Amendment and the basic structure - Constitutional Law II

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1. Article 368 and the three kinds of amendment
2. Can fundamental rights be amended? The first round
3. Parliament's reply: the Twenty-fourth Amendment (1971)
4. Kesavananda Bharati (1973): the basic structure
5. The doctrine applied
6. The criticism and the defence
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Tell it as a dialogue. The amendment topic is a conversation between Parliament and the Supreme Court, conducted over fifty years through judgments and amendments that answer each other. Set out in that order, case then amendment then case, the answer writes itself and the examiner can see you understand why each step was taken.

1. Article 368 and the three kinds of amendment

Article 368, headed (since the Twenty-fourth Amendment) “Power of Parliament to amend the Constitution and procedure therefor”, provides that Parliament may, in exercise of its constituent power, amend by way of addition, variation or repeal any provision of the Constitution. The Constitution can be changed in three ways:

By simple majority, outside Article 368. Some provisions say that a law changing them is not an amendment for the purposes of Article 368: admission and formation of States (Articles 2 to 4), creation or abolition of Legislative Councils (Article 169), and parts of the Fifth and Sixth Schedules. Ordinary legislative procedure suffices.
By special majority under Article 368(2). The Bill must be passed in each House by a majority of its total membership and by two-thirds of the members present and voting. Most of the Constitution, including Part III, falls here.
By special majority plus ratification by half the States. Under the proviso to Article 368(2), the entrenched federal provisions also need ratification by the legislatures of not less than one-half of the States: the election of the President (Articles 54 and 55), the extent of executive power (Articles 73 and 162), Article 241 and Article 279A, the Supreme Court and High Courts, the distribution of legislative power, the Seventh Schedule lists, the representation of States in Parliament, and Article 368 itself.

A constitutional amendment Bill can be introduced in either House, but not in a State legislature. There is no joint sitting if the Houses disagree. Since the Twenty-fourth Amendment the President must give assent (Article 368(2)).

2. Can fundamental rights be amended? The first round

In Sri Sankari Prasad Singh Deo v. Union of India, 1951 INSC 47, AIR 1951 SC 458, the First Amendment (which inserted Articles 31A and 31B to protect land reform) was challenged as abridging fundamental rights, contrary to Article 13(2). The Court held that “law” in Article 13 means ordinary legislation, not an amendment made in exercise of constituent power. Fundamental rights could therefore be amended.

Sajjan Singh v. State of Rajasthan, 1964 INSC 237, AIR 1965 SC 845, followed Sankari Prasad by a majority in upholding the Seventeenth Amendment. Hidayatullah and Mudholkar JJ. expressed doubts, Mudholkar J. asking whether some features of the Constitution might lie beyond the amending power. That question would return.

In I.C. Golak Nath v. State of Punjab, 1967 INSC 45, AIR 1967 SC 1643, an eleven-judge Bench held by six to five that an amendment is “law” within Article 13(2), and that Parliament had no power to amend Part III so as to take away or abridge fundamental rights. To avoid unsettling earlier land reforms, the Court applied prospective overruling: the earlier amendments stood, but the rule would bind from then on.

3. Parliament's reply: the Twenty-fourth Amendment (1971)

The Twenty-fourth Amendment inserted Article 13(4), declaring that nothing in Article 13 applies to amendments made under Article 368, and Article 368(3) to the same effect. It made clear that Article 368 contains the power to amend, and not merely the procedure, and made Presidential assent compulsory. The Twenty-fifth Amendment followed with Article 31C.

4. Kesavananda Bharati (1973): the basic structure

In Kesavananda Bharati v. State of Kerala, 1973 INSC 91, (1973) 4 SCC 225, a thirteen-judge Bench overruled Golak Nath and upheld the Twenty-fourth Amendment. Parliament can amend any provision, including fundamental rights. But by seven to six, the Court held that the power to “amend” does not include the power to destroy the basic structure of the Constitution. The second part of Article 31C, which barred courts from examining whether a law in fact gave effect to the Directive Principles, was struck down.

The judges gave illustrative lists of basic features: supremacy of the Constitution, republican and democratic government, secularism, separation of powers, federalism, and the dignity and freedom of the individual. The list is not closed, and features are identified case by case.

5. The doctrine applied

Indira Nehru Gandhi v. Raj Narain, 1975 INSC 272, 1975 Supp SCC 1. The Thirty-ninth Amendment inserted Article 329A(4) to validate the Prime Minister's election, set aside by the Allahabad High Court, and place it beyond challenge. The clause was struck down as destroying free and fair elections, the rule of law and judicial review. This was the first application of the doctrine.
Minerva Mills Ltd. v. Union of India, 1980 INSC 142, (1980) 3 SCC 625. The Forty-second Amendment had added clauses (4) and (5) to Article 368 to exclude review of amendments and declare the power unlimited, and had extended Article 31C to all Directive Principles. Both changes were struck down. Limited amending power and the balance between Parts III and IV are themselves basic features.
Waman Rao v. Union of India, 1980 INSC 216, (1981) 2 SCC 362. Amendments made before 24 April 1973, the date of Kesavananda, are not open to basic structure challenge; those made after it are, including additions to the Ninth Schedule.
I.R. Coelho (dead) by LRs v. State of Tamil Nadu, 2007 INSC 28, (2007) 2 SCC 1. A nine-judge Bench held that laws placed in the Ninth Schedule after 24 April 1973 can be tested against the basic structure, which includes the essence of the rights in Articles 14, 19 and 21.
Supreme Court Advocates-on-Record Association v. Union of India (2015), (2016) 5 SCC 1, the NJAC case. The Ninety-ninth Amendment and the National Judicial Appointments Commission Act, 2014 were struck down by four to one because giving the executive and lay members an effective veto over judicial appointments damaged the independence of the judiciary, a basic feature.
Janhit Abhiyan v. Union of India, 2022 INSC 1175. The Hundred-and-third Amendment (EWS reservation) was upheld by three to two, showing that the doctrine is a limit on destruction, not a bar on change.

Amendment of fundamental rights in one paragraph. Before 1967: yes, without limit (Sankari Prasad, Sajjan Singh). 1967 to 1973: no, not so as to abridge (Golak Nath). Since 1973: yes, but not so as to damage the basic structure (Kesavananda). The right to property is the example of a fundamental right lawfully removed: the Forty-fourth Amendment (1978) deleted Article 31 and made property a constitutional right under Article 300A.

6. The criticism and the defence

The doctrine is criticised because the basic structure is not written in the text, so unelected judges decide what Parliament may not change. The defence is that the word “amend” presupposes that the Constitution survives the change, and that the doctrine has been used sparingly: most amendments since 1973 have been upheld. Its value was shown in 1975–76, when it was the only legal check on amendments designed to entrench one government.

How this is examined

Two forms recur: “Can Parliament amend fundamental rights? Discuss with cases” and “Explain the doctrine of basic structure.” For the first, follow the sequence in the box above and end with Article 300A as an example. For the second, open with Kesavananda, list the basic features, then show the doctrine at work in Indira Gandhi, Minerva Mills, Coelho and the NJAC case. A short note on Article 368 procedure needs the three kinds of amendment and the list of entrenched provisions.