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Chapter 6 - Amendment of the

Constitution
1) (a) What is the 'Basic Structure Doctrine', and how does it
impact the idea that no part of the Constitution is amendable? (8)
[2024,
Or,
Discuss the scope and ambit of the 'Doctrine of basic Structure'.
(8) [2022, 2020, 2016,
b) To what extent the Constitution may be amended by the
parliament? (4/8) [2023, 2021,
Or,
Can the Fundamental Rights be amended? (8/16) [2019, 2017,
2015,
c) State the procedure by which Constitution can be amended.
(8/16) [2023, 2018,
Or,
What are the different types of amendments provided under
Article 368 of the Indian Constitution? (8) [2024,
Or,
State the various procedures by which Constitution can be
amended. (8/10) [2021, 2019, 2017, 2016, 2015
d) 42nd Constitutional Amendment. (8) [2020,
2) a) "No part of Indian Constitution is amendable". Do you
agree? Give reasons for your answer. (8) [2022, 2017,

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 Drafted by Prasen Kumar Saha - 9681756032

b) Write a note on amending power of the Parliament.

Substantiate your answer with the help of relevant Case Laws.
(16) [2020,
c) Is there any role played by the state legislatures in the
amendment of the Constitution? (4) [2023,

A)

1) (a) What is the 'Basic Structure Doctrine', and how does it

impact the idea that no part of the Constitution is amendable? (8)
[2024,
Or,
Discuss the scope and ambit of the 'Doctrine of basic Structure'.
(8) [2022, 2020, 2016,
b) To what extent the Constitution may be amended by the
parliament? (4/8) [2023, 2021,
Or,
Can the Fundamental Rights be amended? (8/16) [2019, 2017,
2015,
c) State the procedure by which Constitution can be amended.
(8/16) [2023, 2018,
Or,
What are the different types of amendments provided under
Article 368 of the Indian Constitution? (8) [2024,
Or,
State the various procedures by which Constitution can be
amended. (8/10) [2021, 2019, 2017, 2016, 2015

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 Drafted by Prasen Kumar Saha - 9681756032

d) 42nd Constitutional Amendment. (8) [2020,

A)

1) (a) What is the 'Basic Structure Doctrine', and how does it

impact the idea that no part of the Constitution is amendable? (8)
[2024,
Or,
Discuss the scope and ambit of the 'Doctrine of basic Structure'.
(8) [2022, 2020, 2016,
A)

Article 368 falls under Part XX of the Constitution. It provides for three
kinds of amendments, i.e., amendment by simple majority; amendment by a
special majority; and amendment by special majority along with ratification by
the States.

The Constitution must be amended on a regular basis based on the dynamic

nature of society. Thus concept of basic structure was defined in Kesavananda
Bharati v. State of Kerala and Another (1973), aims to address a legal issue
that occurs in written constitutions as a result of the interaction between the
sections that protect fundamental rights and those that give Parliament the
authority to change the Constitution.

 Essential features of basic structure of Indian Constitution:

i) In Kesavananda Bharati v. State of Kerala, (1973) case, the following

essentials were accepted as ‗basic structure‘:

a) Supremacy of the Constitution

b) Secular character of the Constitution

c) Federalism

d) Separation of powers

e) Power of judicial Review mandate to build a welfare state.

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ii) In Indira Gandhi v. Raj Narain (1975) case, these include:

a) The sovereign democratic republic status,

b) Equality of status and opportunity for all people,

c) Secularism and freedom of conscience and religion,

d) The rule of law (It was also held in an implied manner as a feature of the
basic structure in the Golak Nath case (1967) by Justice Mudholkar.)

iii) In Minerva Mills judgement, the judges with the concurring opinion from
the majority ruled that ‗limiting the amending power‘ itself is a basic feature of
the Constitution.

iv) According to the judgement in the Central Coal Fields case (1980),
effective access to justice is a fundamental component of the basic structure.

v) In Kihoto Hollohon v. Zachillhu (1992) case, the Court hinted toward

democracy along with a fair electoral process as being a feature of the basic
structure.

vi) Further in S. R. Bommai v. Union of India (1994), democracy and

federalism, along with secularism were recognised as essential features of the
basic structure.

Vii) In M. Nagaraj v. Union of India (2006), the Court acknowledged the

doctrine of equality as an essential feature of the basic structure.

Therefore, it can be concluded that the basic structure of the Constitution has
changed over time since it was first established in the 1970s, with more and
more rights being incorporated into it with each passing year. Thus, the
underlying basic structure that is visible today is the result of years of court
supervision of fundamental rights and the associated constitutional framework.
The doctrine of basic structure‘s restriction on the dynamic nature of societal
concerns is wise and well-advised.

b) To what extent the Constitution may be amended by the

parliament? (4/8) [2023, 2021,
Or,

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Can the Fundamental Rights be amended? (8/16) [2019, 2017,

2015,
A)

The question whether Fundamental Rights can be amended under Article 368
came for consideration of the Supreme Court in Shankari Prasad v. Union of
India (1951). The Court held that Constitutional Amendment Act is not a law
and thus Parliament can amend any Fundamental Right by using Constitutional
Legislative Power.

 In Sajjan Singh v. State of Rajasthan (1965), the five judge bench

(decision was 3:2) of Supreme Court was followed Shankari Prasad Case.

 In Golak Nath v. State of Punjab (1967), the Supreme Court overruled

both Shankari Prasad and Sajjan Singh case and held that---

i) Power to amend the Constitution was a sovereign power and the said
power was supreme to the legislative power.

ii) The power of Parliament to amend the Constitution is derived from

Article 245 , read with Entry 97 of List I of the Constitution and not
from Art . 368. Article 368 lays down merely the procedure for
amendment of the Constitution . Amendment is a legislative process.

iii) An amendment is a ‗law‘ within the meaning of Article 13(2) and

therefore, if it, violates any of the fundamental rights it may be
declared void.

 Constitution (24th Amendment) Act, 1971:

In order to remove difficulties created by the decision of Supreme Court in

Golak Nath’s case. Parliament enacted the Constitution (24th Amendment)
Act. The amendment made the following amendments:

i) It inserted a new clause (4) in Article 13;

ii) It substituted a new marginal heading to Article 368 i.e. ―Power of

Parliament to amend the Constitution and Procedure therefor‖.

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Shankari Prasad v. UOI (1951)

Sajjan Singh v. State of Rajasthan

(1965)

Golak Nath v. State of Pnjab (1967)

24th Constitutional Amendment

Act, 1971

Keshavanada Bharati v. State of

Kerala (1973)

Constitution (42nd Amendment)

Act, 1976,

Minerva Mills v. UOI (1980)

 The validity of Constitution (24th Amendment) Act, 1971 was

challenged in the Supreme Court in Keshavananda Bharati v. State of
Kerala 1973, the Supreme Court overruled Golan Nath Case and upheld
the validity of 24th Amendment Act.

However, the Supreme Court held that the parliament‘s amendment power is
limited and is subject to ―Basic Structure‖ of the Constitution. The Supreme
Court has not explicitly defined the term ―Basic Structure‖. However, in various
judgements, the Supreme Court has held that the following concepts form a part
of Basic Structure—

o Supremacy of the Constitution

o Secular character of the Constitution

o Federalism

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o Separation of powers

o Power of judicial Review mandate to build a welfare state

 After the decisions of the Supreme Court in Keshavananda Bharati and

Indira Nehru Gandhi cases the Constitution (42nd Amendment) Act,
1976, was passed and inserted two new clauses namely, Clause (4) and
(5) in Article 368. Under Clause (5), Parliament intended that the ‗basic
features‘ of the Constitution could be amended.

 In Minerva Mills v. Union of India (1980), the Supreme Court by 4 to 1

majority struck down Section 55 of the Constitution (Forty-second
Amendment) Act which had inserted clauses (4) and (5) of Article 368
on the ground that these clauses were destructive of essential features or
the basic structure of the Constitution.

c) State the procedure by which Constitution can be amended.

(8/16) [2023, 2018,
Or,
What are the different types of amendments provided under
Article 368 of the Indian Constitution? (8) [2024,
Or,
State the various procedures by which Constitution can be
amended. (8/10) [2021, 2019, 2017, 2016, 2015
A)

The Constitution is a dynamic document. The Constitution, considered to be the

people‘s ‗common will,‘. It is not only the foundational law of the land but the
living organic stuff from which the other laws are to be produced according to
the nation‘s necessity. The framers of the Indian Constitution inserted Article
368 as a formal method to provide for a constitutional amendment.

 In World:
 In Australia, the constitutional amendment must be proposed by an
absolute majority of both Houses of Parliament . It must be submitted to

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the electors for approval within 6 months and must be approved by a

majority of the electors in a majority of the States.
 In America, a constitutional amendment can be proposed in either of the
two ways-

(1) By 2/3 of the votes of both Houses Congress , or

(2) (2) by a convention called on the application of the Legislatures of

2/3 of the States.

 In India:

Article 368 in Part XX of the Constitution deals with the Power of Parliament
to amend the Constitution and its procedures. It states that the Parliament may
amend the Constitution by way of addition, variation or repeal of any provision
in accordance with the the procedure laid down for the purpose.

However, the Parliament cannot amend those provision which form the ‗Basic
structure of the Constitution‘. This was ruled by the Supreme Court in the
Kesavananda Bharati v. State of Kerala Case (1973).

 Procedure for Amendment:

i) A Bill to amend the Constitution may be introduced in either House of

Parliament.

ii) It must be passed by each House by a majority of the total membership to

that House and by a majority of not less than 2/3 of the members of that House
present and voting.

iii) When a Bill is passed by both Houses it shall be presented to the President
for his assent who shall give his assent to Bill and thereupon the Constitution
shall stand amended.

iv) But a Bill which seeks to amend the provisions mentioned in Article 368
requires in addition to the special majority mentioned above the ratification by
the ½ of the States.

Article 368, however, does not constitute the complete Code. The process of
amending the Constitution is the legislative process governed by the rules of
that process.

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For the purpose of amendment the various Articles of the Constitution are
divided into three categories:

I) Amendment by Simple Majority:

A number of provisions in the Constitution can be amended t by a simple

majority of the two Houses of Parliament outside the scope of Article 368.

 These provisions include:

i) Admission of a new state – Article 2

ii) Citizenship – Article 11

iii) Exercise of the executive authority or its agents on issues relating to which
the parliament authorized to legislate – Article 73 ( 2 )

iv) Membership of Legislative Councils – Article 172

v) High Court judge‘s wages and allowances- Article 221(2) and subsequent
changes to Schedule II

vi) English-language Provisions – Article 343(3)

II) Special Majority:

Under Article 368(2), Parliament can amend the Constitution by passing a Bill
with a special majority i.e. a majority of total membership of each House of
Parliament not less than 2/3 of the members of that House present and voting.

- Fundamental Rights and Directive principles of State Policy (DPSP) are

two most important provisions that can be amended by the special
majority, but the amendments should be within Basic structure the
Constitution.

III) Ratification of States:

Those provisions of the Constitution which are related to the federal structure of
the polity can only be amended by a special majority of the parliament and also
with the consent of half the state legislatures by a simple majority .

 They are:

i) Manner of the Election of the President- Articles 54 and 55

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ii) Extent of the Executive powers of the Union and States – Articles 73 and 162

iii) The Union Judiciary - Articles 124-147

iv) The Courts in States – Articles 214-231

v) High Courts for Union territories – Article 241

vi) Legislative Relations – Articles 245-255

vii) The representation of States in parliament- Fourth Schedule

viii) Amendment of the Constitution – Article 368

Therefore, under Article 368 the parliament seems0 to have the exclusive right
in any direction to change the Constitution. But it is incorrect to say that the
parliament is independent, so as long mechanism under Article 368. Parliament
cannot be the deciding authority of the constitutional scheme since the
procedure itself restricts the use of the power to amend the Constitution on the
Parliament.

d) 42nd Constitutional Amendment. (8) [2020,

A)

After the decisions of the Supreme Court in Keshavananda Bharati and Indira
Nehru Gandhi cases the Constitution (42nd Amendment) Act, 1976, was passed
and inserted two new clauses namely, Clause (4) and (5) in Article 368. Under
Clause (5), Parliament intended that the ‗basic features‘ of the Constitution
could be amended.

 In Minerva Mills v. Union of India (1980), the Supreme Court by 4 to 1

majority struck down Section 55 of the Constitution (Forty-second
Amendment) Act which had inserted clauses (4) and (5) of Article 368 on
the ground that these clauses were destructive of essential features or the
basic structure of the Constitution.
 The 42nd amendment is called the ―Mini-Constitution‖ because of the
enormous amendments it brought to the Indian Constitution which are as
follows:-

i) Preamble:

The Words ‗Socialist‘, ‗Secular‘ and ‗Integrity‘ w added in the Preamble.

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ii) Seventh Schedule:

Transferred 5 subjects from the state list to the concurrent list:

a) Education

b) Forests

c) Weights & Measures

d) Protection of Wild Animals and Birds

e) Administration of Justice.

iii) Article 51A:

Ten Fundamental Duties added for the citizens on the recommendations of the
Swaran Singh Committee that was constituted by the government in 1976.

iv) Parliament:

a) Made President bound to the advice of the cabinet,

b) Allowed the Centre to deploy central forces in State to deal with the
conflicting situations of law and order (Article 257A),

c) Gave special discretionary powers to the speaker of the Lok Sabha and
Prime Minister (Article 329A),

d) Directive Principles were given precedence over Fundamental Rights and any
law made to this effect by the Parliament was kept beyond the scope of judicial
review by the Court.

v) Judicial Powers of High Courts:

It curtailed the judicial review power of the High Courts.

vi) Suspension of the Fundamental Rights:

The 42nd amendment brought the necessary clauses to the Constitution which
allowed for the suspension of fundamental rights in times of need for example,
in cases of emergency.

vii) Articles 323A and 323B, Part XIV-A:

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Part XIV-A added entitled as ‗Tribunals dealing with Administrative matters‘

and ‗Tribunals for other matters‘.

viii) Directive Principles of State Policy (DPSPs):

Three new Directive Principles of State Policy were added to the existing list of
DPSPs and one was amended:

a) To secure opportunities for the healthy development of

children (Article 39),

b) To promote equal justice and to provide free legal aid to

the poor (Article 39A),

c) To take steps to secure the participation of workers in the

management of industries (Article 43A)

d) To protect and improve the environment and to safeguard

forests and wildlife (Article 48A)

Therefore, the 42nd amendment is considered the most controversial

amendment in the history of the Indian Constitution, wherein many
amendments have been scrapped, like DPSP shall have precedence over
Fundamental rights have been scrapped by the following amendments; yet many
of its amendments are still intact and in force due to their benefits. However, the
amendment had a negative image due to its impact on our Indian democracy.

2) a) "No part of Indian Constitution is amendable". Do you

agree? Give reasons for your answer. (8) [2022, 2017,
b) Write a note on amending power of the Parliament.
Substantiate your answer with the help of relevant Case Laws.
(16) [2020,
c) Is there any role played by the state legislatures in the
amendment of the Constitution? (4) [2023,

A)

2) a) "No part of Indian Constitution is amendable". Do you

agree? Give reasons for your answer. (8) [2022, 2017,
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A)

First write introduction of the question no.1)c) (till procedure of

amendment)

Then add case law of questions no. 1)b)

b) Write a note on amending power of the Parliament.

Substantiate your answer with the help of relevant Case Laws.
(16) [2020,
A)

Already provided question no. 1)b) and 1)c)

c) Is there any role played by the state legislatures in the

amendment of the Constitution? (4) [2023,
A)

The procedure for amendment of the Constitution of India is provided under

Article 368 of the Constitution. It reflects a balance between rigidity and
flexibility, ensuring that certain provisions having federal significance cannot be
altered unilaterally by the Union Parliament. In this context, the State
Legislatures play a crucial and constitutionally mandated role in the amendment
process.

 Constitutional Provision [Article 368(2) of the Constitution]:

Under Article 368(2), an amendment to the Constitution can be initiated only by

the Parliament. However, where the amendment seeks to make any change in
matters of federal importance, it requires ratification by not less than one-half of
the State Legislatures.

Such ratification is necessary before the Bill is presented to the President for
assent.

 Ratification of States:

Those provisions of the Constitution which are related to the federal structure of
the polity can only be amended by a special majority of the parliament and also
with the consent of half the state legislatures by a simple majority .

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 They are:

i) Manner of the Election of the President- Articles 54 and 55

ii) Extent of the Executive powers of the Union and States – Articles 73 and 162

iii) The Union Judiciary - Articles 124-147

iv) The Courts in States – Articles 214-231

v) High Courts for Union territories – Article 241

vi) Legislative Relations – Articles 245-255

vii) The representation of States in parliament- Fourth Schedule

viii) Amendment of the Constitution – Article 368

Thus, amendments affecting these provisions require ratification by at least one-

half of the State Legislatures by a simple majority.

 Role and Nature of Ratification:

The State Legislatures do not have the power to initiate constitutional

amendments, but their ratification serves as a constitutional check on the
Parliament. The process is not subject to the assent of the Governor, as per the
express language of Article 368(2), and the ratification is purely legislative and
not discretionary.

 Judicial Interpretation:
 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225
The Supreme Court held that the power of amendment under Article 368
is subject to the basic structure doctrine. It affirmed that the requirement
of State ratification in certain cases is an integral part of the federal
character of the Constitution, which itself forms part of the basic
structure.
 S.R. Bommai v. Union of India, (1994) 3 SCC 1
The Court reiterated that the federal nature of the Constitution cannot be
altered without the participation of States. Hence, the procedure involving
State ratification safeguards the federal balance.
 Conclusion:

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The State Legislatures play a limited but constitutionally significant role in the
amendment process under Article 368. While they cannot initiate or veto all
constitutional amendments, their ratification is indispensable for amendments
that touch upon federal features. The judiciary has consistently upheld this as a
mechanism to preserve the basic structure and federal spirit of the Constitution.

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