PART XX

Constitution
A m e n d m e n t of
the

the Constitution and proce.

Parliament to amend
368. [Power of Notwithstanding anything in this Constitution.
dure therefor]-[(1) amend by way of addi-
constituent power
Parliament may in exercise
of its
of this Constitution in accordance
tion, variation or repeal any provision
with the procedure laid down in this article.]
initiated only by the
An amendmentof this Constitution may be
ST(2)] in either House of Parliament, and
introduction of a Bill for the purpose
of the total membership
when the Bill is passed in each House by majority
a
than two-thirds of the members
of that House and by a majority of not less
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 shal
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, TArticle 162, Article 241 or
Article 279-A].
(6) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of
Part XI, or
)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 Legislature of not
less than one-half of the States
"[**]by resolutions to that effect passed Dy
1. Subs. by the Constitution (24th Amendment) Act,
of the Constitution". 1971, S. 3 for "Procedure for amenaneent
2. Ins. by the Constitution
(24th Amendment) Act, 1971, S. 3.
3. Art. 368 remumbered as cl.
(2) by S. 3, ibid.
4. Subs. by the Constitution
(24th Amendment) Act, 1971, S. for
President for his assent and upon such assent 3, "it shall be presented
5. Subs. for "Article 162 or Article
241"
being given to the Bill".
(w.e.f. 16-9-2016). by the Constitution (101st Amendment) Act, 201 15
6. The words and le ers
"'specified in Parts
Constitution (7th Amendment) Act, 1956, S.A and B of the First
Schedule" omited oy the
29 and Sch.
[ART. 3681
AMENDMENT OF THE CONSTITUTION 1081

Legislatures before the Bill making provision for such amendment

tho
to the President for assent.
ispresented in Article 13 shall apply to any amendment made under
T) Nothing
this article.]
St/) No amendment of this Constitution (including the provisions of
Part II) made or purporting to have been made under this article [whether
hefore or after the commencement ot Section 55 of the Constitution (Forty-
second Amendment) Act, 1976] shall be called in question in any court on
any ground.
it is hereby declared that there shall be
(For the removal of doubts,
whatever on the constituent power of Parliamernt to amend
no limitation
variation or repeal the provisions of this Constitution
by way of addition,
under this article.]
of amendment, the provisions of
Amendment procedure.-For the purposes
is
three categories. The procedure for each category
the Constitution fall under
Constitution.?
laid down in the
required for the passing
Firstly, those that can be effected by simple majority,
a
and 239-A
law. The amendments contemplated in Articles 4, 169
of an ordinary Sixth Schedules respectively fall
within
and the
and paras. 7 and 21 of the Fifth Article 368.
excluded from the purview of
this class.0 They are specifically
as laid down in
a special majority
Secondly, those that can be effected by those referred to above
constitutional amendments other than
Article 368(2). All total m e m -
a majority of the
and must be effected by
Come within this category of not less than two-
Parliament as well as by majority
a
House of
bership of each House present and voting.
thirds of the members of that described
addition to the special
majority as
in State
1 hirdly, those that require,
not less than one-half of the
resolution passed by change
above, ratification by to make
amendments which seek any
comprises
Legislatures. This class to Article 3o8|2).
the provisions referred
to in the proviso ratifñication:
n provisions require such
Amendments in the following
President,"
election of the
m a n n e r of
1. the election and

Amendment) Act, 1971. S. 3. 3-1-1977).

This amend-
C o n s t i t u t i o n (24th
Act, 1976, S. 55
(w.e.f.
Ins. by the 3 SCC 625:
the Constitution (42nd
Amendment)
Mills Ltd. v.
Union ofIndia, (1980)
O n s . by unconstitutional
in Minerva

nent has
been held
in the
Constitution of India, see,
AIR 1980 SC 1789. methods
How
of change
Constitutions Change: A
beneficial for
various
discussion on (Eds.),
a detailed C. Fusaro the book is
also
or Oliver and of
"India" in D. The rest

P Singh, Publishing
2011) 169ff. 169(3)-Creation
(Hart States; Art.
Omparative Study of existing of centrally
Comparative perspective. or
reconstitution

Art. 239-A-
Constitution
States and
Art. 4-Creation of new

Chambers
in the
States;

oabolition
of Upper
administered areas.

11. Arts. 54 and 5.

1082 CONSTITUTION OF INDIA
PART XX
2. the extent of executive power of the Union
3. the extent of executive power of a State,
4 provisions dealing with the Supreme Court,"
5 provisions dealing with the High Courts in the States,5
6. High Courts for Union territories
7. distribution of legislative powers between the Union and the
States 17
8. the representation of States in Parliament,1s
9. Seventh Schedule to the Constitution," and
10. Article 368, i.e. the power and procedure of amendment of the
In Kihoto Hollohan v.
Constitutionon.
Zachillhu", para. 7 of the Tenth Schedule
CASE PILOT Constitution, which barred the jurisdiction of the courts in to tho
connected with the respect any matter
of
disqualification of a member of a House
ule, was invalidated by the court because it had the under that sched.
effect of
ers of the
Supreme Court and the High Courts without amending the pow.
following the procedure
required in the proviso to Article 368(2). While the court was unanimous
respect of the invalidity of para. 7, it was divided in
3:2 0n the effect of such
lidity on the rest of the Tenth Schedule. Applying the inva-
majority held that para. 7 was severable from the restdoctrine of
severability, the
of the schedule
fore, its invalidity did not affect the rest of and there
the schedule. The
was of the view that minority,
para. 7 was not severable from the rest of the however,
and secondly, even if firstly,
it was, the doctrine of schedule
amendment which required observance severability could not be applied to an
of the
viso to clause
(2) of Article 368 but in fact did not procedure laid down in thepro-
the first instance of observe such procedure. This is
with the
an
amendment having been invalidated
procedure laid down in the proviso to clause of for non-compliance
The power to amend
the Constitution (2) Article 368.
power to amend Article 1 and that conferred on Parliament includes
national territory in favour ofa the
logically would include the power to cede
The foreign State.
amending Bill can be introduced
be in either
passed by each House by the special majority
House of Parliament,
butit mu
Bill, after it has been prescribed in Article 368.
requires ratification bypassed by both Houses and, if the
the States, after it amendment is
n
sue c
ber of States, must be has been ratified the requirea nu
the President to the presented to the by
President for his assent. After the
Bill, the Constitution
shall stand amended. In other asseects,
12. Art. 73. re>p
13. Art. 162.
14. Chap. IV of Part V.
15. Chap. V of Part VI.
16. Art. 241.
17. Chap. I of Part XI
18. Sch. IV.
19. Lists I, II and II, Sch.
20. VII.
1992 Supp (2) SCC 651: AIR
1987 P&H 263. 1993 SC 412. Also see, Prakash fIndia AIR
21. Berubari Union (1), re, AIR 1960 SC Singh Badal v. UMo"
845: (1960) 3 SCR
250.
ART. 368] AMENDMENT OF THE CONSTITUTION 1083
normal procedure of
o each House of Parliament is to be
the
the followed so far as that
be aDplicable consistently with the express provisions of Article 368.7
mayndment may specify the date of its commencement or leave it to the President An
tobring it into effect from such date as he may notify.3
Tn moving the motion in the
Constituent Assembly for consideration of the
Draft Constitution, the Chairman of the Drafting Committee, Dr Ambedkar,
observed:

The provisions relating to amendment of the Constitution have come in for a

wirulent attack at the hands of the critics of the Draft Constitution. It is said that
the provisions contained in the Draft make amendments difficult. It is proposed
that the Constitution should be amendable by a simple majority at least for some
years. The argument is subtle and ingenious. It is said that this Constituent
Assembly is not elected on adult suffrage while the future Parliament will be
elected on adult suffrage and yet the former has been given the right to pass
the Constitution by simple majority while the latter has been denied the same
right. It is paraded as one of the absurdities of the Draft Constitution. I must
repudiate the charge because it is without foundation. To know how simple are
the provisions of the Draft Constitution in respect of amending the Constitution
one has only to study the provisions for amendment contained in the American
Draft
and Australian Constitutions. Compared to them those contained in the
Constitution has elimi-
Constitution will be found to be the simplest. The Draft
nated the elaborate and difficult procedures such asa
decision by a convention or
a referendum. The powers of
amendment are left with the Legislature-Central
matters-and they are only
and Provincial. It is only for amendments of specific
All other articles of
few that the ratification of the State legislatures required.
is
Parliament. The only limitation is
that
the Constitution are left to be amended by members of each
less than two-thirds of the
it shall be done by a majority of not
of the total membership of each
House.
House present and voting and a majority Constitution.
method of amending the
It is difficult to conceive a simpler founded upon
of the amending provision is
What is said to be the absurdity and of the future
the of the Constituent Assembly
of position
The Constituent Assembly making
a misconception in
Constitution.
Parliament elected under the a good and
workable
motive. Beyond securing Constitution
a Constitution has no partisan articles of the
In considering the
no a x e to grind. future Parliament, if
Constitution it has m e a s u r e . The

through a particular partisans seek

eye on getting acting as
has no will be
it Assembly, its
members
of party
it met as a
Constituent
Constitution to facilitate the passing
to the r e a s o n of some
to carry
amendments Parliament by
ng have failed to get throughobstacle in their way. Parliament
measures which they acted as an
Constitution
which has has n o n e . That
is the difference
article of the Constituent Assembly
while the P a r l i a m e n t . That explains
why the
to grind
will have an axe
and the future franchise can be
trusted to pass
Constituent Assembly limited adult
between the though
elected o n Parliament though
elected on

Lonstituent
Assembly and why it. 24
majority to amend
by simple s a m e power
neConstitutionbe trusted with the
cannot
Sutrage SCR 89.
1952
AIR 1951 SC458
Union ofIndia, SC71o.
AIR 1982
22. hankari Prasad:Singh Deov. SCC 271: supplied)
(1982) 1 (emphasis
23. A.K. Roy v. UnionofIndia,
Debates,
Vol. VIL 3-44
24. Constituent
nt Assemblhy
1084 cONSTITUTION OF INDIA

Amendment of the
fundamental rights.- The
question whethe.
PART XX
ment of fundamental rights
guaranteed by Part II of the Const an amend-
missible under Article 368 came before the Supreme
Shankari Prasad Singh Deo v. Union
Court as ear
of India25 (Shankari pPrae.as
itution is
as n 1951 in
validity of the Constitution (1st Amendment) Act, d). Inin 101
CASEPILOT
PILOOT
of Articles 31-A and 31-B, was
challenged 1951, especially the ithat case
in a petition under
alleged, inter alia, that as Article under Article
Article z2
mental rights, it prohibited such 13(2) prohibited making of laws abridoinWas
indusion
amendment was also a law. Rejectingabridgement even by an amendment g funda
to amend the Constitution,
the
argument, the court held thatbeccause an
including the fundamental the
Article 13(2) did not was contaipower
Article 368 and that the word "law" in rights,
ment of the
Constitution which was made in the include an in
legislative power. Later several other amendmentsexercise of constituent
of which the 4th and were
7th Amendments related to Part lllnmade in the
of the
not
Constitus.
17th Amendment which added several
them immune from attack on
legislations to the Ninth Constitution T
the Schedule malkin
challenged in Sajjan Singh v. ground of violation of fundamental
of the five
State of
Rajasthan" rights
CASE PILOT judges (Gajendragadkar CJ, Wanchoo and (Sajjan Singh). Though thtee
approved the Shankari Prasad case, two of them Dayal JJ) in that case fully
in their
separate but (Hidayatullah and Mudholkar I
created no limitationconcurring
on the
opinions doubted whether fundamental
Punjab2 power of amendment. In
Golak rights
CASEPLO
PILOT (Golak Nath), the
Supreme Court by a majority of 6:5 Nath
State of v.
Shankari Prasad and dissented from
side the Sajjan Singh and held that the
amendatory process, if the amendment took fundamental rights were out
damental right. away or
abridged any fun
In the Golak Nath
case, three writ
son, daughter,and petitions were involved. One was filed the
of the granddaughters of
Punjab Security of Land TenuresGolak Nath. In this by
petition, indusion
the
lenged on the Act, 1953 in the Ninth Schedule was cha-
well ground that the 17th Amendment
as the ist and the
4th Amendments by which it was so included as
unconstitutional. In the other
two
abridging the fundamental rights were
Act (10 of
1962 as amended petitions, inclusion of Mysore Land
by
grounds. Most of the contentions Act 14 of
1965) had been attacked on the Ketorm
ents
summarised in the raised on behalf of the sa
Court in the Shankari petitioners
judgment had already been raised before the and resp
eme
Prasad and >up
heard by an Sajjan Singh cases.
The case was
majority of
6:5 held that the 11-judge Bench of the Supreme ch by a
rocess, if the
amendment fundamental rights were outsideCourt the datory
Shankari Prasad and took away or abridged any of the ahat the
Part III on an Sajjan Singh cases conceded the rignts ent Over
erroneous view of power of
were not
good law. The Articles 13(2)2) and
and 368
368 and
and to that anehentthey
they
extent

therefore, it did not judgment was, however,

invalidate any of the given a effect and
prospectiveeeffect and
judgment proceeded on the amendments prosPhe
disputea
he case. The

u
case. 1
25. AIR
1951 SC 458: 1952 SCR
following reasonings:
26. AIR
27. AIR
1965 SC 845: (1965) 1 89.
1967 SC 1643: SCR 933.
(1967) 2 SCR 762.
 AMENDMENT OF THE CONSTITUTION 1085
ART. 3681

Constitution.
implied limitation that the fundamental
incorporates an

The
he Cont of the
o u t of the
reach
r of Parliament. It declares certain rights as funda
are
ights
nental
ights rights; makes all the laws infringing the said rights, void; preserves
of social control infringing the said rights and expressly con
the laws
on
Parliament and the President to amend or suspend them in
power
fers The Constitution has given by its scheme a place
circumstances.

pecified
speci to the fundamental freedoms. In giving to themselves
p e r m a n e n c e

of
the people have reserved the fundamental freedoms to
the Constitution, incorporates that reservation. That article
themselves. Article 13 merelythe
source of protection of fundamental rights but the
is. however, not thereservation. importance attached to the fundamen-
expression of that Ihe unanimous vote
transcendental that by a Bill enacted a
tal freedoms is so of both the Houses is ineffective to derogate from its
of all the members Parliament regards at a given moment as
711aranteed exercise. It is not what Constitution declares
benefit, but what Part II of the
conducive to the public freedom. The incapacity of
which determines the ambit of the
protected, to modify, restrict
therefore, in exercise of its amending power
Parliament, of the
fundamental freedoms in
Part Ill arises from the scheme
or impair
freedoms.
nature of the
Constitution and the
to amend but merely provides
does not contain the power
Article 368 to amend the
2. Constitution. The power
the
the procedure for amending is included within
the plenary leg-
Constitution is a process and
legislative
Parliament.
islative power of
Constitution should be found
in the plenary leg
the and 248 and
3. The power
to amend
from Articles 245, 246
Parliament. As is clear of legislation
islative power of the residuary power
Seventh Schedule, Parliament certainly
takes
Of List I of the of
Entry 97 Parliament. The residuary
power and para. 7 of
the
is vested in Articles 4 and 169, conferred
Constitution.
amend the Schedule have
expressly
power to b e t w e e n the leg-
In the and para. 21 0f the Sixth
inconsistency
Fifth Schedule inherent constitu-
therefore, n o the field of
There is, Whether in law.
such power. process. about only by
amending brought
and the c a n be limitation in
Slative process law,
amendment
intention.
The
in
law o r statutory contrary C o n s t i t u t i o n , is
i n d i c a t e the of the
na and 392 do
not provisions the law
made
Articles 245 subject to the c o n t e n t of
is of the
insofar a s it not the l i m i t e d
nrncle
245, a law and apart trom dif-
A r t i c l e 392,
to make of removing
of the p o w e r As regards the purpose made by the
CSpect of the p o w eirn . for
t e n d e d only a n order
the scope
n n
which is smooth
transition,
bythat
contemplated

the article,
of about a Parliament.
a Bill
a m e n d m e n t

COpe
Parliament.

in
iculties and for bring 68, as the amen
Article368,
as
i n t r o d u c t i o n
of a Bill
in
under der other
other
attract
the 368 o r
President cat only by
cannot Article
under islative process
the legisla
initiated
either
provision can be Constitution
ofthe
C o n s t i t u t i o n , following

to the
P a r l i a m e n t by amendment
thing other
4. Amendments
s o m e t h i

to be
only by
n d m e n t s An
laws. unneces.
made
i n t e n d e d
is
articles, are other
amendment
is process and
making legislative majority
it in the
adopted by but
"law".
If
i n s i s t e n c e
on
such
as,
larger

can be not
othing constitutional
other
c o n d i t i o n s ,

nan Law, the there

are

that
The fact
ary.
 C O N S T I T U T I O N
OF INDIA
PART XX
1086 ratification
in the proviso a
in the case
is provided,
does
of articles
mentioned

not make
the
amendmen

is
ent anythine else legis)a
anything ele
only a safeguard against
han law
law. T legislatures
imposition of
further
conditions
does not change the
legisla:styyas
act hasty
but
protection to
of the
States,
the
amendment. The
word "law in Article 13(2) includee

undamental
fundamental
Charae
the constitu character
amendments" and,
therefore, the
rights are
the
an amendment
powers
tional of amendment
seeks to abridge
given toorParliament
take awayunder
any ofArticle outside
the fundamental
368, Outide
it

rights.2
that the power sovereign
to amend is a power
5. The contention hat the
the legislative power, that it does no
said power is superior to permit
implied limitations and that amendments
made in exercise of
that hy
power
involve political questions which are outside the scope of judicialver
cannot be accepted. One need not cavil at the description of an amM
nding
power as sovereign power, for it is sovereign only within the scone nd
power conferred by a particular Constitution. when there are conflictino
articles couched in the widest terms, the court has jurisdiction to onstrue icting
and harmonise them. There is nothing in the nature of the amending DOuor
which enables Parliament to override all the express or implied limitations
on that power.
6. 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 by Parliament
a law for that
by enacting
purpose in the exercise of its residuary power.
Each of the above contentions of the
majority judgment was controverted in the
minority judgment.
In sum, the Golak Nath case30
decided that the Constitution did not
for a specific to
power take away or abridge the fundamental
provide
in Part II of the
Constitution, even by an
rights enshrined
Suggested that a Constituent Assembly could be amendment under Article 308 anu
Parliament in the exercise of its summoned for this purpose y
residuary
ofthethe Seventh Schedule read with Article power contained in Entry 97 of Last
Constitution (24th 248. This decision led to the passin
Article 368. Amendment) Act, 1971, which made significant cna
to Article
Firstly, it sought to nullify the effectof Golak
13 which Nath by adding clause
ment of the provides that nothing
in Article 13 shall
Constitution made under Article apply to aying
the word "law'" in
368. It means that the meanin o
under Article
terms of Article me:
13 will not extend to an amendmen made
which
368.
This
position is reassured by
provides 368
madeadding
rticle
that clause
clause (3) nto
nothingthisinamendment
under this article. Secondly, Article a change
13 shall inamendment
the nt made
to Article 368 by apply to
an a
g i n a ln o t e

substituting "Power of Parliament to amend the Constituae

and procedure therefor" for
"Procedure amend ue
28.
for amendment of tne
o n s t i t u t i o n

Golak Nath v. State

29. Ibid, of Punjab, AR
(AIR) 1669, 1718. 1967 SC 1643,
30. Ibid. 1658-59, 1669, 17o7: (1967)
(1907) 2 SCR 762
 ART. 3 6 8 ] AMENDMEN OF THE
This was d o r ocAuse Subba Rao CJ in the Golak Nath CONSTITUTION 1087
ided
1hie z68 PTend the only the
procedure
case was of
the view that
anmend the Constitution is totorbeamendment of the Constitution and
wer to found elsewhere. In order to
cure,
i tis provided in the
it is
15 provided opening paragraph of Article to make
sur
it Parliament may in the exercise of its constituent 368, now numbered as
dauseof addition, variation or repeal any
clause
power amend by
way ofad
way
laid
provision of the Constitution in accord-
with the procedure down that article.
in
ance witn Parliament is thus
mend any provision of the Constitution, including the empowered
This amendment, iment, therefore, fundamental
recognises the distinction between an rights.
n
law andd a
constitutional amendment, a position not acceptable to the ordinary
Colak
in Nath". Besides, any doubt about the meaning of the word majority
Golak Nath2

removed by providing "amend by way of addition, variation or repeal'."amend" is

dhe next paragraph, now numbered as (2), this amendment Thirdly, in
substituted
e shall be presented to the President who shall give his assent to the words
olace of the words "it shall be presented to the President for his assenttheandBill" in
Such assent being 8iven
to the Bill. Ihis upon
change takes away any discretion, if
any, with the President ingiving his assent to the Bill
any provision of the Constitution, and makes the position proposing amendment to
of the President in the
matter of giving assent to Bills under Article 368 somewhat different from
that of
Article 111 which deals with an ordinary Bill.
Subsequently, 25th, 26th and
29th
Amendments to the Constitution were made abridging or taking away the fun-
damental rights in some respects.
Unamendable basic structure.-The validity of the above amendments was
questioned in Kesavananda Bharati v. State of Kerala33 (Kesavananda Bharati),
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 CASE PILOOT

during the pendency of the petition and was placed in the Ninth Schedule by
the validity of
Amendment, the petitioner was permitted to challenge
the
2 5 t h and 29th Amendments to the Constitution also. The petition was
heard by aa:13-judge Bench of the Supreme Court. It was urged by the petitioner
be construed as empowering Parliament
h e power of amendment is to and authorising it to destroy
xercise the full constituent power of the people provisions
fundamental
and
abrogate
of the
of the Const
C
the essenti features, basic
elements
be held
unconstitutional. This
is
construction must it by the
nstitution, such a
as is conferred on
such constituent power Parliament c a n n o t
1 having only themselves,

Constitution
onstitutio
enlarge its
which is
power
given by the
so as
people
to abrogate
the
unto
limitation in the terms on

created under
which
the
a functionary so as
Powe w a s conferred; 2) being the power
of
amendment

Constitution,
to
t alterr or
e or
Parliament c a n n o t arrogate
features
essential
to itself Constitution;

ofthe of the
3) purporting
fundamental rights,

empowerdestroy
of the and
any h u m a n rights
abridge all
any or
basic
itself to away take or the themselves

Parliament
h m e n t does not become

undamental freedoms
competent

which were
to destroy
reserved by the
people
for

31. bid
(AIR) 1638-59 1669 1707
Cu6
 CONSTITUTION
OF INDIA PART XX
1088
themselves the Constitution;
and 4) initially havine ing .no power
when they gave to
of the essential
features the Constitution,
of and wer
nstitution, and al s0 rec-
rec.
to alter or destroy any limitations on the power. Pa
amending power,
ognising implied
and inherent
any one of
the fundamental riokment liament
has no power to
alter or destroy all or
of its constituent 0
or, in
in
Parliament cannot abrogate the limits power
repealing those limitations and thereby purporting to do what is
other words, dden by
those limitations.
that the 24th Amendment is valid, and.
All the judges were of the view
the 24th Amendment, Parliamo a
virtue of Article 368, as amended by
by of the Constitution including thoe
power to amend any
or all the provisions those
However, seven of the judges (Sikri C,Shela
relatingto the fundamental rights.
Reddy, Khanna and Mukherjea JJ) held that #
Hegde, Grover, Jaganmohan Article subject to certain implied and inhen
power of amendment
under 368 is
ent limitations, and that in the
amending power Parliament cannot
exercise of

the basic structure or framework of

of them (exclud
the Constitution. six
change fundamental rights enshrined in Part II relato
ing Khanna J) thought that the
to the basic structure or framework of the Constitution and, therefore, are not
amendable. Six judges (Ray, Palekar, Mathew, Beg, Dwivedi and Chandrachud JD
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 the right to
property did not form part of the basic structure or framework of the Constitution
and tilted the balance in forming the majority with Ray, Palekar, Mathew, Beg
Dwivedi and Chandrachud JJ in its conclusions.
Sikri CJexplained the concept ofbasic structure by way of giving illustrations,
such as, 1) supremacy of the Constitution, 2) republican and democratic form
of government, 3) secular character of the Constitution, 4) separation of powers
between the legislature, the executive and the judiciary, and 5) federal character
of the Constitution. This structure, as pointed out by him, is built on the basic
foundation, i.e. the dignity and freedom of the individual and this cannot by
any form of amendment be destroyed.34 Shelat and Grover JJ illustrated the basic
elements of the constitutional structure by adding to those already enumerated
by Sikri CJ 1) the mandate to build a welfare state contained in Part IV or u
Constitution, and 2) the unity and integrity of the nation.33 In the same vein
Hegde and Mukherjea JJ illustrated the basic elements or fundamental tearui
of t Constitution such as: 1) sovereignty of India, 2) the democratic character
of our polity, 3) the unity of the country, 4) the essential features of tne ind-
vidual freedoms secured to the fare
citizens, and 5) the mandate to build a we
state and egalitarian
society.36 Jaganmohan Reddy I found elements the
of
its
structure of the Constitution as indicated in its Preamble and translated

various provisions. In his view, for example, a sovereign democratic ronublic,

rept
stitute
ublic

parliamentary democracy and the three organs of the State certain itute

thebasic structure, and at any rate without fundamental Dart

P
principie*
34. Ibid, (SCC) 366, paras. 292-93
35. Ibid, (SCC) 454. Para. 582.
36. Tbid, (SCC) 637-38, para. 1159.
ART. 368] AMENDMENT OF THE CONSTITUTION 1089
U89

and directive principles in Part IV the Constitution will not be the Constitution."
From the above enumeration or description of the basic elements or features of
thestructure or framework of the Constitution, it could not be easy to identify
with certainty the relevant provisions of the Constitution forming part of its basic
structure or framework, and the position could become clear only after further
pronouncement ot the Supreme Court in this regard. However, the individual
freedom secured to the citizens was regarded by all the six judges as a basic fea-
ture of the structure or framework of the Constitution, which could not be altered
or destroyed by invoking the power of amendment under Article 368.
Five judges (SIkri C, Shelat, Grover, Hegde and Mukherjea J}) found inher-
ent or implied limitations on the power o amend in the language of Article 368
before the 24th Amendment) itself. According to Sikri CJ, powers and limitations
are implied in the scheme of the Constitution, and in that way the expression
"amendment" of the Constitution had a limited meaning. Shelat and Grover JJ
pointed out that the argument that there were no implied limitations because
there were no express limitations was a contradiction in terms, because implied
limitations could only arise where there were no express limitations.3" So also
includ-
Hegde and Mukherjea JJ said that it was a general feature of all statutes,
of was qualified by the implications of
ing the Constitution, that a grant power scheme of the stat-
the context or by considerations arising out of the general
no distinction between other powers
and the
ute, and in this respect there was
Constitution.0
amending power under the the
According to these judges, the implied or inherent limitations even
on power
after the
Article 368 would still hold true
to amend under the unamended
Amendment was valid by virtue of the
amendment of Article 368, and the 24th
with its implied or inherent limitations,
exercise of the power to amend along constitutional structure or
not be eliminated within the present
which could to consider the ques-
Reddy ], it was not necessary
framework. For Jaganmohan limitations. He explained
or inherent
non-existence of implied
tion of existence or indicated that it was used
"amerndment" read with
other provisions
that the word to destruction which a
a change
in contradiction
In the s e n s e of empowering a change in the
and Article 368 empowers only
would imply, of the power
repeal or abrogation Chief Justice that the amplitude
with the
Constitution. He agreed amending the amending
could not be enlarged by
Article 368
of amendment in
reason."
a different of the Constitution
power, though for that all provisions
observed and non-
On the other hand, Ray J be made
between
essential

distinction could unless the

makers of
were essential
and n o view of
amendment,
the point of itself. In his view,
features from
Constitution
clear in the
Essential and e v e n radical,
C o n s t i t u t i o n made
it expressly make
fundamental,
so
he could was
unlimited
Constitution
amendment
amendment of the of
an Constitution
and the power
the
Changes in

37. Tbid.
365, paras.
210, 244
S8. Ibid, (SCC) 346,
39. Ibid, (SCC) 453, para. 579.
655, b57
40.Ibid, (SCC) 482, paras. 1141, 1150o.
T b i a , (SCC)
628, 633, paras.
1090
CONSTITUTION OF INDIA PART XX
existed as an amended Constitution, that is an organic
long the Constitution
as ganic
for the making, interpretation and implemen
instrument which provides
of withdrawing a system according to which acon
of
law. It means that short
the
an amendment of
the Constitution includes makin eo
a nation is governed,
Constitution." So also was the opinion of Palek,nda
g funda
mental changes in the when
Constitution must be conceded the same
he said that all provisions in a cter chara
one was more and the other was less in
and it was not possible to say that
of Article 368 were concerned t
He stated clearly that so far as the wording
was nothing in it which limited the power of amendment expressly or hu .

essary and it was not the function of the court to invent limit
implication,
where there were none" Mathew J, after having explored the political philosophy
of the fundamental rights and directive principles in the Constitution, concluded
that there were no express or implied limitations upon the power of Parliam
to amend the fundamental rights in such a way as to destroy or damage the core
or essence of the rights, and the 24th Amendment by its language made it clear
beyond doubt. In the opinion of Mathew, these rights were liable to be taken
away or limited in special circumstances for securing higher values in a societr
or for its common good. Parliament was the guardian of the rights and liberties
he people in greater degree
than the courts, and the courts could not
go into
the validity of the amendment on any substantive ground.* Almost to the
same
effect, BegJ observed that the control of judicature was limited to seeing that
the form and procedure of amendment was
properly observed. Beyond that the
authority of the judicial organ over the constituent power vested in the constitu
ent bodies mentioned in Article
368 did not exist. Yet, he conceded that the impli-
cation of the word "amendment" could exclude a
the present Constitution, possible complete abrogation of
although that could be done step by step by the bodies
empowered to amend" Dwivedi J discarded any test to distinguish essential fea-
tures from non-essential features of the
Constitution. He emphasised upon the
rigidity of the procedure prescribed in the Constitution, the
procedure, the more essential was the provision amendable more rigid was the
he found that the to it. Accordingly
essential than the
provisions specified in the proviso to Article
368 were more
of the
rights enshrined in Part III, but
they too were within the
amending power in Article 368.46 Chandrachud I saw a clear sway
between constitutional and an distinction
the Constitution was ordinary law and observed that a law
made in the exercise of a amenaing
acquired character of constitutional law. He
the constituent power and
tnere
limitations into the found it difficult to read
the text is amending power in view of the rule of innt
explicit, it is conclusive alike in what it interpretation
directs and what it forbias
tna
Khanna J agreed in
Hegde and Mukherjea principle with Sikri CJ,
Shelat, Grover, dy
JJ that an Jaganmonanave
amendment of the Constitution could
nO
42. Ibid,
43. Ibid,
(SCC) 552, 557, paras. 901,
(SCC) 682, 690, paras. 917, 917-A.
44. Ibid, 1242,
(SCC) 881, paras. 1714-15. 1263.
45. Ibid,
46. Ibid,
(SCC) 908, 913, paras. 1816,
(SCC)
47. Ibid, SCC)
942, paras. 1930-31. 1836-37.
987, 989, paras. 2013,
2089.
ART. 368]
AMENDMENT OF THE CONSTITUTION 1091

the effect of
destroying or abrogating the basic structure or framework of the
Constitution. According to him, for instance, changing the democratic
ment into dictatorship or hereditary govern
Sabha monarchy, abolishing Lok Sabha or Rajya
or
doing away
with the secular character of
sible under the garb of amendment. However, he the State, would not be
permis
differed from the above
namea
judges in that he found it not possible to read in Article a limitation on the
368
power of Parliamernt to amend the provisions relating to fundamental
rights and
to
differentiate between the scope and width of the amendment with of
respect to the fundamental rights and other provisionspower
of the Constitution. In his
view, the power to amend fundamental
rights could not be denied
them as natural or human rights so long as the basic structure of theby describing
Constitution
remained unaffected. In other words, subject to the retention of the basic struc-
ture or framework of the Constitution, the power of amendment was plenary and
would include the power to add, alter or repeal various provisions including the
fundamental rights. In his considered opinion, the right to property could not be
said to pertain to the basic structure or framework of the Constitution8
According to the"summary" signed by 9 out of 13 judges in Kesavananda Bharati
v. State of Kerala"" (Kesavananda Bharati), the majority in that case overruled Golak
Nath v. State of Punjab and held that Article 368 did not enable Parliament to alter
the basic structure or framework of the Constitution. The majority also invali-
dated the second part of Article 31-C introduced by the 25th Amendment which
excluded the jurisdiction of the courts to inquire whether a law protected under
that article gave effect to the policy of securing the directive principles mentioned
in that article, viz. the directives in Article 39(b) and ().
Indira Nehru Gandhi v. Raj Narain" gave an opportunity to the Supreme
Kesavananda Bharati. In that case, the appellant
Court to examine and apply CASE PILoT
of the Allahabad High Court invalidating
filed an appeal against the decision
Pending the appeal, Parliament
her election on the ground of corrupt practices. of the High Court judgment
overcome the effect
enacted the 39th Amendment to election disputes involving the
jurisdiction of all courts over
by withdrawing the Kesavananda Bharati,
it was argued that the
amend-

Prime Minister. Following of the

and judicial review, these being parts
and fair elections u n c o n s t i t u t i o n a l . It was
ment affected free therefore, was
Constitution; and was not com-
basic structure of the exercise of
constituent power
Parliament in the the High Court.
further argued that declared void by
election an Khanna and
to validate Court.
exercise power the Supreme
petent to unanimously upheld
by of the basic
was feature forming part
his challenge that democracy was an
essential
review in
election dis-
Mathew JJ held exclusion of judicial four
The
Constitution. Chandrachud J identified
structure of the basic
structure.

damaged the
in this
manner

putes
1448, 1469,
1509, 1533
paras. 1426,
1434,

769, 777, 786, 8o6, 820, of

*.lbid, (SCC) 767, particularly
question
of theof the judgess
49. Tbid. 2 SCR 762. of Golak
Nath
some
(1967) by
1967 SC 1643:
critique used
verbatim
tff.
0. AIR
For a very
powerful which was
Fundamental
Rights (1972)
1007. C o n s t i t u t i o n

into
4,(SCR)
between law and Some Insights
distinction PK. Tripathi,
Bharati. See,
Kesarananda
in SC 2299.
AIR 1975
SCC :
21975 Supp
 INDIA
OF
asic structurethus:
C O N S T I T U T I O N

structure
the basic
1092

unamendable
f e a t u r e s a s forming
3) secularism and freedom of conscience
status,
part of
equality of
2)
status
f status opportunity
and oPportunityy
and religion,
and
oof an
and 4) gOver anindivi
amendment sovereign
individu
by theh o t la
democratic
republic of
exclusion of judicial review
held that the
Mathe..endmen
men. He However,
However, MathewJ
and not
was an
of
outright negation
o t h e r w i s e as
to equality.
of the right
not forming part of the basic str regarded
garded
tructure
of th
equality in
the majority in Kesavana
Kesavananda
the right to
C o n s t i t u t i o n . BegJ
said that according
to
wers were basic feahat
of powers featu Bharat
Constitution
and separation
of the above the Constitui
supremacy
observed that the constituent power was exercie and
and
Ray CJ did not preclude ci e of judi-
of powers,
it being not
bound by separation thority was
was competent exclude Judi
competent to exchuda
c o n s t i t u e n t authority
law. The
cial power by In his opinion, democracy Wadsd
in election disputes.
review, if necessary, determination of ection
not free and fair elections or judicial dis-
feature but subject the was not to t
according ordinary legislation
to him,
putes. Moreover, Mathew J agreed with the Chief Justice in keon
doctrine of basic features.
of the doctrine of basic feature.
ordinary legislation out of the purview rever,
feature controlled ordinary legislation
that the doctrine of basic
Beg J asserted
too. This aspect of the case
defies logic because a basic feature of the Constitution
which cannot be taken away even by an amend.
must be part of the Constitution
ot the Constitution be disre
ment of the Constitution. How can logically any part
the and be immune from challenge.4
legislature
garded by
was not prepared to subscribe to the view expressed by Ray CJ
that the
BegJ
constituent power was superior to the Constitution, otherwise it would be unnec
essary to have a Constitution. He maintained that Parliament should not perfom
judicial and quasi-judicial functions as judicial powers are vested in the Supreme
Court and the High Courts, otherwise it would be a violation of the basic struc
ture of the Constitution. Chandrachud J, though not fully subscribing to the the
ory of separation of powers, recognised the conscious adherence to checks and
balances and said that just as courts ought not to enter into problems entwimed
with "political thicket", Parliament must also
respect the preserve of courts
A significant feature of the opinion of Ray CJ is the application ot the rule of

law as a criterion of validity and ofjudi

cial review, rather invalidating
on this
ground the
ous
disposing
of a pending
appeal, by the amendmentthis ca
The difference of approach between the opinions xpressed in alidity
found in the validity of
application
of the doctrine of basic structure to test
tne
both constitutional as well as ordinary a p p e a r s t o

be that it was not law-making. The majority

available to test the validity of ons
ofthe
the impugned prov
Representation of the People Act, 1951, as there was
olved

be reso
about the ordinary law-making no
ambigu hand, it
Was

applied to interpret the ambit of powers of Parliament. On uncer

the constituent power as tne

u n c e r

s o m e

tainty about its scope. there ing deg

a s

However, all the judges seemed to rely l

relu

53. (1973) 4 SCC

54. D. 225: AIR 1973 SC
Conrad, "Basic Structure of1461.
3 Law

and Justice (1996)3

99. Also see, J. Liitt Constitution and Principles"

Singh (Eds.Constitutiona
ditionen

u t i o n a lZwischen Den Tradin

Probleme des and M.P.
R . n g h (Eds
Verfassungsrechts uund der
Rechtskultur Indien una ruN
n d der
in
s t a n( S t e i n e r
1 9 9 9 )
ART. 368]
AMENDMENT OF THE CONSTITUTION 1093

either expressly or impliedly, upon the basic

structure theory, as revealed by the
ex Dress provisions of the Constitution to hold
ing a legislative power, Parliament could not that under the guise of exercis
dispute. adjudicate on merits in an election
The scope and extent of the
came up for
application of the doctrine of basic structure again
examination
in Minerva
Mills Ltd. v. Union of Indias
Mills). In this case the petitioners
challenged the validity of Sections and
(Minerva
Constitution (42nd Amendment) Act, 1976 on the 4 55
structure of the Constitution as laid down in ground of violation of the basic CASE PILOT

mended respectively Articles 31-C and 368.Kesavananda

In Article
Bharatis6. These sections
any directive principle were 31-C laws implementing8
exempted
of Articles 14, 19 and 31, and in Article
from challenge on the
ground of violation
idated and 368 clauses (4) and (G) validated all inval-
existing amendments and removed all
ments. While the court limitations on future amend-
unanimously invalidated
invalidated the amendment of Article 31-C the amendment of Article 368, it
by
doctrine with respect to Article 368, it held: 4: Applying the basic structure
1.

Since the Constitution had conferred a limited

Parliament cannot under the exercise of amending power on Parliament,
that limited
Indeed, a limited amending enlarge
power into an absolute power. power that very
basic features of our power is one of the
Constitution and therefore, the limitations
cannot be destroyed.57 on that
power
In respect of Article 31-C, the court held:
harmony and balance between fundamental rights and directive
essential feature of the
basic structure of the Constitution... 58 principles
is an
destroys the balance between the two parts will ipso facto Anything that
element of the basic structure of our Constitution." destroy an essential
As the amended Article
31-C gave primacy to all directive
fundamerntal rights, it violated the harmony between theprinciples
two and
over the core

destroyed the basic structure of the Constitution. accordingly

In Waman Rao v. Union
of Indias0 (Waman Rao), the Supreme Court re-
examined and upheld the validity of
Article
original arnd amended Article 31-A and of
31-B and the Ninth Schedule with reference to the basic structure doc- CASE PILOT
rine. About the 1st Amendment introducing these articles and the schedule
into
the Constitution, the court also said that instead of weakening the amend-
ont strengthens the basic structure because it "made the constitutional ideal
Or
equal justice a living truth1, The court also said the same thing about the

98o)3 SCC 625: AR 1980 SC 1789; see also, Waman Rao v. Union ofIndia, (1981) 2 SCC 362:
AIR 1981 SC
271.
6.(1973)4 SCC 225: AIR 1973 SC 1461.
ineroa Mills Ltd. v. Union of India, (1980) 3 ScC 625: AIR 1980 SC 1789
58. Ibid,
59. Tbid, AIR) 1806.
60. (AIR) 1807.
1981) 2ScC 362: AIR 1981 SC 271. Also Ambika Prasad Mishra v. State
see, of l.P, (1980) 3 SCC
719: AIR 1980 SC 1762.
Waman Rao v. Union ofIndia, (1981) 2 SCC 362: AIR 1981 SC 271.
1094
C O N S T I T U T I O N
OF INDIA
PART XX
Constitution

unamended Article
31-Cas it
the
stood before
held
(42nd mendment
Schedule, the court

Act, 1976.
But about the Ninth
made before 24 April 1973, i.e. the day on which
ch amendmer
dmen
judgment
men in
to it which
were
were valid. Amendments
valid. Amendments to
it
Kesavananda Bharatis was rendered,
the ground
on the ground that
tha made .n
left open to challen; ney da
after that date But even inclusion cey dam-
were
or
of the Constitution.
age the basic structure
beyond chalenge
if such laws were
were
such
alnI laws
in the Ninth
Schedule was
In another case, the court
already
rejected th cov
Coy
ered by Article 31-A or 31-C. the submis
exercise of its constituent
could not, in the owe
sion that Parliament
validate the State law by it in the
including Ninth Sender
Article 368,
In I.R. Coelho v. State of T.N.65 (1.R. elho), a nine-judge Bench nedule"
reaffirmed the law laid down in Waman Raos It gaveby
Sabharwal CJ unanimously
certain clarifications with respect to the tests to be applied
d for judgingthe
CASE PILOOT
discussed below.
judging the valid.
of amendments which are
ityIn Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd. (Sanjeev Coke), whilo .
con
sidering the validity of the Coking Coal Mines (Nationalisation) Act, 1972 inder
Article 31-C, as it stood before its amendment by the 42nd Amendment. China
appa
Reddy J, speaking for a Constitution Bench of the court, expressed some misei
ings about the Minerva Mills cases* insofar as it invalidated the amendment of
Article 31-C. He said that the Minerva Mills case was concerned with a law passed
before the amendment of Article 31-C by the 42nd Amendment and therefore
any decision on the validity of the amendment of that article was purely hypo-
thetical and academic. Moreover, he supported the minority view of Bhagwati]
in the Minerva Mills case that on the logic of Kesavananda Bharati*", Article 31-C, as
amended by the 42nd Amendment, was constitutionally valid. He left the mater
there with the observation that "we wish to say no more about the Mineroa Mils
Case as we are told that there is pending a petition to review the judgment""No
review petition has, however, yet come
up before the court for hearing. Besides,
the observations of
Chinappa Reddy J are subject to harsher criticism tor
same reasons for which he
criticised the decision in the Minerva Mills case. n
Minerva Mills case, the question whether the court should hear arguments on
validity of 42nd Amendment was raised and allowed, and it is only after
arguments on both sides that the court gave its judgment. In the Sanjeevthor Case,

whether any of the parties raised any doubtssabout

there is no trace whatsoever
the soundness of the
abou
sed his
Minerva Mills case. The judge seems to have
expre
62. Ibid, (AIR)
292.
63. (1973) 4 SCC
225: AIR 1973 SC
64. Sasanka Sekhar 1461.
Maity
v. Union of India,
2 SCC 1: AlR 2007 SC 861. Also (1980) 4 SCC 716: AIR 1981 SC 522
65.
(2007) I.R. SCC58o:
AlIR

1999 SC 3179 see, Coelho v. State of T.N., (19999 7

66.
(1981) 2SCC 362: AR 1981 SC 271. Also
719: AIR 1980 SC see, Ambika Prasad Mishra v. Stare
67. (1983) 1 SCC 1762.
68. (1980) 3 SCC
147: AIR 1983 SC
625: AIR 1980 SC 239. SCC36
AIR 1981 SC 271. 1789; see also, Waman Rao v. Union ina"
69. (1973) of
4SCC
70. Sanjeev Coke 225: AIR 1973 SC1461.
Mfg. Co. v. Bharat
Coking Coal Ltd., (1g83) 1 SCC 147: AlK S Ca39,,248
9
ART. 368] AMENDMENT OF THE CONsTITUTION 1095

iews
out of context or as part of his "courage of conviction and the courage of
V sjon" necessary for crystallising and strengthening the judicial review of
constitutional amendments,71
Without taking any note of the Sanjeev Coke case but relying exclusively on the
7 a Mills case, particularly on those observations of Bhagwati J on which
a r e e d with the majority, the court in S.P. Sampath Kumar v. Union of India"
aupheld the validity of Article 323-A which provides for administrative tribu-
nals free from the jurisdiction of all courts, except the Supreme Court, on the
oround that P'arliament could make effective alternative institutional mecha
nisms or arrangements for judicial review without violating the basic structure
of the Constitution, if such arrangements or mechanisms are no less effective
than the High Courts. Since, as we have discussed above under Part XIV-A, the
lacked
Administrative Tribunals Act, 1985 made in pursuance of Article 323-A
in providing the effective alternative, and the court ordered
in certain respects
to be made in the Act within a specified time in order to
save
necessary changes
to this case alone and not to any others
it from unconstitutionality. Referring the court
v. State of A.P.73 (Sambamurthy),
discussed above, in P. Sambamurthy invalidated clause (5) of Article 371
speaking through Bhagwati CJunanimously
CASE PILOT
Constitution with
article w a s introduced by
the 32nd Amendment of the
D. This that the final order
The main part of clause (5) provided
effect from July 1974.
1
of that article could
administrative tribunal to be
set up under clause (3)
of the the expiry of
confirmation by the government o r o n
its to modify or
become effective upon authorised the government
months. The proviso
to clause (5) w a s "violative
of
three held that the proviso
tribunal. The court
annul any order of the
Constitution".If
essential feature of the
a basic and
is clearly "can be set at naught
the rule of law which the court added,
of judicial review, it, it would
the exercise of the power decision given against
overriding the clause (5) w a s
G o v e r n m e n t by main part of
the State Since the
by the rule of
law""
rationale for its independ
d e a t h - k n e l l of
sound the and did not
have any
with the proviso
closely related clause was
invalidated.
Court upheld the
the entire India?75, the Supreme
ent existence, Union of the former
which derecognised
v.
Ganpatrao
In Raghunathrao Act, 1971 repealing
Amendment)
other
privileges by the
privy purses and The c o u r t
(26th conceded that
Constitution their
abolished
rulers and Article 363-A. but did not agree
ndian and inserting
Constitution

the It
part of
Constitution.

Articles 291
and 362 integral structure
of the
an dignity
provisions
were
constituted
a basic human
republicanism,
epealed provision with the
constitutional

integral c o n s o n a n c e

through
in
lat every the
a m e n d m e n t

Preamble
and
running
tound
atner in the
proclaimed
equality
CC
provisions.

110.

C o n t e n t i o n
(1985)
and
Craft
Courage, SC 386.
71. U. Baxi, AIR 1987
SCC 124: SC 663.
(1987)1
AIR 1987
C 1 SCC362: (AIR) 667.
(1987) para. 4: SC 1267.
369, A I R 1993
Tbid, (SCC)
4.
1 9 9 4

Supp (1)
S C C 191:
1096
CONSTITUTION
OF INDIA PART XX
India"s (L. Chandra K s , the Suns
Supre
Union of
Chandra
Kunar v.
and
and 323-B eyc.the
exclud
In L. extent
Articles 323-A Hiea the the ejuris
held that to the Article 32 and of the
Court
of the Supreme
under Court
The court emphasised tho
ourts under
CASE PILOT
diction
Article 226, they
were

of
unconstitutional.

the Constitution
which could not be diluted t
arevi judicial revie
basicfeature and a n s fer
excluding the
was a tribunals
view ofof th
theit
and ew
administrative
the
judicial power to or 226.
of this.decision
In view decisionthoVailabil
trib wainals,
lability
under Article 32
against the decisions
determinations
Article 226 of the
isions of
review under
of judicial
retired
that if a
of a
judge High Court was appointed Chaals, the
Chairman of a
court held
ChiefJustice of the High Court or
tribunal in consultation with the
the Chief Justice of the High Court sitting
is soappointed after nomination
by other judicial and non
with the
the
Chief Justice of India, and the
c o n c u r r e n c e of the
members were appointed without such consultation or nomination, theo
constitu
a
tion of the tribunal would
be valid.7
Later in M. Nagaraj v. Union of India", a five-judge Bench unanimously unhal,
the validity of the Constitution 77th, 81st, 82nd and 85th Amendments add upheld
clauses (4-A) and (4-B) in Article 16 and amending the former and insertine ng
visoin Article 335. The nine-judge Bench in L.R. Coelho" unanimously held that
amendments adding new laws in the Ninth Schedule after Kesavananda Bharti v.
State of Keralao (Kesavananda Bharati), i.e. after 24 April 1973 were subject to basic
structure requirement. But it did not decide upon the validity of any amend
ment in the Ninth Schedule. In Ashok Kumar v. Union of India", the court upheld
the validity of the Constitution 93rd Amendment which inserted clause () in
Article 15 insofar it applies to public educational institutions. The majority of
four judges did not test its application to private institutions, because no such
it. The dissenting single judge, however, invalidated it
institution approached
insofar as it applies to private unaided institutions. But later when the validity
ofthat amendment was directly questioned, the court unanimously upheldit
While the independence of
judiciary was time and again held to be part or ir
basic structure ofthe Constitution since Kesavananda, for the first time amend
ment
to the Constitution
curtailing the primacy of the judiciary in the apPor
ment of judges, which it had earlier held to be part of the basic structure
Constitution, was held unconstitutional.3
Contents of basic structure.-With these ce ofthe

doctrine of basic structure in our pronouncements,

the exi
é dis
constitutional law is no more a mae
pute. The only dispute remains about its contents. Some of the contents
have settled, while others others
are in the me

will settle in course of process of settling down and sul

time. From Kesavananda Bharati to hy
judicial

76. (1997) 3 SCC 261:

Sambamur '

AIR 1997 SC
77. State of A.P. v. K. 1125.
78. (2006) 8 SCC 212: Mohanlal, (1998) 5 SCC 468.
AIR 2007 SC 71.
79. (2007) 2 SCC 1: AIR 2007
80. SC 861.
(1973) 4 SCC 225: AIR 1973 SC
81. (2008) 6 SCC 1. 1461.
82. Pramati Educational and
83. SC Advocates on Charitable Trust v. Union of
84.
Record v. Union
of India,
India, (2014) 8SC
CC 1.
(1987) 1 SCC 362: AIR 1987 SC 663. (2016) 5 SCC 1.
 AMENDMENT OF THE CONSTITUTION 1097
ART. 368]

a s o n e of the aspects of the basic structure doctrine;

iew clearly
emerged
the co cturedoctrine' but in
Ihu2
Zachillhu (Kihoto Hollohan), the court left this issue
iSsue open. Finallv
open. Finally,
Kihoto
Hollohan v. this
Kihoro has settled that judicial review is part of the basic structure of
Chandra Kumar
Kiho

L.
L. Kihoto Hollohon unanimously recognised democracy as a basic
Constitution.

Free and fair elections based o n adult franchise and

of
feature of the Constitution.

enulti-party system
are demoCracy.' Secularism has been recognised as
part of Bommai
in S.R. v. Union of India* (S.R. Bommai) and other
basic features
ne ofthe S.R. also recognised federalism as one of the
Some of the judges i n Bommar
cases.
such features, the rule of law,* harmony and balance
hasic features. Among other and directive principles,' independence of the judi-
hetween fundamental rights of the basic structure in itself
a r e included. Unamendability
ciary10 and equality" Constitution." Principle of reasonableness
the basic structure of the
constitutes law judicial review may also fall
in line." More
closely linked with the rule and
of Nehru
in Kesavananda Bharati4 o r Indira
those enumerated by different judges
of
or by scholars or publicists
in their writings will crystallise
Gandhi v. Raj Narain occasion arises.6 The fact that the judiciary has a
of time or when the of
in course
amendment of the Constitution is the most notable aspect
matter of
say in the
structure.7
the doctrine of basic
SC 631
Sharma v. Union of India, 1991 Supp
(1) SCC 574: AIR 1991 the Tenth
1. See also, Subhash
however, minority view on para. 6 of
AIR 1993 SC 412. See, insofar
2. 1992 Supp (2) SCC 651: violates a basic feature
of the Constitution
Schedule according to which
this para
final.
it makes the decision of the Speaker
as, among others,
3. (1997) 3 SCC 261: AIR 1997
SC 1125. AIR 2003 SC 2363; Kuldip
Liberties v. Union of India, (2003)
4 SCC 399:
4. People's Union for Civil 2006 SC 3127.
SCC 1, 116, 159: AIR (1994) 1SCC 265;
Nayar v. Union of India, (2006) 7 also Union of India v. M. Ismail Faruqui,
AIR 1994 SC 1918; see, in the S.R.
.(1994) 3 SCC 1: SCC 324: AIR 1993 SC 1804. Notably
(1)
Poudyal v. Union of India, 1994 Supp
secularism was
w a s involved yet
R.C. no
constitutional amendmernt
bomimai and Faruqui cases, the Constitution.
held to be of the basic features of
one

6.(1994) 3 SCC 1: AIR 1994 SC 1918. Union of India, (2006) 7 SCC 1. V.

Nayar v. P. Sambamurthy
.Also recognised in Kuldip SCC 124: AIR 1987 SC 386;
v. Union of India, (1987)
1
o..P. Sampath Kumar SC 663.
A.P, (1987) 1 SCC 362: AIR 1987 3 SCC 625: AIR 198o SC 1789.
State of
Minerva Mils Ltd. v. Union India, (1992) 2 SCC 428, 456: AIR 1992 SC 1213; Supreme Cour
(198o)
of Court
Union of India, AIR 1994 SC 268; Supreme
umar Padma Prasad v. SCC 441:
v. Union ofIndia, (1993)
4
Ocates-on-Record Assn.
Assn. v. Union ofIndia, (2016)
5 SCC 1. M. Nagaraj v.
Union of
Adocates-on-Record AIR 2 o 0 o SC 498;
1 SCC 168:
awhney (2)v. Union of India, (20oo)
India, (2006) 8 SCC 212: AIR 20o7 SC 71.
AIR 1980 SC 1789.
Mineroa Mills Ltd. v. Union of India, (19g80) 3 SCC 625:
Reasonableness" (1987)
3 SCC}31.
Constitutional Principle of
14 MP. Singh, "The
4.(1973) 4SCC 225: AIR 1973 SC 1461.
1975 Supp SCC 1: AIR 1975 SC 2299 The Critics Speak
(1975).
S. Malik, Fundamental Rights: see, U. Bax1, Courage
17. P ne views see, highlighted this aspect and its importance:
has always exist and persist agalns Judiciary
Cro x also very strong views Branch: The
Contention (1985)64f. But Dangerous
Te a "The Most
and the
Judicial
Frontiers
ot Irudia:
review of amendments. See e.g. PK. Tripathi,
Democracy
A
Lawasia 1; "Rule of Law,
Power under
the
C o nstitution
of
Activi ature" (1974) 5 Raman, Amending "The Supreme
Court and
Sunder
975)17 JLI 17: Law House 1990); R.
Ramchandran,
Essays in
Politien (Eastern but Not Infallible:
Study Supreme
theR r u c t u r e Doctrine" in B.N.
Kripal, et al. (Eds.),
 PART XX
Legislature and Executive
Interestingly, the doctrine of basic structure was
of Indial (S.R. Bommai), but the applied
S.R. Bommai v. Union
to executie
court
legislation" In that situation it becomes enigmatic as to how declined to acts in
declined to ap
amendment to the Ninth Schedule as held in validity it toto
ow the validi
Waman Rao v. Union
of India2 an of an
Rao) and I.R. Coelho v. State of T.N.2 (I.R.
an amendment to the Coelho) will be
Schedule violates basic structure of w(Wa n
determined.
be known only
by going into the contents of the law Constitution ther
the Constitution
and not otherwise. If the courts
cannot examine the
included in the Scho
in the Ninth Schedule contents of the law dule
vis-à-vis the basic structure of
included in the Ninth Schedule continues to
view of this
the
be valid and Constitution,included
latw
the law
anomaly, but without reterence to the earlier operative.2 Perhaps:
ordinary legislation from the decisions that excluded
application of the basic
the judges
speaking for the majority of the court hasstructure doctrine, one af
structure' of the constitution shall stand violated if whileopined that "[t|he "basic
taining to transfer of judicial power, Parliament enacting
does not ensure legislation per-
created court/tribunal conforms with that the newly
the salient
characteristics and standards of
Honour of theSupreme Court of India (20oo) 107. For a critical
Chopra, TheSupreme Court versus The study of the subject, also
18. (1994) 3 SCC 1: AIR 1994 SC 1918; alsoConstitution: A Challenge to Fëderalism (2oo6). see, Pran
see, Union of India v. M.
265; R.C. Poudyal v. Union of India, Ismail
Bommai and 1994 Supp (1) SCC 324: AIR 1993 SCFaruqui, (1994) 1 SCC
Faruqui cases no constitutional amendment was
held to be one of the basic
1804. Notably in the
features of the Constitution. involved yet secularism was
19. See, Indira Nehru Gandhi v.
Union of India, Raj Narain, 1975 Supp SCC 1: AIR
(2006) 1975 SC 2299;
Thakur v. Union of India, WPKuldip Nayar v.
7 SCC 1, 67; Ashoka Kumar
2006 decided on
20. 10-4-2008 (Balakrishnan J) para. 93.
(1981) 2 SCC 362: AIR 1981 SC
(Civil) 265 of
271. Also see, Ambika Prasad Mishra v.
719: AIR 1980 SC 1762. State of U.P, (1980) 3 SCcc
21. (2007) 2 SCC 1: AIR 2007 SC 861. Also
1999 SC 3179. see, I.R. Coelho v. State
of T.N., (1999) 7 SCC 580: AlR
22. In this
regard reference may, however, be made to
212, 243 where in M. Nagaraj v. Union
para. 25, the court has held: of India, (2006) 8 5CC
Ln order to
qualify an essential feature, a
as
the constitutional principle is to be first
law and as such
binding on the legislature. Only established
as part or
ined whether it is so then, it be
to form fundamental as to bind even the can
exam
part of the basic structure of the amending power Parliament le
of
Notably, Nagaraj was decided
Constitution.
on
22-8-2006. reference however to 19-10-2006, while Kuldeep Nayar was deciu
No
sions were unanimous Kuldeep Nayar was made in Nagaraj. Both
in Ashoka Kumar given by Constitution Benches of five-judges
the de
Thakur v. Union
of India, WP (Civil) No. each.
Balakrishnan (CJI) reiterated that 265 of 2006, Pake
basis of basic structure ordinary legislation was not open to
SCC 168: AIR 2000 SC principle. Earlier in Indra Sawhney (2) v. Union chalegl
498, a three-judge Bench
action violating the basic
of India,
remarked that legislation
this scenario can we
say
structure of the
that the basic Constitution would be uncon or al. In
of election laws, as was the structure doctrine may not in case
case inIndira Nehru Gandhi and be appLle it will
be
applicable
the legal
to other laws? It
may also be noted that Kuldeep Nayar,
while in Cne
position
it was laid down in
was stated in the Nagaraj
abstract, in Indira Nehru Gandhi and In NauaT
respect of specific legislation,
i.e. the
and People
P
Act, 1951. Represerntation or
 AMENDMENT OF THE CONSTITUTION 1099
ART. 368]

couoht to be substituted."23 The same judge in the NJAC case has reit
the court sougB
would be
while "it would be technically sound to refer to the articles which are
that w h i l e
erated
ated, when an a nordinary
orc legislation is sought to be struck down as being ultra
when
iolated,
the provisions of the Constitution.. that would not lead to the inference that

tostrike
down an ordinary legislative enactment as being violative of the "basic
structure" wouldbe
b wrong" While both the observations are made in the context
amendments
f sriew affecting the judiciary, the latter is broader than the former. But
of amendments affec
of earlier clear decisions on the point doubt persists whether an ordinary
in
be on the sole ground of violation of basic structure
egislation
can
challenged violates.
ithout reference to the specific articles which the legislation
Judiciary
and M. Nagaraj v. Union of India26 (Nagaraj), it may also
In the light of Waman Rao doctrine of basic structure. In
be inferred
that the judiciary is also subject to the
the history of the 1st Amendment, the
Rao, as noted above, relying upon
Waman of weakening
to the conclusion that Articles 31-A and 31-B instead
court came
the respondents
basic structure of the Constitution, strengthen it. In Nagaraj,
the
that "the power under
Article
368 has to keep the Constitution in repair
argued becomes and thereby protect and preserve
the basic
as and when it necessary
amendments challenged in that case
and the court admitted that the
structure"7, its interpretation had
nature"7". It m e a n s that the judiciary by
were "curative by the basic structure of the
Constitution which was not consistent with
created a restored the basic
its makers. The amendments
Constitution as given to us by determination of the
the judicial interpretation. Thus,
structure by overruling domain of the judiciary;
the Constitution is not exclusively the
basic structure of
the judiciary
it lies with the people including

Test for Basic Structure

Constitution in diferent
features of the
enumerated several basic test to decide if a n
After having tried to formulate a general
has of
Cases, in Nagaraj2, the court
structure of the Constitution. "In the matter

amendment is against the basic the court held that "twin tests have
of the principle of basic structure",
application 'width test' and the
test of i d e n t i t y . U p h o l d i n g
namely, the and (4-B)
De satisfied, three amendments in Article
16 inserting clauses (4-A)
the validity of amendment in the former as well as in Article 335, a w five-judge
the 'width test, e
do not
dmaking an held that "Talpplying
Dench of the court unanimously

10 SCC 1, 218.
Madras Bar Assn. v.
Union of India, (2014) Union of India, (2016) 5
SCC
hehar J in Advocates-on-Record Assn. v.
Court
AneharJ in Supreme SCC CASE PILO
CASE PILOT

1,451-52 Ambika Prasad

Mishra v. State of U.P, (1980) 3
25. Also see,
2SCC362: AIR 1981 SC271.
1719: AIR 1980 SC 1762.
26. (2006) 8 SsCC 212: AIR 2007 SC 71
27. Tbid, 238.
28. Tbid, 270
29. (ao06)8 SCC 212 AIR 2007 SC 71
30. Tbid,
(SCC) 268.
1100 CONSTITUTION OF INDIA
PA XX
constitutional limitations,
of any of thealteration in the
An.

existing structureing the test

find obliteration
not find any
identity', w e do
code". Relying upon the earlier cases, especially Kesavananda rati3l, j equ
that not an amendment of a particular article but an amendmen+
affects or destroys the wider principles of the Constitution such
as
clequal
ndment that advarifiietyd
secularism, equality or republicanism that
or the one th

Constitution is impermissible.32 "To destroy its identity is to

the democracy
changes
identity
abrogate the ofbasicthe
structure of the Constitution", concuded the court. A ittle later;
of

a nine-judge Bench unanimously re-emphasising the identity test Coelho

respect of the fundamental rights. While, according to L.R. Coelho,Natvaried it in
that in respect of the amendments of the fundamental rights, not the char
Coelho, Nagarajs held
held
particular article but the change in the essence of the right must be the test for inthea
changein identity; in I.R. Coelho, the court held thatiif the "triangle
of Artic
read with Article 14 and Article 19 is sought to be eliminated not le 21
of right' test but also the 'rights has to only the 'es
test apply."s Pointing out the difer
between the "rights test" and the "essence ot right" test, the court
both form part of application of the basic structure observederence
that
doctrine, but
w]hen in a controlled Constitution conferring linmited power of amendment
entire chapter is made
inapplicable, 'the essence of right' test as applied in M
Nagaraj case will have no applicability. In such a situation,
an -

to
the law, it is the
'rights test' which is more judge the validity of
appropriate.37
In the context of amendments to the
Ninth Schedule, the court
validity of each new constitutional amendment concluded that the
must be
"The actual effect and
impact of the law on the judged
on its own
merits.
has to be taken into account
for
rights guaranteed
under Part IlI
determining
whether or not it
determine the validity of the destroys
structure. The impact test would the basic
Long before these cases, one of the main architects of challenge."38
had said that as the basic structure doctrine
amending power is intended to be very wide
oJnly clearest cases of
transgression would justify judicial intervention,
edy of last resort. Regularly,
of power, of some such cases will be asarem
discernible by an element of
the
collateral purpose
appearing behind the abusebf
amendment. In the absence of such elements a purportea scop
stitutionality must operate even more than in general presumption or c
the case of ordinary legislatio
31. (1973) 4 SCC 225: AIR SC
32. M.
Nagaraj v. Union
of
1973 1461
33. Ibid India, (2006) 8 SCC 212,
34. (2007) 2SCC
268, para. 102.
1, 104, 107: AIR
35. (2006) 8 SCC 2007 SC 861.
212: AIR
36.
(2007) 2 SCC 1, 108, 111.2007
SC
With
71.
due
"essence of right" in respect to the court, I could ed
vords

37. Ibid,
(SCC) 108. Nagaraj. not find the q
38. Ibid,
(SCC)
39. J. Luett and
111.
M.P. Singh (Eds.), D.
Conrad, Cons
see, D.
Constituent D Conrad, Zwischen Den Traditionen (Stainer 02;also

Reconsideration Power, Amendment

(1977 and 1978) and 199Criio
nstitution: A CTi
6:7 Delhi L Rev 18.Basic Structure of the Cor
 AMENDMENT OF THE CONSTITUTION 1101
ART. 368]

acent of
of basic structure of our Constitution is the creation of judicial
concept

As
As thetion and not expressly mentioned or specified in the Constitution as is
the

Constitutions of Europe and other parts of the world, its con-

n t e r p r e t a t

intee in
in
case
many Constit
many
the time, uncertain, if not vague. But uncertainty
at least for some
ill remain,
tents w i l l

not lead
to any approach exposing the sanctity of the con-
principled
shoul
the charge of judicial arbitrariness. Therefore, in my view
it to th
it
ept and
and subjecting
subjecting to be worked out at two levels: one, in terms
cept of the basic tructure could
ept
contents

the and the other in terms of values aspect of the Constitution.

structural aspects
republicanism, federalism, parliamentarian-
ructural aspects are such
as

and unity of the nation. Among the values

em.iudicial unity or unitaryJudiciary
enumerated in the Preamble such sovereignty,
primarily
are the ones which are
equality, fraternity and dignity of the indi-
liberty,
secularism, democracy, justice,
made to the be finality of the contents of the basic structure,
vidual. No claim may that any and every amendment of the
should also not remain so vague
hut they on the ground of breach of basic
structure
Constitution is subjected to
challenge death. The goal
in unworkability of the Constitution and its ultimate
resulting Constitution. From of the
and not the destruction
of the concept is preservation
structure has travelled into the
Constitutions of the
doctrine of basic
India, the and Nepal and to some extent
also
countries such as Bangladesh
neighbouring
to Pakistan.0

Basic Structure and Flexibility

Kesavananda Bharati v.
Punjab and well before
A little before Golak Nath
State of v.
that "The amend-
Bharati), Granville Austin remarked
State Kerala2 (Kesavananda
of of
itself one of the most ably conceived aspects
has proved of almost
process, in fact,
ing Constitution."3 the above two cases, an empirical study
Much after
the
Constitution of the US
in 1789, concludes
Constitutions since the flexibil-
all the writtenamendment provision strikes the optimal balance between on consti-
that "India's a little later, another comparative study
ty and c o m m i t m e n t . " Again
tutional change observes:
great a
the most sophisticated
one establishing
inbased
probably upon the
care-
india's Constitution is to adapt and change
its arrangements
o r e v e n flexible
variety of procedures matters (almost a model of variable rigidity
Tul selection of
different
if an is tolerated here).*"
rigidity, oxymoron

Constitutional Principles" (1996)

and in any
Structure of the applied it yet
Constitution
40.
D . Conrad, "Basic Pakistan Supreme
Court has,
however, not
dna Justice 99. The
Cae
case.
AIR 1967 SC 1643: (1967) 2 SCR 762.
1973) 4 SCC 225: AIR 1973 SC 1461. (OUP 1966) 255.
Constitution:
Cornerstone of a Nation National Constitutions (Cambridge

44.7 n The Indian Melton, The

Endurance of
nsburg
and J. (Hart
Universita. Comparative Study
University Press 20o9) 152. Constitutions
Change: A
and C. Fusaro (Eds.). How
ver
Publishing zo11) 435:
1102 CONSTITUTION OF INDIA
PART XX
Thus the basic structure of fine balance between flexibility and rioid.
to the Constitution by its makers has been well
preserved by the ha8ven
ture doctrine, as is evident from the number of amendments since Ke Struc.
Bharati 46 nanda

46. Ibid.

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Golak Nath v. State
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L.R. Coelho v. 1967 SC
State
Indira Nehru Gandhi v. of T.N., (2007) 2 SCC 1 1643: (1967) 762 2 SCR
CASE PILOT

Kesavananda Bharati v. Raj Narain, 1975

State of Kerala, Supp SCC1
Kihoto Hollohan v.
L. Chandra Zachillhu, 1992 Supp(1973) 4 SCC 225
(2) SCC 651
Kumar v. Union
Minerva Mills Ltd. v. of India,
P. Union of India, (1997) 3 SCC 261
Sambamurthy v. State of A.P., (1980) 3 SCC
Sajjan Singh v. State of (1987) 1 SCC 362 625
Shankari Prasad Rajasthan, AIR
Singh Deo v. Union 1965 SC 845: (1965) 1 SCR 933
Supreme Court of India, AIR
.Waman Advocates-on-Record
Rao v. Union
of
Assn. v.
1951 sC
Union
458: 1952 SCK 9
of India, (2016)
India, (1981) 2 5 SCC
SCC 362