The Basic Structure Doctrine

Original Text of Art. 368

• 368. Procedure for amendment of the Constitution: An amendment of this Constitution may be
initiated only by the introduction of a Bill for the purpose in either House of Parliament, and
when the Bill is passed in each House by a majority of the total membership of that House and by
a majority of not less than two-thirds of the members of that House present and voting, it shall
be presented to the President for his assent and upon such assent being given to the Bill, the 
Constitution shall stand amended in accordance with the terms of the Bill:
Provided that if such amendment seeks to make any change
(a) articles 54, 55, 78, 162 or 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article,
the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States specified in
Parts A and B of the First Schedule by resolutions to that effect passed by those Legislatures before the Bill making
provision for such amendment is presented to the President for assent.
 Article 379(1)—Original Text
• 379. (1) Until both Houses of Parliament have been duly constituted
and summoned. to meet for the first session under the provisions of
this Constitution, the body functioning as the Constituent Assembly of
the Dominion of India immediately 'before the commencement of
this' Constitution shall be the provisional Parliament and shall exercise
all the powers and perform all the duties conferred by the provisions
of this Constitution on Parliament.
 Article 31A—as inserted by the 1st
Constitution (Amendment) Act
• 31A. Saving of laws providing for acquisition of estates, etc.
• (1) Notwithstanding anything in the foregoing provisions of this part,
no law providing for the acquisition by the State of any estate or of
any rights therein or for the extinguishment or modification of any
such rights shall be deemed to be void on the ground that it is
inconsistent with, or takes away or abridges any of the rights
conferred by, any provisions of this Part
 Article 31B—as inserted by the 1st
Constitution (Amendment) Act
• 31B. Validation of certain Acts and Regulations Without prejudice to
the generality of the provisions contained in article 31A, none of the
Acts and Regulations specified in the Ninth Schedule nor any of the
provisions thereof shall be deemed to be void, or ever to have
become void, on the ground that such Act, Regulation or provision is
inconsistent with, or takes away or abridges any of the rights
conferred by, any provisions of this Part, and notwithstanding any
judgment, decree or order of any court or tribunal to the contrary,
each of the said Acts and Regulations shall, subject to the power of
any competent Legislature to repeal or amend it, continue in force.
 Shankari Prasad Singh Deo v. Union of
India, AIR 1951 SC 458
• This writ petition questioned the Constitutional validity of the 1st
Constitution (Amendment) Act, 1951 on the following grounds:
• The power conferred by art. 368 calls for the co-operative action of two
Houses of Parliament and could be appropriately exercised only by the
Parliament to be duly constituted under Ch. 2 of Part V, instead of the
provisional Parliament u/Art. 379 constituting a single chamber.
• the Constitution (Removal of Difficulties) Order No. 2 made by the President
was beyond his powers u/Art.392, as no such difficulty could have possibly
been experienced on the 26th Jan., 1950. As "any difficulties" sought to be
removed by adaptation under that article must be difficulties in the actual
working of the Constitution during the transitional period whose removal is
necessary for carrying on the Government.
Contd.
• Procedure u/art. 368, not followed:
• 368 is a complete code in itself and does not provide for any amendment
being made in the bill after it has been introduced in the House. Because the
Bill was amended at multiple stages during its passage through the House, it
has failed on 368’s procedural requirements.
• newly inserted articles 31A and 31B seek to make changes in arts. 132 and
136 in Chapter IV of Part V and art. 226 in Chapter V of Part VI—hence,
violates the procedure u/art 368.
• The amending Act  in so far as it purports to take away or abridge the
rights conferred by Part III of the Constitution, falls within the
prohibition of art. 13 (2).
The 1951 judgment
• Both the ‘constituent power’ as well as the ‘ordinary legislative
power’ are vested on the same body, i.e. Parliament.
• Although "law" must ordinarily include constitutional law, there is a
clear demarcation between ordinary law, which is made in exercise of
legislative power, and constitutional law, which is made in exercise of
constituent power—”…in the context of art. 13 "law" must be taken
to mean rules or regulations made in exercise of ordinary legislative
power and not amendments to the Constitution made in exercise of
constituent power, with the result that article 13(2) does not affect
amendments made under art. 368.”
Contd.
• each of the component units of Parliament is to play its allotted part in
bringing about an amendment to the Constitution—hence, 368 vests this
power over the ‘parliament’ only.
•  Art. 379 should be viewed and interpreted in the wider perspective of this
scheme and not in its isolated relation to art. 368 alone—this makes the
Prov. Parl. competent to enact constitutional Amendments.
• Court’s Powers to Judicial Rev.: “They remain just the same as they were
before: only a certain class of case has been excluded from the purview of
Part III and the courts could no longer interfere, not because their powers
were curtailed in any manner or to any extent, but because there would
be no occasion hereafter for the exercise of their power in such cases.”
 Sajjan Singh v State of Rajasthan,
AIR 1965 SC 845
• All the 6 WPs challenged the constitutional validity of the 17th
Constitution (Amendment) Act, 1964.
• The petitioners are affected by one or the other of the Acts added to
the 9th Schedule by the impugned Act, and their contention is that
the impugned Act being constitutionally invalid, the validity of the
Acts by which they are affected cannot be saved. 
• Applying Shankari Prasad, part III rights could be affected by any
const. amendment. But, the Sajjan Singh Court didn’t find merit in the
argument that, with the impugned amendment, the Parliament
intends to amend the provisions of Art. 226.
The 1964 Judgment
• Petitioners thus, raise the question about the construction of the
provisions contained in Art. 368 and the relation between the
substantive part of Art. 368 with its proviso.
• HELD: “the two parts of Art. 368 must on a reasonable construction be
harmonised with each other in the sense that the scope and effect of
either of them should not be allowed to be unduly reduced or
enlarged. It is urged that any amendment of the fundamental rights
contained in Part III would inevitably affect the powers of the High
Court, prescribed by Art. 226, and as such, the bill proposing the said
amendment cannot fall under the proviso; otherwise the very object of
not including Part III under the proviso would be defeated” [para 9]
Contd.
• Given that the intention of the const. makers was not to include Part III
within the Art. 368’s proviso, “it would be reasonable to assume that they
took the view that the amendment of the provisions contained in Part III
was a matter which should be dealt with by Parliament under the
substantive provisions of Art. 368 and not under the proviso” [para 9]
• However, “The proviso would apply where the amendment in question
seeks to make any change, inter alia, in Art. 226. and the question in such
a case would be : does the amendment seek to make a change in the
provisions of Art. 226 ? The answer to this question would depend upon
the effect of the amendment made in the fundamental rights.” [Para 10]
• The court found that, through these amendment acts, the parliament
is merely trying to “removing any possible obstacle in the fulfilment of
the socioeconomic policy in which the party in power believes”. [para
15]
• Based on this finding, the majority held that the impugned Act is very
“insignificantly” affecting the powers of the HC u/Art. 226. “The
impugned Act does not purport to change the provisions of Art. 226
and it cannot be said even to have that effect directly or in any
appreciable measure” [para 15]
Contd.
• ‘land’ being a state subject u/o Entry 18, List-II, it was contended that,
it was beyond the Parliament’s powers to pass this Const.
Amendment. The majority found that, “It was merely validating land
legislations already passed by the State Legislatures in that behalf.”
[para 16]
• Mudholkar J. and Hidayathullah J. passed separate dissenting
judgments.
Hidayathullah J: Dissent
• “For the disposal of these cases I indicate my view that on, the arguments
before us I must hold that as decided in Sankari Prasad's [1952] case Art. 226 is
not sought to be changed by the 17th Amendment. But I make it clear that I
must not be understood' to have subscribed to the view that the word "law" in
Art. 13(2) does not control constitutional amendments. I reserve my opinion on
that case for I apprehend that it depends on how wide is the word "law" in that
Article.” [para 40]
• FRs use a language of a priori permenance, and gives reasons as to why they
should remain sacrosanct from Parliamentary mutilations.
• His judgment indicates that, proviso to 368 must be read as if the matters listed
therein are ‘outside the exclusive power of parliament to amend’. [para 43]
Contd.
• “The Constitution gives so many assurances in Part III that it would be difficult
to think that they were the play things of a special majority. To hold this
would mean prima facie that the most solemn parts of our Constitution stand
on the same footing as any other provision and even on a less firm ground
than one on which the articles mentioned in the proviso stand. The anamoly
that Art. 226 should be somewhat protected but not Art. 32 must give us
pause. Art. 32 does not erect a shield against private conduct but against state
conduct including the legislatures (See Art. 12). Can the legislature take away
this shield ? Perhaps by adopting a literal construction of Art. 368 one can say
that. But I am not inclined to play a grammarian's role. As at present advised I
can only say that the power to make amendments ought not ordinarily to be a
means of escape from absolute constitutional restrictions.” [para 44]
Mudholkar J: dissent
• Followed the other dissenting opinion on the importance of FRs.
• Stresses on the need to include const. amendments within ‘law’ u/Art
13(2), as the language of 368 is plain enough to construct that the
parliament’s amending power is nothing more than an ordinary law-
making power. [para 48].
• He referred to the Pakistani decision in Fazul Quader Chowdhary v.
Mohd Abdul Haque 1963 PLD 486 which had universal franchise and
form of govt is beyond the power of constitutional amendments--and,
used this to make his observation regarding the basic features of the
constitution.
Contd.
• “We may also have to bear in mind the fact that ours is a written Constitution. The Constituent
Assembly which was the repository of sovereignty could well have created a sovereign
Parliament on the British model. But instead it enacted a written Constitution, created three
organs of State, made the union executive responsible to Parliament and the State executives to
the State legislatures; erected a federal structure and distributed legislative power between
Parliament and the State legislatures; recognised certain rights as fundamental and provided for
their enforcement; prescribed forms of oaths of office or affirmations which require those who
subscribe to them to owe true allegiance to the Constitution and further require the members of
the Union Judiciary and of the higher judiciary in the States, to uphold the Constitution. Above
all, it formulated a solemn and dignified preamble which appears to be an epitome of the basic
features Constitution. Can it not be said that these are indicate of the intention of the
Constituent Assembly to give a permanency to the basic features of the ConstitutionIt is also a
matter for consideration whether making a change in a basic feature of the Constitution can be
regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution;
and if the latter, would it be within the purview of Art. 368 ?” [para 53]
I. C. Golaknath and Others v State of
Punjab
AIR 1967 SC 1643
• The petitioners contended that the orders of Financial Commissioner u/o the Punjab
Security of Land Tenures Act X of 1953, read with s. 10-B are violative of their rights
u/Art. 19(1) (g) and (f) and 14. They sought a direction that the 1st, 4 th and 17th
Amendments to the Constitutions be held void to the extent of their inconsistent
with these FRs.
• This was joined by two other WPs that the “Mysore Land Reforms Act (Act 10 of
1962) as amended by Act 14 of 1965, which fixed ceilings on land holdings and
conferred ownership of surplus lands on tenants infringed Arts. 14, 19 and 31 of the
Constitution and, therefore, was unconstitutional and void.” Couple of other parties
intervened.
• With its 6:5 narrow majority, the SC departed from Shankari Prasad and Sajjan Singh.
The 1967 Judgment: Majority
• FRs to be inviolable from Constitutional Amendments, i.e., no authority,
including the Parliament would be competent to amend the FRs. This was to
avert the possibility of the Parliament gradually slipping India into a completely
totalitarian regime. FRs were considered “primordial rights necessary for the
development of human personality”.
• Art. 368 was now understood as mere procedure for amending the constitution.
One major reason was its opening title i.e., “Procedure for amendment of the
Constitution”.
• The real power of the parliament to amend the const. flowed from ‘residuary
powers’ u/Art 248 r/w Entry 97, List-I, Schedule-VII—constitutional amendments
were considered as ordinary legislative acts, hence, susceptible to be declared
void u/Art 13(2).
Contd.
• The only limitation over the Parliament’s power of amending the
constitution was found to be in Article 13. Thus, the earlier distinction
between ‘constitutional law’ and ‘ordinary law’ was collapsed by the
Golaknath Court.
• Doctrine of Prospective Overruling applied with respect to the 1st and
17th Constitutional Amendment Acts because of 2 main reasons: (1) SCs
own validation of the same through Shankari and Sajjan Singh
judgments; (2) during 1950 and 1967, a large body of legislation was
already enacted to effecting the policy of land distribution in India. To
make it retrospective would mean to unsettle all those transactions,
otherwise valid in law.
The 1967 judgment: Minority
• The five minority judges mainly followed the line of arguments in the
preceding Shankari Prasad and Sajjan Singh judgments.
• Their main apprehension was that that Parliament cannot be deprived
from its powers to amend the Constitution including the FRs—
otherwise, this would lead to making the document static for future
needs. Hence, ‘law’ under Art 13(2) should not be meant to include
constitutional amendments, as the latter is an outcome of
Parliament's constituent powers, and not ordinary legislative powers.
• If the constitution makers had intended to restrict the powers of the
Parliament u/Art 368, they could have done so expressly.
Problems with the Golaknath Court
• Amending process is recognized as a part of any written constitution.
• What about the other important rights, such as the right to hold free and fair
elections; or, parliamentary form of governance which could be located beyond Part
III—Can that now be protected under the Golaknath’s reasoning?
• The scope of the word ‘amend’ u/Art 368 was inappropriately stretched to include
‘complete rewriting of the constitution’ while it is part of any democratic process.
• If the intention of the constitution makers was to protect the FRs from constitutional
amendment, they could have protected it expressly, or included within the proviso to
Art. 368.
• Golaknath decision placed a heavy burden on the judges in future cases to interpret
the constitution while balancing the political and economic interests of various
classes of citizens.
24th Constitutional Amendment
• Article 368 of the Constitution shall be re-numbered as clause (2) thereof, and:-
• (a) for the marginal heading to that article, the following marginal heading shall be substituted, namely:-
• "Power of Parliament to amend the Constitution and procedure therefor.";
• (b) before clause (2) as so re-numbered, the following clause shall be inserted, namely:-
• "(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power
amend by way of addition, variation or repeal any provision of this Constitution in accordance with the
procedure laid down in this article.";
• (c) in clause (2) as so re-numbered, for the words "it shall be presented to the President for his assent and
upon such assent being given to the Bill", the words "it shall be presented to the President who shall give his
assent to the Bill and thereupon" shall be substituted;
• (d) after clause (2) as so re-numbered, the following clause shall be inserted, namely:-
• "(3) Nothing in article 13 shall apply to any amendment made under this article.".
• [Addition of (4) to Art. 13: "(4) Nothing in this article shall apply to any amendment of this Constitution
made under article 368.".]
Constitution (Twenty-Fifth Amendment) Act,
1971—S. 2 [Relevant parts with comments]
• In article 31 of the Constitution,-for clause (2), the following clause shall be substituted,
namely:-"(2) No property shall be compulsorily acquired or requisitioned save for a public
purpose and save by authority of a law which provides for acquisition or requisitioning of
the property for an amount which maybe fixed by such law or which may be determined
in accordance with such principles and given in such manner as may be specified in such
law; and no such law shall be called in question in any court on the ground that the
amount so fixed or determined is not adequate or that the whole or any part of such
amount is to be given otherwise than in cash…”
• “compensation” was substituted with “amount”—so that the Govt can absolve itself from its
obligation to provide adequate compensation.
• (b) after clause (2A), the following clause shall be inserted, namely:-"(2B) Nothing in sub-
clause (f) of clause (1) of article 19 shall affect any such law as is referred to in clause (2).”
• This was inserted to protect such law from Art. 19(1)(f).
Constitution (Twenty-Fifth Amendment)
Act, 1971—S. 3 [Relevant parts with
comments]
• Addition of 31C. “Saving of laws giving effect to certain directive
principles.-Notwithstanding anything contained in article 13, no law
giving effect to the policy of the State towards securing the principles
specified in clause (b) or clause (c) of article 39 shall be deemed to be
void on the ground that it is inconsistent with, or takes away or
abridges any of the rights conferred by article 14, article 19 or article
31;and no law containing a declaration that it is for giving effect to
such policy shall be called in question in any court on the ground that
it does not give effect to such policy…”
Constitution (Twenty-Ninth Amendment)
Act, 1972—S. 2
• 2 Amendment of Ninth Schedule
• In the Ninth Schedule to the Constitution , after entry 64 and before
the Explanation the following entries shall be inserted, namely:-
• "65. The Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35
of 1969).
• 66. The Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of
1971.”
Kesavananda Bharati v State of Kerala
(1973) 4 SCC 225 –24th April, 1973
• The constitutionality of the 24th, 25th and 29th Constitutional Amendment were challenged.
• A bench of 13 judges with a ratio of 7:6 delivered the judgment with Justice Khanna’s
decisive role in favour of the majority.
• Majority: Sikri, Hegde, Mukherjea, Shelat, Grovar, Reddy, and Khanna.
• Dissent: Ray, Palekar, Mathew, Beg, Diwedi, and Chandrachud.
• HELD:
• Entire 24th Amendment was held valid.
• The 25th Amedment was held valid with the following riders:
• “amount” is not same as “compensation”. Amount could not be arbitrary. Amount need not be the market value, but
should have a reasonable relationship with the value of the property.
• Overruling Golaknath, Art. 19(1)(f) and 31C was held to be mutually exclusive.
• The first part of 31C was held valid but, not the second part. This effectively meant that, the courts were no more able
to scrutinize ‘such law’ in terms of its purpoted violation of Art. 14, 19 and 31; but, it could always do so on the
grounds of its satisfying the objectives inherent in art. 39(b) and (C).
The 1973 Judgment
• Parliament’s power to amend the constitution flowed from Art 368, as it
was difficult to assume that the constitution makers had left such an
important power to amend the constitution hidden in Parliament’s
residuary powers u/Art 248 r/w Entry 97, List-I.
• The court endorsed the distinction between Parliament’s ‘ordinary
powers to legislate’ and its ‘constituent powers’—hence, endorsing
Shankari Prasad on this principle.
• Though, ‘constitutional amendments’ were no more considered ’law’
within Art 13 (holding Golaknath overruled), but, the amending powers
u/Art. 368 were now subject to the basic or fundamental features of the
constitution.
‘Basic Structure’ left open ended
• Thus, a constitutional amendment which offends the basic structure was now ultra vires.
Thus, Parliement’s power to amend is no more absolute or unlimited, and is subject to
the court’s determination what is considered as the ‘basic structure’ on a case to case
basis.
• As Golaknath was overruled, now, FRs could be amended but, subject to basic features.
This way, the amendment process became flexible, and not a rigid exercise.
• Keshavananda Court took the rider on Constitutional Amendments out of Part III (this
way, overruling Golaknath), thus, any part of the constitution could now be amended
provided that the basic structure is not mutilated.
• Perhaps, there is no textual basis/scheme to justify that ‘x’ part(s) of the Constitution
is/are more fundamental than others. Acc. To author Madhav Khosla, ”any such attempt
at making such a priotritisation was to be necessarily inventive and messy.” [See pg. 241,
Supp. Reading]
Justice Khanna’s decisive role
• He focused on the internal character of an amendment.
• Sovereignty rested with the people, and the Parliament was only authorized to amend the
constitution rather than enact a new one. An act of amendment was different than an act of
repealing a constitution.
• “As a result of the amendment, the old Constitution cannot be destroyed and done away with; it is
retained though in the amended form. What then is meant by the retention of the old Constitution?
It means the retention of the basic structure or framework of the old Constitution. A mere retention
of some provisions of the old Constitution even though the basic structure or framework of the 
Constitution has been destroyed would not amount to the retention of the old Constitution.
Although it is permissible under the power of amendment to effect changes, "howsoever important,
and to adapt the system to the requirements of changing conditions, it is not permissible to touch
the foundation or to alter the basic institutional pattern. the words "amendment of the Constitution
" with all their wide sweep and amplitude cannot have the effect of destroying or abrogating the
basic structure or framework of the Constitution.” Per Khanna [para 1480]
Constitution (Thirty-Ninth Amendment) Act,
1975—S. 4 [Insertion of new article 329A]
• "329A. Special provision as to elections to Parliament in the case of Prime Minister and
Speaker.-(1) Subject to the provisions of Chapter II of Part V except sub-clause (e) of clause (1)
of article 102, no election-
(a) to either House of Parliament of a person who holds the office of Prime Minister at the time
of such election or is appointed as Prime Minister after such election;
(b) to the House of the People of a person who holds the office of Speaker of that House at the
time of such election or who is chosen as the Speaker for that House after such election, shall be
called in question, except before such authority not being any such authority as is referred to in
clause (b) of article 329 or body and in such manner as may be provided for by or under any law
made by Parliament and any such law may provide for all other matters relating to doubts and
disputes in relation to such election including the grounds on which such election may be
questioned.
(2) The validity of any such law as is referred to in clause (1) and the decision of any authority or
body under such law shall not be called in question in any court.
Contd.
• (3) Where any person is appointed as Prime Minister or, as the case may be, chosen to the office of the Speaker of the
House of the People, while an election petition referred to in clause (b) of article 329 in respect of his election to either
House of Parliament or, as the case may be, to the House of the People is pending, such election petition shall abate
upon such person being appointed as Prime Minister or, as the case may be, being chosen to the office of the Speaker of
the House of the People, but such election may be called in question under any such law as is referred to in clause (1).
• (4) No law made by Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, in
so far as it relates to election petitions and matters connected therewith, shall apply or shall be deemed ever to have
applied to or in relation to the election to any such person as is referred to in clause (1) to either House of Parliament
and such election shall not be deemed to be void or ever to have become void on any ground on which such elction
could be declared to be void or has, before such commencement, been declared to be void under any such law and
notwithstanding any order made by any court, before such commencement, declaring such elction to be void, such
election shall continue to be valid in all respects and any such order and any finding on which such order is based shall
be and shall be deemed always to have been void and of no effect.
• (5) Any appeal or cross appeal against any such order of any court as is referred to in clause (4) pending immediately
before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975,before the Supreme Court shall be
disposed of in conformity with the provisions of clause (4).
• (6) The provisions of this article shall have effect notwithstanding anything contained in this Constitution .".
Indira Nehru Gandhi v Shri Raj Narain
AIR 1975 SC 2299
• According to Mathew and Khanna JJ., the newly inserted Art 329A
vitiated an important basic feature of the const., that there be free
and fair elections in a democracy.
• “ To put a stamp of validity on the election of candidate by saying that the
challenge to such an election would not be governed by any election law and
that the said election in any case would be valid and immune from any
challenge runs counter to accepted norms of free and fair elections in all
democratic countries.” [para 212]
• According to Chandrachud J., it violated two essential features of the
const.: (1) the Separation of Powers, and (2) equality of status and of
opportunity (tests of reasonability, and principles of natural justice)
Contd.
• The Parliament was not competent to amend the const. u/Art 368, so
as to pass an ordinary law to validate an election with retrospective
effect.
• “… I feel no doubt that the amending body, when it declared the
election of the appellant to be valid, had to ascertain the adjudicative
facts and apply the relevant norm for adjudging its validity. If,
however, the amending body did not ascertain the facts relating to
the election and apply the relevant norm, the declaration of the
validity of the election was a fiat of a sui generis character of the
amending body.” [para 267]
Contd.
• “Equality is a multi-colored concept incapable of a single definition. It
is a notion of many shades and connotations. The preamble of the 
Constitution guarantees equality of status and of opportunity. They
are nebulous concepts. And I am not sure whether they can provide a
solid foundation to rear a basic structure. I think the types of equality
which our democratic republic guarantees are all subsumed under
specific articles of the Constitution like Articles 14, 15, 16, 17, 25 etc.
… rule of law is a basic structure of the Constitution apart from
democracy.” [para 336]
Constitution (Forty-Second Amendment)
Act, 1976—S. 55
• Insertions to Art. 368:
• "(4) No amendment of this Constitution (including the provisions of Part III)
made or purporting to have been made under this  
article (whether before or after the commencement of section 55 of the Cons
titution
 (Forty-second Amendment) Act, 1976) shall be called in question in any court
on any ground.
• (5) For the removal of doubts, it is hereby declared that there shall be no
limitation whatever on the constituent power - of Parliament to amend by
way of addition, variation or repeal the provisions of this Constitution under
this article".
Constitution (Forty-Second Amendment)
Act, 1976—S. 4
• 31-C : Notwithstanding anything contained in Article 13, no law giving
effect to the policy of the State towards securing all or any of the
principles laid down in Part IV shall be deemed to be void on the
ground that it is inconsistent with, or takes away or abridges any of
the rights conferred by Article 14, Art. 19 or Article 31; and no law
containing a declaration that it is for giving effect to such policy shall
be called in question in any court on the ground that it does not give
effect to such policy :Provided that where such law is made by the
Legislature of a State, the provisions of this Article shall not apply
thereto unless such law, having been reserved for the consideration of
the President, has received his assent.
IR Coelho v. State of Tamil Nadu, AIR
2007 SC 861
• Mathew J in Indira Gandhi in 1975 stated:
• “The concept of a basic structure, as brooding omnipresence in the sky, apart
from specific provisions of the^ constitution, is too vague and indefinite to
provide a yardstick for the validity of an ordinary law.”
• This question relates to the application of the basic structure, not only
on the Const. Amendments, but also on the statutes that are saved
under the 9th schedule as they are now immunized against attacks from
Part III (u/Art. 31B, especially, after the 25th Amendment Act was held
partly valid by the Keshavananda court).
• The SC in IR Coelho (2007) case has attempted to answer this question.
IR Coelho v. State of Tamil Nadu, AIR
2007 SC 861
• whether the basic structure principle applied only to constitutional
amendments, or whether it would also apply to the laws that are
added to the ninth schedule on the touchstone of fundamental
rights?
• The broader question: whether on and after 24th April, 1973 when
basic structures doctrine was propounded, it is permissible for the
Parliament under Article 31B to immunize legislations from
fundamental rights by inserting them into the Ninth Schedule and, if
so, what is its effect on the power of judicial review of the Court.
• “The Parliament's amending power under Article 368, in pursuance of
Article 31B read with the Ninth Schedule of the constitution, granting
that it has the power to amend every part of the Constitution,
including Part III that incorporates fundamental rights, cannot be
absolute, unlimited, uncontrolled or uncontrollable.”
• What are the rationale of reaching out to this principle? [See Virender
Singh, JILI]
Contd.
• Principle of Separation of Powers, invariably sanctified by the written
constitution constitution with its scheme to effect checks and
balances--"Adjudication of such a dispute is entrusted solely and the
Judicature of this country”. (para 115)
• The crux of constitutionalism premised on the principle of separation
of powers, thus, is that that the power of Parliament is not unlimited
inasmuch as it is subject to review by the courts on the touchstone of
the Constitution. It is inconceivable that the authority to enact law
and to decide the constitutional validity of the same should vest in
one and the same authority, namely, the legislature. (para 143)
Contd.
• power that under article 368 the power of amending the Constitution
is not truly and essentially a 'constituent power’.
• This is a very significant statement depicting the true character of the
amending power. Just as murder is a species of crime, or patent law a
species of intellectual property, likewise 'the power to amend the
constitution' is only a division of 'law making power', and not a
'constituent power' by itself. It is indeed a "derivative power" - a
power which is derived from the Constitution. (para 55)
"Since the power to amend the constitution is not unlimited, if changes
brought about by amendments destroy the identity of the constitution,
such amendments would be void.”(para 123)
For instance, Parliament, in the exercise of amending power
under article 368, can make additions in the three legislative lists,
but it cannot abrogate all the lists as it would abrogate the federal
structure, which is one of the basic features of the Constitution