The problem that we faced during the commencement of the Constitution was
that on the one hand we had the directive principles of state policy
(hereinafter mentioned as DPSPs) and on the other we had the fundamental rights.
Under Article 37 of the Indian constitution, it is very clearly provided that
DPSPs are not enforceable in any court of law but are fundamental in the
governance of the country and the state shall implement DPSPs in the making of
For example: Article 39(b)&(c) particularly aims at securing that that the
ownership and control of the material resources of the community are so
distributed as best to sub serve the common good; that the operation of the
economic system does not result in the concentration of wealth and means of
production to the common detriment.
It means that if the state had to implement Article 39(b) & (c) and other DPSPs
which is the duty of the state as per Article 37, the state had to encroach upon
the rights to property of the citizens. The reason being that at the time of the
commencement of the Constitution the prime focus was on building infrastructure
and for that we needed land which were largely in the hands of zamindars.
Therefore, several land reforms Acts were passed. One of them was the Bihar Land
Reforms Act, 1950 to abolish zamindari system which was subsequently challenged
before the court of law. [Kameshwar Prasad singh v. state of Bihar
1951 Pat 246)]It was held to be unconstitutional as it was violative of Article
19(1) (f) and Article 14 read with Article 13(2).
The problem before the state was that as per Article 37 it was mandatory for it
to implement DPSPs by making laws and as per the DPSPs the laws for acquisition
of land and abolition of zamindari and princely state system was essential
particularly in the light of Article 39(b) & (c). Any such law would involve the
acquisition of property and on the other hand the right to property was a
Hence according to Article 19(1) (f) and Article 14 read with Article 13(2) any
law which violates the right to equality and right to property would be
unconstitutional. Also, the fundamental rights could be enforced directly
through Article 32 or 226 whereas the DPSPs were declared to unenforceable under
Article 37. Thus to overcome this issue the first amendment to the Constitution
was brought about to create saving clauses in the form of Article 31A and 31B
read with the 9th schedule.
The effect was that if a land reform act was made for the purpose of acquisition
of land, it will be valid despite Article 14, 19(1)(f) and 13(2) and it would be
saved under Article 31A. If that law is put in the 9th schedule then the law
will be protected from any judicial review as it goes beyond the scope of
judicial review as per Article 31B.
However the first amendment itself was challenged in Shankari Prasad singh
Deo v. Union of India
(1951 AIR 458) and it was contended that the word
as used in Article 13(2) includes not only ordinary legislations rather
it also includes the law of amendment i.e. any law by which Constitution is
amended will also be hit by the prohibition of Article 13(2). Thus the
contention was that the fundamental rights can't be taken away or abridged even
by an amendment of the Constitution.
The court held that the word law
under Article 13(2) doesn't include the
law of amendment rather it includes only the ordinary legislation i.e. if the
state makes an amendment and thereby it takes away or abridges the fundamental
rights or it enables itself to do so then such amendment will not be
unconstitutional. The first amendment was held to be constitutional and thus the
Land reforms Act were held to be valid.
Post this, several land reforms Acts were made and land acquisition was done. By
17th Amendment, around 44 land reforms Acts were inserted in the 9th schedule.
Again, 17th amendment and the first amendment were challenged in Sajjan singh
v. State of Rajasthan
(1965 AIR 845) where the court reiterated the same
view that Article 13(2) doesn't include the law of amendment and thus
constitutional validity of both the amendments was upheld.
However the court in Golaknath v. State of Punjab
(1967 AIR 1643)
overruled the earlier ruling and held that the word law
in Article 13(2)
includes law of amendment as well. In fact Article 31A & B along with
9th schedule were declared to be unconstitutional. However in the light of grave
consequences of any retrospective application of this judgement, the court
applied the doctrine of prospective over ruling i.e. Article 31A & B and
9th schedule would be void only from the date of judgement in Golaknath case
and whatever has been done earlier will remain as it is.
What is the basis of this judgement?
The court observed that the power of amendment is not provided in Article 368,
it is only the procedure of amendment therefore the power of amendment has to be
located somewhere. The court examined the Constitution and found that the words
power of amendment
is not found explicitly anywhere in the Constitution
not even in any of the entries expressly or impliedly in the 7th schedule.
Thus, the court inferred that the topic amendment would lie in Entry 97 of List
I of schedule 7 read with Article 245. The court held that the source of law
making power is Article 245 and therefore the source of amending power also is
Article 245 read with Entry 97, List I. Article 245 is declared expressly to be
subject to the provisions of the Constitution and therefore the amending power
also as it is derived from Article 245 itself will be subject to the provisions
of the Constitution. Article 13(2) is one such provision of the Constitution;
therefore the amending power also is subject to Article 13(2).
Thus, as per Article 13(2), the state can't make laws (not even the laws of
amendment) to take away or abridge the fundamental rights.
While the Supreme Court on one hand held Article 31A & B as unconstitutional, on
the other hand in Madhav Rao Scindia v. Union of India
(1971 AIR 530)
popularly known as Privy purses case and RC Cooper v. Union of India
AIR 564) popularly known as Bank Nationalization Case
, the court held
that compensation to be given by the state upon acquisition of land has to be a
just, fair and reasonable compensation.
Thereafter, the Parliament in order to set the controversy at rest brought about
the 84th amendment whereby clause 4 was added to Article 13 and Article 368 was
amended wherein the first clause was inserted and clause 3 was added and the
word power was added in the marginal heading.
At last what needs a special mention is the historic case His holiness
Kesavananda Bharti sripadagalvaru v. State of Kerala
(1973) 4 SCC 225.
Shri Raghunath Rao Ganpat Rao NH Nawab Mohammad Iftikhar Ali Khan v. Union of
India; Shethia Mining & Manufacturing Corporation limited etc. v. Union
of India; Oriental Goal Co. Ltd. V. Union of India
were consolidated with
Keshavnanda Bharti case
The following aspects were considered:
What should be the rule of interpretation? It should be purposive interpretation and the mischief rule.
What is the source of amending power? Earlier also Article 368 only was the source of amending power and now after
the 24th amendment also, Article368 itself is the source of amending power.
What was implicit in Article 368 before the 24th amendment has been made
explicit by the said amendment.
What is the meaning of word amend or amendment? Are there any
limitations upon it? The court held that the society through the freedom struggle had aimed
at the larger socio-economic revolution which was the ultimate goal of the
Indian society. The Indian Constitution is first and foremost a social
document and political independence was only one step towards a larger
socio-economic revolution. The said socio-economic revolution would be based
upon certain basic principles which are integral to the Indian society.
These principles are indispensable and the entire vision of the Constitution
was based upon these principles. The word amend has an implied
limitation by the process of amendment. The very essence of the vision of
the Constitution can't be taken away as these principles form the basic
structure of the Indian Constitution and can't be taken away in any
circumstances as long as the Constitution and the society exists.
What is meant by constituent power? The Parliament's amending power also is constituent power. Constituent power
means the power to create or to alter. Even the Constituent Assembly which
created the Constitution did so in the exercise of its constituent powers.
The constituent powers of the Constituent Assembly was derived directly from
the society whereas the constituent powers of the Parliament; the Parliament
being a derivative body, is derived from the Constitution and therefore it
will be limited by the essential principles of the Constitution. The
Parliament can't rise above the Constitution and thus can't take away or
abridge the basic structure of the Constitution.
Does Article 13(2) control Article 368? Justice Sikri did not reply to this question but J. Hegde and J. Mukherjee
held that Article 13(2) refers to ordinary legislation and Article 368
refers to constituent powers of Parliament to amend the Constitution and
thus, Article 13(2) does not control Article 368.
Are fundamental rights/DPSPs amendable? They are amendable but only to the extent that basic structure is not
Does the doctrine of implied limitation apply upon Indian
constitution? Yes there are limitations in the form of basic structure of the
What is the scope of judicial review in reference to Article 368?
Judicial review can be done of the procedure of amendment as well as in a
substantive form as to whether the basic structure has been violated or not.
What is the scope and extent of amending powers of Parliament? Parliament can't extend Article 368 so as to make the procedure of amendment
extremely flexible or to make it extremely rigid. At the same time, it can't
amend the Constitution so as to acquire for itself unlimited powers of
amendment. The word Notwithstanding in Article 368 has to be given a
restricted application. It is always subject to the basic structure of the
Is not the concept of basic structure a vague concept?
The Supreme Court will decide a case only upon the issues raised before it only
in that particular case. Any other issue which was not raised but was decided
will be obiter dicta and will not have any precedent value.
In the Keshavnanda Bharti case
the issue was not as to what are the
elements of basic structure rather the issue was as to what are the limitations
upon the amending powers of the Parliament. Thus, any enumeration of all the
elements of basic structure would have been a futile exercise. Moreover, it is
not possible to enumerate all the elements in once case.
Simply because a rigid definition can't be given, the doctrine of basic
structure doesn't become a vague doctrine. There are certain concepts like
natural justice, negligence which also can't be rigidly defined but they are
principles of law which are effectively applicable.
The court laid down a test for the elements of basic structure. It held that the
ultimate goal of Constitution is to promote fraternity and thereby to assure
dignity of an individual and also even the unity and integrity of the nation.
The court held that the test for element to be a part of basic structure is as
to what will be the consequence if that element is removed from the
If the effect is that fraternity will be lost and consequently, the unity and
integrity of the nation and dignity of an individual will be materially affected
then that element would be a part of the basic structure however if upon
removing that concept, the above effect is not found then it can't be a part of
the basic structure. For instance: removal of social justice or secularism would
certainly affect fraternity whereas removal of right to property would not.
Hence, the former would be a part of the basic structure whereas the latter
Removal of socialism and secularism would result into a loss of faith of the
people in the Constitution and therefore a loss of fraternity whereas removal of
right to property will not result into any such apathy in the society. Hence,
right to property would not be a part of the basic structure.
Other important rulings on this subject are M. Nagaraj v. Union of India
SC) and IR Coelho (dead) by LRs v. State of Tamil Nadu
In the former case, the court made the following important observations:
- Amending power of Parliament is subject to both substantive and
- Doctrine of Basic structure relates to constitutional identity and
continuance of constitutional identity as well as the supremacy of the
- Theory of basic structure is about theory of overarching principles.
There are certain systematic principles which cut across the various express
provisions of the Constitution and which bind the various provisions with
each other and provide vitality and coherence to the Constitution. These
principles provide utility and value to the express provisions of the
- The real test for any rights is not the right test rather it is the
essence of the right test.
In, IR Coelho case, the court held that it is not only the essence of right test
rather it is the essence of the rights test
. The examination of violation
of any right or the essence of that right shall be done not only by examining
that particular provision rather the entire provision has to be examined as a
A synoptic view of all the fundamental rights and DPSPs has to be taken and all
the principles shall be examined as a whole in order to see whether that
particular right or any other right has been violated or not.
Another important point that was observed in the said case was that the law put
under the 9th schedule is beyond the scope of judicial review but if a bad law
is put in the 9th schedule then the amendment by which law was put in the
9th schedule can always be challenged on the ground of violating basic
structure. Once the law is found to be violative of basic structure, the
amendment will become unconstitutional and law will thus be brought out of the
protection of the 9th schedule and law automatically in the same case will be
declared to be unconstitutional.
However, this judgement will not be applicable on the amendments brought about
before 24th April, 1973 as basic structure doctrine applies from that date. As
and when, a case is brought before the court, that particular amendment will be
Written by: Komal Chauhan
Research Scholar at GGSIPU, Delhi