14 MARKS ANSWER – EXAM READY

Amendment of Constitution & Basic Structure Theory

EXAMINATION QUESTION

Explain the procedure for Amendment of the Indian Constitution under Article 368. Discuss
the Basic Structure Theory with the help of landmark case laws.

I INTRODUCTION – WHAT IS CONSTITUTIONAL AMENDMENT?

A Constitution is a living document. As society changes, the law must also change. The Indian Constitution
gives Parliament the power to amend (change) the Constitution under Article 368.

SIMPLE MEANING

Amendment means changing, adding, or removing any part of the Constitution. But this power is not
unlimited. The Supreme Court said Parliament cannot destroy the basic soul of the Constitution — this is called
the Basic Structure Doctrine.

II ARTICLE 368 – POWER AND PROCEDURE TO AMEND

Art. 368(1) Who Can Amend?

Parliament has the power to amend the Constitution

Only Parliament can initiate a constitutional amendment. A State Legislature cannot initiate an amendment bill.
However, for some provisions, State Legislatures must also ratify (approve) the amendment.

An amendment bill can be introduced in either House of Parliament (Lok Sabha or Rajya Sabha) — not just Lok
Sabha like ordinary money bills.

Art. 368(2) Three Methods of Amendment

METHOD 1 – SIMPLE MAJORITY

50%+
Majority of members present and voting
Used for: Admission of new States, formation of new States, parliamentary procedures (Art. 100, 327)

Note: This is technically NOT under Art. 368 — it follows ordinary legislative procedure

METHOD 2 – SPECIAL MAJORITY

2/3 + 50%
2/3rd of members present & voting PLUS majority of total strength of each House
Used for: Most constitutional amendments (Fundamental Rights, DPSP, etc.)

Both Houses must pass separately — no joint sitting

METHOD 3 – SPECIAL MAJORITY + STATE RATIFICATION

2/3 + 1/2
Special majority in Parliament PLUS ratification by at least half of all State Legislatures
Used for: Federal provisions — Election of President (Art. 54), distribution of powers (Arts. 73, 162), Supreme Court/High Court (Arts.
 124–147), etc.

IMPORTANT POINT – NO JOINT SITTING

If the two Houses of Parliament disagree on a constitutional amendment bill, there is NO provision for a Joint
Sitting (unlike ordinary bills). The bill simply fails. Both Houses must independently pass it by special majority.

Art. 368(3) Presidential Assent is Mandatory

President must give assent — cannot withhold

After both Houses pass the amendment bill, it is sent to the President for assent. Unlike ordinary bills, the
President cannot withhold assent or return a constitutional amendment bill. He must sign it. (This was clarified
by the 24th Amendment Act, 1971.)

III IMPORTANT CONSTITUTIONAL AMENDMENTS RELATED TO THIS TOPIC

24th Amendment Act, 1971

Passed after Golak Nath case. It made two important changes:

Declared that Parliament has power to amend any part of the Constitution including Fundamental Rights
Made it mandatory for the President to give assent to constitutional amendment bills

42nd Amendment Act, 1976 – "Mini Constitution"

Passed during the Emergency (1975–77) by Indira Gandhi's government. It made sweeping changes:

Added the words Socialist, Secular and Integrity to the Preamble

Placed Directive Principles above Fundamental Rights
Declared that no court can question any constitutional amendment
Extended the term of Lok Sabha and State Assemblies from 5 to 6 years

Many provisions of the 42nd Amendment were later struck down by the Supreme Court in Minerva Mills case as
violating the Basic Structure.

44th Amendment Act, 1978

Passed by the Janata Government to undo excesses of the Emergency. Key changes:

Removed Right to Property from Fundamental Rights (now only a legal right under Art. 300A)
Restored Lok Sabha term back to 5 years
Articles 20 and 21 cannot be suspended even during Emergency
President must act on Cabinet's written advice for National Emergency

IV BASIC STRUCTURE THEORY – SIMPLE EXPLANATION

WHAT IS THE BASIC STRUCTURE DOCTRINE?

Think of the Constitution as a house. Parliament can renovate the house — add rooms, change doors, repaint
walls. But Parliament cannot demolish the foundation. The Basic Structure is that foundation — the essential
features that make India what it is. No amendment can destroy these features, even if passed by a huge majority
in Parliament.

Established by: Supreme Court in Kesavananda Bharati v. State of Kerala (1973)

Elements of Basic Structure (as declared by Courts)

1 Supremacy of the Constitution

2 Republican and Democratic form of Government

 3 Secular character of the Constitution

4 Separation of Powers between Legislature, Executive and Judiciary

5 Federal character (Centre-State relations)

6 Judicial Review – Power of Courts to examine laws

7 Unity and Integrity of India

8 Free and Fair Elections

9 Rule of Law

10 Individual Freedom and Dignity (Arts. 14, 19, 21)

KEY POINT TO REMEMBER

The Basic Structure is not a fixed list. The Supreme Court adds to it over time through judgments. The
Constitution itself does not use the words "Basic Structure" anywhere — it is a judge-made doctrine.

V EVOLUTION THROUGH LANDMARK CASE LAWS (TIMELINE)

51 Shankari Prasad v. Union of India — 1951

First major case on this issue. SC held that Parliament has UNLIMITED power to amend ANY part of the
Constitution including Fundamental Rights. Amendment is not "law" under Art. 13.

65 Sajjan Singh v. State of Rajasthan — 1965

Reaffirmed Shankari Prasad. Parliament has full power to amend Fundamental Rights. However, Justice Mudholkar
raised a doubt — can Parliament destroy the identity of the Constitution?

67 Golak Nath v. State of Punjab — 1967

11-judge bench OVERRULED earlier decisions. SC held Parliament CANNOT amend Fundamental Rights.
Constitutional amendments ARE "law" under Art. 13. Fundamental Rights are permanent and unamendable. (This was
later overruled by Kesavananda Bharati.)

73 24th Amendment Act, 1971 (Parliamentary Response to Golak Nath)

Parliament reacted to the Golak Nath judgment by passing the 24th Amendment — explicitly declaring its power to
amend Fundamental Rights and making presidential assent mandatory.

Kesavananda Bharati v. State of Kerala MOST IMPORTANT — 13 JUDGES

AIR 1973 SC 1461 — Largest Constitutional Bench in Indian History

Background (Simple Story): Swami Kesavananda Bharati was the head of a religious mutt in Kerala. The
Kerala government acquired land belonging to the mutt under land reform laws. He challenged this, and the
case ultimately became about — How far can Parliament amend the Constitution?

Held (7:6 majority):

Parliament CAN amend any provision of the Constitution including Fundamental Rights (overruling Golak
Nath)
BUT Parliament CANNOT amend or destroy the Basic Structure of the Constitution
The power of amendment is wide, but it is NOT unlimited — there is an implied limitation
Any amendment that abridges the Basic Structure will be declared unconstitutional and void

This is the single most important judgment in Indian constitutional law. It has been called the "Magna Carta"
of India. It created a permanent balance between Parliamentary supremacy and Constitutional supremacy.
75 Indira Nehru Gandhi v. Raj Narain — 1975
The 39th Amendment placed the election of the Prime Minister beyond judicial scrutiny. SC struck it down — it
destroyed Rule of Law and Free Elections which are part of Basic Structure. First direct application of
Kesavananda Bharati principle.

80 Minerva Mills Ltd. v. Union of India — 1980

Parliament had passed the 42nd Amendment (1976) saying: "no court can question any amendment." SC struck this
down. Held that Judicial Review is part of Basic Structure. Parliament cannot make itself the supreme judge of
its own powers. Balance between Fundamental Rights and DPSP is also Basic Structure.

81 Waman Rao v. Union of India — 1981

SC laid down a clear rule: Laws placed in the 9th Schedule before 24th April 1973 (date of Kesavananda
Bharati) are fully protected. Laws added after that date can be tested against Basic Structure.

94 S.R. Bommai v. Union of India — 1994

SC held that Secularism is a Basic Structure of the Constitution. No amendment or state action can destroy the
secular nature of India. Also strengthened Federalism as Basic Structure.

07 I.R. Coelho v. State of Tamil Nadu — 2007 (9 Judges)

SC clarified: Even laws placed in the 9th Schedule after April 24, 1973 can be challenged if they violate
Fundamental Rights under Articles 14, 19, 21 — because these are part of Basic Structure. The 9th Schedule is NOT a
"safe zone" for laws that damage Basic Structure.

VI ARTICLE 13 VS ARTICLE 368 – THE CENTRAL DEBATE

Point Article 13 Article 368

What it says Laws inconsistent with Fundamental Rights Parliament has power to amend the
are void Constitution

Question Is "amendment" a "law" under Art. 13? Can amendment override Art. 13?

Shankari Prasad Amendment is NOT "law" under Art. 13 Art. 368 is supreme — no
(1951) restriction

Golak Nath (1967) Amendment IS "law" under Art. 13 — cannot Art. 368 is limited by Art. 13
violate FRs

Kesavananda (1973) Amendment is NOT law under Art. 13 BUT Art. 368 power exists but has
Basic Structure cannot be changed implied limit — Basic Structure

VII LIMITATIONS ON PARLIAMENT'S POWER TO AMEND

PARLIAMENT CANNOT DO THE FOLLOWING THROUGH AN AMENDMENT:

✓ Destroy or damage the Basic Structure of the Constitution (Kesavananda Bharati)

✓ Remove Judicial Review — Courts must always have power to test laws (Minerva Mills)

✓ Destroy the secular character of India (S.R. Bommai)

✓ Eliminate Free and Fair Elections (Indira Gandhi v. Raj Narain)

✓ Abolish Fundamental Rights under Arts. 14, 19, 21 as a group — these form part of Basic Structure

✓ Make itself the sole and final judge of its own constitutional powers (Minerva Mills)

✓ Grant absolute immunity to any law from judicial examination (I.R. Coelho)

EASY MEMORY TRICK – PARLIAMENT CAN VS CANNOT

CAN: Change, add, delete any article → amend Fundamental Rights → change electoral system → reorganize
States

CANNOT: Destroy the soul (basic structure) → remove courts' power to review → make itself above the
Constitution → end democracy, secularism, or federalism

VIIIQUICK REVISION – ALL CASES AT A GLANCE

Case Name Year Held / Key Point

Shankari Prasad 1951 Parliament has unlimited power to amend including Fundamental Rights

Sajjan Singh 1965 Reaffirmed Shankari Prasad. Hint of doubt by Mudholkar J.

Golak Nath 1967 Parliament CANNOT amend Fundamental Rights. Amendment = Law under
Art. 13

Kesavananda Bharati 1973 Parliament can amend FRs but CANNOT destroy Basic Structure.
Most important case.

Indira Gandhi v. Raj 1975 Free elections = Basic Structure. 39th Amendment struck down.
Narain

Minerva Mills 1980 Judicial Review = Basic Structure. 42nd Amendment's immunity clause void.

Waman Rao 1981 9th Schedule laws after April 24, 1973 can be challenged on Basic Structure.

S.R. Bommai 1994 Secularism and Federalism = Basic Structure.

I.R. Coelho 2007 9th Schedule laws post-1973 violating Arts. 14, 19, 21 can be struck down.

Conclusion

Article 368 gives Parliament a wide but not unlimited power to amend the Constitution. The journey from
Shankari Prasad (1951) to Kesavananda Bharati (1973) to Minerva Mills (1980) shows how the Supreme Court
carefully built a balance — Parliament is supreme in its domain, but the Constitution is supreme over
Parliament. The Basic Structure Doctrine is the greatest contribution of Indian judiciary to constitutional law,
ensuring that India remains a democracy, a secular state, and a federal republic — no matter which party holds
power. As the Supreme Court famously put it, the power to amend the Constitution is not a power to "destroy"
it.

[Link].B. (Hons) — Constitutional Law II — Unit IV Paper Code: LLB(H) 406 14 Marks