. In its
referral order, the constitution bench noted that, according toWaman Rao
&Ors.v.Union of India & Ors.[(1981) 2 SCC 362],amendments to the
Constitution made on or after 24.4.1973 (the date of theKesavananda Bharatijudgment)
inserting various laws in the ninth schedule were open to challenge on the
ground that such amendments are beyond the constituent power of Parliament since
they damage the basic structure of the Constitution. The referral order further
stated that the judgment inWaman Raoneeds to be reconsidered by a larger bench
so that it is made clear whether an Act or regulation which, or a part of
which, is or has been found by the courts to be violative of one or more of the
fundamental rights conferred by articles 14, 19 or 31 can be included in the
ninth schedule or whether it is only a constitutional amendment amending the
ninth schedule which damages or destroys the basic structure of the Constitution
that can be struck down.
Pramati Educational and Cultural Trust (Registered) and Others v. Union of
India and Others(2014) 8 SCC 1.
The Bench consists of the judges namely,R. M. Lodha, C.J. and A.K. Patnaik,
S.J. Mukhopadhaya, Dipak Misra and Ibrahim Kalifullah, JJ.
Article 15 of the Constitution of India reads as:Prohibition of
discrimination on grounds of religion, race, caste, sex or place of birth.― (5)
Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall
prevent the State from making any special provision, by law, for the advancement
of any socially and educationally backward classes of citizens or for the
Scheduled Castes or the Scheduled Tribes in so far as such special provisions
relate to their admission to educational institutions including private
educational institutions, whether aided or unaided by the State, other than the
minority educational institutions referred to in clause (1) of article 30.
Article 21A reads as:Right to education.―The State shall provide free and
compulsory education to all children of the age of six to fourteen years in such
manner as the State may, by law, determine.
Clause (5) of Article 25 reads as― Nothing in this article or in sub-clause
(g) of clause (1) of article 19 shall prevent the State from making any special
provision, by law, for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes
in so far as such special provisions relate to their admission to educational
institutions including private educational institutions, whether aided or
unaided by the State, or other than the minority educational institutions
referred to in clause (1) of Article 30.
(2012) 6 SCC 102.
Insofar as Article 15(5) enables the State to make special provisions
relating to admission to educational institutions of the State and educational
institutions aided by the State was considered inAshoka Kumar Thakur v. Union
of India & Ors.(2008) 6 SCC 1.
(2014) 8 SCC 1, 3.
Article 14 of the Constitution of India reads as:Equality before law.― The
State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.
He also argued that clause (5) of Article 15 of the Constitution fails to
make a distinction between aided and unaided educational institutions and treats
both aided and unaided alike in the matter of making special provisions for
advancement of socially and educationally backward classes of citizens or for
the Scheduled Castes and the Scheduled Tribes insofar as such special provisions
relate to their admission to such educational institutions.
(1992) 3 SCC 666.
Writ Petition (Civil) No. 13 of 2015 in the Hon’ble Supreme Court of
Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789.
H. M. Seervai,Constitutional Law of India, 3161-3162 (New Delhi: Universal
Law Publishing Company Pvt. Ltd., 2001).
(2006) 8 SCC 212.
That there shall not be any obliteration of any of the Constitutional
It means that there should not be any alteration in the existing structure
of the equality code.
AIR 1973 SC 1461.
Ibid.,at para 102.
AIR 2007 SC 861.
Subhash C. Kashyap,Our Constitution, 340 (New Delhi: National Book Trust,
One of the Act, namely the Tamil Nadu Backward Class Act, 1993 which
provide for 69 percent reservation and runs counter to the Apex Court’s ruling
in theMandal Case[1992 Supp (3) SCC 217]which was inserted in the Ninth
Schedule by the Seventy-Sixth Amendment, 1994. This clearly shows how the
Parliament used this Schedule to avoid the inconvenience of judicial review.
M. Sundra Rami Reddy and V. N. Maya,Judicial Review of Supreme Court
Judgment on IX Schedule of the Constitution;http://www.legalserviceindia.com/articles/jud_sc.htm,last
retrieved on 02.12.2014.
...let the Constitution remain sovereign, and let the people retain their
sovereignty by giving these rights into themselves. If that will happen, then
alone you will find that the freedom will survive.
See,Inder Malhotra-When in Doubt, Amend; Indian Express; 21 August 2009;
Neither the Supreme Court’s ‘basic structure’ judgement nor Indira Gandhi’s
suspension of judges nor even the proclamation of emergency halted the supremacy
between the Parliament and the Supreme Court.
Justice J. S. VermainS. P. Gupta v. Union of India1993(4) SCC 441.
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