Handout 2_Lecture 2.1 and 2.2_Theme 2_Rights

Magna Carta Mains 2024 : Crash Course for GS Paper II : Atish Mathur
Part I : Polity & Governance

Theme 2 : Preamble, FR, DPSP, FD
Lecture 2.1 and 2.2
The Fundamentals
Syllabus + PYQs (2013-2023) + Current Affairs = Topic Relevancy
Explicitly mentioned Dimensions Frequency Trigger Event Themes

Implicitly mentioned Floating Topics
Stand Alone Context
Integrated
PYQ Analysis
Preamble
WHEN? WHAT? WHY?
2016 Discuss each adjective attached to the word ‘Republic’ in the 40 years -
‘Preamble’. Are they defendable in the present 42nd C.A.
circumstances? 1976
Possible Ques
Utility & Impact of the Preamble?
FR
WHEN? WHAT? WHY?
2013 Discuss Section 66A of IT Act, with reference to In-news, cartoonist arrests,
its alleged violation of Article 19 of the Judgement pending
Constitution.
2014 What do understand by the concept “freedom of Election year,

speech and expression”? Does it cover hate Muzaffarnagar Riots, 100
speech also? Why do the films in India stand on a years of Indian Cinema, PK
slightly different plane from other forms of movie release
expression? Discuss.
Telegram : t.me/csepaper2Atish | contact@atishmathur.com

2015 Does the right to clean environment entail legal No outright ban but
regulation on burning crackers during Diwali? restrictions on noise levels,
Discus in the light of Article 21 of Indian timings, env standards etc.
Constitution and judgements of the apex in this
regard.
2017 Examine the scope of Fundamental Rights in the Puttuswamy Judgement

light of the latest judgement of the Supreme Court
on Right to Privacy.
2019 What can France learn from the Indian Hijab-Mother-School Trip
Constitution’s approach to secularism? Issue, Notre Dame
cathedral etc.
2021 Analyze the distinguishing features of the notion of Black Lives Matter
Equality in the Constitutions of USA and India
2022 “Right of movement and residence throughout the COVID 19 Lockdown,

territory of India are freely available to the Indian CAA Protests, Farm Law
citizens, but these rights are not absolute. “ Protests, Assam
Comment. Mizoram Border Dispute,
2022 “The most significant achievement of modern law in 25/35 years* of landmark
India is the constitutionalization of environmental env cases - MC Mehta,
problems by the Supreme Court.” Discuss this Vellore, Rural Kendra
statement with the help of relevant case laws. etc.
2023 The Constitution of India is a living instrument with 45 years of

capabilities of enormous dynamism. It is a constitution Maneka Gandhi
made for a progressive society”. Illustrate with special case
reference to the expanding horizons of the right to life and
personal liberty
2023 Explain the constitutional perspectives of Gender Justice Triple Talaq Case
with the help of relevant Constitutional Provisions and (Shayara Bano) - 5
case laws. years, UCC in
news
2021 ‘Constitutional Morality’ is rooted in the Constitution itself CAA-NRC, 370,

and is founded on its essential facets. Explain the Sabrimala, Lt. Gov
doctrine of ‘Constitutional Morality’ with the help of v. Delhi
relevant judicial decisions.

Special Questions
WHEN? WHAT? WHY?
2018 Whether National Commission for Scheduled Castes AMU, JMIU

(NCSC) can enforce the implementation of constitutional denying SC
reservation for the Scheduled Castes in the religious reservation
minority institutions? Examine.
2021 ‘Constitutional Morality’ is rooted in the Constitution itself CAA-NRC, 370,

and is founded on its essential facets. Explain the doctrine Sabrimala, Lt. Gov
of ‘Constitutional Morality’ with the help of relevant judicial v. Delhi
decisions.
FR Mains 2024 Analysis
Factors Outcomes
Anniversaries of judgements Minority Rights

Anniversaries of imp. constitutional Property Rights
amendements Digital Rights
Art 19 and Art 21 UCC
Imp SC cases in progress Life - Death - Euthanasia
Major HR issues in US, UK, and France Scope of Art 14
Election Year Context Press Freedom
DPSP
WHEN? WHAT? WHY?
2015 Discuss the possible factors that inhibit India from 30 years of Shah Bano
enacting for its citizen a uniform civil code as provided
for in the Directive Principles of State Policy.
2023 Who are entitled to receive free legal aid? Assess the 1st National Lok
role of the National Legal Services Authority(NALSA) Adalat, 35 Years -
in rendering free legal aid in India Legal Services Auth
Act.
DPSP Mains 2024 Analysis
Factors Outcomes
Anniversaries of judgements FR DPSP Relationship - Harmonious

Anniversaries of imp. constitutional Construction

amendements
Anniversaries of landmark policy decisions
Imp SC cases in progress
Basic Structure
WHEN? WHAT? WHY?
2013 The Supreme Court of India keeps a check on arbitrary 40 years -

power of the Parliament in amending the Constitution. Kesavananda
Discuss critically. Bharti Case
2016 What was held in the Coelho case? In this context, can you 10 years* to case.
say that judicial review is of key importance amongst the
basic features of the Constitution?
2019 Parliament’s Power to amend the Constitution is a limited Art 370

power and it cannot be enlarged into absolute power. In Abrogation, CAA
light of this statement explain whether Parliament under 2019
Article 368 of the Constitution can destroy the Basic
Structure of the Constitution by expanding it’s amending
power.
Possible Ques
1. Impact Analysis
Issue Matrix Pedagogy
Minority Rights Basic Structure & Harmonious Construction

Property Rights Property Rights -
Digital Rights Minority Rights
UCC UCC
Life - Death - Euthanasia Art 19 related issues
Scope of Art 14 Art 21 related issues
Press Freedom Art 19 & 21 related issues
FR-DPSP: Harmonious Construction Art 14 : Scope & Doctrines
Basic Structure Impact

Basic Structure & Harmonious Construction
Amenability of FRs, Relationship between FRs and DPSP,

Property Rights
Possible Questions?
1. What is Basic Structure?

2. What is the rationale behind it?
3. What is the relationship between basic structure and constitutionalism?
4. What is the relationship between basic structure and rule of law?
5. How did it evolve?
6. What was held in the Kesavananda Bharti Case?
7. What has been included in the Basic Structure?
8. What has been excluded in the Basic Structure?
9. What is its impact on -
a. Judicial Review
b. Judicial Activism
c. Parliamentary Sovereignty
10. What is the critical analysis of having such a doctrine?
11. Can Basic Structure be amended/diluted?
12. What about other countries?
13. What was held in the Minerva Mills Case? Why is the case important?
14. What is the relationship between FR and DPSP?
15. What is the nature and state of property rights in India?

1. What is Basic Structure? (Intro)
● It is a constitutional law doctrine that places restrictions on amending certain

essential or basic principles embedded in the Constitution
● Influenced by several radical constitutional amendments in Germany during the
Weimar regime, German Law Professor Conrad is responsible for the genesis of the
basic structure doctrine.
● Though mentioned briefly during the Golak Nath case in 1967, the doctrine was
cemented in the landmark 13 judge SC case of Kesavananda Bharti in 1973
● The great lawyer Mr. Nani Palkiwala has been credited with persuading the SC to
formulate the doctrine of Basic Structure
● Hailed as a landmark in modern constitutional jurisprudence, one of India’s finest
legal minds Zia Mody credits this as the first case in her book ‘10 Judgments that
changed India’
2. What is the rationale behind the doctrine of Basic Structure?
● Based on the theory of implied limitation.

● Parliamentary powers to amend the constitution must be subject to certain conditions
or limitations.
● This ensures the essence and purpose of written constitutions and constitutionalism
to be intact.
● It also upholds the tenets of Rule of Law.
● “It balances the power of the Parliament to amend the Constitution and the Supreme
Courts Power of judicial review of those amendments” - Justice Ashok Ganguly,
Landmark Judgements that changed India
3. What is the relationship between basic structure and

constitutionalism?
● Constitutionalism refers to the idea of limiting the powers of the State.

● A Constitution is a manifestation of the idea of constitutionalism. A Constitution, inter
alia, provides for the powers of the organs of the State. One such power is the power
of the Parliament to amend the Constitution itself.
● If unchecked, this power may include the power to amend critical provisions of a
Constitution necessary to safeguard the rights of the people as well as democratic
ideals.
● The doctrine of basic structure prevents the Parliament from amending those
provisions in the Constitution which the SC thinks to be absolutely necessary for the
efficacious functioning of the State.

● By restricting the amending powers of the Parliament, the Basic Structure upholds
the principles of Constitutionalism.
4. What is the relationship between basic structure and Rule Of

Law?
● A.V. Dicey in his book ‘Introduction to the study of the Constitution’ in 1885 identified
three essentials of Rule of Law
● Absence of Arbitrary Power, Equality before Law, and Predominance of Legal Spirit.
● The Basic Structure Doctrine by limiting the powers of the Parliament to amend the
essential or basic features of the Constitution also limits the arbitrariness which
would led to unlimited powers of the Parliament to amend the Constitution.
● Furthermore, by recognising Judicial Review as one of the elements of Basic
Structure, it also upholds the principle of predominance of legal spirit.
5. How did the doctrine of Basic Structure evolve?

● The Socialist Prologue
○ It began with a series of Land Reform Acts passes by several state
legislatures such as Madras, Bombay, Bihar etc.
○ These Acts aimed at curtailing the quantum of land ownership leading to
excess land being compulsory purchased by the government to be
redistributed amongst those who were landless.
○ The socialist Acts were challenged at several High Courts by land owners
claiming a violation of then existing fundamental right to Property contained in
Art 19(1)(f) as well as Art 31. Additionally, Art 14 and 21 were also claimed to
the violated as the Acts only aimed at excess land onwers and deprivation of
their own property could be considered a violation of Art 21.
○ The cases received a mixed response with some High Courts invalidated the
Acts while some upheld them.
● The Constitutional Context

○ In response to this apparent chaos, the Parliament amended the Constitution
in 1951 (1st CA, 1951) inserting
○ Art 31 A and Art 31 B which allowed for the govt to acquire property without
affecting FRs and inserting the Ninth Schedule which gave immunity to any
law from judicial scrutiny placed under it.
○ Several Acts were incrementally placed under the Ninth Schedule.
Consequently, the amendments through which the acts were placed under the
Ninth Schedule were challenged.
● The Legal Questions : On the pretext of hearing challenges to amendments inserting
land reform Acts to the Ninth Schedule, the SC framed larger questions :
○ Does ‘law’ as per Art 13(2) include Constitutional Amendments?
What is the extent to which the Parliament can amend the Constitution?

Issue Shankari Golak Nath Kesavanada Minerva Waman IR

Prasad (1967) [6:5] Bharti Mills Rao(1981) Coelho
(1951) & (1973) [7:6] (1980) (2006)
Sajjan [4;1*]
Singh
(1967) [3:2]
C.A law No Yes No Status Status Quo Status

as per Quo Quo
13(2)
Extent Unlimited, Limited - Limited by Reaffirmed Basic JR of pre

of Parl Parl has FR could Basic Basic Structure 1973
powers Constituent not be Structure, Structure, applies to additions
powers to amended, overruled 39(b)(c) > amendment to IXth
amend u/a no Golaknath, 14,19,31 and the Schedule
368 distinction inter alia JR laws added as well.
between is Basic to IXth
Constituent Structure, Schedule
& Ordinary no JR of pre
powers, 1973
prospective additions to
overruling IXth
Schedule.
6. What was held in the Kesavananda Bharti Case?

● 24th CA, 1971 was valid
● 25th CA, 1971 was valid except for clause ousting judicial review
● 29th CA, 1971 was valid.
● Overruled Golak Nath, Parliament can amend FRs.
● Subject to the Doctrine of Basic Structure, no implied limitation on Parliament’s power
to amend the Constitution under Art 368
● Pre judgment additions to Ninth Schedule not subject to Judicial Review (prospective
overruling)
● Special Remarks
○ Though the doctrine was evolved in this case, the seeds of Basic Structure
were actually sown in the Golak Nath case.
○ Upendra Baxi's words in 1974 that Kesavananda was the Indian Constitution
of the future turned out to be ncar prophetic
○ In delineating the basic structure of the Constitution, most judges relied upon
the Preamble, the fundamental rights and the direcrive principles of state
policy.

7. What has been included in the Doctrine of Basic Structure?

Core Constitutional Principles
Principles Cases
Supremacy of the Kesavanada Bharti v. State of Kerala (1973) SR Bommai v.

Constitution Union of India (1994)
Rule of Law Indira Gandhi v. Raj Narain (1975) Indira Sawhney v. Union
of India (1993) IR Coelho v. State of Tamil Nadu (2007)
Separation of Powers Kesavanada Bharti v. State of Kerala (1973) SR Bommai v.

Union of India (1994) IR Coelho v. State of Tamil Nadu
(2007)
Federalism Kesavanada Bharti v. State of Kerala (1973) SR Bommai v.

Union of India (1994)
Limitations of amending Minerva Mills v. Union of India (1980)

power under Art 368
Core Constitutional Features: Rights etc.

Principles Cases
Principles behind Kesavanada Bharti v. State of Kerala (1973) IR Coelho v.

Fundamental Rights State of Tamil Nadu (2007)
Secularism Kesavanada Bharti v. State of Kerala (1973) SR Bommai v.

Union of India (1994) Sri Adi Vishveshwarya of Kashi
Vishwanath Temple, Varanasi v. State of UP (1997)
Balance between FRs Minerva Mills v. Union of India (1980)

and DPSPs
Concept of social and Kesavanada Bharti v. State of Kerala (1973) Bhim Singh JI v.
economic justice, DPSP Union of India (1981)
in toto
Objectives specified in Kesavanada Bharti v. State of Kerala (1973)

the Preamble
Democracy Related
Principles Cases
Parliamentary System of Govt Kesavanada Bharti v. State of Kerala

(1973)

Principle of free and fair elections Kihoto Hollohan v. Zachillu (1993)
Parliamentary Democracy & Multi Party Kuldip Nayar v. Union of India (2006)
Systems
Judiciary Related
Principles Cases
Independent & Registrar (Admin) v. Sisir Kant Satapathy (1999)

Efficient Judicial
Systems
SC Powers under Art Delhi Judicial Service Association v. State of Gujarat (1991)
32, 136, 141, 142
Effective Access to Central Coal Fields v. Jaiswal Coal Co. (1980)

Justice
Judicial Review, Art Kesavanada Bharti v. State of Kerala (1973) Indira Gandhi v. Raj
32, Art 226/227 Narain (1975) Minerva Mills v. Union of India (1980) SP Sampat
Kumar v. Union of India (1987) L Chandra Kumar v. Union of India
(1997)
Independence of SC AoR Assn. v. Union of India (1994)

Judiciary
8. What has been excluded in the Doctrine of Basic Structure?

Provision Description
Art 31A (1st CA, Acquisition of estates, attempts to remove inequalities in the matter
1951) of agricultural holdings (Waman Rao v. UoI, 1981)
Art 105(2) Even though Parliamentary Democracy is a basic feature of our

Constitution, the rights and immunities under Art 105(2) cannot be
elevated as FRs or basic feature to invalidate insertion of Xth
Schedule (Kihoto Hollohan v. Zachillu, 1993)
Art 334 Extending reservation for SC, ST, Anglo Indians in Legislatures
amendment via 45
CA 1978
Fifth Schedule and Temporary Provision and CA under 368 not required to amend it.
amendments [SC AoR Assn. v. Union of India (1994)]

323A (Tribunals) Takes away service matters jurisdiction from HC and Civil Courts.
via 42nd CA, 1976 [SP Sampat Kumar v. Union of India (1987) & L Chandra Kumar v.
Union of India (1997)]
Amendment taking Sankari Prasad Singh Deo v. Union of India (1951)

away a FR
9. What is the impact of the judgement and the doctrine of Basic

Structure?
● Chief Justice of India Dr DY Chandrachud has called the ‘basic structure doctrine’ a
north star “which guides and gives a certain direction to the interpreters and
implementers of the Constitution when the path ahead is convoluted.”.
● Impact :
○ Judiciary v. Parliament : Checks & Balances
■ While the Supreme Court's decisionin Golak Nath was the first
significant sign of judicial supremacy in constitutional interpretation,
Kesavananda firmly established that the Supreme Court was
unmatched in authority when it came to constitutional matters.
■ The Supreme Court made a strategic retreat over amendments to
fundamental rights but significantly broadened the scope of its judicial
review by assuming the power to scrutinise all constitutional
amendments-not just those affecting fundamental rights.
■ If the Parliament had an unfettered right to amend the Constitution,
the Supreme Court had a coextensive power to review and invalidate
any amendment that violated its basic structure.
■ To an extent, the judges who recognised the Basic Structure Doctrine
sought to achieve a win-win situation for Parliament & Supreme Court.
○ Constitutionalism Above all
■ Kesavananda recognises the distinction between the drafting and
working of the Constitution.
■ The decision in Kesavananda ensured that the Parliament, which
holds its constituent power in trust for the people of India, can never
change the fundamental bases of India. The Parliament's power to
amend is not limitless and is always coextensive with that of the
people
○ Domino Effect

■ The basic structure doctrine postulated in Kesavananda has been

credited with protecting the Indian state from collapsing like many of
its South Asian counterparts, whether through totalitarian rule, military
coup or other extra-constitutional means.
■ It has also protected India from moving in a 'sharply socialist direction'
○ Expansive Applications
■ For many years now, the Apex Court has applied the basic structure
doctrine either directly or tangentially, to invalidate ordinary
legislations. It is a well-established rule that there are two grounds
based on which ordinary legislation gets tested, namely, whether it
attracts Art.13(1) and (2) bar of the constitution or not and legislative
competence. However, in the NJAC Case as well as Madras Bar
Assn. v Union of India (2015), the doctrine was held applicable to
ordinary legislations as well.
■ In the Elections case, the 39th CA, 1975 was struck down upholding
Judicial Review
■ In the NJAC Case, the 99th CA, 2014 was struck down upholding
Independence of Judiciary as Basic Structure
■ Federalism was raised as an ingredient of basic structure in petitions
challenging abrogation of Art 370 which was eventually upheld
recently by the SC in Re: Abrogation of Art 370 in 2024.
■ Secularism as a part of Basic Structure has been argued in pending
litigation challenging the CAA 2019, review petitions post Sabrimala.
● One of the most apt closure remarks to the impact of doctrine can be found with
Michael Foley, in his treatise The Silence of Constitutions', explained that what is said
in the Constitution is important but what is not said, but is implied in the silence from
what is said, is equally important.
● Judicial Review and Constitutional Supremacy: The doctrine reinforces the
principle of judicial review, granting the Indian judiciary the power to review and
strike down laws that violate the basic structure of the Constitution. This ensures the
supremacy of the Constitution and prevents the arbitrary exercise of power by the
legislature.
● Fundamental Rights: The doctrine of basic structure acts as a safeguard for
fundamental rights enshrined in the Indian Constitution. It ensures that no
constitutional amendment can dilute or abrogate these rights, such as the right to
equality, freedom of speech, or protection against discrimination.

● Maintaining Federalism: The doctrine protects the basic structure of federalism in

India. It prevents the Parliament from altering the essential features of the federal
structure, such as the distribution of powers between the Union and the states. This
has helped maintain the balance between the central government and state
governments. Secularism and
● Separation of Powers: The doctrine of basic structure upholds the principle of
secularism and the separation of powers. It prevents any amendment that
undermines the secular character of the Indian state or disturbs the delicate balance
between the executive, legislative, and judicial branches of government.
● Limiting Constitutional Amendments: The doctrine imposes limitations on the
amending power of the Parliament. While the Indian Constitution allows for
amendments, the doctrine sets a boundary by prohibiting amendments that violate
the basic structure. This prevents the Parliament from altering the Constitution in a
manner that fundamentally transforms its character.
● Evolution of the Constitution: The doctrine of basic structure allows for the
evolution of the Indian Constitution in response to changing societal needs and
aspirations. While the basic structure remains protected, the interpretation and
application of the Constitution by the judiciary have allowed for progressive
developments in areas such as expanding fundamental rights and inclusivity.
10. What is the critical analysis of having such a doctrine?

● The Invisible hand
○ The basic structure doctrine finds no mention in the language of the
Constitution
○ Opposes the original intent of the Constituent Assembly
○ The nexus the doctrine and the Constitution as it has been codified can be
attributed more accurately to spirit than to text.
● Lost in transition
○ Kesavananda has been condemned for being too lengthy, thus causing
uncertainty about what the eleven opinions collectively meanand what the
basic structure actually comprised. comprised. The judgement has also been
described as one that provides an 'outstanding study on lack of consensus'.
○ The danger with the ambiguity of the basic structure doctrine is that each
judge's conception depends on his personal preferences and virtually vests

amending power in judges, resting on variable judicial perceptions and

majorities.
● Democratic Dangers
○ The basic structure doctrine has also been sharply criticized as being
counter-majoritarian, and one that causes a democratic imbalance since it
gives inordinate power over constitutional amendments to the Supreme
Court, an unelected and self- appointed body
11. Can Basic Structure Doctrine be amended or dilluted?

● Since the basic structure or basic principles are not explicitly mentioned in the
Constitution, these features per se cannot be amended by Constitutional
Amendments under Art 368. Therefore, possibilities of a new constitution or replacing
a core feature such as a parliamentary system of government arise for which there
are usually the following choices
○ Revolution - Highly unlikely in a written constitution
○ Parliament itselt converting into a Constituent Assembly - would have been
possible Pre Minerva Mills but post, the limited power to amend the
Constitution is itself Basic Structure
○ Referendum - Would not have any effect on the power of the Parliament to
amend anyway
■ Acc. to DD Basu, in his book Shorter Constitution of India, Vol II, - he
suggests referendum as as a mode by passing a Constitution
Amendment providing for the same.
○ Higher Bench - Review : This is technically possible and was attempted
before in 1975 during the emergency.
■ However, the review was inexplicably and suddenly abandoned.
There's no official report or record concerning the said review. Such
an attempt occurred during an emergency when there were
restrictions regarding the reporting of court decisions by the press
○ Constitutional Amendments to dilute basic features : This was attempted
previous via the 25th, 42nd, and 44th CA, 1978 but were eventually struck
down as violative of Basic Structure.

12. What about other countries?

● Amending Powers
○ Constitution of England,
■ being mostly unwritten, is mostly impacted by constitutional values
and doctrine and is amendable by a simple majority of the legislature
or by judicial decisions not challenged by the state
■ International agreements, custom and traditional usage which has
acquired constitutional status, can also amend the Constitution.
Recently, the Human Rights Act (HRA), 1998, articulating European
Convention Rights, has acquired the status of a constitutional
document and is a major influence on English constitutional
jurisprudence, but is now back to square one due to BREXIT
○ American Constitution
■ It can be amended under Article 5, when two-thirds of both houses of
Congress propose amendments or when Congress is required by
two-thirds of the state legislatures to call a constitutional convention.
Amendments have to be ratified by three-fourths of the state
legislature or conventions made on the mode of ratification proposed
by Congress. No amendment, however, can deprive any state of equal
voting rights in the senate without its consent.
○ The Australian Constitution
■ Proposed amendment has to be initiated by an absolute majority in
each house, and after it is passed, a referendum has to be held.
● BSD gone global

○ Portugal and Greece's constitution has listed out all their un-amendable
provisions
○ Several nations like Italy and France have only attempted to protect one or
two central principles like the Republican form of Government
○ Even the courts in Pakistan, in 2015, have recognised the implied limitations
on parliament's amending powers and declared Judiciary, Democracy, and
Parliamentary form of Government as the basic structure
○ In Thailand, there's no specific mention of the doctrine, but they have also
listed their un-amendable provisions
○ Further, the Australian courts have also recognised the limitations on the
law-making powers of the parliament, emanating from their constitution

○ Britain, where the courts have realised the need to consider the question of
whether there is any fundamental that cannot be abolished even by a
sovereign parliament
13. What was held in the Minerva Mills Case? Why is the
case important?
Context
● The decision in Minerva Mills is another milestone, which prevented Parliament from
overriding the basic structure doctrine in Kesavananda Bharati by enacting the
Constitution (42nd Amendment) Act, 1976.
● The challenge to the nationalization of Minerva Mills, a textile undertaking, could not
be made in view of the 42nd Constitution Amendment Act, which barred a challenge
to the law of nationalisation, as thesaid Nationalisation Act was included vide entry
105 to the 9th Schedule to the Constitution
The Legal Questions

● Minerva Mills, by filing an Article 32 writ petition, challenged the constitutional validity
of provions of the 42nd Constitution Amendment Act, inter alia, on the touchstone of
the basic structure theory.
● Amendment of Art 31C : now provided supremacy to all the Directive Principles
contained in Part IV over Fundamental Rights contained in Articles 14, 19 and 31
● Insertion of Article 368(4) : According to the new clause, no amendment made under
the provisions of Article 368 could be challenged in a Court of Law on any ground.
● Insertion of Article 368(5) : According to the new clause, there was no limitation on
the constituent power of the Parliament to amend the Constitution
The Outcome :
● The Court held that Article 368(4) and Article 368(5) inserted by the 42" Amendment
Act (Section 55) were unconstitutional as it affected the power of Judicial Review
which was regarded as part of the basic structure of the Constitution
● The Court struck down the change made to Article 31C and restored it to the pre
42nd Amendment Act position. (Article 31C provided supremacy to the Directive
Principles contained in Articles 39(b) and (c) over Fundamental Rights contained in
Articles 14, 19 and 31.)

Impact
● Limitations on Parliament to amend the Constitution under Art 368 as well as a
balance between FRs and DPSPs were both identified as components of Basic
Structure.
● The erstwhile owners ofminerva Mills continued to contest the nationalization on
different grounds, only to ultimately fail at the Supreme Court in September 1986
● Minerva Mills case undoubtedly set the tone for the ture ofthe basic structure doctrine
in India
● Four decades after the Minerva Mills judgement, the official version of the
Constitution published by the government includes a small tribute to the judgement.
● Chintan Chandrachud in his book, ‘The Cases that India India Forgot’ opens with
Minerva Mills as the first case that thwarted the final attempts made by the
government to disrupt the doctrine of Basic Structure
14. What is the relationship between FRs and DPSPs?

Context
● The Directive Principles differ from Fundamental Rights which enjoin the state to
refrain from taking prejudicial action against an individual and, thus, impose a
negative duty on the state.
● Fundamental Rights seek to introduce an egalitarian society and to ensure liberty for
all
● Directive Principles seek to achieve a welfare state. The two together constitute the
conscience of the Constitution. Infact, the Preamble, the Fundamental Rights and the
Directive Principles can be characterised as the trinity of the Constitution - M.P. Jain
Differences
● The Directives are not enforceable in the courts and as such, do not create any
justiciable rights in favour of individuals.
● The Directives require to be implemented by legislation, and so long as there is no
law carrying out the policy laid down in a Directive neither the State nor the
individual can violate any existing law or legal right under colour of following a
Directive. [Mangru vs. Commissioner of Budge Budge, (1951)]

● The Directives, per se, do not confer upon or take away any legislative power from
the appropriate legislature. Legislative competence must be sought from the
Legislative Lists contained in the 7th Schedule of the Constitution. [Deep Chand vs.
State of U.P., AIR 1959]
● The Courts cannot declare any law as void on the ground that it contravenes any of
the Directive Principles
The Balancing Act

● The Supreme Court in State of Kerala v. N.M. Thomas (1973), observed that the
Directive Principles and Fundamental Right should be construed in harmony with
each other and every attempt should be made by the Court to resolve any apparent
inconsistency between them.
●
● The Supreme Court has observed in Olga Tellis (1986), that since the Directive
Principles are fundamental in the governance of the country they must, therefore,
be regarded as equally fundamental to the understanding and interpretation of the
meaning and content of Fundamental Right.
● Instead of becoming a stumbling block, the judiciary has now taken itself the
responsibility of implementing the Directive Principles.
○ Rights. In Unnikrishnan v. State of A.P. (1993) the Directive Principle
contained in Art. 45 has been raised to the status of a Fundamental Right.
(RTE)
○ ‘equal pay for equal work’ has been held to be a Fundamental Right in
Randhir Singh vs. Union of India (1982)
○ In H.M Hoskot vs. State of Maharashtra (1978) it has been held that “legal
aid” and “speed trial” are fundamental rights under Art. 21 available to all
prisoners and can be enforced.

15. What is the nature and state of Property Rights in India?

Context
● In Property Owners Association v State of Maharashtra, The Supreme Court will
decide if private property can be considered “material resources of the community”
under Article 39(b) of the Constitution.
Evolution
● Right to property was removed from the Fundamental Rights by the 44 Constitutional
Amendment Act 1978
○ The original Constitution included following rights
■ Article 19 (1) (f): It included Right to lawfully acquire, hold and dispose
off property subject to reasonable restriction in public interestand in
the interestof Scheduled Tribes.
■ Article 31 (1): Under this no person can be deprived of his property
except by authority of law. By executive action the State can acquire
the property as any other person by paying market value of the
property. Butto compelthe individualto sellthe propertythe government
needs law
■ Article 31 (2): The State can only acquire propertyforthe public
purposes and the State should pay the compensation.
● Changes made :
○ 1st CA, 1951
■ Art 31A : If a law is made to acquire large estates from Zamindars
itwill not be declared to be invalid on grounds of violation of Article 14
and 19
■ Art 31B : Ninth Schedule - No JR
○ 4th CA, 1955 : It amended Article 31 (2) and it added that the compensation
cannot be challenged on the ground that the compensation is inadequate. Still
the Court maintained that the compensation must befairand just
○ 25th CA, 1971 :
■ Art 31C : Art 39(b) & (c) > 14, 19, 31
○ 44 CA 1978
■ Article 19 (1) (f) and 31 (2) were eliminated/repealed
■ Article 31 (1) was removed from Part 3 and the same provision was
made legal rightand placed under Article 300A
Why is the SC deciding on Private Property and what can happen?

● Article 31C protects laws enacted to ensure the “material resources of the
community” are distributed to serve the common good (Article 39(b)) and that wealth
and the means of production are not “concentrated” to the “common detriment”
(Article 39(c)).
● As per Article 31C, these particular directive principles (Articles 39(b) and 39(c))
cannot be challenged by invoking the right to equality (Article 14) or the rights under
Article 19 (freedom of speech, right to assemble peacefully, etc).
● Article 31C was introduced by The Constitution (Twenty-fifth) Amendment Act, 1971
in response to the Bank Nationalisation Case

○ Rustom Cavasjee Cooper vs Union Of India (1970), in which the Supreme

Court stopped the Centre from acquiring control of 14 commercial banks by
enacting The Banking Companies (Acquisition and Transfer of Undertakings)
Act, 1969.
○ An eleven-judge Bench struck the Act down by referring to the now-repealed
Article 31(2), which said that the government could not acquire any property
for public purposes under any law unless the law fixes compensation for the
property, or specifies the principles on which compensation will be based.
○ In the Bank Nationalisation case, the court held that the ‘right to
compensation’ was not appropriately ensured by the Banking Act.
● The 25th amendment was challenged in the seminal Kesavananda Bharati case
(1973) in which 13 judges held by a narrow 7-6 majority that the Constitution has a
‘basic structue’ that cannot be altered, even by a constitutional amendment.
○ As a part of this verdict, the court struck down the last portion of Article 31C,
○ This opened the door for the court to examine laws that had been enacted to
further Articles 39(b) and 39(c), to determine whether the purpose of those
laws actually lined up with the principles espoused in these provisions.
● In 1980, in its judgment in Minerva Mills v. Union of India, the SC struck down
clauses 4 and 5 of the amendment. The five-judge Bench held that Parliament’s
power to amend the Constitution was limited, and it could not be used to remove
these limitations and grant itself “unlimited” and “absolute” powers of amendment
○ By striking down part of the 25th amendment, did the court strike down Article
31C as a whole, or did it restore the post-Kesavananda Bharati position
wherein Articles 39(b) and (c) remained protected?
● Since 1977, the apex court has weighed in on the interpretation of Article 39(b) on
multiple occasions — most notably, in State of Karnataka v Shri Ranganatha Reddy
(1977). This case saw a seven-judge Bench, by a 4:3 majority, holding that privately
owned resources did not fall within the ambit of “material resources of the
community”. However, it was Justice Krishna Iyer’s minority opinion which would
become influential in years to come. Justice Iyer had held that privately owned
resources must also be considered material resources of the community.

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Magna Carta Mains 2024 : Crash Course for GS Paper II : Atish Mathur

Part I : Polity & Governance

Syllabus + PYQs (2013-2023) + Current Affairs = Topic Relevancy

Explicitly mentioned Dimensions Frequency Trigger Event Themes

WHEN? WHAT? WHY?

Utility & Impact of the Preamble?

WHEN? WHAT? WHY?

2014 What do understand by the concept “freedom of Election year,

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2017 Examine the scope of Fundamental Rights in the Puttuswamy Judgement

2022 “Right of movement and residence throughout the COVID 19 Lockdown,

2023 The Constitution of India is a living instrument with 45 years of

2021 ‘Constitutional Morality’ is rooted in the Constitution itself CAA-NRC, 370,

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WHEN? WHAT? WHY?

2018 Whether National Commission for Scheduled Castes AMU, JMIU

2021 ‘Constitutional Morality’ is rooted in the Constitution itself CAA-NRC, 370,

FR Mains 2024 Analysis

Anniversaries of judgements Minority Rights

WHEN? WHAT? WHY?

DPSP Mains 2024 Analysis

Anniversaries of judgements FR DPSP Relationship - Harmonious

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Anniversaries of imp. constitutional Construction

WHEN? WHAT? WHY?

2013 The Supreme Court of India keeps a check on arbitrary 40 years -

2019 Parliament’s Power to amend the Constitution is a limited Art 370

Issue Matrix Pedagogy

Minority Rights Basic Structure & Harmonious Construction

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Basic Structure & Harmonious Construction

Amenability of FRs, Relationship between FRs and DPSP,

1. What is Basic Structure?

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1. What is Basic Structure? (Intro)

● It is a constitutional law doctrine that places restrictions on amending certain

2. What is the rationale behind the doctrine of Basic Structure?

● Based on the theory of implied limitation.

3. What is the relationship between basic structure and

● Constitutionalism refers to the idea of limiting the powers of the State.

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4. What is the relationship between basic structure and Rule Of

5. How did the doctrine of Basic Structure evolve?

● The Constitutional Context

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Issue Shankari Golak Nath Kesavanada Minerva Waman IR

C.A law No Yes No Status Status Quo Status

Extent Unlimited, Limited - Limited by Reaffirmed Basic JR of pre

6. What was held in the Kesavananda Bharti Case?

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7. What has been included in the Doctrine of Basic Structure?

Supremacy of the Kesavanada Bharti v. State of Kerala (1973) SR Bommai v.

Separation of Powers Kesavanada Bharti v. State of Kerala (1973) SR Bommai v.

Federalism Kesavanada Bharti v. State of Kerala (1973) SR Bommai v.

Limitations of amending Minerva Mills v. Union of India (1980)

Core Constitutional Features: Rights etc.

Principles behind Kesavanada Bharti v. State of Kerala (1973) IR Coelho v.

Secularism Kesavanada Bharti v. State of Kerala (1973) SR Bommai v.

Balance between FRs Minerva Mills v. Union of India (1980)

Objectives specified in Kesavanada Bharti v. State of Kerala (1973)

Parliamentary System of Govt Kesavanada Bharti v. State of Kerala

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Principle of free and fair elections Kihoto Hollohan v. Zachillu (1993)

Independent & Registrar (Admin) v. Sisir Kant Satapathy (1999)