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BASIC STRUCTURE OF THE CONSTITUION

COMPILED BY

11-Apr-14

VIPUL GAUR LLB. 3RD YEAR

2019

BASIC STRUCTURE OF INDIAN CONSTITUION

LAW

Law is as defined the system of rules which a particular country or community

recognizes as regulating the actions of its members and which it may enforce by the

imposition of penalties.

Law is not static it keeps on changing with time, in order to deal with these changes

AMENDMENT to law becomes the basic ingredient for the purpose. Amendment as the

dictionary defines it as the modification of materials by the addition of supplemental

information; the deletion of unnecessary, undesirable, or outdated information; or the

correction of errors existing in the text1. Amendment is basically done to bring new terms

to the existing laws.

Law is nothing but the interpretation of statues. This interpretation is different for

different learned jurist which creates the difference in the judgement2.

The Constitution of a country represents the Grundnorm-the basic norm-comprising of

fundamental principles, laying down the foundation of a civil society. While on the face

of it, it appears that the Constitution of India 1950 is neither too flexible nor too rigid in

practice; it has been amended almost 98 times in 62 years. The flexibility of the Indian

Constitution has often been criticized as being the bane of our Constitutional system.

_____________________________

1) http://legal-dictionary.thefreedictionary.com/amendment

2) Kesavnanda Bharti v. state of kerela reported in AIR 1973 SC at page no. 225. This case was

decided by a bench of thirteen judges. It was till date the largest bench in INDIA. In the mentioned

case six judges had a similar decision the other six had a separate judgement and Justice

Khanna had an opinion different from all the other jurists, the case was decided with 7:6 majority.

It is also said that the whole of Indian constitution would have been different.

BRIEF HISTORY:-

A careful look at Indian history shows that there were many competing visions for the

future of India in the lead-up to independence. Subhash Chandra Bose, a leader in the

pre-independence Congress Party, favored a stronger, more authoritarian state and

modeled on the fascist governments of the 1930s and 1940s.3 On the other extreme,

Mahatma Gandhi advocated a more decentralized and self-sufficient society.4 Neither

Bose’s nor Gandhi’s vision would gain much traction during the Constitution’s drafting.

Instead, one of the most entrenched debates at the Constituent Assembly and one that

would provide the historical seeds of the basic structure doctrine was between the

similar, but competing ideologies of Jawaharlal Nehru and Sardar Vallabhbhai Patel.5

Nehru and Patel were the two most powerful political leaders of the Congress Party at

the end of British rule.6 Indeed, Nehru became the country’s first Prime Minister only

upon Gandhi’s request that Patel step aside (Patel had been supported by more

members of Congress to lead the party at independence).7 Patel was a proponent of

many of the principles of laissez-faire economics.8 Nehru, on the other hand, believed in

large-scale property redistribution and nationalization to correct past social injustices

and lay the groundwork for a prosperous economy.9 This position was popular amongst

the poverty-stricken electorate, and even today polls indicate that the overwhelming

majority of Indians believe that there should be a limit on possessing a certain amount

of land and property.

It is also said that Pt. Nehru was of the view that no compensation should be given on

land acquisition by government but Sardar Patel demanded full compensation. In the

final version of the Constitution an ambiguity was drawn between both the views. Patel’s

early death in 1950 ensured not only that Nehru would never again be seriously

challenged for the post of Prime Minister, but also that he could more easily push his

original vision of the right to property. When early judicial decisions signaled that the

courts would limit the government’s ability to expropriate property, Nehru’s government

acted swiftly. It accordingly to keep Pt. Nehru’s view at priority passed two amendments

which would give the ball in their court.

____________________________________________

3) Lloyd, I. R. & Susanne, H. R.: In Pursuit of Lakshmi, (University of Chicago Press, 1987) at 69. 4) ibid at 69–70. 5) ibid at 69.

6) ibid at 68–74. 7) ibid at 71–72. 8) ibid at 71.

9) ibid at 70–72;

In 1951, it passed the first amendment to the Constitution which created articles 31A

and 31B.10 These articles would provide the origin of the dispute that would ultimately

create the basic structure doctrine. Article 31A stated that any acquisition of property by

the state through law could not be called into question under the rights to property,

equality, freedom of speech, or freedom to practice one’s profession.11 Article 31B

created the Ninth Schedule, a list of laws inserted in the back of the Constitution.12 Laws

that were placed into this schedule through Constitutional amendment could not be

found invalid by the judiciary on the basis of any of the fundamental rights.13

Parliament had amended the Constitution to shield not only expropriation laws, but

potentially any law from fundamental rights review. With the very idea of meaningful

judicial review under attack, the Court’s potential responses were limited. It could

acquiesce to the amendment, admitting that it could be stripped of its power of judicial

review, and hope a later Parliament would remove the offending articles, or,

alternatively, it could search for a way to defend judicial review. Property owners had

challenged the amendments which placed law reforms in ninth schedule on the ground

it is violated of article 13(2).14

NECESSITY FOR AMENDMENTS

Provisions for amendment of the constitution is made with a view to overcome the

difficulties which may encounter in future in the working of the constitution. The time is

not static; it goes on changing .The social, economic and political conditions of the

people go on changing so the constitutional law of the country must also change in

order toward it to the changing needs, changing life of the people.

_________________________________

10) The Constitution of India 1950 at article 31A and article 31B

11) ibid

12) ibid

13) ibid

14) Article 13 (2)-: "The State shall not make any law which takes away or abribidges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be

void.

If no provisions were made for amendment of the constitution, the people would have

recourse to extra constitutional method like revolution to change the constitution.

The framers of the Indian constitution were anxious to have a document which could

grow with a growing nation, adapt itself to the changing circumstances of a growing

people. The Constitution has to be changed at every interval of time. Nobody can say

that this is the finality. A constitution which is static is a constitution which ultimately

becomes a big hurdle in the path of the progress of the nation.15

POWER TO AMEND THE CONSTITUTION

Article 368 was earlier referred to as the PROCEDURE FOR THE AMENDMENT

OFTHE CONSTITUTION. The power to amend the constitution was given to the Parliament which could change or modify the constitution as per its discretion.

The Twenty fourth amendment16 to the constitution gave article 368 a new dimension and extra powers were given to the Parliament for the amendment of the

constitution. The following changes were done to article 368:-

1) Title was changed to Power to amend the constitution and the procedure thereof.

2) Clause (1) gave the constituent power to the Parliament to amend the constitution by way of addition, variance or repeal any provision of the

constitution.17

3) Clause (2) made it obligatory for the President to give his consent to a bill if it is passed by both the houses.18

_________________________________

15) A R Antulay

16) Article 368 “POWER TO AMEND THE CONSTITUTION AND THE PROCEDURE THEREOF”.

The amendment came in 1971 and it was in effect from 5/11/1971.

17) Article 368 (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 Constituition in

accordance with the procedure laid down in this article

18) Article 368 (2) An amendment to this Constitution may be initiated only by the introduction of a

Bill for the purpose in either House by a majority of the total membership of that house and by

majority of not less than two thirds of the members of that House present and voting, [it shall be

presented to the President who shall give his assent to the Bill and thereupon] the Constitution shall

stand amended in accordance with the terms of the Bill:

PROVIDED that if such amendment seeks to make any change in—

a) Article 54, article 55, article 73, article 162 or article 241or

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,

(Continued)

The FOURTY SECOND AMENDMENT 19 further amended article 368

expressing the power of Parliament to amend the constitution as unlimited

and absolute. Also the amendments made by the Parliament were excluded

from any interference from any court in INDIA. Thus by this amendment the

Parliament in order to make it more powerful and absolute tried to save its

amendments from judicial review. This amendment was liable to be

challenged as article 3220 of the Constitution give Supreme Court and article

22621 of the Constitution gives High Court the power to enforce the rights and

Parliament by the means of the above mentioned amendment tried to take

this power from the Supreme Court and the High Court and thus tried to

hamper the basic structure of the Indian Constitution.

PROCEDURE FOR AMENDMENT OF THE CONSTITUTION

Broadly speaking there are two modes of amending the Constitution 22

A) Formal method

B) Informal method

Under the informal method, the letter of the law does not change but its

meaning and importance change.This method includes amendment by

1. Changing a well established convention

2. Amendment by change in the interpretation of the provision of the Constitution

_________________________________

(Continued)

The amendment shall also require to be ratified by the Legislature 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.

19) The forty second amendment came into force in 1976 and came into effect from 3-1-

1977, 1-2-1977 & 1-4-1977)

20) Article 32 provides a right to move to Supreme Court for the enforcement of right also

clause (2) of the article gives Supreme Court the power to issue writs including habeas

corpus, mandamus, prohibition, quo warranto and certiorari.

21) Article 226:- Notwithstanding anything in Article 32 every High Court shall have powers,

throughout the territories in relation to which it exercise 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 of habeas corpus, mandamus, prohibitions, quo

warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by

Part III and for any other purpose.

22) “Constitutional law of India” Prof. Narender Kumar Eighth Edition at page 1004.

The law interpreted by the Supreme Court is considered to be a law of land23,

it is also considered to be binding throughout the country in all courts

subordinate to the Supreme Court, but it is also true that a judgement or a

decree passed by the Apex Court is not binding on itself24. So accordingly the

Court can review the judgements given by its jurists and if it finds an error in

its previous decree or judgement it can at any time overrule its earlier

decision. Since is law is just the interpretation of the Constitution, therefore

the constitution remains static but its operation and applications keep on

changing with giving new meaning to the Constitutional provisions.

Under the FORMAL METHOD OF AMENDMENT the written

provisions of the Constitution are amended by the way of either

addition or repeal.

PROCEDURE FOR AMENDMENT IN THE INDIAN

CONSTITUTION

A bill to amend the Constitution may be introduced in either house of

Parliament. It must be passed by each House by a majority of the total

membership og the House and by a majority of not less than 2/3 of the

members present and voting. When a Bill is passed by both the Houses it

shall be presented to the President for his assent who shall give his assent to

bill and thereupon the Constitution shall stand amended25. But such a bill

which seeks to amend the Provisions mentioned in Article 368 requires in

addition to the special majority, ratification by the ½ of the states.

I. AMENDMENT BY SIMPLE MAJORITY: For those amendments that can be effected by simple majority requires

the passing of an ordinary law. The amendments contemplated under

article 4, article 169 and article 239-A and para 7 and 21 of the Fifth and

Sixth Schedules respectively 239-A fall within this class26. ________________________________

23) Article 141:- law declared by the Supreme Court shall be binding on all courts within the

territory of India

24) Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845

25) Twenty Fourth amendment to constitution of India which came in the year 1971

26) Art 4:- Creation of new states or reconstruction of existing states; Art 169(3): - Creation or

abolition of Upper Chambers in the States; and Art. 239-A :- Constitution of Centrally

administered areas.

2) AMENDMENT BY SPECIAL MAJORITY

The amendments which can be effected by a special majority as laid down in

Article 368 (2). All constitutional amendments other than those referred to

above come within this category and must be effected by a majority of the

total membership of each House of Parliament as well as by a majority of not

less than two third of members present and voting.

3) AMENDMENTS BY SPECIAL MAJORITY AND

RACTIFICATION BY STATES

Article which require, in addition to the special majority, ratification by not less

than ½ of the State Legislatures . These are the fundamental matters where

States have important power under the Constitution and any unilateral

amendment by the Parliament may vitally affect the fundamental basis of the

system built up by the constitution. This class of Articles consists of

amendments which seek to make any change in the provisions mentioned in

Article 368.

The following provisions require in addition to special majority, ratification by

the States.

I. The election and manner of election of the President27

II. The extent of the executive power of the Union28

III. The extent of the executive power of the State29

IV. Provisions dealing with the Supreme court30

V. Provisions dealing with the High Courts in the states31

VI. High Courts of Union Territories32

VII. Distribution of legislative power between the Union and the State33

VIII. The representation of States in the Parliament34

______________________

27) Article 54 and article 55.

28) Art. 73

29) Article 162

30) Chap. IV of Part V

31) Chap V of Part VI

32) Art. 241

33) Chap. I of Part XI

34) Fourth Schedule

IX. Seventh Schedule to the Constitution35

X. Article 368 i.e. the power and procedure to amend the Constitution36.

In Kihota Hollohon v. Zachilhu, 37 Para 7 of the Tenth Schedule to the

Constitution inserted by the Fifty second amendment38 to the

Constitution, excluding the jurisdiction of all Courts including the

Supreme Court under Article 136 and the High Courts under article 226

and 227, on the question of disqualification on the ground of defection,

was struck down as unconstitutional since it was not enacted

complying with the requirement of Proviso to Clause (2) of Article 368

which required ratification of the amendment bill by at least half of the

State Legislatures.

In Re, Berurabi union (I)39 it was held that the power to amend the

Constitution conferred on Parliament includes the power to amend article I

and would include the power to cede national territory in favour of a

foreign state.

An amendment may specify the date of its commencement or it may leave

it to the President to bring it into effect from such date as he may notify as

per his will40.

In U.S.A. amendment of the Constitution may be proposed only by

Congress, with the approval of two – thirds of majority of both the Houses

or a convention summoned on an application from two – thirds of the

members of both Houses. The proposed amendment must subsequently

be ratified by at least three- fourths of the total number of the State

Legislatures or by Conventions in three-fourths of the total number of the

States.

_________________________

35) List I, II and III, Schedule VII.

36) Article 368 provides the Power to the Parliament to amend the constitution and its

procedure thereof.

37) AIR 1993 SC 412

38) The fifty second amendment came in the year 1985 and came into effect from 1-3-

1985

39) AIR 1960 SC 845: (1960) 3 SCR 250

40) A.K. Roy v. Union of India, (1982) 1 SCC 271: AIR 1982 SC 710se House

In Switzerland, no amendment to the Constitution can be effected without

resorting to a detailed referendum.

In Australia, the Constitution can be altered only by an Act passed by an

absolute majority in both Houses, or in case House refers to pass it, by an Act

passed by an absolute majority in either House, for the second time, after an

interval of three months. But in either case, the Act must be subjected to a

referendum in each state. If in a majority of the States, a majority of the voters

approve the amendment and if a majority of all the voters also approves, it

shall be presented to the Governor-General for the Royal assent.

The above mentioned points make it clear that the procedure for the

amendment of Constitution is much more difficult in America, Australia and

Switzerland than in India. One can, therefore, safely say that the Indian

Federation will not suffer from the faults of rigidity of Legalism. It is a

distinguishing feature that it is a flexible federation.41

The framers of the Indian Constitution were keen to avoid excessive rigidity.

They were anxious to have a document which could grow with the growing

nation, adapt itself to the changing need and circumstances of a growing

people. The nature of the ‘amending process’ envisaged by the framers of our

Constitution can be best understood by referring the following observation of

late Prime Minister Pt. Nehru, “While we want this Constitution to be solid and

permanent as we can make it, there is no permanence in the Constitution.

There should be certain flexibility. If you make anything rigid and permanent

you stop the nation from growing, of a living, organic people…………………

In any event, we could make this Constitution so rigid that it cannot be

adapted to changing conditions. When the word is in a period of transition

what we may do today may not be wholly applicable tomorrow.”

It is evident from the fact that the framers of Indian Constitution were aware

that if the Constitution would be so flexible, it would then only be a card in the

hands of the ruling party, which could be able to mold it in any way they like,

and also if it would be too rigid then it would be able to cope with the growing

needs of the society. Hence the makers of the Constitution adopted a middle

path. Therefore the Indian Constitution is neither too rigid to accept necessary

changes nor it is too flexible for undesirable changes.

_______________________________

41) Dr. Ambedkar, - CAD Vol. IX, p. 1569

Willis in the book on Constitutional law of United States says, “If no provision

for amendment were provided, there would be constant danger of revolution.

If the method for amendment were too easy, there would be the danger of too

hastily action all the time. In either case there would be danger of the

overthrow of our political institutions. Hence the purpose for providing for the

amendment of the Constitution is to make it possible gradually to change the

Constitution in an orderly fashion as the changes in social condition make it

necessary to change the fundamental law to correspond which such social

changes.” 42

AMENDMENTS TO INDIAN CONSTITUTION

The President of the Constitution Assembly was Dr. Rajendra Prasad. The

session of the Constituent Assembly was held from 14 to 30 August 1947.

The Advisory committee recommended a FEDERAL CONSTITUTION with a

strong centre. After going through various recommendations of the Advisory

Committee and several resolutions of the Assembly and a few Supplementary

Reports of the Advisory Committee a resolution was moved on 29 th August,

1947 for the appointment of Drafting Committee. The drafting committee

prepared a Draft Constitution. The general debate on the Draft Constitution

began on 4th November and lasted upto 9th November, 1948. The clause by

clause consideration of the Draft Constitution commenced on 15 th November,

1948. One hundred and fourteen days were spent on the consideration of the

Draft Constitution. The Drafting Committee, since its election on 29th August,

1947, sat for one hundred and forty- one days. Not only the members of the

Drafting Committee but also other members of the Assembly were vigilant

and scrutinized the Draft in all its details. Not only each article in the Draft ,

but practically every sentence and every word was carefully considered by

the Assembly. The first Draft Constitution as prepared by the Drafting

Committee to the Constituent Assembly contained 315 articles and 8

Schedules. At the end of the Clause – by - clause consideration, it contained

368 articles. In its final form, it contained 395 articles and 8 schedules. On

26th November, 1949 the Constituent Assembly adapted, enacted and gave to

India the Constitution of India.

Till present date there have been as many as ninety eight amendments

_________________________

42) The statement was quoted in the case of Kesavnanda Bharti v. State of Kerala, AIR

1973, SC 1461.

done to the Constitution. The very first amendment was done in 1951 which

came into effect on 18-6-1951 and the last ninety eighth amendment was

done in 2012.

Among the amendments done to the Constitution forty second amendment43

is considered to be mini Constitution, also the forty second amendment added

the words SOCIALIST, SECLUAR to the Preamble.44

The forty second amendment was basically added to remove the difficulties

created by the Supreme Court in its decision in the case of Kesavnanda

Bharti v. State of Kerala45. The amendment added clause (4) and clause (5)

to article 368 of the Indian Constitution46. This amendment was challenged in

the Court and it was held that the Parliament cannot have unlimited amending

powers.

BASIC STRUCTURE

Basic structure is the systematic rules, principals underlying and connecting

provisions of the Constitution. They give coherence and durability to

Constitution. These principals are part of constitutional law even if not

expressly stated. This doctrine has been initially been developed from the

German Constitution.47

The "Basic Structure" doctrine is the judge-made doctrine whereby

certain features of the Constitution of India are beyond the limit of the powers

of amendment of the Parliament of India. Different jurists have a different

______________________________ 43) Forty second amendment act came in 1976 which came into effect from 3-1-1977, 1-2-

1997 & 1-4-1977.

44) Before the forty second amendment act 1976 socialist and secular were not present in

the preamble but after the amendment these were added and the new words were read as

WE THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a [

SOVERIEGN SOCIALIST SECLULAR DEMOCRATIC REPUBLIC]…………………ENACT

AND GIVE TO OURSELVES THIS CONSTITUTION.

45) AIR 1973 SC 1461

46) Article 368 (4), “ No Constitutional amendment ( including the provisions of Part III) or

purporting to have been made under article 368 whether before or after the commencement

of 42nd amendment act 1976 shall be called in question in any court on any ground.

Article 368 (5) declares that there shall be no limitations whatever on the constituent power of

Parliament to amend by way of addition, variation, or repeal the provisions of Constitution

under this Article.

47) Constitutional Law of India, Dr. J.N. Pandey, edition 2013 at page 814.

Opinion as to what constitutes the basic structure. If according to Justice Sikri

Basic Structure is the basic foundation, i.e. , dignity and freedom of human

being , according to justice Khanna Democratic government cannot be

transformed into dictatorship, if it is done it would abrogate the basic structure

of the Constitution.

So basically basic structure does not have a precise definition and may be

some words which could define the basic structure. A Jurist while concluding

on what would be termed as a basic structure would have to understand deep

into what the PREAMBLE to the Constitution speaks or as to what the

amendment seeks to achieve.

In I.R. Coelho v. State of kerala48 Supreme Court held that there are certain

parts of the Constitution including Article 1549, article 2150 r/w article 1451,

article 1952 constitute the core values, which if abrogated would change the

Basic Structure of the Indian Constitution.

In M. Nagraj v. Union of India53 a 5 Judge bench of the Supreme Court

enumerated certain essentials of the basic structure of the Constitution, but

they also made it clear that they were only illustrative and not exhaustive.

Also the basic structure are the principles underlying and connecting the

Constitution which give coherence and durability to the constitution.

AMENDMENT TO FUNDAMENTAL RIGHTS

In Ramesh Thaper v. State of Madras, 54 it was held by the Supreme Court

that, “ freedom of speech and expression” under article 19 (1)(a) was so

comprehensive as to render a citizen culpable even if he advocated murder

and other crime of violence.

After the decision in the above case the First Amendment, 1951 Article 19

Clause (2) was added with new grounds of friendly relations with foreign

_____________________

48) AIR 2007 SC 8617

49) Article 15:- Prohibition of discrimination on grounds of religion, race, caste, sex or place

of birth.

50) Article 21:- Protection of life and personal liberty.

51) Article 14:- Equality before law

52) Article 19:- Protection of certain rights regarding freedom of speech, etc.

53) AIR 2007 SC 71

54) AIR 1950 SC 124

States, public order and incitement to an offence which empowered the state

to impose reasonable restrictions on these grounds on the exercise of the

freedom of speech and expression.

In Kameshwar Singh v. State of Bihar55 the BIHAR LAND REFORMS ACT,

1950 was challenged before the Patna high Court. In 1950, some state

Governments initiated proposals for incorporation of laws relating to agrarian

reforms. These laws contained provisions for the abolishment of zamindari

system, as well, for the compulsory acquisition of property for public purpose.

One such measure was the Bihar land reforms act 1950, enacted by the Bihar

Legislature. The Act, provided for the acquisition by the state of the estates

and tenures of three leading zamindars of the Bihar province.

The Patna High Court struck down the Bihar act as unconstitutional and void

as it contravened the provisions contained in article 14 of the Indian

Constitution.

After the decision of the Patna High court in Kameshwar Singh’s case it came

in to minds of the Central Government that such judicial pronouncements

would be a threat towards the complete zamindari abolition programme. In

order to overcome such a situation the Parliament came up with the 1st

amendment act 1951 by which a new article 31A55 was added to the

Constitution. Also the 1st amendment added article 31 B56 along with the ninth

Schedule to the Constitution.57 Article 31 B immunizes the laws included in

the Ninth Schedule, from any criticism for their inconsistency with any of the

Fundamental Rights.

In State of Madras v. Champakam Dorairajan58 the Supreme Court has laid

down that reservation of seats in public institutions for backward classes and

the Schedule castes and the Schedule tribes offended the fundamental rights

contained in the Article 15 (1) and 29 (2).

To nullify the effect of this decision clause (4) was added to Article 15 which

________________________

55) Article 31 A of the Constitution provides, “Saving of laws providing for the acquisition of

estates.

56) Article 31B of the Constitution provides, “Validation of certain Acts and Provisions”

57) Constitutional law of India by Prof Narender Kumar edition – 2011 at page 1009

58) AIR 1920 SC 226

permits the Government to make special provisions for the advancement of

socially and educationally backward classes of citizens or for the Scheduled

Castes and the Scheduled Tribes.

The 1st amendment act 1951 to the Indian Constitution was challenged before

the Supreme Court under article 32 in the case of SHANKARI PRASAD v.

UNION OF INDIA59. In this case the validity of the Constitution (1st

amendment) Act 1951, which inserted inter alia, Articles 31- A and Article 31

– B of the Constitution was challenged. The amendment was challenged on

the ground that it purported to take away or abridge the rights conferred by

Part III which fell within the prohibition of Article 13 (2) and hence was void. It

was argued that the “State” in Article 12 included Parliament and the word

“law” in Article13 (2), therefore, must include constitutional amendment. The

Supreme, however, rejected the above argument and held that the power to

amend the constitution including the fundamental rights is contained in Article

368, and the word “law” in Article 13 (8) includes only an ordinary law made in

exercise of the Legislative Powers and does not include constitutional

amendment which is made in exercise of constituent power. Therefore a

constitutional amendment will be valid even if it abridges or takes any of the

fundamental rights. The apex Court also distinguished between the ordinary

legislative power and not amendments to the Constitution made in the

exercise of Constituent power.

In State of West Bengal v. Bella Banerjee,60 the West Bengal Legislature

enacted the West Bengal Land Development and Planning Act, 1948y , which

provides for the acquisition of land for the settlement of the refugees from

East Pakistan ( Now Bangladesh). The law further provided that the

compensation to the owners of land so acquired was not to exceed the

market value of the property as on 31st December, 1946. The above

mentioned was according challenged in the court of law. The Supreme Court

The above law to be unconstitutional on the ground that the compensation to

be paid to the owner of the property acquired, bore no relation to the market

value of the property on the date of its acquisition. The court observed that

compensation meant just equivalent of what the owner was deprived of and

that the adequacy of such compensation was justiciable issue to be

adjudicated by the Court.

_______________________

59) AIR 1951 SC 458

60) AIR 1954 SC 170

The fourth amendment to the Constitution was passed in 195561, which inter

alia amended Article 31 (2) to make the question of adequacy of

compensation as non justiciable.

Before the seventeenth amendment62 to the constitution article 31-A provided

that a law in respect to the acquisition by the state of any estate would not be

deemed to be void on the ground that it was inconsistent with the

Fundamental rights contained in Article 14, article 19 or article 31

respectively. The expression estate has been defined differently by different

State’s Statues causing difficulties in regard to transfer of land from one state

to another under the Scheme of Re-organisation of States.

In order to curb the difficulties in defining the word estate differently the

Parliament came up with the Constitution seventeen amendment act which

modified the definition of the term estate in Article 31-A.63 The seventeenth

amendment act also added some of the acts enacted by States in the Ninth

Schedule.64

__________________

61) The fourth amendment to the Constitution came in 1955 and it was accordingly brought

into effect from 27-4-1955.

62) The seventeenth amendment act came in 1963 and it was brought with effect from 5-10-

1963.

63) The term estate has been defined under article 31-A as, “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 also include-----

i) Any jagir, inam or muafi or other similar grant and in the states of [Tamil Nadu] and

Kerala, any janman right;

ii) Any land held under ryotwari settlement

iii) And 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;

The Expression ‘rights’, in relation to an estate, shall include any rights vesting in a

proprietor, sub proprietor, under proprietor, tenure holder, raiyat, under raiyat or

other intermediary and any rights or privileges in respect of land revenue.

64) The Seventeenth Amendment 1963 added as many as forty four acts enacted by the

State Legislatures.

The validity of the Constitution Seventeenth Amendment Act was

challenged in Sajjan Singh v. State Of Rajasthan .65 The challenge

was on the grounds of procedural non-compliance and not against the

power of the parliament to amend the Fundamental rights. It was

contented that since the Seventeenth amendment (which added forty

four acts to the ninth schedule) was likely to affect the proviso of the

High Court under article 226, it had attracted the Proviso to Article

368, and as impugned Amendment had not been ratified by half of the

State Legislatures, it was invalid. Rejecting the contention the

Supreme Court held that the impugned Amendment did not attract the

provision of Cl. (b) of the Proviso to Article 368. The Court observed

that the impugned Act did not purport to change the provisions of

Article 226 and that it could not be said even to have that effect even

directly or in an appreciable measure. The Supreme Court also

approved the majority judgment in Shankari Prasad v. Union Of

India66 and held that the words “amendment of this Constitution”

means amendment of all the provisions of the Constitution. Chief

justice Gajendragadjar said that if the Constitution – makers intended

to exclude the fundamental rights from the scope of the amending

power they would have made a clear provision in that behalf.

THE GOLAK NATH’S CASE

In 1967 came the most celebrated judicial pronouncement in GOLAK

NATH v. STATE OF PUNJAB.67 In Golak nath case three writ

petitions were involved. One was filed by the son, daughter, and

granddaughters of Golak Nath. In this petition, the inclusion of the

Punjab Security of Land tenures Act, 1953 in the Ninth Schedule was

challenged on the ground that the Seventeenth Amendment by which

it was so added as well as the First and the Fourth Amendments

abridging the fundamental rights were unconstitutional. In the other

two petitions, inclusion of Mysore Land Reforms Act (10 of 1962 as

amended by Act 14 of 1965) had been attacked on the same grounds.

______________________

65) AIR 1965 SC 845

66) AIR 1951 SC 455 at p. 458

67) AIR 1967 SC 1643

Most of the contentions raised on behalf of the petitioners and

respondents summarized in the judgment had already been raised

before the Supreme Court in Shankari Prasad v. Union of India and

Sajjan Singh v. State of Rajasthan cases.

The case was heard by an eleven – Judge bench of the Supreme

Court which by an majority of 6:5 held that the fundamental rights

were outside the amendatory process if the amendment took away or

abridged any of the rights and that the Shankari Prasad case and

Sajjan Singh case conceded the power of amendment over Part III on

an erroneous view of Article 13(2) and Article 368 and to that extent

they were not good law. The judgment was, however, given a

prospective effect and therefore it did not validate any of the

amendments disputed in the case. The judgment proceeded on the

following grounds:-

a) The Constitution incorporates an implied limitation that the

Fundamental rights are out of the reach of the Parliament. It

declares certain rights as fundamental rights; makes all the laws

infringing the said rights, void; preserves only the laws of social

control infringing the said rights and expressly confers power on

Parliament and the President to amend or suspend them in

specified circumstances. The Constitution has given by its scheme

a place of permanence to the fundamental freedoms. In giving to

themselves the Constitution, the people have reserved the

fundamental freedoms to themselves. Article 13 merely

incorporates that reservation. That article is, however, not the

source of the protection of fundamental rights but the expression

of that reservation. The importance attached to the fundamental

freedoms is so transcendental that a Bill enacted by a unanimous

vote of all members of both the House is ineffective to derogate

from its guaranteed exercise.

b) Article 368 does not contain the power to amend but merely

provides the procedure for amending the Constitution. The power

to amend the Constitution is a legislative process and is include

within the plenary legislative power of Parliament.

c) The power to amend the Constitution should be found in the

plenary legislative power of Parliament. As it is clear from Article

245, article 246 and article 248 and entry 97 of List I of the

Seventh Schedule, the residuary power of legislation is vested in

Parliament. The residuary power of Parliament certainly takes in

the power to amend the constitution. Article 4 an Article 169 and

para 7 of the fifth schedule and para 21 of the 6th schedule have

expressly conferred such power. There is, therefore, no inherent

inconsistency between the legislative process and amending

process. Whether in the field of field of constitutional law or

statutory law amendment can be brought only by law. Article 245

and Article 392 do not indicate the contrary intention. As regards

Article 392 apart from limited scope of the Article , which is

intended only for the purpose of removing difficulties and for

bringing about a smooth transition , and order made by the

president could not attract Article 368 as amendment

contemplated by that provision can be initiated only by the

introduction of a billing parliament .

d) Amendments to the constitution either under Article 368 or under

other Articles, are made only by parliament by following the

Legislative process adopted by it in making other laws. An

Amendment of the constitution can be nothing but law. If

amendment is intended to be something other than law, the

constitutional insistences on the legislative processes are

necessary. The word law in article 13 (2) includes constitutional

amendments and, therefore, the fundamental rights are outside

the power of amendment given to the Parliament under Article

368, if such an amendment seeks to abridge or take away any of

the Fundamental rights.

e) The contention that the power to amend is a sovereign power, that

the said power is superior to the legislative power, that it does not

permit any implied limitations and that amendments made in

exercise of that power involves political questions which are

outside the scope of judicial review are outside the scope of

judicial review cannot be accepted. One need not cavil at the

description of an amending power as sovereign power, for it is

sovereign only within the scope of power conferred by a particular

Constitution. When the Articles are conflicting the court has the

jurisdiction to harmonize them. There is nothing in the nature of

the amending power which enables Parliament to override all the

express or implied limitations on that power.

f) If at all the provisions guaranteeing the fundamental rights must be

amended so as to curtail those rights, this could be done only by a

Constituent Assembly which might be convoked Parliament by

enacting a law for that purpose in the exercise of its residuary

power.

In Golak Nath v. State of Punjab , the Supreme Court by majority

of 6 to 5 prospectively overruled its earlier decision in Shankari

Parasad’s and Sajjan Singh cases held that parliament no power

from the date of this decision to amend part III of the constitution

so as to take away or abridge the fundamental rights. Chief Justice

Subha Rao said that the fundamental rights are assigned

transcendental place under our Constitution and, therefore they

are kept beyond the reach of Parliament. The chief justice applied

the doctrine of prospective overruling and held that this decision

will have only prospective operation and therefore the 1st 4th and

17th amendment will continue to be valid. It means that all cases

decided before the Golak Nath’s case would remain valid.

The minority, however, held that the word ‘law’ in Article 13(2)

referred only ordinary law and not a Constitutional amendment and

hence Shankari Prasad’s case and Sajjan Singh’s case were

rightly decided. According to them, Article 368 deals with not only

the procedure of amending the Constitution but also contains the

power to amend the Constitution.

The majority judgment was accepted.

DOCTRINE OF PROSPECTIVE OVERRULING

This doctrine of prospective ruling was evolved by the Supreme

Court68. The doctrine was applied by the Supreme Court in order to

validate the 1ST AMENDMENT, THE FOURTH AMENDMENT

AND THE SEVENTEENTH AMENDMENT of the Constitution.

___________________________

68) the Doctrine of Prospective Ruling was evolved and applied by the Supreme

Court in the case of Golak Nath v. State of Punjab AIR 1967 SC 1643.

The court also observed that the Doctrine had been accepted in

America in all branches of law including constitutional law. The

court further said that it was indisputable that the Court could

overrule its earlier decision. Also, there would not be any valid

reasons as to why the Court should not restrict its ruling to the

future.

The doctrine is modern in operation and is suitable for the fast

growing needs of the changing society. The constitution of India

does not expressly or impliedly speak against the doctrine.

However the doctrine can be invoked only in matters arising under

the Constitution and that it can be applied by only the highest court

in the country i.e., the Supreme Court. It is because of the reason

that only Supreme Court has the Constitutional jurisdiction to

declare law binding on all Courts in the territory of India69.

In Baburam v. C.C. Jacob70 the Supreme Court explained that “the

prospective declaration of law is a device Innovated by the Apex

Court to avoid reopening of settled disputes and to prevent

multiplicity of proceedings”. “It is also a Device” the court said, “to

avoid uncertainty and avoidable litigations.” “By the very object of

prospective declarations of law, it is deemed that all actions taken

contrary to the declaration of law, prior to its date of declaration

are validated” and this was done in the larger public interest, as

the court observed.

In Sarwan kumar v. Madan lal Aggarwal71 the Supreme Court held

that under the doctrine of “prospective overruling” the law declared

by the Court applies to the cases arising in future only and its

application to the cases which have attained finality is saved

because the repeal would otherwise work hardship to those who

had trusted in its existence.

__________________

69) Article 141 of the Indian Constitution declares that the law given by the

Supreme Court would be binding on all courts within the territory of India.

70) AIR 1999 SC 1845

71) AIR 2003 SC 1475

An order of doctrine of Prospective Overruling cannot be declared

void or contrary to law. It has been said by the application of the

doctrine no invalid law has been declared to be valid. All that

happens is that the declaration of invalidity of the legislation is

directed to take effect from a future date.

The TWENTY FOURTH AMENDMENT ACT, 1971

The Parliament in order to remove the difficulties created by the

judgment in Golak nath v. State of Punjab72 came up with the

twenty fourth amendment act.73 The amendment has made the

following changes:

(1) It has added a new clause (4)74 to Article 13

(2) It substituted a new marginal75 heading to Article 368 in place

of the old heading.76

(3) It inserted a new sub- section (1) in Article 368.77

(4) It substituted the words, “ it shall be presented to the President

who shall give his assent to the Bill and thereupon” for the

words, “ it shall be presented to the President for his assent

and upon his assent being given to the bill”. Thus by amending

these lines, it made an obligation on the President to give his

assent for the Bill changing the Constitution.

_______________________

72) AIR 1971 SC 1643

73) The Twenty Fourth amendment was introduced in 1971 which came into

effect from 5-11-1971

74) Article 13(4) provides:- nothing in this article shall apply to any amendment

of this Constitution made under Article 368.

75) Old heading to article 368 read as, “Procedure for the amendment to the

Constitution”

76) The heading after the commencement of the twenty fourth amendment act

read as:-Power of the Parliament to amend the Constitution and the Procedure

thereof

77) Article 368(1) provides ‘notwithstanding anything in this Constitution,

Parliament, may, in the exercise of its constituent power amend by way of

addition, variation, or repeal any provision of this Constitution in accordance

with the procedure laid down in this article.

It has added a new clause (3) to Article 368.78

Thus the 24th amendment not only resorted the amending power

of the Parliament but it also conferred an unlimited power on

Parliament to amend the Constitution by the addition of the words,

“ to amend by way of addition or variation or repeal any provision

of this Constitution in accordance with the procedure laid down in

this Article.”

THE TWENTY FIFTH AMENDMENT ACT 1971

Post Golak nath’s case judgment, some important

pronouncements were made by the Supreme Court in regard to

the right to property contained in Article 31, as it stood then. The

Apex Court in some cases79 applied the doctrine of “just and

equivalent” and observed that the adequacy of compensation and

the relevancy of the principles laid down for determining

compensation, to be paid to a person for debt thriving him of his

property, were justiciable and that the Court could go into the

question that the amount paid was just equivalent of what he was

deprived of.

The above decisions were considered to be a barrier in the

government’s programme introducing socio reforms and would

have stood in a way of implementing the Directive Principles of

State Policy. To curb these difficulties, the Constitutional twenty

fifth amendment act80 was introduced.

The 25th amendment substituted the word “amount” for

“compensation” in Article 31 (2) and it was expressly declared that

“adequacy of the amount” to be given for depriving a person of his

property, would not be called in question in any court. Further, a

_____________________

78) Article 368(3) provided that, “nothing in article 13 shall apply to any

amendment made under this article.”

79) R.C. cooper v. Union of India, AIR 1970 SC 564 ; Madhav Rao Scindia v.

Union of India, AIR 1971 SC 530.

80) The twenty fifth amendment act was introduced in 1971 and was brought

with effect from 20-4-1972.

new Article 31-C81 was inserted in the Constitution to provide

supremacy to the Directive Principles contained in Article 39 (b) &

(c) over Fundamental Rights contained in Article 14, article 19 and

article 31.

THE KESAVNANDA BHARTI CASE: THE

EMERGENCE OF BASIC STRUCTURE

DOCTRINE

The Kesavanada Bharti’s case is also referred to as the

FUNDAMENTAL RIGHTS CASE. This case records till date the

largest bench 82 in the history of Indian judiciary. This case was the

landmark decision of the Supreme Court that outlined the basic

structure doctrine.83 In a sharply divided verdict, by a margin of 7-

6, the court held that while the Parliament has "wide" powers, it did

not have the power to destroy or emasculate the basic elements or

fundamental features of the constitution.

The validity of the twenty fourth and the twenty fifth amendment

was challenged in kesavnanda Bharti Sripadagalvaru v. State of

Kerala84, wherein a writ petition was filed initially to challenge the

validity of the Kerala Land Reforms Act 1963 as amended in 1969.

But as the Act was amended in 1971 during the pendency of the

case and was placed in Ninth Schedule by the twenty ninth

amendment85 the petitioner was allowed to challenge the validity of

the twenty fourth86, twenty fifth87 and twenty ninth amendments to

the Indian Constitution. This petition was heard by a bench of

thirteen judges of the Supreme Court. It was urged by the

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81) Article 31-C provides, “Saving of laws giving effect to certain directive

principle”

82) A bench of thirteen judges including the then Chief Justice of India decided

the case of Kesavnanda bharti v. state of Kerala.

83) http://en.wikipedia.org/wiki/Kesavananda_Bharati_v._State_of_Kerala

84) AIR 1973 SC 1461

85) The twenty ninth amendment act was introduced in 1972 and it came with

effect from 9-6-1972.

86) The Constitution (Twenty Fourth amendment) act 1971 (w.e.f. 5-11-1971)

87) The Constitution (Twenty Fifth amendment) act 1971 (w.e.f. 20-4-1972)

petitioner that if the power to amendment is to be constructed as

empowering Parliament to exercise a full Constituent power of the

people and authorizing it to destroy or abrogate the essential

features or basic elements and fundamental provisions of the

Constitution, such a construction must be held to be

unconstitutional. This is so because

i) Having only such constituent power as is conferred on it by

the Constitution which is given by the people onto

themselves , Parliament cannot enlarge its own power so as

to abrogate the limitations in terms on which the power to

amend was conferred

ii) Being a functionary created under the constitution ,

Parliament can not abrogate to itself the power of

amendment so as to alter or destroy any of the essential

features of the constitution

iii) Purporting to empower itself t take away or abridge all or

any of the fundamental rights , Parliament does not become

competent to destroy the basic human rights and the

fundamental freedoms which were reserved by the people

for themselves when they gave themselves the constitution

iv) Initially having more power to alter or destroy any of the

essential features of the constitution, and also recognizing

implied and inherent limitations on the amending power ,

Parliament has no power to alter or destroy all or any one of

the fundamental rights , or , in other words , Parliament

cannot abrogte the limits of its constituent power by

repealing those limitations and there by purporting to what

is forbidden by those limitations.

All the judges were of the view that the twenty fourth amendment

is valid , and that by virtue of Article 368, as Amended by the

twenty fourth Amendment , Parliament has power to amend any

or all the provisions of the constitutions including those related to

fundamental rights.

However, seven of the Judges Sikri , C.J. , Shelat , Hegde ,

Grover , Jagmohan Reddy, Khanna , Mukherjea , JJ. held that the

power of amendment under Article 368 is subject to certain implied

and inherent limitations , and that in the exercise of amending

power Parliament cannot change the basic structure or framework

of the constitution . Six of the above mentioned judges (excluding

Khanna ) thought that the fundamental rights enshrined in Part iii

relate to the basic structure or framework of the constitution and ,

therefore, are not amendable.

Six of the judges including Ray, Palekar, Mathew, Beg, Dwivedi

and Chandrachaud, JJ., were, by and large, not prepared to

accept any limitation on the plenary power of Parliament to amend

the Constitution. Khanna J., however held that right to property

does not form the part of the basic structure or framework of the

Constitution and titled the balance in forming the majority with Ray,

Palekar, Mathew, Beg, Dwivedi and Chandrachaud, JJ., in its

conclusions.

The basic philosophy underlying the doctrine of non amendability

of the basic features of the Constitution, evolved by the majority in Kesavananda has been beautifully explained by Hedge and Mukherjee, JJ., as follows:

Our Constitution is not a mere political document. It is essentially a

social document. It is based on a social philosophy and every

social philosophy like every religion has two main features,

namely, basic and circumstantial. The former remains constant but

the latter is subject to change. The core of a religion always

remains constant but the practices associated with it may change.

Likewise, a Constitution like ours contains certain features which

are so essential that they cannot be changed or destroyed.

According to Sikri, C.J. the basic structure of the Constitution

consists of the following features:

1) Supremacy of the Constitution

2) Republican and democratic forms of the Government

3) Secular character of the Constitution

4) Separation of powers between the Legislature, the Executive

and the Judiciary

5) Federal character of the Constitution.

According to Shelat and Grover, JJ., the following are the

illustrations of the basic structure of the Indian Constitution, i.e.,

1) Supremacy of the Constitution

2) Republican and democratic form of Government and

sovereignty of the Government

3) Secular and federal character of the Constitution

4) Demarcation of power between the Legislature, the Executive

and the Judiciary

5) Dignity of the individual secured by various freedoms and basic

rights in Part III and the mandate to build a welfare State

contained by Part V

6) Unity and integrity of the nation.

According to Hegde and Mukherjee, JJ., the following are the

examples of the basic structure:

1) Sovereignty of India

2) The democratic character of our policy

3) The Unity of the country

4) Essential features of individual freedoms secured to the

citizens

5) Mandate to build a welfare State.

According to Mr. Jagmohan Ready, J., the basic structure is

1) A sovereign Democratic Republic

2) Parliamentary democracy

However it was also held by the Jurists that the above

mentioned list in only illustrative and not exhaustive.

On the other hand according to justice Ray all the provisions of the

Constitution were essential and no distinction could be made

between essential and non essential features from the point of

view of amendment unless the makers of the Constitution made it

expressly clear in the Constitution itself. In his view an amendment

of the Constitution could make Fundamental, and even radical,

changes to the Constitution and the power of amendment was

unlimited so long as the Constitution existed as an amended

Constitution, that is, an organic instrument which provides for the

making, interpretation and implementation of law. It means that

short of withdrawing a system according to which a state or a

nation is governed, an amendment of the Constitution includes

making fundamental changes to the Constitution.

According to Palekar,J., all the provisions in a Constitution must be

conceded the same character and it was not possible to say that

one was more important or the other is less important. He stated

clearly that so far as the wording of Article 368 were concerned,

there was nothing in it which limited the power of amendment

expressly or by necessary implication, and it was not the function

of the court to invent limitations where there were none.

Khanna, J., concurred with the majority decision but delivered a

separate judgement. He said:

“ The amendment of the Constitution necessarily contemplates

that the Constitution has not to be abrogated. (Indeed this much

has been conceded by the Attorney- General). The word

‘amendment’ postulates that old Constitution survives without loss

of its identity despite the and continues even though it has been

subjected to alterations. As a result of amendment the old

Constitution cannot be destroyed, and done away with; it is

retained even though in its amended form. The words ‘amendment

to the Constitution’ with all their wide sweep and amplitude cannot

have the effect of destroying or abrogating the basic structure or

framework of the Constitution. It would not be competent under the

grab of amendment, for instance, to change the democratic

Government into dictatorship of hereditary monarch nor it would be

permissible to abolish the Lok Sabha or Rajya Sabha. The secular

character of the State according to which the State be

discriminated against any citizen on the ground of religion only

cannot otherwise be done away with. Provision regarding the

amendment of the Constitution does not furnish pretence for

subverting the structure of the Constitution nor can Article 368 be

so constructed as to embody the death wish of the Constitution or

provide sanction for what may perhaps be called its lawful hara-

kiri. Such subversions or destruction cannot be described to be

amendment of Constitution as contemplated by Article 368”.

His lordship further held that the power of amendment under

article 368 does not include the power to abrogate the Constitution

nor does it include the power to alter the basic structure or

framework of the Constitution. Subject to the retention of the basic

structure or framework of the Constitution the power of

amendment is plenary and includes within itself the power to

amend various articles of the Constitution, including those relating

to fundamental rights as well as those which may be said to relate

to essential feature. No part of a fundamental right can claim

immunity from a mandatory process by being described as the

essence or core of that right. The power of amendment would also

include within itself the power to add, alter or repeal the various

articles. There are no implied inherent limitations on the power of

amendment apart from those which inhere and are implicit in the

word ‘amendment’. The said power can also not restricted by

reference to ‘natural or human rights’. Apart from the part of

preamble which relates to the basic structure or frame work of the

Constitution, the preamble does not restrict the power of

amendment.

APPLICATION OF DOCTRINE OF BASIC

STRUCTURE

In Indira Nehru Gandhi v. Raj Narain88 popularly known as the

ELECTION CASE, the Supreme Court applied the doctrine of

basic structure. In this case, the appellant, Mrs. Indira Nehru

Gandhi, the then Prime minister, filed an appeal before the

Supreme Court against the judgment of the Allahabad High Court.

The high court had invalidated the election of the appellant to the

Lok Sabha, on the ground of having committed corrupt practice,

under Representation of People, 1951. During the pendency of the

appeal before the Supreme Court, the Parliament enacted the

Constitution 39th amendment act89 which inter alia inserted a new

Article 329A in the Constitution, to nullify the effect of the High

Court judgment and also withdrawing the jurisdiction of all courts,

including the Supreme Court, over the disputes relating to

elections involving the speaker and the Prime Minister, including

the present appeal pending before the Supreme Court. Cause (4)

of new Article 329 A, which directly concerned this appeal stated

that no law made prior to the commencement of 39th amendment

____________________

88) AIR 1975 SC 2299

89) the thirty ninth amendment was introduced in 1975 and was brought into

effect from 10-8-1975

In so far as it related to the election petitions, apply or would be

deemed to have applied to the election of Prime minister to either

House of the Parliament. It further provided that such election

would not be deemed to be void or ever to have become void and

that notwithstanding any decision of any court before 39th

amendment, declaring such election to be void, such election

would continue to be valid.

The Supreme Court unanimously struck down Clause (4) of Article

329-A. The court thus got an occasion to elaborate the meaning of

the expression “basic structure” of the Constitution. The majority of

the Supreme Court, declared the following features as constituting

to the basic structure of the Indian Constitution

1) Judicial review

2) Free and fair election

3) Rule of law

4) Right to Equality

FORTY SECOND AMENDMENT

THE Government could not reconcile to any limitation,

whatsoever, be read to the constituent power of the Parliament. It

held that the impediments in the growth of the Constitution must

be removed, for the Constitution, to be living, must be growing.

With these considerations90 the Parliament enacted the

Constitutional (forty-second amendment act) 1976.91 This

amendment, inter alia, made the following to changes---

a) It inserted a new clause (4)92 and clause (5)93 in Article 368 to

______________________

90) Objects and reasons, THE CONSTITUTION (42ND AMENDMENT) ACT

1976

91) The forty second amendment was introduced in 1976 and was brought

in effect from 3-1-1977, 1-2-1977 & 1-4-1977

92) Article 368 (4), “ No Constitutional amendment ( including the provisions

of Part III) or purporting to have been made under article 368 whether before or after the

commencement of 42nd amendment act 1976 shall be called in question in any court on any

ground.

(Continued).

the effect that an amendment of the Constitution under article 368

shall not be called in question in any court on any ground and that

there shall be no limitation, whatever, on the constituent power of

Parliament.

b) It amended Article 31 (C) to provide precedence to all Directives

over Fundamental Rights

In Minerva Mills Ltd. v. Union of India94 the above amendments

were challenged. In this case Minerva Mills Ltd. was nationalized

and taken over by Central Government under the Silk Textile

Undertaking (Nationalization) Act 1974 which was added to the 9th

Schedule by the Constitutional (39th amendment act) 1975. With

the result, the petitioner, challenged the constitutionality of

Clauses (4) and (5) of Article 368, along with Section 55 of the

42nd amendment.

The Supreme Court unanimously held that Clauses (4) and (5) of

Article 368 inserted by Section 55 of the 42nd amendment act were

unconstitutional, as beyond the amending power of the Parliament,

as they destroyed the basic structure of the Indian Constitution.

The apex Court also held the following are the basic features of

the Constitution

a) Limited power of Parliament to amend the Constitution

b) Harmony and balance between fundamental rights and

Directive Principles

c) Fundamental rights in certain cases

d) Power of judicial review.

__________________

Continued

93) Article 368 (5) declares that there shall be no limitations whatever on the

constituent power of Parliament to amend by way of addition, variation, or

repeal the provisions of Constitution under this Article

94) AIR 1980 SC 1789

In Waman Rao v. Union of india95 the Supreme Court held that all

amendments to the Constitution which were made before April 24,

1973 (i.e., the date on which the judgment of kesavnanda bharti

was delivered) including those by which the Ninth Schedule to the

Constitution was amended from time to time were valid and

constitutional. But the amendments to the Constitution made on or

after that date by which the Ninth Schedule was amended were

left open to challenge on the ground that they were beyond the

constituent power of Parliament because they damaged the basic

structure to the Constitution.

In S.P. Sampat Kumar v. Union of India96 the constitutional validity

of Art. 323-A and the provisions of Administrative Tribunal Act,

1985 was challenged on the ground that the act by excluding the

jurisdiction of High Court under article 226 and article 227 in

service matters had destroyed the power of judicial review which is

the basic structure of the Constitution. The Supreme Court upheld

the validity of Article 323-A and the act as necessary changes

suggested by the Court were incorporated in the Administrative

tribunal act. It held that though the Act has excluded the judicial

review of High Courts in service matters under article 226 and

article 227 but it has not excluded judicial review under Article 32

and 136, the Act is valid. The amendment does not affect the basic

structure of the Constitution as it has vested the power of judicial

review in an alternative institutional mechanism.

In a landmark judgment in L. Chandra Kumar v. Union of India97, a

seven member Constitution Bench of the Supreme Court has

unanimously while reconsidering the Sampath kumar’s case, has

struck down clause 2(d) of Articles 323A and clause 3 (d) of Article

323-B which provides for the exclusion of the jurisdiction of the

High Court under article 226 and article 227 and Supreme Court

under Article 32 of the Constitution as unconstitutional and invalid

as they damage the power of judicial review which is the basic

feature of the Indian Constitution. The Court held that power of

___________________

95) AIR 1981 SC 271

96) AIR 1987 SC 386

97) AIR 1997 SC 1125

Judicial review over legislative actions vested in High Court under

article 226 and Supreme Court under article 32 of the Constitution

is an integral and essential part of the Constitution and it formed

the basic structure of the Constitution.

In I.R. Coelho v. State of Tamil Nadu98 headed by the then Chief

Justice Y.K. Sabharwal (comprising Ashok Bhan, Arijit Pasayat,

B.P. Singh, S.H. Kapadia C.P. Thakkar, P.K. Balsubramanyan,

Altman Kabil and D.K. Jain, JJ.,) held that any law placed in the

Ninth Schedule after April 24,197499 will be open to challenge. The

court said that even though an act is put in the Ninth Schedule by

a constitutional amendment its provisions would be open to

challenge on the ground that they destroy or damage the basic

feature, if the fundamental rights are taken away or abrogated

pertaining to the basic feature of the Constitution. The ninth

Schedule was introduced to the Constitution through Article 31(b)

by the First Constitutional amendment 1951. The object of the

Ninth Schedule was to save the Land reform Laws enacted by the

various State Governments from being challenged in the Court.

Later on, it became an omnibus and every kind of laws whether it

related to elections, mines and minerals, industrial relations,

requisition of property, monopolies, coal or copper

nationalizations, general insurance, sick industries companies,

Kerala chilies Act, Tamil Nadu reservation of 69% and so on were

inserted in it. No principle underlies this section. In the instant

case, the politicians had challenged the validity of the various

Central and State laws put in the Ninth Schedule including the

Tamil Nadu reservation act. The Court said that the validity of the

Ninth Schedule law has been upheld by the Apex Court and would

not be open to challenge again, nut if a law is held to be violative

of fundamental rights incorporated in the ninth Schedule after the

date of the of the judgment of Kesavnanda Bharti’s case, such a

violation shall be open to challenge on the ground that it destroys

or damages the basic structure of the Indian Constitution.

_________________

98) AIR 2007 SC 8617

99) The date when Kesavnanda Bharti v. Union of India was decided.

The FOLLOWING FEATURES HAVE SO FAR,

BEEN DECLARED TO CONSTITUTE THE

BASIC STRUCTURE OF THE CONSTITUTION

SO AS TO BE BEYOND THE AMENDING

POWER OF PARLIAMENT UNDER ARTICLE

368

1) Supremacy of the Constitution100

2) Republican and democratic form of government101

3) Secular character of the Constitution/ state102

4) Federal character of the Consitution103

5) Sovereignty of India104

6) Judicial review105

7) Free and fair election106

8) Jurisdiction of High Court under Article 226 and Supreme court

under Article 32107

9) Rule of law108

10) Right to equality109

11) Democracy 110

12) The harmony and balance between Fundamental Rights and

Directive Principles of state Policy 111

13) Limited amending power of Parliament112

__________________

100) Kesavnanda Bharti v. Union of India AIR 1973 SC 1461

101) ibid, Indra Nehru Gandhi v. Raj Narain AIR 1975 SC 2299

102) I.R. Coelho v. State of Tamil Nadu AIR 2001 SC 861

103) Kuldip Nayar v. Union of India AIR 2006 SC 3127

104) ibid

105) L. Chandra Kumar v. Union of India AIR 1997 SC 1125

106) Supra at 101

107) supra at 105

108) supra at 102

109) supra at 101

110) P.U.C.L. v. Union of India AIR 2003 SC 2363

111) Minerva mills ltd. v. Union of India AIR 1980 SC 1789

112) ibid

14) Separation of power between executive legislature and

judiciary113

15) Independence of judiciary114

16) Parliamentary democracy115

17) Multi party democracy116

CRITICISM OF DOCTRINE OF BASIC STRUCTURE

Doctrine of basic structure has been vehemently criticized. It

has been said that the court has not precisely defined as to

what are the essential features of the basic structure and if this

doctrine is accepted every amendment is likely to be

challenged on the ground that it effects some or other essential

features of the basic structure. In other words, it was urged ,

that the amending power of the parliament can not be

subjected to this vague uncertain doctrine.

It is, however, submitted that the criticism of the doctrine of

basic structure can not be justified on the ground that it lays

down a vague and uncertain test. The basic structure of the

constitution is not a vague concept . The fact that a complete

list of essential elements constituting the basic structure cannot

be enumerated is no ground for denying that these do not exist.

There are many concepts of law which cannot still be defined

precisely, but they do exists and play vey important part in our

law .

______________________ 113) I.R. Coelho v. State of Tamil Nadu AIR 2001 SC 861

114) State of Bihar v. Bal mukund Shah AIR 2000 SC 1296

115) Kuldip nayar v. Union of India AIR 2006 SC 3127

116) ibid

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