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THE BASIC STRUCTURE DOCTRINE - PATH TOWARDS

RIGIDITY OR FLEXIBILITY?

HIDAYATULLAH NATIONAL LAW UNIVERSITY, RAIPUR.

PROJECT SUBMITTED TO
Mrs. Shraddha Rajput Mam
Assistant Professor of Law, HNLU.
Faculty of Constitutional Governance (Hons. I)
(Federalism)
SUBMITTED BY: Abhinav K Shukla
Roll No. 03, SEMESTER IX, Batch XII

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Date of Submission- 26.09.2016


ACKNOWLEDGEMENT
Thanks to the Almighty who gave me the strength to accomplish the project with sheer hard work and
honesty. This research venture has been made possible due to the generous co-operation of various
persons.
This project wouldnt have been possible without the help of our faculty Mrs. Shraddha Rajput
Mam, Faculty of Constitutional Governance (Hons. I) who had always been there at my side
whenever I needed some help regarding any information. She has been my mentor in the truest sense of
the term. The administration has also been kind enough to let me use their facilities for research work. I
thank them for this would be grateful to receive comments and suggestions for further improvement of
this project report.
Thanking You!
Abhinav K Shukla
Roll No.03, Semester IX,
Batch XII.

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TABLE OF CONTENTS
1) Introduction..................................................03
2) Objectives of Study..........................................................................05
3) Research Methodology............05
4) Amendability of The Indian Constitution.....................................06-16
5) Doctrine of Basic Structure.........................................................16-32
6) Basic Structure:- Path towards rigidity or flexibility...................19-29
7) Provisions for ..............................................................................29-35
8) Conclusion.........................................................................................36
10) References.....................................................................................38

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INTRODUCTION

We the people are the rightful masters of both Congress and the courts, not to overthrow
the Constitution but to overthrow the men who pervert the Constitution.
Abraham Lincoln
The ideas upon which Constitution is based in one generation may be spurned as old
fashioned in the next.1

Sir Jennings

The Constitution makers gave the power to amend the Constitution in the hands of the
Parliament by making it neither too rigid nor too flexible with a purpose that the Parliament
will amend it as to cope up with the changing needs and demands of we the people. The
Parliament in exercise of its constituent power under Article 368 of the Indian Constitution
can amend any of the provisions of the Constitution and this power empowers the Parliament
to amend even Article 368 itself.
However, the extent of flexibility embraced by a Constitution has to be balanced by a need to
preserve its normative character as a higher law that restrains temporary parliamentary
majorities of the nation. Article 368 of the Constitution does not prescribe any express
limitation upon the parliaments amending power, however the Supreme Court in
Keshavananda Bharati v. State of Kerala (1973) declared that Article 368 did not enable
parliament to alter the Basic Structure or Framework of the Constitution.
The Doctrine of Basic Structure is a judge- made doctrine to put a limitation on the
amending powers of the Parliament so that the basic structure of the basic law of the land
cannot be amended in exercise of its constituent power under the Constitution. So the
question arises, is not there any limitation on the amending powers of the Parliament? If the
answer of this question is not in affirmative with a reason that the Constitution makers did not
intended for such limitation otherwise they would have provide for such limitation in the
Constitution, then another question arises to what extent can the Parliament amend the basic
law of the land? And, if there will be no limitation on the amending power of the Parliament,
are there not chances that this power of amendment in the name of constituent power can

1 Sir Ivor Jennings, Some Characteristics of Indian Constitution, (1953), p.15.


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be abused? This paper seeks to answer these questions and its scope through judicial
pronouncements.
Vigorously debated since its inception, the doctrine continues to be a central feature of recent
institutional contests over Constitutional identity and change. This paper examines the
development and the scope of the doctrine of basic structure as a Constitutional safeguard and
to find that the doctrine makes the Constitution of India more rigid or more flexible.

1.2 OBJECTIVES

To study the origin and development of The Doctrine of Basic Structure.

To critically analyze the concept of The Basic Structure Doctrine.

To find the impact of this doctrine on both, rigid as well as flexible nature of the
amendability of the Indian Constitution.

1.3 RESEARCH METHODOLOGY


The research methodology used in this project is analytical and descriptive. Data has been
collected from various books, articles, papers, commentaries and web sources. This project is
based upon non- doctrinal and secondary method of research. This project has been done after
a thorough research based upon intrinsic and extrinsic aspects of the project.

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1. Amendability of The Indian Constitution. : General meaning, nature and importance of Constitutional amendment:Definition of Amendment
The term amendment derives from the Latin word amendere. The term amend means to
make right, to make correction or to rectify. In common parlance amendment conveys the
sense of slight change.
Oxford dictionary of law says2Amendment means changes made to legislation, for the
purpose of adding to, correcting or modifying the operation of the legislation.
Blacks Law Dictionary defines,3Amendment as A formal revision or addition proposed or
made to a statute, Constitution, pleading, order, or other instrument; a change made by
addition, deletion or correction specially an alteration of wording. And In Parliamentary
law, it means a motion that changes another motions wording by striking out text, inserting
or adding text, or substituting text.
A constitutional amendment refers to the modification of the constitution of a nation or
state. In many jurisdictions the text of the constitution itself is altered; in others the text is not
changed, but the amendments change its effect. The method of modification is typically
written into the constitution itself. All of the world's active national constitutions mention
amendment procedures.
Most constitutions require that amendments cannot be enacted unless they have passed a
special procedure that is more stringent than that required of ordinary legislation. Examples
of such special procedures include supermajorities in the legislature, or direct approval by the
electorate in a referendum, or even a combination of two or more different special

2 Oxford law dictionary p45

3 Garner, Black Law dictionary , 8th Edition, p-89 Burtom, William


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procedures. A referendum to amend the constitution may also be triggered in some


jurisdictions by popular initiative.
Australia and Ireland provide examples of constitutions requiring that all amendments are
first passed by the legislature before being submitted to the people; in the case of Ireland, a
simple majority of those voting at the electorate is all that is required, whereas a more
complex set of criteria must be met in Australia (a majority of voters in a majority of states is
also necessary). Switzerland has procedure similar to that of Australia.
The special procedures for the amendment of some constitutions have proven to be so
exacting that of proposed amendments either few (8 Amendments out of 44 proposed), as in
Australia, or none, as in Japan, have been passed over a period of several decades. In
contrast, the constitution of the U.S. state of Alabama has been amended over 800 times since
1901.
Need and Importance of Amending Provisions in the Constitution
The Constitution was designed to be a means to achieve the welfare of the common man and
must respond to the popular needs. In order to fulfill the aspirations of the people, we need
changes in the Constitution whenever necessary. In a democracy neither the Constitution nor
the government is supreme: it is the people who are supreme and they have the right to
change the Constitution partially or completely. Unamendability of a Constitution is the worst
tyranny that can be imposed on any generation and a democratic Constitution without a
provision to amend it would be a contradiction in terms. Therefore, in accordance with
liberal-democratic tradition, the power to amend the Constitution of India has been vested in
the Parliament. When this power is conferred to the Parliament, the very next questions
comes in our mind is that, what, if certain provisions were faulty, unreasonable or
inadequate? What, if the future requirements of a State were not reasonably foreseen by the
makers of the Constitution? What, if the future generations require some readjustments in the
working of the Constitution or want to make some changes? Is it possible to amend a
Constitution if there be a need to do so? The need of an amendment to the Constitution comes
into the picture when there is a change in the society.
James Wilford Garners observations about the importance of the amending clauses - He said,
No written Constitution is complete without such a provision Garner goes on to further

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state that, In some respects the amending provision is the most important part of the
Constitution.4
The object of amending clause in a Constitution is to ensure that the Constitution is
preserved. A State cannot be static. It is dynamic and it changes with the passage of time. The
political, social and economic conditions in a State keep changing with time. Scientific and
technological advancements change the life of a State. The social values and ideals also
change with time giving rise to new problems and new opportunities. Future generations may
require change in the provisions of the Constitution in a proper and peaceful manner to make
it suitable to its requirements. A properly drafted amending clause enables the future
generations to adapt the Constitution in accordance with the contemporary needs and
philosophy of a state in a peaceful manner. In the absence of a suitable amending clause in a
Constitution, the only alternative left open for the future generations would be to either resort
to a revolution to change or even overthrow the unamendable Constitution or to stagnate with
such unamendable Constitution. Both these situations are not desirable. The amending clause
in Constitution, which can help in avoiding both these situations, is thus of great
significance.5
So amending clause in the Constitution enables the future generations to exercise their
sovereign power of having a Constitution of their choice and of their changing needs. It is in
the light of this importance that the amending clause in a Constitution needs to be considered
with utmost respect and seriousness that it so properly deserves.

Perspective of the Constituent Assembly :The framers of the Constitution were neither in favour of the traditional theory of federalism,
which entrusts the task of constitutional amendment to a body other than the Legislature, nor
did they favour a rigid special procedure for such amendments. They also never wanted to
have a British-style system where Parliament is supreme. The framers, instead, adopted a
combination of the "theory of fundamental law", which underlies the written Constitution of
4 36 James Wilford Garner, Political Science and Government, p.528.
5 Dr. Ashok Dhamija, Need to amend a Constitution and Doctrine of Basic Structure, first
edition 2007,published by Wadhwa and company Nagpur, p.9.

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the United States with the "theory of parliamentary sovereignty" as existing in the United
Kingdom. The Constitution of India vests constituent power upon the Parliament subject to
the special procedure laid down therein.6
During the discussion in the Constituent Assembly on this aspect, some members were in
favour of adopting an easier mode of amending procedure for the initial five to ten years.
Explaining why it was necessary to introduce an element of flexibility in the
Constitution, Jawaharlal Nehru observed in the Constituent Assembly on 8 November 1948,
"While we want this Constitution to be as solid and as permanent a structure as we can make
it, nevertheless there is no permanence in Constitutions. There should be a certain flexibility.
If you make anything rigid and permanent, you stop a nations growth, the growth of a living,
vital, organic people. Therefore, it has to be flexible ... while we, who are assembled in this
House, undoubtedly represent the people of India, nevertheless I think it can be said, and
truthfully, that when a new House, by whatever name it goes, is elected in terms of this
Constitution, and every adult in India has the right to vote - man and woman - the House that
emerges then will certainly be fully representative of every section of the Indian people. It is
right that House elected so - under this Constitution of course it will have the right to do
anything - should have an easy opportunity to make such changes as it wants to. But in any
event, we should not make a Constitution, such as some other great countries have, which are
so rigid that they do not and cannot be adapted easily to changing conditions. Today
especially, when the world is in turmoil and we are passing through a very swift period of
transition, what we may do today may not be wholly applicable tomorrow. Therefore, while
we make a Constitution which is sound and as basic as we can, it should also be flexible ..."7
Dr. P.S. Deshmukh believed that the amendment of the Constitution should be made easier as
he felt there were contradictory provisions in some places which would be more and more
apparent when the provisions were interpreted, and that the whole administration would
suffer, if the amendment to the Constitution was not made easy. Brajeshwar Prasad also
favoured a flexible Constitution so as to make it survive the test of time. He was of the
opinion that rigidity tends to check progressive legislation or gradual innovation. On the other
6 "Constitution Amendment: Nature and Scope of the Amending
Process" (PDF). Lok Sabha Secretariat. Retrieved 1 December 2013.
7 "Constituent Assembly of India Debates (Proceedings) - Vol. VII". 8 November
1948. pp. 322323. Retrieved 1 December 2013.
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hand, H.V. Kamath favoured ensuring procedural safeguards to avoid the possibility of hasty
amendment to the Constitution.8
"It is said that the provisions contained in the Draft make amendment 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 a 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 and Australian Constitutions.
Compared to them those contained in the Draft Constitution will be found to be the simplest.
The Draft Constitution has eliminated the elaborate and difficult procedures such as a
decision by a convention or a referendum ... It is only for amendments of specific matters
and they are only fewthat the ratification of the State Legislatures is required. All other
Articles of the Constitution are left to be amended by Parliament. The only limitation is that it
shall be done by a majority of not less than two-thirds of the members of each House present
and voting and a majority of the total membership of each House. It is difficult to conceive a
simpler method of amending the Constitution.
What is said to be the absurdity of the amending provisions is founded upon a misconception
of the position of the Constituent Assembly and of the future Parliament elected under the
Constitution. The Constituent Assembly in making a Constitution has no partisan motive.
Beyond securing a good and workable Constitution it has no axe to grind. In considering the
Articles of the Constitution it has no eye on getting through a particular measure. The future
Parliament if it met as Constituent Assembly, its members will be acting as partisans seeking
to carry amendments to the Constitution to facilitate the passing of party measures which they
have failed to get through Parliament by reason of some Article of the Constitution which has
acted as an obstacle in their way. Parliament will have an axe to grind while the Constituent
Assembly has none. That is the difference between the Constituent Assembly and the future
Parliament. That explains why the Constituent Assembly though elected on limited franchise

8 Supra note 6.
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can be trusted to pass the Constitution by simple majority and why the Parliament though
elected on adult suffrage cannot be trusted with the same power to amend it."
B.R. Ambedkar, speaking in the Constituent Assembly on 4 November 19489

While referring to the need to amend the Constitution to the changing socio economic and
political conditions, Pandit Jawaharlal Nehru said,10
It is the one of the utmost importance that the people should realize that this great
Constitution of ours, over which we labored so long, is not a final and rigid thing. A
Constitution which is responsive to the peoples will, which is responsive to their idea, in that
it can be varied here and there, they will respect it all the more and they will not fight against,
when we want to change it.
Dr. B.R.Ambedkar said,11
It is the right and privilege of the highest Court of the land to interpret the Constitutional
law, however, at the same time; it is also the duty of the Parliament to see that objects aimed
at in the Constitution are fulfilled or not by the judgement based on such interpretation. If the
object is not achieved because judgement comes in the way, it is the provisions of the
Constitution here and there.
So these were the views of The Constituent Assembly and after thorough research, debates
and considering different point of views the Constituent Assembly finally introduced Article
368 (Clauses 1 to 3) in the draft document of The Constitution of India which was latter on
adopted on 26th November, 1949.

9 Supra note 6.
10 Parliamentary debates, vols.XII-XIII,partII,1951,pp9616-17

11 Working of Indian Constitution reflections of a Parliamentarian by D K Naikar, p74


society for humanrights law Dharwad 2000.

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Provisions of Amendment in The Constitution of India:-

Part XX, Amendment of The Constitution,


Article 368 in The Constitution Of India 1949:
368. Power of Parliament to amend the Constitution and procedure therefor(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.
(2) 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 present and voting, it shall be presented to the
President who shall give his assent to the Bill and thereupon the Constitution shall stand
amended in accordance with the terms of the Bill: Provided that if such amendment seeks to
make any change in
(a) Article 54, Article 55, Article 73, Article 162 or Article 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 Legislature of not less than one half of
the States by resolution to that effect passed by those Legislatures before the Bill making
provision for such amendment is presented to the President for assent
(3) Nothing in Article 13 shall apply to any amendment made under this article.
(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

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Section 55 of the Constitution (Forty second Amendment) Act, 1976 shall be called in
question in any court on any ground.12
(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.13
PROCEDURE: The Constitution of India provides for a distinctive amending process when
compared to the Constitutions of other nations. It can be described as partly flexible and
partly rigid. The Constitution provides for a variety in the amending process. This feature has
been commended by Australian academic Sir Kenneth Wheare who felt that uniformity in the
amending process imposed quite unnecessary restrictions upon the amendment of parts of a
Constitution.14 An amendment of the Constitution can be initiated only by the introduction of
a Bill in either House of Parliament. The Bill must then be 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. There is no provision for a joint sitting in
case of disagreement between the two Houses. The Bill, passed by the required majority, is
then presented to the President who shall give his assent to the Bill. If the amendment seeks
to make any change in any of the provisions mentioned in the proviso to article 368, it must
be ratified by the Legislatures of not less than one-half of the States. Although, there is no
prescribed time limit for ratification, it must be completed before the amending Bill is
presented to the President for his assent.15
Every constitutional amendment is formulated as a statute. The first amendment is called the
"Constitution (First Amendment) Act", the second, the "Constitution (Second Amendment)
Act", and so forth. Each usually has the long title "An Act further to amend the Constitution
of India".

12 Ins. By The Constitution (Forty Second Amendment), Act, 1976, sec.55 (w.e.f.
3-1-1977).
13 Ibid.
14 Supra note 6.
15 Supra note 6.
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Types of amendments[edit]
The original constitution provided for three categories of amendments. The first category of
amendments are those contemplated in articles 4 (2), 169 (3) -1962, 239A (2) -1962, 239AA
(7b) -1991, 243M (4b) -1992, 243ZC (3) -1992, 244A (4) -1969, 356 (1)c, para 7(2) of
Schedule V and para 21(2) of Schedule VI.16 These amendments can be effected by
Parliament by a simple majority such as that required for the passing of any ordinary law. The
amendments under this category are specifically excluded from the purview of article 368
which is the specific provision in the Constitution dealing with the power and the procedure
for the amendment of the Constitution. Article 4 provides that laws made by Parliament
under article 2 (relating to admission or establishment of new States) and article 3 (relating to
formation of new States and alteration of areas, boundaries or names of existing States)
effecting amendments in the First Schedule or the Fourth Schedule and supplemental,
incidental and consequential matters, shall not be deemed to be amendments of the
Constitution for the purposes of article 368. For example, the States Reorganisation Act,
1956, which brought about reorganisation of the States in India, was passed by Parliament as
an ordinary piece of legislation. In Mangal Singh v. Union of India (A.I.R. 1967 S.C. 944),
the Supreme Court held that power to reduce the total number of members of Legislative
Assembly below the minimum prescribed under article 170 (1) is implicit in the authority to
make laws under article 4. Article 169 empowers Parliament to provide by law for the
abolition or creation of the Legislative Councils in States and specifies that though such law
shall contain such provisions for the amendment of the Constitution as may be necessary, it
shall not be deemed to be an amendment of the Constitution for the purposes of article
368. The Legislative Councils Act, 1957, which provided for the creation of a Legislative
Council in Andhra Pradesh and for increasing the strength of the Legislative Councils in
certain other States, is an example of a law passed by Parliament in exercise of its powers
under article 169. The Fifth Schedule contains provisions as to the administration and control
of the Schedule Areas andScheduled Tribes. Para 7 of the Schedule vests Parliament with
plenary powers to enact laws amending the Schedule and lays down that no such law shall be
deemed to be an amendment of the Constitution for the purposes of article 368. Under Para
21 of the Sixth Schedule, Parliament has full power to enact laws amending the Sixth
Schedule which contains provisions for the administration of Tribal Areas in the States

16 "Full text of the Constitution of India" (PDF). Retrieved 11 August 2014.


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of Assam, Meghalaya, Tripura and Mizoram. No such law, will be deemed to be an


amendment of the Constitution for the purposes of article 368.
The second category includes amendments that can be effected by Parliament by a prescribed
special majority; and the third category of amendments includes those that require, in
addition to such "special majority", ratification by at least one half of the State Legislatures.
The last two categories are governed by article 368.17
Ambedkar speaking in the Constituent Assembly on 17 September 1949, pointed out that
there were "innumerable articles in the Constitution" which left matters subject to laws made
by Parliament.18 Under article 11, Parliament may make any provision relating to citizenship
notwithstanding anything in article 5 to 10. Thus, by passing ordinary laws, Parliament may,
in effect, provide, modify or annul the operation of certain provisions of the Constitution
without actually amending them within the meaning of article 368. Since such laws do not in
fact make any change whatsoever in the letter of the Constitution, they cannot be regarded as
amendments of the Constitution nor categorised as such. Other examples include Part XXI of
the

Constitution"Temporary,

Transitional

and

Special

Provisions"

whereby

"Notwithstanding anything in this Constitution" power is given to Parliament to make laws


with respect to certain matters included in the State List (article 369); article 370 (1) (d)
which empowers the President to modify, by order, provisions of the Constitution in their
application to the State of Jammu and Kashmir; provisos to articles 83 (2) and 172 (1)
empower Parliament to extend the lives of the House of the People and the Legislative
Assembly of every State beyond a period of five years during the operation of a Proclamation
of Emergency; and articles 83(1) and 172 (2) provide that the Council of States/Legislative
Council of a State shall not be subject to dissolution but as nearly as possible one-third of the
members thereof shall retire as soon as may be on the expiration of every second year in
accordance with the provisions made in that behalf by Parliament by law.
Amendments under article 368[edit]
part-xx Article 368 (1) of the Constitution of India grants constituent power to make formal
amendments and empowers Parliament to amend the Constitution by way of addition,
17 Supra note 6.
18 "Constituent Assembly Debates - Volume IX". India Kanoon. 17 September
1949. p. 1660. Retrieved 1 December 2013.
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variation or repeal of any provision according to the procedure laid down therein, which is
different from the procedure for ordinary legislation.[6] Article 368 has been amended by the
24th and 42nd Amendments in 1971 and 1976 respectively. The following is the full text of
Article 368 of the Constitution, which governs constitutional amendments. New clauses 368
(1) and 368 (3) were added by the 24th Amendment in 1971, which also added a new clause
(4) in article 13 which reads, "Nothing in this article shall apply to any amendment of this
Constitution made under article 368."19 The provisions clause 4 and 5 were inserted by
the 42nd Amendment, but were later declared unconstitutional by the Supreme Court
in Minerva Mills v. Union of India in 1980.20 After the 24th amendment, Article 4(2), etc. of
the constitution are superseded/made void by article 368 (1) which is the only procedure for
amending the constitution however marginal may be the nature of the amendment. Supreme
court ruled that the constituent power under article 368 must be exercised by the Parliament
in the prescribed manner and can not be exercised under the legislative powers of the
Parliament.21
As per the procedure laid out by article 368 for amendment of the Constitution, an
amendment can be initiated only by the introduction of a Bill in either House of Parliament.
The Bill must then be 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. There is no provision for a joint sitting in case of disagreement between the two
Houses. Total membership in this context has been defined to mean the total number of
members comprising the House irrespective of any vacancies or absentees on any account
vide Explanation to Rule 159 of the Rules of Procedure and Conduct of Business in Lok
Sabha.22
The Bill, passed by the required majority, is then presented to the President who shall give his
assent to the Bill. If the amendment seeks to make any change in any of the provisions
19 Supra note 6.
20 AIR 1980 SC 1789
21 "Para 506e of Kesavananda Bharati v. State of Kerala, (AIR 1973 SC 1461)".
1973.
22 Supra note 6.
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mentioned in the proviso to article 368, it must be ratified by the Legislatures of not less than
one-half of the States. These provisions relate to certain matters concerning the federal
structure or of common interest to both the Union and the States viz., the election of the
President (articles 54 and 55); the extent of the executive power of the Union and the States
(articles 73 and 162); the High Courts for Union territories (article 241); The Union Judiciary
and the High Courts in the States (Chapter IV of Part V and Chapter V of Part VI); the
distribution of legislative powers between the Union and the States (Chapter I of Part XI and
Seventh Schedule); the representation of States in Parliament; and the provision for
amendment of the Constitution laid down in article 368. Ratification is done by a resolution
passed by the State Legislatures. There is no specific time limit for the ratification of an
amending Bill by the State Legislatures. However, the resolutions ratifying the proposed
amendment must be passed before the amending Bill is presented to the President for his
assent.23

2. The Doctrine of Basic Structure : The Origin and development of the doctrine :
The basic structure doctrine is an Indian judicial principle that the Constitution of India has
certain basic features that cannot be altered or destroyed through amendments by
the parliament. Key among these "basic features", are the fundamental rights granted to
individuals by the constitution. The doctrine thus forms the basis of a limited power of
the Supreme Court to review and strike down constitutional amendments enacted by the
Parliament which conflict with or seek to alter this "basic structure" of the Constitution. The
basic structure doctrine applies only to constitutional amendments. The basic features of the
Constitution have not been explicitly defined by the Judiciary, and the claim of any particular
feature of the Constitution to be a "basic" feature is determined by the Court in each case that
comes before it. The basic structure doctrine does not apply to ordinary Acts of Parliament,
which must itself be in conformity with the Constitution.
23 Ibid
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Judicial Journey of evolution of The Doctrine:


I.

Shankari Prasad v. Union of India24:-

In this case first time the question whether fundamental rights can be amended under Article
368 came for consideration of the Supreme Court. In that case the Validity of the First
Constitutional Amendment which added Article 31-A and 31-B of the Constitution was
challenged. It was contended that though it may be open to Parliament to amend the
provisions in respect of the fundamental rights, the amendments, would have to be tested in
the light of the provisions contained in Art.13(2) of the Constitution. The Supreme Court,
with a bench of five judges, unanimously rejected the contention that in so far as the First
Amendment took away or abridged the fundamental rights conferred by Part III it should not
be upheld in the light of the provisions of article 13(2). Shastri J: delivering the judgment of
the court said that although "law" must ordinarily include constitutional law, there is a clear
demarcation between ordinary law, which is made in the exercise of legislative power, and
constitutional law, which is made in the exercise of constituent power. Dicey defines
constitutional law as including "all rules which directly or indirectly affect the distribution or
the exercise of the sovereign power in the State." The terms of Art. 368 are perfectly general
and empower Parliament" to amend the Constitution, without any exception whatever.
Shastri J. was here implementing Dicey's doctrine of parliamentary sovereignty. He
recognized that an amendment in terms of article 368 was the "exercise of sovereign
constituent power" and that there was no indication that the constitution-makers intended to
make fundamental rights immune from constitutional amendment. Therefore "law" in article
13 must be taken to mean rules or regulations made in the exercise of ordinary legislative
power and not amendments to the Constitution made in the exercise of constituent power.
Article

13

(2)

did

not

affect

amendments

made

under

article

368.

Notwithstanding the First Amendment, agrarian legislative measures adopted by the States
were effectively challenged in the High Courts and two further amendments were passed to
save the validity of those measures. The Constitution (Fourth Amendment) Act, 1955,
amended article 31-A, while the Constitution (Seventeenth Amendment) Act, 1964, amended
article 31-A, again and added 44 Acts to the Ninth schedule.
24 AIR 1951 SC 458
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II.

Sajjan Singh v. State of Rajasthan25:

The validity of the Seventeenth Amendment was challenged in this case. The main contention
before the five-judge bench of the Supreme Court was that the Seventeenth Amendment
limited the jurisdiction of the High Courts and, therefore, required ratification by one-half of
the States under the provisions of article 368. The court unanimously disposed of this
contention, but members of the court chose to deal with a second submission, that the
decision in the Shankari Prasad case should be reconsidered. The Chief Justice
(Gajendragadkar C.J.) in delivering the view of the majority (Gajendragadkar C.J., Wanchoo
and Raghubar Dayal JJ.) expressed their full concurrence with the decision in the earlier case.
The words "amendment of this constitution" in article 368 plainly and unambiguously meant
amendment of all the provisions of the Constitution; it would, therefore, be unreasonable to
hold that the word "law" in article 13(2) took in Constitution Amendment Acts passed under
article 368.
They went on to point out that, even if the powers to amend the fundamental rights were not
included in article 368, Parliament could by a suitable amendment assume those powers. The
Chief Justice also dealt in his judgment with the wording of article 3lB. That article, he
considered, left it open to the Legislatures concerned to repeal or amend Acts that had been
included in the Ninth Schedule. But the inevitable consequence would be that an amended
provision would not receive the protection of article 31B and that its validity could be
examined on its merits.
Hidayatullah and Mudholkar JJ., in separate judgments, gave notice that they would have
difficulty in accepting the reasoning in Shankari Prasad's case in regard to the relationship of
articles 13 (2) and 368. Hidayatullah J. said that he would require stronger reasons than those
given in that case to make him accept the view that the fundamental rights were not really
fundamental, but were intended to be within the power of amendment in common with other
parts of the Constitution. 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." Mudholkar J. took
the view that the word "law" in article 13 (2) included an amendment to the Constitution
under article 368.Article 368 does not say that when Parliament makes an amendment to the
25 (1965) 1 SCR 933
19 | P a g e

Constitution it assumes a different capacity, that of a constituent body. The learned Judge
recalled that India had a written constitution, which created various organs at the Union and
State levels and recognized certain rights as fundamental.
The judgments in Sajjan Singh's case were to provide the outlines of what was to become,
and still is, a national debate on the method by which the Indian Constitution can be
amended. As an Indian commentator has pointed out the doubts expressed by Hidayatullah
and Mudholkar JJ. in Sajjan Singh's case about the correctness of the decision in Shankari
Prasad's case were to be confirmed by the majority in the next case to be considered (Golak
Nath's case). Golak Nath's case was itself to be overruled by a majority in the Keshvananda
bhartis case, this time in favour of Mudholkar J's view that certain features of the
Constitution were basic and unalterable. The minority judges in Keshvananda's case were to
return to the view of the court in Shankari Prasad's case and the majority in Sajjan Singh's
case.
III.

Golak Nath v. State of Punjab26:

The doubts of the minority judges in Sajjan Singh's case as to the correctness of the decision
in Shankari Prasad's case were raised before a bench of eleven judges of the Supreme Court
in this case, in which the validity of the First and Seventeenth Amendments to the
Constitution in so far as they affected fundamental rights was again challenged. The Fourth
Amendment was also challenged. This time a majority of six judges to five decided that
Parliament had no power to amend any of the provisions of Part III, so as to take away or
abridge the fundamental rights enshrined therein. The majority were, however, faced with the
problem that, if the First, Fourth and Seventeenth Amendments were at a late stage to be
invalidated, the impact on social and economic affairs would be chaotic. On the other hand,
the court considered that it had a duty to correct errors in the law. It, therefore, adopted a
doctrine of prospective overruling[4] under which the three constitutional amendments
concerned would continue to be valid, and the decision to the effect that Parliament had no
power to amend the provisions of Part III would operate for the future only.
Given this "policy and doctrinaire decision to favour Fundamental Rights", the majority
judgment of Subha Rao C.J. proceeded to accept the following propositions:
26 AIR 1967 SC 1643
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(i) Article 368 with its marginal note "Procedure for amendment of the Constitution" dealt
only with the procedure for amendment. Amendment was a legislative process and the power
of Parliament to make amendments was contained in article 248 and Entry 97 in List I of the
Seventh Schedule (the Union List) which confer residuary legislative powers on the Union
Parliament.
(ii) An amendment to the Constitution, whether under the procedural requirements of article
368 or under any other article, is made as part of the normal legislative process. It is,
therefore, a "law" for the purpose of article 13(2).
The judgment of three of the dissentients.( Wanchoo, Bhargava and Mitter JJ.) in the Golak
Nath" case was delivered by Wanchoo J. The learned observed that Art.368 carried the power
to amend all parts of the constitution including the fundamental rights in part III of the
constitution. They reaffirmed the correctness of the decisions in cases of Shankri Prasad and
Sajjan singh.
24th Amendment Act to nullify the Golaknaths Decision:
To get over the decision of the Supreme Court in Golaknaths case the Constitution 24th
Amendment Act was passed in 1971. The Twenty-fourth Amendment made changes to
articles 13 and 368:
(i) A new clause was added to article 13: "(4) Nothing in this article shall apply to any
amendment of this Constitution made under article 368."
(ii) Amendments were made to article 368:
a) The article was given a new marginal heading: "Power of Parliament to amend the
Constitution and procedure therefore."
b) A new clause was added as clause (I): "(I) 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) Another clause was added as clause (3): "(3) Nothing in article 13 shall apply to any
amendment under this article."

21 | P a g e

Another amendment to the old article 368 (now article 368(2)) made it obligatory rather than
discretionary for the President to give his assent to any Bill duly passed under the article.27
The Supreme Court recognized BASIC STRUCTURE concept for the first time in the
historic Kesavananda Bharati case in 1973. Ever since the Supreme Court has been the
interpreter of the Constitution and the arbiter of all amendments made by parliament. In this
case validity of the 25th Amendment act was challenged along with the Twenty-fourth and
Twenty-ninth Amendments. The court by majority overruled the Golak Nath case which
denied parliament the power to amend fundamental rights of the citizens. The majority held
that article 368 even before the 24th Amendment contained the power as well as the
procedure of amendment. The Supreme Court declared that Article 368 did not enable
Parliament to alter the basic structure or framework of the Constitution and parliament could
not use its amending powers under Article368 to 'damage', 'weaken', 'destroy', 'abrogate',
'change' or 'alter' the 'basic structure' or framework of the constitution. This decision is not
just a landmark in the evolution of constitutional law, but a turning point in constitutional
history.
IV.

Kesavananda Bharti v. State of Kerala28:

Six years later in 1973, the largest ever Constitutional Bench of 13 Judges, heard arguments
in Kesavananda Bharati v. State of Kerala (case citation: AIR 1973 SC 1461). The Supreme
Court reviewed the decision in Golaknath v. State of Punjab29, and considered the validity of
the 24th, 25th, 26th and 29th Amendments. The Court held, by a margin of 7-6, that although
no part of the constitution, including fundamental rights, was beyond the amending power of
Parliament (thus overruling the 1967 case), the "basic structure of the Constitution could not
be abrogated even by a constitutional amendment". 30 The decision of the Judges is complex,

27Constitution (Twenty Fourth Amendment) Act, 1971.


28 AIR 1973 SC 1461
29 Supra note 26
30 Austin, Granville (1999). Working a Democratic Constitution - A History of the
Indian Experience. New Delhi: Oxford University Press. pp. 258277.
22 | P a g e

consisting of multiple opinions taking up one complete volume in the law reporter "Supreme
Court Cases". The findings included the following:

All of the Judges held that the 24th, 25th and 29th Amendments Acts are valid.

Ten judges held that Golak Nath's case was wrongly decided and that an amendment
to the Constitution was not a "law" for the purposes of Article 13.

Seven judges held that the power of amendment is plenary and can be used to amend
all the articles of the constitution (including the Fundamental Rights).

Seven judges held (six judges dissenting on this point) that "the power to amend does
not include the power to alter the basic structure of the Constitution so as to change its
identity".

Seven judges held (two judges dissenting, one leaving this point open) that "there are
no inherent or implied limitations on the power of amendment under Article 368".

Nine judges (including two dissentients) signed a statement of summary for the judgment that
reads:
1. Golak Nath's case is over-ruled.
2. Article 368 does not enable Parliament to alter the basic structure or framework of the
Constitution.
3. The Constitution (Twenty-fourth Amendment) Act, 1971 is valid.
4. Section 2(a) and 2(b) of the Constitution (Twenty-fifth Amendment) Act, 1971 is
valid.
5. The first part of section 3 of the Constitution (Twenty-fifth Amendment) Act, 1971 is
valid. The second part namely "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" is invalid.
6. The Constitution (Twenty-ninth Amendment) Act, 1971 is valid.31
It is a landmark of the Supreme Court of India, and is the basis in Indian law for the exercise
by the Indian judiciary of the power to judicially review, and strike down, amendments to the
Constitution of India passed by the Indian Parliament which conflict with or seek to alter the
Constitution's basic structure. The judgment also defined the extent to which the Indian
Parliament could restrict the right to property, in pursuit of land reform and the redistribution

31 Supra note 28.


23 | P a g e

of large landholdings to cultivators, overruling previous decisions that suggested that the
right to property could not be restricted.

Majority Judgement:
Sikri C. J.
Held that the fundamental importance of the freedom of the individual has to be preserved for
all times to come and that it could not be amended out of existence. According to the learned
Chief Justice, fundamental rights conferred by Part III of the Constitution cannot be
abrogated, though a reasonable abridgement of those rights could be effected in public
interest. There is a limitation on the power of amendment by necessary implication which
was apparent from a reading of the preamble and therefore, according to the learned Chief
Justice, the expression "amendment of this Constitution", in Article 368 means any addition
or 'change in any of the provisions of the Constitution within the broad contours of the
preamble, made in order to carry out the basic objectives of the Constitution. Accordingly,
every provision of the Constitution was open to amendment provided the basic foundation or
structure of the Constitution was not damaged or destroyed. Shelat and Grover, JJ. held that
the preamble to the Constitution contains the clue to the fundamentals of the Constitution.
According to the learned Judges, Parts III and IV of the Constitution which respectively
embody the fundamental rights and the directive principles have to be balanced and
harmonized. This balance and harmony between two integral parts of the Constitution forms
a basic element of the Constitution which cannot be altered. The word 'amendment' occurring
in Article 368 must therefore be construed in such a manner as to preserve the power of the
Parliament to amend the Constitution, but not so as to result in damaging or destroying the
structure and identity of the Constitution. There was thus an implied limitation on the
amending power which precluded Parliament from abrogating or changing the identity of the
Constitution or any of its basic features.
Hegde and Mukherjea, JJ.
Held that the Constitution of India which is essentially a social rather than a political
document is founded on a social philosophy and as such has two main features basic and
circumstantial. The basic constituent remained constant; the circumstantial was subject to
change. According to the learned Judges, the broad contours of the basic elements and the
24 | P a g e

fundamental features of the Constitution are delineated in the preamble and the Parliament
has no power to abrogate or emasculate those basic elements of fundamental features. The
building of a welfare State, the learned Judges said, the ultimate goal of every Government
.but that does not mean that in order to build a welfare State, human freedoms have to suffer a
total destruction. Applying these tests, the learned Judges invalidated Article 31C even in its
un-amended form.
Jaganmohan Reddy, J.
Held that the word 'amendment' was used in the sense of permitting a change, in
contradistinction to destruction, which the repeal or abrogation brings about. Therefore, the
width of the power of amendment could not be enlarged by amending the amending power
itself. The learned Judge held mat the essential elements of the basic structure of the
Constitution are reflected in its preamble and that some of the important features of the
Constitution are justice, freedom of expression and equality of status and opportunity. The
word 'amendment' could not possibly embrace the right to abrogate the pivotal features and
the fundamental freedoms and therefore, that part of the basic structure could not be damaged
or destroyed. According to the learned Judge, the provisions of Article 31C, as they stood
then, conferring power on Parliament and the State Legislatures to enact laws for giving
effect to the principles specified in Clauses (b) and (c) of Article 39, altogether abrogated the
right given by Article 14 and were for that reason unconstitutional. In conclusion, the learned
Judge held that though the power of amendment was wide, it did not comprehend the power
to totally abrogate or emasculate or damage any of the fundamental rights or the essential
elements of the basic structure of the Constitution or to destroy the identity of the
Constitution. Subject to these limitations, Parliament had the right to amend any and every
provision of the Constitution.
Khanna, J.
Broadly agreed with the aforesaid views of the six learned Judges and held that the word
'amendment' postulated that the Constitution must survive without loss of its identity, which
meant that the basic structure or framework of the Constitution must survive any amendment
of the Constitution. According to the learned Judge, although it was permissible to the
Parliament, in exercise of its amending power, to effect changes so as to meet the
requirements of changing conditions, it was not permissible to touch the foundation or to alter
the basic institutional pattern. Therefore, the words "amendment of the Constitution" in spite
25 | P a g e

of the width of their sweep and in spite of their amplitude, could not have the effect of
empowering the Parliament to destroy or abrogate the basic structure or framework of the
Constitution.
The ruling thus established the principle that the basic structure cannot be amended on the
grounds that a power to amend is not a power to destroy.
Later developments and Reaffirmation of The Doctrine:The Doctrine was although propounded in The Case of Kesavananda Bharati in 1973 but has
undergone various developments, changes, additions and further interpretations by the
Judiciary through its application in various cases such as Minerva Mills case, Indira Gandhi
Election Case, etc.
Indira Nehru Gandhi v. Raj Narain32 :
Basic Structure concept reaffirmed in this case. The Supreme Court applied the theory of
basic structure and struck down Cl(4) of article 329-A,which was inserted by the 39th
Amendment in 1975 on the ground that it was beyond the amending power of the parliament
as it destroyed the basic feature of the constitution. The amendment was made to the
jurisdiction of all courts including SC, over disputes relating to elections involving the Prime
Minister of India.
Basic Features of the Constitution according to the Election case verdict Again, each judge
expressed views about what amounts to the basic structure of the Constitution: Justice Y.V.
Chandrachud listed four basic features which he considered unamendable:
a) Sovereign democratic republic status.
b) Equality of status and opportunity of an individual.
c) Secularism and freedom of conscience and religion.
d) 'Government of laws and not of men' i.e. the rule of law.

32 AIR 1975 SCC 2299

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42nd Amendment Act, 197633:


After the decision of the Supreme Court in Keshvanand Bharti and Indira Nehru Gandhi case
the constitution (42nd Amendment) Act, 1976 was passed which added two new clauses,
namely, clause (4) and (5) to Art.368 of the Constitution. It declared that there shall be no
limitation whatever on the constituent power of parliament to amend by way of addition,
variation or repeal of the provisions of the Constitution under this Article. This Amendment
would put an end to any controversy as to which is supreme, Parliament or the Supreme
Court. Clause (4) asserted the supremacy of the parliament. It was urged that Parliament
represents the will of the people and if people desire to amend the Constitution through
Parliament there can be no limitation whatever on the exercise of this power. This amendment
removed the limitation imposed on the amending power of the Parliament by the ruling of the
Supreme Court in Keshvanand Bhartis case. It was said that the theory of basic structure as
invented by the Supreme Court is vague and will create difficulties. The amendment was
intended to rectify this situation.
Minerva Mill v. Union of India34:
In this case the validity of 42nd amendment Act was challenged on the ground that they are
destructive of the basic structure of the Constitution. The Supreme Court by majority by 4
to 1 majority struck down clauses (4) and (5) of the article 368 inserted by 42nd Amendment,
on the ground that these clauses destroyed the essential feature of the basic structure of the
constitution. It was ruled by court that a limited amending power itself is a basic feature of
the Constitution.
In the judgement on Section 4, Cheif Justice Chandrachud wrote:
Three Articles of our Constitution, and only three, stand between the heaven of freedom into
which Tagore wanted his country to awake and the abyss of unrestrained power. They are
Articles 14, 19 and 21. Article 31C has removed two sides of that golden triangle which
affords to the people of this country an assurance that the promise held forth by the preamble
will be performed by ushering an egalitarian era through the discipline of fundamental rights,

33 Constitution (Forty Second Amendment) Act, 1976.


34 (1980) 3 SCC 625
27 | P a g e

that is, without emasculation of the rights to liberty and equality which alone can help
preserve the dignity of the individual.35
The historical Judgement laid down that:
The amendment made to Art.31C by the 42nd Amendment is invalid because it damaged the
essential features of the Constitution. Clauses (4) and (5) are invalid on the ground that they
violate two basic features of the Constitution viz. limited nature of the power to amend and
judicial review. The courts cannot be deprived of their power of judicial review. The
procedure prescribed by Cl.(2) is mandatory. If the amendment is passed without complying
with the procedure it would be invalid. The Judgement of the Supreme Court thus makes it
clear that the Constitution is Supreme not the Parliament. Parliament cannot have unlimited
amending power so as to damage or destroy the Constitution to which it owes its existence
and also derives its power.
L.Chandra kumar v. Union of India36:
Article 323-A and 323-B, both dealing with tribunals, were inserted by the 42nd Amendment.
Clause 2(d) of Art.323-A and Clause 3(d) of 323-B provided for exclusion of the jurisdiction
of the High Court under Art.226 and 227 and the Supreme Court under Art.32.The Supreme
Court in this case held these provisions as unconstitutional because they deny judicial review
which is basic feature of the Constitution. It held that the power of judicial review vested in
the High court under Art.226 and right to move the Supreme Court under Art.32 is an integral
and essential feature of the Constitution.
Content of The Basic Structure
The list of the basic features of the Constitution as given by the Supreme Court in
Kesavananda Case was not exhaustive so on case to case basis the Judiciary through its
interpretations keeps on adding on several basic features to the list as part of basic structure.
The majority in the Kesavananda Judgment had differing opinions on what the "basic
structure" of the Constitution comprised.
Chief Justice Sarv Mittra Sikri, writing for the majority, indicated that the basic structure
consists of the following:
35 "Minerva Mills Ltd. & Ors. vs. Union of India & Ors."
36 (1997) 3 SCC 261
28 | P a g e

The supremacy of the constitution.

A republican and democratic form of government.

The secular character of the Constitution.

Maintenance of the separation of powers.

The federal character of the Constitution.

Justices Shelat and Grover in their opinion added three features to the Chief Justice's list:

The mandate to build a welfare state contained in the Directive Principles of State
Policy.

Maintenance of the unity and integrity of India.

The sovereignty of the country.

Justices Hegde and Mukherjee, in their opinion, provided a separate and shorter list:

The sovereignty of India.

The democratic character of the polity.

The unity of the country.

Essential features of individual freedoms.

The mandate to build a welfare state.

Justice Jaganmohan Reddy preferred to look at the preamble, stating that the basic features
of the constitution were laid out by that part of the document, and thus could be represented
by:

A sovereign democratic republic.

The provision of social, economic and political justice.

Liberty of thought, expression, belief, faith and worship.

Equality of status and opportunity.37

He said that the Constitution would not be itself without the fundamental freedoms and the
directive principles.
Former Chief Justice K. Subba Rao in an article on the two judgments Golaknath and
Kesavananda Bharati, expressed the view:

37 Supra note 28.


29 | P a g e

"The existence of a remote judicial control may only act as a brake against hasty and
unreasonable legislative and executive action and as a form of guarantee to the public against
instability. The stability of the Constitution stabilizes the State."38
Basic Structure concept reaffirmed- the Indira Gandhi Election case In Indira Gandhi v. Raj
Narayan the Supreme Court applied the theory of basic structure and struck down cl.(4) of
article 329-A,which was inserted by the 39th Amendment in 1975 on the ground that it was
beyond the amending power of the parliament as it destroyed the " basic feature" of the
constitution. The amendment was made to the jurisdiction of all courts including SC, over
disputes relating to elections involving the Prime Minister of India.
Basic Features of the Constitution according to the Election case verdict Again, each judge
expressed views about what amounts to the basic structure of the Constitution:
Justice Y.V. Chandrachud listed four basic features which he considered unamendable:
# Sovereign democratic republic status
# Equality of status and opportunity of an individual
# Secularism and freedom of conscience and religion
# 'government of laws and not of men' i.e. the rule of law

Justice H.R. KhannaDemocracy is a basic feature of the Constitution and includes free and fair elections.
Basic structure doctrine reaffirmed in the Minerva Mills case.
In Minerva Mills case[10] the Supreme Court by majority by 4 to 1 majority struck down
clauses(4) and (5) of the article 368 inserted by 42nd Amendment, on the ground that these
clauses destroyed the essential feature of the basic structure of the constitution. It was ruled
by court that a limited amending power itself is a basic feature of the Constitution.
In L. Chandra Kumar case a larger Bench of seven Judges unequivocally declared:

38 (1973) 2 SCC (Journal), p. 1 at p. 27


30 | P a g e

"That the power of judicial review over legislative action vested in the High Courts under
Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and
essential feature of the Constitution, constituting part of its basic structure".
Now we can say, there is no hard and fast rule for basic feature of the Constitution. Different
judge keep different views regarding to theory of basis structure. But at one point they have
similar view that parliament has no power to destroy, alter, or emasculate the 'basic structure'
or framework of the constitution. "If the historical background, the preamble, the entire
scheme of the constitution and the relevant provisions thereof including article 368 are kept
in mind then there can be no difficulty, in determining what are the basic elements of the
basic structure of the constitution. These words apply with greater force to doctrine of the
basic structure, because, the federal and democratic structure of the constitution, the
separation of powers, the secular character of our state are very much more definite than
either negligence or natural justice."39.So for the protection of welfare state, fundamental
rights, Unity and integrity of the nation, Sovereign democratic republic and for Liberty of
thought, expression, belief, faith and worship, interpretation of judiciary is mandatory. We
can say none is above constitution even parliament and judiciary.

Importance and Critical Analysis of The Doctrine:Any person from the legal field in India and also outside India knows the very importance of
this doctrine as the soul and protector of democracy in India in its true sense i.e. citizen and
public favoring democratic and constitutional practices and that is why this Doctrine and the
Kesavananda Bharati Judgment is considered as a landmark and milestone in the Indian
Political and Legal Practices by the world.
The doctrine of basic structure has been subject to an intense debate in the Constitutional
field with regard to its genesis. A notion or doctrine in Constitutional sense can only be said
Constitutional when it has a Constitutional genesis. But this point raises a point on the issue
is the doctrine of basic structure is really basic? Subhash Kashyap criticizes the basic
structure theory in the words if the sovereign people through their representatives cannot
bring about their desired change, who will?40
39 H.M, Seervai: Constitutional law of India VOI.II, P. 1568 (2ND ED.)
40 Kashyap, Subhash C.- Our Constitution, Edition 2011, Reprint 2014, p. 340.
31 | P a g e

But of what use this desired change will be to the we the people at the cost of the
Constitution. This doctrine has anti-majoritarian flavor and is of prime importance as it
prevents the Parliament from abusing its majoritarian power. It can also be criticized that it
has extra Constitutional origin as there is lack of basic in the basic structure and what the
Supreme Court has done is to assume to itself a power of veto on all Constitutional
amendments. But if such limitations on the amending power of the Parliament will not be
there, then, a day may come, when it will be made a criminal offence to criticize the
government in power and we may not be left with our basic inalienable rights what the
Constitution guarantees to us in Part III.
Criticizing this doctrine with the argument that the constituent power gets transferred from
the elected representatives of the people to the judges of the Supreme Court one should not
forget the majoritarian power of which the Parliament is in possession of. The judiciary is the
protector and final interpreter of the Constitution and it is also below then Constitution. But it
also appeared from the few judicial pronouncements that the Supreme Court has assumed
much power in the name of basic structure what may be termed as power of veto to every
Constitutional amendments. This doctrine was meant for special use in times when
Constitutional amendments threatened the basic framework of the Constitution. This doctrine
is subjective and vague. As there is no clear cut list laid down by the judiciary that this
constitutes the basic structure and has said that it will be decided on the case to case basis.
Probably, the reason may be, the Judiciary is afraid of the Legislature that if they will give a
clear cut list of basic structure, then the Parliament may come forward with some other
alternatives. Thanks to Professor Dietrich Conrad who on his visit to India make us aware
that there is some implied inherent limitation on the amending power of the Parliament which
Palkhivala successfully propounded in the Keshavananda case what Mr. M. K. Nambyar
tried in Golakh Nath but because of judicial hesitation it took about half a decade time after
Golakh Nath to be approved. This doctrine protects our basic rights and every acts of the
Parliament is now subject to this doctrine, and put a full stop on the unconstitutional
Constitutional amendments game of the Parliament in I. R. Coelho case where the Ninth
Schedule was enacted with the purpose to give effect to laws relating to land reforms. The
purpose failed and the history clearly shows for what purpose, the Schedule was used.
Various enactments were put down in the Schedule to provide them a shield that they will be
beyond judicial review though many of them were not related to the agrarian reforms. Basic

32 | P a g e

structure doctrine is the reply to the dubious steps adopted to misuse the Ninth Schedule and
the judgment as a whole is laudable.
Mr. K. R. Narayanan (the former President of India) once said, we have destroyed the
Constitution, and Constitution has not destroyed us appears true as the Parliament has on
many occasions proved this in order to show their power. Nani A. Palkhivala while
delivering his speech on Twenty-Fourth Constitutional Amendment concluded with the words
let the Constitution of India be sovereign. This doctrine is not the result of an extra
judicial effort but what actually led was the attempts which were made by the Parliament
many times to bring changes in the Constitution in exercise of its constituent power, then
only judiciary came forward with this theory of implied limitation in the form of basic
structure that the Parliament can amend whatever it wants to but cannot amend the basic
structure of the Constitution. Why it cannot amend the basic structure of the Constitution
owes from the language of Article 368 itself
that..the Constitution shall stand amended in accordance with the Bill . So, the
argument of Mr. Pandit Kanahiyya Lal Mishra seems quite strong that amend the Constitution
in the light of the provisions contained in the Constitution but in such a way so that the basic
structure of the Constitution should remain the same and the Constitution shall stand
amended not sit amended because if the basic structure of the Constitution will be amended
then it is clear that the Constitution will no longer remain stand amended rather it will be
the opposite of the mentioned one. But since passing of the Constitution in 1949, we are
witnessing, how the Parliament is making our Constitution stand amended while attempts
has been made to make it sit and because of this there is a tussle between the Judiciary and
Legislature on one hand and the Executive on other. It is just like when the Parliament is in
doubt it has no other option than to amend. After all, a Constitution like a machine is a
lifeless thing. It acquires life because of the men who control it and operate it and India needs
today nothing more than a set of honest men who will have the interest of the country before
them.41
The basic structure doctrine is a mean to give a momentum to the living principles of the
Rule of Law and connotes that none is above the Constitution and the Constitution is
supreme.

41 Justice J. S. Verma in S. P. Gupta v. Union of India 1993(4) SCC 441.


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3. Basic Structure: Path Towards Rigidity or Flexibility The Basic Structure Doctrine cannot be said to make the constitution completely flexible or
completely rigid. It is a balancing doctrine which balances these two feature of the
Constitution.
The constituent makers didnt specify any implied limitations on the Parliaments power to
amend. So after the constitution became operative the very 1st Constitutional Amendment was
under question and controversy.
Since there were no implied restrictions on the parliaments power so it was interpreted by
the Legislature and Executives in India that the power is absolute and makes Parliament
equivalent the constituent assembly and the power to amend was compared with power to
rewrite the constitution which was against the very intention of the constituent makers and
the Constitution itself.
The preamble starts with WE THE PEOPLE and ends with give it to ourselves. This
means that each and every thing of the Constitution belongs to the people of India and will be
always for ages.
It neither belongs to the Executive or Legislature who are elected representatives of the
people nor it belongs to the Judiciary. It belongs only FOR THE PEOPLE, BY THE
PEOPLE AND OF THE PEOPLE.
The Supreme Court of India being the final interpreter of The Constitution of India has the
power and all rights do anything to any extend for and in the favour of WE THE PEOPLE
and for protecting the democracy of the country.
So in one such step of protection taken by Judiciary is the Basic Structure Doctrine.
Any constitution of any country can neither be too rigid nor be too flexible because both of
these features have their own pros and cons.
Why cant be too rigid?
If any of the constitution is completely rigid, then it can never be changed as per the changing
needs and demands of the society, its people, international and diplomatic requirements,
economic changes, etc. So the provision for amendment has to be there in any of the
constitution for long life existence and fulfilment of its intention.
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Therefore making a constitution completely rigid can never make it a good constitution for the people.

Why cant be too flexible?


A constitution can never be made completely flexible because there are probable chances of it being
misused by the Executive and Legislature and can become a tool or instrument for the political
parties coming in power to impose their ideologies by way of changes in constitution as per their
own convenience, needs and demands.
India has witnessed on several occasions that how the power to amend constitution has been misused
by the Parliament and the government.
For example: During Emergency Smt. Indira Gandhi did all possible changes she could do in the
constitution just for her personal benefits and to remain in power. She in fact introduced such a huge
amendment i.e. 42nd amendment that it is called THE MINI CONSTITUTUON OF INDIA most of
whose changes were nullified by the Judiciary and later governments.
So making any constitution too flexible can be very very dangerous for the people and for constitution
itself.
Thus an ideal constitution should be partially both rigid and flexible in nature so that only the
required, urgent and people and nation favoring changes could be made no room for unnecessary
changes for personal or political benefits.
The basic structure doctrine also did the same that is making a A BALANCE BETWEEN BOTH
RIGIDITY AND FLEXIBILTY.
The earlier decision by the court in Golaknaths Case stopped the Parliament from amending the
Fundamental Rights only. It didnt bring any check on the amendment of other parts of the
constitution. This decision was thus criticized.
A situation might arise where amendment even in the fundamental rights could be in the benefit of the
people and citizens such as EX. ARTICE 21 A being made a fundamental right. So completely
stopping the Parliament from amending the fundamental rights is arbitrary.
Also there was no mention or check on the amendment of other parts of the constitution which was
wrong. There are several other parts and articles in the constitution which if completely amended can
destroy the essence of the constitution.
So overall the Golaknaths Decision can be said to be an erroneous judgment by the Judicaiarys 11
JUDGES CONSTITUTIONAL BENCH.

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This judgment was soon overruled by the LARGESST EVER CONSTITUTION BENCH OF
INDIA IN 1973 IN KESAVANDA BHARATI CASE BY PROPUNDING THR BASIC
STRUCTURE DOSCTRINE.
This doctrine provide both flexibility and rigidity to the amending powers of parliament.
Providing Flexibilty:It allowed the parliament to amend any part of the constitution it wants to including the preamble and
the fundamental rights.

Providing Rigidity:It imposed the restriction that Parliament can amend anything in the constitution except the basic
structure of the constitution. This basic structure or features were listed in an un exhaustive list and
the final say was kept with the Judiciary to decide that which part or provision will fall under the
basic structure or not. If any amendment is found to violate the basic structure, then it shall be
declared void and unconstitutional by the Supreme Court.
This is how the Basic Structure Doctrine is a balancing concept given by the Honble Supreme Court
which gives both RIGIFITY AND FLEXIBILTY to the Parliament for amending the
constitution.

The Ninety-Ninth Constitutional Amendment and the Doctrine of Basic Structure


The Ninety-Ninth Constitutional Amendment and the National Judicial Appointment
Commission Act (hereinafter referred to as NJAC Act) was proposed to be a constitutional
body to replace the existing system of judicial appointments, whereby the three senior-most
judges of the Supreme Court (the Collegium) decide upon the appointments to the
Supreme Court, with a nominally consultative role played by the Executive. Through a new
Article 124A of the Constitution, they seek to bring into existence a National Judicial
Commission, comprising of six members i.e., the Chief Justice of India and two senior-most
judges of the Supreme Court, two eminent persons (who would be nominated by a
committee consisting of the CJI, Prime Minister of India and Leader of opposition or leader
of single largest party) and the Law Minister.
Under a new Article 124B, the NJAC will recommend appointments to the higher judiciary.
The Constitution Ninety-Ninth Amendment was challenged in the Supreme Court Advocates
on Record v. Union of India.95 The issue in the case was whether the impugned amendment
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alters or damages the said basic structure and is void on that ground? The petitioners
contended that the primacy of judiciary in appointment of judges and absence of interference
by the Executive therein is by itself a part of basic feature of the Constitution being integral
part of independence of judiciary and separation of judiciary from the Executive. According
to the respondents primacy of judiciary in appointment of judges is not part of independence
of judiciary. Even when appointments are made by Executive, independence of judiciary is
not affected.
Alternatively in the amended scheme, primacy of judiciary is retained and independence of
judiciary is strengthened. The amendment promotes transparency and accountability and is a
part of needed reform without affecting the basic structure of the Constitution.
The Court rejected the contentions and by a majority of 4:1 held that the new scheme
damages the basic structure of the Constitution under which primacy in appointment of
judges has to be with the judiciary. Under the new scheme such primacy has been given a gobye. Thus, the impugned amendment cannot be sustained. Articles 124A, B and C form the
backbone of the 99th Amendment, and have been impugned as violating the basic structure
by destroying the independence of the judiciary, the separation of powers, and the rule of law.

CONCLUSION:
As a conclusion it may be said that the doctrine of basic structure of the Constitution is a
great Constitutional concept that has been formally engrafted upon the Constitution by the
judiciary s through the interpretative processes. The doctrine is well formulated and it has
maintained a balance between the rigidity and the flexibility of the Constitution. The basic
structure doctrine is the single most important factor that has made the survival of our
Constitution possible in its pristine form. It has served us well by effectively foreclosing the
possibilities of uncalled for tampering of the Constitution, abrogation of the primordial rights
necessary for the development of human personality, weakening the hold of Rule of Law and
maintaining balance between different organs of the State. It prevents the parliament from
having unconditional power and becoming the master of law itself. It has till date proved to
be a very effective tool in deciding the validity of the Constitutional amendments. But
whether this doctrine is sufficient to accommodate the change that may be required in future
needs to be further debated. Nevertheless, there is no scope in denying the fact that this
doctrine has served the country very well during turbulent times when parliament was in a
mood to resort to Article 368 recklessly. The Supreme Court has done a great service to the
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nation by declaring that there are certain basic features of the Constitution which cannot be
amended. It has necessarily pointed out to the parliament that Constitution is not any partys
manifesto which can be changed at their own will but is a national heritage which can be
amended only when a national consensus demands for it. Thus, the doctrine of basic structure
may be allowed to operate as the very watchdog of Constitutional governance. There can still
be debates about what constitutes basic structure. There is nothing wrong in such debates. We
must remember that politics in a democracy is necessarily full of debates and differences.
That is a sign of diversity, liveliness and openness.
The author has come to a conclusion that The Doctrine of Basic Structure makes The
Constitution both rigid as well as flexible and it is indeed a remarkable step taken by the
Indian Judiciary making this doctrine a milestone in the Indian Political and Legal System
and the list of the basic features can never be made exhaustive as the Parliament and
Executive will definitely find a loophole and alternate way to escape such an exhaustive list.

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Bibliography:
Websites:
www.scconline.in
www.parliamentofindia.nic.in
http://www.legalserviceindia.com/articles/am_co.htm.
http://legalservicesindia.com/articles/pol.htm.
http://heinonline.org/HOL/Index?index=journals/indana&collection=usjournals.

Books:
1. Basu, D.D., Commentary on the Constitution of India, 2005
2. Seervai, H.M., Constitutional Law of India, 2004
3. Pandey, J.N., Constitutional law of India, 2006
4. Jain,M.P., Indian Constitutional Law, 2013
6. Shukla V.N., Constitution of India, 2006
7. Shiva Rao.B., The Framing of Indias Constitution, 2006
Cases:
1. Sankari Prasad Singh v. Union of India, AIR 1951 SC 458
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2. Sajjan Singh v. State of Rajasthan, (1965) 1 SCR 933


3. Golak Nath v.State of Punjab, (1967) 2 SCR 762
4. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461
5. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SCC 2299
6. Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625
7. L. Chandra Kumar v. Union of India (1997) 3 SCC 261

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