Exhaustive Note: Informal Methods of

Amendment of the Indian Constitution

1. Conceptual Introduction: What is an Informal Amendment?

An informal amendment refers to a fundamental shift in the meaning, operation, scope,

or practical application of the Constitution without altering a single word of its written
text.

Unlike formal amendments under Article 368, which require strict legislative majorities
and occasional state ratification, informal amendments happen through constitutional
evolution. They provide the necessary elasticity to ensure the Constitution survives as a
"living document," adapting to changing socio-political realities without causing
structural friction.

2. The Mechanics of Informal Amendments: A

Categorized Breakdown
A. Judicial Interpretation & Activism (The Master Engine)

The higher judiciary (Supreme Court and High Courts) is the most potent agent of
informal amendment. Through the power of judicial review, courts read new meanings
into existing textual skeletons.

 The Transformation of Article 21:

o The Text: Protects "life and personal liberty" except according to "procedure established
by law."
o The Informal Amendment: In Maneka Gandhi v. Union of India (1978), the Supreme
Court informally amended this text by reading the American concept of "Due Process of
Law" into it. Over decades, the Court expanded this single sentence to include the right
to privacy (K.S. Puttaswamy), the right to free legal aid, and the right to a clean
environment—expanding the rights architecture without a legislative vote.
 The Appointment of Judges (The Collegium System):
o The Text (Article 124 & 217): States that the President shall appoint judges "in
consultation" with the Chief Justice of India (CJI).
o The Informal Amendment: Through the Three Judges Cases, the Supreme Court ruled
that "consultation" means "concurrence" and created the Collegium System. This
shifted the ultimate appointment authority from the Executive to the Judiciary,
fundamentally rewriting the checks-and-balances framework without textually amending
Article 124.
 The Basic Structure Doctrine:
o The Text (Article 368): Grants Parliament the power to amend the Constitution.
o The Informal Amendment: In Kesavananda Bharati (1973), the Supreme Court read an
implied limitation into Article 368, establishing that Parliament cannot destroy the
"Basic Structure" of the Constitution, thereby placing a permanent constraint on
legislative sovereignty.

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 B. Constitutional Conventions vs. Textual Mandates (Crucial Distinctions)

Conventions are unwritten rules of political morality and practice that fill the gaps where
the constitutional text is silent or deliberately ambiguous. For an LL.M. exam, it is vital
to distinguish between what is explicitly commanded by the text and what operates
purely as a convention.

1. Appointment of the Executive Head (Hung Parliament/Assembly)

 The Textual Mandate (Articles 75 & 164): The text simply mandates that the Prime
Minister shall be appointed by the President, and the Chief Minister by the Governor. It
contains absolutely zero guidance on what to do if no single party wins an absolute
majority.
 The Informal Amendment via Convention: To prevent arbitrary executive actions, a
strict convention (later formalised by the Sarkaria and M.M. Punchhi Commissions)
dictates that the head of state must invite political factions in a specific sequence: the
leader of a pre-poll alliance first, followed by the single largest political party, then a
post-poll coalition.

2. The Operational Dynamics of the Governor

 The Textual Mandate (Article 163): Unlike the President's position under Article 74,
the text itself explicitly commands that the Governor must act on the "aid and advice" of
the Council of Ministers, except where the Constitution expressly requires them to act in
their discretion. Therefore, the baseline requirement to follow ministerial advice is a
hardcoded textual rule, not a convention.
 The Informal Amendment via Convention: Conventions step in to govern the
discretionary gaps left by Article 163. For example:
o The "Outsider" Convention: The text (Article 157) only requires a Governor to be a
citizen over 35 years old. However, a strict convention dictates that a Governor must be
an "outsider" to the state they are appointed to, ensuring political detachment.
o The "Pocketing" of Bills: Under Article 200, a Governor can reserve a bill for the
President's consideration. While the text sets no time limit, democratic conventions
dictate that a Governor should not sit on a state bill indefinitely to sabotage state
legislative intent.

C. Statutory Substantive Legislation

The framers purposely left several constitutional frameworks as broad skeletons,

empowering Parliament to flesh out the details through ordinary legislation. As these
ordinary statutes change, the practical constitutional architecture changes.

 Citizenship Architecture: Part II of the Constitution only defines who was a citizen at
the exact moment of the Constitution's commencement (January 26, 1950). Article 11
textually delegates all future citizenship management to Parliament. Consequently, the
Citizenship Act of 1955 (and its amendments) represents an informal, ongoing expansion
of the constitutional text regarding national identity.
 Electoral Controls: While Article 324 establishes the Election Commission, the actual
disqualifications of MPs, rules of representation, and electoral behaviors are entirely

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 governed by ordinary statutes like the Representation of the People Acts of 1950 and
1951.

D. Executive Action and Extra-Constitutional Bodies

Administrative adjustments can completely shift the equilibrium of constitutional centers

of power without formal text amendments.

 The Shift in Fiscal Federalism: The text of the Constitution establishes a statutory
Finance Commission (Article 280) to recommend fiscal distribution between the Centre
and States. However, the creation of the Planning Commission (and later the NITI
Aayog) via a mere Executive Resolution created a massive parallel channel of
discretionary central grants, altering the federal financial dynamic for decades without a
single formal amendment to the text of Part XII.

3. Analytical Conclusion: The Interplay between

Formal and Informal
For a complete constitutional analysis, consider this dynamic:
Formal Amendment Informal Amendment
Dimension
(Article 368) (Conventions/Judicial Review)
Ensures Structural
Ensures Dynamic Elasticity: Prevents
Primary Rigidity: Protects the core
the Constitution from becoming obsolete
Value federal compact from sudden
or snapping under societal pressure.
political swings.
Judicial Evolution, Administrative
Source Explicit Legislative Will.
Practice, and Political Custom.

A healthy constitutional democracy requires both: Article 368 prevents arbitrary

alterations to the bedrock framework, while informal amendments, properly checked by
judicial reason and democratic conventions, keep the document alive and relevant.

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 Q. Critically examine the scope and extent of the doctrine of basic structure under
Article 368 of the Constitution, tracing its jurisprudential evolution from Shankari
Prasad to I.R. Coelho. (20 Marks)

I. Introduction

Article 368 of the Indian Constitution grants Parliament the constituent power to amend
the Constitution. However, the jurisprudence surrounding this power has been
characterized by a profound institutional tug-of-war between Parliamentary sovereignty
and Judicial review. The culmination of this struggle is the Basic Structure Doctrine—a
judicially innovated principle of "implied limitations." It postulates that while
Parliament’s amending power is plenary, it cannot be exercised to alter, destroy, or
abrogate the foundational identity and core framework of the Constitution.

II. The Genesis: Agrarian Reforms and the Early Era of Absolute Power

The conflict began immediately after the Constitution's adoption, driven by the
government's push for agrarian reforms and the abolition of the Zamindari system. When
high courts began striking down these land reform laws for violating the fundamental
right to property, Parliament enacted the 1st Amendment Act (1951) to shield them. This
triggered the first major constitutional challenge.

1. Shankari Prasad v. Union of India (1951)

 The Background: Zamindars challenged the 1st Amendment, arguing that an

amendment taking away property rights was a "law" under Article 13(2) and therefore
void.

 The Principle: A unanimous 5-Judge Bench, authored by Justice Patanjali Sastri,

rejected this argument. The Court drew a strict dichotomy between "ordinary legislative
law" and "constituent law." It ruled that the term "law" under Article 13(2) did not
encompass constitutional amendments. Thus, Parliament's amending power under Article
368 was absolute and could freely abridge Fundamental Rights.

2. Sajjan Singh v. State of Rajasthan (1965)

 The Background: Fourteen years later, Parliament passed the 17th Amendment to
further immunize land reform laws by adding them to the Ninth Schedule. The judicial
anxiety over Parliament's unchecked power began to surface here.

 The Principle: While the majority upheld Shankari Prasad, this case is the conceptual
birthplace of the basic structure theory.

 The Dissenting Seed: Justice J.R. Mudholkar, in his separate opinion, became the first
judge to introduce the phrase "basic feature." Drawing from comparative constitutional
law (specifically the Supreme Court of Pakistan), he expressed grave doubts as to
whether altering the fundamental framework of the Constitution could legally be termed
an "amendment," rather than a rewriting of the text.

III. The Tipping Point and the Constitutional Crisis

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 By the late 1960s, the Supreme Court grew deeply concerned that if Parliament's
amending power remained unchecked, a transient political majority could theoretically
erase all Fundamental Rights, not just the right to property.

3. I.C. Golaknath v. State of Punjab (1967)

 The Background: The 17th Amendment was challenged again. This time, the Court was
ready to act against parliamentary absolutism.

 The Principle: An 11-Judge Bench, led by Chief Justice K. Subba Rao, overruled
previous precedents by a narrow 6:5 majority, creating a constitutional crisis.

 The Reasoning: The Court held that Article 368 merely provided the procedure for
amendment, not the power itself. It declared that constitutional amendments were indeed
"laws" within the meaning of Article 13(2). Consequently, Parliament was entirely
stripped of the power to amend or take away Fundamental Rights.

IV. The Resolution: Birth of the Basic Structure Doctrine

The Golaknath ruling paralyzed the Indira Gandhi government's socialist agenda. In
retaliation, Parliament passed the 24th Amendment (expressly declaring Parliament's
power to amend any part of the Constitution, including Fundamental Rights) and the
25th Amendment (further curtailing property rights). The validity of these retaliatory
amendments led to the most important case in Indian legal history.

4. Kesavananda Bharati v. State of Kerala (1973)

 The Adjudication: To break the deadlock, the largest bench in Indian history (13
Judges) was constituted. By a razor-thin 7:6 majority, the Court laid down the Basic
Structure Doctrine.

 The Majority View: Authored by Chief Justice S.M. Sikri, the majority held that the
word "amend" implies retaining the original identity of the document. Therefore, the
constituent power is not a power to abrogate.

 The Architect (Swing Vote): Justice H.R. Khanna provided the crucial golden mean. He
disagreed with the six majority judges who believed Fundamental Rights could never be
amended. He ruled that Parliament can amend any part of the Constitution, including
Part III, provided such amendment does not destroy the "basic structure or framework"
of the Constitution.

 The Dissent: Led by Justice A.N. Ray, the 6 dissenting judges argued that reading
"implied limitations" into Article 368 was an anti-democratic judicial overreach,
asserting that constituent power must remain absolute.

V. The Emergency Era and the Defense of the Doctrine

During the National Emergency (1975-1977), Parliament made a brazen attempt to

legislatively overrule Kesavananda and establish parliamentary supremacy once and for

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 all. Through the 42nd Amendment, Clauses (4) and (5) were inserted into Article 368 to
completely immunize constitutional amendments from judicial review.

5. Minerva Mills Ltd. v. Union of India (1980)

 The Principle: A 5-Judge Bench struck down the 42nd Amendment's attempt to oust
judicial review (4:1).

 The Majority: Chief Justice Y.V. Chandrachud established a cardinal rule: "A limited
amending power is itself a basic feature of the Constitution." Parliament, a creature
of the Constitution, cannot enlarge its limited power into absolute power. The
harmonious balance between Fundamental Rights and Directive Principles was also
declared a basic feature.

 The Dissent: Justice P.N. Bhagwati concurred on striking down clauses (4) and (5) to
protect judicial review, but strongly dissented on striking down Section 4 of the Act. He
argued that giving primacy to Directive Principles (social welfare) over Articles 14 and
19 does not destroy the basic structure, as both are "two wheels of a chariot."

VI. Modern Application: Refining the Doctrine

With the survival of the doctrine secured, the post-1990s era saw the Court shifting its
focus from defending the doctrine's existence to defining exactly how it should be
applied to modern socio-political complexities, such as affirmative action and the
systemic abuse of the Ninth Schedule.

6. M. Nagaraj v. Union of India (2006)

 The Background: Following the Indra Sawhney judgment, Parliament passed the 77th,
81st, 82nd, and 85th Amendments to protect reservations in promotions for SCs/STs.
The petitioners argued these violated the equality code (a basic feature).

 The Principle: A unanimous 5-Judge Bench authored by Justice S.H. Kapadia refined
the application of the doctrine by establishing the Dual Inquiry Test:

1. The Width Test: Does the amendment stretch constituent power so wide that it
obliterates existing constitutional limitations (e.g., administrative efficiency under
Article 335)?

2. The Identity Test: Does the amendment alter the fundamental, egalitarian identity of the
Constitution?

 The Court upheld the amendments as enabling provisions that passed these rigorous
tests.

7. I.R. Coelho v. State of Tamil Nadu (2007)

 The Background: Over the decades, Parliament and State legislatures had
systematically abused the Ninth Schedule (Article 31B) by dumping hundreds of legally

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 questionable statutes into it, treating it as a constitutional "dustbin" immune from judicial
review.

 The Principle: A unanimous 9-Judge Bench, authored by Chief Justice Y.K. Sabharwal,
put an end to this practice by establishing the Essence of Rights Test.

 The Ruling: The Court ruled that the Ninth Schedule is not a constitutional black hole.
Any law inserted into it after April 24, 1973 (the date of the Kesavananda verdict) is
subject to strict judicial review if it damages the basic structure, specifically the "Golden
Triangle" of Fundamental Rights (Articles 14, 19, and 21).

VII. Conclusion

The Basic Structure Doctrine represents the zenith of constitutional jurisprudence in

India. It transformed Article 368 from a tool of absolute parliamentary sovereignty into a
mechanism of conditional constituent power. By navigating the rigid textualism of
Shankari Prasad, surviving the crisis of Golaknath, finding equilibrium in Kesavananda,
and refining its operational tests in Nagaraj and I.R. Coelho, the Supreme Court ensured
that while the Constitution remains a living, amendable document, its democratic,
secular, and egalitarian soul remains immortal.